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Australia

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Criminal Code Act 1995 (consolidated as of April 6, 2019)



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If a provision of the compiled law has been repealed in accordance with a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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Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19

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) 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

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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

Criminal Code Act 1995 5

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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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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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Schedule The Criminal Code

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

10 Criminal Code Act 1995

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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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The Criminal Code Schedule

General principles of criminal responsibility Chapter 2

Circumstances in which there is no criminal responsibility Part 2.3

Intoxication Division 8

Section 8.1

Criminal Code Act 1995 13

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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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Schedule The Criminal Code

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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General principles of criminal responsibility Chapter 2

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 in which there is no criminal responsibility Part 2.3

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

18 Criminal Code Act 1995

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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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General principles of criminal responsibility Chapter 2

Circumstances in which there is no criminal responsibility Part 2.3

Circumstances involving external factors Division 10

Section 10.1

Criminal Code Act 1995 19

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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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Chapter 2 General principles of criminal responsibility

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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General principles of criminal responsibility Chapter 2

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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Chapter 2 General principles of criminal responsibility

Part 2.4 Extensions of criminal responsibility

Division 11

Section 11.1

22 Criminal Code Act 1995

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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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General principles of criminal responsibility Chapter 2

Extensions of criminal responsibility Part 2.4

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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Chapter 2 General principles of criminal responsibility

Part 2.4 Extensions of criminal responsibility

Division 11

Section 11.2A

24 Criminal Code Act 1995

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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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General principles of criminal responsibility Chapter 2

Extensions of criminal responsibility Part 2.4

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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Chapter 2 General principles of criminal responsibility

Part 2.4 Extensions of criminal responsibility

Division 11

Section 11.3

26 Criminal Code Act 1995

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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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Extensions of criminal responsibility Part 2.4

Division 11

Section 11.4

Criminal Code Act 1995 27

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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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Chapter 2 General principles of criminal responsibility

Part 2.4 Extensions of criminal responsibility

Division 11

Section 11.5

28 Criminal Code Act 1995

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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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(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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(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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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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Section 15.4

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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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Section 16.1

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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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(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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Section 70.2

56 Criminal Code Act 1995

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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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Section 70.3

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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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(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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Section 72.16

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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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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

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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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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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(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

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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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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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(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

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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

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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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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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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

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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

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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

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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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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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Section 80.2C

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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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Section 80.2D

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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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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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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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Chapter 5 The security of the Commonwealth

Part 5.2 Espionage and related offences

Division 91 Espionage

Section 91.9

154 Criminal Code Act 1995

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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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Chapter 5 The security of the Commonwealth

Part 5.2 Espionage and related offences

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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(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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Foreign interference Division 92

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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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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Chapter 5 The security of the Commonwealth

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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Chapter 5 The security of the Commonwealth

Part 5.3 Terrorism

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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(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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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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(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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Section 102.1

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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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(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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Part 5.3 Terrorism

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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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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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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Section 104.28

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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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Division 105 Preventative detention orders

Section 105.22

272 Criminal Code Act 1995

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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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Section 105.23

Criminal Code Act 1995 273

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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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Division 105 Preventative detention orders

Section 105.25

274 Criminal Code Act 1995

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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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Section 105.26

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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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Section 105.27

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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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Section 105.28

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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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Section 105.28

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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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Section 105.29

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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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Section 105.29

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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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Section 105.30

Criminal Code Act 1995 281

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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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Section 105.32

282 Criminal Code Act 1995

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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

Criminal Code Act 1995 283

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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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Section 105.35

Criminal Code Act 1995 285

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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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Section 105.37

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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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Section 105.42

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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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Section 105.52

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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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Section 105A.3

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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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Part 5.3 Terrorism

Division 105A Continuing detention orders

Section 105A.11

320 Criminal Code Act 1995

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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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Division 105A Continuing detention orders

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

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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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Division 105A Continuing detention orders

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

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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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Section 106.1

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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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(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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Section 123.1

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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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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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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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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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Section 132.1

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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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Division 134 Obtaining property or a financial advantage by deception

Section 134.1

408 Criminal Code Act 1995

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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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Obtaining property or a financial advantage by deception Division 134

Section 134.2

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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

Section 135.1

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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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Section 135.2

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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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Section 135.4

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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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Division 135 Other offences involving fraudulent conduct

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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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Part 7.4 False or misleading statements

Division 136 False or misleading statements in applications

Section 136.1

416 Criminal Code Act 1995

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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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Part 7.4 False or misleading statements

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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Part 7.4 False or misleading statements

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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Part 7.4 False or misleading statements

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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Division 138 Preliminary

Section 138.2

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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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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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Part 7.5 Unwarranted demands

Division 139 Unwarranted demands

Section 139.3

426 Criminal Code Act 1995

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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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Chapter 7 The proper administration of Government

Part 7.6 Bribery and related offences

Division 141 Bribery

Section 141.1

428 Criminal Code Act 1995

Compilation No. 127 Compilation date: 6/4/19 Registered: 29/4/19

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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Section 141.1

Criminal Code Act 1995 429

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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

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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

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(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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Preliminary Division 143

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

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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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Offences relating to forgery Division 145

Section 145.4

Criminal Code Act 1995 445

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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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Chapter 7 The proper administration of Government

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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Forgery and related offences Part 7.7

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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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 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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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 147.1

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

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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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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 147.3

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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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 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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Commonwealth public officials or bodies Part 7.8

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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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

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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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Commonwealth public officials or bodies Part 7.8

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.

Authorised Version C2019C00152 registered 29/04/2019