Prepared by the Office of Parliamentary Counsel, Canberra
Criminal Code Act 1995
No. 12, 1995
Compilation No. 127
Compilation date: 6 April 2019
Includes amendments up to: Act No. 38, 2019
Registered: 29 April 2019
This compilation is in 2 volumes
Volume 1: sections 1–5
Schedule (sections 1.1–261.3)
Volume 2: Schedule (sections 268.1–490.7)
Schedule (Dictionary)
Endnotes
Each volume has its own contents
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About this compilation
This compilation
This is a compilation of the Criminal Code Act 1995 that shows the text of the
law as amended and in force on 6 April 2019 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents 1 Short title...........................................................................1
2 Commencement.................................................................1
3 The Criminal Code ............................................................1
3A External Territories............................................................1
3B Offshore installations ........................................................1
4 Definitions.........................................................................1
5 Regulations........................................................................2
Schedule—The Criminal Code 3
Chapter 1—Codification 3
Division 1 3
1.1 Codification.......................................................................3
Chapter 2—General principles of criminal responsibility 4
Part 2.1—Purpose and application 4
Division 2 4
2.1 Purpose..............................................................................4
2.2 Application........................................................................4
2.3 Application of provisions relating to intoxication .............4
Part 2.2—The elements of an offence 5
Division 3—General 5
3.1 Elements............................................................................5
3.2 Establishing guilt in respect of offences ............................5
Division 4—Physical elements 6
4.1 Physical elements ..............................................................6
4.2 Voluntariness.....................................................................6
4.3 Omissions..........................................................................7
Division 5—Fault elements 8
5.1 Fault elements ...................................................................8
5.2 Intention ............................................................................8
5.3 Knowledge ........................................................................8
5.4 Recklessness......................................................................8
5.5 Negligence.........................................................................9
5.6 Offences that do not specify fault elements.......................9
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Division 6—Cases where fault elements are not required 10
6.1 Strict liability...................................................................10
6.2 Absolute liability .............................................................10
Part 2.3—Circumstances in which there is no criminal
responsibility 11
Division 7—Circumstances involving lack of capacity 11
7.1 Children under 10............................................................11
7.2 Children over 10 but under 14.........................................11
7.3 Mental impairment ..........................................................11
Division 8—Intoxication 13
8.1 Definition—self-induced intoxication .............................13
8.2 Intoxication (offences involving basic intent) .................13
8.3 Intoxication (negligence as fault element).......................14
8.4 Intoxication (relevance to defences)................................14
8.5 Involuntary intoxication ..................................................15
Division 9—Circumstances involving mistake or ignorance 16
9.1 Mistake or ignorance of fact (fault elements other
than negligence) ..............................................................16
9.2 Mistake of fact (strict liability) ........................................16
9.3 Mistake or ignorance of statute law.................................17
9.4 Mistake or ignorance of subordinate legislation ..............17
9.5 Claim of right ..................................................................18
Division 10—Circumstances involving external factors 19
10.1 Intervening conduct or event ...........................................19
10.2 Duress..............................................................................19
10.3 Sudden or extraordinary emergency................................19
10.4 Self-defence.....................................................................20
10.5 Lawful authority..............................................................21
Part 2.4—Extensions of criminal responsibility 22
Division 11 22
11.1 Attempt............................................................................22
11.2 Complicity and common purpose....................................23
11.2A Joint commission.............................................................24
11.3 Commission by proxy .....................................................26
11.4 Incitement........................................................................26
11.5 Conspiracy.......................................................................28
11.6 References in Acts to offences ........................................29
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Part 2.5—Corporate criminal responsibility 31
Division 12 31
12.1 General principles ...........................................................31
12.2 Physical elements ............................................................31
12.3 Fault elements other than negligence ..............................31
12.4 Negligence.......................................................................33
12.5 Mistake of fact (strict liability) ........................................33
12.6 Intervening conduct or event ...........................................34
Part 2.6—Proof of criminal responsibility 35
Division 13 35
13.1 Legal burden of proof—prosecution ...............................35
13.2 Standard of proof—prosecution ......................................35
13.3 Evidential burden of proof—defence ..............................35
13.4 Legal burden of proof—defence......................................36
13.5 Standard of proof—defence ............................................36
13.6 Use of averments .............................................................36
Part 2.7—Geographical jurisdiction 38
Division 14—Standard geographical jurisdiction 38
14.1 Standard geographical jurisdiction ..................................38
Division 15—Extended geographical jurisdiction 41
15.1 Extended geographical jurisdiction—category A............41
15.2 Extended geographical jurisdiction—category B ............43
15.3 Extended geographical jurisdiction—category C ............46
15.4 Extended geographical jurisdiction—category D............48
Division 16—Miscellaneous 49
16.1 Attorney-General’s consent required for
prosecution if alleged conduct occurs wholly in a
foreign country in certain circumstances .........................49
16.2 When conduct taken to occur partly in Australia.............49
16.3 Meaning of Australia.......................................................50
16.4 Result of conduct.............................................................50
Chapter 4—The integrity and security of the international
community and foreign governments 51
Division 70—Bribery of foreign public officials 51
70.1 Definitions.......................................................................51
70.2 Bribing a foreign public official ......................................54
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70.3 Defence—conduct lawful in foreign public
official’s country .............................................................57
70.4 Defence—facilitation payments ......................................60
70.5 Territorial and nationality requirements ..........................62
70.6 Saving of other laws ........................................................63
Division 71—Offences against United Nations and associated
personnel 64
71.1 Purpose............................................................................64
71.2 Murder of a UN or associated person ..............................64
71.3 Manslaughter of a UN or associated person ....................64
71.4 Intentionally causing serious harm to a UN or
associated person.............................................................65
71.5 Recklessly causing serious harm to a UN or
associated person.............................................................65
71.6 Intentionally causing harm to a UN or associated
person ..............................................................................66
71.7 Recklessly causing harm to a UN or associated
person ..............................................................................66
71.8 Unlawful sexual penetration............................................67
71.9 Kidnapping a UN or associated person ...........................68
71.10 Unlawful detention of UN or associated person ..............69
71.11 Intentionally causing damage to UN or associated
person’s property etc. ......................................................69
71.12 Threatening to commit other offences.............................70
71.13 Aggravated offences........................................................71
71.14 Defence—activities involving serious harm....................71
71.15 Defence—medical or hygienic procedures......................72
71.16 Jurisdictional requirement ...............................................72
71.17 Exclusion of this Division if State/Territory laws
provide for corresponding offences .................................73
71.18 Double jeopardy ..............................................................73
71.19 Saving of other laws ........................................................73
71.20 Bringing proceedings under this Division .......................74
71.21 Ministerial certificates relating to proceedings................74
71.22 Jurisdiction of State courts preserved ..............................74
71.23 Definitions.......................................................................75
Division 72—Explosives and lethal devices 77
Subdivision A—International terrorist activities using explosive
or lethal devices 77
72.1 Purpose............................................................................77
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72.2 ADF members not liable for prosecution ........................77
72.3 Offences ..........................................................................77
72.4 Jurisdictional requirement ...............................................78
72.5 Saving of other laws ........................................................79
72.6 Double jeopardy and foreign offences.............................80
72.7 Bringing proceedings under this Subdivision..................80
72.8 Ministerial certificates relating to proceedings................80
72.9 Jurisdiction of State courts preserved ..............................81
72.10 Definitions.......................................................................81
Subdivision B—Plastic explosives 82
72.11 Purpose............................................................................82
72.12 Trafficking in unmarked plastic explosives etc. ..............82
72.13 Importing or exporting unmarked plastic
explosives etc. .................................................................82
72.14 Manufacturing unmarked plastic explosives etc. .............83
72.15 Possessing unmarked plastic explosives etc. ...................83
72.16 Defences..........................................................................84
72.17 Packaging requirements for plastic explosives ................85
72.18 Authorisation for research etc..........................................85
72.19 Authorisation for defence and police purposes—15
year limit .........................................................................87
72.22 Authorisation for overseas defence purposes—7
day limit ..........................................................................88
72.23 Authorisation for overseas Australian Federal
Police purposes—7 day limit...........................................89
72.24 Forfeited plastic explosives .............................................89
72.25 Surrendered plastic explosives ........................................90
72.26 Destruction of plastic explosives obtained overseas
for defence purposes........................................................91
72.27 Destruction of plastic explosives obtained overseas
for Australian Federal Police purposes............................91
72.28 Delegation by AFP Minister............................................91
72.29 Delegation by Minister for Defence ................................91
72.30 Review by Administrative Appeals Tribunal of
authorisation decisions ....................................................92
72.31 Geographical jurisdiction ................................................93
72.32 Saving of other laws ........................................................93
72.33 Marking requirements .....................................................93
72.34 Detection agents and minimum manufacture
concentrations..................................................................94
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72.35 Presumption as to concentration of detection agent ........94
72.36 Definitions.......................................................................95
Subdivision C—Cluster munitions and explosive bomblets 98
72.37 Purpose............................................................................98
72.38 Offences relating to cluster munitions.............................98
72.39 Defence—acquisition or retention authorised by
Defence Minister .............................................................99
72.40 Defence—transfer for destruction etc............................100
72.41 Defence—acts by Australians in military
cooperation with countries not party to Convention
on Cluster Munitions .....................................................101
72.42 Defence—acts by military personnel of countries
not party to Convention on Cluster Munitions ..............102
72.43 Forfeiture of cluster munition........................................103
72.44 Application of this Subdivision to explosive
bomblets ........................................................................103
72.45 Definitions.....................................................................103
Division 73—People smuggling and related offences 105
Subdivision A—People smuggling offences 105
73.1 Offence of people smuggling ........................................105
73.2 Aggravated offence of people smuggling (danger
of death or serious harm etc.) ........................................105
73.3 Aggravated offence of people smuggling (at least
5 people)........................................................................106
73.3A Supporting the offence of people smuggling .................107
73.4 Jurisdictional requirement .............................................107
73.5 Attorney-General’s consent required.............................108
Subdivision B—Document offences related to people smuggling
and unlawful entry into foreign countries 108
73.6 Meaning of travel or identity document ........................108
73.7 Meaning of false travel or identity document ................108
73.8 Making, providing or possessing a false travel or
identity document ..........................................................109
73.9 Providing or possessing a travel or identity
document issued or altered dishonestly or as a
result of threats ..............................................................110
73.10 Providing or possessing a travel or identity
document to be used by a person who is not the
rightful user ...................................................................111
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73.11 Taking possession of or destroying another
person’s travel or identity document .............................111
73.12 Jurisdictional requirement .............................................112
Chapter 5—The security of the Commonwealth 113
Part 5.1—Treason and related offences 113
Division 80—Treason, urging violence and advocating terrorism
or genocide 113
Subdivision A—Preliminary 113
80.1A Definitions.....................................................................113
80.1AAA Expressions also used in the Australian Security
Intelligence Organisation Act 1979...............................113
Subdivision B—Treason 113
80.1 Treason..........................................................................113
80.1AA Treason—assisting enemy to engage in armed
conflict ..........................................................................114
80.1AB Proclamation of enemy engaged in armed conflict........116
80.1AC Treachery.......................................................................116
Subdivision C—Urging violence and advocating terrorism or
genocide 116
80.2 Urging violence against the Constitution etc. ................116
80.2A Urging violence against groups .....................................118
80.2B Urging violence against members of groups .................119
80.2C Advocating terrorism.....................................................120
80.2D Advocating genocide.....................................................122
Subdivision D—Common provisions 123
80.3 Defence for acts done in good faith ...............................123
80.4 Extended geographical jurisdiction for offences ...........125
80.6 Division not intended to exclude State or Territory
law.................................................................................125
Division 82—Sabotage 126
Subdivision A—Preliminary 126
82.1 Definitions.....................................................................126
82.2 Public infrastructure ......................................................127
82.2A Expressions also used in the Australian Security
Intelligence Organisation Act 1979...............................128
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Subdivision B—Offences 128
82.3 Offence of sabotage involving foreign principal
with intention as to national security .............................128
82.4 Offence of sabotage involving foreign principal
reckless as to national security ......................................129
82.5 Offence of sabotage with intention as to national
security ..........................................................................130
82.6 Offence of sabotage reckless as to national
security ..........................................................................130
82.7 Offence of introducing vulnerability with intention
as to national security ....................................................131
82.8 Offence of introducing vulnerability reckless as to
national security ............................................................131
82.9 Preparing for or planning sabotage offence ...................132
82.10 Defences........................................................................133
82.11 Geographical jurisdiction ..............................................133
82.12 Alternative verdicts .......................................................133
82.13 Consent of Attorney-General required for
prosecutions...................................................................134
Division 83—Other threats to security 136
83.1A Expressions also used in the Australian Security
Intelligence Organisation Act 1979...............................136
83.1 Advocating mutiny ........................................................136
83.2 Assisting prisoners of war to escape..............................137
83.3 Military-style training involving foreign
government principal etc. ..............................................138
83.4 Interference with political rights and duties ..................139
83.5 Consent of Attorney-General required for
prosecutions...................................................................140
Part 5.2—Espionage and related offences 141
Division 90—Preliminary 141
90.1 Definitions.....................................................................141
90.2 Definition of foreign principal ......................................143
90.3 Definition of foreign government principal...................143
90.4 Definition of national security ......................................144
90.5 Definition of security classification...............................144
90.6 Expressions also used in the Australian Security
Intelligence Organisation Act 1979...............................145
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Division 91—Espionage 147
Subdivision A—Espionage 147
91.1 Espionage—dealing with information etc.
concerning national security which is or will be
communicated or made available to foreign
principal ........................................................................147
91.2 Espionage—dealing with information etc. which is
or will be communicated or made available to
foreign principal ............................................................148
91.3 Espionage—security classified information etc.............149
91.4 Defences........................................................................150
91.5 Matters affecting sentencing for offence against
subsection 91.1(1) .........................................................151
91.6 Aggravated espionage offence.......................................151
91.7 Geographical jurisdiction ..............................................152
Subdivision B—Espionage on behalf of foreign principal 152
91.8 Espionage on behalf of foreign principal.......................152
91.9 Defences........................................................................154
91.10 Geographical jurisdiction ..............................................155
Subdivision C—Espionage-related offences 155
91.11 Offence of soliciting or procuring an espionage
offence or making it easier to do so...............................155
91.12 Offence of preparing for an espionage offence..............156
91.13 Defences........................................................................157
91.14 Geographical jurisdiction ..............................................157
Division 92—Foreign interference 158
Subdivision A—Preliminary 158
92.1 Definitions.....................................................................158
Subdivision B—Foreign interference 158
92.2 Offence of intentional foreign interference ...................158
92.3 Offence of reckless foreign interference........................160
92.4 Offence of preparing for a foreign interference
offence...........................................................................161
92.5 Defence .........................................................................162
92.6 Geographical jurisdiction ..............................................162
Subdivision C—Foreign interference involving foreign intelligence
agencies 162
92.7 Knowingly supporting foreign intelligence agency .......162
92.8 Recklessly supporting foreign intelligence agency........163
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92.9 Knowingly funding or being funded by foreign
intelligence agency........................................................163
92.10 Recklessly funding or being funded by foreign
intelligence agency........................................................164
92.11 Defence .........................................................................164
Division 92A—Theft of trade secrets involving foreign
government principal 165
92A.1 Theft of trade secrets involving foreign
government principal.....................................................165
92A.2 Geographical jurisdiction ..............................................166
Division 93—Prosecutions and hearings 167
93.1 Consent of Attorney-General required for
prosecutions...................................................................167
93.2 Hearing in camera etc. ...................................................168
93.4 Fault elements for attempted espionage offences ..........168
93.5 Alternative verdicts .......................................................169
Division 94—Forfeiture 170
94.1 Forfeiture of articles etc.................................................170
Part 5.3—Terrorism 171
Division 100—Preliminary 171
100.1 Definitions.....................................................................171
100.2 Referring States .............................................................176
100.3 Constitutional basis for the operation of this Part..........177
100.4 Application of provisions ..............................................178
100.5 Application of Acts Interpretation Act 1901..................180
100.6 Concurrent operation intended ......................................181
100.7 Regulations may modify operation of this Part to
deal with interaction between this Part and State
and Territory laws .........................................................181
100.8 Approval for changes to or affecting this Part ...............182
Division 101—Terrorism 183
101.1 Terrorist acts..................................................................183
101.2 Providing or receiving training connected with
terrorist acts ...................................................................183
101.4 Possessing things connected with terrorist acts .............184
101.5 Collecting or making documents likely to facilitate
terrorist acts ...................................................................185
101.6 Other acts done in preparation for, or planning,
terrorist acts ...................................................................186
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Division 102—Terrorist organisations 188
Subdivision A—Definitions 188
102.1 Definitions.....................................................................188
102.1AA Including or removing names of prescribed
terrorist organisations ....................................................191
102.1A Reviews by Parliamentary Joint Committee on
Intelligence and Security ...............................................192
Subdivision B—Offences 194
102.2 Directing the activities of a terrorist organisation..........194
102.3 Membership of a terrorist organisation..........................194
102.4 Recruiting for a terrorist organisation............................195
102.5 Training involving a terrorist organisation ....................195
102.6 Getting funds to, from or for a terrorist
organisation ...................................................................196
102.7 Providing support to a terrorist organisation .................197
102.8 Associating with terrorist organisations ........................198
Subdivision C—General provisions relating to offences 200
102.9 Extended geographical jurisdiction for offences ...........200
102.10 Alternative verdicts .......................................................201
Division 103—Financing terrorism 202
103.1 Financing terrorism .......................................................202
103.2 Financing a terrorist.......................................................202
103.3 Extended geographical jurisdiction for offences ...........203
Division 104—Control orders 204
Subdivision A—Objects of this Division 204
104.1 Objects of this Division.................................................204
Subdivision B—Making an interim control order 204
104.2 AFP Minister’s consent to request an interim
control order ..................................................................204
104.3 Requesting the court to make an interim control
order ..............................................................................206
104.4 Making an interim control order....................................207
104.5 Terms of an interim control order..................................209
Subdivision C—Making an urgent interim control order 213
104.6 Requesting an urgent interim control order by
electronic means ............................................................213
104.7 Making an urgent interim control order by
electronic means ............................................................214
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104.8 Requesting an urgent interim control order in
person ............................................................................215
104.9 Making an urgent interim control order in person .........216
104.10 Obtaining the AFP Minister’s consent within 8
hours..............................................................................216
104.11 Court to assume that exercise of power not
authorised by urgent interim control order ....................217
Subdivision CA—Varying an interim control order 217
104.11A Varying an interim control order ...................................217
Subdivision D—Confirming an interim control order 218
104.12 Service, explanation and notification of an interim
control order ..................................................................218
104.12A Election to confirm control order ..................................220
104.13 Lawyer may request a copy of an interim control
order ..............................................................................222
104.14 Confirming an interim control order..............................222
104.15 When a declaration, or a revocation, variation or
confirmation of a control order, is in force ....................224
104.16 Terms of a confirmed control order...............................225
104.17 Service of a declaration, or a revocation, variation
or confirmation of a control order .................................225
Subdivision E—Rights in respect of a control order 227
104.18 Application by the person for a revocation or
variation of a control order ............................................227
104.19 Application by the AFP Commissioner for a
revocation or variation of a control order ......................228
104.20 Revocation or variation of a control order.....................229
104.21 Lawyer may request a copy of a control order ..............230
104.22 Treatment of photographs and impressions of
fingerprints ....................................................................230
Subdivision F—Adding obligations, prohibitions or restrictions to
a control order 231
104.23 Application by the AFP Commissioner for
addition of obligations, prohibitions or restrictions.......231
104.24 Varying a control order .................................................234
104.25 Terms of a varied control order .....................................235
104.26 Service and explanation of a varied control order .........235
Subdivision G—Offences relating to control orders 237
104.27 Offence for contravening a control order ......................237
104.27A Offence relating to tracking devices ..............................237
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Subdivision H—Special rules for young people (14 to 17) 238
104.28 Special rules for young people ......................................238
Subdivision I—Miscellaneous 239
104.28A Interlocutory proceedings..............................................239
104.28AA Costs in control order proceedings ................................239
104.28B Giving documents to persons detained in custody.........239
104.29 Reporting requirements .................................................240
104.30 Requirement to notify AFP Minister of
declarations, revocations or variations ..........................241
104.31 Queensland public interest monitor functions and
powers not affected .......................................................242
104.32 Sunset provision ............................................................242
Division 105—Preventative detention orders 243
Subdivision A—Preliminary 243
105.1 Object ............................................................................243
105.2 Issuing authorities for continued preventative
detention orders .............................................................243
105.3 Police officer detaining person under a
preventative detention order ..........................................244
Subdivision B—Preventative detention orders 244
105.4 Basis for applying for, and making, preventative
detention orders .............................................................244
105.5 No preventative detention order in relation to
person under 16 years of age .........................................246
105.5A Special assistance for person with inadequate
knowledge of English language or disability.................247
105.6 Restrictions on multiple preventative detention
orders.............................................................................247
105.7 Application for initial preventative detention order.......249
105.8 Senior AFP member may make initial preventative
detention order...............................................................251
105.9 Duration of initial preventative detention order.............254
105.10 Extension of initial preventative detention order...........255
105.10A Notice of application for continued preventative
detention order...............................................................255
105.11 Application for continued preventative detention
order ..............................................................................256
105.12 Judge, AAT member or retired judge may make
continued preventative detention order .........................257
105.13 Duration of continued preventative detention order ......259
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105.14 Extension of continued preventative detention
order ..............................................................................260
105.14A Basis for applying for, and making, prohibited
contact order..................................................................261
105.15 Prohibited contact order (person in relation to
whom preventative detention order is being
sought)...........................................................................262
105.16 Prohibited contact order (person in relation to
whom preventative detention order is already in
force) .............................................................................264
105.17 Revocation of preventative detention order or
prohibited contact order.................................................266
105.18 Status of person making continued preventative
detention order...............................................................268
Subdivision C—Carrying out preventative detention orders 269
105.19 Power to detain person under preventative
detention order...............................................................269
105.20 Endorsement of order with date and time person
taken into custody..........................................................271
105.21 Requirement to provide name etc. .................................271
105.22 Power to enter premises ................................................272
105.23 Power to conduct a frisk search.....................................273
105.24 Power to conduct an ordinary search.............................273
105.25 Warrant under Division 3 of Part III of the
Australian Security Intelligence Organisation Act
1979...............................................................................274
105.26 Release of person from preventative detention..............274
105.27 Arrangement for detainee to be held in State or
Territory prison or remand centre..................................276
Subdivision D—Informing person detained about preventative
detention order 277
105.28 Effect of initial preventative detention order to be
explained to person detained .........................................277
105.29 Effect of continued preventative detention order to
be explained to person detained.....................................279
105.30 Person being detained to be informed of extension
of preventative detention order......................................281
105.31 Compliance with obligations to inform .........................281
105.32 Copy of preventative detention order ............................282
Subdivision E—Treatment of person detained 283
105.33 Humane treatment of person being detained .................283
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105.33A Detention of persons under 18.......................................284
105.34 Restriction on contact with other people .......................284
105.35 Contacting family members etc. ....................................285
105.36 Contacting Ombudsman etc. .........................................286
105.37 Contacting lawyer .........................................................287
105.38 Monitoring contact under section 105.35 or 105.37 ......289
105.39 Special contact rules for person under 18 or
incapable of managing own affairs................................290
105.40 Entitlement to contact subject to prohibited contact
order ..............................................................................292
105.41 Disclosure offences .......................................................292
105.42 Questioning of person prohibited while person is
detained .........................................................................298
105.43 Taking fingerprints, recordings, samples of
handwriting or photographs...........................................299
105.44 Use of identification material ........................................302
105.45 Offences of contravening safeguards.............................302
Subdivision F—Miscellaneous 303
105.46 Nature of functions of Federal Circuit Court Judge.......303
105.47 Annual report ................................................................303
105.48 Certain functions and powers not affected ....................304
105.49 Queensland public interest monitor functions and
powers not affected .......................................................304
105.50 Law relating to legal professional privilege not
affected..........................................................................304
105.51 Legal proceedings in relation to preventative
detention orders .............................................................305
105.52 Review by State and Territory courts ............................306
105.53 Sunset provision ............................................................308
Division 105A—Continuing detention orders 309
Subdivision A—Object and definitions 309
105A.1 Object ............................................................................309
105A.2 Definitions.....................................................................309
Subdivision B—Continuing detention orders 310
105A.3 Who a continuing detention order may apply to
and effect of an order.....................................................310
105A.4 Treatment of a terrorist offender in a prison under
a continuing detention order ..........................................311
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Subdivision C—Making a continuing detention order 312
105A.5 Applying for a continuing detention order ....................312
105A.6 Appointment of and assessment by relevant expert .......314
105A.7 Making a continuing detention order.............................316
105A.8 Matters a Court must have regard to in making a
continuing detention order.............................................317
105A.9 Interim detention orders ................................................318
Subdivision D—Review of continuing detention order 319
105A.10 Periodic review of continuing detention order...............319
105A.11 Review of continuing detention order on
application .....................................................................320
105A.12 Process for reviewing a continuing detention order.......321
Subdivision E—Provisions relating to continuing detention order
proceedings 323
105A.13 Civil evidence and procedure rules in relation to
continuing detention order proceedings.........................323
105A.14 Adducing evidence and making submissions ................323
105A.15 Giving terrorist offenders documents ............................323
105A.15A When a terrorist offender is unable to engage a
legal representative........................................................324
105A.16 Reasons for decisions ....................................................324
105A.17 Right of appeal ..............................................................325
105A.18 Consequences of release of terrorist offender................326
Subdivision F—Miscellaneous 327
105A.19 Sharing information.......................................................327
105A.20 Delegation by the AFP Minister ....................................328
105A.21 Arrangement with States and Territories .......................329
105A.22 Annual report ................................................................329
105A.23 Warning about continuing detention orders when
sentencing for certain offences ......................................330
105A.24 Effect of continuing detention orders on bail or
parole laws ....................................................................330
105A.25 Sunset provision ............................................................330
Division 106—Transitional provisions 331
106.1 Saving—regulations originally made for the
purposes of paragraph (c) of the definition of
terrorist organisation ....................................................331
106.2 Saving—regulations made for the purposes of
paragraph (a) of the definition of terrorist
organisation ..................................................................331
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106.3 Application provision ....................................................332
106.4 Saving—Federal Magistrates ........................................332
106.5 Application provisions for certain amendments in
the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Act 2014..........................................332
106.6 Application provisions for certain amendments in
the Counter-Terrorism Legislation Amendment Act
(No. 1) 2014 ..................................................................334
106.7 Application provision for certain amendments in
the Counter-Terrorism Legislation Amendment Act
(No. 1) 2016 ..................................................................335
106.8 Application provision for amendments in the
Criminal Code Amendment (High Risk Terrorist
Offenders) Act 2016.......................................................336
106.9 Application—Counter-Terrorism Legislation
Amendment Act (No. 1) 2018.........................................337
Part 5.4—Harming Australians 339
Division 115—Harming Australians 339
115.1 Murder of an Australian citizen or a resident of
Australia ........................................................................339
115.2 Manslaughter of an Australian citizen or a resident
of Australia....................................................................340
115.3 Intentionally causing serious harm to an Australian
citizen or a resident of Australia....................................341
115.4 Recklessly causing serious harm to an Australian
citizen or a resident of Australia....................................341
115.5 Saving of other laws ......................................................342
115.6 Bringing proceedings under this Division .....................342
115.7 Ministerial certificates relating to proceedings..............342
115.8 Geographical jurisdiction ..............................................342
115.9 Meaning of causes death or harm..................................343
Part 5.5—Foreign incursions and recruitment 344
Division 117—Preliminary 344
117.1 Definitions.....................................................................344
117.2 Extended geographical jurisdiction—category D..........346
Division 119—Foreign incursions and recruitment 347
119.1 Incursions into foreign countries with the intention
of engaging in hostile activities .....................................347
119.2 Entering, or remaining in, declared areas ......................348
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119.3 Declaration of areas for the purposes of
section 119.2 .................................................................350
119.4 Preparations for incursions into foreign countries
for purpose of engaging in hostile activities ..................352
119.5 Allowing use of buildings, vessels and aircraft to
commit offences ............................................................356
119.6 Recruiting persons to join organisations engaged
in hostile activities against foreign governments...........357
119.7 Recruiting persons to serve in or with an armed
force in a foreign country ..............................................358
119.8 Declaration in relation to specified armed forces ..........360
119.9 Exception—conduct for defence or international
relations of Australia .....................................................361
119.10 Mode of trial..................................................................361
119.11 Consent of Attorney-General required for
prosecutions...................................................................361
119.12 Declarations for the purposes of proceedings................362
Part 5.6—Secrecy of information 363
Division 121—Preliminary 363
121.1 Definitions.....................................................................363
121.2 Definition of proper place of custody............................366
Division 122—Secrecy of information 367
122.1 Communication and other dealings with inherently
harmful information by current and former
Commonwealth officers etc...........................................367
122.2 Conduct by current and former Commonwealth
officers etc. causing harm to Australia’s interests .........369
122.3 Aggravated offence .......................................................371
122.4 Unauthorised disclosure of information by current
and former Commonwealth officers etc. .......................372
122.4A Communicating and dealing with information by
non-Commonwealth officers etc. ..................................372
122.5 Defences........................................................................374
Division 123—Miscellaneous 382
123.1 Injunctions.....................................................................382
123.2 Forfeiture of articles etc.................................................382
123.3 Extended geographical jurisdiction—category D..........383
123.4 Effect of this Part on other rights, privileges,
immunities or defences..................................................383
123.5 Requirements before proceedings can be initiated ........383
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Chapter 7—The proper administration of Government 384
Part 7.1—Preliminary 384
Division 130—Preliminary 384
130.1 Definitions.....................................................................384
130.2 When property belongs to a person ...............................385
130.3 Dishonesty.....................................................................386
130.4 Determination of dishonesty to be a matter for the
trier of fact.....................................................................386
Part 7.2—Theft and other property offences 387
Division 131—Theft 387
131.1 Theft ..............................................................................387
131.2 Special rules about the meaning of dishonesty ..............387
131.3 Appropriation of property..............................................388
131.4 Theft of land or things forming part of land ..................388
131.5 Trust property................................................................388
131.6 Obligation to deal with property in a particular
way ................................................................................389
131.7 Property obtained because of fundamental mistake.......389
131.8 Property of a corporation sole .......................................390
131.9 Property belonging to 2 or more persons.......................390
131.10 Intention of permanently depriving a person of
property .........................................................................390
131.11 General deficiency.........................................................391
Division 132—Other property offences 392
132.1 Receiving.......................................................................392
132.2 Robbery.........................................................................395
132.3 Aggravated robbery.......................................................396
132.4 Burglary ........................................................................397
132.5 Aggravated burglary......................................................399
132.6 Making off without payment .........................................400
132.7 Going equipped for theft or a property offence .............401
132.8 Dishonest taking or retention of property ......................402
132.8A Damaging Commonwealth property..............................403
132.9 Geographical jurisdiction ..............................................404
Part 7.3—Fraudulent conduct 405
Division 133—Preliminary 405
133.1 Definitions.....................................................................405
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Division 134—Obtaining property or a financial advantage by
deception 406
134.1 Obtaining property by deception ...................................406
134.2 Obtaining a financial advantage by deception ...............409
134.3 Geographical jurisdiction ..............................................409
Division 135—Other offences involving fraudulent conduct 410
135.1 General dishonesty ........................................................410
135.2 Obtaining financial advantage .......................................411
135.4 Conspiracy to defraud ...................................................412
135.5 Geographical jurisdiction ..............................................415
Part 7.4—False or misleading statements 416
Division 136—False or misleading statements in applications 416
136.1 False or misleading statements in applications..............416
Division 137—False or misleading information or documents 419
137.1 False or misleading information ....................................419
137.1A Aggravated offence for giving false or misleading
information....................................................................420
137.2 False or misleading documents......................................421
137.3 Geographical jurisdiction ..............................................422
Part 7.5—Unwarranted demands 423
Division 138—Preliminary 423
138.1 Unwarranted demand with menaces ..............................423
138.2 Menaces ........................................................................423
Division 139—Unwarranted demands 425
139.1 Unwarranted demands of a Commonwealth public
official ...........................................................................425
139.2 Unwarranted demands made by a Commonwealth
public official ................................................................425
139.3 Geographical jurisdiction ..............................................426
Part 7.6—Bribery and related offences 427
Division 140—Preliminary 427
140.1 Definition ......................................................................427
140.2 Obtaining.......................................................................427
Division 141—Bribery 428
141.1 Bribery of a Commonwealth public official ..................428
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Division 142—Offences relating to bribery 431
142.1 Corrupting benefits given to, or received by, a
Commonwealth public official ......................................431
142.2 Abuse of public office ...................................................432
142.3 Geographical jurisdiction ..............................................433
Part 7.7—Forgery and related offences 434
Division 143—Preliminary 434
143.1 Definitions.....................................................................434
143.2 False documents ............................................................435
143.3 False Commonwealth documents ..................................436
143.4 Inducing acceptance of false documents .......................437
Division 144—Forgery 438
144.1 Forgery ..........................................................................438
Division 145—Offences relating to forgery 440
145.1 Using forged document .................................................440
145.2 Possession of forged document .....................................441
145.3 Possession, making or adaptation of devices etc.
for making forgeries ......................................................443
145.4 Falsification of documents etc. ......................................445
145.5 Giving information derived from false or
misleading documents ...................................................446
145.6 Geographical jurisdiction ..............................................447
Part 7.8—Causing harm to or obstructing Commonwealth
public officials and impersonating Commonwealth
public officials or bodies 448
Division 146—Preliminary 448
146.1 Definitions.....................................................................448
146.2 Causing harm ................................................................449
Division 147—Causing harm to Commonwealth public officials 450
147.1 Causing harm to a Commonwealth public official
etc. .................................................................................450
147.2 Threatening to cause harm to a Commonwealth
public official etc...........................................................452
147.3 Geographical jurisdiction ..............................................454
Division 148—Impersonation of Commonwealth public officials 455
148.1 Impersonation of an official by a non-official ...............455
148.2 Impersonation of an official by another official ............456
148.3 Geographical jurisdiction ..............................................457
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Division 149—Obstruction of Commonwealth public officials 458
149.1 Obstruction of Commonwealth public officials.............458
Division 150—False representations in relation to a
Commonwealth body 460
Subdivision A—Offences 460
150.1 False representations in relation to a
Commonwealth body ....................................................460
Subdivision B—Injunctions 462
150.5 Injunctions.....................................................................462
Part 7.20—Miscellaneous 463
Division 261—Miscellaneous 463
261.1 Saving of other laws ......................................................463
261.2 Contempt of court..........................................................463
261.3 Ancillary offences .........................................................463
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Section 1
Criminal Code Act 1995 1
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An Act relating to the criminal law
1 Short title
This Act may be cited as the Criminal Code Act 1995.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed
by Proclamation.
(2) If this Act does not commence under subsection (1) within the
period of 5 years beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of
that period.
3 The Criminal Code
(1) The Schedule has effect as a law of the Commonwealth.
(2) The Schedule may be cited as the Criminal Code.
3A External Territories
The Criminal Code extends to every external Territory.
3B Offshore installations
Unless the contrary intention appears, an installation (within the
meaning of the Customs Act 1901) that is deemed by section 5C of
the Customs Act 1901 to be part of Australia is also taken to be part
of Australia for the purposes of the Criminal Code.
4 Definitions
(1) Expressions used in the Code (or in a particular provision of the
Code) that are defined in the Dictionary at the end of the Code
have the meanings given to them in the Dictionary.
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2 Criminal Code Act 1995
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(2) Definitions in the Code of expressions used in the Code apply to its
construction except insofar as the context or subject matter
otherwise indicates or requires.
5 Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(2) For the purposes of the Legislation Act 2003, the Minister
administering the Australian Federal Police Act 1979 is the
rule-maker for regulations made for the purposes of the following
provisions of the Criminal Code:
(a) Division 71 (offences against United Nations and associated
personnen( �
(b) Division 72 (explosives and lethal devices);
(c) Division 73 (people smuggling and related offences);
(d) Part 5.1 (treason and related offences);
(e) Part 5.2 (espionage and related offences);
(f) Part 5.3 (terrorism), other than Division 100 (preliminary
provisions);
(g) Part 5.4 (harming Australians);
(h) Part 5.5 (foreign incursions and recruitment);
(i) Division 270 (slavery and slavery-like conditions);
(j) Division 271 (trafficking in persons and debt bondage);
(k) Division 272 (child sex offences outside Australia);
(l) Division 273 (offences involving child pornography material
or child abuse material outside Australia);
(m) Chapter 9 (dangers to the community);
(n) Chapter 10 (national infrastructure).
(3) Subsection (2) applies despite subsection 6(1) of the Legislation
Act 2003.
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The Criminal Code Schedule
Codification Chapter 1
Division 1
Section 1.1
Criminal Code Act 1995 3
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Schedule—The Criminal Code Section 3
Chapter 1—Codification
Division 1
1.1 Codification
The only offences against laws of the Commonwealth are those
offences created by, or under the authority of, this Code or any
other Act.
Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means
an Act passed by the Parliament of the Commonwealth.
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Schedule The Criminal Code
Chapter 2 General principles of criminal responsibility
Part 2.1 Purpose and application
Division 2
Section 2.1
4 Criminal Code Act 1995
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Chapter 2—General principles of criminal
responsibility
Part 2.1—Purpose and application
Division 2
2.1 Purpose
The purpose of this Chapter is to codify the general principles
of criminal responsibility under laws of the Commonwealth. It
contains all the general principles of criminal responsibility that
apply to any offence, irrespective of how the offence is created.
2.2 Application
(1) This Chapter applies to all offences against this Code.
(2) Subject to section 2.3, this Chapter applies on and after
15 December 2001 to all other offences.
(3) Section 11.6 applies to all offences.
2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For
the purpose of interpreting those provisions in connection with an
offence, the other provisions of this Chapter may be considered,
whether or not those other provisions apply to the offence
concerned.
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The Criminal Code Schedule
General principles of criminal responsibility Chapter 2
The elements of an offence Part 2.2
General Division 3
Section 3.1
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Part 2.2—The elements of an offence
Division 3—General
3.1 Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is
no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault
elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence
the following must be proved:
(a) the existence of such physical elements as are, under the law
creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault
element is required, one of the fault elements for the physical
element.
Note 1: See Part 2.6 on proof of criminal responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
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Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 4 Physical elements
Section 4.1
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Division 4—Physical elements
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct,
occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of
affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2 Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person
whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving
the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted
is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of
affairs, the state of affairs is only voluntary if it is one over which
the person is capable of exercising control.
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The elements of an offence Part 2.2
Physical elements Division 4
Section 4.3
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(6) Evidence of self-induced intoxication cannot be considered in
determining whether conduct is voluntary.
(7) Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency,
accident, reasonable mistake, duress or force.
4.3 Omissions
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the
offence is committed by an omission to perform an act that
there is a duty to perform by a law of the Commonwealth, a
State or a Territory, or at common law.
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Schedule The Criminal Code
Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 5 Fault elements
Section 5.1
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Division 5—Fault elements
5.1 Fault elements
(1) A fault element for a particular physical element may be
intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular
offence from specifying other fault elements for a physical element
of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means
to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she
believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to
bring it about or is aware that it will occur in the ordinary course of
events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is
aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance
exists or will exist; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will
occur; and
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The elements of an offence Part 2.2
Fault elements Division 5
Section 5.5
Criminal Code Act 1995 9
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(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will satisfy
that fault element.
5.5 Negligence
A person is negligent with respect to a physical element of an
offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a
reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for
a physical element that consists only of conduct, intention is the
fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for
a physical element that consists of a circumstance or a result,
recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving
intention, knowledge or recklessness.
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Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 6 Cases where fault elements are not required
Section 6.1
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Division 6—Cases where fault elements are not required
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an
offence of strict liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is
available.
(2) If a law that creates an offence provides that strict liability applies
to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is available
in relation to that physical element.
(3) The existence of strict liability does not make any other defence
unavailable.
6.2 Absolute liability
(1) If a law that creates an offence provides that the offence is an
offence of absolute liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is
unavailable.
(2) If a law that creates an offence provides that absolute liability
applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is
unavailable in relation to that physical element.
(3) The existence of absolute liability does not make any other defence
unavailable.
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The Criminal Code Schedule
General principles of criminal responsibility Chapter 2
Circumstances in which there is no criminal responsibility Part 2.3
Circumstances involving lack of capacity Division 7
Section 7.1
Criminal Code Act 1995 11
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Part 2.3—Circumstances in which there is no criminal
responsibility
Note: This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1 Children under 10
A child under 10 years old is not criminally responsible for an
offence.
7.2 Children over 10 but under 14
(1) A child aged 10 years or more but under 14 years old can only
be criminally responsible for an offence if the child knows that
his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is
wrong is one of fact. The burden of proving this is on the
prosecution.
7.3 Mental impairment
(1) A person is not criminally responsible for an offence if, at the
time of carrying out the conduct constituting the offence, the
person was suffering from a mental impairment that had the
effect that:
(a) the person did not know the nature and quality of the
conduct; or
(b) the person did not know that the conduct was wrong (that
is, the person could not reason with a moderate degree of
sense and composure about whether the conduct, as
perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental
impairment is one of fact.
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Chapter 2 General principles of criminal responsibility
Part 2.3 Circumstances in which there is no criminal responsibility
Division 7 Circumstances involving lack of capacity
Section 7.3
12 Criminal Code Act 1995
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(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.
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Circumstances in which there is no criminal responsibility Part 2.3
Intoxication Division 8
Section 8.1
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Division 8—Intoxication
8.1 Definition—self-induced intoxication
For the purposes of this Division, intoxication is self-induced
unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency,
accident, reasonable mistake, duress or force.
8.2 Intoxication (offences involving basic intent)
(1) Evidence of self-induced intoxication cannot be considered in
determining whether a fault element of basic intent existed.
(2) A fault element of basic intent is a fault element of intention for a
physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with
respect to a result is not a fault element of basic intent.
(3) This section does not prevent evidence of self-induced intoxication
being taken into consideration in determining whether conduct was
accidental.
(4) This section does not prevent evidence of self-induced intoxication
being taken into consideration in determining whether a person had
a mistaken belief about facts if the person had considered whether
or not the facts existed.
(5) A person may be regarded as having considered whether or not
facts existed if:
(a) he or she had considered, on a previous occasion, whether
those facts existed in circumstances surrounding that
occasion; and
(b) he or she honestly and reasonably believed that the
circumstances surrounding the present occasion were the
same, or substantially the same, as those surrounding the
previous occasion.
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Chapter 2 General principles of criminal responsibility
Part 2.3 Circumstances in which there is no criminal responsibility
Division 8 Intoxication
Section 8.3
14 Criminal Code Act 1995
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8.3 Intoxication (negligence as fault element)
(1) If negligence is a fault element for a particular physical
element of an offence, in determining whether that fault
element existed in relation to a person who is intoxicated,
regard must be had to the standard of a reasonable person who
is not intoxicated.
(2) However, if intoxication is not self-induced, regard must be had to
the standard of a reasonable person intoxicated to the same extent
as the person concerned.
8.4 Intoxication (relevance to defences)
(1) If any part of a defence is based on actual knowledge or belief,
evidence of intoxication may be considered in determining
whether that knowledge or belief existed.
(2) If any part of a defence is based on reasonable belief, in
determining whether that reasonable belief existed, regard
must be had to the standard of a reasonable person who is not
intoxicated.
(3) If a person’s intoxication is not self-induced, in determining
whether any part of a defence based on reasonable belief exists,
regard must be had to the standard of a reasonable person
intoxicated to the same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in
determining whether that knowledge or belief existed.
(5) A fault element of basic intent is a fault element of intention for a
physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with
respect to a result is not a fault element of basic intent.
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Circumstances in which there is no criminal responsibility Part 2.3
Intoxication Division 8
Section 8.5
Criminal Code Act 1995 15
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8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the
person’s conduct constituting the offence was as a result of
intoxication that was not self-induced.
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Chapter 2 General principles of criminal responsibility
Part 2.3 Circumstances in which there is no criminal responsibility
Division 9 Circumstances involving mistake or ignorance
Section 9.1
16 Criminal Code Act 1995
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Division 9—Circumstances involving mistake or ignorance
9.1 Mistake or ignorance of fact (fault elements other than
negligence)
(1) A person is not criminally responsible for an offence that has a
physical element for which there is a fault element other than
negligence if:
(a) at the time of the conduct constituting the physical
element, the person is under a mistaken belief about, or is
ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates
any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief
about, or was ignorant of, facts, the tribunal of fact may consider
whether the mistaken belief or ignorance was reasonable in the
circumstances.
9.2 Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a
physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the
physical element, the person considered whether or not
facts existed, and is under a mistaken but reasonable
belief about those facts; and
(b) had those facts existed, the conduct would not have
constituted an offence.
(2) A person may be regarded as having considered whether or not
facts existed if:
(a) he or she had considered, on a previous occasion, whether
those facts existed in the circumstances surrounding that
occasion; and
(b) he or she honestly and reasonably believed that the
circumstances surrounding the present occasion were the
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Circumstances involving mistake or ignorance Division 9
Section 9.3
Criminal Code Act 1995 17
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same, or substantially the same, as those surrounding the
previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute
liability.
9.3 Mistake or ignorance of statute law
(1) A person can be criminally responsible for an offence even if,
at the time of the conduct constituting the offence, he or she is
mistaken about, or ignorant of, the existence or content of an
Act that directly or indirectly creates the offence or directly or
indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally
responsible for the offence in those circumstances, if the Act is
expressly to the contrary effect.
9.4 Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible for an offence even if,
at the time of the conduct constituting the offence, he or she is
mistaken about, or ignorant of, the existence or content of the
subordinate legislation that directly or indirectly creates the
offence or directly or indirectly affects the scope or operation
of the offence.
(2) Subsection (1) does not apply, and the person is not criminally
responsible for the offence in those circumstances, if:
(a) the subordinate legislation is expressly to the contrary effect;
or
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of
the Register under the Legislation Act 2003 or
otherwise); and
(ii) has not otherwise been made available to persons likely
to be affected by it in such a way that the person would
have become aware of its contents by exercising due
diligence.
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Chapter 2 General principles of criminal responsibility
Part 2.3 Circumstances in which there is no criminal responsibility
Division 9 Circumstances involving mistake or ignorance
Section 9.5
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(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative
character made directly or indirectly under an Act, or in force
directly or indirectly under an Act.
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has a
physical element relating to property if:
(a) at the time of the conduct constituting the offence, the
person is under a mistaken belief about a proprietary or
possessory right; and
(b) the existence of that right would negate a fault element
for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising
necessarily out of the exercise of the proprietary or possessory
right that he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence
relating to the use of force against a person.
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Circumstances involving external factors Division 10
Section 10.1
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Division 10—Circumstances involving external factors
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a
physical element to which absolute liability or strict liability
applies if:
(a) the physical element is brought about by another person
over whom the person has no control or by a non-human
act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard
against the bringing about of that physical element.
10.2 Duress
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence under
duress.
(2) A person carries out conduct under duress if and only if he or she
reasonably believes that:
(a) a threat has been made that will be carried out unless an
offence is committed; and
(b) there is no reasonable way that the threat can be rendered
ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of
a person with whom the person under duress is voluntarily
associating for the purpose of carrying out conduct of the kind
actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in response
to circumstances of sudden or extraordinary emergency.
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Part 2.3 Circumstances in which there is no criminal responsibility
Division 10 Circumstances involving external factors
Section 10.4
20 Criminal Code Act 1995
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(2) This section applies if and only if the person carrying out the
conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist;
and
(b) committing the offence is the only reasonable way to deal
with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self-defence
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in
self-defence.
(2) A person carries out conduct in self-defence if and only if he or she
believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself
or herself or another person; or
(c) to protect property from unlawful appropriation, destruction,
damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is
committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he
or she perceives them.
(3) This section does not apply if the person uses force that involves
the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying
it out is not criminally responsible for it.
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Circumstances in which there is no criminal responsibility Part 2.3
Circumstances involving external factors Division 10
Section 10.5
Criminal Code Act 1995 21
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10.5 Lawful authority
A person is not criminally responsible for an offence if the conduct
constituting the offence is justified or excused by or under a law.
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Part 2.4 Extensions of criminal responsibility
Division 11
Section 11.1
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Part 2.4—Extensions of criminal responsibility
Division 11
11.1 Attempt
(1) A person who attempts to commit an offence commits the
offence of attempting to commit that offence and is punishable
as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than
merely preparatory to the commission of the offence. The question
whether conduct is more than merely preparatory to the
commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and
knowledge are fault elements in relation to each physical element
of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or
knowledge would need to be established in respect of each physical
element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence
cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of attempting to
commit that offence.
(6A) Any special liability provisions that apply to an offence apply also
to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit an offence against
section 11.2 (complicity and common purpose), section 11.2A
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Division 11
Section 11.2
Criminal Code Act 1995 23
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(joint commission), section 11.3 (commission by proxy),
section 11.5 (conspiracy to commit an offence) or section 135.4
(conspiracy to defraud).
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission
of an offence by another person is taken to have committed
that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted,
counselled or procured the commission of the offence by the
other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the
commission of any offence (including its fault elements) of
the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the
commission of an offence and have been reckless about the
commission of the offence (including its fault elements) that
the other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of aiding, abetting, counselling or
procuring the commission of an offence if, before the offence was
committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the
offence.
(5) A person may be found guilty of aiding, abetting, counselling or
procuring the commission of an offence even if the other person
has not been prosecuted or has not been found guilty.
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Part 2.4 Extensions of criminal responsibility
Division 11
Section 11.2A
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(6) Any special liability provisions that apply to an offence apply also
for the purposes of determining whether a person is guilty of that
offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person
either:
(a) is guilty of a particular offence otherwise than because of the
operation of subsection (1); or
(b) is guilty of that offence because of the operation of
subsection (1);
but is not able to determine which, the trier of fact may nonetheless
find the person guilty of that offence.
11.2A Joint commission
Joint commission
(1) If:
(a) a person and at least one other party enter into an agreement
to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the
agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the
agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to
in whichever of subsection (2) or (3) applies and is punishable
accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the
agreement makes up the physical elements consisting of
conduct of an offence (the joint offence) of the same type as
the offence agreed to; and
(b) to the extent that a physical element of the joint offence
consists of a result of conduct—that result arises from the
conduct engaged in; and
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Division 11
Section 11.2A
Criminal Code Act 1995 25
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(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.
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Part 2.4 Extensions of criminal responsibility
Division 11
Section 11.3
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Person may be found guilty even if another party not prosecuted
etc.
(7) A person may be found guilty of an offence because of the
operation of this section even if:
(a) another party to the agreement has not been prosecuted or has
not been found guilty; or
(b) the person was not present when any of the conduct
constituting the physical elements of the joint offence was
engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply
also for the purposes of determining whether a person is guilty of
that offence because of the operation of this section.
11.3 Commission by proxy
A person who:
(a) has, in relation to each physical element of an offence, a
fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not
together with conduct of the procurer) would have
constituted an offence on the part of the procurer if the
procurer had engaged in it;
is taken to have committed that offence and is punishable
accordingly.
11.4 Incitement
(1) A person who urges the commission of an offence commits the
offence of incitement.
(2) For the person to be guilty, the person must intend that the offence
incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
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Section 11.4
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(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.
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Division 11
Section 11.5
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11.5 Conspiracy
(1) A person who conspires with another person to commit an
offence punishable by imprisonment for more than 12 months,
or by a fine of 200 penalty units or more, commits the offence
of conspiracy to commit that offence and is punishable as if the
offence to which the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or
more other persons; and
(b) the person and at least one other party to the agreement must
have intended that an offence would be committed pursuant
to the agreement; and
(c) the person or at least one other party to the agreement must
have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence
even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the
following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence
exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement
have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an
offence if:
(a) all other parties to the agreement have been acquitted of the
conspiracy and a finding of guilt would be inconsistent with
their acquittal; or
(b) he or she is a person for whose benefit or protection the
offence exists.
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Section 11.6
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(5) A person cannot be found guilty of conspiracy to commit an
offence if, before the commission of an overt act pursuant to the
agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the
offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the
interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of conspiracy to
commit that offence.
(7A) Any special liability provisions that apply to an offence apply also
to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced
without the consent of the Director of Public Prosecutions.
However, a person may be arrested for, charged with, or remanded
in custody or on bail in connection with, an offence of conspiracy
before the necessary consent has been given.
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a
law of the Commonwealth (including this Code) includes a
reference to an offence against section 11.1 (attempt), 11.4
(incitement) or 11.5 (conspiracy) of this Code that relates to such
an offence.
(2) A reference in a law of the Commonwealth (including this Code)
to a particular offence includes a reference to an offence against
section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of
this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth
is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth
to:
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Division 11
Section 11.6
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(a) an offence against, under or created by the Crimes Act 1914;
or
(b) an offence against, under or created by a particular provision
of the Crimes Act 1914; or
(c) an offence arising out of the first-mentioned law or another
law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation
Administration Act 1953;
does not mean that the first-mentioned law is impliedly to the
contrary effect.
Note: Sections 11.2 (complicity and common purpose), 11.2A (joint
commission), and 11.3 (commission by proxy) of this Code operate as
extensions of principal offences and are therefore not referred to in
this section.
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Division 12
Section 12.1
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Part 2.5—Corporate criminal responsibility
Division 12
12.1 General principles
(1) This Code applies to bodies corporate in the same way as it
applies to individuals. It so applies with such modifications as
are set out in this Part, and with such other modifications as
are made necessary by the fact that criminal liability is being
imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including
one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for
offences that only specify imprisonment as a penalty.
12.2 Physical elements
If a physical element of an offence is committed by an employee,
agent or officer of a body corporate acting within the actual or
apparent scope of his or her employment, or within his or her
actual or apparent authority, the physical element must also be
attributed to the body corporate.
12.3 Fault elements other than negligence
(1) If intention, knowledge or recklessness is a fault element in
relation to a physical element of an offence, that fault element must
be attributed to a body corporate that expressly, tacitly or impliedly
authorised or permitted the commission of the offence.
(2) The means by which such an authorisation or permission may be
established include:
(a) proving that the body corporate’s board of directors
intentionally, knowingly or recklessly carried out the relevant
conduct, or expressly, tacitly or impliedly authorised or
permitted the commission of the offence; or
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(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
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part of the body corporate in which the relevant activities takes
place.
high managerial agent means an employee, agent or officer of the
body corporate with duties of such responsibility that his or her
conduct may fairly be assumed to represent the body corporate’s
policy.
12.4 Negligence
(1) The test of negligence for a body corporate is that set out in
section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical element
of an offence; and
(b) no individual employee, agent or officer of the body
corporate has that fault element;
that fault element may exist on the part of the body corporate if the
body corporate’s conduct is negligent when viewed as a whole
(that is, by aggregating the conduct of any number of its
employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited
conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of
the conduct of one or more of its employees, agents or
officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
12.5 Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2 (mistake of fact
(strict liability)) in respect of conduct that would, apart from this
section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who
carried out the conduct was under a mistaken but reasonable
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belief about facts that, had they existed, would have meant
that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to
prevent the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact
that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of
the conduct of one or more of its employees, agents or
officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct
or event) in respect of a physical element of an offence brought
about by another person if the other person is an employee, agent
or officer of the body corporate.
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Part 2.6—Proof of criminal responsibility
Division 13
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element
of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person’s guilt.
(2) The prosecution also bears a legal burden of disproving any
matter in relation to which the defendant has discharged an
evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means the burden of proving
the existence of the matter.
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged
beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence
specifies a different standard of proof.
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on
a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying
on a provision of Part 2.3 (other than section 7.3) bears an
evidential burden in relation to that matter.
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(3) A defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter. The
exception, exemption, excuse, qualification or justification need
not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a
matter if evidence sufficient to discharge the burden is adduced by
the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is
one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
13.4 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a
legal burden if and only if the law expressly:
(a) specifies that the burden of proof in relation to the matter
in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the
contrary is proved.
13.5 Standard of proof—defence
A legal burden of proof on the defendant must be discharged
on the balance of probabilities.
13.6 Use of averments
A law that allows the prosecution to make an averment is taken not
to allow the prosecution:
(a) to aver any fault element of an offence; or
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(b) to make an averment in prosecuting for an offence that is
directly punishable by imprisonment.
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Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1 Standard geographical jurisdiction
(1) This section may apply to a particular offence in either of the
following ways:
(a) unless the contrary intention appears, this section applies to
the following offences:
(i) a primary offence, where the provision creating the
offence commences at or after the commencement of
this section;
(ii) an ancillary offence, to the extent to which it relates to a
primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth provides that this section
applies to a particular offence—this section applies to that
offence.
Note: In the case of paragraph (b), the expression offence is given an
extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3
and subsection 11.6(1).
(2) If this section applies to a particular offence, a person does not
commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
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(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
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(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.
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Division 15—Extended geographical jurisdiction
15.1 Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs
wholly outside Australia;
(iii) the conduct constituting the primary offence to which
the ancillary offence relates, or a result of that conduct,
occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an
Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
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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
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country, but not on board an Australian aircraft or an
Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates,
or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is
intended by the person to occur;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.2 Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
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(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
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(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;
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a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.3 Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence
occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to
a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
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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;
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a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.4 Extended geographical jurisdiction—category D
If a law of the Commonwealth provides that this section applies to
a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence
occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
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Division 16—Miscellaneous
16.1 Attorney-General’s consent required for prosecution if alleged
conduct occurs wholly in a foreign country in certain
circumstances
(1) Proceedings for an offence must not be commenced without the
Attorney-General’s written consent if:
(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence;
and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country; and
(c) at the time of the alleged offence, the person alleged to have
committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
(2) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with an offence before
the necessary consent has been given.
16.2 When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a person sends a thing, or causes a
thing to be sent:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a person sends, or causes to be sent,
an electronic communication:
(a) from a point outside Australia to a point in Australia; or
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Division 16 Miscellaneous
Section 16.3
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(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point includes a mobile or
potentially mobile point, whether on land, underground, in the
atmosphere, underwater, at sea or anywhere else.
16.3 Meaning of Australia
(1) For the purposes of the application of this Part to a particular
primary offence, Australia has the same meaning it would have if
it were used in a geographical sense in the provision creating the
primary offence.
(2) For the purposes of the application of this Part to a particular
ancillary offence, Australia has the same meaning it would have if
it were used in a geographical sense in the provision creating the
primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a provision creating an offence
extends to an external Territory, it is to be assumed that if the
expression Australia were used in a geographical sense in that
provision, that expression would include that external Territory.
(4) This section does not affect the meaning of the expressions
Australian aircraft, Australian citizen or Australian ship.
16.4 Result of conduct
A reference in this Part to a result of conduct constituting an
offence is a reference to a result that is a physical element of the
offence (within the meaning of subsection 4.1(1)).
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Chapter 4—The integrity and security of the
international community and foreign
governments
Division 70—Bribery of foreign public officials
70.1 Definitions
In this Division:
benefit includes any advantage and is not limited to property.
business advantage means an advantage in the conduct of
business.
control, in relation to a company, body or association, includes
control as a result of, or by means of, trusts, agreements,
arrangements, understandings and practices, whether or not having
legal or equitable force and whether or not based on legal or
equitable rights.
duty, in relation to a foreign public official, means any authority,
duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government body means:
(a) the government of a foreign country or of part of a foreign
country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country;
or
(d) a foreign local government body or foreign regional
government body; or
(e) a foreign public enterprise.
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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
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(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
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(ii) holds himself or herself out to be the authorised
intermediary of a foreign public official covered by any
of the above paragraphs.
public international organisation means:
(a) an organisation:
(i) of which 2 or more countries, or the governments of 2
or more countries, are members; or
(ii) that is constituted by persons representing 2 or more
countries, or representing the governments of 2 or more
countries; or
(b) an organisation established by, or a group of organisations
constituted by:
(i) organisations of which 2 or more countries, or the
governments of 2 or more countries, are members; or
(ii) organisations that are constituted by the representatives
of 2 or more countries, or the governments of 2 or more
countries; or
(c) an organisation that is:
(i) an organ of, or office within, an organisation described
in paragraph (a) or (b); or
(ii) a commission, council or other body established by an
organisation so described or such an organ; or
(iii) a committee, or subcommittee of a committee, of an
organisation described in paragraph (a) or (b), or of such
an organ, council or body.
share includes stock.
70.2 Bribing a foreign public official
(1) A person commits an offence if:
(a) the person:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to
another person; or
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(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:
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(a) the fact that the business advantage may be customary, or
perceived to be customary, in the situation;
(b) the value of the business advantage;
(c) any official tolerance of the business advantage.
Penalty for individual
(4) An offence against subsection (1) committed by an individual is
punishable on conviction by imprisonment for not more than 10
years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine not more than the greatest of
the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the
body corporate, and any body corporate related to the body
corporate, have obtained directly or indirectly and that is
reasonably attributable to the conduct constituting the
offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.
(6) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
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(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning in that subsection as they have in that Act.
(8) The question whether 2 bodies corporate are related to each other
is to be determined for the purposes of this section in the same way
as for the purposes of the Corporations Act 2001.
70.3 Defence—conduct lawful in foreign public official’s country
(1) A person does not commit an offence against section 70.2 in the
cases set out in the following table:
Defence of lawful conduct
Item In a case where the
person’s conduct occurred
in relation to this kind of
foreign public official...
and if it were
assumed that the
person’s conduct had
occurred wholly...
this written law
requires or
permits the
provision of the
benefit ...
1 an employee or official of a
foreign government body
in the place where the
central administration
of the body is located
a written law in
force in that place
2 an individual who performs
work for a foreign
government body under a
contract
in the place where the
central administration
of the body is located
a written law in
force in that place
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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 ...
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
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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 ...
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:
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(i) the other foreign public official of whom the
first-mentioned foreign public official was an authorised
intermediary; or
(ii) the other foreign public official in relation to whom the
first-mentioned foreign public official held himself or
herself out to be an authorised intermediary;
subsection (1) would have applied in relation to the
first-mentioned person.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in relation to a foreign public
official covered by 2 or more paragraphs of the definition of
foreign public official in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is
applicable to the conduct of the first-mentioned person;
subsection (1) applies to the conduct of the first-mentioned person.
70.4 Defence—facilitation payments
(1) A person does not commit an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person’s conduct was engaged in for the sole or dominant
purpose of expediting or securing the performance of a
routine government action of a minor nature; and
(c) as soon as practicable after the conduct occurred, the person
made a record of the conduct that complies with
subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the
actions of another person over whom the
first-mentioned person had no control, or because of a
non-human act or event over which the first-mentioned
person had no control, and the first-mentioned person
could not reasonably be expected to have guarded
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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
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(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies
with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom
the conduct occurred; and
(d) if that foreign public official is not the other person
mentioned in paragraph 70.2(1)(a)—the identity of that other
person; and
(e) particulars of the routine government action that was sought
to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the
person’s identity.
70.5 Territorial and nationality requirements
(1) A person does not commit an offence against section 70.2 unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a
resident of Australia; or
(iii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2 is given an extended
meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).
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(2) Proceedings for an offence against section 70.2 must not be
commenced without the Attorney-General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly
outside Australia; and
(b) at the time of the alleged offence, the person alleged to have
committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with an offence against
section 70.2 before the necessary consent has been given.
70.6 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
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Section 71.1
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Division 71—Offences against United Nations and associated
personnel
71.1 Purpose
The purpose of this Division is to protect United Nations and
associated personnel and give effect to the Convention on the
Safety of United Nations and Associated Personnel.
71.2 Murder of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as
to causing, the death of the UN or associated person or any
other person by the conduct.
Penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.3 Manslaughter of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as
to causing, serious harm to the UN or associated person or
any other person by the conduct.
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Penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.4 Intentionally causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person intends to cause serious harm to
the UN or associated person or any other person by the
conduct.
Penalty: Imprisonment for 20 years.
Penalty (aggravated offence): Imprisonment for 25
years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.5 Recklessly causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person;
and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
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(d) the first-mentioned person is reckless as to causing serious
harm to the UN or associated person or any other person by
the conduct.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.6 Intentionally causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without
the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person intends to cause harm to the UN
or associated person or any other person by the conduct.
Penalty: Imprisonment for 10 years.
Penalty (aggravated offence): Imprisonment for 13
years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.7 Recklessly causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without
the consent of that person; and
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(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person is reckless as to causing harm to
the UN or associated person or any other person by the
conduct.
Penalty: Imprisonment for 7 years.
Penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.8 Unlawful sexual penetration
(1) A person commits an offence if:
(a) the person sexually penetrates another person without the
consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person knows about, or is reckless as to,
the lack of consent.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 20
years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
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(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by
any part of the body of another person or by any object
manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis
of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(4) In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the
person is consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a person
include surgically constructed genitalia or other parts of the body
of the person.
71.9 Kidnapping a UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without his or her
consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(d) the first-mentioned person takes or detains the UN or
associated person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or
another person.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
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Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of
the Commonwealth, a State or Territory or a foreign law the
maximum penalty for which is death, or imprisonment for not less
than 12 months.
71.10 Unlawful detention of UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without that other
person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action.
Penalty: Imprisonment for 5 years.
Penalty (aggravated offence): Imprisonment for 6
years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.11 Intentionally causing damage to UN or associated person’s
property etc.
(1) A person commits an offence if:
(a) the person’s conduct causes damage to official premises,
private accommodation or a means of transportation (the
property); and
(b) the property is occupied or used by a UN or associated
person; and
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(c) the conduct gives rise to a danger of serious harm to a
person; and
(d) that person is the UN or associated person referred to in
paragraph (b); and
(e) the UN or associated person is engaged in a UN operation
that is not a UN enforcement action; and
(f) the first-mentioned person intends to cause the damage to the
property; and
(g) the first-mentioned person is reckless as to the danger to the
person referred to in paragraph (c).
Penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN
or associated person.
(2) Strict liability applies to paragraphs (1)(b), (d) and (e).
71.12 Threatening to commit other offences
A person commits an offence if the person:
(a) threatens to commit an offence (the threatened offence)
under any of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act
by making the threat.
Penalty:
(a) if the threatened offence is the offence under section 71.2
(murder of a UN or associated person)—imprisonment for 10
years; or
(b) if the threatened offence is the offence under section 71.3,
71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious
harm to, kidnapping, or sexually penetrating, a UN or
associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or
71.11 (causing harm to, or damaging the property etc. of, a
UN or associated person)—imprisonment for 5 years; or
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(d) if the threatened offence is the offence under section 71.7 or
71.10 (recklessly causing harm to, or unlawful detention of, a
UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or associated person.
71.13 Aggravated offences
(1) For the purposes of this Division, an offence against section 71.4,
71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:
(a) the offence was committed during the deliberate and
systematic infliction of severe pain over a period of time; or
(b) the offence was committed by the use or threatened use of an
offensive weapon; or
(c) the offence was committed against a person in an abuse of
authority.
(2) If the prosecution intends to prove an aggravated offence, the
charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must
prove that the defendant intended to commit, or was reckless as to
committing, the matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use for causing injury to, or
incapacitating, a person; or
(b) an article where the person who has the article intends, or
threatens to use, the article to cause injury to, or to
incapacitate, another person.
71.14 Defence—activities involving serious harm
A person is not criminally responsible for an offence against
section 71.4 or 71.5 if the conduct causing serious harm to another
person is engaged in by the first-mentioned person:
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(a) for the purpose of benefiting the other person or in pursuance
of a socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the
conduct was reasonable.
Note 1: If a person causes less than serious harm to another person, the
prosecution is obliged to prove that the harm was caused without the
consent of the person harmed (see for example section 71.6).
Note 2: A defendant bears an evidential burden in relation to the matter in this
section, see subsection 13.3(3).
71.15 Defence—medical or hygienic procedures
A person is not criminally responsible for an offence against
section 71.8 in respect of any sexual penetration carried out in the
course of a procedure in good faith for medical or hygienic
purposes.
Note: A defendant bears an evidential burden in relation to the matter in this
section, see subsection 13.3(3).
71.16 Jurisdictional requirement
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; or
(iii) at the time of the alleged offence, the person is a
stateless person whose habitual residence is in
Australia; or
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(iv) the conduct is subject to the jurisdiction of another State
Party to the Convention established in accordance with
paragraph 1 or 2 of article 10 and the person enters
Australia; or
(c) the alleged offence is committed against an Australian
citizen; or
(d) by engaging in the conduct constituting the alleged offence,
the person intends to compel a legislative, executive or
judicial institution of the Commonwealth, a State or a
Territory to do or omit to do an act.
71.17 Exclusion of this Division if State/Territory laws provide for
corresponding offences
(1) A State or Territory court does not have jurisdiction to determine a
charge of an offence under this Division if the conduct constituting
the offence also constitutes an offence (the State offence) against
the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a person under this Division;
and
(b) a court finds that there is a corresponding State offence;
then this section does not prevent the person from being prosecuted
for the State offence.
71.18 Double jeopardy
If a person has been convicted or acquitted of an offence in respect
of conduct under the law of a foreign country, the person cannot be
convicted of an offence under this Division in respect of that
conduct.
71.19 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or of a State or Territory.
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71.20 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be
commenced without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody,
or released on bail, in connection with an offence under this
Division before the necessary consent has been given.
71.21 Ministerial certificates relating to proceedings
(1) The Foreign Affairs Minister may issue a certificate stating any of
the following matters:
(a) the Convention entered into force for Australia on a specified
day;
(b) the Convention remains in force for Australia or any other
State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a
State Party under paragraph 1 or 2 of article 10 of the
Convention;
(d) a matter relevant to whether a person is or was a UN or
associated person;
(e) a matter relevant to whether an operation is or was a UN
operation.
(2) The Immigration Minister may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time;
or
(b) a person is or was a stateless person whose habitual residence
is or was in Australia.
(3) In any proceedings, a certificate under this section is prima facie
evidence of the matters in the certificate.
71.22 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Act, including a question of interpretation of the
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Convention, is taken not to be a matter arising directly under a
treaty.
71.23 Definitions
(1) In this Division:
associated personnel means:
(a) persons assigned by a government, or an intergovernmental
organisation, with the agreement of the competent organ of
the United Nations; or
(b) persons engaged by the Secretary-General of the United
Nations, a specialised agency or the International Atomic
Energy Agency; or
(c) persons deployed by a humanitarian non-governmental
organisation or agency under an agreement with the
Secretary-General of the United Nations, a specialised
agency or the International Atomic Energy Agency;
to carry out activities in support of the fulfilment of the mandate of
a UN operation.
Convention means the Convention on the Safety of United Nations
and Associated Personnel, done at New York on 9 December 1994.
Note: The text of the Convention is set out in Australian Treaty Series 1995
No. 1. In 2000 this was available in the Australian Treaties Library of
the Department of Foreign Affairs and Trade, accessible through that
Department’s website.
Foreign Affairs Minister means the Minister administering the
Diplomatic Privileges and Immunities Act 1967.
Immigration Minister means the Minister administering the
Migration Act 1958.
UN enforcement action means a UN operation:
(a) that is authorised by the Security Council as an enforcement
action under Chapter VII of the Charter of the United
Nations; and
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(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.
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Division 72—Explosives and lethal devices
Subdivision A—International terrorist activities using explosive
or lethal devices
72.1 Purpose
The purpose of this Subdivision is to create offences relating to
international terrorist activities using explosive or lethal devices
and give effect to the International Convention for the Suppression
of Terrorist Bombings, done at New York on 15 December 1997.
Note: The text of the Convention is available in the Australian Treaties
Library of the Department of Foreign Affairs and Trade, accessible
through that Department’s website.
72.2 ADF members not liable for prosecution
Nothing in this Subdivision makes a member of the Australian
Defence Force acting in connection with the defence or security of
Australia liable to be prosecuted for an offence.
72.3 Offences
(1) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or
detonates a device; and
(b) the device is an explosive or other lethal device and the
person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to,
in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause death or serious harm.
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Penalty: Imprisonment for life.
(2) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or
detonates a device; and
(b) the device is an explosive or other lethal device and the
person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to,
in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause extensive destruction to the place,
facility or system; and
(e) the person is reckless as to whether that intended destruction
results or is likely to result in major economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: A court that is sentencing a person who has been convicted of an
offence against this section must warn the person about continuing
detention orders (see section 105A.23).
72.4 Jurisdictional requirement
(1) A person commits an offence under this Subdivision only if one or
more of the following paragraphs applies and the circumstances
relating to the alleged offence are not exclusively internal (see
subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an
Australian aircraft;
(b) at the time of the alleged offence, the person is an Australian
citizen;
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(c) at the time of the alleged offence, the person is a stateless
person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State
Party to the Convention established in accordance with
paragraph 1 or 2 of Article 6 of the Convention and the
person is in Australia;
(e) the alleged offence is committed against a government
facility of the Commonwealth, or of a State or Territory, that
is located outside Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence,
the person intends to compel a legislative, executive or
judicial institution of the Commonwealth, a State or a
Territory to do or omit to do an act.
(2) The circumstances relating to the alleged offence are exclusively
internal if:
(a) the conduct constituting the alleged offence occurs wholly
within Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are
Australian citizens or bodies corporate incorporated by or
under a law of the Commonwealth or of a State or Territory;
and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under
paragraph 1 or 2 of Article 6 of the Convention for exercising
jurisdiction in relation to the conduct.
72.5 Saving of other laws
This Subdivision is not intended to exclude or limit the operation
of any other law of the Commonwealth or of a State or Territory.
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72.6 Double jeopardy and foreign offences
If a person has been convicted or acquitted of an offence in respect
of conduct under the law of a foreign country, the person cannot be
convicted of an offence under this Subdivision in respect of that
conduct.
72.7 Bringing proceedings under this Subdivision
(1) Proceedings for an offence under this Subdivision must not be
commenced without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody,
or released on bail, in connection with an offence under this
Subdivision before the necessary consent has been given.
(3) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must have regard to the
terms of the Convention, including paragraph 2 of Article 19.
(4) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must also have regard to:
(a) whether the conduct constituting the offence also gives rise
to an offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State
or Territory law has been or will be commenced.
72.8 Ministerial certificates relating to proceedings
(1) The Minister administering the Charter of the United Nations Act
1945 may issue a certificate stating any of the following matters:
(a) that the Convention entered into force for Australia on a
specified day;
(b) that the Convention remains in force for Australia or any
other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a
State Party under paragraph 1 or 2 of Article 6 of the
Convention.
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Section 72.9
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(2) The Minister administering the Australian Citizenship Act 2007
may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time;
or
(b) a person is or was a stateless person whose habitual residence
is or was in Australia at a particular time.
(3) In any proceedings, a certificate under this section is prima facie
evidence of the matters in the certificate.
72.9 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Subdivision, including a question of
interpretation of the Convention, is taken not to be a matter arising
directly under a treaty.
72.10 Definitions
In this Subdivision:
Convention means the Convention referred to in section 72.1.
explosive or other lethal device has the same meaning as in the
Convention.
government facility has the same meaning as State or government
facility has in the Convention.
infrastructure facility has the same meaning as in the Convention.
place of public use has the same meaning as in the Convention.
public transportation system has the same meaning as in the
Convention.
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Section 72.11
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Subdivision B—Plastic explosives
72.11 Purpose
The purpose of this Subdivision is to create offences relating to
plastic explosives and give effect to the Convention on the
Marking of Plastic Explosives.
Note: The Convention requires the introduction of detection agents into
plastic explosives so as to render the explosives detectable by vapour
detection means. This is known as the marking of the explosives.
72.12 Trafficking in unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19,
72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.13 Importing or exporting unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18,
72.19, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
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(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.14 Manufacturing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person:
(i) engages in the manufacture of a substance; or
(ii) exercises control or direction over the manufacture of a
substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches the first marking requirement;
and
(d) the manufacture is not authorised under section 72.18.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.15 Possessing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19,
72.22 or 72.23.
Penalty: Imprisonment for 2 years.
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(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.16 Defences
(1) If:
(a) a person is charged with an offence against section 72.12,
72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a
particular marking requirement;
it is a defence if the defendant proves that he or she had no
reasonable grounds for suspecting that the plastic explosive
breached that marking requirement.
Note 1: A defendant bears a legal burden in relation to the matter in
subsection (1) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
(2) If:
(a) a person is charged with an offence against section 72.12,
72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the
second marking requirement;
it is a defence if the defendant proves that, at the time of the
alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic
explosive was not less than the minimum manufacture
concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout
the plastic explosive.
Note 1: A defendant bears a legal burden in relation to the matter in
subsection (2) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
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Section 72.17
Criminal Code Act 1995 85
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Note 3: For minimum manufacture concentration, see section 72.34.
72.17 Packaging requirements for plastic explosives
(1) A person commits an offence if:
(a) the person manufactures a substance; and
(b) the substance is a plastic explosive; and
(c) within 24 hours after the manufacture of the plastic
explosive, the person does not cause the plastic explosive to
be contained, enclosed or packaged in a wrapper with:
(i) the expression “PLASTIC EXPLOSIVE” (in upper-case
lettering); and
(ii) the date of manufacture of the plastic explosive; and
(iii) if the plastic explosive is of a prescribed type—that
type; and
(iv) if the plastic explosive contains a detection agent for the
purpose of meeting the first marking requirement—the
name of the detection agent; and
(v) if the plastic explosive contains a detection agent for the
purpose of meeting the first marking requirement—the
concentration of the detection agent in the plastic
explosive at the time of manufacture, expressed as a
percentage by mass;
legibly displayed on the outer surface of the wrapper.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraphs (1)(b) and (c) is recklessness.
72.18 Authorisation for research etc.
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive.
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Section 72.18
86 Criminal Code Act 1995
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(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.
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Section 72.19
Criminal Code Act 1995 87
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Criteria
(6) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive, a responsible Minister must have
regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or
possession is reasonable; and
(e) such other matters (if any) as the responsible Minister
considers relevant.
72.19 Authorisation for defence and police purposes—15 year limit
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was 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
(b) the operation in Australia of a visiting force (within the
meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
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Section 72.22
88 Criminal Code Act 1995
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Conditions and restrictions
(3) An authorisation under subsection (1) is subject to such conditions
and restrictions as are specified in the authorisation.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have
regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is
reasonable; and
(e) such other matters (if any) as the responsible Minister
considers relevant.
Sunset
(5) This section ceases to have effect at the end of 15 years after its
commencement.
72.22 Authorisation for overseas defence purposes—7 day limit
(1) A member of the Australian Defence Force is authorised to
possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the
operation outside Australia of the Australian Defence Force;
and
(b) the member believes on reasonable grounds that there is
insufficient time to obtain an authorisation under this
Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
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Section 72.23
Criminal Code Act 1995 89
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(2) An authorisation under subsection (1) ceases to have effect at the
end of the seventh day after the day on which the plastic explosive
was obtained.
72.23 Authorisation for overseas Australian Federal Police
purposes—7 day limit
(1) A member of the Australian Federal Police is authorised to
possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the
operation outside Australia of the Australian Federal Police;
and
(b) the member believes on reasonable grounds that there is
insufficient time to obtain an authorisation under this
Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at the
end of the seventh day after the day on which the plastic explosive
was obtained.
72.24 Forfeited plastic explosives
(1) If a court:
(a) convicts a person of an offence against this Subdivision in
relation to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914 in
respect of a person charged with an offence against this
Subdivision in relation to a plastic explosive;
the court may order the forfeiture to the Commonwealth of the
plastic explosive.
(2) A plastic explosive forfeited to the Commonwealth under
subsection (1) becomes the property of the Commonwealth.
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Section 72.25
90 Criminal Code Act 1995
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(3) A plastic explosive forfeited to the Commonwealth under
subsection (1) is to be dealt with in such manner as a responsible
Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct
that a plastic explosive forfeited to the Commonwealth under
subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by
paragraph 72.18(2)(a).
Note 1: See also section 10.5 (lawful authority).
Note 2: See also section 229 of the Customs Act 1901 (forfeiture of goods that
have been unlawfully imported or exported).
72.25 Surrendered plastic explosives
(1) A person may surrender a plastic explosive to the Commonwealth
at a place, and in a manner, prescribed for the purposes of this
subsection.
(2) A plastic explosive surrendered to the Commonwealth under
subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive surrendered to the Commonwealth under
subsection (1) is to be dealt with in such manner as a responsible
Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct
that a plastic explosive surrendered to the Commonwealth under
subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by
paragraph 72.18(2)(a).
Note: See also section 10.5 (lawful authority).
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Section 72.26
Criminal Code Act 1995 91
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72.26 Destruction of plastic explosives obtained overseas for defence
purposes
A member of the Australian Defence Force may destroy an
unmarked plastic explosive if the plastic explosive was obtained in
the course of the operation outside Australia of the Australian
Defence Force.
72.27 Destruction of plastic explosives obtained overseas for
Australian Federal Police purposes
A member of the Australian Federal Police may destroy an
unmarked plastic explosive if the plastic explosive was obtained in
the course of the operation outside Australia of the Australian
Federal Police.
72.28 Delegation by AFP Minister
(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.
72.29 Delegation by Minister for Defence
(1) The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the
Department of Defence, where the employee occupies or acts
in a position with a classification of Senior Executive Band
3; or
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92 Criminal Code Act 1995
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(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
(b) the operation in Australia of a visiting force (within the
meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation outside Australia of a person who, under a
contract, performs services for the Australian Defence Force.
(3) A delegate is, in the exercise of a power delegated under
subsection (1), subject to the written directions of the Minister for
Defence.
72.30 Review by Administrative Appeals Tribunal of authorisation
decisions
(1) An application may be made to the Administrative Appeals
Tribunal for review of a decision refusing to give an authorisation
under subsection 72.18(1) 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.
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Section 72.31
Criminal Code Act 1995 93
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72.31 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B)
applies to each offence against this Subdivision.
72.32 Saving of other laws
This Subdivision is not intended to exclude or limit the operation
of any other law of the Commonwealth or of a State or Territory.
72.33 Marking requirements
(1) This section sets out the 2 marking requirements for a plastic
explosive.
Concentration of detection agent at time of manufacture
(2) The first marking requirement is that, at the time of the
manufacture of the plastic explosive, all of the following
conditions were satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic
explosive was not less than the minimum manufacture
concentration for the detection agent;
(c) the detection agent was homogenously distributed throughout
the plastic explosive.
Note: For minimum manufacture concentration, see section 72.34.
Freshness
(3) The second marking requirement is that less than 10 years have
elapsed since the manufacture of the plastic explosive.
Interpretation
(4) In determining whether a plastic explosive manufactured before the
commencement of this section breached the first marking
requirement, assume that this section and sections 72.34 and 72.36
had been in force at the time of manufacture.
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Section 72.34
94 Criminal Code Act 1995
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72.34 Detection agents and minimum manufacture concentrations
For the purposes of this Subdivision, the following table defines:
(a) detection agent; and
(b) the minimum manufacture concentration for each detection
agent.
Detection agents and minimum manufacture concentrations
Item Detection agent Minimum manufacture
concentration
1 Ethylene glycol dinitrate (EGDN)
(molecular formula: C2H4(NO3)2)
(molecular weight: 152)
0.2% by mass
2 2,3-Dimethyl-2,3-dinitrobutane (DMNB)
(molecular formula: C6H12(NO2)2)
(molecular weight: 176)
1% by mass
3 para-Mononitrotoluene (p-MNT)
(molecular formula: C7H7NO2)
(molecular weight: 137)
0.5% by mass
4 a substance prescribed for the purposes of
this table item
the concentration prescribed for
the purposes of this table item in
relation to the substance
72.35 Presumption as to concentration of detection agent
(1) This section applies in relation to a prosecution for an offence
against this Subdivision.
(2) If no detection agent can be detected in a sample of a plastic
explosive when tested using:
(a) a method generally accepted in the scientific community as a
reliable means of measuring the concentration of detection
agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
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Section 72.36
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it is presumed, unless the contrary is proved, that the plastic
explosive breaches the first marking requirement.
Note: A defendant bears a legal burden in relation to proving the contrary
(see section 13.4).
72.36 Definitions
In this Subdivision:
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
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.
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Section 72.36
96 Criminal Code Act 1995
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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:
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(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.
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Section 72.37
98 Criminal Code Act 1995
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Subdivision C—Cluster munitions and explosive bomblets
72.37 Purpose
The purpose of this Subdivision is to create offences relating to
cluster munitions and explosive bomblets and give effect to the
Convention on Cluster Munitions.
72.38 Offences relating to cluster munitions
Doing acts with a cluster munition
(1) A person commits an offence if the person does any of the
following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2) A person (the first person) commits an offence if:
(a) the first person assists, encourages or induces another person
to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
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Section 72.39
Criminal Code Act 1995 99
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Geographical jurisdiction
(3) Section 15.2 (extended geographical jurisdiction—category B)
applies to an offence against this section.
Relationship with other provisions
(4) Division 11 does not apply in relation to an offence against
subsection (2).
Note 1: Later sections of this Subdivision set out defences.
Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster
Munitions.
72.39 Defence—acquisition or retention authorised by Defence
Minister
(1) Section 72.38 does not apply to the acquisition or retention of a
cluster munition authorised under subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1): see subsection 13.3(3).
(2) The Minister administering the Explosives Act 1961 may authorise,
in writing, specified members of the Australian Defence Force or
other specified Commonwealth public officials to acquire or retain
specified cluster munitions for one or more of the following
purposes:
(a) the development of, and training in, cluster munition and
explosive submunition detection, clearance or destruction
techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munitions.
Note 1: For specification by class see the Acts Interpretation Act 1901.
Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the
Convention on Cluster Munitions.
(3) The regulations may prescribe requirements relating to
authorisations under subsection (2).
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Section 72.40
100 Criminal Code Act 1995
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(4) An authorisation made under subsection (2) is not a legislative
instrument.
(5) The Minister described in subsection (2) may delegate his or her
power under that subsection to:
(a) the Secretary of the Department administered by that
Minister; or
(b) an SES employee in that Department.
Note: For the definition of SES employee see the Acts Interpretation Act
1901.
72.40 Defence—transfer for destruction etc.
Transfer to foreign party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the transfer of a cluster munition to
a party to the Convention on Cluster Munitions for one or more of
the following purposes:
(a) the development of, and training in, cluster munition and
explosive submunition detection, clearance or destruction
techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munition.
Note 1: A defendant bears an evidential burden in relation to the matter in
subsection (1): see subsection 13.3(3).
Note 2: This subsection relates to paragraph 7 of Article 3 of the Convention
on Cluster Munitions.
Intended transfer to Australian Defence Force
(2) Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the
Australian Defence Force that the person wishes to transfer
the munition to a member of the Australian Defence Force or
other Commonwealth public official; and
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(c) the person gives notice without delay after the first time the
person has the cluster munition after the commencement of
this subsection.
(3) Subsection 72.38(1) does not apply to the person stockpiling or
retaining the cluster munition at any time before the person
transfers it to a member of the Australian Defence Force or other
Commonwealth public official.
(4) Subsection 72.38(1) does not apply to the person transferring the
cluster munition to a member of the Australian Defence Force or
other Commonwealth public official.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2) and whichever of subsections (3) and (4) is relevant:
see subsection 13.3(3).
72.41 Defence—acts by Australians in military cooperation with
countries not party to Convention on Cluster Munitions
A person who is an Australian citizen, is a member of the
Australian Defence Force or is performing services under a
Commonwealth contract does not commit an offence against
section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or
operations with a foreign country that is not a party to the
Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster
munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a
cluster munition in a case where the choice of munitions used
is within the Commonwealth’s exclusive control.
Note 1: A defendant bears an evidential burden in relation to the matter in this
section: see subsection 13.3(3).
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Section 72.42
102 Criminal Code Act 1995
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Note 2: The expression offence against section 72.38 is given an extended
meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and
subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the
Convention on Cluster Munitions.
72.42 Defence—acts by military personnel of countries not party to
Convention on Cluster Munitions
(1) Section 72.38 does not apply to the stockpiling, retention or
transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that
is not a party to the Convention on Cluster Munitions;
or
(ii) a person who is connected with such forces as described
in subsection (2) and is neither an Australian citizen nor
a resident of Australia; and
(b) is done in connection with the use by those forces of any of
the following in Australia in the course of military
cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft
being commanded or piloted by a member of those
forces in the course of his or her duties as such a
member;
(iii) a ship of any part of those forces or a ship being
operated or commanded by a member of those forces in
the course of his or her duties as such a member.
Note: A defendant bears an evidential burden in relation to the matter in this
section: see subsection 13.3(3).
(2) This subsection covers a person with any of the following
connections with the armed forces of a foreign country that is not a
party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those
forces;
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(b) the person is serving with an organisation accompanying any
of those forces;
(c) the person is attached to or accompanying those forces and is
subject to the law of that country governing any of the armed
forces of that country.
72.43 Forfeiture of cluster munition
(1) This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1);
or
(b) makes an order under section 19B of the Crimes Act 1914
relating to an offence against subsection 72.38(1).
Note: The expression offence against subsection 72.38(1) is given an
extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3
and subsection 11.6(2).
(2) The court may order forfeiture to the Commonwealth of any cluster
munition involved in the offence.
(3) A cluster munition ordered to be forfeited to the Commonwealth
becomes the Commonwealth’s property.
72.44 Application of this Subdivision to explosive bomblets
This Subdivision applies in relation to explosive bomblets in the
same way as it applies in relation to cluster munitions.
72.45 Definitions
In this Subdivision:
cluster munition has the meaning given by paragraph 2 of Article
2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions means the Convention on
Cluster Munitions done at Dublin on 30 May 2008.
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Note: In 2012, the text of the Convention was accessible through the
Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
explosive bomblet has the meaning given by paragraph 13 of
Article 2 of the Convention on Cluster Munitions.
explosive submunition has the meaning given by paragraph 3 of
Article 2 of the Convention on Cluster Munitions.
police officer means:
(a) a member of the Australian Federal Police (within the
meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the
meaning of that Act); or
(c) a member (however described) of a police force of a State or
Territory.
transfer has the meaning given by paragraph 8 of Article 2 of the
Convention on Cluster Munitions.
Note: Imports and exports are some examples of transfers.
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Division 73—People smuggling and related offences
Subdivision A—People smuggling offences
73.1 Offence of people smuggling
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another
person (the other person) into a foreign country (whether or
not via Australia); and
(b) the entry of the other person into the foreign country does not
comply with the requirements under that country’s law for
entry into the country; and
(c) the other person is not a citizen or permanent resident of the
foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c) element of the
offence.
(3) For the purposes of this Code, an offence against subsection (1) is
to be known as the offence of people smuggling.
73.2 Aggravated offence of people smuggling (danger of death or
serious harm etc.)
(1) A person (the first person) commits an offence against this section
if the first person commits the offence of people smuggling (the
underlying offence) in relation to another person (the victim) and
either or both of the following apply:
(b) in committing the underlying offence, the first person
subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(i) the first person’s conduct gives rise to a danger of death
or serious harm to the victim; and
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(ii) the first person is reckless as to the danger of death or
serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(2) There is no fault element for the physical element of conduct
described in subsection (1), that the first person commits the
underlying offence, other than the fault elements (however
described), if any, for the underlying offence.
(2A) To avoid doubt, the first person may be convicted of an offence
against this section even if the first person has not been convicted
of the underlying offence.
73.3 Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of
at least 5 persons (the other persons) into a foreign country
(whether or not via Australia); and
(b) the entry of at least 5 of the other persons into the foreign
country does not comply with the requirements under that
country’s law for entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign
country is covered by paragraph (b) are not citizens or
permanent residents of the foreign country.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c) element of the
offence.
(3) If, on a trial for an offence against subsection (1), the trier of fact is
not satisfied that the defendant is guilty of that offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of an
offence against subsection 73.1(1), the trier of fact may find the
defendant not guilty of an offence against subsection (1) but guilty
of an offence against subsection 73.1(1), so long as the defendant
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has been accorded procedural fairness in relation to that finding of
guilt.
73.3A Supporting the offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to
another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or
organisation other than the receiver, to engage in conduct
constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Subsection (1) does not apply if the conduct constituting the
offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against
subsection (1) even if the offence of people smuggling is not
committed.
73.4 Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(i) the person is an Australian citizen or a resident of
Australia; and
(ii) the conduct constituting the alleged offence occurs
wholly outside Australia; or
(b) both:
(i) the conduct constituting the alleged offence occurs
wholly or partly in Australia; and
(ii) a result of the conduct occurs, or is intended by the
person to occur, outside Australia.
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73.5 Attorney-General’s consent required
(1) Proceedings for an offence against this Subdivision must not be
commenced without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody
or released on bail in connection with an offence against this
Subdivision before the necessary consent has been given.
Subdivision B—Document offences related to people smuggling
and unlawful entry into foreign countries
73.6 Meaning of travel or identity document
(1) For the purposes of this Subdivision, a document is a travel or
identity document if it is:
(a) a travel document; or
(b) an identity document.
73.7 Meaning of false travel or identity document
(1) For the purposes of this Subdivision, a travel or identity document
is a false travel or identity document if, and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is
made by a person who did not make it in that form; or
(ii) purports to have been made in the form in which it is
made on the authority of a person who did not authorise
its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is
made by a person who did not make it in those terms; or
(ii) purports to have been made in the terms in which it is
made on the authority of a person who did not authorise
its making in those terms; or
(c) the document, or any part of the document:
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(i) purports to have been altered in any respect by a person
who did not alter it in that respect; or
(ii) purports to have been altered in any respect on the
authority of a person who did not authorise its alteration
in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who
did not exist; or
(ii) purports to have been made or altered on the authority
of a person who did not exist; or
(e) the document, or any part of the document, purports to have
been made or altered on a date on which, at a time at which,
at a place at which, or otherwise in circumstances in which, it
was not made or altered.
(2) For the purposes of this Subdivision, a person is taken to make a
false travel or identity document if the person alters a document so
as to make it a false travel or identity document (whether or not it
was already a false travel or identity document before the
alteration).
(3) This section has effect as if a document that purports to be a true
copy of another document were the original document.
73.8 Making, providing or possessing a false travel or identity
document
A person (the first person) 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:
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(i) having obtained (whether directly or indirectly) a
benefit to do so; or
(ii) with the intention of obtaining (whether directly or
indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.9 Providing or possessing a travel or identity document issued or
altered dishonestly or as a result of threats
(1) A person (the first person) 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:
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(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the
standards of ordinary people.
(4) In a prosecution for an offence against this section, the
determination of dishonesty is a matter for the trier of fact.
73.10 Providing or possessing a travel or identity document to be
used by a person who is not the rightful user
A person (the first person) 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.
73.11 Taking possession of or destroying another person’s travel or
identity document
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
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(b) the first person does so intending to conceal the other
person’s identity or nationality; and
(c) at the time of doing so, the first person intends to organise or
facilitate the entry of the other person into a foreign country:
(i) having obtained, or with the intention of obtaining,
whether directly or indirectly, a benefit to organise or
facilitate that entry; and
(ii) where the entry of the other person into the foreign
country would not comply with the requirements under
that country’s law for entry into the country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.12 Jurisdictional requirement
Section 15.2 (extended geographical jurisdiction—category B)
applies to an offence against this Subdivision.
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Chapter 5—The security of the Commonwealth
Part 5.1—Treason and related offences
Division 80—Treason, urging violence and advocating
terrorism or genocide
Subdivision A—Preliminary
80.1A Definitions
In this Division:
organisation means:
(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia, consists of
persons who are not Australian citizens, or is part of a larger
organisation.
party includes a person, body or group of any kind.
80.1AAA Expressions also used in the Australian Security
Intelligence Organisation Act 1979
The meaning of an expression in this Division does not affect the
meaning of that expression in the Australian Security Intelligence
Organisation Act 1979, unless that Act expressly provides
otherwise.
Subdivision B—Treason
80.1 Treason
(1) A person commits an offence if the person:
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(a) causes the death of the Sovereign, the heir apparent of the
Sovereign, the consort of the Sovereign, the
Governor-General or the Prime Minister; or
(b) causes harm to the Sovereign, the Governor-General or the
Prime Minister resulting in the death of the Sovereign, the
Governor-General or the Prime Minister; or
(c) causes harm to the Sovereign, the Governor-General or the
Prime Minister, or imprisons or restrains the Sovereign, the
Governor-General or the Prime Minister; or
(d) levies war, or does any act preparatory to levying war,
against the Commonwealth; or
(g) instigates a person who is not an Australian citizen to make
an armed invasion of the Commonwealth or a Territory of the
Commonwealth.
Penalty: Imprisonment for life.
(2) A person commits an offence if the person:
(a) receives or assists another person who, to his or her
knowledge, has committed an offence against this
Subdivision (other than this subsection) with the intention of
allowing him or her to escape punishment or apprehension;
or
(b) knowing that another person intends to commit an offence
against this Subdivision (other than this subsection), does not
inform a constable of it within a reasonable time or use other
reasonable endeavours to prevent the commission of the
offence.
Penalty: Imprisonment for life.
(8) In this section:
constable means a member or special member of the Australian
Federal Police or a member of the police force or police service of
a State or Territory.
80.1AA Treason—assisting enemy to engage in armed conflict
(1) A person commits an offence if:
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(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 1914 allows 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)).
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80.1AB Proclamation of enemy engaged in armed conflict
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.
80.1AC Treachery
A person commits an offence if:
(a) the person engages in conduct; and
(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 1914 allows a court to impose a
fine of up to 10,000 penalty units.
Penalty: Imprisonment for life.
Subdivision C—Urging violence and advocating terrorism or
genocide
80.2 Urging violence against the Constitution etc.
Urging the overthrow of the Constitution or Government by force
or violence
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to
overthrow by force or violence:
(i) the Constitution; or
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(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.
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Note: There is a defence in section 80.3 for acts done in good faith.
80.2A Urging violence against groups
Offences
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a
group, to use force or violence against a group (the targeted
group); and
(b) the first person does so intending that force or violence will
occur; and
(c) the targeted group is distinguished by race, religion,
nationality, national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace,
order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a
group, to use force or violence against a group (the targeted
group); and
(b) the first person does so intending that force or violence will
occur; and
(c) the targeted group is distinguished by race, religion,
nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note: For intention, see section 5.2.
(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.
Note: For recklessness, see section 5.4.
Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the
prosecuted offence) against subsection (1), the trier of fact:
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(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is
guilty of an offence (the alternative offence) against
subsection (2).
(5) The trier of fact may find the defendant not guilty of the prosecuted
offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that
finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
80.2B Urging violence against members of groups
Offences
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a
group, to use force or violence against a person (the targeted
person); and
(b) the first person does so intending that force or violence will
occur; and
(c) the first person does so because of his or her belief that the
targeted person is a member of a group (the targeted group);
and
(d) the targeted group is distinguished by race, religion,
nationality, national or ethnic origin or political opinion; and
(e) the use of the force or violence would threaten the peace,
order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a
group, to use force or violence against a person (the targeted
person); and
(b) the first person does so intending that force or violence will
occur; and
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(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.
80.2C Advocating terrorism
(1) A person commits an offence if:
(a) the person advocates:
(i) the doing of a terrorist act; or
(ii) the commission of a terrorism offence referred to in
subsection (2); and
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(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.
terrorism offence has the same meaning as in subsection 3(1) of
the Crimes Act 1914.
terrorist act has the same meaning as in section 100.1.
(4) A reference in this section to advocating the doing of a terrorist act
or the commission of a terrorism offence includes a reference to:
(a) advocating the doing of a terrorist act or the commission of a
terrorism offence, even if a terrorist act or terrorism offence
does not occur; and
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(b) advocating the doing of a specific terrorist act or the
commission of a specific terrorism offence; and
(c) advocating the doing of more than one terrorist act or the
commission of more than one terrorism offence.
80.2D Advocating genocide
(1) A person commits an offence if:
(a) the person advocates genocide; and
(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).
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(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.
Subdivision D—Common provisions
80.3 Defence for acts done in good faith
(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
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(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.
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80.4 Extended geographical jurisdiction for offences
(1) Subject to subsection (2), section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this
Division.
(2) Section 15.2 (extended geographical jurisdiction—category B)
applies to an offence against section 80.1AC or
subsection 80.2A(2), 80.2B(2) or 80.2C(1).
80.6 Division not intended to exclude State or Territory law
It is the intention of the Parliament that this Division is not to apply
to the exclusion of a law of a State or a Territory to the extent that
the law is capable of operating concurrently with this Division.
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Division 82 Sabotage
Section 82.1
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Division 82—Sabotage
Subdivision A—Preliminary
82.1 Definitions
In 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.
public infrastructure: see section 82.2.
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82.2 Public infrastructure
Public infrastructure
(1) Public infrastructure means any of the following:
(a) any infrastructure, facility, premises, network or electronic
system that belongs to the Commonwealth;
(b) defence premises within the meaning of Part VIA of the
Defence Act 1903;
(c) service property, and service land, within the meaning of the
Defence Force Discipline Act 1982;
(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;
(f) food (within the meaning of the Food Standards Australia
New Zealand Act 1991) that:
(i) is intended for the public; and
(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).
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Section 82.2A
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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.
82.2A Expressions also used in the Australian Security Intelligence
Organisation Act 1979
The meaning of an expression in this Division does not affect the
meaning of that expression in the Australian Security Intelligence
Organisation Act 1979, unless that Act expressly provides
otherwise.
Subdivision B—Offences
82.3 Offence of sabotage involving foreign principal with intention
as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
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(ii) advantage the national security of a foreign country; 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 25 years.
(2) For the purposes of subparagraph (1)(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.
(3) For the purposes of paragraph (1)(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.
Note: An alternative verdict may be available for an offence against this
section (see section 82.12).
82.4 Offence of sabotage involving foreign principal reckless as to
national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; 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;
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(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.
(2) For the purposes of subparagraph (1)(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.
(3) For the purposes of paragraph (1)(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.
Note: An alternative verdict may be available for an offence against this
section (see section 82.12).
82.5 Offence of sabotage with intention as to national security
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 20 years.
(2) For the purposes of subparagraph (1)(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.
Note: An alternative verdict may be available for an offence against this
section (see section 82.12).
82.6 Offence of sabotage reckless as to national security
(1) A person commits an offence if:
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(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(c), 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.
82.7 Offence of introducing vulnerability with intention as to
national security
A person commits an offence if:
(a) the person engages in conduct; and
(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).
Penalty: Imprisonment for 15 years.
82.8 Offence of introducing vulnerability reckless as to national
security
A person commits an offence if:
(a) the person engages in conduct; and
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(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).
Penalty: Imprisonment for 10 years.
82.9 Preparing for or planning sabotage offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or
planning, an offence against this Division (other than this
section).
Penalty: Imprisonment for 7 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 Division 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 Division; and
(c) whether or not the person engages in the conduct in
preparation for, or planning, more than one offence against
this Division.
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82.10 Defences
(1) It is a defence to a prosecution for an offence by a person against
this Division if:
(a) the person is, at the time of the offence, a public official; and
(b) the person engaged in the conduct in good faith in the course
of performing duties as a public official; and
(c) the conduct is reasonable in the circumstances for the
purpose of performing those duties.
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 Division if:
(a) the person is, at the time of the offence:
(i) an owner or operator of the public infrastructure; or
(ii) acting on behalf of, or with the consent of, an owner or
operator of the public infrastructure; and
(b) the person engaged in the conduct in good faith; and
(c) the conduct is within the lawful authority of the owner or
operator; and
(d) the conduct is reasonable in the circumstances for the
purpose of exercising that lawful authority.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection (see subsection 13.3(3)).
82.11 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Division.
82.12 Alternative verdicts
(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
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(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.
82.13 Consent of Attorney-General required for prosecutions
(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.
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(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.
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Section 83.1A
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Division 83—Other threats to security
83.1A Expressions also used in the Australian Security Intelligence
Organisation Act 1979
The meaning of an expression in this Division does not affect the
meaning of that expression in the Australian Security Intelligence
Organisation Act 1979, unless that Act expressly provides
otherwise.
83.1 Advocating mutiny
(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:
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(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.
83.2 Assisting prisoners of war to escape
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct assists one or more prisoners of war (within the
meaning of Article 4 of the Third Geneva Convention) to
escape from custody; and
(c) the custody is controlled wholly or partly by the
Commonwealth or the Australian Defence Force; and
(d) the conduct takes place in the context of an international
armed conflict.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(d).
(3) Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this section.
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83.3 Military-style training involving foreign government principal
etc.
Offence in relation to military-style training
(1) A person commits an offence if:
(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
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(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.
83.4 Interference with political rights and duties
(1) A person commits an offence if:
(a) the person engages in conduct; and
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(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).
83.5 Consent of Attorney-General required for prosecutions
(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.
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Part 5.2—Espionage and related offences
Division 90—Preliminary
90.1 Definitions
(1) In this Part:
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:
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(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.
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(4) This Part applies to and in relation to a document or article
regardless of who made it and what information it contains.
90.2 Definition of foreign principal
Each of the following is a foreign principal:
(a) a foreign government principal;
(aa) a foreign political organisation;
(b) a public international organisation within the meaning of
Division 70 (see section 70.1);
(c) a terrorist organisation within the meaning of Division 102
(see section 102.1);
(d) an entity or organisation owned, directed or controlled by a
foreign principal within the meaning of paragraph (aa), (b) or
(c);
(e) an entity or organisation owned, directed or controlled by 2
or more foreign principals within the meaning of
paragraph (a), (aa), (b) or (c).
90.3 Definition of foreign government principal
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
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(ii) by 2 or more such foreign government principals that
are foreign government principals in relation to the
same foreign country.
90.4 Definition of national security
(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;
(f) foreign interference.
90.5 Definition of security classification
(1) Security classification means:
(a) a classification of secret or top secret that is applied in
accordance with the policy framework developed by the
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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.
90.6 Expressions also used in the Australian Security Intelligence
Organisation Act 1979
The meaning of an expression in this Part does not affect the
meaning of that expression in the Australian Security Intelligence
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Organisation Act 1979, unless that Act expressly provides
otherwise.
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Division 91—Espionage
Subdivision A—Espionage
91.1 Espionage—dealing with information etc. concerning national
security which is or will be communicated or made
available to foreign principal
Intention as to national security
(1) 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 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
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(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.
91.2 Espionage—dealing with information etc. which is or will be
communicated or made available to foreign principal
Intention as to national security
(1) A person commits an offence if:
(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
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(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.
91.3 Espionage—security classified information etc.
(1) A person commits an offence if:
(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).
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91.4 Defences
(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
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(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)).
91.5 Matters affecting sentencing for offence against
subsection 91.1(1)
(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).
91.6 Aggravated espionage offence
(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;
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(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).
91.7 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Subdivision.
Subdivision B—Espionage on behalf of foreign principal
91.8 Espionage on behalf of foreign principal
Intention as to national security
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person intends that the person’s conduct will:
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(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.
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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.
91.9 Defences
(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
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(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)).
91.10 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Subdivision.
Subdivision C—Espionage-related offences
91.11 Offence of soliciting or procuring an espionage offence or
making it easier to do so
(1) A person commits an offence if:
(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 principan( �
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.
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Division 91 Espionage
Section 91.12
156 Criminal Code Act 1995
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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).
91.12 Offence of preparing for an espionage offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(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:
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Section 91.13
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(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.
91.13 Defences
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 matters in
this section (see subsection 13.3(3)).
91.14 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Subdivision.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 92 Foreign interference
Section 92.1
158 Criminal Code Act 1995
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Division 92—Foreign interference
Subdivision A—Preliminary
92.1 Definitions
In this Division:
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).
Subdivision B—Foreign interference
92.2 Offence of intentional foreign interference
Interference generally
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the person engages in the conduct 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; and
(c) the person intends that the conduct will:
(i) influence a political or governmental process of the
Commonwealth or a State or Territory; or
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Section 92.2
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(ii) influence the exercise (whether or not in Australia) of
an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia’s national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious
harm, whether to the person to whom the threat is made
or any other person; or
(iii) involves the person making a demand with menaces.
Note: An alternative verdict may be available for an offence against this
subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
Interference involving targeted person
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) 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; and
(c) the person intends that the conduct will influence another
person (the target):
(i) in relation to a political or governmental process of the
Commonwealth or a State or Territory; or
(ii) in the target’s exercise (whether or not in Australia) of
any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the
circumstance mentioned in paragraph (b).
Note: An alternative verdict may be available for an offence against this
subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 92 Foreign interference
Section 92.3
160 Criminal Code Act 1995
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Other matters
(3) For the purposes of paragraphs (1)(b) and (2)(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.
92.3 Offence of reckless foreign interference
Interference generally
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) 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; and
(c) the person is reckless as to whether the conduct will:
(i) influence a political or governmental process of the
Commonwealth or a State or Territory; or
(ii) influence the exercise (whether or not in Australia) of
an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia’s national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious
harm, whether to the person to whom the threat is made
or any other person; or
(iii) involves the person making a demand with menaces.
Penalty: Imprisonment for 15 years.
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Foreign interference Division 92
Section 92.4
Criminal Code Act 1995 161
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Interference involving targeted person
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) 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; and
(c) the person is reckless as to whether the conduct will
influence another person (the target):
(i) in relation to a political or governmental process of the
Commonwealth or a State or Territory; or
(ii) in the target’s exercise (whether or not in Australia) of
any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the
circumstance mentioned in paragraph (b).
Penalty: Imprisonment for 15 years.
Other matters
(3) For the purposes of paragraphs (1)(b) and (2)(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.
92.4 Offence of preparing for a foreign interference offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(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.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 92 Foreign interference
Section 92.5
162 Criminal Code Act 1995
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(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.
92.5 Defence
It is a defence to a prosecution for an offence by a person against
this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the
Commonwealth is party; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in
this section (see subsection 13.3(3)).
92.6 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B)
applies to an offence against this Subdivision.
Subdivision C—Foreign interference involving foreign
intelligence agencies
92.7 Knowingly supporting foreign intelligence agency
A person commits an offence if:
(a) the person provides resources, or material support, to an
organisation or a person acting on behalf of an organisation;
and
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Section 92.8
Criminal Code Act 1995 163
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(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).
Penalty: Imprisonment for 15 years.
92.8 Recklessly supporting foreign intelligence agency
A person commits an offence if:
(a) the person provides resources, or material support, to an
organisation or a person acting on behalf of an organisation;
and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
92.9 Knowingly funding or being funded by foreign intelligence
agency
A person commits an offence if:
(a) the person:
(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).
Penalty: Imprisonment for 15 years.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 92 Foreign interference
Section 92.10
164 Criminal Code Act 1995
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92.10 Recklessly funding or being funded by foreign intelligence
agency
A person commits an offence if:
(a) the person:
(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.
Penalty: Imprisonment for 10 years.
92.11 Defence
It is a defence to a prosecution for an offence by a person against
this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the
Commonwealth is party; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in
this section (see subsection 13.3(3)).
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Espionage and related offences Part 5.2
Theft of trade secrets involving foreign government principal Division 92A
Section 92A.1
Criminal Code Act 1995 165
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Division 92A—Theft of trade secrets involving foreign
government principal
92A.1 Theft of trade secrets involving foreign government principal
(1) A person commits an offence if:
(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):
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Part 5.2 Espionage and related offences
Division 92A Theft of trade secrets involving foreign government principal
Section 92A.2
166 Criminal Code Act 1995
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(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.
92A.2 Geographical jurisdiction
(1) Section 15.2 (extended geographical jurisdiction—category B)
applies to an offence against section 92A.1.
(2) However, subsections 15.2(2) and 15.2(4) (defences for primary
and ancillary offences) do not apply.
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Prosecutions and hearings Division 93
Section 93.1
Criminal Code Act 1995 167
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Division 93—Prosecutions and hearings
93.1 Consent of Attorney-General required for prosecutions
(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.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 93 Prosecutions and hearings
Section 93.2
168 Criminal Code Act 1995
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93.2 Hearing in camera etc.
(1) This section applies to a hearing of an application or other
proceedings before a federal court, a court exercising federal
jurisdiction or a court of a Territory, whether under this Act or
otherwise.
(2) At any time before or during the hearing, the judge or magistrate,
or other person presiding or competent to preside over the
proceedings, may, if satisfied that it is in the 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.
Penalty: Imprisonment for 5 years.
93.4 Fault elements for attempted espionage offences
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
principan( �
is the fault element in relation to that physical element of the
offence against the provision of Subdivision A or B of Division 91.
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Prosecutions and hearings Division 93
Section 93.5
Criminal Code Act 1995 169
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93.5 Alternative verdicts
(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.
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Chapter 5 The security of the Commonwealth
Part 5.2 Espionage and related offences
Division 94 Forfeiture
Section 94.1
170 Criminal Code Act 1995
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Division 94—Forfeiture
94.1 Forfeiture of articles etc.
A sketch, article, record or document which is dealt with in
contravention of this Part is forfeited to the Commonwealth.
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Terrorism Part 5.3
Preliminary Division 100
Section 100.1
Criminal Code Act 1995 171
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Part 5.3—Terrorism
Division 100—Preliminary
100.1 Definitions
(1) In this Part:
AFP member means:
(a) a member of the Australian Federal Police (within the
meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the
meaning of that Act).
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
ASIO affiliate has the same meaning as in the Australian Security
Intelligence Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security
Intelligence Organisation Act 1979.
Commonwealth place has the same meaning as in the
Commonwealth Places (Application of Laws) Act 1970.
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
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Division 100 Preliminary
Section 100.1
172 Criminal Code Act 1995
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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:
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Preliminary Division 100
Section 100.1
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(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.
prescribed authority has the same meaning as in Division 3 of
Part III of the Australian Security Intelligence Organisation Act
1979.
preventative detention order means an order under section 105.8
or 105.12.
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Part 5.3 Terrorism
Division 100 Preliminary
Section 100.1
174 Criminal Code Act 1995
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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.
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Section 100.1
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(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
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years of imprisonment, must warn the person about continuing
detention orders (see section 105A.23).
100.2 Referring States
(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.
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100.3 Constitutional basis for the operation of this Part
Operation in a referring State
(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.
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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)).
100.4 Application of provisions
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
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(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
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(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.
100.5 Application of Acts Interpretation Act 1901
(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.
(2) Amendments of the Acts Interpretation Act 1901 made after that
day do not apply to this Part.
(3) Despite subsections (1) and (2), sections 2D, 2E and 2F of the Acts
Interpretation Act 1901 apply to this Part.
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100.6 Concurrent operation intended
(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.
100.7 Regulations may modify operation of this Part to deal with
interaction between this Part and State and Territory
laws
(1) The regulations may modify the operation of this Part so that:
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(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.
100.8 Approval for changes to or affecting this Part
(1) This section applies to:
(a) an express amendment of this Part (including this section);
and
(b) an express amendment of Chapter 2 that applies only to this
Part (whether or not it is expressed to apply only to this Part).
(2) An express amendment to which this section applies is not to be
made unless the amendment is approved by:
(a) a majority of the group consisting of the States, the
Australian Capital Territory and the Northern Territory; and
(b) at least 4 States.
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Division 101—Terrorism
101.1 Terrorist acts
(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
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(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.
101.4 Possessing things connected with terrorist acts
(1) 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) 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
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(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.
101.5 Collecting or making documents likely to facilitate terrorist
acts
(1) 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) 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
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(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.
101.6 Other acts done in preparation for, or planning, terrorist acts
(1) A person commits an offence if the person does any act in
preparation for, or planning, a terrorist act.
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Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the person’s act is not done in preparation for, or planning, a
specific terrorist act; or
(c) the person’s act is done in preparation for, or planning, more
than one terrorist act.
(3) Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against subsection (1).
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Division 102—Terrorist organisations
Subdivision A—Definitions
102.1 Definitions
(1) In this Division:
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)).
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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
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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;
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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.
102.1AA Including or removing names of prescribed terrorist
organisations
(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:
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(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).
102.1A Reviews by Parliamentary Joint Committee on Intelligence
and Security
Disallowable instruments
(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
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(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 2003 has 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
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Division 102 Terrorist organisations
Section 102.2
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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.
Subdivision B—Offences
102.2 Directing the activities of a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally directs the activities 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 25 years.
(2) A person commits an offence if:
(a) the person intentionally directs the activities of an
organisation; 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.
102.3 Membership of a terrorist organisation
(1) A person commits an offence if:
(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
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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).
102.4 Recruiting for a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally recruits a person to join, or
participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first-mentioned person knows the organisation is a
terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally recruits a person to join, or
participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first-mentioned person is reckless as to whether the
organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.5 Training involving a terrorist organisation
(1) A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with an
organisation; 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 25 years.
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Division 102 Terrorist organisations
Section 102.6
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(2) A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with an
organisation; and
(b) the organisation is a terrorist organisation that is covered by
paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1).
Penalty: Imprisonment for 25 years.
(3) Subject to subsection (4), strict liability applies to paragraph (2)(b).
(4) Subsection (2) does not apply unless the person is reckless as to the
circumstance mentioned in paragraph (2)(b).
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3)).
102.6 Getting funds to, from or for a terrorist organisation
(1) 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 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
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(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).
102.7 Providing support to a terrorist organisation
(1) 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 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.
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Division 102 Terrorist organisations
Section 102.8
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Penalty: Imprisonment for 15 years.
102.8 Associating with terrorist organisations
(1) A person commits an offence if:
(a) on 2 or more occasions:
(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
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(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
(iii) a decision made or proposed to be made under
Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979, or proceedings
relating to such a decision or proposed decision; 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,
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Division 102 Terrorist organisations
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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.
Subdivision C—General provisions relating to offences
102.9 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Division.
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102.10 Alternative verdicts
(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.
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Division 103 Financing terrorism
Section 103.1
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Division 103—Financing terrorism
103.1 Financing terrorism
(1) A person commits an offence if:
(a) the person provides or collects funds; and
(b) the person is reckless as to whether the funds will be used to
facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
Note: Intention is the fault element for the conduct described in
paragraph (1)(a). See subsection 5.6(1).
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to facilitate or engage in a specific
terrorist act; or
(c) the funds will be used to facilitate or engage in more than one
terrorist act.
103.2 Financing a terrorist
(1) A person commits an offence if:
(a) the person intentionally:
(i) makes funds available to another person (whether
directly or indirectly); or
(ii) collects funds for, or on behalf of, another person
(whether directly or indirectly); and
(b) the first-mentioned person is reckless as to whether the other
person will use the funds to facilitate or engage in a terrorist
act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to facilitate or engage in a specific
terrorist act; or
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(c) the funds will be used to facilitate or engage in more than one
terrorist act.
103.3 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Division.
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Division 104 Control orders
Section 104.1
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Division 104—Control orders
Subdivision A—Objects of this Division
104.1 Objects of this Division
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.
Subdivision B—Making an interim control order
104.2 AFP Minister’s consent to request an interim control order
(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
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(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).
(3A) To avoid doubt, paragraph (3)(c) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
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Section 104.3
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(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
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
104.3 Requesting the court to make an interim control order
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:
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(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).
104.4 Making an interim control order
(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
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(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).
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(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
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
104.5 Terms of an interim control order
(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:
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(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.
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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)).
(2A) To avoid doubt, paragraph (1)(h) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
Obligations, prohibitions and restrictions
(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;
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(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.
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(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.
Subdivision C—Making an urgent interim control order
104.6 Requesting an urgent interim control order by electronic
means
(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;
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(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.
104.7 Making an urgent interim control order by electronic means
(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
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(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.
104.8 Requesting an urgent interim control order in person
(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).
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104.9 Making an urgent interim control order in person
(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.
104.10 Obtaining the AFP Minister’s consent within 8 hours
(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)).
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(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.
104.11 Court to assume that exercise of power not authorised by
urgent interim control order
If:
(a) it is material, in any proceedings, for a court to be satisfied
that an interim control order was duly made under
section 104.7; and
(b) the form of order completed by the relevant issuing court is
not produced in evidence;
the first-mentioned court is to assume, unless the contrary is
proved, that the order was not duly made.
Subdivision CA—Varying an interim control order
104.11A Varying an interim control order
(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:
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(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.
Subdivision D—Confirming an interim control order
104.12 Service, explanation and notification of an interim control
order
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
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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
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(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.
104.12A Election to confirm control order
(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
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(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:
(a) to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil
Proceedings) Act 2004); or
(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.
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Note: For the personal service of documents on a person detained in
custody, see section 104.28B.
104.13 Lawyer may request a copy of an interim control order
(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.
104.14 Confirming an interim control order
When this section applies
(1A) This section applies if:
(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;
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(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 1995 covers 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.
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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.
104.15 When a declaration, or a revocation, variation or
confirmation of a control order, is in force
(1) If the court declares the interim control order to be void under
section 104.14, the order is taken never to have been in force.
(2) If the court revokes the interim control order under section 104.14,
the order ceases to be in force when the court revokes the order.
(3) If the court confirms the interim control order (with or without
variation) under section 104.14 then:
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(a) the interim control order ceases to be in force; and
(b) the confirmed control order begins to be in force;
when the court makes a corresponding order under section 104.16.
104.16 Terms of a confirmed control order
(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.
104.17 Service of a declaration, or a revocation, variation or
confirmation of a control order
(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:
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(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.
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Subdivision E—Rights in respect of a control order
104.18 Application by the person for a revocation or variation of a
control order
(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.
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104.19 Application by the AFP Commissioner for a revocation or
variation of a 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;
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(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.
104.20 Revocation or variation of a 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.
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104.21 Lawyer may request a copy of a control order
(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.
104.22 Treatment of photographs and impressions of fingerprints
(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 have 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.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes subsection (1).
Penalty: Imprisonment for 2 years.
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Subdivision F—Adding obligations, prohibitions or restrictions
to a control order
104.23 Application by the AFP Commissioner for addition of
obligations, prohibitions or restrictions
(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
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(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);
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(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:
(a) to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil
Proceedings) Act 2004); or
(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
(b) a reference to a specific terrorist act; and
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(c) a reference to more than one terrorist act.
104.24 Varying a control order
(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).
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(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
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
104.25 Terms of a varied control order
If the issuing court varies the control order under section 104.24,
the following must be included in the order:
(a) a statement that the court is satisfied of the matter mentioned
in paragraph 104.24(1)(b); and
(b) the additional obligations, prohibitions and restrictions that
are to be imposed on the person by the varied order; and
(c) a statement that the variation of the order does not begin to
be in force until the varied order is served personally on the
person; and
(d) a statement that the person’s lawyer may attend a specified
place in order to obtain a copy of the varied order.
104.26 Service and explanation of a varied control order
(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);
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(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.
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Subdivision G—Offences relating to control orders
104.27 Offence for contravening a control order
A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the person contravenes the order.
Penalty: Imprisonment for 5 years.
104.27A Offence relating to tracking devices
(1) A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the control order requires the person to wear a tracking
device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss
of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a
control order is in force in relation to another person; and
(b) the perpetrator knows that, or is reckless as to whether, the
control order requires the other person to wear a tracking
device; and
(c) the perpetrator engages in conduct; and
(d) the conduct results in interference with, or disruption or loss
of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
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Subdivision H—Special rules for young people (14 to 17)
104.28 Special rules for young people
Rule for people under 14
(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
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(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).
Subdivision I—Miscellaneous
104.28A Interlocutory proceedings
(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.
104.28AA Costs in control order proceedings
(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.
104.28B Giving documents to persons detained in custody
(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
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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
(b) of the day that document was so given.
104.29 Reporting requirements
(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;
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(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 1979 that 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;
(i) the report prepared by the Ombudsman under
subsection 3ZZUH(1) of the Crimes Act 1914;
(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.
104.30 Requirement to notify AFP Minister of declarations,
revocations or variations
The Commissioner must cause:
(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
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(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.
104.32 Sunset provision
(1) A control order that is in force at the end of 7 September 2021
ceases to be in force at that time.
(2) A control order cannot be requested, made or confirmed after
7 September 2021.
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Division 105—Preventative detention orders
Subdivision A—Preliminary
105.1 Object
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.
105.2 Issuing authorities for continued preventative detention
orders
(1) The Attorney-General may, by writing, appoint as an issuing
authority for continued preventative detention orders:
(a) a person who is a judge of a State or Territory Supreme
Court; or
(b) a person who is a Judge of the Federal Court of Australia or
of the Federal Circuit Court of Australia; or
(d) a person who:
(i) has served as a judge in one or more superior courts for
a period of 5 years; and
(ii) no longer holds a commission as a judge of a superior
court; or
(e) a person who:
(i) holds an appointment to the Administrative Appeals
Tribunal as President or Deputy President; and
(ii) is enrolled as a legal practitioner of a federal court or of
the Supreme Court of a State or Territory; and
(iii) has been enrolled for at least 5 years.
(2) The Attorney-General must not appoint a person unless:
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(a) the person has, by writing, consented to being appointed; and
(b) the consent is in force.
105.3 Police officer detaining person under a preventative detention
order
If:
(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.
Note: See also paragraph 105.27(2)(c).
Subdivision B—Preventative detention orders
105.4 Basis for applying for, and making, preventative detention
orders
(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.
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(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
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(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.
105.5 No preventative detention order in relation to person under 16
years of age
(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.
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105.5A Special assistance for person with inadequate knowledge of
English language or disability
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
(ii) contact the lawyer.
105.6 Restrictions on multiple preventative detention orders
Preventative detention orders under this Division
(1) 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 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:
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(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
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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.
105.7 Application for initial preventative detention order
(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
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(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.
(2A) To avoid doubt, paragraph (2)(g) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
(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.
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(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.
Note: See subsection 105.6(5).
105.8 Senior AFP member may make initial preventative detention
order
(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.
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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
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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.
Note: Paragraph (d)—see subsection 105.9(2).
(6A) To avoid doubt, paragraph (6)(e) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
(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
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(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.
105.9 Duration of initial preventative detention 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.
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105.10 Extension of initial preventative detention order
(1) If:
(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.
105.10A Notice of application for continued preventative detention
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:
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(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).
105.11 Application for continued preventative detention order
(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;
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(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.
(3A) To avoid doubt, paragraph (2)(g) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
(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.
105.12 Judge, AAT member or retired judge may make continued
preventative detention order
(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:
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(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;
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(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.
(6A) To avoid doubt, paragraph (6)(d) does not require any information
to be included in the summary if disclosure of that information is
likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings)
Act 2004).
(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.
105.13 Duration of continued preventative detention order
(1) A continued preventative detention order in relation to a person
starts to have effect when it is made.
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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.
105.14 Extension of continued preventative detention order
(1) If:
(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
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(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.
105.14A Basis for applying for, and making, prohibited contact
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.
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(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.
105.15 Prohibited contact order (person in relation to whom
preventative detention order is being 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
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(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,
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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.
105.16 Prohibited contact order (person in relation to whom
preventative detention order is already in force)
(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:
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(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:
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(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.
105.17 Revocation of preventative detention order or prohibited
contact order
Preventative detention order
(1) If:
(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:
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(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
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(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.
105.18 Status of person making continued preventative detention
order
(1) An issuing authority who makes:
(a) a continued preventative detention order; or
(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
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(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.
Subdivision C—Carrying out preventative detention orders
105.19 Power to detain person under preventative detention order
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.
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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
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(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).
105.20 Endorsement of order with date and time person taken into
custody
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.
105.21 Requirement to provide name etc.
(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.
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(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.
Penalty: 5 penalty units.
105.22 Power to enter premises
(1) Subject to subsection (2), if:
(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.
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(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.
105.23 Power to conduct a frisk 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 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.
105.24 Power to conduct an ordinary 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.
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105.25 Warrant under Division 3 of Part III of the Australian
Security Intelligence Organisation Act 1979
(1) This section applies if:
(a) a person is being detained under a preventative detention
order; and
(b) a warrant under Division 3 of Part III of the Australian
Security Intelligence Organisation Act 1979 is in force in
relation to the person; and
(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:
(a) questioned before a prescribed authority under the warrant;
or
(b) detained under the warrant in connection with that
questioning;
does not extend the period for which the preventative detention
order remains in force in relation to the person.
Note: See paragraph 105.26(7)(a).
105.26 Release of person from preventative detention
(1) The police officer who is detaining a person under a preventative
detention order may release the person from detention under the
order.
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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:
(a) in accordance with a warrant under Division 3 of Part III of
the Australian Security Intelligence Organisation Act 1979;
or
(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
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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.
105.27 Arrangement for detainee to be held in State or Territory
prison or remand centre
(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.
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(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.
Subdivision D—Informing person detained about preventative
detention order
105.28 Effect of initial preventative detention order to be explained
to person detained
(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
1976 in relation to:
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(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
(ea) any right the person has to give information under
section 40SA of the Australian Federal Police Act 1979 in
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
(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:
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(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.
105.29 Effect of continued preventative detention order to be
explained to person detained
(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
1976 in 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
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(da) any right the person has to give information under
section 40SA of the Australian Federal Police Act 1979 in
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
(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.
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105.30 Person being detained to be informed of extension of
preventative detention order
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)).
105.31 Compliance with obligations to inform
(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.
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(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.
105.32 Copy of preventative detention order
(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.
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Section 105.33
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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).
Subdivision E—Treatment of person detained
105.33 Humane treatment of person being detained
A person being taken into custody, or being detained, under a
preventative detention order:
(a) must be treated with humanity and with respect for human
dignity; and
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(b) must not be subjected to cruel, inhuman or degrading
treatment;
by anyone exercising authority under the order or implementing or
enforcing the order.
Note: A contravention of this section may be an offence under
section 105.45.
105.33A Detention of persons under 18
(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.
105.34 Restriction on contact with other people
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).
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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).
105.35 Contacting family members etc.
(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
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(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.
105.36 Contacting Ombudsman etc.
(1) The person being detained is entitled to contact:
(a) the Commonwealth Ombudsman in accordance with
subsections 7(3) to (5) of the Ombudsman Act 1976; or
(b) a person referred to in subsection 40SA(1) of the Australian
Federal Police Act 1979 in accordance with section 40SB of
that Act.
Note 1: Subsections 7(3) to (5) of the Ombudsman Act 1976 provide for the
manner in which a person who is in custody may make a complaint to
the Commonwealth Ombudsman under that Act.
Note 2: Section 40SB of the Australian Federal Police Act 1979 provides for
the manner in which a person who is in custody may give information
under section 40SA of 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.
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105.37 Contacting lawyer
(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
1976 in 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 1979 in 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
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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
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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).
105.38 Monitoring contact under section 105.35 or 105.37
(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;
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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.
105.39 Special contact rules for person under 18 or incapable of
managing own affairs
(1) This section applies if the person being detained under a
preventative detention order:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs.
(2) The person is entitled, while being detained under the order, to
have contact with:
(a) a parent or guardian of the person; or
(b) another person who:
(i) is able to represent the person’s interests; and
(ii) is, as far as practicable in the circumstances, acceptable
to the person and to the police officer who is detaining
the person; and
(iii) is not an AFP member; and
(iv) is not an AFP employee (within the meaning of the
Australian Federal Police Act 1979); and
(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.
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(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
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(b) if it is reasonably practicable to do so—arrange for those
services to be provided as soon as practicable.
105.40 Entitlement to contact subject to prohibited contact order
Sections 105.35, 105.37 and 105.39 have effect subject to any
prohibited contact order made in relation to the person’s detention.
105.41 Disclosure offences
Person being detained
(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
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(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 1976 in 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 1979 in 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.
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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 1976 in 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 1979 in 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
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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
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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
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(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.
Penalty: Imprisonment for 5 years.
Note: See also subsection 105.38(5).
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105.42 Questioning of person prohibited while person is detained
(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:
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(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.
105.43 Taking fingerprints, recordings, samples of handwriting or
photographs
(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.
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(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.
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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
(c) is none of the following:
(i) an AFP member;
(ii) an AFP employee (within the meaning of the Australian
Federal Police Act 1979);
(iii) a member (however described) of a police force of a
State or Territory;
(iv) an ASIO employee or an ASIO affiliate.
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105.44 Use of identification material
(1) This section applies if identification material is taken under
section 105.43 from a person being detained under a preventative
detention order.
(2) The material may be used only for the purpose of determining
whether the person is the person specified in the order.
Note: A contravention of this subsection may be an offence under
section 105.45.
(3) If:
(a) a period of 12 months elapses after the identification material
is taken; and
(b) proceedings in respect of:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the
person’s detention under the order;
have not been brought, or have been brought and
discontinued or completed, within that period;
the material must be destroyed as soon as practicable after the end
of that period.
105.45 Offences of contravening safeguards
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes:
(i) subsection 105.28(1); or
(ii) subsection 105.29(1); or
(iii) section 105.30; or
(iv) section 105.33; or
(iva) subsection 105.33A(1); or
(v) subsection 105.42(1), (2), (3) or (4); or
(vi) subsection 105.43(1), (4) or (6); or
(vii) subsection 105.44(2).
Penalty: Imprisonment for 2 years.
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Subdivision F—Miscellaneous
105.46 Nature of functions of Federal Circuit Court Judge
(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.
105.47 Annual report
(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
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(ii) any information given under section 40SA of the
Australian Federal Police Act 1979 during 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.
105.48 Certain functions and powers not affected
This Division does not affect:
(a) a function or power of the Commonwealth Ombudsman
under the Ombudsman Act 1976; or
(b) a function or power of a person under Part V of the
Australian Federal Police Act 1979.
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.
105.50 Law relating to legal professional privilege not affected
To avoid doubt, this Division does not affect the law relating to
legal professional privilege.
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105.51 Legal proceedings in relation to preventative detention
orders
(1) Subject to subsections (2) and (4), proceedings may be brought in a
court for a remedy in relation to:
(a) a preventative detention order; or
(b) the treatment of a person in connection with the person’s
detention under a preventative detention order.
(2) A court of a State or Territory does not have jurisdiction in
proceedings for a remedy if:
(a) the remedy relates to:
(i) a preventative detention order; or
(ii) the treatment of a person in connection with the
person’s detention under a preventative detention order;
and
(b) the proceedings are commenced while the order is in force.
(3) Subsection (2) has effect despite any other law of the
Commonwealth (whether passed or made before or after the
commencement of this section).
(4) An application cannot be made under the Administrative Decisions
(Judicial Review) Act 1977 in relation to a decision made under
this Division.
Note: See paragraph (dac) of Schedule 1 to the Administrative Decisions
(Judicial Review) Act 1977.
(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.
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(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 1975
apply 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.
105.52 Review by State and Territory courts
(1) This section applies if:
(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
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(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
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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).
(5) This section has effect:
(a) without limiting subsection 105.51(1); and
(b) subject to subsection 105.51(2).
(6) Nothing in this section affects the operation of the National
Security Information (Criminal and Civil Proceedings) Act 2004 in
relation to the proceedings.
105.53 Sunset provision
(1) A preventative detention order, or a prohibited contact order, that is
in force at the end of 7 September 2021 ceases to be in force at that
time.
(2) A preventative detention order, and a prohibited contact order,
cannot be applied for, or made, after 7 September 2021.
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Division 105A—Continuing detention orders
Subdivision A—Object and definitions
105A.1 Object
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.
105A.2 Definitions
In this Division:
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.
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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 subsection 105A.3(1) and section 105A.18.
Subdivision B—Continuing detention orders
105A.3 Who a continuing detention order may apply to and effect of
an order
(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
(v) an offence against the repealed Crimes (Foreign
Incursions and Recruitment) Act 1978, except an
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offence against paragraph 9(1)(b) or (c) of that Act
(publishing recruitment advertisements); and
(b) either:
(i) the person is detained in custody and serving a sentence
of imprisonment for the offence; or
(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 ends.
Note: Before making the order, a Court must be satisfied of certain matters
under section 105A.7.
(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).
105A.4 Treatment of a terrorist offender in a prison under a
continuing detention order
(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:
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(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.
Subdivision C—Making a continuing detention order
105A.5 Applying for a continuing detention order
(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
subparagraph 105A.3(1)(b)(i) 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:
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(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; 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.
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:
(a) give a certificate under Subdivision C of Division 2 of
Part 3A of the National Security Information (Criminal and
Civil Proceedings) Act 2004;
(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 give the offender personally a
complete copy of the application:
(a) if the decision-maker later decides not to take any of the
actions referred to in any of paragraphs (5)(a) to (d), or after
the decision-maker takes such action the Court makes an
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order—within 2 business days of the decision-maker’s
decision or the order (as the case requires); and
(b) in any case—within a reasonable period before the
preliminary hearing referred to in section 105A.6.
Note: For giving the offender documents, see section 105A.15.
105A.6 Appointment of and assessment by relevant expert
(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.
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(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.
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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.
105A.7 Making a continuing detention order
(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.
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(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.
105A.8 Matters a Court must have regard to in making a continuing
detention order
(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:
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(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.
105A.9 Interim detention orders
(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 either of the following periods will
end before the application for the continuing detention order
has been determined:
(i) the sentence of imprisonment referred to in
subparagraph 105A.3(1)(b)(i) that the offender is
serving;
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(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.
Subdivision D—Review of continuing detention order
105A.10 Periodic review of 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.
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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, the 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).
105A.11 Review of continuing detention order on application
(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.
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(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.
105A.12 Process for reviewing a continuing detention order
(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
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Division 105A Continuing detention orders
Section 105A.12
322 Criminal Code Act 1995
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(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.
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Section 105A.13
Criminal Code Act 1995 323
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Subdivision E—Provisions relating to continuing detention
order proceedings
105A.13 Civil evidence and procedure rules in relation to continuing
detention order proceedings
(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.
105A.14 Adducing evidence and making submissions
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.
105A.15 Giving terrorist offenders documents
(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.
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Division 105A Continuing detention orders
Section 105A.15A
324 Criminal Code Act 1995
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(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
(b) of the day that document was so given.
105A.15A When a terrorist offender is unable to engage a legal
representative
(1) This section applies if:
(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.
105A.16 Reasons for decisions
A Supreme Court of a State or Territory that makes a continuing
detention order decision in a continuing detention order proceeding
must:
(a) state the reasons for its decision; and
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(b) cause those reasons to be entered in the records of the Court;
and
(c) cause a copy of any order it made to be provided to each
party to the proceeding.
105A.17 Right of appeal
(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.
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Section 105A.18
326 Criminal Code Act 1995
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105A.18 Consequences of release of terrorist offender
(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) the sentence of imprisonment referred to in
subparagraph 105A.3(1)(b)(i) 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 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.
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Section 105A.19
Criminal Code Act 1995 327
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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.
Subdivision F—Miscellaneous
105A.19 Sharing information
Requesting information
(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.
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Section 105A.20
328 Criminal Code Act 1995
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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).
105A.20 Delegation by the AFP Minister
The AFP Minister may, in writing, delegate any of his or her
powers or functions under section 105A.19 to any of the following
persons:
(a) the Secretary of the Department administered by the AFP
Minister;
(b) any APS employee in that Department who performs duties
in connection with the administration or execution of this
Division.
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Section 105A.21
Criminal Code Act 1995 329
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105A.21 Arrangement with States and Territories
(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.
105A.22 Annual report
(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.
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Division 105A Continuing detention orders
Section 105A.23
330 Criminal Code Act 1995
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105A.23 Warning about continuing detention orders when
sentencing for certain offences
(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.
(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.
105A.24 Effect of continuing detention orders on bail or parole laws
(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.
105A.25 Sunset provision
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.
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Transitional provisions Division 106
Section 106.1
Criminal Code Act 1995 331
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Division 106—Transitional provisions
106.1 Saving—regulations originally made for the purposes of
paragraph (c) of the definition of terrorist organisation
(1) If:
(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.
106.2 Saving—regulations made for the purposes of paragraph (a)
of the definition of terrorist organisation
(1) If:
(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.
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Division 106 Transitional provisions
Section 106.3
332 Criminal Code Act 1995
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106.3 Application provision
The amendments to this Code made by Schedule 1 to the
Anti-Terrorism Act 2005 apply to offences committed:
(a) before the commencement of this section (but not before the
commencement of the particular section of the Code being
amended); and
(b) after the commencement of this section.
106.4 Saving—Federal Magistrates
(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.
106.5 Application provisions for certain amendments in the
Counter-Terrorism Legislation Amendment (Foreign
Fighters) Act 2014
(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.
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Section 106.5
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(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.
(4A) Section 104.23, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act
2014, applies to variations of control orders, where the relevant
interim control order is requested after that commencement.
(5) Section 105.4, as amended by Schedule 1 to the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, applies in
relation to applications for preventative detention orders made after
the commencement of this section.
(6) Section 105.7, as amended by Schedule 1 to the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, applies in
relation to applications for initial preventative detention orders
made after the commencement of this section.
(7) Section 105.8, as amended by Schedule 1 to the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, applies in
relation to initial preventative detention orders made after the
commencement of this section.
(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
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Section 106.6
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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.
106.6 Application provisions for certain amendments in the
Counter-Terrorism Legislation Amendment Act (No. 1)
2014
(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) Sections 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.
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(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.
106.7 Application provision for certain amendments in the
Counter-Terrorism Legislation Amendment Act (No. 1)
2016
(1) Division 104, as amended by Schedules 2 and 3 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
applies to an order made under that Division after the
commencement of this section, where:
(a) the order is requested (however described) after that
commencement; and
(b) the conduct in relation to which that request is made occurs
before or after that commencement.
(2) Despite the amendment made by Schedule 4 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
Division 104 continues to apply in relation to:
(a) a request for an interim control order, where the request was
made before the commencement of this section; and
(b) the making of an interim control order in response to such a
request; and
(c) the making of a declaration in relation to such an interim
control order; and
(d) the revocation of such an interim control order; and
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(e) the confirmation of such an interim control order (with or
without variation); and
(f) the making of a confirmed control order that corresponds to
such an interim control order that has been so confirmed; and
(g) the revocation or variation of such a confirmed control order;
and
(h) any other proceedings under that Division that are associated
with, or incidental to, a matter covered by any of the above
paragraphs;
as if the amendment had not been made.
(3) Section 104.29, as amended by Schedule 8 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
applies in relation to any year that ends on 30 June after the
commencement of this section.
(4) Division 105, as amended by Schedule 5 to the Counter-Terrorism
Legislation Amendment Act (No. 1) 2016, applies in relation to an
application for the following made after the commencement of this
section:
(a) a preventative detention order;
(b) an initial preventative detention order;
(c) an extension of an initial preventative detention order;
(d) a continued preventative detention order;
(e) an extension of a continued preventative detention order.
106.8 Application provision for amendments in the Criminal Code
Amendment (High Risk Terrorist Offenders) Act 2016
(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.
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(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.
106.9 Application—Counter-Terrorism Legislation Amendment Act
(No. 1) 2018
(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.
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(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).
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Part 5.4—Harming Australians
Division 115—Harming Australians
115.1 Murder of an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(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).
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(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.
115.2 Manslaughter of an Australian citizen or a resident of
Australia
(1) A person commits an offence if:
(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.
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(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.
115.3 Intentionally causing serious harm to an Australian citizen or
a resident of Australia
(1) A person commits an offence if:
(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 intends to cause serious harm to
the Australian citizen or resident of Australia or any other
person by the conduct.
Penalty: Imprisonment for 20 years.
(2) Absolute liability applies to paragraph (1)(c).
115.4 Recklessly causing serious harm to an Australian citizen or a
resident of Australia
(1) A person commits an offence if:
(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
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(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).
115.5 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or of a State or Territory.
115.6 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be
commenced without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody,
or released on bail, in connection with an offence under this
Division before the necessary consent has been given.
115.7 Ministerial certificates relating to proceedings
(1) A Minister who administers one or more of the following Acts:
(a) the Australian Citizenship Act 2007;
(b) the Migration Act 1958;
(c) the Australian Passports Act 2005;
may issue a certificate stating that a person is or was an Australian
citizen or a resident of Australia at a particular time.
(2) In any proceedings, a certificate under this section is prima facie
evidence of the matters in the certificate.
115.8 Geographical jurisdiction
Each offence against this Division applies:
(a) whether or not a result of the conduct constituting the alleged
offence occurs in Australia; and
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(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.
115.9 Meaning of causes death or harm
In this Division, a person’s conduct causes death or harm if it
substantially contributes to the death or harm.
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Part 5.5—Foreign incursions and recruitment
Division 117—Preliminary
117.1 Definitions
(1) In this Part:
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
armed force does not include an armed force forming part of the
Australian Defence Force.
Defence Minister means the Minister administering the Defence
Force Discipline Act 1982.
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);
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(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).
Foreign Affairs Minister means the Minister administering the
Diplomatic Privileges and Immunities Act 1967.
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
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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
(d) an act prejudicial to the security, defence or international
relations (within the meaning of section 10 of the National
Security Information (Criminal and Civil Proceedings) Act
2004) of Australia.
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).
117.2 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D)
applies (subject to this Part) to an offence against this Part.
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Division 119—Foreign incursions and recruitment
119.1 Incursions into foreign countries with the intention of
engaging in hostile activities
Offence for entering foreign countries with the intention of
engaging in hostile activities
(1) A person commits an offence if:
(a) the person enters a foreign country with the intention of
engaging in a hostile activity in that or any other foreign
country; and
(b) when the person enters the country, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the
protection of Australia.
Penalty: Imprisonment for life.
Offence for engaging in a hostile activity in a foreign country
(2) A person commits an offence if:
(a) the person engages in a hostile activity in a foreign country;
and
(b) when the person engages in the activity, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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).
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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.
119.2 Entering, or remaining in, declared areas
(1) A person commits an offence if:
(a) the person enters, or remains in, an area in a foreign country;
and
(b) the area is an area declared by the Foreign Affairs Minister
under section 119.3; and
(c) when the person enters the area, or at any time when the
person is in the area, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
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(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).
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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.
119.3 Declaration of areas for the purposes of section 119.2
(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
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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.
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(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.
Note: A declaration may be disallowed by either House of Parliament under
section 42 of the Legislation Act 2003.
(8) In addition, at any time while a declaration is in effect, the
Parliamentary Joint Committee on Intelligence and Security may:
(a) review the declaration; and
(b) report the Committee’s comments and recommendations to
each House of the Parliament.
119.4 Preparations for incursions into foreign countries for purpose
of engaging in hostile activities
Preparatory acts
(1) A person commits an offence if:
(a) the person engages in conduct (whether within or outside
Australia); and
(b) the conduct is preparatory to the commission of an offence
against section 119.1 (whether by that or any other person);
and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the
protection of Australia; or
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(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:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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
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(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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.
Giving or receiving goods and services to promote the commission
of an offence
(5) A person commits an offence if:
(a) the person engages in any of the following conduct (whether
within or outside Australia):
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(i) giving money or goods to, or performing services for,
any other person, body or association;
(ii) receiving or soliciting money or goods, or the
performance of services; and
(b) the person engages in the conduct with the intention of
supporting or promoting the commission of an offence
against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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
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constitute an offence against section 119.1 if paragraphs
119.1(1)(b) and (2)(b) were disregarded.
119.5 Allowing use of buildings, vessels and aircraft to commit
offences
Use of buildings
(1) A person commits an offence if:
(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:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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.
Use of vessels or aircraft
(2) A person commits an offence if:
(a) the person is:
(i) an owner, charterer, lessee, operator, agent or master of
a vessel; or
(ii) an owner, charterer, lessee, operator or pilot in charge of
an aircraft; and
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(b) the person permits the vessel or aircraft to be used (whether
the person, vessel or aircraft is within or outside Australia);
and
(c) by permitting the use, 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 use, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(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.
119.6 Recruiting persons to join organisations engaged in hostile
activities against foreign governments
A person commits an offence if:
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(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.
Penalty: Imprisonment for 25 years.
119.7 Recruiting persons to serve in or with an armed force in a
foreign country
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
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(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
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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.
119.8 Declaration in relation to specified armed forces
Service
(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.
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119.9 Exception—conduct for defence or international relations of
Australia
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).
119.10 Mode of trial
(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.
119.11 Consent of Attorney-General required for prosecutions
(1) Proceedings for the commitment of a person for the following must
not be instituted without the written consent of the
Attorney-General:
(a) the trial on indictment for an offence against the following
provisions:
(i) this Division;
(ii) section 6 of the Crimes Act 1914 to the extent that it
relates to an offence against this Division;
(b) the summary trial of a person for an offence referred to in
paragraph (a).
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(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 charged with an offence referred to in
paragraph (1)(a);
(b) a person may be arrested for an offence referred to in
paragraph (1)(a), and a warrant for such an arrest may be
issued and executed;
(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.
119.12 Declarations for the purposes of proceedings
(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.
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Part 5.6—Secrecy of information
Division 121—Preliminary
121.1 Definitions
(1) In this Part:
cause harm to Australia’s interests means to:
(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:
(i) paragraph 8(1)(be) of the Australian Federal Police Act
1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002; or
(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;
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(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;
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(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.
international relations has the meaning given by section 10 of the
National Security Information (Criminal and Civil Proceedings)
Act 2004.
proper place of custody has the meaning given by section 121.2.
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
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.
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121.2 Definition of proper place of custody
(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.
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Division 122—Secrecy of information
122.1 Communication and other dealings with inherently harmful
information by current and former Commonwealth
officers etc.
Communication of inherently harmful information
(1) A person commits an offence if:
(a) the person communicates 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 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.
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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).
Penalty: Imprisonment for 3 years.
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122.2 Conduct by current and former Commonwealth officers etc.
causing harm to Australia’s interests
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.
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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.
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Penalty: Imprisonment for 3 years.
122.3 Aggravated offence
(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
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(b) a person may be convicted of an offence against this section
even if the person has not been convicted of the underlying
offence.
122.4 Unauthorised disclosure of information by current and former
Commonwealth officers etc.
(1) A person commits an offence if:
(a) the person communicates information; and
(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.
122.4A Communicating and dealing with information by
non-Commonwealth officers etc.
Communication of information
(1) A person commits an offence if:
(a) the person communicates information; 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
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(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;
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(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).
122.5 Defences
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)).
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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:
(a) to any of the following:
(i) the Inspector-General of Intelligence and Security, or a
person engaged or employed to assist the
Inspector-General as described in subsection 32(1) of
the Inspector-General of Intelligence and Security Act
1986;
(ii) the Commonwealth Ombudsman, or another officer
within the meaning of subsection 35(1) of the
Ombudsman Act 1976;
(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)).
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Information communicated etc. in accordance with the Public
Interest Disclosure Act 2013 or the Freedom of Information Act
1982
(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:
(a) the Public Interest Disclosure Act 2013; or
(b) the Freedom of Information Act 1982.
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:
(i) the Australian Federal Police Act 1979; or
(ii) the Proceeds of Crime Act 2002.
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)).
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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:
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(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:
(a) engaging in that conduct would be an offence under
section 92 of the Australian Security Intelligence
Organisation Act 1979 (publication of identity of ASIO
employee or ASIO affiliate); or
(b) engaging in that conduct would be an offence under
section 41 of the Intelligence Services Act 2001 (publication
of identity of staff); or
(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;
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(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
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(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.
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Defences do not limit each other
(13) No defence in this section limits the operation of any other defence
in this section.
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Division 123 Miscellaneous
Section 123.1
382 Criminal Code Act 1995
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Division 123—Miscellaneous
123.1 Injunctions
Enforceable provisions
(1) The provisions of Division 122 are 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 and relevant court
(2) For the purposes of Part 7 of the Regulatory Powers Act, as that
Part applies to the provisions of Division 122 of this Act:
(a) the Minister is an authorised person; and
(b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in
relation to matters arising under this Act.
Extension to external Territories
(3) Part 7 of the Regulatory Powers Act, as that Part applies to the
provisions of Division 122 of this Act, extends to every external
Territory.
123.2 Forfeiture of articles etc.
(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.
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123.3 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against this Part.
123.4 Effect of this Part on other rights, privileges, immunities or
defences
Nothing in this Part limits or affects any other right, privilege,
immunity or defence existing apart from this Part.
123.5 Requirements before proceedings can be initiated
(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.
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Part 7.1 Preliminary
Division 130 Preliminary
Section 130.1
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Chapter 7—The proper administration of
Government
Part 7.1—Preliminary
Division 130—Preliminary
130.1 Definitions
In this Chapter:
duty:
(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.
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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.
130.2 When property belongs to a person
(1) For the purposes of this Chapter, property belongs to a person if,
and only if:
(a) the person has possession or control of the property; or
(b) the person has a proprietary right or interest in the property,
other than an equitable interest arising only from:
(i) an agreement to transfer an interest; or
(ii) an agreement to grant an interest; or
(iii) a constructive trust.
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(2) Subsection (1) has effect subject to subsections 134.1(9) and (10)
(which deal with money transfers).
130.3 Dishonesty
For the purposes of this Chapter, 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.
Note: The following provisions affect the meaning of dishonesty:
(a) section 131.2 (theft);
(b) section 134.1 (obtaining property by deception).
130.4 Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against this Chapter, the
determination of dishonesty is a matter for the trier of fact.
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Section 131.1
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Part 7.2—Theft and other property offences
Division 131—Theft
131.1 Theft
(1) A person commits an offence if:
(a) the person dishonestly appropriates 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) For the purposes of this Code, an offence against subsection (1) is
to be known as the offence of theft.
(3) Absolute liability applies to the paragraph (1)(b) element of the
offence of theft.
(4) Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against subsection (1).
Note: For alternative verdicts, see sections 132.1 and 134.1.
131.2 Special rules about the meaning of dishonesty
(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.
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Section 131.3
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131.3 Appropriation of 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.
131.4 Theft of land or things forming part of land
(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.
131.5 Trust property
(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.
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(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.
131.6 Obligation to deal with property in a particular way
For the purposes of this Division, if:
(a) a person receives property from or on account of another; and
(b) the person is under a legal obligation to the other to retain
and deal with that property or its proceeds in a particular
way;
the property or proceeds belong (as against the person) to the other.
131.7 Property obtained because of fundamental mistake
(1) For the purposes of this Division, if:
(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.
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Division 131 Theft
Section 131.8
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(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.
131.8 Property of a corporation sole
For the purposes of this Division, property of a corporation sole
belongs to the corporation despite a vacancy in the corporation.
131.9 Property belonging to 2 or more persons
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.
131.10 Intention of permanently depriving a person of property
(1) For the purposes of this Division, if:
(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;
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Section 131.11
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the parting is taken to amount to treating the property as the
person’s own to dispose of regardless of the other’s rights.
Note: See also paragraph 131.7(2)(a).
131.11 General deficiency
(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.
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Division 132 Other property offences
Section 132.1
392 Criminal Code Act 1995
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Division 132—Other property offences
132.1 Receiving
(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
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(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
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(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.
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(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.
132.2 Robbery
(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;
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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.
132.3 Aggravated robbery
(1) A person commits an offence if the person:
(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.
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(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.
132.4 Burglary
(1) A person commits an offence if:
(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
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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.
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(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.
132.5 Aggravated burglary
(1) A person commits an offence if the person:
(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:
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(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.
132.6 Making off without payment
(1) A person commits an offence if:
(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.
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(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.
132.7 Going equipped for theft or a property offence
(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:
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(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.
132.8 Dishonest taking or retention of property
Taking
(1) A person commits an offence if the person:
(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
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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.
Penalty: Imprisonment for 2 years.
132.8A Damaging Commonwealth property
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, or the destruction of,
property; and
(c) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to paragraph (1)(c).
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132.9 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Part 7.3—Fraudulent conduct
Division 133—Preliminary
133.1 Definitions
In this Part:
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.
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Section 134.1
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Division 134—Obtaining property or a financial advantage by
deception
134.1 Obtaining property by deception
(1) A person commits an offence if:
(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.
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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.
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(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.
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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.
134.2 Obtaining a financial advantage by deception
(1) A person commits an offence if:
(a) the person, by a deception, dishonestly obtains a financial
advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of the
offence.
134.3 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Division 135—Other offences involving fraudulent conduct
135.1 General dishonesty
Obtaining a gain
(1) A person commits an offence if:
(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.
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(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.
135.2 Obtaining financial advantage
(1) 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 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
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(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.
135.4 Conspiracy to defraud
Obtaining a gain
(1) A person commits an offence if:
(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.
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(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:
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(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
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(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.
135.5 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Division 136 False or misleading statements in applications
Section 136.1
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Part 7.4—False or misleading statements
Division 136—False or misleading statements in applications
136.1 False or misleading statements in applications
Knowledge
(1) 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 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).
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(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).
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Division 136 False or misleading statements in applications
Section 136.1
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(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.
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False or misleading information or documents Division 137
Section 137.1
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Division 137—False or misleading information or documents
137.1 False or misleading information
(1) A person commits an offence if:
(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
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Division 137 False or misleading information or documents
Section 137.1A
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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”.
137.1A Aggravated offence for giving false or misleading
information
(1) A person commits an offence if:
(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
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(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.
137.2 False or misleading documents
(1) A person commits an offence if:
(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).
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Division 137 False or misleading information or documents
Section 137.3
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(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).
137.3 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Preliminary Division 138
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Part 7.5—Unwarranted demands
Division 138—Preliminary
138.1 Unwarranted demand with menaces
(1) For the purposes of this Part, a person (the first person) makes an
unwarranted demand with menaces of another person if, and only
if:
(a) the first person makes a demand with menaces of the other
person; and
(b) the first person does not believe that he or she has reasonable
grounds for making the demand; and
(c) the first person does not reasonably believe that the use of the
menaces is a proper means of reinforcing the demand.
(2) This Part applies to a demand whether or not it is for property.
(3) This Part applies to a demand with menaces, whether or not the
menaces relate to conduct to be engaged in by the person making
the demand.
138.2 Menaces
(1) For the purposes of this Part, menaces includes:
(a) a threat (whether express or implied) of conduct that is
detrimental or unpleasant to another person; or
(b) a general threat of detrimental or unpleasant conduct that is
implied because of the status, office or position of the maker
of the threat.
Threat against an individual
(2) For the purposes of this Part, a threat against an individual is taken
not to be menaces unless:
(a) both:
(i) the threat would be likely to cause the individual to act
unwillingly; and
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(ii) the maker of the threat is aware of the vulnerability of
the individual to the threat; or
(b) the threat would be likely to cause a person of normal
stability and courage to act unwillingly.
Threat against a person who is not an individual
(3) For the purposes of this Part, a threat against a person who is not
an individual is taken not to be menaces unless:
(a) the threat would ordinarily cause an unwilling response; or
(b) the threat would be likely to cause an unwilling response
because of a particular vulnerability of which the maker of
the threat is aware.
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Unwarranted demands Division 139
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Division 139—Unwarranted demands
139.1 Unwarranted demands of a Commonwealth public official
A person commits an offence if:
(a) the person makes an unwarranted demand with menaces of
another person; and
(b) the demand or the menaces are directly or indirectly related
to:
(i) the other person’s capacity as a Commonwealth public
official; or
(ii) any influence the other person has in the other person’s
capacity as 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; or
(iii) influencing the official in the exercise of the official’s
duties as a Commonwealth public official.
Penalty: Imprisonment for 12 years.
139.2 Unwarranted demands made by a Commonwealth public
official
A Commonwealth public official commits an offence if:
(a) the official makes an unwarranted demand with menaces of
another person; and
(b) the demand or the menaces are directly or indirectly related
to:
(i) the official’s capacity as a Commonwealth public
official; or
(ii) any influence the official has in the official’s capacity as
a Commonwealth public official; and
(c) the official does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
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(iii) influencing another Commonwealth public official in
the exercise of the other official’s duties as a
Commonwealth public official.
Penalty: Imprisonment for 12 years.
139.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction—category C)
applies to each offence against this Division.
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Preliminary Division 140
Section 140.1
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Part 7.6—Bribery and related offences
Division 140—Preliminary
140.1 Definition
In this Part:
benefit includes any advantage and is not limited to property.
140.2 Obtaining
(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.
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Section 141.1
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Division 141—Bribery
141.1 Bribery of a Commonwealth public official
Giving a bribe
(1) A person commits an offence if:
(a) the person dishonestly:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to
another person; or
(iv) causes an offer of the provision of a benefit, or a
promise of the provision of a benefit, to be made to
another person; and
(b) the 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
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(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
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Chapter 7 The proper administration of Government
Part 7.6 Bribery and related offences
Division 141 Bribery
Section 141.1
430 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(8) Expressions used in subsection (7) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning in that subsection as they have in that Act.
(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.
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Offences relating to bribery Division 142
Section 142.1
Criminal Code Act 1995 431
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Division 142—Offences relating to bribery
142.1 Corrupting benefits given to, or received by, a Commonwealth
public official
Giving a corrupting benefit
(1) A person commits an offence if:
(a) the person dishonestly:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to
another person; or
(iv) causes an offer of the provision of a benefit, or a
promise of the provision of a benefit, to be made to
another person; and
(b) the 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
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Part 7.6 Bribery and related offences
Division 142 Offences relating to bribery
Section 142.2
432 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
(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.
142.2 Abuse of public office
(1) A Commonwealth public official commits an offence if:
(a) the official:
(i) exercises any influence that the official has in the
official’s capacity as a Commonwealth public official;
or
(ii) engages in any conduct in the exercise of the official’s
duties as a Commonwealth public official; or
(iii) uses any information that the official has obtained in the
official’s capacity as a Commonwealth public official;
and
(b) the official does so with the intention of:
(i) dishonestly obtaining a benefit for himself or herself or
for another person; or
(ii) dishonestly causing a detriment to another person.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if:
(a) the person has ceased to be a Commonwealth public official
in a particular capacity; and
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Section 142.3
Criminal Code Act 1995 433
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(b) the person uses any information that the person obtained in
that capacity as a Commonwealth public official; and
(c) the person does so with the intention of:
(i) dishonestly obtaining a benefit for himself or herself or
for another person; or
(ii) dishonestly causing a detriment to another person.
Penalty: Imprisonment for 5 years.
(3) Paragraph (2)(a) applies to a cessation by a person:
(a) whether or not the person continues to be a Commonwealth
public official in some other capacity; and
(b) whether the cessation occurred before, at or after the
commencement of this section.
142.3 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 143 Preliminary
Section 143.1
434 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Part 7.7—Forgery and related offences
Division 143—Preliminary
143.1 Definitions
(1) In this Part:
document includes:
(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.
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Section 143.2
Criminal Code Act 1995 435
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143.2 False documents
(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).
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 143 Preliminary
Section 143.3
436 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
(3) This section has effect as if a document that purports to be a true
copy of another document were the original document.
143.3 False Commonwealth documents
(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
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Section 143.4
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(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.
143.4 Inducing acceptance of false documents
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.
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 144 Forgery
Section 144.1
438 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 144—Forgery
144.1 Forgery
(1) 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 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.
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Section 144.1
Criminal Code Act 1995 439
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(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).
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.1
440 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 145—Offences relating to forgery
145.1 Using forged document
(1) 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 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.
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Section 145.2
Criminal Code Act 1995 441
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(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.
145.2 Possession of forged document
(1) 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:
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.2
442 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
(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
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(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.
145.3 Possession, making or adaptation of devices etc. for making
forgeries
(1) 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 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.
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Chapter 7 The proper administration of Government
Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.3
444 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
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).
Penalty: Imprisonment for 2 years.
Note: See also section 10.5 (lawful authority).
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145.4 Falsification of documents etc.
(1) A person commits an offence if:
(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.
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Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.5
446 Criminal Code Act 1995
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145.5 Giving information derived from false or misleading
documents
(1) 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 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.
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Offences relating to forgery Division 145
Section 145.6
Criminal Code Act 1995 447
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(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.
145.6 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Part 7.8 Causing harm to or obstructing Commonwealth public officials and
impersonating Commonwealth public officials or bodies
Division 146 Preliminary
Section 146.1
448 Criminal Code Act 1995
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Part 7.8—Causing harm to or obstructing Commonwealth
public officials and impersonating
Commonwealth public officials or bodies
Division 146—Preliminary
146.1 Definitions
In this Part:
Commonwealth law enforcement officer means a person who is:
(a) a member or special member of the Australian Federal
Police; or
(aa) the Integrity Commissioner (within the meaning of the Law
Enforcement Integrity Commissioner Act 2006); or
(ab) a staff member of ACLEI (within the meaning of the Law
Enforcement Integrity Commissioner Act 2006); or
(b) a member of the Board of the Australian Crime Commission
established under section 7B of the Australian Crime
Commission Act 2002; or
(ba) an examiner (within the meaning of that Act); or
(c) a member of the staff of the ACC (within the meaning of that
Act); or
(d) the Australian Border Force Commissioner (within the
meaning of the Australian Border Force Act 2015); or
(e) a person who is an APS employee in the Department
administered by the Minister administering the Australian
Border Force Act 2015 and 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);
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Commonwealth public officials or bodies Part 7.8
Preliminary Division 146
Section 146.2
Criminal Code Act 1995 449
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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.
146.2 Causing harm
For the purposes of this Part, a person’s conduct is taken to cause
harm if it substantially contributes to harm.
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impersonating Commonwealth public officials or bodies
Division 147 Causing harm to Commonwealth public officials
Section 147.1
450 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 147—Causing harm to Commonwealth public officials
147.1 Causing harm to a Commonwealth public official etc.
Causing harm to a Commonwealth public official
(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.
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Commonwealth public officials or bodies Part 7.8
Causing harm to Commonwealth public officials Division 147
Section 147.1
Criminal Code Act 1995 451
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(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.
Penalty: Imprisonment for 10 years.
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Chapter 7 The proper administration of Government
Part 7.8 Causing harm to or obstructing Commonwealth public officials and
impersonating Commonwealth public officials or bodies
Division 147 Causing harm to Commonwealth public officials
Section 147.2
452 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
147.2 Threatening to cause harm to a Commonwealth public official
etc.
Threatening to cause serious harm
(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.
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Commonwealth public officials or bodies Part 7.8
Causing harm to Commonwealth public officials Division 147
Section 147.2
Criminal Code Act 1995 453
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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
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impersonating Commonwealth public officials or bodies
Division 147 Causing harm to Commonwealth public officials
Section 147.3
454 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
(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.
147.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction—category C)
applies to each offence against this Division.
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Commonwealth public officials or bodies Part 7.8
Impersonation of Commonwealth public officials Division 148
Section 148.1
Criminal Code Act 1995 455
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Division 148—Impersonation of Commonwealth public officials
148.1 Impersonation of an official by a non-official
(1) A person other than a Commonwealth public official commits an
offence if:
(a) on a particular occasion, the person impersonates another
person in that other person’s capacity as a Commonwealth
public official; and
(b) the first-mentioned person does so knowing it to be in
circumstances when the official is likely to be on duty; and
(c) the first-mentioned person does so with intent to deceive.
Penalty: Imprisonment for 2 years.
(2) A person other than a Commonwealth public official commits an
offence if:
(a) the person falsely represents himself or herself to be a
Commonwealth public official in a particular capacity; and
(b) the person does so in the course of doing an act, or attending
a place, in the assumed capacity of such an official.
Penalty: Imprisonment for 2 years.
(2A) For the purposes of subsection (2), it is immaterial whether that
capacity as a Commonwealth public official exists or is fictitious.
(3) A person other than a Commonwealth public official commits an
offence if:
(a) the person:
(i) impersonates another person in that other person’s
capacity as a Commonwealth public official; or
(ii) falsely represents himself or herself to be a
Commonwealth public official in a particular capacity;
and
(b) the first-mentioned person does so with the intention of:
(i) obtaining a gain; or
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impersonating Commonwealth public officials or bodies
Division 148 Impersonation of Commonwealth public officials
Section 148.2
456 Criminal Code Act 1995
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(ii) causing a loss; or
(iii) influencing the exercise of a public duty or function;
and
(c) if subparagraph (a)(i) applies—the first-mentioned person
also does so with intent to deceive.
Penalty: Imprisonment for 5 years.
(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial
whether that capacity as a Commonwealth public official exists or
is fictitious.
(4) The definition of duty in section 130.1 does not apply to this
section.
(5) To avoid doubt, for the purposes of this section:
(a) impersonation does not include conduct engaged in solely
for satirical purposes; and
(b) false representation does not include conduct engaged in
solely for satirical purposes.
148.2 Impersonation of an official by another official
(1) A Commonwealth public official commits an offence if:
(a) on a particular occasion, the official impersonates another
person in that other person’s capacity as a Commonwealth
public official; and
(b) the first-mentioned official does so knowing it to be in
circumstances when the other official is likely to be on duty;
and
(c) the first-mentioned official does so with intent to deceive.
Penalty: Imprisonment for 2 years.
(2) A Commonwealth public official commits an offence if:
(a) the official falsely represents himself or herself to be a
Commonwealth public official in a particular capacity; and
(b) the official does so in the course of doing an act, or attending
a place, in the assumed capacity of such an official.
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Impersonation of Commonwealth public officials Division 148
Section 148.3
Criminal Code Act 1995 457
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Penalty: Imprisonment for 2 years.
(2A) For the purposes of subsection (2), it is immaterial whether that
capacity as a Commonwealth public official exists or is fictitious.
(3) A Commonwealth public official commits an offence if:
(a) the official:
(i) impersonates another person in the other person’s
capacity as a Commonwealth public official; or
(ii) falsely represents himself or herself to be a
Commonwealth public official in a particular capacity;
and
(b) the first-mentioned official does so 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
(c) if subparagraph (a)(i) applies—the first-mentioned official
also does so with intent to deceive.
Penalty: Imprisonment for 5 years.
(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial
whether that capacity as a Commonwealth public official exists or
is fictitious.
(4) The definition of duty in section 130.1 does not apply to this
section.
(5) To avoid doubt, for the purposes of this section:
(a) impersonation does not include conduct engaged in solely
for satirical purposes; and
(b) false representation does not include conduct engaged in
solely for satirical purposes.
148.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction—category C)
applies to each offence against this Division.
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Chapter 7 The proper administration of Government
Part 7.8 Causing harm to or obstructing Commonwealth public officials and
impersonating Commonwealth public officials or bodies
Division 149 Obstruction of Commonwealth public officials
Section 149.1
458 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 149—Obstruction of Commonwealth public officials
149.1 Obstruction of Commonwealth public officials
(1) A person commits an offence if:
(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
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Commonwealth public officials or bodies Part 7.8
Obstruction of Commonwealth public officials Division 149
Section 149.1
Criminal Code Act 1995 459
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(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.
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Part 7.8 Causing harm to or obstructing Commonwealth public officials and
impersonating Commonwealth public officials or bodies
Division 150 False representations in relation to a Commonwealth body
Section 150.1
460 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 150—False representations in relation to a
Commonwealth body
Subdivision A—Offences
150.1 False representations in relation to a Commonwealth body
(1) 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 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
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False representations in relation to a Commonwealth body Division 150
Section 150.1
Criminal Code Act 1995 461
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(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.
(7) In this section:
Commonwealth body means:
(a) a Commonwealth entity; or
(b) a Commonwealth company (within the meaning of the Public
Governance, Performance and Accountability Act 2013); or
(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.
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Chapter 7 The proper administration of Government
Part 7.8 Causing harm to or obstructing Commonwealth public officials and
impersonating Commonwealth public officials or bodies
Division 150 False representations in relation to a Commonwealth body
Section 150.5
462 Criminal Code Act 1995
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Subdivision B—Injunctions
150.5 Injunctions
Enforceable provisions
(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.
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Miscellaneous Part 7.20
Miscellaneous Division 261
Section 261.1
Criminal Code Act 1995 463
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Part 7.20—Miscellaneous
Division 261—Miscellaneous
261.1 Saving of other laws
This Chapter is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
261.2 Contempt of court
This Chapter does not limit the power of a court to punish a
contempt of the court.
261.3 Ancillary offences
To avoid doubt, subsection 11.6(2) does not apply to the following
provisions:
(a) subsection 131.1(2) (theft);
(b) subsection 132.1(2) (receiving);
(c) subsection 132.2(2) (robbery);
(d) subsection 132.3(2) (aggravated robbery);
(e) subsections 132.4(2), (5) and (9) (burglary);
(f) subsection 132.5(2) (aggravated burglary);
(g) the definitions of aggravated burglary, aggravated robbery,
burglary, receiving, robbery and theft in the Dictionary.
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Prepared by the Office of Parliamentary Counsel, Canberra
Criminal Code Act 1995
No. 12, 1995
Compilation No. 127
Compilation date: 6 April 2019
Includes amendments up to: Act No. 38, 2019
Registered: 29 April 2019
This compilation is in 2 volumes
Volume 1: sections 1–5
Schedule (sections 1.1–261.3)
Volume 2: Schedule (sections 268.1–490.7)
Schedule (Dictionary)
Endnotes
Each volume has its own contents
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About this compilation
This compilation
This is a compilation of the Criminal Code Act 1995 that shows the text of the
law as amended and in force on 6 April 2019 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Criminal Code Act 1995 i
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Contents
Schedule—The Criminal Code 1
Chapter 8—Offences against humanity and related offences 1
Division 268—Genocide, crimes against humanity, war crimes
and crimes against the administration of the
justice of the International Criminal Court 1
Subdivision A—Introductory 1
268.1 Purpose of Division ...........................................................1
268.2 Outline of offences ............................................................1
Subdivision B—Genocide 2
268.3 Genocide by killing ...........................................................2
268.4 Genocide by causing serious bodily or mental
harm ..................................................................................2
268.5 Genocide by deliberately inflicting conditions of
life calculated to bring about physical destruction ............2
268.6 Genocide by imposing measures intended to
prevent births.....................................................................3
268.7 Genocide by forcibly transferring children........................3
Subdivision C—Crimes against humanity 4
268.8 Crime against humanity—murder .....................................4
268.9 Crime against humanity—extermination...........................4
268.10 Crime against humanity—enslavement .............................5
268.11 Crime against humanity—deportation or forcible
transfer of population ........................................................5
268.12 Crime against humanity—imprisonment or other
severe deprivation of physical liberty................................6
268.13 Crime against humanity—torture ......................................7
268.14 Crime against humanity—rape..........................................7
268.15 Crime against humanity—sexual slavery ..........................9
268.16 Crime against humanity—enforced prostitution................9
268.17 Crime against humanity—forced pregnancy ...................11
268.18 Crime against humanity—enforced sterilisation .............11
268.19 Crime against humanity—sexual violence ......................12
268.20 Crime against humanity—persecution ............................13
268.21 Crime against humanity—enforced disappearance
of persons ........................................................................14
268.22 Crime against humanity—apartheid ................................15
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268.23 Crime against humanity—other inhumane act ................16
Subdivision D—War crimes that are grave breaches of the
Geneva Conventions and of Protocol I to the
Geneva Conventions 16
268.24 War crime—wilful killing ...............................................16
268.25 War crime—torture .........................................................17
268.26 War crime—inhumane treatment ....................................17
268.27 War crime—biological experiments................................18
268.28 War crime—wilfully causing great suffering ..................18
268.29 War crime—destruction and appropriation of
property ...........................................................................19
268.30 War crime—compelling service in hostile forces............19
268.31 War crime—denying a fair trial.......................................20
268.32 War crime—unlawful deportation or transfer .................21
268.33 War crime—unlawful confinement .................................21
268.34 War crime—taking hostages ...........................................22
Subdivision E—Other serious war crimes that are committed in
the course of an international armed conflict 22
268.35 War crime—attacking civilians .......................................22
268.36 War crime—attacking civilian objects ............................23
268.37 War crime—attacking personnel or objects
involved in a humanitarian assistance or
peacekeeping mission......................................................23
268.38 War crime—excessive incidental death, injury or
damage ............................................................................24
268.39 War crime—attacking undefended places .......................25
268.40 War crime—killing or injuring a person who is
hors de combat ................................................................25
268.41 War crime—improper use of a flag of truce....................26
268.42 War crime—improper use of a flag, insignia or
uniform of the adverse party............................................26
268.43 War crime—improper use of a flag, insignia or
uniform of the United Nations.........................................27
268.44 War crime—improper use of the distinctive
emblems of the Geneva Conventions ..............................27
268.45 War crime—transfer of population..................................28
268.46 War crime—attacking protected objects .........................28
268.47 War crime—mutilation....................................................29
268.48 War crime—medical or scientific experiments ...............30
268.49 War crime—treacherously killing or injuring..................31
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268.50 War crime—denying quarter ...........................................31
268.51 War crime—destroying or seizing the enemy’s
property ...........................................................................32
268.52 War crime—depriving nationals of the adverse
power of rights or actions ................................................32
268.53 War crime—compelling participation in military
operations ........................................................................33
268.54 War crime—pillaging......................................................33
268.55 War crime—employing poison or poisoned
weapons...........................................................................34
268.56 War crime—employing prohibited gases, liquids,
materials or devices .........................................................34
268.57 War crime—employing prohibited bullets ......................34
268.58 War crime—outrages upon personal dignity ...................35
268.59 War crime—rape .............................................................35
268.60 War crime—sexual slavery .............................................37
268.61 War crime—enforced prostitution...................................37
268.62 War crime—forced pregnancy ........................................39
268.63 War crime—enforced sterilisation...................................39
268.64 War crime—sexual violence ...........................................40
268.65 War crime—using protected persons as shields ..............41
268.66 War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions.............42
268.67 War crime—starvation as a method of warfare ...............42
268.68 War crime—using, conscripting or enlisting
children............................................................................43
Subdivision F—War crimes that are serious violations of article 3
common to the Geneva Conventions and are
committed in the course of an armed conflict that
is not an international armed conflict 45
268.69 Definition of religious personnel .....................................45
268.70 War crime—murder ........................................................45
268.71 War crime—mutilation....................................................46
268.72 War crime—cruel treatment ............................................48
268.73 War crime—torture .........................................................49
268.74 War crime—outrages upon personal dignity ...................50
268.75 War crime—taking hostages ...........................................51
268.76 War crime—sentencing or execution without due
process.............................................................................52
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Subdivision G—War crimes that are other serious violations of
the laws and customs applicable in an armed
conflict that is not an international armed conflict 54
268.77 War crime—attacking civilians .......................................54
268.78 War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions.............54
268.79 War crime—attacking personnel or objects
involved in a humanitarian assistance or
peacekeeping mission......................................................55
268.80 War crime—attacking protected objects .........................56
268.81 War crime—pillaging......................................................56
268.82 War crime—rape .............................................................57
268.83 War crime—sexual slavery .............................................58
268.84 War crime—enforced prostitution...................................59
268.85 War crime—forced pregnancy ........................................60
268.86 War crime—enforced sterilisation...................................61
268.87 War crime—sexual violence ...........................................61
268.88 War crime—using, conscripting or enlisting
children............................................................................63
268.89 War crime—displacing civilians .....................................65
268.90 War crime—treacherously killing or injuring..................65
268.91 War crime—denying quarter ...........................................66
268.92 War crime—mutilation....................................................66
268.93 War crime—medical or scientific experiments ...............67
268.94 War crime—destroying or seizing an adversary’s
property ...........................................................................68
Subdivision H—War crimes that are grave breaches of Protocol I
to the Geneva Conventions 69
268.95 War crime—medical procedure.......................................69
268.96 War crime—removal of blood, tissue or organs for
transplantation .................................................................70
268.97 War crime—attack against works or installations
containing dangerous forces resulting in excessive
loss of life or injury to civilians.......................................70
268.98 War crime—attacking undefended places or
demilitarized zones..........................................................71
268.99 War crime—unjustifiable delay in the repatriation
of prisoners of war or civilians ........................................72
268.100 War crime—apartheid .....................................................72
268.101 War crime—attacking protected objects .........................73
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Subdivision J—Crimes against the administration of the justice of
the International Criminal Court 73
268.102 Perjury.............................................................................73
268.103 Falsifying evidence..........................................................74
268.104 Destroying or concealing evidence..................................74
268.105 Deceiving witnesses ........................................................75
268.106 Corrupting witnesses or interpreters................................75
268.107 Threatening witnesses or interpreters ..............................76
268.108 Preventing witnesses or interpreters ................................76
268.109 Preventing production of things in evidence ...................77
268.110 Reprisals against witnesses..............................................77
268.111 Reprisals against officials of the International
Criminal Court.................................................................78
268.112 Perverting the course of justice .......................................78
268.113 Receipt of a corrupting benefit by an official of the
International Criminal Court ...........................................79
268.114 Subdivision not to apply to certain conduct.....................79
Subdivision K—Miscellaneous 80
268.115 Responsibility of commanders and other superiors .........80
268.116 Defence of superior orders ..............................................81
268.117 Geographical jurisdiction ................................................81
268.118 Double jeopardy ..............................................................81
268.119 Offences related to exercise of jurisdiction of
International Criminal Court ...........................................82
268.120 Saving of other laws ........................................................82
268.121 Bringing proceedings under this Division .......................82
268.122 Attorney-General’s decisions in relation to
consents to be final ..........................................................82
268.123 Legal representation ........................................................83
268.124 Proof of application of Geneva Conventions or
Protocol I to the Geneva Conventions .............................84
268.125 Meaning of civilian .........................................................84
Division 270—Slavery and slavery-like offences 85
Subdivision A—Preliminary 85
270.1A Definitions for Division 270............................................85
Subdivision B—Slavery 87
270.1 Definition of slavery........................................................87
270.2 Slavery is unlawful..........................................................87
270.3 Slavery offences ..............................................................87
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270.3A Slavery offences—geographical jurisdiction...................88
270.3B Prosecutions ....................................................................88
Subdivision C—Slavery-like offences 89
270.4 Definition of servitude.....................................................89
270.5 Servitude offences ...........................................................89
270.6 Definition of forced labour .............................................91
270.6A Forced labour offences ....................................................91
270.7 Deceptive recruiting for labour or services......................92
270.7A Definition of forced marriage .........................................93
270.7B Forced marriage offences ................................................94
270.7C Offence of debt bondage .................................................95
270.8 Slavery-like offences—aggravated offences ...................95
270.9 Slavery-like offences—jurisdictional requirement ..........96
270.10 Slavery-like offences—relevant evidence .......................96
Subdivision D—Offences against Division 270: general 98
270.11 Offences against Division 270—no defence of
victim consent or acquiescence .......................................98
270.12 Offences against Division 270—other laws not
excluded ..........................................................................98
270.13 Offences against Division 270—double jeopardy ...........99
Division 271—Trafficking in persons 100
Subdivision A—Definitions 100
271.1 Definitions.....................................................................100
271.1A Definition of exploitation ..............................................100
Subdivision B—Offences relating to trafficking in persons 101
271.2 Offence of trafficking in persons...................................101
271.3 Trafficking in persons—aggravated offence .................104
271.4 Offence of trafficking in children..................................105
271.5 Offence of domestic trafficking in persons....................106
271.6 Domestic trafficking in persons—aggravated
offence...........................................................................107
271.7 Offence of domestic trafficking in children...................108
Subdivision BA—Organ trafficking 109
271.7A Removal of organs contrary to this Subdivision............109
271.7B Offence of organ trafficking—entry into and exit
from Australia ...............................................................109
271.7C Organ trafficking—aggravated offence .........................110
271.7D Offence of domestic organ trafficking...........................111
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271.7E Domestic organ trafficking—aggravated offence..........111
Subdivision BB—Harbouring a victim 112
271.7F Harbouring a victim.......................................................112
271.7G Harbouring a victim—aggravated offence ....................113
Subdivision D—Offences against Division 271: general 114
271.10 Jurisdictional requirements—offences other than
domestic trafficking in persons or organs......................114
271.11 Jurisdictional requirements—offences of domestic
trafficking in persons or organs .....................................114
271.11A Offences against Division 271—relevant evidence .......115
271.11B Offences against Division 271—no defence of
victim consent or acquiescence .....................................116
271.12 Offences against Division 271—other laws not
excluded ........................................................................116
271.13 Double jeopardy ............................................................117
Division 271A—Overseas travel by certain registered offenders 118
271A.1 Restrictions on overseas travel by certain
registered offenders .......................................................118
Division 272—Child sex offences outside Australia 119
Subdivision A—Preliminary 119
272.1 Definitions.....................................................................119
272.2 When conduct causes a person to engage in sexual
intercourse or other sexual activity................................119
272.3 Meaning of position of trust or authority ......................119
272.4 Meaning of sexual intercourse ......................................120
272.5 Meaning of offence against this Division and
extension of criminal responsibility...............................121
272.6 Who can be prosecuted for an offence committed
outside Australia............................................................122
272.7 Saving of other laws ......................................................122
Subdivision B—Sexual offences against children outside Australia 123
272.8 Sexual intercourse with child outside Australia.............123
272.9 Sexual activity (other than sexual intercourse) with
child outside Australia...................................................124
272.10 Aggravated offence—child with mental
impairment or under care, supervision or authority
of defendant...................................................................125
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272.11 Persistent sexual abuse of child outside Australia .........126
272.12 Sexual intercourse with young person outside
Australia—defendant in position of trust or
authority ........................................................................129
272.13 Sexual activity (other than sexual intercourse) with
young person outside Australia—defendant in
position of trust or authority ..........................................130
272.14 Procuring child to engage in sexual activity
outside Australia............................................................131
272.15 “Grooming” child to engage in sexual activity
outside Australia............................................................132
272.16 Defence based on belief about age ................................133
272.17 Defence based on valid and genuine marriage ..............134
Subdivision C—Offences of benefiting from, encouraging or
preparing for sexual offences against children
outside Australia 135
272.18 Benefiting from offence against this Division ...............135
272.19 Encouraging offence against this Division ....................136
272.20 Preparing for or planning offence against this
Division.........................................................................136
Subdivision E—Other rules about conduct of trials 137
272.27 Evidence relating to a person’s age ...............................137
272.28 Alternative verdicts .......................................................138
272.29 Double jeopardy ............................................................139
272.30 Sentencing.....................................................................139
272.31 Consent to commencement of proceedings where
defendant under 18 ........................................................139
Division 273—Offences involving child pornography material or
child abuse material outside Australia 141
Subdivision A—Preliminary 141
273.1 Definitions.....................................................................141
273.2 Who can be prosecuted for an offence committed
outside Australia............................................................142
273.2A Consent to commencement of proceedings where
defendant under 18 ........................................................142
273.3 Double jeopardy ............................................................142
273.4 Saving of other laws ......................................................142
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Subdivision B—Offences committed overseas involving child
pornography material or child abuse material 143
273.5 Possessing, controlling, producing, distributing or
obtaining child pornography material outside
Australia ........................................................................143
273.6 Possessing, controlling, producing, distributing or
obtaining child abuse material outside Australia ...........143
273.7 Aggravated offence—offence involving conduct
on 3 or more occasions and 2 or more people ...............144
273.8 Alternative verdict if aggravated offence not
proven............................................................................145
Subdivision C—Defences 145
273.9 Defences to offences against this Division ....................145
Division 274—Torture 148
274.1 Definitions.....................................................................148
274.2 Torture...........................................................................148
274.3 Prosecutions ..................................................................149
274.4 No defence of exceptional circumstances or
superior orders...............................................................150
274.5 Jurisdiction of State/Territory courts preserved.............150
274.6 Concurrent operation intended ......................................151
274.7 Double jeopardy ............................................................151
Division 279—Video link evidence 152
279.1 Proceedings to which this Division applies ...................152
279.2 When court may take evidence by video link................152
279.3 Technical requirements for video link...........................152
279.4 Application of laws about witnesses..............................153
279.5 Administration of oaths and affirmations ......................153
279.6 Expenses........................................................................154
279.7 Other laws about foreign evidence not affected ............154
Chapter 9—Dangers to the community 155
Part 9.1—Serious drug offences 155
Division 300—Preliminary 155
300.1 Purpose..........................................................................155
300.2 Definitions.....................................................................155
300.3 Geographical jurisdiction ..............................................158
300.4 Concurrent operation intended ......................................158
300.5 Particular identity of drugs, plants and precursors.........159
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300.6 Recklessness as to nature of substance or plant
sufficient for offence of attempt to commit an
offence against this Part ................................................159
Division 301—Serious drugs and precursors 161
Subdivision A—Serious drugs and precursors: definitions 161
301.1 Meaning of controlled drug...........................................161
301.2 Meaning of controlled plant ..........................................161
301.3 Meaning of controlled precursor ..................................162
301.4 Meaning of border controlled drug ...............................162
301.5 Meaning of border controlled plant ..............................163
301.6 Meaning of border controlled precursor.......................163
301.7 Serious drugs—conditions for listing by regulation ......164
301.8 Serious drug precursors—conditions for listing by
regulation.......................................................................164
301.9 Meaning of drug analogue ............................................164
Subdivision B—Serious drugs and precursors: commercial,
marketable and trafficable quantities 166
301.10 Meaning of commercial quantity...................................166
301.11 Meaning of marketable quantity....................................167
301.12 Meaning of trafficable quantity .....................................168
Subdivision C—Serious drugs and precursors: emergency
determinations 168
301.13 Emergency determinations—serious drugs ...................168
301.14 Emergency determinations—serious drug
precursors ......................................................................169
301.15 Emergency determinations—commercial,
marketable and trafficable quantities.............................170
301.16 Emergency determinations—effectiveness....................170
301.17 Emergency determinations—publication ......................171
Division 302—Trafficking controlled drugs 172
302.1 Meaning of traffics ........................................................172
302.2 Trafficking commercial quantities of controlled
drugs..............................................................................172
302.3 Trafficking marketable quantities of controlled
drugs..............................................................................173
302.4 Trafficking controlled drugs..........................................173
302.5 Presumption where trafficable quantities are
involved.........................................................................173
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302.6 Purchase of controlled drugs is not an ancillary
offence...........................................................................174
Division 303—Commercial cultivation of controlled plants 175
303.1 Meanings of cultivate and cultivates a plant .................175
303.2 Meaning of product of a plant .......................................175
303.3 Meaning of cultivates a plant for a commercial
purpose..........................................................................175
303.4 Cultivating commercial quantities of controlled
plants .............................................................................176
303.5 Cultivating marketable quantities of controlled
plants .............................................................................176
303.6 Cultivating controlled plants .........................................176
303.7 Presumption where trafficable quantities are
involved.........................................................................177
Division 304—Selling controlled plants 178
304.1 Selling commercial quantities of controlled plants........178
304.2 Selling marketable quantities of controlled plants.........178
304.3 Selling controlled plants ................................................178
Division 305—Commercial manufacture of controlled drugs 180
305.1 Meanings of manufacture and manufactures a
substance .......................................................................180
305.2 Meaning of manufactures a substance for a
commercial purpose ......................................................180
305.3 Manufacturing commercial quantities of controlled
drugs..............................................................................180
305.4 Manufacturing marketable quantities of controlled
drugs..............................................................................181
305.5 Manufacturing controlled drugs ....................................181
305.6 Presumption where trafficable quantities are
involved.........................................................................182
Division 306—Pre-trafficking controlled precursors 183
306.1 Meaning of pre-traffics .................................................183
306.2 Pre-trafficking commercial quantities of controlled
precursors ......................................................................183
306.3 Pre-trafficking marketable quantities of controlled
precursors ......................................................................184
306.4 Pre-trafficking controlled precursors.............................184
306.5 Presumption for pre-trafficking controlled
precursors—sale ............................................................185
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306.6 Presumptions for pre-trafficking controlled
precursors—manufacture for drug manufacture ............185
306.7 Presumptions for pre-trafficking controlled
precursors—manufacture for sale..................................186
306.8 Presumptions for pre-trafficking controlled
precursors—possession .................................................187
Division 307—Import-export offences 189
Subdivision A—Importing and exporting border controlled drugs
or border controlled plants 189
307.1 Importing and exporting commercial quantities of
border controlled drugs or border controlled plants ......189
307.2 Importing and exporting marketable quantities of
border controlled drugs or border controlled plants ......189
307.3 Importing and exporting border controlled drugs
or border controlled plants.............................................190
307.4 Importing and exporting border controlled drugs
or border controlled plants—no defence relating to
lack of commercial intent ..............................................190
Subdivision B—Possessing unlawfully imported border controlled
drugs or border controlled plants 191
307.5 Possessing commercial quantities of unlawfully
imported border controlled drugs or border
controlled plants ............................................................191
307.6 Possessing marketable quantities of unlawfully
imported border controlled drugs or border
controlled plants ............................................................191
307.7 Possessing unlawfully imported border controlled
drugs or border controlled plants...................................192
Subdivision C—Possessing border controlled drugs or border
controlled plants reasonably suspected of having
been unlawfully imported 193
307.8 Possessing commercial quantities of border
controlled drugs or border controlled plants
reasonably suspected of having been unlawfully
imported ........................................................................193
307.9 Possessing marketable quantities of border
controlled drugs or border controlled plants
reasonably suspected of having been unlawfully
imported ........................................................................193
307.10 Possessing border controlled drugs or border
controlled plants reasonably suspected of having
been unlawfully imported..............................................194
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Subdivision D—Importing and exporting border controlled
precursors 195
307.11 Importing and exporting commercial quantities of
border controlled precursors..........................................195
307.12 Importing and exporting marketable quantities of
border controlled precursors..........................................195
307.13 Importing and exporting border controlled
precursors ......................................................................195
Division 308—Possession offences 197
308.1 Possessing controlled drugs...........................................197
308.2 Possessing controlled precursors ...................................198
308.3 Possessing plant material, equipment or
instructions for commercial cultivation of
controlled plants ............................................................198
308.4 Possessing substance, equipment or instructions
for commercial manufacture of controlled drugs...........199
Division 309—Drug offences involving children 200
309.1 Children not criminally responsible for offences
against this Division ......................................................200
309.2 Supplying controlled drugs to children..........................200
309.3 Supplying marketable quantities of controlled
drugs to children for trafficking.....................................200
309.4 Supplying controlled drugs to children for
trafficking......................................................................201
309.5 Presumption where trafficable quantities are
involved.........................................................................201
309.6 Meaning of procures an individual to traffic.................201
309.7 Procuring children for trafficking marketable
quantities of controlled drugs ........................................202
309.8 Procuring children for trafficking controlled drugs .......202
309.9 Meaning of procures an individual to pre-traffic ..........203
309.10 Procuring children for pre-trafficking marketable
quantities of controlled precursors ................................203
309.11 Procuring children for pre-trafficking controlled
precursors ......................................................................203
309.12 Procuring children for importing or exporting
marketable quantities of border controlled drugs or
border controlled plants.................................................204
309.13 Procuring children for importing or exporting
border controlled drugs or border controlled plants ......205
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309.14 Procuring children for importing or exporting
marketable quantities of border controlled
precursors ......................................................................205
309.15 Procuring children for importing or exporting
border controlled precursors..........................................206
Division 310—Harm and danger to children under 14 from
serious drug offences 208
310.1 Children not criminally responsible for offences
against this Division ......................................................208
310.2 Danger from exposure to unlawful manufacturing ........208
310.3 Harm from exposure to unlawful manufacturing...........209
310.4 Aggravated offences—manufacturing controlled
drugs and controlled precursors.....................................210
Division 311—Combining quantities of drugs, plants or
precursors 212
Subdivision A—Combining different parcels on the same occasion 212
311.1 Combining different parcels on the same occasion .......212
Subdivision B—Combining parcels from organised commercial
activities 213
311.2 Business of trafficking controlled drugs........................213
311.3 Business of pre-trafficking by selling controlled
precursors ......................................................................214
311.4 Business of importing or exporting border
controlled drugs or border controlled plants..................215
311.5 Business of importing or exporting border
controlled precursors .....................................................215
311.6 Business of supplying controlled drugs to children .......216
311.7 General rules—combining parcels from organised
commercial activities.....................................................217
Subdivision C—Combining parcels from multiple offences 218
311.8 Multiple offences—trafficking controlled drugs ...........218
311.9 Multiple offences—cultivating controlled plants ..........218
311.10 Multiple offences—selling controlled plants.................219
311.11 Multiple offences—manufacturing controlled
drugs..............................................................................219
311.12 Multiple offences—pre-trafficking controlled
precursors ......................................................................219
311.13 Multiple offences—importing or exporting border
controlled drugs or border controlled plants..................220
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311.14 Multiple offences—possessing unlawfully
imported border controlled drugs or border
controlled plants ............................................................220
311.15 Multiple offences—possessing border controlled
drugs or border controlled plants reasonably
suspected of having been unlawfully imported .............221
311.16 Multiple offences—importing or exporting border
controlled precursors .....................................................221
311.17 Multiple offences—supplying controlled drugs to
children for trafficking ..................................................222
311.18 Multiple offences—procuring children for
trafficking controlled drugs ...........................................222
311.19 Multiple offences—procuring children for
pre-trafficking controlled precursors .............................223
311.20 Multiple offences—procuring children for
importing or exporting border controlled drugs or
border controlled plants.................................................223
311.21 Multiple offences—procuring children for
importing or exporting border controlled
precursors ......................................................................224
311.22 General rules—combining parcels from multiple
offences .........................................................................225
Division 312—Working out quantities of drugs, plants or
precursors 226
312.1 Working out quantities of drugs and precursors in
mixtures.........................................................................226
312.2 Working out quantities where different kinds of
drugs, plants or precursors are involved ........................227
Division 313—Defences and alternative verdicts 230
313.1 Defence—conduct justified or excused by or under
a law of a State or Territory...........................................230
313.2 Defence—reasonable belief that conduct is
justified or excused by or under a law ...........................230
313.3 Alternative verdict—offence not proved .......................230
313.4 Alternative verdict—mistake as to quantity of
drug, plant or precursor .................................................231
313.5 Alternative verdict—mistake as to identity of drug,
plant or precursor ..........................................................232
Part 9.2—Psychoactive substances 233
Division 320—Psychoactive substances 233
320.1 Definitions.....................................................................233
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320.2 Importing psychoactive substances ...............................234
320.3 Importing substances represented to be serious
drug alternatives ............................................................236
Part 9.4—Dangerous weapons 239
Division 360—Cross-border firearms trafficking 239
360.1 Disposal and acquisition of a firearm or firearm
part ................................................................................239
360.2 Cross-border offence of disposal or acquisition of
a firearm or firearm part ................................................239
360.3 Taking or sending a firearm or firearm part across
borders...........................................................................240
360.4 Concurrent operation intended ......................................241
Division 361—International firearms trafficking 243
361.1 Definitions.....................................................................243
361.2 Trafficking prohibited firearms or firearm parts
into Australia .................................................................244
361.3 Trafficking prohibited firearms or firearm parts
out of Australia..............................................................245
361.4 Defence—reasonable belief that conduct is
justified or excused by or under a law ...........................246
361.6 Double jeopardy ............................................................246
Part 9.5—Identity crime 247
Division 370—Preliminary 247
370.1 Definitions.....................................................................247
370.2 Definition of foreign indictable offence ........................248
370.3 Concurrent operation intended ......................................248
Division 372—Identity fraud offences 249
372.1 Dealing in identification information ............................249
372.1A Dealing in identification information that involves
use of a carriage service ................................................250
372.2 Possession of identification information .......................252
372.3 Possession of equipment used to make
identification documentation .........................................252
372.4 Extended geographical jurisdiction—category A..........253
372.5 Alternative verdict.........................................................253
372.6 Attempt..........................................................................253
Division 375—Victims’ certificates 254
375.1 Certificate may be issued by magistrate in relation
to victim of identity crime .............................................254
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375.2 Content of certificate .....................................................255
375.3 Relation to civil and criminal proceedings ....................255
375.4 Power conferred on magistrate personally.....................255
Division 376—False identity and air travel 256
376.1 Definitions for Division 376..........................................256
376.2 False identification information—at constitutional
airports ..........................................................................256
376.3 False identification information—air passenger
tickets obtained using a carriage service........................257
376.4 False identification information—air passenger
tickets for constitutional flights .....................................258
376.5 False identification information—extended
jurisdiction (Category D)...............................................259
Part 9.6—Contamination of goods 260
380.1 Definitions.....................................................................260
380.2 Contaminating goods.....................................................260
380.3 Threatening to contaminate goods.................................264
380.4 Making false statements about contamination of
goods .............................................................................267
380.5 Extended geographical jurisdiction—category D..........271
Part 9.9—Criminal associations and organisations 272
Division 390—Criminal associations and organisations 272
Subdivision A—Definitions 272
390.1 Definitions.....................................................................272
390.2 State offences that have a federal aspect .......................274
Subdivision B—Offences 277
390.3 Associating in support of serious organised
criminal activity.............................................................277
390.4 Supporting a criminal organisation................................279
390.5 Committing an offence for the benefit of, or at the
direction of, a criminal organisation..............................280
390.6 Directing activities of a criminal organisation...............282
390.7 Extended geographical jurisdiction—category C ..........284
Chapter 10—National infrastructure 285
Part 10.2—Money laundering 285
Division 400—Money laundering 285
400.1 Definitions.....................................................................285
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400.2 Definition of deals with money or other property .........287
400.2A Application of offences relating to possible
instruments of crime......................................................287
400.3 Dealing in proceeds of crime etc.—money or
property worth $1,000,000 or more...............................288
400.4 Dealing in proceeds of crime etc.—money or
property worth $100,000 or more..................................290
400.5 Dealing in proceeds of crime etc.—money or
property worth $50,000 or more....................................291
400.6 Dealing in proceeds of crime etc.—money or
property worth $10,000 or more....................................292
400.7 Dealing in proceeds of crime etc.—money or
property worth $1,000 or more......................................294
400.8 Dealing in proceeds of crime etc.—money or
property of any value.....................................................295
400.9 Dealing with property reasonably suspected of
being proceeds of crime etc. ..........................................296
400.10 Mistake of fact as to the value of money or
property .........................................................................298
400.11 Proof of certain matters relating to kinds of
offences not required .....................................................299
400.12 Combining several contraventions in a single
charge ............................................................................300
400.13 Proof of other offences is not required ..........................300
400.14 Alternative verdicts .......................................................300
400.15 Geographical jurisdiction ..............................................301
400.16 Saving of other laws ......................................................304
Part 10.5—Postal services 305
Division 470—Preliminary 305
470.1 Definitions.....................................................................305
470.2 Dishonesty.....................................................................307
470.3 Determination of dishonesty to be a matter for the
trier of fact.....................................................................307
470.4 Meaning of expressions used in Subdivisions B
and C of Division 471 ...................................................307
Division 471—Postal offences 309
Subdivision A—General postal offences 309
471.1 Theft of mail-receptacles, articles or postal
messages........................................................................309
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471.2 Receiving stolen mail-receptacles, articles or
postal messages .............................................................310
471.3 Taking or concealing of mail-receptacles, articles
or postal messages .........................................................312
471.4 Dishonest removal of postage stamps or postmarks ......312
471.5 Dishonest use of previously used, defaced or
obliterated stamps..........................................................312
471.6 Damaging or destroying mail-receptacles, articles
or postal messages .........................................................313
471.7 Tampering with mail-receptacles ..................................314
471.8 Dishonestly obtaining delivery of articles .....................314
471.9 Geographical jurisdiction ..............................................314
471.10 Hoaxes—explosives and dangerous substances ............314
471.11 Using a postal or similar service to make a threat .........315
471.12 Using a postal or similar service to menace, harass
or cause offence.............................................................316
471.13 Causing a dangerous article to be carried by a
postal or similar service.................................................316
471.14 Geographical jurisdiction ..............................................317
471.15 Causing an explosive, or a dangerous or harmful
substance, to be carried by post .....................................317
Subdivision B—Offences relating to use of postal or similar
service for child pornography material or child
abuse material 318
471.16 Using a postal or similar service for child
pornography material ....................................................318
471.17 Possessing, controlling, producing, supplying or
obtaining child pornography material for use
through a postal or similar service.................................319
471.18 Defences in respect of child pornography material .......319
471.19 Using a postal or similar service for child abuse
material..........................................................................320
471.20 Possessing, controlling, producing, supplying or
obtaining child abuse material for use through a
postal or similar service.................................................321
471.21 Defences in respect of child abuse material...................321
471.22 Aggravated offence—offence involving conduct
on 3 or more occasions and 2 or more people ...............322
471.23 Alternative verdict if aggravated offence not
proven............................................................................324
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Subdivision C—Offences relating to use of postal or similar
service involving sexual activity with person under
16 324
471.24 Using a postal or similar service to procure
persons under 16............................................................324
471.25 Using a postal or similar service to “groom”
persons under 16............................................................325
471.26 Using a postal or similar service to send indecent
material to person under 16 ...........................................326
471.27 Age-related provisions relating to offences against
this Subdivision.............................................................327
471.28 Other provisions relating to offences against this
Subdivision....................................................................328
471.29 Defences to offences against this Subdivision...............329
Subdivision D—Miscellaneous 330
471.30 Geographical jurisdiction ..............................................330
471.31 Definition of carry by post does not apply ....................330
Division 472—Miscellaneous 331
472.1 Saving of other laws ......................................................331
472.2 Interpretation of other laws ...........................................331
Part 10.6—Telecommunications Services 332
Division 473—Preliminary 332
473.1 Definitions.....................................................................332
473.2 Possession or control of data or material in the
form of data ...................................................................341
473.3 Producing, supplying or obtaining data or material
in the form of data .........................................................341
473.4 Determining whether material is offensive....................341
473.5 Use of a carriage service................................................342
Division 474—Telecommunications offences 343
Subdivision A—Dishonesty with respect to carriage services 343
474.1 Dishonesty.....................................................................343
474.2 General dishonesty with respect to a carriage
service provider .............................................................343
Subdivision B—Interference with telecommunications 344
474.3 Person acting for a carrier or carriage service
provider .........................................................................344
474.4 Interception devices.......................................................344
474.5 Wrongful delivery of communications..........................345
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474.6 Interference with facilities .............................................346
474.7 Modification etc. of a telecommunications device
identifier ........................................................................347
474.8 Possession or control of data or a device with
intent to modify a telecommunications device
identifier ........................................................................348
474.9 Producing, supplying or obtaining data or a device
with intent to modify a telecommunications device
identifier ........................................................................349
474.10 Copying subscription-specific secure data ....................351
474.11 Possession or control of data or a device with
intent to copy an account identifier ...............................352
474.12 Producing, supplying or obtaining data or a device
with intent to copy an account identifier .......................354
Subdivision C—General offences relating to use of
telecommunications 355
474.14 Using a telecommunications network with
intention to commit a serious offence............................355
474.15 Using a carriage service to make a threat ......................356
474.16 Using a carriage service for a hoax threat......................357
474.17 Using a carriage service to menace, harass or
cause offence .................................................................357
474.17A Aggravated offences involving private sexual
material—using a carriage service to menace,
harass or cause offence..................................................358
474.17B Alternative verdict if aggravated offence not
proven............................................................................360
474.18 Improper use of emergency call service ........................361
Subdivision D—Offences relating to use of carriage service for
child pornography material or child abuse
material 362
474.19 Using a carriage service for child pornography
material..........................................................................362
474.20 Possessing, controlling, producing, supplying or
obtaining child pornography material for use
through a carriage service..............................................362
474.21 Defences in respect of child pornography material .......363
474.22 Using a carriage service for child abuse material ..........365
474.23 Possessing, controlling, producing, supplying or
obtaining child abuse material for use through a
carriage service..............................................................365
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474.24 Defences in respect of child abuse material...................366
474.24A Aggravated offence—offence involving conduct
on 3 or more occasions and 2 or more people ...............368
474.24B Alternative verdict if aggravated offence not
proven............................................................................369
474.24C Consent to commencement of proceedings where
defendant under 18 ........................................................369
Subdivision E—Offence relating to obligations of internet service
providers and internet content hosts 370
474.25 Obligations of internet service providers and
internet content hosts.....................................................370
Subdivision F—Offences relating to use of carriage service
involving sexual activity with, or causing harm to,
person under 16 370
474.25A Using a carriage service for sexual activity with
person under 16 years of age .........................................370
474.25B Aggravated offence—child with mental
impairment or under care, supervision or authority
of defendant...................................................................371
474.25C Using a carriage service to prepare or plan to cause
harm to, engage in sexual activity with, or procure
for sexual activity, persons under 16 .............................372
474.26 Using a carriage service to procure persons under
16 years of age...............................................................373
474.27 Using a carriage service to “groom” persons under
16 years of age...............................................................374
474.27A Using a carriage service to transmit indecent
communication to person under 16 years of age ...........375
474.28 Provisions relating to offences against this
Subdivision....................................................................376
474.29 Defences to offences against this Subdivision...............378
Subdivision G—Offences relating to use of carriage service for
suicide related material 380
474.29A Using a carriage service for suicide related
material..........................................................................380
474.29B Possessing, controlling, producing, supplying or
obtaining suicide related material for use through a
carriage service..............................................................382
Subdivision H—Offences relating to use of carriage service for
sharing of abhorrent violent material 383
474.30 Definitions.....................................................................383
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474.31 Abhorrent violent material ............................................383
474.32 Abhorrent violent conduct.............................................384
474.33 Notification obligations of internet service
providers, content service providers and hosting
service providers ...........................................................386
474.34 Removing, or ceasing to host, abhorrent violent
material..........................................................................387
474.35 Notice issued by eSafety Commissioner in relation
to a content service—presumptions...............................389
474.36 Notice issued by eSafety Commissioner in relation
to a hosting service—presumptions...............................391
474.37 Defences in respect of abhorrent violent material .........392
474.38 Implied freedom of political communication ................396
474.39 Provider of content service............................................397
474.40 Service of copies of notices by electronic means ..........397
474.41 Giving a copy of a notice to a contact person etc. .........397
474.42 Attorney-General’s consent required for
prosecution ....................................................................398
474.43 Compensation for acquisition of property .....................399
474.44 This Subdivision does not limit Schedule 5 or 7 to
the Broadcasting Services Act 1992 ..............................399
474.45 Review of this Subdivision............................................399
Division 475—Miscellaneous 401
475.1A Defences for NRS employees and emergency call
persons ..........................................................................401
475.1B Provisions relating to element of offence that
particular conduct was engaged in using a carriage
service ...........................................................................401
475.1 Saving of other laws ......................................................402
475.2 Geographical jurisdiction ..............................................402
Part 10.7—Computer offences 403
Division 476—Preliminary 403
476.1 Definitions.....................................................................403
476.2 Meaning of unauthorised access, modification or
impairment ....................................................................404
476.3 Geographical jurisdiction ..............................................405
476.4 Saving of other laws ......................................................405
476.5 Liability for certain acts ................................................405
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Division 477—Serious computer offences 408
477.1 Unauthorised access, modification or impairment
with intent to commit a serious offence.........................408
477.2 Unauthorised modification of data to cause
impairment ....................................................................409
477.3 Unauthorised impairment of electronic
communication ..............................................................409
Division 478—Other computer offences 411
478.1 Unauthorised access to, or modification of,
restricted data ................................................................411
478.2 Unauthorised impairment of data held on a
computer disk etc. .........................................................411
478.3 Possession or control of data with intent to commit
a computer offence ........................................................411
478.4 Producing, supplying or obtaining data with intent
to commit a computer offence .......................................412
Part 10.8—Financial information offences 414
480.1 Definitions.....................................................................414
480.2 Dishonesty.....................................................................415
480.3 Constitutional application of this Part ...........................415
480.4 Dishonestly obtaining or dealing in personal
financial information .....................................................415
480.5 Possession or control of thing with intent to
dishonestly obtain or deal in personal financial
information....................................................................415
480.6 Importation of thing with intent to dishonestly
obtain or deal in personal financial information ............416
Part 10.9—Accounting records 417
Division 490—False dealing with accounting documents 417
490.1 Intentional false dealing with accounting
documents .....................................................................417
490.2 Reckless false dealing with accounting documents .......419
490.3 Meaning of annual turnover..........................................420
490.4 Related bodies corporate ...............................................421
490.5 Proof of certain matters unnecessary.............................421
490.6 Consent to commencement of proceedings ...................421
490.7 Saving of other laws ......................................................422
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Dictionary 423
Endnotes 439
Endnote 1—About the endnotes 439
Endnote 2—Abbreviation key 441
Endnote 3—Legislation history 442
Endnote 4—Amendment history 460
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The Criminal Code Schedule
Offences against humanity and related offences Chapter 8
Genocide, crimes against humanity, war crimes and crimes against the administration of
the justice of the International Criminal Court Division 268
Section 268.1
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Schedule—The Criminal Code
Chapter 8—Offences against humanity and related
offences
Division 268—Genocide, crimes against humanity, war crimes
and crimes against the administration of the justice
of the International Criminal Court
Subdivision A—Introductory
268.1 Purpose of Division
(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 2002 does 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.
268.2 Outline of offences
(1) Subdivision B creates offences each of which is called genocide.
(2) Subdivision C creates offences each of which is called a crime
against humanity.
(3) Subdivisions D, E, F, G and H create offences each of which is
called a war crime.
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(4) Subdivision J creates offences each of which is called a crime
against the administration of the justice of the International
Criminal Court.
Subdivision B—Genocide
268.3 Genocide by killing
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 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.
268.4 Genocide by causing serious bodily or mental harm
(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.
268.5 Genocide by deliberately inflicting conditions of life calculated
to bring about physical destruction
(1) A person (the perpetrator) commits an offence if:
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Section 268.6
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(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.
268.6 Genocide by imposing measures intended to prevent births
A person (the perpetrator) commits an offence if:
(a) the perpetrator imposes certain measures 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 measures imposed are intended to prevent births within
that group.
Penalty: Imprisonment for life.
268.7 Genocide by forcibly transferring children
(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
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(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.
Subdivision C—Crimes against humanity
268.8 Crime against humanity—murder
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.
Penalty: Imprisonment for life.
268.9 Crime against humanity—extermination
(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
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the justice of the International Criminal Court Division 268
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(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.
268.10 Crime against humanity—enslavement
(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.
268.11 Crime against humanity—deportation or forcible transfer of
population
(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
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administration of the justice of the International Criminal Court
Section 268.12
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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.
268.12 Crime against humanity—imprisonment or other severe
deprivation of physical liberty
(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.
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the justice of the International Criminal Court Division 268
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Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.13 Crime against humanity—torture
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.
Penalty: Imprisonment for 25 years.
268.14 Crime against humanity—rape
(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
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(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.
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(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.
268.15 Crime against humanity—sexual slavery
(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.
268.16 Crime against humanity—enforced prostitution
(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
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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
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to whether or not the person or persons are consenting to engaging
in the act or acts of a sexual nature.
268.17 Crime against humanity—forced pregnancy
(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.
268.18 Crime against humanity—enforced sterilisation
(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.
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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.
268.19 Crime against humanity—sexual violence
(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;
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(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.
268.20 Crime against humanity—persecution
(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
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(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
(b) paragraphs (1)(b) and (d).
268.21 Crime against humanity—enforced disappearance of persons
(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
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(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.
Penalty: Imprisonment for 17 years.
268.22 Crime against humanity—apartheid
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
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(e) 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.
268.23 Crime against humanity—other inhumane act
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.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are grave breaches of the
Geneva Conventions and of Protocol I to the Geneva
Conventions
268.24 War crime—wilful killing
(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 protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for life.
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(2) Strict liability applies to paragraph (1)(b).
268.25 War crime—torture
(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 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 25 years.
(2) Strict liability applies to paragraph (1)(c).
268.26 War crime—inhumane treatment
(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 protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
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(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) Strict liability applies to paragraph (1)(b).
268.27 War crime—biological experiments
(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.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(d).
268.28 War crime—wilfully causing great suffering
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great physical or mental pain or
suffering to, or serious injury to body or health of, one or
more persons; and
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(b) the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; 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) Strict liability applies to paragraph (1)(b).
268.29 War crime—destruction and appropriation of property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or appropriates property; and
(b) the destruction or appropriation is not justified by military
necessity; and
(c) the destruction or appropriation is extensive and carried out
unlawfully and wantonly; and
(d) the property is 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 property is so protected;
and
(f) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(d).
268.30 War crime—compelling service in hostile forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator coerces one or more persons, by act or threat:
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(i) to take part in military operations against that person’s
or those persons’ own country or forces; or
(ii) otherwise to serve in the forces of an adverse power;
and
(b) the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
(d) 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 paragraph (1)(b).
268.31 War crime—denying a fair trial
(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:
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(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
(b) paragraphs (1)(b) and (c).
268.32 War crime—unlawful deportation or transfer
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully deports or transfers one or more
persons to another country or to another location; and
(b) the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.33 War crime—unlawful confinement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines or continues to confine
one or more persons to a certain location; and
(b) the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so
protected; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
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(2) Strict liability applies to paragraph (1)(b).
268.34 War crime—taking hostages
(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.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(d).
Subdivision E—Other serious war crimes that are committed in
the course of an international armed conflict
268.35 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or
individual civilians not taking direct part in hostilities; and
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(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.36 War crime—attacking civilian objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is not a military objective; and
(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.37 War crime—attacking personnel or objects involved in a
humanitarian assistance or peacekeeping mission
(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
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(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).
268.38 War crime—excessive incidental death, injury or damage
(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.
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Section 268.39
Criminal Code Act 1995 25
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268.39 War crime—attacking undefended places
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks or bombards one or more towns,
villages, dwellings or buildings; and
(b) the towns, villages, dwellings or buildings are open for
unresisted occupation; and
(c) the towns, villages, dwellings or buildings do not constitute
military objectives; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.40 War crime—killing or injuring a person who is hors de
combat
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator kills one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are
hors de combat; 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 injures one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are
hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.41
26 Criminal Code Act 1995
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Penalty for a contravention of this subsection: Imprisonment for 25
years.
268.41 War crime—improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to
negotiate when there is no such intention on the part of the
perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal
nature of such use of the flag; 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.
Penalty: Imprisonment for life.
268.42 War crime—improper use of a flag, insignia or uniform of
the adverse party
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.
Penalty: Imprisonment for life.
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the justice of the International Criminal Court Division 268
Section 268.43
Criminal Code Act 1995 27
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268.43 War crime—improper use of a flag, insignia or uniform of
the United Nations
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the United
Nations; and
(b) the perpetrator uses the flag, insignia or uniform without the
authority of the United Nations; 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.
Penalty: Imprisonment for life.
268.44 War crime—improper use of the distinctive emblems of the
Geneva Conventions
(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.
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.45
28 Criminal Code Act 1995
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(2) Strict liability applies to paragraph (1)(b).
(3) In this section:
emblem means any emblem, identity card, sign, signal, insignia or
uniform.
268.45 War crime—transfer of population
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.
Penalty: Imprisonment for 17 years.
268.46 War crime—attacking protected objects
(1) 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 military objectives:
(i) buildings dedicated to religion, education, art, science or
charitable purposes;
(ii) historic monuments;
(iii) hospitals or places where the sick and wounded are
collected; and
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Section 268.47
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(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(2) The definitions of charitable purpose in subsection 12(1) of the
Charities Act 2013 and section 2B of the Acts Interpretation Act
1901 do not apply to this section.
268.47 War crime—mutilation
(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
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.48
30 Criminal Code Act 1995
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(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.
268.48 War crime—medical or scientific experiments
(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.
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the justice of the International Criminal Court Division 268
Section 268.49
Criminal Code Act 1995 31
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Penalty for a contravention of this subsection: Imprisonment for 25
years.
268.49 War crime—treacherously killing or injuring
(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.
268.50 War crime—denying quarter
A person (the perpetrator) commits an offence if:
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Section 268.51
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(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.
Penalty: Imprisonment for life.
268.51 War crime—destroying or seizing the enemy’s property
(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.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).
268.52 War crime—depriving nationals of the adverse power of
rights or actions
A person (the perpetrator) commits an offence if:
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Section 268.53
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(a) the perpetrator effects the abolition, suspension or
termination of admissibility in a court of law of certain rights
or actions; and
(b) the abolition, suspension or termination is directed at the
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.
268.53 War crime—compelling participation in military operations
(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.
268.54 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property
and to appropriate it for private or personal use; and
(c) the appropriation is without the consent of the owner; and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.55
34 Criminal Code Act 1995
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268.55 War crime—employing poison or poisoned weapons
A person (the perpetrator) commits an offence if:
(a) the perpetrator employs a substance or employs a weapon
that releases a substance as a result of its employment; and
(b) the substance is such that it causes death or serious damage
to health in the ordinary course of events through its toxic
properties; 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.
268.56 War crime—employing prohibited gases, liquids, materials
or devices
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.
Penalty: Imprisonment for 25 years.
268.57 War crime—employing prohibited bullets
(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
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Section 268.58
Criminal Code Act 1995 35
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(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) Strict liability applies to paragraph (1)(b).
268.58 War crime—outrages upon personal dignity
(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; and
(b) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise
violates the dignity of the body or bodies of one or more dead
persons; and
(b) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.59 War crime—rape
(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:
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.59
36 Criminal Code Act 1995
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(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).
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the justice of the International Criminal Court Division 268
Section 268.60
Criminal Code Act 1995 37
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(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.
268.60 War crime—sexual slavery
(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.
268.61 War crime—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
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Section 268.61
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(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
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Section 268.62
Criminal Code Act 1995 39
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to whether or not the person is consenting to the act or acts of a
sexual nature.
268.62 War crime—forced pregnancy
(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.
268.63 War crime—enforced sterilisation
(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.
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Division 268 Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court
Section 268.64
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(2) In subsection (1):
consent does not include consent effected by deception or by
natural, induced or age-related incapacity.
268.64 War crime—sexual violence
(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);
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(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.
268.65 War crime—using protected persons as shields
(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.
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268.66 War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions
(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).
268.67 War crime—starvation as a method of warfare
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses as a method of warfare:
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(i) any intentional deprivation of civilians of objects
indispensable to their survival; or
(ii) without limiting subparagraph (i)—the wilful impeding
of relief supplies for civilians; and
(b) if subparagraph (a)(ii) applies—the relief supplies are
provided for under the Geneva Conventions; 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) Strict liability applies to paragraph (1)(b).
268.68 War crime—using, conscripting or enlisting children
National armed forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate
actively in hostilities as members of the national armed
forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the
national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national
armed forces; and
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(b) the person or persons are under the age of 15 years; 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.
Other armed forces and groups
(4) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate
actively in hostilities other than as members of the national
armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed
force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed
force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; and
(c) 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 10
years.
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Subdivision F—War crimes that are serious violations of article
3 common to the Geneva Conventions and are
committed in the course of an armed conflict that is
not an international armed conflict
268.69 Definition of religious personnel
In this Subdivision:
religious personnel includes non-confessional, non-combatant
military personnel carrying out a similar function to religious
personnel.
268.70 War crime—murder
(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
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(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.
268.71 War crime—mutilation
(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.
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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:
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(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.
268.72 War crime—cruel treatment
(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
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(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.
268.73 War crime—torture
(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
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(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.
268.74 War crime—outrages upon personal dignity
(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.
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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
(c) are dead.
268.75 War crime—taking hostages
(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
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(b) civilians, medical personnel or religious personnel who are
not taking an active part in the hostilities.
268.76 War crime—sentencing or execution without due process
(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
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(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.
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Subdivision G—War crimes that are other serious violations of
the laws and customs applicable in an armed conflict
that is not an international armed conflict
268.77 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or
individual civilians not taking direct part in hostilities; 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 life.
268.78 War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions
(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
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(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).
268.79 War crime—attacking personnel or objects involved in a
humanitarian assistance or peacekeeping mission
(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
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(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).
268.80 War crime—attacking protected objects
(1) 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 military objectives:
(i) buildings dedicated to religion, education, art, science or
charitable purposes;
(ii) historic monuments;
(iii) hospitals or places where the sick and wounded are
collected; 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 20 years.
(2) The definitions of charitable purpose in subsection 12(1) of the
Charities Act 2013 and section 2B of the Acts Interpretation Act
1901 do not apply to this section.
268.81 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property
and to appropriate it for private or personal use; and
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(c) the appropriation is without the consent of the owner; 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.
268.82 War crime—rape
(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;
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(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.
268.83 War crime—sexual slavery
(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
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(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.
268.84 War crime—enforced prostitution
(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):
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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.
268.85 War crime—forced pregnancy
(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
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(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.
268.86 War crime—enforced sterilisation
(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.
268.87 War crime—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
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(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
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(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.
268.88 War crime—using, conscripting or enlisting children
National armed forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate
actively in hostilities as members of the national armed
forces; and
(b) the person or persons are under the age of 15 years; 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) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into the
national armed forces; and
(b) the person or persons are under the age of 15 years; 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 15 years.
(3) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into the national
armed forces; and
(b) the person or persons are under the age of 15 years; and
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(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 10 years.
Other armed forces and groups
(4) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses one or more persons to participate
actively in hostilities other than as members of the national
armed forces; and
(b) the person or persons are under the age of 18 years; 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 17 years.
(5) A person (the perpetrator) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed
force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; 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 15 years.
(6) A person (the perpetrator) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed
force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; 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 for a contravention of this subsection: Imprisonment for 10
years.
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268.89 War crime—displacing civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator orders a displacement of a civilian population;
and
(b) the order is not justified by the security of the civilians
involved or by imperative military necessity; 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 17 years.
268.90 War crime—treacherously killing or injuring
(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
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(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.
268.91 War crime—denying quarter
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.
Penalty: Imprisonment for life.
268.92 War crime—mutilation
(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
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(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.
268.93 War crime—medical or scientific experiments
(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
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(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.
268.94 War crime—destroying or seizing an adversary’s property
(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 adversary; and
(c) the property is protected from the destruction or seizure
under article 14 of Protocol II 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
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(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 armed conflict that is not an international
armed conflict.
Penalty: Imprisonment for 15 years
(2) Strict liability applies to paragraph (1)(c).
Subdivision H—War crimes that are grave breaches of
Protocol I to the Geneva Conventions
268.95 War crime—medical procedure
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.
Penalty: Imprisonment for 25 years.
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Section 268.96
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268.96 War crime—removal of blood, tissue or organs for
transplantation
(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.
268.97 War crime—attack against works or installations containing
dangerous forces resulting in excessive loss of life or
injury to civilians
A person (the perpetrator) commits an offence if:
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(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.
Penalty: Imprisonment for life.
268.98 War crime—attacking undefended places or demilitarized
zones
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more towns, villages,
dwellings, buildings or demilitarized zones; and
(b) the towns, villages, dwellings or buildings are open for
unresisted occupation; and
(c) the attack results in death or serious injury to body or health;
and
(d) the perpetrator’s conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for life.
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Section 268.99
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268.99 War crime—unjustifiable delay in the repatriation of
prisoners of war or civilians
(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.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(c).
268.100 War crime—apartheid
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.
Penalty: Imprisonment for 17 years.
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Section 268.101
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268.101 War crime—attacking protected objects
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.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes against the administration of the justice
of the International Criminal Court
268.102 Perjury
(1) A person commits the offence of perjury if:
(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
(b) the interpretation is false or misleading.
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Section 268.103
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Penalty: Imprisonment for 10 years.
268.103 Falsifying evidence
(1) A person commits an offence if the person makes false 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) A person commits an offence if the person:
(a) uses evidence that is false evidence and that the person
believes is false evidence; and
(b) is reckless as to whether or not the use of the evidence could:
(i) influence a decision on the institution of a proceeding
before the International Criminal Court; or
(ii) influence the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, making evidence includes altering
evidence, but does not include perjury.
268.104 Destroying or concealing evidence
(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.
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Section 268.105
Criminal Code Act 1995 75
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268.105 Deceiving witnesses
A person commits an offence if the person deceives another person
with the intention that the other person or a third person will:
(a) give false evidence in a proceeding before the International
Criminal Court; or
(b) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
268.106 Corrupting witnesses or interpreters
(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
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(b) give a false or misleading interpretation as an interpreter at
such a proceeding.
Penalty: Imprisonment for 5 years.
268.107 Threatening witnesses or interpreters
(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.
Penalty: Imprisonment for 7 years.
268.108 Preventing witnesses or interpreters
(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.
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Section 268.109
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268.109 Preventing production of things in evidence
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.
Penalty: Imprisonment for 5 years.
268.110 Reprisals against witnesses
(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
(b) an interpreter.
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administration of the justice of the International Criminal Court
Section 268.111
78 Criminal Code Act 1995
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268.111 Reprisals against officials of the International Criminal
Court
(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.
Penalty: Imprisonment for 5 years.
268.112 Perverting the course of justice
(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.
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Section 268.113
Criminal Code Act 1995 79
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268.113 Receipt of a corrupting benefit by an official of the
International Criminal Court
(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.
268.114 Subdivision not to apply to certain conduct
(1) This Subdivision does not apply to a person in respect of:
(a) conduct that results in a failure or refusal to issue a certificate
under section 22 or 29 of the International Criminal Court
Act 2002; or
(b) a failure or refusal to issue such a certificate; or
(c) conduct engaged in reliance on the absence of such a
certificate.
(2) In this section:
conduct includes any one or more acts or omissions.
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Section 268.115
80 Criminal Code Act 1995
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Subdivision K—Miscellaneous
268.115 Responsibility of commanders and other superiors
(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.
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Section 268.116
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268.116 Defence of superior orders
(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).
268.117 Geographical jurisdiction
(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.
268.118 Double jeopardy
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.
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Section 268.119
82 Criminal Code Act 1995
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268.119 Offences related to exercise of jurisdiction of International
Criminal Court
(1) A person must not:
(a) intentionally contravene an order that the International
Criminal Court makes while sitting in Australia; or
(b) otherwise intentionally hinder the International Criminal
Court in performing its functions while sitting in Australia.
Penalty: Imprisonment for 2 years.
(2) In this section:
Australia includes all the external Territories.
268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of
the Commonwealth or any law of a State or Territory.
268.121 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be
commenced without the Attorney-General’s written consent.
(2) 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.
268.122 Attorney-General’s decisions in relation to consents to be
final
(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
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(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.
268.123 Legal representation
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.
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Section 268.124
84 Criminal Code Act 1995
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268.124 Proof of application of Geneva Conventions or Protocol I to
the Geneva Conventions
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.
268.125 Meaning of civilian
In this Division, the expression civilian does not include a person
who is a member of an organised armed group.
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Slavery and slavery-like offences Division 270
Section 270.1A
Criminal Code Act 1995 85
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Division 270—Slavery and slavery-like offences
Subdivision A—Preliminary
270.1A Definitions for Division 270
In this Division:
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;
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(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).
Note: Deception has a corresponding meaning (see section 18A of the Acts
Interpretation Act 1901).
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).
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Section 270.1
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Subdivision B—Slavery
270.1 Definition of slavery
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.
270.2 Slavery is unlawful
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.
270.3 Slavery offences
(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
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Section 270.3A
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(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).
270.3A Slavery offences—geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against section 270.3.
270.3B Prosecutions
(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
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(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.
Subdivision C—Slavery-like offences
270.4 Definition of servitude
(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.
270.5 Servitude offences
Causing a person to enter into or remain in servitude
(1) A person commits an offence if:
(a) the person engages in conduct; and
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(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
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defendant has been afforded procedural fairness in relation to that
finding of guilt.
270.6 Definition of forced labour
(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.
270.6A Forced labour offences
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:
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(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)).
270.7 Deceptive recruiting for labour or services
A person (the recruiter) commits an offence if:
(a) the recruiter engages in conduct; and
(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
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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) in any other case—imprisonment for 7 years.
270.7A Definition of forced marriage
(1) A marriage is a forced marriage if one party to the marriage (the
victim) entered into the marriage without freely and fully
consenting:
(a) because of the use of coercion, threat or deception; or
(b) because the party was incapable of understanding the nature
and effect of the marriage ceremony.
(2) For the purposes of subsection (1), marriage includes the
following:
(a) a registered relationship within the meaning of section 2E of
the Acts Interpretation Act 1901;
(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 1901 covers relationships
registered under a law of a State or Territory that are prescribed by
regulations under that Act.
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(3) Paragraph (1)(a) applies whether the coercion, threat or deception
is used against the victim or another person.
(4) For the purposes of proving an offence against this Division or
Division 271, a person under 16 years of age is presumed, unless
the contrary is proved, to be incapable of understanding the nature
and effect of a marriage ceremony.
Note: A defendant bears a legal burden in relation to proving the contrary
(see section 13.4).
270.7B Forced marriage offences
Causing a person to enter into a forced marriage
(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.
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(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)).
270.7C Offence of debt bondage
A person commits an offence of debt bondage if:
(a) the person engages in conduct that causes another person to
enter into debt bondage; and
(b) the person intends to cause the other person to enter into debt
bondage.
Penalty:
(a) in the case of an aggravated offence (see section 270.8)—
imprisonment for 7 years; or
(b) in any other case—imprisonment for 4 years.
270.8 Slavery-like offences—aggravated offences
(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.
(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
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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.
270.9 Slavery-like offences—jurisdictional requirement
Section 15.2 (extended geographical jurisdiction—category B)
applies to a slavery-like offence.
270.10 Slavery-like offences—relevant evidence
(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;
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(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.
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Subdivision D—Offences against Division 270: general
270.11 Offences against Division 270—no defence of victim consent
or acquiescence
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.
270.12 Offences against Division 270—other laws not excluded
(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.
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270.13 Offences against Division 270—double jeopardy
If a person has been convicted or acquitted in a country outside
Australia of an offence against the law of that country in respect of
any conduct, the person cannot be convicted of an offence against
this Division in respect of that conduct.
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Section 271.1
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Division 271—Trafficking in persons
Subdivision A—Definitions
271.1 Definitions
In this Division:
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.
Note: Deception has a corresponding meaning (see section 18A of the Acts
Interpretation Act 1901).
exploitation has the meaning given by section 271.1A.
threat has the same meaning as in Division 270 (see
section 270.1A).
271.1A Definition of exploitation
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.
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Note: Division 270 (slavery and slavery-like offences) deals with slavery,
servitude, forced labour, forced marriage and debt bondage.
Subdivision B—Offences relating to trafficking in persons
271.2 Offence of trafficking in persons
(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.
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Section 271.2
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(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:
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(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;
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(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).
271.3 Trafficking in persons—aggravated offence
(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.
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(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.
271.4 Offence of trafficking in children
(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.
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Section 271.5
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Penalty: Imprisonment for 25 years.
271.5 Offence of domestic trafficking in persons
(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
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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).
271.6 Domestic trafficking in persons—aggravated offence
(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:
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(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.
271.7 Offence of domestic trafficking in children
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
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(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.
Penalty: Imprisonment for 25 years.
Subdivision BA—Organ trafficking
271.7A Removal of organs contrary to this Subdivision
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.
271.7B Offence of organ trafficking—entry into and exit from
Australia
Entry into Australia
(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:
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(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.
271.7C Organ trafficking—aggravated offence
(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
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(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.
271.7D Offence of domestic 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.
271.7E Domestic organ trafficking—aggravated offence
(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:
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(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.
Subdivision BB—Harbouring a victim
271.7F Harbouring a victim
(1) A person (the offender) commits an offence of harbouring a victim
if:
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(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.
271.7G Harbouring a victim—aggravated 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.
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(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.
Subdivision D—Offences against Division 271: general
271.10 Jurisdictional requirements—offences other than domestic
trafficking in persons or organs
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.
271.11 Jurisdictional requirements—offences of domestic trafficking
in persons or organs
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.
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271.11A Offences against Division 271—relevant evidence
(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
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(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.
271.11B Offences against Division 271—no defence of victim consent
or acquiescence
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.
271.12 Offences against Division 271—other laws not excluded
(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.
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(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.
271.13 Double jeopardy
If a person has been convicted or acquitted in a country outside
Australia of an offence against the law of that country in respect of
any conduct, the person cannot be convicted of an offence against
this Division in respect of that conduct.
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Division 271A Overseas travel by certain registered offenders
Section 271A.1
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Division 271A—Overseas travel by certain registered offenders
271A.1 Restrictions on overseas travel by certain registered
offenders
(1) A person commits an offence if:
(a) the person is an Australian citizen; and
(b) the person’s name is entered on a child protection offender
register (however described) of a State or Territory; and
(c) the person has reporting obligations (however described) in
connection with that entry on the register; and
(d) the person leaves Australia.
Penalty: Imprisonment for 5 years.
(2) Absolute liability applies to paragraph (1)(a).
Note: For absolute liability, see section 6.2.
(3) Subsection (1) does not apply if:
(a) a competent authority (within the meaning of section 12 of
the Australian Passports Act 2005 or section 13 of the
Foreign Passports (Law Enforcement and Security) Act
2005) has given permission (however described) for the
person to leave Australia; or
(b) the reporting obligations of the person are suspended at the
time the person leaves Australia.
Note: The defendant bears an evidential burden in relation to the matters in
this subsection: see subsection 13.3(3).
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Child sex offences outside Australia Division 272
Section 272.1
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Division 272—Child sex offences outside Australia
Subdivision A—Preliminary
272.1 Definitions
In this Division:
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.
272.2 When conduct causes a person to engage in sexual intercourse
or other sexual activity
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.
272.3 Meaning of position of trust or authority
(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
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(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.
272.4 Meaning of sexual intercourse
(1) In this Code, sexual intercourse means:
(a) the penetration, to any extent, of the vagina or anus of a
person by any part of the body of another person; or
(b) the penetration, to any extent, of the vagina or anus of a
person, by an object, carried out by another person; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity mentioned in paragraph (a),
(b), (c) or (d).
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Section 272.5
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(2) In this Code, sexual intercourse does not include an act of
penetration that:
(a) is carried out for a proper medical or hygienic purpose; or
(b) is carried out for a proper law enforcement purpose.
(3) For the purposes of this section, vagina includes:
(a) any part of a female person’s genitalia; and
(b) a surgically constructed vagina.
272.5 Meaning of offence against this Division and extension of
criminal responsibility
(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:
(a) a reference to:
(i) an offence against section 6 of the Crimes Act 1914
(accessory after the fact); or
(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
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(b) section 272.15 (“grooming” child to engage in sexual activity
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).
272.6 Who can be prosecuted for an offence committed outside
Australia
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.
272.7 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
Note: Division 279 (video link evidence) applies to a proceeding for an
offence against this Division.
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Subdivision B—Sexual offences against children outside
Australia
272.8 Sexual intercourse with child outside Australia
Engaging in sexual intercourse with child
(1) A person commits an offence if:
(a) the person engages in sexual intercourse with another person
(the child); and
(b) the child is under 16; and
(c) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual intercourse 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 intercourse
in the presence of the person; and
(c) the child is under 16 when the sexual intercourse is engaged
in; and
(d) the sexual intercourse 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 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
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Section 272.9
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272.9 Sexual activity (other than sexual intercourse) with child
outside Australia
Engaging in sexual activity with child
(1) A person commits an offence if:
(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.
Penalty: Imprisonment for 15 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 15 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:
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(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.
272.10 Aggravated offence—child with mental impairment or under
care, supervision or authority of defendant
(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) either or both of the following apply at the time the person
commits the underlying offence:
(i) the child has a mental impairment;
(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.
Penalty: Imprisonment for 25 years.
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Section 272.11
126 Criminal Code Act 1995
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(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.
272.11 Persistent sexual abuse of child outside Australia
(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 3 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);
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Section 272.11
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(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 25 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 3 separate occasions
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Section 272.11
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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 3 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 3 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 3 incidents.
(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.
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Section 272.12
Criminal Code Act 1995 129
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272.12 Sexual intercourse with young person outside Australia—
defendant in position of trust or authority
Engaging in sexual intercourse with young person
(1) A person commits an offence if:
(a) the person engages in 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 intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 years.
Causing young person to engage in sexual intercourse 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
intercourse in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual
intercourse 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 intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 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).
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Section 272.13
130 Criminal Code Act 1995
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Note: For strict liability, see section 6.1.
272.13 Sexual activity (other than sexual intercourse) with young
person outside Australia—defendant in position of trust
or authority
Engaging in sexual activity with young person
(1) A person commits an offence if:
(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.
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).
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Section 272.14
Criminal Code Act 1995 131
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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.
272.14 Procuring child to engage in sexual activity outside Australia
(1) A person commits an offence if:
(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;
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Section 272.15
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(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.
272.15 “Grooming” child to engage in sexual activity outside
Australia
(1) A person commits an offence if:
(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.
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Section 272.16
Criminal Code Act 1995 133
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Penalty: Imprisonment for 12 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.
272.16 Defence based on belief about age
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.
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Division 272 Child sex offences outside Australia
Section 272.17
134 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Offences involving procuring or “grooming” child for sexual
activity—belief that child at least 16
(3) It is a defence to a prosecution for an offence against
section 272.14 or 272.15 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.
272.17 Defence based on valid and genuine marriage
Offences involving engaging in sexual intercourse or other sexual
activity with child or young person
(1) It is a defence to a prosecution for an offence against
subsection 272.8(1), 272.9(1), 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 child or 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 offence was committed; or
(iii) the place of the defendant’s residence or domicile; and
(b) when it was solemnised, the marriage was genuine.
Note: A defendant bears a legal burden in relation to the matter in this
subsection, see section 13.4.
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Section 272.18
Criminal Code Act 1995 135
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Offences involving procuring or “grooming” child for sexual
activity
(2) It is a defence to a prosecution for an offence against
subsection 272.14(1) or 272.15(1) if the defendant proves that:
(a) at the time he or she committed the offence, there existed
between the defendant and the child a marriage that was
valid, or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the offence was committed; or
(iii) the place of the defendant’s residence or domicile; and
(b) when it was solemnised, the marriage was genuine.
Note: A defendant bears a legal burden in relation to the matter in this
subsection, see section 13.4.
Subdivision C—Offences of benefiting from, encouraging or
preparing for sexual offences against children outside
Australia
272.18 Benefiting from offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of benefiting from an
offence against this Division; and
(c) the conduct is reasonably capable of resulting in the person
benefiting from such an offence.
Penalty: Imprisonment for 20 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside
Australia; and
(b) whether or not the person intends to benefit financially from
an offence against this Division; and
(c) whether or not an offence against this Division is in fact
committed.
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Section 272.19
136 Criminal Code Act 1995
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(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
272.19 Encouraging offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of encouraging an
offence against this Division (other than this section or
section 272.20); and
(c) the conduct is reasonably capable of encouraging such an
offence.
Penalty: Imprisonment for 20 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside
Australia; and
(b) whether or not an offence against this Division is in fact
committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(4) In this section, encourage means:
(a) encourage, incite to, or urge, by any means whatever,
(including by a written, electronic or other form of
communication); or
(b) aid, facilitate, or contribute to, in any way whatever.
272.20 Preparing for or planning offence against this Division
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
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Section 272.27
Criminal Code Act 1995 137
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(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).
Subdivision E—Other rules about conduct of trials
272.27 Evidence relating to a person’s age
(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;
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Section 272.28
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(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.
272.28 Alternative verdicts
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)
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Section 272.29
Criminal Code Act 1995 139
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Alternative verdicts
Item Column 1 Column 2
6 subsection 272.11(1) subsection 272.8(1), 272.8(2),
272.9(1), 272.9(2) or 272.10(1)
7 subsection 272.12(1) subsection 272.13(1)
8 subsection 272.12(2) subsection 272.13(2)
9 subsection 272.13(1) subsection 272.12(1)
10 subsection 272.13(2) subsection 272.12(2)
272.29 Double jeopardy
If a person has been convicted or acquitted in a country outside
Australia of an offence against the law of that country in respect of
any conduct, the person cannot be convicted of an offence against
this Division in respect of that conduct.
272.30 Sentencing
(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 age and maturity of
the person in relation to whom the offence was committed, so far
as these matters are relevant and known to the court.
(2) The matters mentioned in subsection (1) are in addition to any
other matters the court must take into account (for example, the
matters mentioned in subsection 16A(2) of the Crimes Act 1914).
272.31 Consent to commencement of proceedings where defendant
under 18
(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.
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Section 272.31
140 Criminal Code Act 1995
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(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.
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Offences involving child pornography material or child abuse material outside Australia
Division 273
Section 273.1
Criminal Code Act 1995 141
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Division 273—Offences involving child pornography material
or child abuse material outside Australia
Subdivision A—Preliminary
273.1 Definitions
(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: These expressions include child abuse material and child
pornography 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.
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Division 273 Offences involving child pornography material or child abuse material
outside Australia
Section 273.2
142 Criminal Code Act 1995
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273.2 Who can be prosecuted for an offence committed outside
Australia
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.
273.2A Consent to commencement of proceedings where defendant
under 18
(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.
273.3 Double jeopardy
If a person has been convicted or acquitted in a country outside
Australia of an offence against the law of that country in respect of
any conduct, the person cannot be convicted of an offence against
this Division in respect of that conduct.
273.4 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
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Division 273
Section 273.5
Criminal Code Act 1995 143
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Note: Division 279 (video link evidence) applies to a proceeding for an
offence against this Division.
Subdivision B—Offences committed overseas involving child
pornography material or child abuse material
273.5 Possessing, controlling, producing, distributing or obtaining
child pornography material outside Australia
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, distributes or obtains material; or
(iii) facilitates the production or distribution of material; and
(b) the material is child pornography material; and
(c) the conduct referred to in paragraph (a) occurs outside
Australia.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
273.6 Possessing, controlling, producing, distributing or obtaining
child abuse material outside Australia
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, distributes or obtains material; or
(iii) facilitates the production or distribution of material; and
(b) the material is child abuse material; and
(c) the conduct referred to in paragraph (a) occurs outside
Australia.
Penalty: Imprisonment for 15 years.
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Section 273.7
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(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
273.7 Aggravated offence—offence involving conduct on 3 or more
occasions and 2 or more people
(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:
(i) section 273.5 (possessing etc. child pornography
material outside Australia);
(ii) section 273.6 (possessing etc. child abuse material
outside Australia); and
(b) the commission of each such offence involves 2 or more
people.
Penalty: Imprisonment for 25 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 273.5
or 273.6.
(3) To avoid doubt, a person does not commit an offence against
section 273.5 or 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 273.5 or 273.6 in relation to the conduct
that constituted the aggravated offence.
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Division 273
Section 273.8
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(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 273.5 or 273.6 may not be
convicted of an offence against this section in relation to the
conduct that constituted the underlying offence.
273.8 Alternative verdict if aggravated offence not proven
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 273.5 or 273.6;
it may find the defendant not guilty of the aggravated offence but
guilty of the offence against section 273.5 or 273.6, so long as the
defendant has been accorded procedural fairness in relation to that
finding of guilt.
Subdivision C—Defences
273.9 Defences to offences against this Division
(1) A person is not criminally responsible for an offence against
section 273.5 or 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).
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Section 273.9
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(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 273.5 or 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 273.5 or 273.6 if the person engages in the conduct in good
faith for the sole purpose of:
(a) assisting the eSafety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to
the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that
Schedule);
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in the performance of the Commissioner’s functions under
Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering
technology (including software) in accordance with:
(i) a recognised alternative access-prevention arrangement
(within the meaning of clause 40 of Schedule 5 to the
Broadcasting Services Act 1992); or
(ii) a designated alternative access-prevention arrangement
(within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
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Division 274 Torture
Section 274.1
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Division 274—Torture
274.1 Definitions
(1) In this Division:
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.
274.2 Torture
(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
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(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).
274.3 Prosecutions
(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.
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Section 274.4
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(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.
274.4 No defence of exceptional circumstances or superior orders
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.
274.5 Jurisdiction of State/Territory courts preserved
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.
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Section 274.6
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274.6 Concurrent operation intended
This Division is not intended to exclude or limit the concurrent
operation of any other law of the Commonwealth or any law of a
State or Territory.
274.7 Double jeopardy
If a person has been convicted or acquitted in a country outside
Australia of an offence against the law of that country in respect of
any conduct, the person cannot be convicted of an offence under
this Division in respect of that conduct.
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Division 279 Video link evidence
Section 279.1
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Division 279—Video link evidence
279.1 Proceedings to which this Division applies
This Division applies to a proceeding for an offence against any of
the following Divisions of this Chapter:
(a) Division 270 (slavery and slavery-like offences);
(b) Division 271 (trafficking in persons);
(c) Division 272 (child sex offences outside Australia);
(d) Division 273 (offences involving child pornography material
or child abuse material outside Australia).
279.2 When court may take evidence by video link
In a proceeding, the court may, on application by a party to the
proceeding, direct that a witness give evidence by video link if:
(a) the witness will give the evidence from outside Australia;
and
(b) the witness is not a defendant in the proceeding; and
(c) the facilities required by section 279.3 are available or can
reasonably be made available; and
(d) the court is satisfied that attendance of the witness at the
court to give the evidence would:
(i) cause unreasonable expense or inconvenience; or
(ii) cause the witness psychological harm or unreasonable
distress; or
(iii) cause the witness to become so intimidated or distressed
that his or her reliability as a witness would be
significantly reduced; and
(e) the court is satisfied that it is consistent with the interests of
justice that the evidence be taken by video link.
279.3 Technical requirements for video link
(1) A witness can give evidence under a direction only if:
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(a) the courtroom or other place in Australia where the court is
sitting (the Australian location); and
(b) the place where the evidence is given (the overseas location);
are equipped with video facilities that:
(c) enable appropriate persons at the Australian location to see
and hear the witness give the evidence; and
(d) enable appropriate persons at the overseas location to see and
hear appropriate persons at the Australian location.
(2) In subsection (1):
appropriate persons means such persons as the court considers
appropriate.
279.4 Application of laws about witnesses
A person who gives evidence under a direction is taken to give it at
the courtroom or other place in Australia where the court is sitting.
Note: This section has effect, for example, for the purposes of laws relating
to evidence, procedure, contempt of court and perjury.
279.5 Administration of oaths and affirmations
An oath or affirmation to be sworn or made by a witness who is to
give evidence under a direction may be administered either:
(a) by means of the video link, in as nearly as practicable the
same way as if the witness were to give the evidence at the
courtroom or other place in Australia where the court is
sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not)
authorised by the court;
(iii) at the place where the witness is to give the evidence.
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Section 279.6
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279.6 Expenses
A court may make such orders as are just for payment of expenses
incurred in connection with giving evidence under a direction by
the court under this Division.
279.7 Other laws about foreign evidence not affected
This Division does not prevent any other law about taking evidence
of a witness outside Australia from applying for the purposes of a
proceeding.
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Preliminary Division 300
Section 300.1
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Chapter 9—Dangers to the community
Part 9.1—Serious drug offences
Division 300—Preliminary
300.1 Purpose
(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.
300.2 Definitions
In this Part:
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
aggravated offence has the meaning given by section 310.4.
border controlled drug has the meaning given by section 301.4.
border controlled plant has the meaning given by section 301.5.
border controlled precursor has the meaning given by
section 301.6.
child means an individual who is under 18 years of age.
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Section 300.2
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commercial quantity of a serious drug, controlled precursor or
border controlled precursor has the meaning given by
section 301.10.
conceal a thing includes conceal or disguise:
(a) the nature, source or location of the thing; or
(b) any movement of the thing; or
(c) the rights of any person with respect to the thing; or
(d) the identity of any owner of the thing.
controlled drug has the meaning given by section 301.1.
controlled plant has the meaning given by section 301.2.
controlled precursor has the meaning given by section 301.3.
cultivate has the meaning given by subsection 303.1(1).
cultivates a plant has the meaning given by subsection 303.1(2).
cultivates a plant for a commercial purpose has the meaning given
by section 303.3.
determined, in relation to a serious drug, controlled precursor or
border controlled precursor, means:
(a) for a serious drug—determined by the AFP Minister under
section 301.13; or
(b) for a precursor—determined by the AFP Minister under
section 301.14.
drug analogue has the meaning given by section 301.9.
export includes take from Australia.
import, in relation to a substance, means import the substance into
Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
listed, in relation to a serious drug, means:
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(a) for a controlled drug—listed by a regulation made for the
purposes of paragraph 301.1(a); or
(b) for a controlled plant—listed by a regulation made for the
purposes of paragraph 301.2(a); or
(c) for a border controlled drug—listed by a regulation made for
the purposes of paragraph 301.4(a); or
(d) for a border controlled plant—listed by a regulation made for
the purposes of paragraph 301.5(a).
manufacture has the meaning given by subsection 305.1(1).
manufactures a substance has the meaning given by
subsection 305.1(2).
manufactures a substance for a commercial purpose has the
meaning given by section 305.2.
marketable quantity of a serious drug, controlled precursor or
border controlled precursor has the meaning given by
section 301.11.
possession of a thing includes the following:
(a) receiving or obtaining possession of the thing;
(b) having control over the disposition of the thing (whether or
not the thing is in the custody of the person);
(c) having joint possession of the thing.
pre-traffics has the meaning given by section 306.1.
procures an individual to pre-traffic has the meaning given by
section 309.9.
procures an individual to traffic has the meaning given by
section 309.6.
product of a plant has the meaning given by section 303.2.
requisite fraction has the meaning given by subsection 312.2(3).
sell includes the following:
(a) barter or exchange;
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(b) agree to sell.
serious drug means one of the following:
(a) a controlled drug;
(b) a controlled plant;
(c) a border controlled drug;
(d) a border controlled plant.
supply includes the following:
(a) supply, whether or not by way of sale;
(b) agree to supply.
taking, in relation to a substance or plant, means taking the
substance or plant, or a product of the plant, into the body.
TINDAPS Convention has the meaning given by section 300.1.
trafficable quantity of a controlled drug, or a controlled plant, has
the meaning given by section 301.12.
traffics has the meaning given by section 302.1.
transport includes deliver.
300.3 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B)
applies to each offence against this Part.
300.4 Concurrent operation intended
(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;
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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.
300.5 Particular identity of drugs, plants and precursors
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).
300.6 Recklessness as to nature of substance or plant sufficient for
offence of attempt to commit an offence against 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
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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).
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Division 301—Serious drugs and precursors
Subdivision A—Serious drugs and precursors: definitions
301.1 Meaning of controlled drug
(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.
301.2 Meaning of controlled plant
(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)).
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(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).
301.3 Meaning of controlled precursor
(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).
301.4 Meaning of border controlled drug
For the purposes of this Part, a border controlled drug is a
substance, other than a growing plant, that is:
(a) listed by a regulation as a border controlled drug; or
(b) a drug analogue of a listed border controlled drug; or
(c) determined by the AFP Minister as a border controlled drug
under section 301.13 (which deals with emergency
determinations of serious drugs).
Note 1: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (a) (see section 301.7); or
(b) a determination can be made for paragraph (c) (see subsection 301.8(2)).
Note 2: For the meaning of drug analogue, see section 301.9.
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301.5 Meaning of border controlled plant
For the purposes of this Part, a border controlled plant is a
growing plant:
(a) listed by a regulation as a border controlled plant; or
(b) determined by the AFP Minister as a border 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 (a) (see section 301.7); or
(b) a determination can be made for paragraph (b) (see subsection 301.13(2)).
301.6 Meaning of border controlled precursor
(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.
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301.7 Serious drugs—conditions for listing by regulation
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.
301.8 Serious drug precursors—conditions for listing by regulation
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).
301.9 Meaning of drug analogue
(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):
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(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.
(4) In this section:
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addition has its ordinary meaning.
replacement has its ordinary meaning.
Subdivision B—Serious drugs and precursors: commercial,
marketable and trafficable quantities
301.10 Meaning of commercial quantity
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.
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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).
301.11 Meaning of marketable quantity
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
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(see paragraphs 301.1(b) and 301.4(b), and the definition of drug
analogue in section 301.9).
301.12 Meaning of trafficable quantity
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).
Subdivision C—Serious drugs and precursors: emergency
determinations
301.13 Emergency determinations—serious drugs
(1) The AFP Minister may, by legislative instrument, determine that:
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(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.
301.14 Emergency determinations—serious drug precursors
(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.
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301.15 Emergency determinations—commercial, marketable and
trafficable quantities
(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.
301.16 Emergency determinations—effectiveness
(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
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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.
301.17 Emergency determinations—publication
(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.
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Section 302.1
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Division 302—Trafficking controlled drugs
302.1 Meaning of traffics
(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.
302.2 Trafficking commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
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302.3 Trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked 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).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
302.4 Trafficking controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b) is recklessness.
302.5 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a
person has:
(a) prepared a trafficable quantity of a substance for supply; or
(b) transported a trafficable quantity of a substance; or
(c) guarded or concealed a trafficable quantity of a substance; or
(d) possessed 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 trafficking in the
substance.
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Section 302.6
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(2) Subsection (1) does not apply if the person proves that he or she
had neither that intention nor belief.
Note 1: A defendant bears a legal burden in relation to the matters in
subsection (2) (see section 13.4).
Note 2: This section does not apply where quantities are combined for the
purposes of section 311.2 (see subsection 311.2(3)).
302.6 Purchase of controlled drugs is not an ancillary offence
A person does not commit:
(a) an offence against this Division because of the operation of
section 11.2 or 11.2A; or
(b) an offence against section 11.4 or 11.5 that relates to an
offence against this Division;
merely because the person purchases, or intends to purchase, a
controlled drug from another person.
Note: A defendant bears an evidential burden in relation to the matters in
this section (see subsection 13.3(3)).
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Section 303.1
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Division 303—Commercial cultivation of controlled plants
303.1 Meanings of cultivate and cultivates a plant
(1) For the purposes of this Part, cultivate includes the following:
(a) plant a seed, seedling or cutting;
(b) transplant a plant;
(c) nurture, tend or grow a plant;
(d) guard or conceal a plant (including against interference or
discovery by humans or natural predators);
(e) harvest a plant, pick any part of a plant or separate any resin
or other substance from a plant.
(2) For the purposes of this Part, a person cultivates a plant if the
person:
(a) engages in its cultivation; or
(b) exercises control or direction over its cultivation; or
(c) provides finance for its cultivation.
303.2 Meaning of product of a plant
For the purposes of this Part, the product of a plant includes the
following:
(a) a seed of the plant;
(b) a part of the plant (whether alive or dead);
(c) a substance separated from the plant.
303.3 Meaning of cultivates a plant for a commercial purpose
For the purposes of this Part, a person cultivates a plant for a
commercial purpose if the person cultivates the plant:
(a) with the intention of selling any of it or its products; or
(b) believing that another person intends to sell any of it or its
products.
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Division 303 Commercial cultivation of controlled plants
Section 303.4
176 Criminal Code Act 1995
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303.4 Cultivating commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
303.5 Cultivating marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated 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).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
303.6 Cultivating controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b) is recklessness.
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303.7 Presumption where trafficable quantities are involved
(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).
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Division 304 Selling controlled plants
Section 304.1
178 Criminal Code Act 1995
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Division 304—Selling controlled plants
304.1 Selling commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
304.2 Selling marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold 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).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
304.3 Selling controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant.
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Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b) is recklessness.
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Division 305 Commercial manufacture of controlled drugs
Section 305.1
180 Criminal Code Act 1995
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Division 305—Commercial manufacture of controlled drugs
305.1 Meanings of manufacture and manufactures a substance
(1) For the purposes of this Part, manufacture means:
(a) any process by which a substance is produced (other than the
cultivation of a plant), and includes the following:
(i) the process of extracting or refining a substance;
(ii) the process of transforming a substance into a different
substance; or
(b) any process by which a substance is converted from one form
to another, including the process of extracting or refining a
substance.
(2) For the purposes of this Part, a person manufactures a substance
if the person:
(a) engages in its manufacture; or
(b) exercises control or direction over its manufacture; or
(c) provides finance for its manufacture.
305.2 Meaning of manufactures a substance for a commercial purpose
For the purposes of this Part, a person manufactures a substance
for a commercial purpose if the person manufactures the
substance:
(a) with the intention of selling any of it; or
(b) believing that another person intends to sell any of it.
305.3 Manufacturing commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial
purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
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(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
305.4 Manufacturing marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial
purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 28
years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for 25 years or 5,000
penalty units, or both.
Note: The additional elements for an aggravated offence against this section
are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
305.5 Manufacturing controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial
purpose; and
(b) the substance is a controlled drug.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 12
years or 2,400 penalty units, or both; or
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Section 305.6
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(b) in any other case—imprisonment for 10 years or 2,000
penalty units, or both.
Note: The additional elements for an aggravated offence against this section
are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
305.6 Presumption where trafficable quantities are involved
(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).
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Pre-trafficking controlled precursors Division 306
Section 306.1
Criminal Code Act 1995 183
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Division 306—Pre-trafficking controlled precursors
306.1 Meaning of pre-traffics
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.
306.2 Pre-trafficking commercial quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre-traffics in a substance; and
(b) the substance is a controlled precursor; and
(c) the quantity pre-trafficked is a commercial quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 28
years or 5,600 penalty units, or both; or
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(b) in any other case—imprisonment for 25 years or 5,000
penalty units, or both.
Note: The additional elements for an aggravated offence against this section
are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
306.3 Pre-trafficking marketable quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre-traffics in a substance; and
(b) the substance is a controlled precursor; and
(c) the quantity pre-trafficked is a marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 17
years or 3,400 penalty units, or both; or
(b) in any other case—imprisonment for 15 years or 3,000
penalty units, or both.
Note: The additional elements for an aggravated offence against this section
are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in
paragraph (1)(c).
306.4 Pre-trafficking controlled precursors
(1) A person commits an offence if:
(a) the person pre-traffics in a substance; and
(b) the substance is a controlled precursor.
Penalty:
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(a) in the case of an aggravated offence—imprisonment for 9
years or 1,800 penalty units, or both; or
(b) in any other case—imprisonment for 7 years or 1,400 penalty
units, or both.
Note: The additional elements for an aggravated offence against this section
are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
306.5 Presumption for pre-trafficking controlled precursors—sale
(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).
306.6 Presumptions for pre-trafficking controlled precursors—
manufacture for drug manufacture
(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;
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Section 306.7
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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).
306.7 Presumptions for pre-trafficking controlled precursors—
manufacture for sale
(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
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Section 306.8
Criminal Code Act 1995 187
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(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).
306.8 Presumptions for pre-trafficking controlled precursors—
possession
(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.
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Division 306 Pre-trafficking controlled precursors
Section 306.8
188 Criminal Code Act 1995
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(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).
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Import-export offences Division 307
Section 307.1
Criminal Code Act 1995 189
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Division 307—Import-export offences
Subdivision A—Importing and exporting border controlled
drugs or border controlled plants
307.1 Importing and exporting commercial quantities of border
controlled drugs or border controlled plants
(1) A person commits an offence if:
(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 commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
307.2 Importing and exporting marketable quantities of border
controlled drugs or border controlled plants
(1) A person commits an offence if:
(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
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Section 307.3
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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).
307.3 Importing and exporting border controlled drugs or border
controlled plants
(1) A person commits an offence if:
(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).
307.4 Importing and exporting border controlled drugs or border
controlled plants—no defence relating to lack of
commercial intent
(1) A person commits an offence if:
(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.
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Import-export offences Division 307
Section 307.5
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Subdivision B—Possessing unlawfully imported border
controlled drugs or border controlled plants
307.5 Possessing commercial quantities of unlawfully imported
border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(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).
307.6 Possessing marketable quantities of unlawfully imported
border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was 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).
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Section 307.7
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(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).
307.7 Possessing unlawfully imported border controlled drugs or
border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was 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 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).
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Section 307.8
Criminal Code Act 1995 193
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Subdivision C—Possessing border controlled drugs or border
controlled plants reasonably suspected of having
been unlawfully imported
307.8 Possessing commercial quantities of border controlled drugs
or border controlled plants reasonably suspected of
having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(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 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 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).
307.9 Possessing marketable quantities of border controlled drugs
or border controlled plants reasonably suspected of
having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(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
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Section 307.10
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(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).
307.10 Possessing border controlled drugs or border controlled
plants reasonably suspected of having been unlawfully
imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(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.
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Section 307.11
Criminal Code Act 1995 195
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Note: A defendant bears a legal burden in relation to the matter in
subsection (4) (see section 13.4).
Subdivision D—Importing and exporting border controlled
precursors
307.11 Importing and exporting commercial quantities of border
controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
307.12 Importing and exporting marketable quantities of border
controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or
both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
307.13 Importing and exporting border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
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(c) the substance is a border controlled precursor.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
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Section 308.1
Criminal Code Act 1995 197
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Division 308—Possession offences
308.1 Possessing controlled drugs
(1) A person commits an offence if:
(a) the person possesses a substance; and
(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).
(5) Subsection (3) does not limit:
(a) Part 1B of the Crimes Act 1914; or
(b) section 68 or 79 of the Judiciary Act 1903; or
(c) any other law that provides for a law of a State or Territory to
apply in relation to the exercise of federal jurisdiction.
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Division 308 Possession offences
Section 308.2
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308.2 Possessing controlled precursors
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the person intends to use any of the substance to manufacture
a controlled drug; and
(c) the substance is a controlled precursor.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) For the purposes of proving an offence against subsection (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 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 intention.
Note: A defendant bears a legal burden in relation to the matter in
subsection (4) (see section 13.4).
308.3 Possessing plant material, equipment or instructions for
commercial cultivation of controlled plants
A person commits an offence if:
(a) the person possesses a plant, a product of a plant, any
equipment or any document containing instructions for
growing a plant; and
(b) the person intends to use the plant, product, equipment or
document to cultivate a controlled plant; and
(c) the person intends to sell, or believes that another person
intends to sell, any of the plant so cultivated or any of its
products.
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Section 308.4
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Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
308.4 Possessing substance, equipment or instructions for
commercial manufacture of controlled drugs
(1) A person commits an offence if:
(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).
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Part 9.1 Serious drug offences
Division 309 Drug offences involving children
Section 309.1
200 Criminal Code Act 1995
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Division 309—Drug offences involving children
309.1 Children not criminally responsible for offences against this
Division
A child is not criminally responsible for an offence against this
Division.
Note: For the purposes of this Part, a child is an individual under 18 years of
age (see section 300.2).
309.2 Supplying controlled drugs to children
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.3 Supplying marketable quantities of controlled drugs to
children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity supplied is a marketable quantity; and
(e) the person supplies the controlled drug believing that the
child intends to sell any of it.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
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(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).
309.4 Supplying controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the person supplies the controlled drug believing that the
child intends to sell any of it.
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.
309.5 Presumption where trafficable quantities are involved
(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).
309.6 Meaning of procures an individual to traffic
(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
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(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.
309.7 Procuring children for trafficking marketable quantities of
controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a quantity of a
substance; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity 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).
309.8 Procuring children for trafficking controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a substance;
and
(b) the individual is a child; and
(c) the substance is a controlled drug.
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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.
309.9 Meaning of procures an individual to pre-traffic
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.
309.10 Procuring children for pre-trafficking marketable quantities
of controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre-traffic in a quantity
of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled precursor; and
(d) the quantity 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).
309.11 Procuring children for pre-trafficking controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre-traffic in a
substance; and
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(b) the individual is a child; and
(c) the substance is a controlled precursor.
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.
309.12 Procuring children for importing or exporting marketable
quantities of border controlled drugs or border controlled
plants
(1) A person commits an offence if:
(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
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committed an offence against section 309.2 (supplying controlled
drugs to children).
309.13 Procuring children for importing or exporting border
controlled drugs or border controlled plants
(1) A person commits an offence if:
(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).
309.14 Procuring children for importing or exporting marketable
quantities of border controlled precursors
(1) A person commits an offence if:
(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;
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(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).
309.15 Procuring children for importing or exporting border
controlled precursors
(1) A person commits an offence if:
(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;
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(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).
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Division 310 Harm and danger to children under 14 from serious drug offences
Section 310.1
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Division 310—Harm and danger to children under 14 from
serious drug offences
310.1 Children not criminally responsible for offences against this
Division
A child is not criminally responsible for an offence against this
Division.
Note: For the purposes of this Part, a child is an individual under 18 years of
age (see section 300.2).
310.2 Danger from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(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.
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(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.
310.3 Harm from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes harm to an individual; and
(c) the individual is under 14 years of age; and
(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.
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Division 310 Harm and danger to children under 14 from serious drug offences
Section 310.4
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(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.
310.4 Aggravated offences—manufacturing controlled drugs and
controlled precursors
(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)).
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(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.
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Division 311 Combining quantities of drugs, plants or precursors
Section 311.1
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Division 311—Combining quantities of drugs, plants or
precursors
Subdivision A—Combining different parcels on the same
occasion
311.1 Combining different parcels on the same occasion
(1) If, on the same occasion, a person:
(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
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(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.
Subdivision B—Combining parcels from organised commercial
activities
311.2 Business of trafficking controlled drugs
(1) In proceedings for an offence against:
(a) section 302.2 (trafficking commercial quantities of controlled
drugs); or
(b) section 302.3 (trafficking marketable quantities of controlled
drugs);
the prosecution may prove the element of the offence relating to
the quantity of controlled drug by proving:
(c) that the defendant was engaged in an organised commercial
activity that involved repeated trafficking in controlled drugs;
and
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(d) that the relevant quantity of a controlled drug, or of a
combination of controlled drugs, was trafficked 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)(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 trafficking; or
(b) the exact quantity trafficked on each occasion.
(3) Section 302.5 (presumption where trafficable quantities are
involved) does not apply to an offence prosecuted in accordance
with subsection (1).
311.3 Business of pre-trafficking by selling controlled precursors
(1) In proceedings for an offence against:
(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).
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(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.
311.4 Business of importing or exporting border controlled drugs or
border controlled plants
(1) In proceedings for an offence against:
(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.
311.5 Business of importing or exporting border controlled
precursors
(1) In proceedings for an offence against:
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(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.
311.6 Business of supplying controlled drugs to children
(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).
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(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).
311.7 General rules—combining parcels from organised commercial
activities
(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.
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Division 311 Combining quantities of drugs, plants or precursors
Section 311.8
218 Criminal Code Act 1995
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(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.
Subdivision C—Combining parcels from multiple offences
311.8 Multiple offences—trafficking controlled drugs
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).
311.9 Multiple offences—cultivating controlled plants
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).
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Combining quantities of drugs, plants or precursors Division 311
Section 311.10
Criminal Code Act 1995 219
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311.10 Multiple offences—selling controlled plants
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).
311.11 Multiple offences—manufacturing controlled drugs
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).
311.12 Multiple offences—pre-trafficking controlled precursors
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
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Division 311 Combining quantities of drugs, plants or precursors
Section 311.13
220 Criminal Code Act 1995
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(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).
311.13 Multiple offences—importing or exporting border controlled
drugs or border controlled plants
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.
311.14 Multiple offences—possessing unlawfully imported border
controlled drugs or border controlled plants
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
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Combining quantities of drugs, plants or precursors Division 311
Section 311.15
Criminal Code Act 1995 221
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(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.
311.15 Multiple offences—possessing border controlled drugs or
border controlled plants reasonably suspected of having
been unlawfully imported
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.
311.16 Multiple offences—importing or exporting border controlled
precursors
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
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Part 9.1 Serious drug offences
Division 311 Combining quantities of drugs, plants or precursors
Section 311.17
222 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
(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.
311.17 Multiple offences—supplying controlled drugs to children for
trafficking
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).
311.18 Multiple offences—procuring children for trafficking
controlled drugs
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
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Combining quantities of drugs, plants or precursors Division 311
Section 311.19
Criminal Code Act 1995 223
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(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).
311.19 Multiple offences—procuring children for pre-trafficking
controlled precursors
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).
311.20 Multiple offences—procuring children for importing or
exporting border controlled drugs or border controlled
plants
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
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Part 9.1 Serious drug offences
Division 311 Combining quantities of drugs, plants or precursors
Section 311.21
224 Criminal Code Act 1995
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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).
311.21 Multiple offences—procuring children for importing or
exporting border controlled precursors
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).
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Serious drug offences Part 9.1
Combining quantities of drugs, plants or precursors Division 311
Section 311.22
Criminal Code Act 1995 225
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
311.22 General rules—combining parcels from multiple offences
(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.
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Part 9.1 Serious drug offences
Division 312 Working out quantities of drugs, plants or precursors
Section 312.1
226 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 312—Working out quantities of drugs, plants or
precursors
312.1 Working out quantities of drugs and precursors in mixtures
(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.
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Working out quantities of drugs, plants or precursors Division 312
Section 312.2
Criminal Code Act 1995 227
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312.2 Working out quantities where different kinds of drugs, plants
or precursors are involved
(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:
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Part 9.1 Serious drug offences
Division 312 Working out quantities of drugs, plants or precursors
Section 312.2
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(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.
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Serious drug offences Part 9.1
Working out quantities of drugs, plants or precursors Division 312
Section 312.2
Criminal Code Act 1995 229
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(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.
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Chapter 9 Dangers to the community
Part 9.1 Serious drug offences
Division 313 Defences and alternative verdicts
Section 313.1
230 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Division 313—Defences and alternative verdicts
313.1 Defence—conduct justified or excused by or under a law of a
State or Territory
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 1967 and the Crimes Act
1914.
313.2 Defence—reasonable belief that conduct is justified or excused
by or under a law
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)).
313.3 Alternative verdict—offence not proved
If:
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Defences and alternative verdicts Division 313
Section 313.4
Criminal Code Act 1995 231
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(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.
313.4 Alternative verdict—mistake as to quantity of drug, plant or
precursor
(1) This section applies if:
(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.
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Part 9.1 Serious drug offences
Division 313 Defences and alternative verdicts
Section 313.5
232 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Note: A defendant bears a legal burden in relation to the matter in
paragraph (2)(a) (see section 13.4).
313.5 Alternative verdict—mistake as to identity of drug, plant or
precursor
(1) This section applies if:
(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).
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Psychoactive substances Part 9.2
Psychoactive substances Division 320
Section 320.1
Criminal Code Act 1995 233
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Part 9.2—Psychoactive substances
Division 320—Psychoactive substances
320.1 Definitions
(1) In this Part:
consume, in relation to a substance, includes:
(a) ingest the substance; and
(b) inject the substance; and
(c) inhale the substance; and
(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.
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Part 9.2 Psychoactive substances
Division 320 Psychoactive substances
Section 320.2
234 Criminal Code Act 1995
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320.2 Importing psychoactive substances
(1) A person commits an offence if:
(a) the person imports a substance; and
(b) the substance is a psychoactive substance.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(2) Subject to subsection (3), this section does not apply to a substance
if it is:
(a) food (within the meaning of the Food Standards Australia
New Zealand Act 1991) for which:
(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) a tobacco product (within the meaning of section 8 of the
Tobacco Advertising Prohibition Act 1992); or
(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
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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
(ii) is an exempt active constituent (within the meaning of
subsection 69B(1) of the Agricultural and Veterinary
Chemicals (Administration) Act 1992); 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
(i) an industrial chemical within the meaning of the Industrial
Chemicals (Notification and Assessment) Act 1989; 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)).
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Part 9.2 Psychoactive substances
Division 320 Psychoactive substances
Section 320.3
236 Criminal Code Act 1995
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(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.
320.3 Importing substances represented to be serious drug
alternatives
(1) A person commits an offence if:
(a) the person imports a substance; and
(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:
(a) food (within the meaning of the Food Standards Australia
New Zealand Act 1991) for which:
(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
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(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
(iii) is an exempt chemical product (within the meaning of
subsection 69B(2) of the Agricultural and Veterinary
Chemicals (Administration) Act 1992); 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
(ii) is an exempt active constituent (within the meaning of
subsection 69B(2) of the Agricultural and Veterinary
Chemicals (Administration) Act 1992); 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)).
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Part 9.2 Psychoactive substances
Division 320 Psychoactive substances
Section 320.3
238 Criminal Code Act 1995
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(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.
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Dangerous weapons Part 9.4
Cross-border firearms trafficking Division 360
Section 360.1
Criminal Code Act 1995 239
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Part 9.4—Dangerous weapons
Division 360—Cross-border firearms trafficking
360.1 Disposal and acquisition of a firearm or firearm part
(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).
360.2 Cross-border offence of disposal or acquisition of a firearm or
firearm part
(1) A person commits an offence if:
(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
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Part 9.4 Dangerous weapons
Division 360 Cross-border firearms trafficking
Section 360.3
240 Criminal Code Act 1995
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(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) a firearm part;
(b) a part of, or for, a firearm or weapon.
360.3 Taking or sending a firearm or firearm part across borders
(1) A person commits an offence if:
(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;
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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):
(a) a firearm part;
(b) a part of, or for, a firearm or weapon.
360.4 Concurrent operation intended
(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;
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Part 9.4 Dangerous weapons
Division 360 Cross-border firearms trafficking
Section 360.4
242 Criminal Code Act 1995
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(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.
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Dangerous weapons Part 9.4
International firearms trafficking Division 361
Section 361.1
Criminal Code Act 1995 243
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Division 361—International firearms trafficking
361.1 Definitions
In this Division:
export a thing, means export the thing from Australia.
firearm has the same meaning as in the Customs (Prohibited
Imports) Regulations 1956.
firearm part has the same meaning as in the Customs (Prohibited
Imports) Regulations 1956.
import a thing, means import the thing into Australia, and includes
deal with the thing in connection with its importation.
traffic in a thing that is a firearm or a firearm part means:
(a) transfer the thing; or
(b) offer the thing for sale; or
(c) invite the making of offers to buy the thing; or
(d) prepare the thing 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 thing 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 thing with the intention of transferring
any of it or the intention of assisting another person to
transfer any of it; or
(g) possess the thing with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a thing for transfer
includes packaging the thing or separating the thing into discrete
units.
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Part 9.4 Dangerous weapons
Division 361 International firearms trafficking
Section 361.2
244 Criminal Code Act 1995
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361.2 Trafficking prohibited firearms or firearm parts into
Australia
Customs Act prohibits imports absolutely
(1) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person imports the firearm or part with the intention of
trafficking in the firearm or part; and
(d) importing 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 imports if requirements not met
(3) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person imports the firearm or part with the intention of
trafficking in the firearm or part; and
(d) importing the firearm or part 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.
(4) Absolute liability applies to paragraph (3)(d).
Note: For absolute liability, see section 6.2.
(5) Strict liability applies to paragraph (3)(e).
Note: For strict liability, see section 6.1.
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Dangerous weapons Part 9.4
International firearms trafficking Division 361
Section 361.3
Criminal Code Act 1995 245
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361.3 Trafficking prohibited firearms or firearm parts out of
Australia
Customs Act prohibits exports absolutely
(1) A person commits an offence if:
(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 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.
(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
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Part 9.4 Dangerous weapons
Division 361 International firearms trafficking
Section 361.4
246 Criminal Code Act 1995
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(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).
Note: For strict liability, see section 6.1.
361.4 Defence—reasonable belief that conduct is justified or excused
by or under a law
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)).
361.6 Double jeopardy
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 1901 in respect of that
conduct.
Note: A similar provision for the opposite case is set out in
subsection 233BAB(7) of the Customs Act 1901.
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Identity crime Part 9.5
Preliminary Division 370
Section 370.1
Criminal Code Act 1995 247
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Part 9.5—Identity crime
Division 370—Preliminary
370.1 Definitions
In this Code:
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;
(k) an ABN.
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Chapter 9 Dangers to the community
Part 9.5 Identity crime
Division 370 Preliminary
Section 370.2
248 Criminal Code Act 1995
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370.2 Definition of foreign indictable offence
In Division 372:
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.
370.3 Concurrent operation intended
(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.
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Identity crime Part 9.5
Identity fraud offences Division 372
Section 372.1
Criminal Code Act 1995 249
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Division 372—Identity fraud offences
372.1 Dealing in identification information
(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.
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Chapter 9 Dangers to the community
Part 9.5 Identity crime
Division 372 Identity fraud offences
Section 372.1A
250 Criminal Code Act 1995
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372.1A Dealing in identification information that involves use of a
carriage service
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
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Identity fraud offences Division 372
Section 372.1A
Criminal Code Act 1995 251
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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
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Part 9.5 Identity crime
Division 372 Identity fraud offences
Section 372.2
252 Criminal Code Act 1995
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(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.
372.2 Possession of 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.
372.3 Possession of equipment used to make identification
documentation
(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
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(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.
Note: For absolute liability, see section 6.2.
372.4 Extended geographical jurisdiction—category A
Section 15.1 (extended geographical jurisdiction—category A)
applies to an offence against this Division.
372.5 Alternative verdict
(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.
372.6 Attempt
It is not an offence to attempt to commit an offence against this
Division.
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Chapter 9 Dangers to the community
Part 9.5 Identity crime
Division 375 Victims’ certificates
Section 375.1
254 Criminal Code Act 1995
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Division 375—Victims’ certificates
375.1 Certificate may be issued by magistrate in relation to victim of
identity crime
(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.
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Victims’ certificates Division 375
Section 375.2
Criminal Code Act 1995 255
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375.2 Content of certificate
(1) A certificate issued under section 375.1 must:
(a) identify the victim; and
(b) describe the dealing in identification information.
(2) The certificate may contain such other information as the
magistrate considers appropriate.
(3) The certificate must not identify the dealer.
375.3 Relation to civil and criminal proceedings
(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.
375.4 Power conferred on magistrate personally
(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.
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Chapter 9 Dangers to the community
Part 9.5 Identity crime
Division 376 False identity and air travel
Section 376.1
256 Criminal Code Act 1995
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Division 376—False identity and air travel
376.1 Definitions for Division 376
In this Division:
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.
376.2 False identification information—at constitutional airports
(1) A person (the defendant) commits an offence if:
(a) the defendant uses information at a place; and
(b) the defendant does so reckless as to whether the information
is used to identify the defendant as a passenger on a flight;
and
(c) the information is identification information; and
(d) the information is false in relation to the defendant; and
(e) the place is a constitutional airport.
Penalty: Imprisonment for 12 months.
(2) Absolute liability applies to paragraph (1)(e).
Note: For absolute liability, see section 6.2.
(3) In this section:
constitutional airport means:
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(a) a Commonwealth aerodrome within the meaning of the
Crimes (Aviation) Act 1991 (see section 3 of that Act); or
(b) another airport, if the airport is in a Territory.
376.3 False identification information—air passenger tickets
obtained using a carriage service
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
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Chapter 9 Dangers to the community
Part 9.5 Identity crime
Division 376 False identity and air travel
Section 376.4
258 Criminal Code Act 1995
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(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).
Note: For absolute liability, see section 6.2.
376.4 False identification information—air passenger tickets for
constitutional flights
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.
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Section 376.5
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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.
376.5 False identification information—extended jurisdiction
(Category D)
Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to the offences in sections 376.3
and 376.4.
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Chapter 9 Dangers to the community
Part 9.6 Contamination of goods
Section 380.1
260 Criminal Code Act 1995
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Part 9.6—Contamination of goods
380.1 Definitions
(1) In this Part:
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.
380.2 Contaminating goods
Offences based on implied nationhood power
(1) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent:
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(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
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Section 380.2
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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
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(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).
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Part 9.6 Contamination of goods
Section 380.3
264 Criminal Code Act 1995
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380.3 Threatening to contaminate goods
Offences based on implied nationhood power
(1) 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:
(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
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(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;
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(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
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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).
380.4 Making false statements about contamination of goods
Offences based on implied nationhood power
(1) 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:
(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.
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Section 380.4
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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
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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:
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(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;
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(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.
380.5 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against section 380.2, 380.3 or 380.4.
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Part 9.9—Criminal associations and organisations
Division 390—Criminal associations and organisations
Subdivision A—Definitions
390.1 Definitions
(1) In this Division:
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
(e) a guardian or carer of the person.
Commonwealth place has the same meaning as in the
Commonwealth Places (Application of Laws) Act 1970.
constitutionally covered offence punishable by imprisonment for
at least 12 months means:
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(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.
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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.
390.2 State offences that have a federal aspect
Object
(1) The object of this section is to identify State offences that have a
federal aspect because:
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(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).
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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).
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Subdivision B—Offences
390.3 Associating in support of serious organised criminal activity
(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
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(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
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(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.
390.4 Supporting a criminal organisation
(1) A person commits an offence if:
(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
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(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.
390.5 Committing an offence for the benefit of, or at the direction of,
a criminal organisation
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.
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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
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(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 1914 prevents 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.
390.6 Directing activities of a criminal organisation
(1) A person commits an offence if:
(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
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(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.
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390.7 Extended geographical jurisdiction—category C
Section 15.3 (extended geographical jurisdiction—category C)
applies to an offence against this Division.
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Chapter 10—National infrastructure
Part 10.2—Money laundering
Division 400—Money laundering
400.1 Definitions
(1) In this Division:
ADI (authorised deposit-taking institution) means:
(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.
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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.
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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.
400.2 Definition of deals with money or other property
A person deals with money or other property if the person does
any of the following:
(a) receives, possesses, conceals or disposes of money or other
property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other
property.
400.2A Application of offences relating to possible instruments of
crime
(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.
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(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).
Note: For absolute liability, see section 6.2.
400.3 Dealing in proceeds of crime etc.—money or property worth
$1,000,000 or more
(1) A person commits an offence if:
(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
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(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.
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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.
400.4 Dealing in proceeds of crime etc.—money or property worth
$100,000 or more
(1) A person commits an offence if:
(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:
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(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.
400.5 Dealing in proceeds of crime etc.—money or property worth
$50,000 or more
(1) A person commits an offence if:
(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
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(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.
400.6 Dealing in proceeds of crime etc.—money or property worth
$10,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
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(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.
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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.
400.7 Dealing in proceeds of crime etc.—money or property worth
$1,000 or more
(1) A person commits an offence if:
(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.
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(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.
400.8 Dealing in proceeds of crime etc.—money or property of any
value
(1) A person commits an offence if:
(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
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(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.
400.9 Dealing with property reasonably suspected of being proceeds
of crime etc.
(1) 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 $100,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
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(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 1988 that would otherwise apply to the transactions; or
(aa) the conduct involves a number of transactions that are
structured or arranged to avoid the reporting requirements of
the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 that would otherwise apply to the
transactions; or
(b) the conduct involves using one or more accounts held with
ADIs in false names; or
(ba) the conduct amounts to an offence against section 139, 140
or 141 of the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006; 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
(d) the conduct involves a significant cash transaction within the
meaning of the Financial Transaction Reports Act 1988, and
the defendant:
(i) has contravened his or her obligations under that Act
relating to reporting the transaction; or
(ii) has given false or misleading information in purported
compliance with those obligations; or
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(da) the conduct involves a threshold transaction (within the
meaning of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006) and the defendant:
(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).
400.10 Mistake of fact as to the value of money or property
(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
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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.
400.11 Proof of certain matters relating to kinds of offences not
required
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.
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400.12 Combining several contraventions in a single charge
(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.
400.13 Proof of other offences is not required
(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.
400.14 Alternative verdicts
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
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(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.
400.15 Geographical jurisdiction
(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;
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(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.
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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.
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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.
400.16 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
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Part 10.5—Postal services
Division 470—Preliminary
470.1 Definitions
In this Part:
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
article has the same meaning as in the Australian Postal
Corporation Act 1989.
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.
carry, in relation to an article, has the same meaning as in the
Australian Postal Corporation Act 1989.
carry by post has the same meaning as in the Australian Postal
Corporation Act 1989.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
mail-receptacle means a mail-bag, package, parcel, container,
wrapper, receptacle or similar thing that:
(a) belongs to, or is in the possession of, Australia Post; and
(b) is used, or intended for use, in the carriage of articles by post
(whether or not it actually contains such articles).
postage stamp has the same meaning as in the Australian Postal
Corporation Act 1989.
postal message means:
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(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.
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property has the same meaning as in Chapter 7.
unwritten communication has the same meaning as in the
Australian Postal Corporation Act 1989.
470.2 Dishonesty
For the purposes of this Part, 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.
470.3 Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against this Part, the determination
of dishonesty is a matter for the trier of fact.
470.4 Meaning of expressions used in Subdivisions B and C of
Division 471
(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: These expressions include child abuse material and child
pornography 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).
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(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.
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Division 471—Postal offences
Subdivision A—General postal offences
471.1 Theft of mail-receptacles, articles or postal messages
(1) A person commits an offence if:
(a) the person dishonestly appropriates:
(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
(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.
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(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.
471.2 Receiving stolen mail-receptacles, articles or postal messages
(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:
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(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
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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.
471.3 Taking or concealing of mail-receptacles, articles or postal
messages
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
(c) a postal message.
Penalty: Imprisonment for 5 years.
471.4 Dishonest removal of postage stamps or postmarks
A person commits an offence if the person dishonestly:
(a) removes any postage stamp affixed to, or printed on, an
article; or
(b) removes any postmark from a postage stamp that has
previously been used for postal services.
Penalty: Imprisonment for 12 months.
471.5 Dishonest use of previously used, defaced or obliterated
stamps
(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.
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(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.
471.6 Damaging or destroying mail-receptacles, articles or postal
messages
(1) A person commits an offence if:
(a) the person engages in conduct; and
(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:
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(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.
471.7 Tampering with mail-receptacles
(1) A person commits an offence if the person dishonestly:
(a) opens a mail-receptacle; or
(b) tampers with a mail-receptacle.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if:
(a) the person intentionally opens a mail-receptacle; and
(b) the person is not authorised by Australia Post to open the
mail-receptacle; and
(c) the person does so knowing that he or she is not authorised
by Australia Post to open the mail-receptacle.
Penalty: Imprisonment for 2 years.
471.8 Dishonestly obtaining delivery of articles
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.
Penalty: Imprisonment for 5 years.
471.9 Geographical jurisdiction
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.
471.10 Hoaxes—explosives and dangerous substances
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or
similar service; and
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(b) the person does so with the intention of inducing a false
belief that:
(i) the article consists of, encloses or contains an explosive
or a dangerous or harmful substance or thing; or
(ii) an explosive, or a dangerous or harmful substance or
thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the definition of carry by post in section 470.1
does not apply to this section.
471.11 Using a postal or similar service to make a threat
Threat to kill
(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.
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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.
471.12 Using a postal or similar service to menace, harass or cause
offence
A person commits an offence if:
(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.
Penalty: Imprisonment for 2 years.
471.13 Causing a dangerous article to be carried by a postal or
similar service
Offence
(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.
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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.
471.14 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—category A)
applies to an offence against section 471.10, 471.11, 471.12 or
471.13.
471.15 Causing an explosive, or a dangerous or harmful substance,
to be carried by post
Offence
(1) A person commits an offence if:
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(a) the person causes an article to be carried by post; and
(b) the article consists of, encloses or contains:
(i) an explosive; or
(ii) a dangerous or harmful substance or thing that the
regulations say must not, without exception, be carried
by post.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(2) Section 15.3 (extended geographical jurisdiction—category C)
applies to an offence against subsection (1).
Subdivision B—Offences relating to use of postal or similar
service for child pornography material or child abuse
material
471.16 Using a postal or similar service for child pornography
material
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or
similar service; and
(b) the article is, or contains, child pornography material.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person requests another person to cause an article to be
carried by a postal or similar service; and
(b) the article is, or contains, child pornography material.
Penalty: Imprisonment for 15 years.
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471.17 Possessing, controlling, producing, supplying or obtaining
child pornography material for use through a postal or
similar service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child pornography material; 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 471.16 (using a
postal or similar service for child pornography 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 471.16 (using a
postal or similar service for child pornography material) is
impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
471.18 Defences in respect of child pornography material
(1) A person is not criminally responsible for an offence against
section 471.16 (using a postal or similar service for child
pornography material) or 471.17 (possessing etc. child
pornography 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
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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 471.16 (using a postal or similar service for child
pornography material) or 471.17 (possessing etc. child
pornography 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).
471.19 Using a postal or similar service for child abuse material
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or
similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
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(a) the person requests another person to cause an article to be
carried by a postal or similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
471.20 Possessing, controlling, producing, supplying or obtaining
child abuse material for use through a postal or similar
service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; 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 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).
471.21 Defences in respect of child abuse material
(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:
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(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).
471.22 Aggravated offence—offence involving conduct on 3 or more
occasions and 2 or more people
(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:
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(i) section 471.16 (using a postal or similar service for
child pornography materian( �
(ii) section 471.17 (possessing etc. child pornography
material for use through a postal or similar service);
(iii) section 471.19 (using a postal or similar service for
child abuse materian( �
(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 25 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 471.16,
471.17, 471.19 or 471.20.
(3) To avoid doubt, a person does not commit an offence against
section 471.16, 471.17, 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 471.16, 471.17, 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 471.16, 471.17, 471.19 or
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471.20 may not be convicted of an offence against this section in
relation to the conduct that constituted the underlying offence.
471.23 Alternative verdict if aggravated offence not proven
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 471.16,
471.17, 471.19 or 471.20;
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.
Subdivision C—Offences relating to use of postal or similar
service involving sexual activity with person under 16
471.24 Using a postal or similar service to procure persons under 16
(1) 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 procuring 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 procuring the
recipient to engage in sexual activity with another person (the
participant); and
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(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 procuring 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.
Penalty: Imprisonment for 15 years.
471.25 Using a postal or similar service to “groom” persons under
16
(1) 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 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 12 years.
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(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 12 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.
Penalty: Imprisonment for 15 years.
471.26 Using a postal or similar service to send indecent material to
person under 16
(1) 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 article is, or contains, material that is indecent; and
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(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 7 years.
(2) In a prosecution for an offence against subsection (1), whether
material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary
people.
471.27 Age-related provisions relating to offences against this
Subdivision
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 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.
(2) For the purposes of an offence against subsection 471.24(2) or (3)
or 471.25(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 the recipient
was represented to the sender as being under or of a particular age
is, in the absence of evidence to the contrary, proof that the sender
believed the recipient to be under or of that age.
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(4) For the purposes of sections 471.24 and 471.25, evidence that the
participant was represented to the sender as being:
(a) at least 18; or
(b) over or of a particular age;
is, in the absence of evidence to the contrary, proof that the sender
believed the participant to be at least 18 or over or of that particular
age.
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.
471.28 Other provisions relating to offences against this Subdivision
Impossibility of sexual activity taking place
(1) A person may be found guilty of an offence against section 471.24
or 471.25 even if it is impossible for the sexual activity referred to
in that section to take place.
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Fictitious recipient
(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.
Attempt not offence
(3) It is not an offence to attempt to commit an offence against
section 471.24 or 471.25.
471.29 Defences to offences against this Subdivision
Belief that recipient at least 16
(1) It is a defence to a prosecution for an offence against this
Subdivision 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.
Offences involving procuring or “grooming” child for 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) or 471.25(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) or (2), the trier of fact may take into account
whether the alleged belief was reasonable in the circumstances.
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Subdivision D—Miscellaneous
471.30 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—category A)
applies to an offence against Subdivision B or C of this Division.
471.31 Definition of carry by post does not apply
To avoid doubt, the definition of carry by post in section 470.1
does not apply in relation to Subdivision B or C of this Division.
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Division 472—Miscellaneous
472.1 Saving of other laws
This Part is not intended to exclude or limit the operation of any
other law of the Commonwealth or any law of a State or Territory.
472.2 Interpretation of other laws
In determining the meaning of a provision of:
(a) Part VIIA of the Crimes Act 1914; or
(b) the Australian Postal Corporation Act 1989;
this Part is to be disregarded.
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Part 10.6—Telecommunications Services
Division 473—Preliminary
473.1 Definitions
In this Part:
access in relation to material includes:
(a) the display of the material by a computer or any other output
of the material from a computer; or
(b) the copying or moving of the material to any place in a
computer or to a data storage device; or
(c) in the case of material that is a program—the execution of
the program.
account identifier means:
(a) something that:
(i) contains subscription-specific secure data; and
(ii) is installed, or capable of being installed, in a mobile
telecommunications device; or
(b) anything else that:
(i) allows a particular mobile telecommunications account
to be identified; and
(ii) is prescribed by the regulations as an account identifier
for the purposes of this Part.
Note: Paragraph (a)—This would include a SIM card.
AFP Minister means the Minister administering the Australian
Federal Police Act 1979.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
Note: See also section 474.3 respecting persons who are taken to be carriage
service providers in relation to certain matters.
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carrier has the same meaning as in the Telecommunications Act
1997.
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.
child pornography material means:
(a) 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
(b) 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
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(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
(c) 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
(d) 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.
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.
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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.
emergency call person has the same meaning as in the
Telecommunications Act 1997.
emergency service number has the same meaning as in the
Telecommunications Act 1997.
emergency service organisation has the same meaning as in
section 147 of the Telecommunications (Consumer Protection and
Service Standards) Act 1999.
facility has the same meaning as in the Telecommunications Act
1997.
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:
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(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.
Terms used in this definition that are defined in the
Telecommunications (Interception and Access) Act 1979 have the
same meaning in this definition as they have in that Act.
internet content host has the same meaning as in Schedule 5 to the
Broadcasting Services Act 1992.
internet service provider has the same meaning as in Schedule 5 to
the Broadcasting Services Act 1992.
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;
(c) a member of the staff of the Australian Crime Commission
(within the meaning of the Australian Crime Commission Act
2002);
(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;
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(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 1988 of 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;
(iv) a member of staff of the Commission (within the
meaning of the Law Enforcement Conduct Commission
Act 2016 (NSW));
(ia) an IBAC Officer within the meaning of the Independent
Broad-based Anti-corruption Commission Act 2011 (Vic.);
(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.
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
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1997) that is used, or is capable of being used, in connection with a
public mobile telecommunications service.
National Relay Service has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
NRS provider means:
(a) a person who:
(i) is a contractor (within the meaning of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999); and
(ii) provides the whole or a part of the National Relay
Service; or
(b) a person who:
(i) is a grant recipient (within the meaning of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999); and
(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.
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
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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 relates to a person who is, or appears to be, under 18
years of age, see:
(a) the definition of child pornography material; and
(b) the child pornography offences in Subdivision D.
producing data, or material that is in the form of data, has the
meaning given by section 473.3.
property has the same meaning as in Chapter 7.
public mobile telecommunications service has the same meaning
as in the Telecommunications Act 1997.
radiocommunication has the same meaning as in the
Radiocommunications Act 1992.
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.
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Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
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.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
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Preliminary Division 473
Section 473.2
Criminal Code Act 1995 341
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use, a carriage service, has a meaning affected by section 473.5.
473.2 Possession or control of data or material in the form of data
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).
473.3 Producing, supplying or obtaining data or material in the
form of data
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.
473.4 Determining whether material is offensive
(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).
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Division 473 Preliminary
Section 473.5
342 Criminal Code Act 1995
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(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.
(3) Subsection (2) does not limit subsection (1).
Definition
(4) In this section:
consent means free and voluntary agreement.
473.5 Use of a carriage service
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.
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Section 474.1
Criminal Code Act 1995 343
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Division 474—Telecommunications offences
Subdivision A—Dishonesty with respect to carriage services
474.1 Dishonesty
(1) For the purposes of this Subdivision, 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.
(2) In a prosecution for an offence against this Subdivision, the
determination of dishonesty is a matter for the trier of fact.
474.2 General dishonesty with respect to a carriage service provider
Obtaining a gain
(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.
Penalty: Imprisonment for 5 years.
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Division 474 Telecommunications offences
Section 474.3
344 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Subdivision B—Interference with telecommunications
474.3 Person acting for a carrier or carriage service provider
(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
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a carriage service provider.
474.4 Interception devices
(1) A person commits an offence if:
(a) the person:
(i) manufactures; or
(ii) advertises, displays or offers for sale; or
(iii) sells; or
(iv) possesses;
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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).
474.5 Wrongful delivery of communications
(1) A person commits an offence if:
(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).
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Section 474.6
346 Criminal Code Act 1995
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474.6 Interference with facilities
(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
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(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.
474.7 Modification etc. of a telecommunications device identifier
(1) A person commits an offence if the person:
(a) modifies a telecommunications device identifier; or
(b) interferes with the operation of a telecommunications device
identifier.
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Section 474.8
348 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
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.
474.8 Possession or control of data or a device with intent to modify
a telecommunications device identifier
(1) A person commits an offence if:
(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).
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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.
474.9 Producing, supplying or obtaining data or a device with intent
to modify a telecommunications device identifier
(1) A person commits an offence if:
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(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).
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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.
474.10 Copying subscription-specific secure data
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.
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Section 474.11
352 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
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.
474.11 Possession or control of data or a device with intent to copy
an account identifier
(1) A person commits an offence if:
(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
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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.
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474.12 Producing, supplying or obtaining data or a device with
intent to copy an account identifier
(1) A person commits an offence if:
(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).
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(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.
Subdivision C—General offences relating to use of
telecommunications
474.14 Using a telecommunications network with intention to
commit a serious offence
(1) A person commits an offence if:
(a) the person:
(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:
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(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).
474.15 Using a carriage service to make a threat
Threat to kill
(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.
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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.
474.16 Using a carriage service for a hoax threat
A person commits an offence if:
(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.
Penalty: Imprisonment for 10 years.
474.17 Using a carriage service to menace, harass or cause offence
(1) A person commits an offence if:
(a) the person uses a carriage 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.
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
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(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.
474.17A Aggravated offences involving private sexual material—
using a carriage service to menace, harass or cause
offence
Standard aggravated offence
(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
(c) the material is private sexual material; and
(d) before the commission of the underlying offence, 3 or more
civil penalty orders were made against the person under the
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Regulatory Powers (Standard Provisions) Act 2014 in
relation to contraventions of subsection 44B(1) of the
Enhancing Online Safety Act 2015.
Penalty: Imprisonment for 7 years.
(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.
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When conviction must be set aside
(13) If:
(a) a person has been convicted by a court of an offence against
subsection (4) on the basis that 3 or more civil penalty orders
were made against the person under the Regulatory Powers
(Standard Provisions) Act 2014 in relation to contraventions
of subsection 44B(1) of the Enhancing Online Safety Act
2015; and
(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.
474.17B Alternative verdict if aggravated offence not proven
(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
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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.
474.18 Improper use of emergency call service
(1) A person commits an offence if the person:
(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
(c) any other relevant matter.
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Subdivision D—Offences relating to use of carriage service for
child pornography material or child abuse material
474.19 Using a carriage service for child pornography material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself;
or
(iii) transmits, makes available, publishes, distributes,
advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child pornography material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the
physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in
paragraph (1)(a);
(b) recklessness is the fault element for the circumstances
referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and
5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences
are provided for under section 474.21 in relation to this section.
474.20 Possessing, controlling, producing, supplying or obtaining
child pornography material for use through a carriage
service
(1) A person commits an offence if:
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(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child pornography material; 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 474.19 (using a
carriage service for child pornography 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 474.19 (using a
carriage service for child pornography material) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
474.21 Defences in respect of child pornography material
(1) A person is not criminally responsible for an offence against
section 474.19 (using a carriage service for child pornography
material) or 474.20 (possessing etc. child pornography material for
use through a carriage 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:
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(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 474.19 (using a carriage service for child pornography
material) or 474.20 (possessing etc. child pornography material for
use through a carriage 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).
(4) A person is not criminally responsible for an offence against
section 474.19 (using a carriage service for child pornography
material) or 474.20 (possessing etc. child pornography material for
use through a carriage service) if the person engages in the conduct
in good faith for the sole purpose of:
(a) assisting the eSafety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to
the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that
Schedule);
in the performance of the Commissioner’s functions under
Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering
technology (including software) in accordance with:
(i) a recognised alternative access-prevention arrangement
(within the meaning of clause 40 of Schedule 5 to the
Broadcasting Services Act 1992); or
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(ii) a designated alternative access-prevention arrangement
(within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
474.22 Using a carriage service for child abuse material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself;
or
(iii) transmits, makes available, publishes, distributes,
advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the
physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in
paragraph (1)(a);
(b) recklessness is the fault element for the circumstances
referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and
5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences
are provided for under section 474.24 in relation to this section.
474.23 Possessing, controlling, producing, supplying or obtaining
child abuse material for use through a carriage service
(1) A person commits an offence if:
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(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; 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 474.22 (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).
474.24 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against
section 474.22 (using a carriage service for child abuse material) or
474.23 (possessing etc. child abuse material for use through a
carriage 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:
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(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 (using a carriage service for child abuse material) or
474.23 (possessing etc. child abuse material for use through a
carriage 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).
(4) A person is not criminally responsible for an offence against
section 474.22 (using a carriage service for child abuse material) or
474.23 (possessing etc. child abuse material for use through a
carriage service) if the person engages in the conduct in good faith
for the sole purpose of:
(a) assisting the eSafety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to
the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that
Schedule);
in the performance of the Commissioner’s functions under
Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering
technology (including software) in accordance with:
(i) a recognised alternative access-prevention arrangement
(within the meaning of clause 40 of Schedule 5 to the
Broadcasting Services Act 1992); or
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(ii) a designated alternative access-prevention arrangement
(within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
474.24A Aggravated offence—offence involving conduct on 3 or
more occasions and 2 or more people
(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:
(i) section 474.19 (using a carriage service for child
pornography materian( �
(ii) section 474.20 (possessing etc. child pornography
material for use through a carriage service);
(iii) section 474.22 (using a carriage service for child abuse
materian( �
(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 25 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 474.19,
474.20, 474.22 or 474.23.
(3) To avoid doubt, a person does not commit an offence against
section 474.19, 474.20, 474.22 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.
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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 474.19, 474.20, 474.22 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 474.19, 474.20, 474.22 or
474.23 may not be convicted of an offence against this section in
relation to the conduct that constituted the underlying offence.
474.24B Alternative verdict if aggravated offence not proven
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 474.19,
474.20, 474.22 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.
474.24C Consent to commencement of proceedings where defendant
under 18
(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.
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Subdivision E—Offence relating to obligations of internet
service providers and internet content hosts
474.25 Obligations of internet service providers and internet content
hosts
A person commits an offence if the person:
(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:
(i) child pornography material; or
(ii) 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.
Penalty: 800 penalty units.
Subdivision F—Offences relating to use of carriage service
involving sexual activity with, or causing harm to,
person under 16
474.25A Using a carriage service for sexual activity with person
under 16 years of age
Engaging in sexual activity with child using a carriage service
(1) A person commits an offence if:
(a) the person engages in sexual activity with another person (the
child) using a carriage service; and
(b) the child is under 16 years of age; and
(c) the person is at least 18 years of age.
Penalty: Imprisonment for 15 years.
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Causing child to engage in sexual activity with another person
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another
person (the child); and
(b) that conduct causes the child to engage in sexual activity with
another person (the participant) using a carriage service; and
(c) the child is under 16 years of age when the sexual activity is
engaged in; and
(d) the participant is at least 18 years of age when the sexual
activity is engaged in.
Penalty: Imprisonment for 15 years.
(3) The fault element for paragraph (2)(b) is intention.
Defence—child present but defendant does not intend to derive
gratification
(4) 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 a person 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 other defences relating to this offence, see section 474.29.
474.25B Aggravated offence—child with mental impairment or
under care, supervision or authority of defendant
(1) A person commits an offence against this section if:
(a) the person commits an 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);
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(ii) subsection 474.25A(2) (causing child to engage in
sexual activity with another person); and
(b) either or both of the following apply at the time the person
commits the offence:
(i) the child has a mental impairment;
(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.
Penalty: Imprisonment for 25 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.
474.25C Using a carriage service to prepare or plan to cause harm
to, engage in sexual activity with, or procure for sexual
activity, persons under 16
A person (the first person) commits an offence if:
(a) the first person does any act in preparation for doing, or
planning to do, any of the following:
(i) causing harm to a person under 16 years of age;
(ii) engaging in sexual activity with a person under 16 years
of age;
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(iii) procuring a person under 16 years of age to engage in
sexual activity; and
(b) the first person is at least 18 years of age; and
(c) the act is done using a carriage service.
Penalty: Imprisonment for 10 years.
Example: A person misrepresents their age online as part of a plan to cause harm
to another person under 16 years of age.
474.26 Using a carriage service to procure persons under 16 years of
age
(1) 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 procuring 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 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 procuring 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 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
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(b) the sender does this with the intention of procuring 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 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.
Penalty: Imprisonment for 15 years.
474.27 Using a carriage service to “groom” persons under 16 years
of age
(1) 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 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 12 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
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(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 12 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.
Penalty: Imprisonment for 15 years.
474.27A Using a carriage service to transmit indecent
communication to person under 16 years of age
(1) 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 communication includes material that is indecent; and
(c) the recipient 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 7 years.
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(2) In a prosecution for an offence against subsection (1), whether
material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary
people.
474.28 Provisions relating to offences against this Subdivision
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—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) or 474.27(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 and 474.27A, evidence
that the recipient was represented to the sender as being under or of
a particular age is, in the absence of evidence to the contrary, proof
that the sender believed the recipient to be under or of that age.
(4) For the purposes of sections 474.25A, 474.26 and 474.27, evidence
that the participant was represented to the sender as being:
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(a) at least 18 years of age; or
(b) over or of a particular age;
is, in the absence of evidence to the contrary, proof that the sender
believed the participant to be at least 18 years of age or over or of
that age.
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
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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
or 474.27 even if it is impossible for the sexual activity referred to
in that section to take place.
Fictitious recipient
(9) For the purposes of sections 474.26, 474.27 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.
Attempt not offence
(10) It is not an offence to attempt to commit an offence against
section 474.26 or 474.27.
474.29 Defences to offences against this Subdivision
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.
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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.
Offences involving procuring or “grooming” person for 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) or 474.27(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
recipient 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.
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Section 474.29A
380 Criminal Code Act 1995
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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.
Subdivision G—Offences relating to use of carriage service for
suicide related material
474.29A Using a carriage service for suicide related material
(1) 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 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
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(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
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(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.
474.29B Possessing, controlling, producing, supplying or obtaining
suicide related material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material directly or indirectly:
(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.
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(3) It is not an offence to attempt to commit an offence against
subsection (1).
Subdivision H—Offences relating to use of carriage service for
sharing of abhorrent violent material
474.30 Definitions
In this Subdivision:
abhorrent violent conduct has the meaning given by
section 474.32.
abhorrent violent material has the meaning given by
section 474.31.
consent means free and voluntary agreement.
content service means:
(a) a social media service (within the meaning of the Enhancing
Online Safety Act 2015); or
(b) a designated internet service (within the meaning of the
Enhancing Online Safety Act 2015).
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.
474.31 Abhorrent violent material
(1) For the purposes of this Subdivision, abhorrent violent material
means material that:
(a) is:
(i) audio material; or
(ii) visual material; or
(iii) audio-visual material;
that records or streams abhorrent violent conduct engaged in
by one or more persons; and
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(b) is material that reasonable persons would regard as being, in
all the circumstances, offensive; and
(c) is produced by a person who is, or by 2 or more persons each
of whom is:
(i) a person who engaged in the abhorrent violent conduct;
or
(ii) a person who conspired to engage in the abhorrent
violent conduct; or
(iii) a person who aided, abetted, counselled or procured, or
was in any way knowingly concerned in, the abhorrent
violent conduct; or
(iv) a person who attempted to engage in the abhorrent
violent conduct.
(2) For the purposes of this section, it is immaterial whether the
material has been altered.
(3) For the purposes of this section, it is immaterial whether the
abhorrent violent conduct was engaged in within or outside
Australia.
474.32 Abhorrent violent conduct
(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
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(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
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(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.
474.33 Notification obligations of internet service providers, content
service providers and hosting service providers
(1) A person commits an offence if:
(a) the person:
(i) is an internet service provider; or
(ii) provides a content service; or
(iii) provides a hosting service; and
(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.
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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).
474.34 Removing, or ceasing to host, abhorrent violent material
Content service
(1) A person commits an offence if:
(a) the person provides a content service; and
(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.
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(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;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
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(12) For the purposes of subsection (11), it is immaterial whether the
supplies were made, or are likely to be made, within or outside
Australia.
(13) Expressions used in subsections (11) and (12) that are also used in
the A New Tax System (Goods and Services Tax) Act 1999 have the
same meaning in those subsections as they have in that Act.
(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.
474.35 Notice issued by eSafety Commissioner in relation to a
content service—presumptions
(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.
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(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).
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(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.
474.36 Notice issued by eSafety Commissioner in relation to a
hosting service—presumptions
(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;
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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.
474.37 Defences in respect of abhorrent violent material
Content service
(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:
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(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:
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(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
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(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
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(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.
474.38 Implied freedom of political communication
(1) This Subdivision does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
(2) Subsection (1) does not limit the application of section 15A of the
Acts Interpretation Act 1901 to this Act.
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474.39 Provider of content service
(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.
474.40 Service of copies of notices by electronic means
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act
1999 do 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 1999
deal with the consent of the recipient of information to the information
being given by way of electronic communication.
474.41 Giving a copy of a notice to a contact person etc.
Contact person
(1) If:
(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.
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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.
Other matters
(3) Subsections (1) and (2) have effect in addition to section 28A of
the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service
of documents.
474.42 Attorney-General’s consent required for prosecution
Offence against section 474.33
(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.
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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.
474.43 Compensation for acquisition of property
(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.
474.44 This Subdivision does not limit Schedule 5 or 7 to the
Broadcasting Services Act 1992
This Subdivision does not limit the operation of Schedule 5 or 7 to
the Broadcasting Services Act 1992.
474.45 Review of this Subdivision
(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.
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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.
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Section 475.1A
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Division 475—Miscellaneous
475.1A Defences for NRS employees and emergency call persons
(1) A person is not criminally responsible for an offence against a
provision of Subdivision C, D, E, F or G 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 or G 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.
475.1B Provisions relating to element of offence that particular
conduct was engaged in using a carriage service
Presumption that conduct engaged in using carriage service
(1) If:
(a) a physical element of an offence against Subdivision C, D, E
or F 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:
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(a) a physical element of an offence against Subdivision C, D, E
or F 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.
Note: For absolute liability, see section 6.2.
475.1 Saving of other laws
(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.
475.2 Geographical jurisdiction
(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.
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Part 10.7—Computer offences
Division 476—Preliminary
476.1 Definitions
(1) In this Part:
access to data held in a computer means:
(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:
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(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.
476.2 Meaning of unauthorised access, modification or impairment
(1) In this Part:
(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; 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 2004 or
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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.
476.3 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—Category A)
applies to offences under this Part.
476.4 Saving of other laws
(1) This Part is not intended to exclude or limit the operation of any
other law of the Commonwealth, a State or a Territory.
(2) Subsection (1) has effect subject to section 476.5.
476.5 Liability for certain acts
(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
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(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:
(a) an act that ASIO could not do without a Minister authorising
it by warrant issued under Division 2 of Part III of the
Australian Security Intelligence Organisation Act 1979 or
under Part 2-2 of the Telecommunications (Interception and
Access) Act 1979; or
(b) an act to obtain information that ASIO could not obtain other
than in accordance with Division 3 of Part 4-1 of the
Telecommunications (Interception and Access) Act 1979.
(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.
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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).
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Part 10.7 Computer offences
Division 477 Serious computer offences
Section 477.1
408 Criminal Code Act 1995
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Division 477—Serious computer offences
477.1 Unauthorised access, modification or impairment with intent
to commit a serious offence
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.
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Serious computer offences Division 477
Section 477.2
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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.
477.2 Unauthorised modification of data to cause impairment
(1) A person commits an offence if:
(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).
477.3 Unauthorised impairment of electronic communication
(1) A person commits an offence if:
(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.
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Section 477.3
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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).
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Other computer offences Division 478
Section 478.1
Criminal Code Act 1995 411
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Division 478—Other computer offences
478.1 Unauthorised access to, or modification of, restricted data
(1) A person commits an offence if:
(a) the person causes any unauthorised access to, or modification
of, restricted data; and
(b) the person intends to cause the access or modification; and
(c) the person knows that the access or modification is
unauthorised.
Penalty: 2 years imprisonment.
(3) In this section:
restricted data means data:
(a) held in a computer; and
(b) to which access is restricted by an access control system
associated with a function of the computer.
478.2 Unauthorised impairment of data held on a computer disk etc.
A person commits an offence if:
(a) the person causes any unauthorised impairment of the
reliability, security or operation of data held on:
(i) a computer disk; or
(ii) a credit card; or
(iii) another device used to store data by electronic means;
and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: 2 years imprisonment.
478.3 Possession or control of data with intent to commit a computer
offence
(1) A person commits an offence if:
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(a) the person has possession or control of data; and
(b) the person has that possession or control with the intention
that the data be used, by the person or another person, in:
(i) committing an offence against Division 477; or
(ii) facilitating the commission of such an offence.
Penalty: 3 years imprisonment.
(2) A person may be found guilty of an offence against this section
even if committing the offence against Division 477 is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit an offence against this
section.
Meaning of possession or control of data
(4) In this section, a reference to a person having possession or control
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).
478.4 Producing, supplying or obtaining data with intent to commit
a computer offence
(1) A person commits an offence if:
(a) the person produces, supplies or obtains data; and
(b) the person does so with the intention that the data be used, by
the person or another person, in:
(i) committing an offence against Division 477; or
(ii) facilitating the commission of such an offence.
Penalty: 3 years imprisonment.
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Section 478.4
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(2) A person may be found guilty of an offence against this section
even if committing the offence against Division 477 is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit an offence against this
section.
Meaning of producing, supplying or obtaining data
(4) In this section, a reference to a person producing, supplying or
obtaining 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.
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Part 10.8 Financial information offences
Section 480.1
414 Criminal Code Act 1995
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Part 10.8—Financial information offences
480.1 Definitions
(1) In this Part:
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:
(a) an individual; or
(b) a corporation; or
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Section 480.2
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(c) a living or dead person.
480.2 Dishonesty
(1) For the purposes of this Part, 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.
(2) In a prosecution for an offence against this Part, the determination
of dishonesty is a matter for the trier of fact.
480.3 Constitutional application of this Part
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.
480.4 Dishonestly obtaining or dealing in personal financial
information
A person commits an offence if the person:
(a) dishonestly obtains, or deals in, personal financial
information; and
(b) obtains, or deals in, that information without the consent of
the person to whom the information relates.
Penalty: Imprisonment for 5 years.
480.5 Possession or control of thing with intent to dishonestly obtain
or deal in personal financial information
(1) A person commits an offence if:
(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:
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(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).
480.6 Importation of thing with intent to dishonestly obtain or deal
in personal financial information
A person commits an offence if the person:
(a) imports a thing into Australia; and
(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.
Penalty: Imprisonment for 3 years.
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Accounting records Part 10.9
False dealing with accounting documents Division 490
Section 490.1
Criminal Code Act 1995 417
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Part 10.9—Accounting records
Division 490—False dealing with accounting documents
490.1 Intentional false dealing with accounting documents
(1) A person commits an offence if:
(a) the person:
(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
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Section 490.1
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(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;
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(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.
490.2 Reckless false dealing with accounting documents
(1) A person commits an offence if:
(a) the person:
(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.
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Division 490 False dealing with accounting documents
Section 490.3
420 Criminal Code Act 1995
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(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.
490.3 Meaning of annual turnover
(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;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
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(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(2) Expressions used in this section that are also used in the A New Tax
System (Goods and Services Tax) Act 1999 have the same meaning
in this section as they have in that Act.
490.4 Related 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.
490.5 Proof of certain matters unnecessary
In a prosecution for an offence against this Division, it is not
necessary to prove:
(a) the occurrence of any of the following:
(i) the defendant receiving or giving a benefit;
(ii) another person receiving or giving a benefit;
(iii) loss to another person; or
(b) that the defendant intended that a particular person receive or
give a benefit, or incur a loss.
490.6 Consent to commencement of proceedings
(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.
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Section 490.7
422 Criminal Code Act 1995
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(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.
490.7 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
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Dictionary
ABN (short for Australian Business Number) has the meaning
given by section 41 of the A New Tax System (Australian Business
Number) Act 1999.
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.
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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.
Australian ship means:
(a) a ship registered, or required to be registered, under the
Shipping Registration Act 1981; or
(b) an unregistered ship that has Australian nationality; or
(c) a defence ship.
benefit includes any advantage and is not limited to property.
burglary means an offence against section 132.4.
carriage service has the same meaning as in the
Telecommunications Act 1997.
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:
(a) a body established by or under:
(ii) the Australian Capital Territory (Self-Government) Act
1988; or
(iii) the Corporations Act 2001; or
(iv) the Norfolk Island Act 1979; or
(v) the Northern Territory (Self-Government) Act 1978; or
(aa) a corporation registered under the Corporations (Aboriginal
and Torres Strait Islander) Act 2006; or
(ab) an organisation registered, or an association recognised,
under the Fair Work (Registered Organisations) Act 2009; or
(b) a body specified in the regulations.
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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
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(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:
(i) the Corporations (Aboriginal and Torres Strait
Islander) Act 2006; or
(ii) the Australian Capital Territory (Self-Government) Act
1988; or
(iii) the Corporations Act 2001; or
(iv) the Norfolk Island Act 1979; or
(v) the Northern Territory (Self-Government) Act 1978; or
(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:
(i) the Corporations (Aboriginal and Torres Strait
Islander) Act 2006; or
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(ii) the Australian Capital Territory (Self-Government) Act
1988; or
(iii) the Corporations Act 2001; or
(iv) the Norfolk Island Act 1979; or
(v) the Northern Territory (Self-Government) Act 1978; or
(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
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(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.
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debt bondage has the same meaning as in Division 270 (see
section 270.1A).
de facto partner has the meaning given by the Acts Interpretation
Act 1901.
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 Minister means the Minister administering the Defence
Force Discipline Act 1982.
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 1957
applies.
electronic communication means a communication by means of
guided or unguided electromagnetic energy or both.
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.
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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.
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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.
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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.
official of a registered industrial organisation means a person
who holds an office (within the meaning of the Fair Work Act
2009) in an organisation registered, or an association recognised,
under the Fair Work (Registered Organisations) Act 2009.
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.
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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;
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(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.
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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.
referendum has the same meaning as in the Referendum
(Machinery Provisions) Act 1984.
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
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
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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
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(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.
technical assistance notice has the same meaning as in Part 15 of
the Telecommunications Act 1997.
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technical assistance request has the same meaning as in Part 15 of
the Telecommunications Act 1997.
technical capability notice has the same meaning as in Part 15 of
the Telecommunications Act 1997.
theft means an offence against section 131.1.
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.
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Endnote 1—About the endnotes
Criminal Code Act 1995 439
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision (generally section or equivalent) level. It also includes information
about any provision of the compiled law that has been repealed in accordance
with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make
editorial and presentational changes to a compiled law in preparing a
compilation of the law for registration. The changes must not change the effect
of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief
outline of the changes in general terms. Full details of any changes can be
obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe
the amendment to be made. If, despite the misdescription, the amendment can
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Endnote 1—About the endnotes
440 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
be given effect as intended, the amendment is incorporated into the compiled
law and the abbreviation “(md)” added to the details of the amendment included
in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the
abbreviation “(md not incorp)” is added to the details of the amendment
included in the amendment history.
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Endnote 2—Abbreviation key
Criminal Code Act 1995 441
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Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced
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Endnote 3—Legislation history
442 Criminal Code Act 1995
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Endnote 3—Legislation history
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Criminal Code Act 1995 12, 1995 15 Mar
1995
1 Jan 1997 (s 2(1) and
gaz 1996, No S534)
Criminal Code
Amendment Act 1998
12, 1998 13 Apr
1998
13 Apr 1998 (s 2) —
Criminal Code
Amendment (Bribery of
Foreign Public Officials)
Act 1999
43, 1999 17 June
1999
17 Dec 1999 (s 2(2)) —
Criminal Code
Amendment (Slavery
and Sexual Servitude)
Act 1999
104, 1999 24 Aug
1999
Sch 1: 21 Sept 1999 (s 2) —
Criminal Code
Amendment
(Application) Act 2000
4, 2000 29 Feb
2000
29 Feb 2000 (s 2) —
Criminal Code
Amendment (United
Nations and Associated
Personnel) Act 2000
124, 2000 26 Oct
2000
1 Jan 2001 (s 2(1) and
gaz 2000, No GN45)
—
Criminal Code
Amendment (Theft,
Fraud, Bribery and
Related Offences) Act
2000
137, 2000 24 Nov
2000
Sch 1 (items 1A, 2, 3, 5,
7A, 7B, 8, 8A–8F, 12–
31, 33–41): 24 May
2001 (s 2(3))
Sch 1 (items 1, 4, 6, 7,
9–11, 32): 24 Nov 2000
(s 2(1)(b))
—
Law and Justice
Legislation Amendment
(Application of Criminal
Code) Act 2001
24, 2001 6 Apr 2001 s 4(1) and (2): 24 May
2001 (s 2(1)(a))
Sch 1 (item 3): 4 May
2001 (s 2(2))
s 4(1) and (2)
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Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Corporations (Repeals,
Consequentials and
Transitionals) Act 2001
55, 2001 28 June
2001
s 4–14 and Sch 3
(items 148–150): 15 July
2001 (s 2(1), (3) and gaz
2001, No S285)
s 4–14
Cybercrime Act 2001 161, 2001 1 Oct 2001 s 4 and Sch 1 (items 3,
4): 21 Dec 2001 (s 2(1)
and gaz 2001, No S529)
s 4
Criminal Code
Amendment (Anti-hoax
and Other Measures) Act
2002
9, 2002 4 Apr 2002 Sch 1: 2 pm (A.C.T.)
16 Oct 2001 (s 2(1)
item 2)
Sch 2 (items 4–6): 4 Apr
2002 (s 2(1) item 3)
—
International Criminal
Court (Consequential
Amendments) Act 2002
42, 2002 27 June
2002
Sch 1: 26 Sept 2002
(s 2(1) item 2)
—
Criminal Code
Amendment
(Suppression of Terrorist
Bombings) Act 2002
58, 2002 3 July 2002 Sch 1 (item 1): 8 Sept
2002 (s 2(1) item 2 and
gaz 2002, No S331)
—
Security Legislation
Amendment (Terrorism)
Act 2002
65, 2002 5 July 2002 s 4: 5 July 2002 (s 2(1)
item 1)
Sch 1 (items 1, 3): never
commenced (s 2(1)
items 2, 4)
Sch 1 (items 2, 4, 5):
6 July 2002 (s 2(1)
items 3, 5)
s 4 and Sch 1
(item 5)
as amended by
Criminal Code
Amendment
(Terrorism) Act 2003
40, 2003 27 May
2003
Sch 2: 29 May 2003
(s 2(1) item 2 and gaz
2003, No S175)
—
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Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Suppression of the
Financing of Terrorism
Act 2002
66, 2002 5 July 2002 Sch 1 (item 1): 5 July
2002 (s 2(1) item 2)
Sch 1 (items 2, 3): 6 July
2002 (s 2(1) items 3, 4)
—
Proceeds of Crime
(Consequential
Amendments and
Transitional Provisions)
Act 2002
86, 2002 11 Oct
2002
Sch 1 (item 1): 1 Jan
2003 (s 2(1) item 2)
—
Criminal Code
Amendment (Terrorist
Organisations) Act 2002
89, 2002 23 Oct
2002
23 Oct 2002 (s 2) Sch 1 (item 3)
Criminal Code
Amendment (Espionage
and Related Matters) Act
2002
91, 2002 31 Oct
2002
s 4: 31 Oct 2002 (s 2(1)
item 1)
Sch 1 (item 5): 28 Nov
2002 (s 2(1) item 4)
s 4
Workplace Relations
Legislation Amendment
(Registration and
Accountability of
Organisations)
(Consequential
Provisions) Act 2002
105, 2002 14 Nov
2002
Sch 3 (items 38–40):
12 May 2003 (s 2(1)
item 23)
—
as amended by
Workplace Relations
Legislation
Amendment Act 2002
127, 2002 11 Dec
2002
Sch 3 (items 53–55):
12 May 2003 (s 2(1)
item 32)
—
Criminal Code
Amendment (Offences
Against Australians) Act
2002
106, 2002 14 Nov
2002
Sch 1: 1 Oct 2002 (s 2(1)
item 2)
—
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Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Australian Crime
Commission
Establishment Act 2002
125, 2002 10 Dec
2002
Sch 2 (items 31, 32):
1 Jan 2003 (s 2(1)
item 3)
—
Crimes Legislation
Amendment (People
Smuggling, Firearms
Trafficking and Other
Measures) Act 2002
141, 2002 19 Dec
2002
Sch 1, 2 and Sch 3
(items 5–20): 16 Jan
2003 (s 2(1) items 2, 3)
—
Criminal Code
Amendment (Terrorism)
Act 2003
40, 2003 27 May
2003
Sch 1: 29 May 2003
(s 2(1) item 2 and gaz
2003, No S175)
—
Criminal Code
Amendment (Hizballah)
Act 2003
44, 2003 24 June
2003
Sch 1: 29 May 2013
(s 2(1) item 2)
—
Criminal Code
Amendment (Hamas and
Lashkar-e-Tayyiba) Act
2003
109, 2003 7 Nov 2003 5 Nov 2003 (s 2) —
Legislative Instruments
(Transitional Provisions
and Consequential
Amendments) Act 2003
140, 2003 17 Dec
2003
s 4 and Sch 1 (item 16):
1 Jan 2005 (s 2(1)
items 2, 3)
s 4
Criminal Code
Amendment (Terrorist
Organisations) Act 2004
7, 2004 10 Mar
2004
10 Mar 2004 (s 2) —
Anti-terrorism Act 2004 104, 2004 30 June
2004
Sch 1 (items 19, 20):
1 July 2004 (s 2)
—
Anti-terrorism Act
(No. 2) 2004
124, 2004 16 Aug
2004
Sch 3 (items 1–3):
17 Aug 2004 (s 2(1)
item 4)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
446 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Amendment
(Telecommunications
Offences and Other
Measures) Act (No. 2)
2004
127, 2004 31 Aug
2004
Sch 1 (items 1, 6–23,
30): 1 Mar 2005 (s 2(1)
item 2)
Sch 2–4: 28 Sept 2004 (s
2(1) item 3)
Sch 1 (item 30)
and Sch 4
(items 2, 8)
Surveillance Devices Act
2004
152, 2004 15 Dec
2004
Sch 1 (item 4): 15 Dec
2004 (s 2)
—
Australian Passports
(Transitionals and
Consequentials) Act
2005
7, 2005 18 Feb
2005
Sch 1 (item 6): 1 July
2005 (s 2(1) item 3)
—
Australian
Communications and
Media Authority
(Consequential and
Transitional Provisions)
Act 2005
45, 2005 1 Apr 2005 Sch 3 (items 1, 2) and
Sch 4: 1 July 2005
(s 2(1) items 4, 10)
Sch 4
as amended by
Omnibus Repeal Day
(Autumn 2014) Act
2014
109, 2014 16 Oct
2014
Sch 2 (items 177–181):
17 Oct 2014 (s 2(1)
item 2)
—
Criminal Code
Amendment (Suicide
Related Material
Offences) Act 2005
92, 2005 6 July 2005 Sch 1: 6 Jan 2006 (s 2(1)
item 2)
—
Crimes Legislation
Amendment
(Telecommunications
Interception and Other
Measures) Act 2005
95, 2005 6 July 2005 Sch 1: 1 Mar 2005
(s 2(1) item 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 447
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Criminal Code
Amendment (Trafficking
in Persons Offences) Act
2005
96, 2005 6 July 2005 Sch 1: 3 Aug 2005
(s 2(1) item 2)
—
Statute Law Revision
Act 2005
100, 2005 6 July 2005 Sch 1 (item 12): 1 Jan
2003 (s 2(1) item 8)
—
Anti-Terrorism Act 2005 127, 2005 3 Nov 2005 Sch 1: 4 Nov 2005
(s 2(1) item 2)
Remainder: 3 Nov 2005
(s 2(1) item 1)
s 4
Intelligence Services
Legislation Amendment
Act 2005
128, 2005 4 Nov 2005 Sch 8 (items 9–12):
2 Dec 2005 (s 2(1)
item 2)
—
Law and Justice
Legislation Amendment
(Serious Drug Offences
and Other Measures) Act
2005
129, 2005 8 Nov 2005 Sch 1 (items 1, 75, 76):
6 Dec 2005 (s 2(1)
item 2)
Sch 2: 26 Oct 2006
(s 2(1) item 3)
Sch 1 (items 75,
76)
Anti-Terrorism Act
(No. 2) 2005
144, 2005 14 Dec
2005
s 4 and Sch 2: 14 Dec
2005 (s 2(1) items 1, 5)
Sch 1 (items 2–21),
Sch 3 (items 1–3) and
Sch 4 (items 1–24):
15 Dec 2005 (s 2(1)
items 2, 6)
Sch 1 (item 22): 16 Feb
2006 (s 2(1) item 3)
Sch 7 (items 5–12):
11 Jan 2006 (s 2(1)
item 7)
s 4
Telecommunications
(Interception)
Amendment Act 2006
40, 2006 3 May 2006 Sch 1 (items 17–19):
13 June 2006 (s 2(1)
item 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
448 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
ASIO Legislation
Amendment Act 2006
54, 2006 19 June
2006
Sch 1 (items 12–14):
20 June 20062006
(s 2(1) item 2)
—
Law Enforcement (AFP
Professional Standards
and Related Measures)
Act 2006
84, 2006 30 June
2006
Sch 3 (items 36–45):
30 Dec 2006 2006
(s 2(1) item 2)
—
Law Enforcement
Integrity Commissioner
(Consequential
Amendments) Act 2006
86, 2006 30 June
2006
Sch 1 (item 32): 30 Dec
2006 2006 (s 2(1)
item 2)
—
Corporations (Aboriginal
and Torres Strait
Islander) Consequential,
Transitional and Other
Measures Act 2006
125, 2006 4 Nov 2006 Sch 2 (items 92–96):
1 July 2007 (s 2(1)
item 2)
—
Anti-Money Laundering
and Counter-Terrorism
Financing (Transitional
Provisions and
Consequential
Amendments) Act 2006
170, 2006 12 Dec
2006
Sch 1 (items 21–38):
13 Dec 2006 (s 2(1)
item 4)
—
Law and Justice
Legislation Amendment
(Marking of Plastic
Explosives) Act 2007
3, 2007 19 Feb
2007
Sch 1: 25 Aug 2007
(s 2(1) item 2)
—
Australian Citizenship
(Transitionals and
Consequentials) Act
2007
21, 2007 15 Mar
2007
Sch 1 (items 24, 25) and
Sch 3 (items 14, 19):
1 July 2007 (s 2(1)
item 2)
Sch 3 (items 14,
19)
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 449
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Communications
Legislation Amendment
(Content Services) Act
2007
124, 2007 20 July
2007
Sch 1 (items 78–81):
20 Jan 2008 (s 2(1)
item 2)
—
International Trade
Integrity Act 2007
147, 2007 24 Sept
2007
Sch 2 (items 1–4):
25 Sept 2007 (s 2(1)
item 3)
—
Telecommunications
(Interception and
Access) Amendment Act
2007
177, 2007 28 Sept
2007
Sch 1 (items 14, 68):
1 Nov 2007 (s 2(1)
item 2)
Sch 1 (item 68)
Wheat Export Marketing
(Repeal and
Consequential
Amendments) Act 2008
66, 2008 30 June
2008
Sch 2 (items 1–5): 1 July
2008 (s 2(1) item 2)
—
Defence Legislation
(Miscellaneous
Amendments) Act 2009
18, 2009 26 Mar
2009
Sch 1 (items 1, 2):
15 Feb 2010 (s 2(1)
item 2)
—
Customs Legislation
Amendment (Name
Change) Act 2009
33, 2009 22 May
2009
Sch 2 (item 20): 23 May
2009 (s 2)
—
Fair Work (State
Referral and
Consequential and Other
Amendments) Act 2009
54, 2009 25 June
2009
Sch 5 (items 21–27):
1 July 2009 (s 2(1)
item 11)
—
Disability
Discrimination and
Other Human Rights
Legislation Amendment
Act 2009
70, 2009 8 July 2009 Sch 3 (item 18): 5 Aug
2009 (s 2(1) item 7)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
450 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Amendment (Serious
and Organised Crime)
Act 2010
3, 2010 19 Feb
2010
Sch 4 (items 1–13):
20 Feb 2010 (s 2(1)
item 7)
—
Crimes Legislation
Amendment (Serious
and Organised Crime)
Act (No. 2) 2010
4, 2010 19 Feb
2010
Sch 4 (items 1–3), Sch 8
and Sch 9: 20 Feb 2010
(s 2(1) items 7, 12)
Sch 5 (items 1–24):
19 Mar 2010 (s 2(1)
item 8)
Sch 4 (item 3) and
Sch 5 (item 24)
Statute Law Revision
Act 2010
8, 2010 1 Mar 2010 Sch 1 (item 15) and
Sch 5 (items 28–31,
137): 1 Mar 2010 (s 2(1)
items 2, 31, 38)
—
Crimes Legislation
Amendment (Torture
Prohibition and Death
Penalty Abolition) Act
2010
37, 2010 13 Apr
2010
Sch 1 (items 1–3):
14 Apr 2010 (s 2)
—
Crimes Legislation
Amendment (Sexual
Offences Against
Children) Act 2010
42, 2010 14 Apr
2010
Sch 1 (items 2–60):
15 Apr 2010 (s 2(1)
item 2)
—
Anti-People Smuggling
and Other Measures Act
2010
50, 2010 31 May
2010
Sch 1 (items 1–6):
1 June 2010 (s 2)
—
National Security
Legislation Amendment
Act 2010
127, 2010 24 Nov
2010
Sch 1 (items 4–32) and
Sch 2 (items 2–24):
25 Nov 2010 (s 2(1)
items 2, 4)
Sch 1 (items 33–37):
22 Dec 2010 (s 2(1)
item 3)
Sch 1 (items 16,
29, 31) and Sch 2
(item 4)
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 451
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Law and Justice
Legislation Amendment
(Identity Crimes and
Other Measures) Act
2011
3, 2011 2 Mar 2011 Sch 1 (items 1–5) and
Sch 7 (item 3): 3 Mar
2011 (s 2(1) items 2, 4)
Sch 1 (item 6): never
commenced (s 2(1)
item 3)
—
Statute Law Revision
Act 2011
5, 2011 22 Mar
2011
Sch 5 (items 75–78) and
Sch 6 (items 28–32):
19 Apr 2011 (s 2(1)
items 13, 15)
—
Acts Interpretation
Amendment Act 2011
46, 2011 27 June
2011
Sch 2 (items 459–461)
and Sch 3 (items 10, 11):
27 Dec 2011 (s 2(1)
items 3, 12)
Sch 3 (items 10,
11)
Intelligence Services
Legislation Amendment
Act 2011
80, 2011 25 July
2011
Sch 1 (item 19): 26 July
2011 (s 2)
—
Crimes Legislation
Amendment (Powers and
Offences) Act 2012
24, 2012 4 Apr 2012 Sch 5 (items 1–12):
4 Apr 2012 (s 2(1)
item 8)
—
Telecommunications
Legislation Amendment
(Universal Service
Reform) Act 2012
44, 2012 16 Apr
2012
Sch 1 (items 108–110,
122, 123): 1 July 2012
(s 2(1) items 3, 4)
Sch 1 (items 122,
123)
Criminal Code
Amendment (Cluster
Munitions Prohibition)
Act 2012
114, 2012 8 Sept 2012 Sch 1: 1 Apr 2013
(s 2(1) item 2)
—
Cybercrime Legislation
Amendment Act 2012
120, 2012 12 Sept
2012
Sch 3: 1 Mar 2013
(s 2(1) item 3)
Sch 3 (item 18)
Statute Law Revision
Act 2012
136, 2012 22 Sept
2012
Sch 1 (items 39, 40) and
Sch 3 (item 4): 22 Sept
2012 (s 2(1) items 2, 35)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
452 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Amendment (Serious
Drugs, Identity Crime
and Other Measures) Act
2012
167, 2012 28 Nov
2012
Sch 1 (items 1–19):
28 May 2013 (s 2(1)
item 2)
Sch 1 (items 23, 24) and
Sch 2 (items 1–7, 9,
10(2)): 29 Nov 2012
(s 2(1) items 3, 4)
Sch 1 (items 23,
24) and Sch 2
(item 10(2))
Wheat Export Marketing
Amendment Act 2012
170, 2012 3 Dec 2012 Sch 1 (items 63–67):
10 Dec 2012 (s 2(1)
item 2)
—
Crimes Legislation
Amendment (Slavery,
Slavery-like Conditions
and People Trafficking)
Act 2013
6, 2013 7 Mar 2013 Sch 1 and 3: 8 Mar 2013
(s 2)
Sch 3
Federal Circuit Court of
Australia (Consequential
Amendments) Act 2013
13, 2013 14 Mar
2013
Sch 1 (items 110A–112):
12 Apr 2013 (s 2(1)
item 2)
—
Customs Amendment
(Anti-Dumping
Commission) Act 2013
32, 2013 30 Mar
2013
Sch 1 (item 20): 1 July
2013 (s 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 453
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Amendment (Law
Enforcement Integrity,
Vulnerable Witness
Protection and Other
Measures) Act 2013
74, 2013 28 June
2013
Sch 2 (items 79–85, 93):
29 June 2013 (s 2(1)
item 2)
Sch 2 (item 93)
as amended by
Crimes Legislation
Amendment
(International Crime
Cooperation and
Other Measures) Act
2018
34, 2018 22 May
2018
Sch 5 (items 5, 6):
23 May 2018 (s 2(1)
item 8)
—
Charities (Consequential
Amendments and
Transitional Provisions)
Act 2013
96, 2013 28 June
2013
Sch 1 (items 10–13):
1 Jan 2014 (s 2(1)
item 2)
—
Customs Amendment
(Anti-Dumping
Commission Transfer)
Act 2013
139, 2013 13 Dec
2013
Sch 1 (items 98, 101–
103, 106): 27 Mar 2014
(s 2(1) item 2)
Sch 1 (items 101–
103, 106)
Statute Law Revision
Act (No. 1) 2014
31, 2014 27 May
2014
Sch 1 (item 17) and Sch
9 (items 8–17): 24 June
2014 (s 2(1) items 2, 9)
—
National Security
Legislation Amendment
Act (No. 1) 2014
108, 2014 2 Oct 2014 Sch 1 (items 38–41, 78–
87): 30 Oct 2014 (s 2(1)
item 2)
Sch 7 (items 95–102,
144, 145): 3 Oct 2014 (s
2(1) items 3, 5)
Sch 1 (items 78–
87) and Sch 7
(items 144, 145)
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
454 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Counter-Terrorism
Legislation Amendment
(Foreign Fighters) Act
2014
116, 2014 3 Nov 2014 Sch 1 (items 57–110):
1 Dec 2014 (s 2(1)
item 2)
—
Counter-Terrorism
Legislation Amendment
Act (No. 1) 2014
134, 2014 12 Dec
2014
Sch 1: 9 Jan 2015 (s 2(1)
item 2)
—
Statute Law Revision
Act (No. 1) 2015
5, 2015 25 Feb
2015
Sch 1 (item 11) and
Sch 3 (item 61): 25 Mar
2015 (s 2(1) items 2, 10)
—
Crimes Legislation
Amendment
(Psychoactive
Substances and Other
Measures) Act 2015
12, 2015 5 Mar 2015 Sch 1 (item 1): 5 Sept
2015 (s 2(1) item 2)
Sch 2 (items 1–13, 15–
18), Sch 4 and Sch 6
(items 1–5): 6 Mar 2015
(s 2(1) items 3, 5, 7)
Sch 2 (item 17)
and Sch 4 (item 2)
Enhancing Online Safety
for Children
(Consequential
Amendments) Act 2015
25, 2015 24 Mar
2015
Sch 2 (items 9–14) and
Sch 3: 1 July 2015
(s 2(1) items 4, 6)
Sch 3
Telecommunications
Legislation Amendment
(Deregulation) Act 2015
38, 2015 13 Apr
2015
Sch 1 (items 11, 12,
138–163): 1 July 2015
(s 2(1) item 3)
Sch 1 (items 138–
163)
Customs and Other
Legislation Amendment
(Australian Border
Force) Act 2015
41, 2015 20 May
2015
Sch 5 (items 59, 60),
Sch 6 (items 61, 62) and
Sch 9: 1 July 2015
(s 2(1) items 2, 7)
Sch 5 (item 60),
Sch 6 (item 62)
and Sch 9
as amended by
Australian Border
Force Amendment
(Protected
Information) Act 2017
115, 2017 30 Oct
2017
Sch 1 (item 26): 1 July
2015 (s 2(1) item 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 455
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Norfolk Island
Legislation Amendment
Act 2015
59, 2015 26 May
2015
Sch 1 (item 95) and
Sch 2 (items 356–396):
18 June 2015 (s 2(1)
items 2, 6)
Sch 1 (items 184–203):
27 May 2015 (s 2(1)
item 3)
Sch 2 (item 119): 1 July
2016 (s 2(1) item 5)
Sch 1 (items 184–
203) and Sch 2
(items 356–396)
as amended by
Territories Legislation
Amendment Act 2016
33, 2016 23 Mar
2016
Sch 2: 24 Mar 2016
(s 2(1) item 2)
—
Tribunals Amalgamation
Act 2015
60, 2015 26 May
2015
Sch 8 (item 18) and
Sch 9: 1 July 2015
(s 2(1) items 19, 22)
Sch 9
Acts and Instruments
(Framework Reform)
(Consequential
Provisions) Act 2015
126, 2015 10 Sept
2015
Sch 1 (items 150–158): 5
Mar 2016 (s 2(1) item 2)
—
Crimes Legislation
Amendment (Powers,
Offences and Other
Measures) Act 2015
153, 2015 26 Nov
2015
Sch 1–4 and Sch 15
(item 7): 27 Nov 2015 (s
2(1) items 2, 3)
Sch 1 (item 8)
Crimes Legislation
Amendment (Harming
Australians) Act 2015
163, 2015 30 Nov
2015
Sch 1: 1 Dec 2015
(s 2(1) item 2)
—
Statute Law Revision
Act (No. 1) 2016
4, 2016 11 Feb
2016
Sch 4 (items 1, 87–106,
355–358): 10 Mar 2016
(s 2(1) item 6)
—
Crimes Legislation
Amendment (Proceeds
of Crime and Other
Measures) Act 2016
15, 2016 29 Feb
2016
Sch 2 and 3: 1 Mar 2016
(s 2(1) item 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
456 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Statute Update Act 2016 61, 2016 23 Sept
2016
Sch 2 (items 13–16):
21 Oct 2016 (s 2(1)
item 1)
—
Counter-Terrorism
Legislation Amendment
Act (No. 1) 2016
82, 2016 29 Nov
2016
Sch 1 (items 1, 2), Sch 2
(items 1–34), Sch 3
(items 1–3), Sch 4
(item 1), Sch 5 (items 1,
2), Sch 6 (items 1–3),
Sch 7 (item 1), Sch 8
(items 2, 3) and Sch 11
(items 1–4): 30 Nov
2016 (s 2(1) item 2)
—
Law Enforcement
Legislation Amendment
(State Bodies and Other
Measures) Act 2016
86, 2016 30 Nov
2016
Sch 1 (items 1, 56–58)
and Sch 2 (item 4):
1 Dec 2016 (s 2(1)
items 2, 4, 5)
Sch 1 (items 48, 54, 55):
1 July 2017 (s 2(1)
item 3)
Sch 1 (items 1,
54–58)
Criminal Code
Amendment (High Risk
Terrorist Offenders) Act
2016
95, 2016 7 Dec 2016 Sch 1 (items 1A–3):
7 June 2017 (s 2(1)
item 2)
—
Criminal Code
Amendment (War
Crimes) Act 2016
97, 2016 7 Dec 2016 8 Dec 2016 (s 2(1)
item 1)
Sch 1 (items 13,
14)
Criminal Code
Amendment (Protecting
Minors Online) Act 2017
50, 2017 22 June
2017
Sch 1: 23 June 2017
(s 2(1) item 1)
—
Enhancing Online Safety
for Children Amendment
Act 2017
51, 2017 22 June
2017
Sch 1 (items 33–35, 48,
51): 23 June 2017 (s 2(1)
item 1)
Sch 1 (items 48,
51)
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 457
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Passports Legislation
Amendment (Overseas
Travel by Child Sex
Offenders) Act 2017
73, 2017 26 June
2017
Sch 1 (items 13, 22):
13 Dec 2017 (s 2(1)
item 2)
Sch 1 (item 22)
Intelligence Services
Amendment
(Establishment of the
Australian Signals
Directorate) Act 2018
25, 2018 11 Apr
2018
Sch 1 (items 55–58,
100–108): 1 July 2018
(s 2(1) item 2)
Sch 1 (items 100–
108)
Home Affairs and
Integrity Agencies
Legislation Amendment
Act 2018
31, 2018 9 May 2018 Sch 2 (items 98–114,
284): 11 May 2018
(s 2(1) items 3, 7)
Sch 2 (item 284)
Crimes Legislation
Amendment
(International Crime
Cooperation and Other
Measures) Act 2018
34, 2018 22 May
2018
Sch 6 (items 5–19, 23–
32): 23 May 2018 (s 2(1)
item 8)
Sch 6 (items 31,
32)
Statute Update (Autumn
2018) Act 2018
41, 2018 22 May
2018
Sch 1 (item 1): 19 June
2018 (s 2(1) item 2)
—
Criminal Code
Amendment
(Impersonating a
Commonwealth Body)
Act 2018
44, 2018 21 June
2018
22 June 2018 (s 2(1)
item 1)
—
National Security
Legislation Amendment
(Espionage and Foreign
Interference) Act 2018
67, 2018 29 June
2018
Sch 1 (items 1–25, 43A,
43B) and Sch 3: 30 June
2018 (s 2(1) items 2, 4)
Sch 2 (items 6, 7): 29
Dec 2018 (s 2(1) item 3)
Sch 1 (item 25)
and Sch 2 (item 7)
Counter-Terrorism
Legislation Amendment
Act (No. 1) 2018
74, 2018 24 Aug
2018
Sch 1 (items 2–15, 20–
23): 25 Aug 2018 (s 2(1)
item 1)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
458 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Amendment (Powers,
Offences and Other
Measures) Act 2018
75, 2018 24 Aug
2018
Sch 4: 25 Aug 2018
(s 2(1) item 1)
Sch 4 (item 2)
Legislation Amendment
(Sunsetting Review and
Other Measures) Act
2018
78, 2018 24 Aug
2018
Sch 2 (item 19): never
commenced (s 2(1)
item 6)
—
Enhancing Online Safety
(Non-consensual Sharing
of Intimate Images) Act
2018
96, 2018 31 Aug
2018
Sch 2: 1 Sept 2018 (s
2(1) item 1)
—
Criminal Code
Amendment (Food
Contamination) Act
2018
98, 2018 21 Sept
2018
22 Sept 2018 (s 2(1)
item 1)
—
Telecommunications and
Other Legislation
Amendment (Assistance
and Access) Act 2018
148, 2018 8 Dec 2018 Sch 1 (items 2–4): 9 Dec
2018 (s 2(1) item 2)
—
Office of National
Intelligence
(Consequential and
Transitional Provisions)
Act 2018
156, 2018 10 Dec
2018
Sch 2 (item 45) and Sch
4: 20 Dec 2018 (s 2(1)
items 2, 4)
Sch 3: 29 Dec 2018 (s
2(1) item 3)
Sch 4
Industrial Chemicals
(Consequential
Amendments and
Transitional Provisions)
Act 2019
13, 2019 12 Mar
2019
Sch 1 (item 6): 1 July
2020 (s 2(1) item 2)
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 3—Legislation history
Criminal Code Act 1995 459
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Criminal Code
Amendment (Sharing of
Abhorrent Violent
Material) Act 2019
38, 2019 5 Apr 2019 6 Apr 2019 (s 2(1)
item 1)
—
Name Registration Commencement Application, saving
and transitional
provisions
Workplace Relations
Amendment (Work
Choices) (Consequential
Amendments)
Regulations 2006
(No. 1) (SLI No. 50,
2006)
17 Mar 2006
(F2006L00820)
Sch 34: 27 Mar 2006
(r 2(b))
—
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
460 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Endnote 4—Amendment history
Provision affected How affected
s. 2 .................................................am. No. 12, 1998
s. 3AA............................................ad. No. 24, 2001
rep. No. 12, 1995
s. 3A...............................................ad. No. 43, 1999
s. 3B...............................................ad. No. 43, 1999
am. No. 137, 2000
s 5 ..................................................ad No 137, 2000
am No 31, 2018; No 67, 2018
Schedule
Chapter 2
Part 2.1
Division 2
s. 2.2 ..............................................am. No. 12, 1998; No. 4, 2000
s. 2.3 ..............................................ad. No. 12, 1998
Part 2.2
Division 3
s. 3.2 ..............................................am. No. 137, 2000
Division 4
s. 4.1 ..............................................am. No. 137, 2000; No. 161, 2001
s. 4.3 ..............................................am. No. 6, 2013
Division 5
s. 5.1 ..............................................am. No. 137, 2000
s. 5.6 ..............................................am. No. 137, 2000
Part 2.3
Division 7
s. 7.3 ..............................................am. No. 42, 2010
Division 9
s. 9.3 ..............................................am. No. 127, 2004
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 461
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 9.4 ..............................................am. No. 140, 2003; No. 127, 2004; No 126, 2015
Division 10
s. 10.5 ............................................ad. No. 137, 2000
Part 2.4
Division 11
s. 11.1 ............................................am. No. 137, 2000; No. 3, 2010; No 4, 2016
s. 11.2 ............................................am. No. 137, 2000; No. 127, 2004; No. 3, 2010
s. 11.2A..........................................ad. No. 3, 2010
s. 11.3 ............................................am. No. 3, 2010
s. 11.4 ............................................am. No. 137, 2000; No 4, 2016
s. 11.5 ............................................am. No. 137, 2000; No 4, 2016
s. 11.6 ............................................am. No. 137, 2000; No. 3, 2010
Part 2.7
Part 2.7...........................................ad. No. 137, 2000
Division 14
s. 14.1 ............................................ad. No. 137, 2000
am. No. 3, 2010; No 4, 2016
Division 15
s. 15.1 ............................................ad. No. 137, 2000
am. No. 3, 2010; No 4, 2016
s. 15.2 ............................................ad. No. 137, 2000
am. No. 3, 2010; No 4, 2016
s. 15.3 ............................................ad. No. 137, 2000
am. No. 3, 2010
s. 15.4 ............................................ad. No. 137, 2000
am. No. 3, 2010
Division 16
s. 16.1 ............................................ad. No. 137, 2000
s. 16.2 ............................................ad. No. 137, 2000
s. 16.3 ............................................ad. No. 137, 2000
s. 16.4 ............................................ad. No. 137, 2000
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
462 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Chapter 4
Chapter 4 .......................................ad. No. 43, 1999
Division 70
s. 70.1 ............................................ad. No. 43, 1999
am. No. 137, 2000
s. 70.2 ............................................ad. No. 43, 1999
am. No. 147, 2007; No. 4, 2010; No 153, 2015; No 4, 2016
s. 70.3 ............................................ad. No. 43, 1999
am. No. 147, 2007; No 4, 2016
s. 70.4 ............................................ad. No. 43, 1999
am No 4, 2016
s. 70.5 ............................................ad. No. 43, 1999
am. No. 137, 2000; No. 3, 2010
s. 70.6 ............................................ad. No. 43, 1999
Division 71
Division 71 ....................................ad. No. 124, 2000
s. 71.1 ............................................ad. No. 124, 2000
s. 71.2 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.3 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.4 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.5 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.6 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.7 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.8 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 463
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 71.9 ............................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.10...........................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.11...........................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.12...........................................ad. No. 124, 2000
am No 4, 2016; No 61, 2016
s. 71.13...........................................ad. No. 124, 2000
am. No. 37, 2010
s. 71.14...........................................ad. No. 124, 2000
s. 71.15...........................................ad. No. 124, 2000
s. 71.16...........................................ad. No. 124, 2000
am. No. 136, 2012
s. 71.17...........................................ad. No. 124, 2000
s. 71.18...........................................ad. No. 124, 2000
s. 71.19...........................................ad. No. 124, 2000
s. 71.20...........................................ad. No. 124, 2000
s. 71.21...........................................ad. No. 124, 2000
am. No. 5, 2011
s. 71.22...........................................ad. No. 124, 2000
s. 71.23...........................................ad. No. 124, 2000
am. No. 8, 2010; No. 5, 2011
Division 72
Division 72 heading .......................rs. No. 3, 2007
Division 72 ....................................ad. No. 58, 2002
Subdivision A
Subdivision A heading...................ad. No. 3, 2007
s. 72.1 ............................................ad. No. 58, 2002
am. No. 3, 2007; No. 8, 2010
s. 72.2 ............................................ad. No. 58, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
464 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am. No. 3, 2007
s. 72.3 ............................................ad. No. 58, 2002
am No 95, 2016
s. 72.4 ............................................ad. No. 58, 2002
am. No. 3, 2007
s. 72.5 ............................................ad. No. 58, 2002
am. No. 3, 2007
s. 72.6 ............................................ad. No. 58, 2002
am. No. 3, 2007
s. 72.7 ............................................ad. No. 58, 2002
am. No. 3, 2007
s. 72.8 ............................................ad. No. 58, 2002
am. No. 21, 2007
s. 72.9 ............................................ad. No. 58, 2002
am. No. 3, 2007
s. 72.10...........................................ad. No. 58, 2002
am. No. 3, 2007
Subdivision B
Subdivision B ................................ad. No. 3, 2007
s. 72.11...........................................ad. No. 3, 2007
s. 72.12...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.13...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.14...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.15...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.16...........................................ad. No. 3, 2007
s. 72.17...........................................ad. No. 3, 2007
s. 72.18...........................................ad. No. 3, 2007
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 465
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 72.19...........................................ad. No. 3, 2007
am No 31, 2014
exp end of 25 Aug 2022 (s 72.19(5))
s. 72.20...........................................ad. No. 3, 2007
rep No 31, 2014
s. 72.21...........................................ad. No. 3, 2007
exp 25 Feb 2008 (s 72.21(5))
rep No 31, 2014
s. 72.22...........................................ad. No. 3, 2007
s. 72.23...........................................ad. No. 3, 2007
s. 72.24...........................................ad. No. 3, 2007
s. 72.25...........................................ad. No. 3, 2007
s. 72.26...........................................ad. No. 3, 2007
s. 72.27...........................................ad. No. 3, 2007
s. 72.28...........................................ad. No. 3, 2007
am No 31, 2014
rs No 31, 2018
s. 72.29...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.30...........................................ad. No. 3, 2007
am No 31, 2014
s. 72.31...........................................ad. No. 3, 2007
s. 72.32...........................................ad. No. 3, 2007
s. 72.33...........................................ad. No. 3, 2007
s. 72.34...........................................ad. No. 3, 2007
s. 72.35...........................................ad. No. 3, 2007
s 72.36 ...........................................ad No 3, 2007
am No 8, 2010; No 31, 2018
Subdivision C
Subdivision C ................................ad. No. 114, 2012
s. 72.37...........................................ad. No. 114, 2012
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
466 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 72.38...........................................ad. No. 114, 2012
s. 72.39...........................................ad. No. 114, 2012
s. 72.40...........................................ad. No. 114, 2012
s. 72.41...........................................ad. No. 114, 2012
s. 72.42...........................................ad. No. 114, 2012
s. 72.43...........................................ad. No. 114, 2012
s. 72.44...........................................ad. No. 114, 2012
s. 72.45...........................................ad. No. 114, 2012
Division 73
Division 73 ....................................ad. No. 141, 2002
Subdivision A
s. 73.1 ............................................ad. No. 141, 2002
am. No. 50, 2010
s. 73.2 ............................................ad. No. 141, 2002
am. No. 96, 2005; No. 50, 2010; No. 6, 2013
s. 73.3 ............................................ad. No. 141, 2002
am. No. 50, 2010
s. 73.3A..........................................ad. No. 50, 2010
s. 73.4 ............................................ad. No. 141, 2002
s. 73.5 ............................................ad. No. 141, 2002
Subdivision B
s. 73.6 ............................................ad. No. 141, 2002
am. No. 96, 2005
s. 73.7 ............................................ad. No. 141, 2002
s. 73.8 ............................................ad. No. 141, 2002
am No 4, 2016
s. 73.9 ............................................ad. No. 141, 2002
am No 4, 2016
s. 73.10...........................................ad. No. 141, 2002
am No 4, 2016
s. 73.11...........................................ad. No. 141, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 467
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 4, 2016
s. 73.12...........................................ad. No. 141, 2002
Chapter 5
Chapter 5 heading ..........................ad. No. 66, 2002
Part 5.1
Part 5.1 heading .............................rs No 144, 2005; No 127, 2010; No 116, 2014; No 82, 2016; No 67,
2018
Part 5.1...........................................ad. No. 65, 2002
Division 80
Division 80 heading .......................rs No 144, 2005; No 127, 2010; No 116, 2014; No 82, 2016
Subdivision A
Subdivision A heading...................ad. No. 127, 2010
s 80.1A...........................................ad No 144, 2005
am No 67, 2018
s 80.1AAA.....................................ad No 67, 2018
Subdivision B
Subdivision B heading ...................ad. No. 127, 2010
s. 80.1 ............................................ad. No. 65, 2002
am. No. 144, 2005; No. 127, 2010
s 80.1AA........................................ad No 127, 2010
am No 116, 2014; No 126, 2015
rs No 67, 2018
s 80.1AB ........................................ad No 67, 2018
s 80.1AC ........................................ad No 67, 2018
Subdivision C
Subdivision C heading ...................ad No 127, 2010
rs No 116, 2014; No 82, 2016
s. 80.2 ............................................ad. No. 144, 2005
am. No. 127, 2010
s. 80.2A..........................................ad. No. 127, 2010
s. 80.2B..........................................ad. No. 127, 2010
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
468 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s 80.2C...........................................ad No 116, 2014
s 80.2D...........................................ad No 82, 2016
Subdivision D
Subdivision D heading...................ad. No. 127, 2010
s 80.3 .............................................ad No 144, 2005
am. No. 127, 2010; No 67, 2018
s 80.4 .............................................ad No 144, 2005
am No 127, 2010; No 116, 2014; No 67, 2018
s. 80.5 ............................................ad. No. 144, 2005
rep. No. 127, 2010
s. 80.6 ............................................ad. No. 144, 2005
Division 82
Division 82 ....................................ad No 67, 2018
Subdivision A
s 82.1 .............................................ad No 67, 2018
s 82.2 .............................................ad No 67, 2018
am No 98, 2018
s 82.2A...........................................ad No 67, 2018
Subdivision B
s 82.3 .............................................ad No 67, 2018
s 82.4 .............................................ad No 67, 2018
s 82.5 .............................................ad No 67, 2018
s 82.6 .............................................ad No 67, 2018
s 82.7 .............................................ad No 67, 2018
s 82.8 .............................................ad No 67, 2018
s 82.9 .............................................ad No 67, 2018
s 82.10 ...........................................ad No 67, 2018
s 82.11 ...........................................ad No 67, 2018
s 82.12 ...........................................ad No 67, 2018
s 82.13 ...........................................ad No 67, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 469
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 83
Division 83 ....................................ad No 67, 2018
s 83.1A...........................................ad No 67, 2018
s 83.1 .............................................ad No 67, 2018
s 83.2 .............................................ad No 67, 2018
s 83.3 .............................................ad No 67, 2018
s 83.4 .............................................ad No 67, 2018
s 83.5 .............................................ad No 67, 2018
Part 5.2
Part 5.2 heading .............................rs No 67, 2018
Part 5.2...........................................ad. No. 91, 2002
Division 90
s. 90.1 ............................................ad. No. 91, 2002
am No 67, 2018
s 90.2 .............................................ad No 67, 2018
s 90.3 .............................................ad No 67, 2018
s 90.4 .............................................ad No 67, 2018
s 90.5 .............................................ad No 67, 2018
s 90.6 .............................................ad No 67, 2018
Division 91
Division 91 ....................................rs No 67, 2018
Subdivision A
s 91.1 .............................................ad No 91, 2002
rs No 67, 2018
s 91.2 .............................................ad No 91, 2002
rs No 67, 2018
s 91.3 .............................................ad No 67, 2018
s 91.4 .............................................ad No 67, 2018
s 91.5 .............................................ad No 67, 2018
s 91.6 .............................................ad No 67, 2018
s 91.7 .............................................ad No 67, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
470 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision B
s 91.8 .............................................ad No 67, 2018
s 91.9 .............................................ad No 67, 2018
s 9.10 .............................................ad No 67, 2018
Subdivision C
s 91.11 ...........................................ad No 67, 2018
s 91.12 ...........................................ad No 67, 2018
s 91.13 ...........................................ad No 67, 2018
s 91.14 ...........................................ad No 67, 2018
Division 92
Division 92 ....................................ad No 67, 2018
Subdivision A
s 92.1 .............................................ad No 67, 2018
Subdivision B
s 92.2 .............................................ad No 67, 2018
s 92.3 .............................................ad No 67, 2018
s 92.4 .............................................ad No 67, 2018
s 92.5 .............................................ad No 67, 2018
s 92.6 .............................................ad No 67, 2018
Subdivision C
s 92.7 .............................................ad No 67, 2018
s 92.8 .............................................ad No 67, 2018
s 92.9 .............................................ad No 67, 2018
s 92.10 ...........................................ad No 67, 2018
s 92.11 ...........................................ad No 67, 2018
Division 92A
Division 92A..................................ad No 67, 2018
s 92A.1...........................................ad No 67, 2018
s 92A.2...........................................ad No 67, 2018
Division 93
s 93.1 .............................................ad No 91, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 471
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
rs No 67, 2018
s. 93.2 ............................................ad. No. 91, 2002
am No 67, 2018
s 93.4 .............................................ad No 67, 2018
s 93.5 .............................................ad No 67, 2018
Division 94
s 94.1 .............................................ad No 91, 2002
am No 67, 2018
Part 5.3
Part 5.3...........................................ad. No. 66, 2002
rs. No. 40, 2003
Division 100
Division 100 ..................................ad. No. 66, 2002
rs. No. 40, 2003
s. 100.1...........................................ad. No. 66, 2002
rs. No. 40, 2003
am No 144, 2005; No 13, 2013; No 108, 2014; No 116, 2014; No 82,
2016; No 95, 2016; No 31, 2018
s. 100.2...........................................ad. No. 66, 2002
rs. No. 40, 2003
s. 100.3...........................................ad. No. 40, 2003
s. 100.4...........................................ad. No. 40, 2003
s. 100.5...........................................ad. No. 40, 2003
am. No. 127, 2010; No. 46, 2011
s. 100.6...........................................ad. No. 40, 2003
s. 100.7...........................................ad. No. 40, 2003
s. 100.8...........................................ad. No. 40, 2003
Division 101
Division 101 ..................................ad. No. 65, 2002
rs. No. 40, 2003
s. 101.1...........................................ad. No. 65, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
472 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
rs. No. 40, 2003
s. 101.2...........................................ad. No. 65, 2002
rs. No. 40, 2003
am. No. 127, 2005
s. 101.4...........................................ad. No. 65, 2002
rs. No. 40, 2003
am. No. 127, 2005
s. 101.5...........................................ad. No. 65, 2002
rs. No. 40, 2003
am. No. 127, 2005
s. 101.6...........................................ad. No. 65, 2002
rs. No. 40, 2003
am. No. 127, 2005
Division 102
Division 102 ..................................ad. No. 65, 2002
rs. No. 40, 2003
Subdivision A
s. 102.1...........................................ad. No. 65, 2002
am. No. 89, 2002
rs. No. 40, 2003
am No 44, 2003; No 109, 2003; No 7, 2004; No 124, 2004; No 144,
2005; No 42, 2010; No 127, 2010; No 116, 2014; No 126, 2015; No 31,
2018
s 102.1AA......................................ad No 116, 2014
am No 31, 2018
s. 102.1A........................................ad. No. 7, 2004
am. No. 127, 2010; No 134, 2014; No 126, 2015
Subdivision B
s. 102.2...........................................ad. No. 65, 2002
rs. No. 40, 2003
s. 102.3...........................................ad. No. 65, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 473
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
rs. No. 40, 2003
am. Nos. 44 and 109, 2003; No. 104, 2004
s. 102.4...........................................ad. No. 65, 2002
rs. No. 40, 2003
s. 102.5...........................................ad. No. 65, 2002
rs. No. 40, 2003; No. 104, 2004
am. No. 144, 2005; No 116, 2014
s. 102.6...........................................ad. No. 65, 2002
rs. No. 40, 2003
am. No. 144, 2005; No 82, 2016
s. 102.7...........................................ad. No. 65, 2002
rs. No. 40, 2003
s. 102.8...........................................ad. No. 124, 2004
am. No. 144, 2005; No 82, 2016
Subdivision C
s. 102.9...........................................ad. No. 65, 2002
rs. No. 40, 2003
s. 102.10.........................................ad. No. 65, 2002
rs. No. 40, 2003
Division 103
Division 103 ..................................ad. No. 66, 2002
rs. No. 40, 2003
s. 103.1...........................................ad. No. 66, 2002
rs. No. 40, 2003
am. Nos. 127 and 144, 2005
s. 103.2...........................................ad. No. 144, 2005
s. 103.3...........................................ad. No. 144, 2005
Division 104
Division 104 ..................................ad. No. 144, 2005
Subdivision A
Subdivision A ................................rs No 134, 2014
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
474 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 104.1...........................................ad. No. 144, 2005
rs No 134, 2014
Subdivision B
s. 104.2...........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 82, 2016; No 95, 2016; No 31,
2018
s. 104.3...........................................ad. No. 144, 2005
rs No 134, 2014
am No 31, 2018
s. 104.4...........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 82, 2016
s. 104.5...........................................ad. No. 144, 2005
am. No. 8, 2010; No 116, 2014; No 134, 2014; No 82, 2016; No 95,
2016; No 74, 2018
Subdivision C
s. 104.6...........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 31, 2018
s. 104.7...........................................ad. No. 144, 2005
am No 31, 2018
s. 104.8...........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 31, 2018
s. 104.9...........................................ad. No. 144, 2005
am No 31, 2018
s. 104.10.........................................ad. No. 144, 2005
am No 134, 2014; No 95, 2016; No 31, 2018
s. 104.11.........................................ad. No. 144, 2005
Subdivision CA
Subdivision CA..............................ad No 74, 2018
s 104.11A.......................................ad No 74, 2018
Subdivision D
s. 104.12.........................................ad. No. 144, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 475
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 116, 2014; No 82, 2016; No 95, 2016
s. 104.12A......................................ad. No. 144, 2005
am No 134, 2014; No 82, 2016; No 95, 2016
s. 104.13.........................................ad. No. 144, 2005
s. 104.14.........................................ad. No. 144, 2005
am No 82, 2016; No 74, 2018
s. 104.15.........................................ad. No. 144, 2005
s. 104.16.........................................ad. No. 144, 2005
am No 82, 2016
s. 104.17.........................................ad. No. 144, 2005
am No 116, 2014; No 82, 2016; No 95, 2016
Subdivision E
s. 104.18.........................................ad. No. 144, 2005
am No 82, 2016
s. 104.19.........................................ad. No. 144, 2005
am No 82, 2016
s. 104.20.........................................ad. No. 144, 2005
am No 82, 2016; No 95, 2016
s. 104.21.........................................ad. No. 144, 2005
s. 104.22.........................................ad. No. 144, 2005
Subdivision F
s. 104.23.........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 82, 2016
s. 104.24.........................................ad. No. 144, 2005
am No 116, 2014; No 134, 2014; No 82, 2016
s. 104.25.........................................ad. No. 144, 2005
s. 104.26.........................................ad. No. 144, 2005
am No 116, 2014; No 82, 2016; No 95, 2016
Subdivision G
Subdivision G heading...................rs No 82, 2016
s. 104.27.........................................ad. No. 144, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
476 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s 104.27A.......................................ad No 82, 2016
Subdivision H
Subdivision H heading...................rs No 82, 2016
s. 104.28.........................................ad. No. 144, 2005
am No 82, 2016
Subdivision I
Subdivision I heading ....................ad No 82, 2016
s. 104.28A......................................ad. No. 144, 2005
s 104.28AA....................................ad No 74, 2018
s 104.28B.......................................ad No 95, 2016
s. 104.29.........................................ad. No. 144, 2005
am. No. 84, 2006; No 82, 2016; No 31, 2018; No 41, 2018
s. 104.30.........................................ad. No. 144, 2005
am No 31, 2018
s. 104.31.........................................ad. No. 144, 2005
s. 104.32.........................................ad. No. 144, 2005
am No 116, 2014; No 74, 2018
Division 105
Division 105 ..................................ad. No. 144, 2005
Subdivision A
s. 105.1...........................................ad. No. 144, 2005
am No 82, 2016
s 105.2 ...........................................ad No 144, 2005
am No 13, 2013; No 82, 2016; No 31, 2018
s. 105.3...........................................ad. No. 144, 2005
Subdivision B
s. 105.4...........................................ad. No. 144, 2005
am No 116, 2014; No 82, 2016
s. 105.5...........................................ad. No. 144, 2005
s. 105.5A........................................ad. No. 144, 2005
s. 105.6...........................................ad. No. 144, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 477
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 105.7...........................................ad. No. 144, 2005
am No 116, 2014
s. 105.8...........................................ad. No. 144, 2005
am No 116, 2014; No 74, 2018
s. 105.9...........................................ad. No. 144, 2005
s. 105.10.........................................ad. No. 144, 2005
s. 105.10A......................................ad. No. 144, 2005
s. 105.11.........................................ad. No. 144, 2005
am. No. 13, 2013
s. 105.12.........................................ad. No. 144, 2005
am. No. 13, 2013; No 116, 2014; No 74, 2018
s. 105.13.........................................ad. No. 144, 2005
s. 105.14.........................................ad. No. 144, 2005
s. 105.14A......................................ad. No. 144, 2005
s. 105.15.........................................ad. No. 144, 2005
am No 116, 2014; No 74, 2018
s. 105.16.........................................ad. No. 144, 2005
am No 116, 2014; No 74, 2018
s. 105.17.........................................ad. No. 144, 2005
s. 105.18.........................................ad. No. 144, 2005
am. No. 13, 2013
Subdivision C
s. 105.19.........................................ad. No. 144, 2005
s. 105.20.........................................ad. No. 144, 2005
s. 105.21.........................................ad. No. 144, 2005
s. 105.22.........................................ad. No. 144, 2005
s. 105.23.........................................ad. No. 144, 2005
s. 105.24.........................................ad. No. 144, 2005
s. 105.25.........................................ad. No. 144, 2005
am. No. 54, 2006
s. 105.26.........................................ad. No. 144, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
478 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am. No. 54, 2006
s. 105.27.........................................ad. No. 144, 2005
Subdivision D
s. 105.28.........................................ad. No. 144, 2005
am. No. 84, 2006
s. 105.29.........................................ad. No. 144, 2005
am. No. 84, 2006
s. 105.30.........................................ad. No. 144, 2005
s. 105.31.........................................ad. No. 144, 2005
s. 105.32.........................................ad. No. 144, 2005
Subdivision E
s. 105.33.........................................ad. No. 144, 2005
s. 105.33A......................................ad. No. 144, 2005
s. 105.34.........................................ad. No. 144, 2005
s. 105.35.........................................ad. No. 144, 2005
am. No. 127, 2010
s. 105.36.........................................ad. No. 144, 2005
am. No. 84, 2006
s 105.37..........................................ad No 144, 2005
am No 84, 2006; No 31, 2018
s. 105.38.........................................ad. No. 144, 2005
am. No. 84, 2006
s. 105.39.........................................ad. No. 144, 2005
am No 108, 2014
s. 105.40.........................................ad. No. 144, 2005
s. 105.41.........................................ad. No. 144, 2005
am. No. 84, 2006
s. 105.42.........................................ad. No. 144, 2005
am No 108, 2014
s. 105.43.........................................ad. No. 144, 2005
am. No. 13, 2013; No 108, 2014
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 479
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 105.44.........................................ad. No. 144, 2005
s. 105.45.........................................ad. No. 144, 2005
Subdivision F
s. 105.46.........................................ad. No. 144, 2005
am. No. 13, 2013
s. 105.47.........................................ad. No. 144, 2005
am. No. 84, 2006; No 31, 2018
s. 105.48.........................................ad. No. 144, 2005
rs. No. 84, 2006
s. 105.49.........................................ad. No. 144, 2005
s. 105.50.........................................ad. No. 144, 2005
s. 105.51.........................................ad. No. 144, 2005
am No 60, 2015
s. 105.52.........................................ad. No. 144, 2005
s. 105.53.........................................ad. No. 144, 2005
am No 116, 2014; No 74, 2018
Division 105A
Division 105A................................ad No 95, 2016
Subdivision A
s 105A.1.........................................ad No 95, 2016
s 105A.2.........................................ad No 95, 2016
Subdivision B
s 105A.3.........................................ad No 95, 2016
s 105A.4.........................................ad No 95, 2016
Subdivision C
s 105A.5.........................................ad No 95, 2016
am No 31, 2018; No 74, 2018
s 105A.6.........................................ad No 95, 2016
am No 31, 2018
s 105A.7.........................................ad No 95, 2016
am No 31, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
480 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s 105A.8.........................................ad No 95, 2016
s 105A.9.........................................ad No 95, 2016
am No 31, 2018
Subdivision D
s 105A.10.......................................ad No 95, 2016
am No 31, 2018
s 105A.11.......................................ad No 95, 2016
s 105A.12.......................................ad No 95, 2016
am No 31, 2018
Subdivision E
s 105A.13.......................................ad No 95, 2016
s 105A.14.......................................ad No 95, 2016
s 105A.15.......................................ad No 95, 2016
s 105A.15A....................................ad No 95, 2016
s 105A.16.......................................ad No 95, 2016
s 105A.17.......................................ad No 95, 2016
s 105A.18.......................................ad No 95, 2016
Subdivision F
s 105A.19.......................................ad No 95, 2016
am No 31, 2018
s 105A.20.......................................ad No 95, 2016
am No 31, 2018
s 105A.21.......................................ad No 95, 2016
am No 31, 2018
s 105A.22.......................................ad No 95, 2016
am No 31, 2018
s 105A.23.......................................ad No 95, 2016
s 105A.24.......................................ad No 95, 2016
s 105A.25.......................................ad No 95, 2016
Division 106
Division 106 ..................................ad. No. 40, 2003
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 481
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 106.1...........................................ad. No. 40, 2003
am. No. 144, 2005
s. 106.2...........................................ad. No. 144, 2005
s. 106.3...........................................ad. No. 144, 2005
s. 106.4...........................................ad. No. 13, 2013
s 106.5 ...........................................ad No 116, 2014
s 106.6 ...........................................ad No 134, 2014
s 106.7 ...........................................ad No 82, 2016
s 106.8 ...........................................ad No 95, 2016
s 106.9 ...........................................ad No 74, 2018
Part 5.4
Part 5.4...........................................ad. No. 106, 2002
Division 115
Division 115 heading (prev............
Division 104 heading)
renum No 144, 2005
s 104.1 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.1 (prev s 104.1).....................am No 163, 2015; No 4, 2016
s 104.2 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.2 (prev s 104.2).....................am No 163, 2015; No 4, 2016
s 104.3 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.3 (prev s 104.3).....................am No 4, 2016
s 104.4 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.4 (prev s 104.4).....................am No 4, 2016
s 104.5 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.5 (prev s 104.5)
s 104.6 ...........................................ad No 106, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
482 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
renum No 144, 2005
s 115.6 (prev s 104.6)
s 104.7 ...........................................ad No 106, 2002
am No 7, 2005
renum No 144, 2005
s 115.7 (prev s 104.7).....................am No 21, 2007
s 104.8 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.8 (prev s 104.8)
s 104.9 ...........................................ad No 106, 2002
renum No 144, 2005
s 115.9 (prev s 104.9)
Part 5.5
Part 5.5...........................................ad No 116, 2014
Division 117
s 117.1 ...........................................ad No 116, 2014
am No 95, 2016; No 31, 2018
s 117.2 ...........................................ad No 116, 2014
Division 119
s 119.1 ...........................................ad No 116, 2014
s 119.2 ...........................................ad No 116, 2014
am No 74, 2018
exp end of 7 Sept 2021 (s 119.2(6))
s 119.3 ...........................................ad No 116, 2014
am No 126, 2015; No 74, 2018
s 119.4 ...........................................ad No 116, 2014
s 119.5 ...........................................ad No 116, 2014
s 119.6 ...........................................ad No 116, 2014
s 119.7 ...........................................ad No 116, 2014
s 119.8 ...........................................ad No 116, 2014
am No 31, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 483
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s 119.9 ...........................................ad No 116, 2014
s 119.10..........................................ad No 116, 2014
s 119.11..........................................ad No 116, 2014
s 119.12..........................................ad No 116, 2014
Part 5.6
Part 5.6...........................................ad No 67, 2018
Division 121
s 121.1 ...........................................ad No 67, 2018
am No 156, 2018
s 121.2 ...........................................ad No 67, 2018
Division 122
s 122.1 ...........................................ad No 67, 2018
s 122.2 ...........................................ad No 67, 2018
s 122.3 ...........................................ad No 67, 2018
s 122.4 ...........................................ad No 67, 2018
s 122.4A.........................................ad No 67, 2018
s 122.5 ...........................................ad No 67, 2018
Division 123
s 123.1 ...........................................ad No 67, 2018
s 123.2 ...........................................ad No 67, 2018
s 123.3 ...........................................ad No 67, 2018
s 123.4 ...........................................ad No 67, 2018
s 123.5 ...........................................ad No 67, 2018
Chapter 7
Chapter 7 .......................................ad. No. 137, 2000
Part 7.1
Division 130
s. 130.1...........................................ad. No. 137, 2000
am. No. 46, 2011
s. 130.2...........................................ad. No. 137, 2000
s. 130.3...........................................ad. No. 137, 2000
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
484 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 130.4...........................................ad. No. 137, 2000
Part 7.2
Division 131
s. 131.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 131.2...........................................ad. No. 137, 2000
s. 131.3...........................................ad. No. 137, 2000
s. 131.4...........................................ad. No. 137, 2000
s. 131.5...........................................ad. No. 137, 2000
s. 131.6...........................................ad. No. 137, 2000
s. 131.7...........................................ad. No. 137, 2000
am. No. 141, 2002
s. 131.8...........................................ad. No. 137, 2000
s. 131.9...........................................ad. No. 137, 2000
s. 131.10.........................................ad. No. 137, 2000
s. 131.11.........................................ad. No. 137, 2000
Division 132
s. 132.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 132.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 132.3...........................................ad. No. 137, 2000
am No 4, 2016
s. 132.4...........................................ad. No. 137, 2000
am No 4, 2016
s. 132.5...........................................ad. No. 137, 2000
am No 4, 2016
s. 132.6...........................................ad. No. 137, 2000
am No 4, 2016
s 132.7 ...........................................ad No 137, 2000
am No 4, 2016; No 67, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 485
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 132.8...........................................ad. No. 137, 2000
am No 4, 2016
s 132.8A.........................................ad No 67, 2018
s. 132.9...........................................ad. No. 137, 2000
Part 7.3
Division 133
s. 133.1...........................................ad. No. 137, 2000
Division 134
s. 134.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 134.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 134.3...........................................ad. No. 137, 2000
Division 135
s. 135.1...........................................ad. No. 137, 2000
am No 4, 2016; No 75, 2018
s. 135.2...........................................ad. No. 137, 2000
am. No. 141, 2002; No. 127, 2004; No 4, 2016
s. 135.4...........................................ad. No. 137, 2000
am No 4, 2016
s. 135.5...........................................ad. No. 137, 2000
Part 7.4
Division 136
s. 136.1...........................................ad. No. 137, 2000
am. No. 141, 2002; No. 66, 2008; No. 170, 2012; No 4, 2016
Division 137
s. 137.1...........................................ad. No. 137, 2000
am. No. 141, 2002; No 4, 2016
s 137.1A.........................................ad No 67, 2018
s. 137.2...........................................ad. No. 137, 2000
am No 4, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
486 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 137.3...........................................ad. No. 137, 2000
Part 7.5
Division 138
s. 138.1...........................................ad. No. 137, 2000
s. 138.2...........................................ad. No. 137, 2000
Division 139
s. 139.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 139.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 139.3...........................................ad. No. 137, 2000
Part 7.6
Division 140
s. 140.1...........................................ad. No. 137, 2000
s. 140.2...........................................ad. No. 137, 2000
Division 141
s. 141.1...........................................ad. No. 137, 2000
am. No. 4, 2010; No 4, 2016
Division 142
s. 142.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 142.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 142.3...........................................ad. No. 137, 2000
Part 7.7
Division 143
s. 143.1...........................................ad. No. 137, 2000
s. 143.2...........................................ad. No. 137, 2000
s. 143.3...........................................ad. No. 137, 2000
s. 143.4...........................................ad. No. 137, 2000
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 487
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 144
s. 144.1...........................................ad. No. 137, 2000
am No 4, 2016
Division 145
s. 145.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 145.2...........................................ad. No. 137, 2000
am. No. 141, 2002; No 4, 2016
s. 145.3...........................................ad. No. 137, 2000
am No 4, 2016
s. 145.4...........................................ad. No. 137, 2000
am No 4, 2016
s. 145.5...........................................ad. No. 137, 2000
am No 4, 2016
s. 145.6...........................................ad. No. 137, 2000
Part 7.8
Part 7.8 heading .............................rs No 44, 2018
Division 146
s. 146.1...........................................ad. No. 137, 2000
am. No. 125, 2002; No. 86, 2006; No. 33, 2009; No 32, 2013; No 139,
2013; No 41, 2015
s. 146.2...........................................ad. No. 137, 2000
Division 147
s. 147.1...........................................ad. No. 137, 2000
am. No. 141, 2002; No 4, 2016
s. 147.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 147.3...........................................ad. No. 137, 2000
Division 148
s. 148.1...........................................ad. No. 137, 2000
am. No. 141, 2002; No 4, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
488 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 148.2...........................................ad. No. 137, 2000
am. No. 141, 2002; No 4, 2016
s. 148.3...........................................ad. No. 137, 2000
Division 149
s. 149.1...........................................ad. No. 137, 2000
am No 4, 2016
Division 150
Division 150 ..................................ad No 44, 2018
Subdivision A
s 150.1 ...........................................ad No 44, 2018
Subdivision B
s 150.5 ...........................................ad No 44, 2018
Part 7.20
Division 261
s. 261.1...........................................ad. No. 137, 2000
s. 261.2...........................................ad. No. 137, 2000
s. 261.3...........................................ad. No. 137, 2000
Chapter 8
Chapter 8 heading ..........................rs. No. 42, 2002
Chapter 8 .......................................ad. No. 104, 1999
Division 268
Division 268 ..................................ad. No. 42, 2002
Subdivision A
s. 268.1...........................................ad. No. 42, 2002
s. 268.2...........................................ad. No. 42, 2002
Subdivision B
s. 268.3...........................................ad. No. 42, 2002
s. 268.4...........................................ad. No. 42, 2002
s. 268.5...........................................ad. No. 42, 2002
s. 268.6...........................................ad. No. 42, 2002
s. 268.7...........................................ad. No. 42, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 489
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision C
s. 268.8...........................................ad. No. 42, 2002
s. 268.9...........................................ad. No. 42, 2002
s. 268.10.........................................ad. No. 42, 2002
s. 268.11.........................................ad. No. 42, 2002
s. 268.12.........................................ad. No. 42, 2002
s. 268.13.........................................ad. No. 42, 2002
s. 268.14.........................................ad. No. 42, 2002
s. 268.15.........................................ad. No. 42, 2002
am. No. 6, 2013
s. 268.16.........................................ad. No. 42, 2002
s. 268.17.........................................ad. No. 42, 2002
s. 268.18.........................................ad. No. 42, 2002
s. 268.19.........................................ad. No. 42, 2002
s. 268.20.........................................ad. No. 42, 2002
s. 268.21.........................................ad. No. 42, 2002
s. 268.22.........................................ad. No. 42, 2002
s. 268.23.........................................ad. No. 42, 2002
Subdivision D
s. 268.24.........................................ad. No. 42, 2002
s. 268.25.........................................ad. No. 42, 2002
s. 268.26.........................................ad. No. 42, 2002
s. 268.27.........................................ad. No. 42, 2002
s. 268.28.........................................ad. No. 42, 2002
s. 268.29.........................................ad. No. 42, 2002
s. 268.30.........................................ad. No. 42, 2002
s. 268.31.........................................ad. No. 42, 2002
s. 268.32.........................................ad. No. 42, 2002
s. 268.33.........................................ad. No. 42, 2002
s. 268.34.........................................ad. No. 42, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
490 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision E
s. 268.35.........................................ad. No. 42, 2002
s. 268.36.........................................ad. No. 42, 2002
s. 268.37.........................................ad. No. 42, 2002
s. 268.38.........................................ad. No. 42, 2002
s. 268.39.........................................ad. No. 42, 2002
s. 268.40.........................................ad. No. 42, 2002
s. 268.41.........................................ad. No. 42, 2002
s. 268.42.........................................ad. No. 42, 2002
s. 268.43.........................................ad. No. 42, 2002
s. 268.44.........................................ad. No. 42, 2002
s. 268.45.........................................ad. No. 42, 2002
s. 268.46.........................................ad. No. 42, 2002
am No 96, 2013
s. 268.47.........................................ad. No. 42, 2002
s. 268.48.........................................ad. No. 42, 2002
s. 268.49.........................................ad. No. 42, 2002
s. 268.50.........................................ad. No. 42, 2002
s. 268.51.........................................ad. No. 42, 2002
s. 268.52.........................................ad. No. 42, 2002
s. 268.53.........................................ad. No. 42, 2002
s. 268.54.........................................ad. No. 42, 2002
s. 268.55.........................................ad. No. 42, 2002
s. 268.56.........................................ad. No. 42, 2002
s. 268.57.........................................ad. No. 42, 2002
s. 268.58.........................................ad. No. 42, 2002
s. 268.59.........................................ad. No. 42, 2002
s. 268.60.........................................ad. No. 42, 2002
am. No. 6, 2013
s. 268.61.........................................ad. No. 42, 2002
s. 268.62.........................................ad. No. 42, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 491
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 268.63.........................................ad. No. 42, 2002
s. 268.64.........................................ad. No. 42, 2002
s. 268.65.........................................ad. No. 42, 2002
am No 97, 2016
s. 268.66.........................................ad. No. 42, 2002
s. 268.67.........................................ad. No. 42, 2002
s. 268.68.........................................ad. No. 42, 2002
am. No. 129, 2005
Subdivision F
s. 268.69.........................................ad. No. 42, 2002
s. 268.70.........................................ad. No. 42, 2002
am No 97, 2016
s. 268.71.........................................ad. No. 42, 2002
am No 97, 2016
s. 268.72.........................................ad. No. 42, 2002
am No 97, 2016
s. 268.73.........................................ad. No. 42, 2002
s. 268.74.........................................ad. No. 42, 2002
am No 153, 2015
s. 268.75.........................................ad. No. 42, 2002
s. 268.76.........................................ad. No. 42, 2002
Subdivision G
s. 268.77.........................................ad. No. 42, 2002
s. 268.78.........................................ad. No. 42, 2002
s. 268.79.........................................ad. No. 42, 2002
s. 268.80.........................................ad. No. 42, 2002
am No 96, 2013
s. 268.81.........................................ad. No. 42, 2002
s. 268.82.........................................ad. No. 42, 2002
s. 268.83.........................................ad. No. 42, 2002
am. No. 6, 2013
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
492 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 268.84.........................................ad. No. 42, 2002
s. 268.85.........................................ad. No. 42, 2002
s. 268.86.........................................ad. No. 42, 2002
s. 268.87.........................................ad. No. 42, 2002
s. 268.88.........................................ad. No. 42, 2002
am. No. 129, 2005
s. 268.89.........................................ad. No. 42, 2002
s. 268.90.........................................ad. No. 42, 2002
s. 268.91.........................................ad. No. 42, 2002
s. 268.92.........................................ad. No. 42, 2002
s. 268.93.........................................ad. No. 42, 2002
s. 268.94.........................................ad. No. 42, 2002
Subdivision H
s. 268.95.........................................ad. No. 42, 2002
s. 268.96.........................................ad. No. 42, 2002
s. 268.97.........................................ad. No. 42, 2002
s. 268.98.........................................ad. No. 42, 2002
s. 268.99.........................................ad. No. 42, 2002
s. 268.100.......................................ad. No. 42, 2002
s. 268.101.......................................ad. No. 42, 2002
Subdivision J
s. 268.102.......................................ad. No. 42, 2002
s. 268.103.......................................ad. No. 42, 2002
s. 268.104.......................................ad. No. 42, 2002
s. 268.105.......................................ad. No. 42, 2002
s. 268.106.......................................ad. No. 42, 2002
s. 268.107.......................................ad. No. 42, 2002
s. 268.108.......................................ad. No. 42, 2002
s. 268.109.......................................ad. No. 42, 2002
s. 268.110.......................................ad. No. 42, 2002
s. 268.111.......................................ad. No. 42, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 493
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 268.112.......................................ad. No. 42, 2002
s. 268.113.......................................ad. No. 42, 2002
s. 268.114.......................................ad. No. 42, 2002
Subdivision K
s. 268.115.......................................ad. No. 42, 2002
s. 268.116.......................................ad. No. 42, 2002
s. 268.117.......................................ad. No. 42, 2002
s. 268.118.......................................ad. No. 42, 2002
s. 268.119.......................................ad. No. 42, 2002
s. 268.120.......................................ad. No. 42, 2002
s. 268.121.......................................ad. No. 42, 2002
s. 268.122.......................................ad. No. 42, 2002
s. 268.123.......................................ad. No. 42, 2002
s. 268.124.......................................ad. No. 42, 2002
s 268.125........................................ad No 97, 2016
Division 270
Division 270 heading .....................rs. No 6, 2013; No 34, 2018
Subdivision A
Subdivision A ................................ad. No. 6, 2013
s. 270.1A........................................ad. No. 6, 2013
am No 34, 2018
Subdivision B
Subdivision B heading ...................ad No 6, 2013
s 270.1 ...........................................ad No 104, 1999
s 270.2 ...........................................ad No 104, 1999
s 270.3 ...........................................ad No 104, 1999
am No 6, 2013; No 4, 2016
s 270.3A.........................................ad No 12, 2015
s 270.3B.........................................ad No 12, 2015
Subdivision C
Subdivision C heading ...................rs No 34, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
494 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision C ................................ad No 6, 2013
s. 270.4...........................................ad. No. 104, 1999
am. No. 96, 2005
rs. No. 6, 2013
s. 270.5...........................................ad. No. 104, 1999
rs. No. 96, 2005; No. 6, 2013
s. 270.6...........................................ad. No. 104, 1999
am. No. 96, 2005
rs. No. 6, 2013
s. 270.6A........................................ad. No. 6, 2013
s. 270.7...........................................ad. No. 104, 1999
am. No. 96, 2005
rs. No. 6, 2013
s. 270.7A........................................ad. No. 6, 2013
am No 153, 2015
s. 270.7B........................................ad. No. 6, 2013
am No 153, 2015
s 270.7C.........................................ad No 34, 2018
s. 270.8...........................................ad. No. 104, 1999
rs. No. 6, 2013
s. 270.9...........................................ad. No. 104, 1999
rs. No. 6, 2013
s. 270.10.........................................ad. No. 104, 1999
rep. No. 96, 2005
ad. No. 6, 2013
am No 34, 2018
Subdivision D
Subdivision D heading...................ad No 6, 2013
s. 270.11.........................................ad. No. 104, 1999
rep. No. 96, 2005
ad. No. 6, 2013
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 495
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 270.12.........................................ad. No. 104, 1999
am. No. 6, 2013; No. 74, 2013
s. 270.13.........................................ad. No. 104, 1999
am. No. 6, 2013
s. 270.14.........................................ad. No. 104, 1999
rep. No. 6, 2013
Division 271
Division 271 heading .....................rs No 34, 2018
Division 271 ..................................ad. No. 96, 2005
Subdivision A
s. 271.1...........................................ad. No. 96, 2005
am. No. 6, 2013; No 31, 2014
s. 271.1A........................................ad. No. 6, 2013
am No 34, 2018
Subdivision B
s. 271.2...........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.3...........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.4...........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.5...........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.6...........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.7...........................................ad. No. 96, 2005
am. No. 6, 2013
Subdivision BA
Subdivision BA..............................ad. No. 6, 2013
s. 271.7A........................................ad. No. 6, 2013
s. 271.7B........................................ad. No. 6, 2013
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
496 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 271.7C........................................ad. No. 6, 2013
s. 271.7D........................................ad. No. 6, 2013
s. 271.7E ........................................ad. No. 6, 2013
Subdivision BB
Subdivision BB..............................ad. No. 6, 2013
s. 271.7F ........................................ad. No. 6, 2013
s. 271.7G........................................ad. No. 6, 2013
Subdivision C ................................rep No 34, 2018
s. 271.8...........................................ad. No. 96, 2005
am. No. 6, 2013
rep No 34, 2018
s. 271.9...........................................ad. No. 96, 2005
rs. No. 6, 2013
rep No 34, 2018
Subdivision D
Subdivision D heading...................rs. No. 6, 2013
s. 271.10.........................................ad. No. 96, 2005
am. No. 6, 2013; No 34, 2018
s. 271.11.........................................ad. No. 96, 2005
am. No. 6, 2013
s. 271.11A......................................ad. No. 6, 2013
am No 34, 2018
s. 271.11B......................................ad. No. 6, 2013
s. 271.12.........................................ad. No. 96, 2005
am. No. 6, 2013; No. 74, 2013
s. 271.13.........................................ad. No. 96, 2005
Division 271A
Division 271A................................ad No 73, 2017
s 271A.1.........................................ad No 73, 2017
Division 272
Division 272 ..................................ad. No. 42, 2010
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 497
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision A
s. 272.1...........................................ad. No. 42, 2010
s. 272.2...........................................ad. No. 42, 2010
s. 272.3...........................................ad. No. 42, 2010
am. No. 127, 2010
s. 272.4...........................................ad. No. 42, 2010
s. 272.5...........................................ad. No. 42, 2010
s. 272.6...........................................ad. No. 42, 2010
s. 272.7...........................................ad. No. 42, 2010
am. No. 74, 2013
Subdivision B
s. 272.8...........................................ad. No. 42, 2010
s. 272.9...........................................ad. No. 42, 2010
s. 272.10.........................................ad. No. 42, 2010
s. 272.11.........................................ad. No. 42, 2010
s. 272.12.........................................ad. No. 42, 2010
s. 272.13.........................................ad. No. 42, 2010
s. 272.14.........................................ad. No. 42, 2010
s. 272.15.........................................ad. No. 42, 2010
s. 272.16.........................................ad. No. 42, 2010
s. 272.17.........................................ad. No. 42, 2010
Subdivision C
s. 272.18.........................................ad. No. 42, 2010
s. 272.19.........................................ad. No. 42, 2010
s. 272.20.........................................ad. No. 42, 2010
Subdivision D ................................rep. No. 74, 2013
s. 272.21.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 272.22.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 272.23.........................................ad. No. 42, 2010
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
498 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
rep. No. 74, 2013
s. 272.24.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 272.25.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 272.26.........................................ad. No. 42, 2010
rep. No. 74, 2013
Subdivision E
s. 272.27.........................................ad. No. 42, 2010
s. 272.28.........................................ad. No. 42, 2010
s. 272.29.........................................ad. No. 42, 2010
s. 272.30.........................................ad. No. 42, 2010
s. 272.31.........................................ad. No. 42, 2010
Division 273
Division 273 ..................................ad. No. 42, 2010
Subdivision A
s. 273.1...........................................ad. No. 42, 2010
s. 273.2...........................................ad. No. 42, 2010
s. 273.2A........................................ad. No. 42, 2010
s. 273.3...........................................ad. No. 42, 2010
s. 273.4...........................................ad. No. 42, 2010
am. No. 74, 2013
Subdivision B
s. 273.5...........................................ad. No. 42, 2010
s. 273.6...........................................ad. No. 42, 2010
s. 273.7...........................................ad. No. 42, 2010
s. 273.8...........................................ad. No. 42, 2010
Subdivision C
s 273.9 ...........................................ad No 42, 2010
am No 25, 2015; No 51, 2017
Subdivision D ................................rep. No. 74, 2013
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 499
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 273.10.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 273.11.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 273.12.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 273.13.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 273.14.........................................ad. No. 42, 2010
rep. No. 74, 2013
s. 273.15.........................................ad. No. 42, 2010
rep. No. 74, 2013
Division 274
Division 274 ..................................ad. No. 37, 2010
s. 274.1...........................................ad. No. 37, 2010
s. 274.2...........................................ad. No. 37, 2010
s. 274.3...........................................ad. No. 37, 2010
s. 274.4...........................................ad. No. 37, 2010
s. 274.5...........................................ad. No. 37, 2010
s. 274.6...........................................ad. No. 37, 2010
s. 274.7...........................................ad. No. 37, 2010
Division 279
Division 279 ..................................ad. No. 74, 2013
s. 279.1...........................................ad. No. 74, 2013
am No 34, 2018
s. 279.2...........................................ad. No. 74, 2013
s. 279.3...........................................ad. No. 74, 2013
s. 279.4...........................................ad. No. 74, 2013
s. 279.5...........................................ad. No. 74, 2013
s. 279.6...........................................ad. No. 74, 2013
s. 279.7...........................................ad. No. 74, 2013
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
500 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Chapter 9
Chapter 9 .......................................ad. No. 141, 2002
Part 9.1
Part 9.1...........................................ad. No. 129, 2005
Division 300
s. 300.1...........................................ad. No. 129, 2005
am. No. 8, 2010; No. 167, 2012
s 300.2 ...........................................ad No 129, 2005
am No 4, 2010; No 167, 2012; No 31, 2018
s. 300.3...........................................ad. No. 129, 2005
s. 300.4...........................................ad. No. 129, 2005
s. 300.5...........................................ad. No. 129, 2005
am No 153, 2015
s 300.6 ...........................................ad No 153, 2015
Division 301
Division 301 ..................................rs. No. 167, 2012
Subdivision A
s. 301.1...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.2...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.3...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.4...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.5...........................................ad. No. 129, 2005
rs. No. 167, 2012
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 501
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 31, 2018
s. 301.6...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.7...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.8...........................................ad. No. 129, 2005
rs. No. 167, 2012
am No 31, 2018
s. 301.9...........................................ad. No. 129, 2005
am No 15, 2016
Subdivision B
s 301.10..........................................ad No 129, 2005
rs No 167, 2012
am No 31, 2018
s 301.11..........................................ad No 129, 2005
am No 8, 2010
rs No 167, 2012
am No 12, 2015; No 31, 2018
s 301.12..........................................ad No 129, 2005
rs No 167, 2012
am No 31, 2018
Subdivision C
s 301.13..........................................ad No 167, 2012
am No 31, 2018
s 301.14..........................................ad No 167, 2012
am No 31, 2018
s 301.15..........................................ad No 167, 2012
am No 31, 2018
s. 301.16.........................................ad. No. 167, 2012
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
502 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 126, 2015; No 31, 2018
s. 301.17.........................................ad. No. 167, 2012
am No 126, 2015; No 31, 2018
Division 302
s. 302.1...........................................ad. No. 129, 2005
s. 302.2...........................................ad. No. 129, 2005
s. 302.3...........................................ad. No. 129, 2005
s. 302.4...........................................ad. No. 129, 2005
s. 302.5...........................................ad. No. 129, 2005
s. 302.6...........................................ad. No. 129, 2005
am. No. 3, 2010
Division 303
s. 303.1...........................................ad. No. 129, 2005
s. 303.2...........................................ad. No. 129, 2005
s. 303.3...........................................ad. No. 129, 2005
s. 303.4...........................................ad. No. 129, 2005
s. 303.5...........................................ad. No. 129, 2005
s. 303.6...........................................ad. No. 129, 2005
s. 303.7...........................................ad. No. 129, 2005
Division 304
s. 304.1...........................................ad. No. 129, 2005
s. 304.2...........................................ad. No. 129, 2005
s. 304.3...........................................ad. No. 129, 2005
Division 305
s. 305.1...........................................ad. No. 129, 2005
am No 15, 2016
s. 305.2...........................................ad. No. 129, 2005
s. 305.3...........................................ad. No. 129, 2005
s. 305.4...........................................ad. No. 129, 2005
s. 305.5...........................................ad. No. 129, 2005
s. 305.6...........................................ad. No. 129, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 503
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 306
s. 306.1...........................................ad. No. 129, 2005
s. 306.2...........................................ad. No. 129, 2005
s. 306.3...........................................ad. No. 129, 2005
s. 306.4...........................................ad. No. 129, 2005
s. 306.5...........................................ad. No. 129, 2005
s. 306.6...........................................ad. No. 129, 2005
s. 306.7...........................................ad. No. 129, 2005
s. 306.8...........................................ad. No. 129, 2005
Division 307
Subdivision A
s. 307.1...........................................ad. No. 129, 2005
s. 307.2...........................................ad. No. 129, 2005
s. 307.3...........................................ad. No. 129, 2005
s. 307.4...........................................ad. No. 129, 2005
am. No. 167, 2012
Subdivision B
s. 307.5...........................................ad. No. 129, 2005
s. 307.6...........................................ad. No. 129, 2005
s. 307.7...........................................ad. No. 129, 2005
am. No. 167, 2012
Subdivision C
s. 307.8...........................................ad. No. 129, 2005
s. 307.9...........................................ad. No. 129, 2005
s. 307.10.........................................ad. No. 129, 2005
am. No. 167, 2012
Subdivision D
s. 307.11.........................................ad. No. 129, 2005
am No 153, 2015
s. 307.12.........................................ad. No. 129, 2005
am No 153, 2015
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
504 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 307.13.........................................ad. No. 129, 2005
am No 153, 2015
s. 307.14.........................................ad. No. 129, 2005
rep No 153, 2015
Division 308
s. 308.1...........................................ad. No. 129, 2005
am. No. 167, 2012
s. 308.2...........................................ad. No. 129, 2005
s. 308.3...........................................ad. No. 129, 2005
s. 308.4...........................................ad. No. 129, 2005
Division 309
s. 309.1...........................................ad. No. 129, 2005
s. 309.2...........................................ad. No. 129, 2005
s. 309.3...........................................ad. No. 129, 2005
s. 309.4...........................................ad. No. 129, 2005
s. 309.5...........................................ad. No. 129, 2005
s. 309.6...........................................ad. No. 129, 2005
s. 309.7...........................................ad. No. 129, 2005
s. 309.8...........................................ad. No. 129, 2005
s. 309.9...........................................ad. No. 129, 2005
s. 309.10.........................................ad. No. 129, 2005
s. 309.11.........................................ad. No. 129, 2005
s. 309.12.........................................ad. No. 129, 2005
s. 309.13.........................................ad. No. 129, 2005
s. 309.14.........................................ad. No. 129, 2005
s. 309.15.........................................ad. No. 129, 2005
Division 310
s. 310.1...........................................ad. No. 129, 2005
s. 310.2...........................................ad. No. 129, 2005
s. 310.3...........................................ad. No. 129, 2005
s. 310.4...........................................ad. No. 129, 2005
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 505
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 311
Subdivision A
s. 311.1...........................................ad. No. 129, 2005
Subdivision B
s. 311.2...........................................ad. No. 129, 2005
s. 311.3...........................................ad. No. 129, 2005
s. 311.4...........................................ad. No. 129, 2005
s. 311.5...........................................ad. No. 129, 2005
s. 311.6...........................................ad. No. 129, 2005
s. 311.7...........................................ad. No. 129, 2005
Subdivision C
s. 311.8...........................................ad. No. 129, 2005
s. 311.9...........................................ad. No. 129, 2005
s. 311.10.........................................ad. No. 129, 2005
s. 311.11.........................................ad. No. 129, 2005
s. 311.12.........................................ad. No. 129, 2005
s. 311.13.........................................ad. No. 129, 2005
s. 311.14.........................................ad. No. 129, 2005
s. 311.15.........................................ad. No. 129, 2005
s. 311.16.........................................ad. No. 129, 2005
s. 311.17.........................................ad. No. 129, 2005
s. 311.18.........................................ad. No. 129, 2005
s. 311.19.........................................ad. No. 129, 2005
s. 311.20.........................................ad. No. 129, 2005
s. 311.21.........................................ad. No. 129, 2005
s. 311.22.........................................ad. No. 129, 2005
Division 312
s 312.1 ...........................................ad No 129, 2005
am No 12, 2015
s 312.2 ...........................................ad No 129, 2005
am No 12, 2015
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
506 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 313
s. 313.1...........................................ad. No. 129, 2005
s. 313.2...........................................ad. No. 129, 2005
s. 313.3...........................................ad. No. 129, 2005
s. 313.4...........................................ad. No. 129, 2005
s. 313.5...........................................ad. No. 129, 2005
Division 314 ..................................rep. No. 167, 2012
s. 314.1...........................................ad. No. 129, 2005
am. No. 24, 2012
rep. No. 167, 2012
s. 314.2...........................................ad. No. 129, 2005
rep. No. 167, 2012
s. 314.3...........................................ad. No. 129, 2005
am. No. 24, 2012
rep. No. 167, 2012
s. 314.4...........................................ad. No. 129, 2005
am. No. 24, 2012
rep. No. 167, 2012
s. 314.5...........................................ad. No. 129, 2005
rep. No. 167, 2012
s. 314.6...........................................ad. No. 129, 2005
am. No. 24, 2012
rep. No. 167, 2012
Part 9.2
Part 9.2...........................................ad No 12, 2015
Division 320
s 320.1 ...........................................ad No 12, 2015
s 320.2 ...........................................ad No 12, 2015
am No 13, 2019
s 320.3 ...........................................ad No 12, 2015
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 507
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Part 9.4
Division 360
s 360.1 ...........................................ad No 141, 2002
am No 12, 2015
s 360.2 ...........................................ad No 141, 2002
am No 12, 2015; No 4, 2016
s 360.3 ...........................................ad No 141, 2002
am No 12, 2015; No 4, 2016
s 360.4 ...........................................ad No 141, 2002
am No 12, 2015
Division 361
Division 361 ..................................ad No 12, 2015
s 361.1 ...........................................ad No 12, 2015
s 361.2 ...........................................ad No 12, 2015
s 361.3 ...........................................ad No 12, 2015
s 361.4 ...........................................ad No 12, 2015
s 361.6 ...........................................ad No 12, 2015
Part 9.5
Part 9.5...........................................ad No 3, 2011
Division 370
s. 370.1...........................................ad. No. 3, 2011
s. 370.2...........................................ad. No. 167, 2012
s. 370.3...........................................ad. No. 167, 2012
Division 372
s. 372.1...........................................ad. No. 3, 2011
am. No. 167, 2012
s. 372.1A........................................ad. No. 167, 2012
s. 372.2...........................................ad. No. 3, 2011
am. No. 167, 2012
s. 372.3...........................................ad. No. 3, 2011
am. No. 167, 2012
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
508 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 372.4...........................................ad. No. 3, 2011
s. 372.5...........................................ad. No. 3, 2011
am. No. 167, 2012
s. 372.6...........................................ad. No. 3, 2011
Division 375
s. 375.1...........................................ad. No. 3, 2011
s. 375.2...........................................ad. No. 3, 2011
s. 375.3...........................................ad. No. 3, 2011
s. 375.4...........................................ad. No. 3, 2011
Division 376
Division 376 ..................................ad. No. 167, 2012
s. 376.1...........................................ad. No. 167, 2012
s. 376.2...........................................ad. No. 167, 2012
s. 376.3...........................................ad. No. 167, 2012
s. 376.4...........................................ad. No. 167, 2012
s. 376.5...........................................ad. No. 167, 2012
Part 9.6
Part 9.6...........................................ad. No. 127, 2004
s. 380.1...........................................ad. No. 127, 2004
s. 380.2...........................................ad. No. 127, 2004
am No 4, 2016; No 98, 2018
s. 380.3...........................................ad. No. 127, 2004
am No 4, 2016; No 98, 2018
s. 380.4...........................................ad. No. 127, 2004
am No 4, 2016; No 98, 2018
s. 380.5...........................................ad. No. 127, 2004
am No 98, 2018
Part 9.9
Part 9.9...........................................ad. No. 4, 2010
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 509
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Division 390
Subdivision A
s. 390.1...........................................ad. No. 4, 2010
am. No. 127, 2010
s. 390.2...........................................ad. No. 4, 2010
Subdivision B
s. 390.3...........................................ad. No. 4, 2010
s. 390.4...........................................ad. No. 4, 2010
s. 390.5...........................................ad. No. 4, 2010
s. 390.6...........................................ad. No. 4, 2010
s. 390.7...........................................ad. No. 4, 2010
Chapter 10
Chapter 10......................................ad. No. 137, 2000
Part 10.2
Part 10.2.........................................ad. No. 86, 2002
Division 400
s. 400.1...........................................ad. No. 86, 2002
am. No. 170, 2006; No. 4, 2010
s. 400.2...........................................ad. No. 86, 2002
am. No. 100, 2005; No. 170, 2006
rs. No. 4, 2010
s. 400.2A........................................ad. No. 4, 2010
s. 400.3...........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.4...........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.5...........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.6...........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.7...........................................ad. No. 86, 2002
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
510 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am. No. 4, 2010; No 4, 2016
s. 400.8...........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.9...........................................ad. No. 86, 2002
am. No. 170, 2006; No. 4, 2010
s. 400.10.........................................ad. No. 86, 2002
am. No. 4, 2010; No 4, 2016
s. 400.11.........................................ad. No. 86, 2002
am. No. 170, 2006
s. 400.12.........................................ad. No. 86, 2002
s. 400.13.........................................ad. No. 86, 2002
s. 400.14.........................................ad. No. 86, 2002
s. 400.15.........................................ad. No. 86, 2002
rs. No. 4, 2010
am No 4, 2016
s. 400.16.........................................ad. No. 86, 2002
Part 10.5
Division 470
s 470.1 ...........................................ad No 137, 2000
am No 9, 2002; No 31, 2018
s. 470.2...........................................ad. No. 137, 2000
s. 470.3...........................................ad. No. 137, 2000
s. 470.4...........................................ad. No. 42, 2010
Division 471
Subdivision A
Subdivision A heading...................ad. No. 42, 2010
s. 471.1...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.2...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.3...........................................ad. No. 137, 2000
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 511
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 4, 2016
s. 471.4...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.5...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.6...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.7...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.8...........................................ad. No. 137, 2000
am No 4, 2016
s. 471.9...........................................ad. No. 137, 2000
am. No. 9, 2002
s. 471.10.........................................ad. No. 9, 2002
am No 4, 2016
s. 471.11.........................................ad. No. 9, 2002
am. No. 127, 2004; No 4, 2016
s. 471.12.........................................ad. No. 9, 2002
am. No. 127, 2004; No 4, 2016
s. 471.13.........................................ad. No. 9, 2002
am No 4, 2016
s. 471.14.........................................ad. No. 9, 2002
am. No. 9, 2002
s. 471.15.........................................ad. No. 9, 2002
am No 4, 2016
Subdivision B
Subdivision B ................................ad. No. 42, 2010
s. 471.16.........................................ad. No. 42, 2010
s. 471.17.........................................ad. No. 42, 2010
s. 471.18.........................................ad. No. 42, 2010
am No 31, 2018
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
512 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 471.19.........................................ad. No. 42, 2010
s. 471.20.........................................ad. No. 42, 2010
s. 471.21.........................................ad. No. 42, 2010
am No 31, 2018
s. 471.22.........................................ad. No. 42, 2010
s. 471.23.........................................ad. No. 42, 2010
Subdivision C
Subdivision C ................................ad. No. 42, 2010
s. 471.24.........................................ad. No. 42, 2010
s. 471.25.........................................ad. No. 42, 2010
s. 471.26.........................................ad. No. 42, 2010
s. 471.27.........................................ad. No. 42, 2010
s. 471.28.........................................ad. No. 42, 2010
s. 471.29.........................................ad. No. 42, 2010
Subdivision D
Subdivision D ................................ad. No. 42, 2010
s. 471.30.........................................ad. No. 42, 2010
s. 471.31.........................................ad. No. 42, 2010
Division 472
s. 472.1...........................................ad. No. 137, 2000
s. 472.2...........................................ad. No. 137, 2000
Part 10.6
Part 10.6.........................................rs. No. 127, 2004
Division 473
s 473.1 ...........................................ad No 137, 2000
rs No 127, 2004
am No 95, 2005; No 40, 2006; No 8, 2010; No 42, 2010; No 5, 2011;
No 44, 2012; No 108, 2014; No 38, 2015; No 153, 2015; No 86, 2016;
No 25, 2018; No 31, 2018; No 96, 2018; No 156, 2018
s. 473.2...........................................ad. No. 137, 2000
rs. No. 127, 2004
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 513
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 473.3...........................................ad. No. 137, 2000
rs. No. 127, 2004
s. 473.4...........................................ad. No. 127, 2004
am No 96, 2018
s. 473.5...........................................ad. No. 42, 2010
Division 474
Subdivision A
s. 474.1...........................................ad. No. 137, 2000
rs. No. 127, 2004
s. 474.2...........................................ad. No. 127, 2004
am No 4, 2016
Subdivision B
s. 474.3...........................................ad. No. 127, 2004
s. 474.4...........................................ad. No. 127, 2004
am. No. 40, 2006; No 4, 2016
s. 474.5...........................................ad. No. 127, 2004
am No 4, 2016
s. 474.6...........................................ad. No. 127, 2004
am No 4, 2016; No 148, 2018
s. 474.7...........................................ad. No. 127, 2004
am No 4, 2016
s. 474.8...........................................ad. No. 127, 2004
am No 4, 2016
s. 474.9...........................................ad. No. 127, 2004
am No 4, 2016
s. 474.10.........................................ad. No. 127, 2004
am No 4, 2016
s. 474.11.........................................ad. No. 127, 2004
am No 4, 2016
s. 474.12.........................................ad. No. 127, 2004
am No 4, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
514 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
Subdivision C
Subdivision C heading ...................rs. No. 42, 2010
s. 474.13.........................................ad. No. 127, 2004
am. No. 8, 2010
rep. No. 42, 2010
s. 474.14.........................................ad. No. 127, 2004
am No 4, 2016
s. 474.15.........................................ad. No. 127, 2004
am No 4, 2016
s. 474.16.........................................ad. No. 127, 2004
am No 4, 2016
s 474.17..........................................ad No 127, 2004
am No 44, 2012; No 4, 2016; No 31, 2018
s 474.17A.......................................ad No 96, 2018
s 474.17B.......................................ad No 96, 2018
s. 474.18.........................................ad. No. 127, 2004
am No 4, 2016
Subdivision D
Subdivision D heading...................ad. No. 42, 2010
s. 474.19.........................................ad. No. 127, 2004
am. No. 42, 2010; No 4, 2016
s. 474.20.........................................ad. No. 127, 2004
am. No. 42, 2010; No 4, 2016
s 474.21..........................................ad No 127, 2004
am No 45, 2005; No 124, 2007; No 25, 2015; No 51, 2017; No 31,
2018
s. 474.22.........................................ad. No. 127, 2004
am. No. 42, 2010; No 4, 2016
s. 474.23.........................................ad. No. 127, 2004
am. No. 42, 2010; No 4, 2016
s 474.24..........................................ad No 127, 2004
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 515
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 45, 2005; No 124, 2007; No 25, 2015; No 51, 2017; No 31,
2018
s. 474.24A......................................ad. No. 42, 2010
s. 474.24B......................................ad. No. 42, 2010
s. 474.24C......................................ad. No. 42, 2010
Subdivision E
Subdivision E heading ...................ad. No. 42, 2010
s 474.25..........................................ad No 127, 2004
am No 8, 2010; No 38, 2019
Subdivision F
Subdivision F heading....................ad No 42, 2010
rs No 50, 2017
s 474.25A.......................................ad No 42, 2010
s 474.25B.......................................ad No 42, 2010
am No 5, 2015
s 474.25C.......................................ad No 50, 2017
s. 474.26.........................................ad. No. 127, 2004
am. No. 42, 2010
s. 474.27.........................................ad. No. 127, 2004
am. No. 42, 2010
s. 474.27A......................................ad. No. 42, 2010
s. 474.28.........................................ad. No. 127, 2004
am. No. 42, 2010
s. 474.29.........................................ad. No. 127, 2004
rs. No. 42, 2010
Subdivision G
Subdivision G heading...................ad. No. 42, 2010
s. 474.29A......................................ad. No. 92, 2005
am No 4, 2016
s. 474.29B......................................ad. No. 92, 2005
am No 4, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
516 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s 474.30..........................................ad No 127, 2004
rep No 42, 2010
Subdivision H
Subdivision H ................................ad No 38, 2019
s 474.30..........................................ad No 38, 2019
s 474.31..........................................ad No 38, 2019
s 474.32..........................................ad No 38, 2019
s 474.33..........................................ad No 38, 2019
s 474.34..........................................ad No 38, 2019
s 474.35..........................................ad No 38, 2019
s 474.36..........................................ad No 38, 2019
s 474.37..........................................ad No 38, 2019
s 474.38..........................................ad No 38, 2019
s 474.39..........................................ad No 38, 2019
s 474.40..........................................ad No 38, 2019
s 474.41..........................................ad No 38, 2019
s 474.42..........................................ad No 38, 2019
s 474.43..........................................ad No 38, 2019
s 474.44..........................................ad No 38, 2019
s 474.45..........................................ad No 38, 2019
Division 475
s 475.1A.........................................ad No 42, 2010
s 475.1B.........................................ad No 42, 2010
s 475.1 ...........................................ad No 137, 2000
rs No 127, 2004
s 475.2 ...........................................ad No 127, 2004
am No 38, 2019
Part 10.7
Part 10.7.........................................ad. No. 161, 2001
Division 476
s 476.1 ...........................................ad No 161, 2001
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
Criminal Code Act 1995 517
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
am No 127, 2004; No 5, 2011; No 120, 2012
s 476.2 ...........................................ad No 161, 2001
am No 152, 2004; No 148, 2018
s. 476.3...........................................ad. No. 161, 2001
s. 476.4...........................................ad. No. 161, 2001
s. 476.5...........................................ad. No. 161, 2001
am. No. 127, 2004; No. 128, 2005; No. 40, 2006; No. 177, 2007; Nos.
5 and 80, 2011; No 108, 2014; No 25, 2018
Division 477
s. 477.1...........................................ad. No. 161, 2001
am. No. 127, 2004; No. 3, 2011; No. 120, 2012; No 4, 2016
s. 477.2...........................................ad. No. 161, 2001
am. No. 127, 2004; No. 120, 2012; No 4, 2016
s. 477.3...........................................ad. No. 161, 2001
am. No. 127, 2004; No. 120, 2012; No 4, 2016
Division 478
s. 478.1...........................................ad. No. 161, 2001
am. No. 127, 2004; No. 120, 2012; No 4, 2016
s. 478.2...........................................ad. No. 161, 2001
am. No. 120, 2012; No 4, 2016
s. 478.3...........................................ad. No. 161, 2001
am No 4, 2016
s. 478.4...........................................ad. No. 161, 2001
am No 4, 2016
Part 10.8
Part 10.8.........................................ad. No. 127, 2004
s. 480.1...........................................ad. No. 127, 2004
s. 480.2...........................................ad. No. 127, 2004
s. 480.3...........................................ad. No. 127, 2004
s. 480.4...........................................ad. No. 127, 2004
am No 4, 2016
Authorised Version C2019C00152 registered 29/04/2019
Endnotes
Endnote 4—Amendment history
518 Criminal Code Act 1995
Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19
Provision affected How affected
s. 480.5...........................................ad. No. 127, 2004
am No 4, 2016
s. 480.6...........................................ad. No. 127, 2004
am. No. 8, 2010; No 4, 2016
Part 10.9
Part 10.9.........................................ad No 15, 2016
Division 490
s 490.1 ...........................................ad No 15, 2016
s 490.2 ...........................................ad No 15, 2016
s 490.3 ...........................................ad No 15, 2016
s 490.4 ...........................................ad No 15, 2016
s 490.5 ...........................................ad No 15, 2016
s 490.6 ...........................................ad No 15, 2016
s 490.7 ...........................................ad No 15, 2016
Dictionary
Dictionary ......................................am No 43, 1999; No 104, 1999; No 124, 2000; No 137, 2000; No 55,
2001; No 42, 2002; No 105, 2002 (as am by No 127, 2002); No 127,
2004; No 96, 2005; SLI No 50, 2006; No 125, 2006; No 18, 2009; No
54, 2009; No 70, 2009; No 3, 2010; No 4, 2010; No 42, 2010; No 127,
2010; No 3, 2011; No 46, 2011; No 136, 2012; No 6, 2013; No 13,
2013; No 5, 2015; No 59, 2015; No 153, 2015; No 15, 2016; No 34,
2018; No 44, 2018; No 67, 2018; No 148, 2018
Authorised Version C2019C00152 registered 29/04/2019