Prepared by the Office of Parliamentary Counsel, Canberra
Criminal Code Act 1995
No. 12, 1995
Compilation No. 113
Compilation date: 1 July 2017
Includes amendments up to: Act No. 73, 2017
Registered: 17 July 2017
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
This compilation includes a commenced amendment made by Act No. 86,
2016. The amendment made by Act No. 73, 2017 has not commenced but is
noted in the endnotes
Authorised Version C2017C00235 registered 17/07/2017
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 1 July 2017 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents 1 Short title...........................................................................1
2 Commencement.................................................................1
3 The Criminal Code ............................................................1
3A External Territories............................................................1
3B Offshore installations ........................................................1
4 Definitions.........................................................................1
5 Regulations........................................................................2
Schedule—The Criminal Code 3
Chapter 1—Codification 3
Division 1 3
1.1 Codification.......................................................................3
Chapter 2—General principles of criminal responsibility 4
Part 2.1—Purpose and application 4
Division 2 4
2.1 Purpose..............................................................................4
2.2 Application........................................................................4
2.3 Application of provisions relating to intoxication .............4
Part 2.2—The elements of an offence 5
Division 3—General 5
3.1 Elements............................................................................5
3.2 Establishing guilt in respect of offences ............................5
Division 4—Physical elements 6
4.1 Physical elements ..............................................................6
4.2 Voluntariness.....................................................................6
4.3 Omissions..........................................................................7
Division 5—Fault elements 8
5.1 Fault elements ...................................................................8
5.2 Intention ............................................................................8
5.3 Knowledge ........................................................................8
5.4 Recklessness......................................................................8
5.5 Negligence.........................................................................9
5.6 Offences that do not specify fault elements.......................9
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Division 6—Cases where fault elements are not required 10
6.1 Strict liability...................................................................10
6.2 Absolute liability .............................................................10
Part 2.3—Circumstances in which there is no criminal
responsibility 11
Division 7—Circumstances involving lack of capacity 11
7.1 Children under 10............................................................11
7.2 Children over 10 but under 14.........................................11
7.3 Mental impairment ..........................................................11
Division 8—Intoxication 13
8.1 Definition—self-induced intoxication .............................13
8.2 Intoxication (offences involving basic intent) .................13
8.3 Intoxication (negligence as fault element).......................14
8.4 Intoxication (relevance to defences) ................................14
8.5 Involuntary intoxication ..................................................15
Division 9—Circumstances involving mistake or ignorance 16
9.1 Mistake or ignorance of fact (fault elements other
than negligence) ..............................................................16
9.2 Mistake of fact (strict liability) ........................................16
9.3 Mistake or ignorance of statute law.................................17
9.4 Mistake or ignorance of subordinate legislation ..............17
9.5 Claim of right ..................................................................18
Division 10—Circumstances involving external factors 19
10.1 Intervening conduct or event ...........................................19
10.2 Duress..............................................................................19
10.3 Sudden or extraordinary emergency................................19
10.4 Self-defence.....................................................................20
10.5 Lawful authority..............................................................21
Part 2.4—Extensions of criminal responsibility 22
Division 11 22
11.1 Attempt............................................................................22
11.2 Complicity and common purpose....................................23
11.2A Joint commission.............................................................24
11.3 Commission by proxy .....................................................26
11.4 Incitement........................................................................26
11.5 Conspiracy.......................................................................28
11.6 References in Acts to offences ........................................29
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Part 2.5—Corporate criminal responsibility 31
Division 12 31
12.1 General principles ...........................................................31
12.2 Physical elements ............................................................31
12.3 Fault elements other than negligence ..............................31
12.4 Negligence.......................................................................33
12.5 Mistake of fact (strict liability) ........................................33
12.6 Intervening conduct or event ...........................................34
Part 2.6—Proof of criminal responsibility 35
Division 13 35
13.1 Legal burden of proof—prosecution ...............................35
13.2 Standard of proof—prosecution ......................................35
13.3 Evidential burden of proof—defence ..............................35
13.4 Legal burden of proof—defence......................................36
13.5 Standard of proof—defence ............................................36
13.6 Use of averments .............................................................36
Part 2.7—Geographical jurisdiction 38
Division 14—Standard geographical jurisdiction 38
14.1 Standard geographical jurisdiction ..................................38
Division 15—Extended geographical jurisdiction 41
15.1 Extended geographical jurisdiction—category A............41
15.2 Extended geographical jurisdiction—category B ............43
15.3 Extended geographical jurisdiction—category C ............46
15.4 Extended geographical jurisdiction—category D............48
Division 16—Miscellaneous 49
16.1 Attorney-General’s consent required for
prosecution if alleged conduct occurs wholly in a
foreign country in certain circumstances .........................49
16.2 When conduct taken to occur partly in Australia.............49
16.3 Meaning of Australia.......................................................50
16.4 Result of conduct.............................................................50
Chapter 4—The integrity and security of the international
community and foreign governments 51
Division 70—Bribery of foreign public officials 51
70.1 Definitions.......................................................................51
70.2 Bribing a foreign public official ......................................54
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70.3 Defence—conduct lawful in foreign public
official’s country .............................................................57
70.4 Defence—facilitation payments ......................................60
70.5 Territorial and nationality requirements ..........................62
70.6 Saving of other laws ........................................................63
Division 71—Offences against United Nations and associated
personnel 64
71.1 Purpose............................................................................64
71.2 Murder of a UN or associated person ..............................64
71.3 Manslaughter of a UN or associated person ....................64
71.4 Intentionally causing serious harm to a UN or
associated person.............................................................65
71.5 Recklessly causing serious harm to a UN or
associated person.............................................................65
71.6 Intentionally causing harm to a UN or associated
person ..............................................................................66
71.7 Recklessly causing harm to a UN or associated
person ..............................................................................66
71.8 Unlawful sexual penetration............................................67
71.9 Kidnapping a UN or associated person ...........................68
71.10 Unlawful detention of UN or associated person ..............69
71.11 Intentionally causing damage to UN or associated
person’s property etc. ......................................................69
71.12 Threatening to commit other offences.............................70
71.13 Aggravated offences........................................................71
71.14 Defence—activities involving serious harm....................71
71.15 Defence—medical or hygienic procedures......................72
71.16 Jurisdictional requirement ...............................................72
71.17 Exclusion of this Division if State/Territory laws
provide for corresponding offences .................................73
71.18 Double jeopardy ..............................................................73
71.19 Saving of other laws ........................................................73
71.20 Bringing proceedings under this Division .......................74
71.21 Ministerial certificates relating to proceedings................74
71.22 Jurisdiction of State courts preserved ..............................74
71.23 Definitions.......................................................................75
Division 72—Explosives and lethal devices 77
Subdivision A—International terrorist activities using explosive
or lethal devices 77
72.1 Purpose............................................................................77
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72.2 ADF members not liable for prosecution ........................77
72.3 Offences ..........................................................................77
72.4 Jurisdictional requirement ...............................................78
72.5 Saving of other laws ........................................................79
72.6 Double jeopardy and foreign offences.............................80
72.7 Bringing proceedings under this Subdivision ..................80
72.8 Ministerial certificates relating to proceedings................80
72.9 Jurisdiction of State courts preserved ..............................81
72.10 Definitions.......................................................................81
Subdivision B—Plastic explosives 82
72.11 Purpose............................................................................82
72.12 Trafficking in unmarked plastic explosives etc. ..............82
72.13 Importing or exporting unmarked plastic
explosives etc. .................................................................82
72.14 Manufacturing unmarked plastic explosives etc. .............83
72.15 Possessing unmarked plastic explosives etc. ...................83
72.16 Defences..........................................................................84
72.17 Packaging requirements for plastic explosives ................85
72.18 Authorisation for research etc..........................................85
72.19 Authorisation for defence and police purposes—15
year limit .........................................................................87
72.22 Authorisation for overseas defence purposes—7
day limit ..........................................................................88
72.23 Authorisation for overseas Australian Federal
Police purposes—7 day limit...........................................89
72.24 Forfeited plastic explosives .............................................89
72.25 Surrendered plastic explosives ........................................90
72.26 Destruction of plastic explosives obtained overseas
for defence purposes........................................................91
72.27 Destruction of plastic explosives obtained overseas
for Australian Federal Police purposes............................91
72.28 Delegation by 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, urging violence and advocating terrorism or
genocide 113
Division 80—Treason, urging violence and advocating terrorism
or genocide 113
Subdivision A—Preliminary 113
80.1A Definition of organisation .............................................113
Subdivision B—Treason 113
80.1 Treason..........................................................................113
80.1AA Treason—materially assisting enemies etc....................114
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
Part 5.2—Offences relating to espionage and similar activities 126
Division 90—Preliminary 126
90.1 Definitions.....................................................................126
Division 91—Offences relating to espionage and similar activities 128
91.1 Espionage and similar activities ....................................128
91.2 Defence—information lawfully available .....................130
Division 93—Prosecutions and hearings 131
93.1 Institution of prosecution...............................................131
93.2 Hearing in camera etc. ...................................................131
Division 94—Forfeiture 133
94.1 Forfeiture of articles etc.................................................133
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Part 5.3—Terrorism 134
Division 100—Preliminary 134
100.1 Definitions.....................................................................134
100.2 Referring States .............................................................139
100.3 Constitutional basis for the operation of this Part..........140
100.4 Application of provisions ..............................................141
100.5 Application of Acts Interpretation Act 1901..................143
100.6 Concurrent operation intended ......................................144
100.7 Regulations may modify operation of this Part to
deal with interaction between this Part and State
and Territory laws .........................................................145
100.8 Approval for changes to or affecting this Part ...............145
Division 101—Terrorism 146
101.1 Terrorist acts..................................................................146
101.2 Providing or receiving training connected with
terrorist acts ...................................................................146
101.4 Possessing things connected with terrorist acts .............147
101.5 Collecting or making documents likely to facilitate
terrorist acts ...................................................................148
101.6 Other acts done in preparation for, or planning,
terrorist acts ...................................................................149
Division 102—Terrorist organisations 151
Subdivision A—Definitions 151
102.1 Definitions.....................................................................151
102.1AA Including or removing names of prescribed
terrorist organisations ....................................................154
102.1A Reviews by Parliamentary Joint Committee on
Intelligence and Security ...............................................155
Subdivision B—Offences 157
102.2 Directing the activities of a terrorist organisation..........157
102.3 Membership of a terrorist organisation..........................157
102.4 Recruiting for a terrorist organisation............................158
102.5 Training involving a terrorist organisation ....................158
102.6 Getting funds to, from or for a terrorist
organisation ...................................................................159
102.7 Providing support to a terrorist organisation .................160
102.8 Associating with terrorist organisations ........................161
Subdivision C—General provisions relating to offences 163
102.9 Extended geographical jurisdiction for offences ...........163
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102.10 Alternative verdicts .......................................................164
Division 103—Financing terrorism 165
103.1 Financing terrorism .......................................................165
103.2 Financing a terrorist.......................................................165
103.3 Extended geographical jurisdiction for offences ...........166
Division 104—Control orders 167
Subdivision A—Objects of this Division 167
104.1 Objects of this Division.................................................167
Subdivision B—Making an interim control order 167
104.2 Attorney-General’s consent to request an interim
control order ..................................................................167
104.3 Requesting the court to make an interim control
order ..............................................................................169
104.4 Making an interim control order....................................170
104.5 Terms of an interim control order..................................172
Subdivision C—Making an urgent interim control order 176
104.6 Requesting an urgent interim control order by
electronic means ............................................................176
104.7 Making an urgent interim control order by
electronic means ............................................................177
104.8 Requesting an urgent interim control order in
person ............................................................................178
104.9 Making an urgent interim control order in person .........179
104.10 Obtaining the Attorney-General’s consent within 8
hours..............................................................................179
104.11 Court to assume that exercise of power not
authorised by urgent interim control order ....................180
Subdivision D—Confirming an interim control order 181
104.12 Service, explanation and notification of an interim
control order ..................................................................181
104.12A Election to confirm control order ..................................183
104.13 Lawyer may request a copy of an interim control
order ..............................................................................184
104.14 Confirming an interim control order..............................185
104.15 When a declaration, or a revocation, variation or
confirmation of a control order, is in force ....................187
104.16 Terms of a confirmed control order...............................187
104.17 Service of a declaration, or a revocation, variation
or confirmation of a control order .................................188
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Subdivision E—Rights in respect of a control order 189
104.18 Application by the person for a revocation or
variation of a control order ............................................189
104.19 Application by the AFP Commissioner for a
revocation or variation of a control order ......................190
104.20 Revocation or variation of a control order.....................191
104.21 Lawyer may request a copy of a control order ..............192
104.22 Treatment of photographs and impressions of
fingerprints ....................................................................192
Subdivision F—Adding obligations, prohibitions or restrictions to
a control order 193
104.23 Application by the AFP Commissioner for
addition of obligations, prohibitions or restrictions.......193
104.24 Varying a control order .................................................196
104.25 Terms of a varied control order .....................................197
104.26 Service and explanation of a varied control order .........197
Subdivision G—Offences relating to control orders 199
104.27 Offence for contravening a control order ......................199
104.27A Offence relating to tracking devices ..............................199
Subdivision H—Special rules for young people (14 to 17) 200
104.28 Special rules for young people ......................................200
Subdivision I—Miscellaneous 201
104.28A Interlocutory proceedings..............................................201
104.28B Giving documents to persons detained in custody.........201
104.29 Reporting requirements .................................................202
104.30 Requirement to notify Attorney-General of
declarations, revocations or variations ..........................203
104.31 Queensland public interest monitor functions and
powers not affected .......................................................203
104.32 Sunset provision ............................................................204
Division 105—Preventative detention orders 205
Subdivision A—Preliminary 205
105.1 Object ............................................................................205
105.2 Issuing authorities for continued preventative
detention orders .............................................................205
105.3 Police officer detaining person under a
preventative detention order ..........................................206
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Subdivision B—Preventative detention orders 206
105.4 Basis for applying for, and making, preventative
detention orders .............................................................206
105.5 No preventative detention order in relation to
person under 16 years of age .........................................208
105.5A Special assistance for person with inadequate
knowledge of English language or disability.................209
105.6 Restrictions on multiple preventative detention
orders.............................................................................209
105.7 Application for initial preventative detention order.......211
105.8 Senior AFP member may make initial preventative
detention order...............................................................213
105.9 Duration of initial preventative detention order.............216
105.10 Extension of initial preventative detention order...........217
105.10A Notice of application for continued preventative
detention order...............................................................217
105.11 Application for continued preventative detention
order ..............................................................................218
105.12 Judge, AAT member or retired judge may make
continued preventative detention order .........................219
105.13 Duration of continued preventative detention order ......221
105.14 Extension of continued preventative detention
order ..............................................................................222
105.14A Basis for applying for, and making, prohibited
contact order..................................................................223
105.15 Prohibited contact order (person in relation to
whom preventative detention order is being
sought)...........................................................................224
105.16 Prohibited contact order (person in relation to
whom preventative detention order is already in
force) .............................................................................226
105.17 Revocation of preventative detention order or
prohibited contact order.................................................228
105.18 Status of person making continued preventative
detention order...............................................................230
Subdivision C—Carrying out preventative detention orders 230
105.19 Power to detain person under preventative
detention order...............................................................230
105.20 Endorsement of order with date and time person
taken into custody..........................................................232
105.21 Requirement to provide name etc. .................................233
105.22 Power to enter premises ................................................234
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105.23 Power to conduct a frisk search .....................................234
105.24 Power to conduct an ordinary search.............................235
105.25 Warrant under Division 3 of Part III of the
Australian Security Intelligence Organisation Act
1979...............................................................................235
105.26 Release of person from preventative detention..............236
105.27 Arrangement for detainee to be held in State or
Territory prison or remand centre..................................237
Subdivision D—Informing person detained about preventative
detention order 238
105.28 Effect of initial preventative detention order to be
explained to person detained .........................................238
105.29 Effect of continued preventative detention order to
be explained to person detained.....................................240
105.30 Person being detained to be informed of extension
of preventative detention order......................................242
105.31 Compliance with obligations to inform .........................242
105.32 Copy of preventative detention order ............................243
Subdivision E—Treatment of person detained 245
105.33 Humane treatment of person being detained .................245
105.33A Detention of persons under 18.......................................245
105.34 Restriction on contact with other people .......................246
105.35 Contacting family members etc. ....................................246
105.36 Contacting Ombudsman etc. .........................................247
105.37 Contacting lawyer .........................................................248
105.38 Monitoring contact under section 105.35 or 105.37 ......250
105.39 Special contact rules for person under 18 or
incapable of managing own affairs................................251
105.40 Entitlement to contact subject to prohibited contact
order ..............................................................................253
105.41 Disclosure offences .......................................................253
105.42 Questioning of person prohibited while person is
detained .........................................................................259
105.43 Taking fingerprints, recordings, samples of
handwriting or photographs...........................................261
105.44 Use of identification material ........................................263
105.45 Offences of contravening safeguards.............................264
Subdivision F—Miscellaneous 264
105.46 Nature of functions of Federal Circuit Court Judge.......264
105.47 Annual report ................................................................265
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105.48 Certain functions and powers not affected ....................265
105.49 Queensland public interest monitor functions and
powers not affected .......................................................266
105.50 Law relating to legal professional privilege not
affected..........................................................................266
105.51 Legal proceedings in relation to preventative
detention orders .............................................................266
105.52 Review by State and Territory courts ............................268
105.53 Sunset provision ............................................................269
Division 105A—Continuing detention orders 271
Subdivision A—Object and definitions 271
105A.1 Object ............................................................................271
105A.2 Definitions.....................................................................271
Subdivision B—Continuing detention orders 272
105A.3 Who a continuing detention order may apply to
and effect of an order.....................................................272
105A.4 Treatment of a terrorist offender in a prison under
a continuing detention order ..........................................273
Subdivision C—Making a continuing detention order 274
105A.5 Applying for a continuing detention order ....................274
105A.6 Appointment of and assessment by relevant expert .......276
105A.7 Making a continuing detention order.............................278
105A.8 Matters a Court must have regard to in making a
continuing detention order.............................................279
105A.9 Interim detention orders ................................................280
Subdivision D—Review of continuing detention order 281
105A.10 Periodic review of continuing detention order...............281
105A.11 Review of continuing detention order on
application .....................................................................282
105A.12 Process for reviewing a continuing detention order.......283
Subdivision E—Provisions relating to continuing detention order
proceedings 285
105A.13 Civil evidence and procedure rules in relation to
continuing detention order proceedings.........................285
105A.14 Adducing evidence and making submissions ................285
105A.15 Giving terrorist offenders documents ............................285
105A.15A When a terrorist offender is unable to engage a
legal representative........................................................286
105A.16 Reasons for decisions ....................................................286
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105A.17 Right of appeal ..............................................................287
105A.18 Consequences of release of terrorist offender................288
Subdivision F—Miscellaneous 289
105A.19 Sharing information.......................................................289
105A.20 Delegation by the Attorney-General..............................290
105A.21 Arrangement with States and Territories .......................290
105A.22 Annual report ................................................................291
105A.23 Warning about continuing detention orders when
sentencing for certain offences ......................................291
105A.24 Effect of continuing detention orders on bail or
parole laws ....................................................................292
105A.25 Sunset provision ............................................................292
Division 106—Transitional provisions 293
106.1 Saving—regulations originally made for the
purposes of paragraph (c) of the definition of
terrorist organisation ....................................................293
106.2 Saving—regulations made for the purposes of
paragraph (a) of the definition of terrorist
organisation ..................................................................293
106.3 Application provision ....................................................294
106.4 Saving—Federal Magistrates ........................................294
106.5 Application provisions for certain amendments in
the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Act 2014..........................................294
106.6 Application provisions for certain amendments in
the Counter-Terrorism Legislation Amendment Act
(No. 1) 2014 ..................................................................296
106.7 Application provision for certain amendments in
the Counter-Terrorism Legislation Amendment Act
(No. 1) 2016 ..................................................................297
(a) the order is requested (however described) after
that commencement; and 297
106.8 Application provision for amendments in the
Criminal Code Amendment (High Risk Terrorist
Offenders) Act 2016.......................................................298
Part 5.4—Harming Australians 300
Division 115—Harming Australians 300
115.1 Murder of an Australian citizen or a resident of
Australia ........................................................................300
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115.2 Manslaughter of an Australian citizen or a resident
of Australia....................................................................301
115.3 Intentionally causing serious harm to an Australian
citizen or a resident of Australia....................................302
115.4 Recklessly causing serious harm to an Australian
citizen or a resident of Australia....................................302
115.5 Saving of other laws ......................................................303
115.6 Bringing proceedings under this Division .....................303
115.7 Ministerial certificates relating to proceedings..............303
115.8 Geographical jurisdiction ..............................................303
115.9 Meaning of causes death or harm..................................304
Part 5.5—Foreign incursions and recruitment 305
Division 117—Preliminary 305
117.1 Definitions.....................................................................305
117.2 Extended geographical jurisdiction—category D..........307
Division 119—Foreign incursions and recruitment 308
119.1 Incursions into foreign countries with the intention
of engaging in hostile activities .....................................308
119.2 Entering, or remaining in, declared areas ......................309
119.3 Declaration of areas for the purposes of
section 119.2 .................................................................311
119.4 Preparations for incursions into foreign countries
for purpose of engaging in hostile activities ..................313
119.5 Allowing use of buildings, vessels and aircraft to
commit offences ............................................................316
119.6 Recruiting persons to join organisations engaged
in hostile activities against foreign governments...........318
119.7 Recruiting persons to serve in or with an armed
force in a foreign country ..............................................319
119.8 Declaration in relation to specified armed forces ..........321
119.9 Exception—conduct for defence or international
relations of Australia .....................................................321
119.10 Mode of trial..................................................................322
119.11 Consent of Attorney-General required for
prosecutions...................................................................322
119.12 Declarations for the purposes of proceedings................323
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Chapter 7—The proper administration of Government 324
Part 7.1—Preliminary 324
Division 130—Preliminary 324
130.1 Definitions.....................................................................324
130.2 When property belongs to a person ...............................325
130.3 Dishonesty.....................................................................326
130.4 Determination of dishonesty to be a matter for the
trier of fact.....................................................................326
Part 7.2—Theft and other property offences 327
Division 131—Theft 327
131.1 Theft ..............................................................................327
131.2 Special rules about the meaning of dishonesty ..............327
131.3 Appropriation of property..............................................328
131.4 Theft of land or things forming part of land ..................328
131.5 Trust property................................................................328
131.6 Obligation to deal with property in a particular
way ................................................................................329
131.7 Property obtained because of fundamental mistake.......329
131.8 Property of a corporation sole .......................................330
131.9 Property belonging to 2 or more persons.......................330
131.10 Intention of permanently depriving a person of
property .........................................................................330
131.11 General deficiency.........................................................331
Division 132—Other property offences 332
132.1 Receiving.......................................................................332
132.2 Robbery.........................................................................335
132.3 Aggravated robbery.......................................................336
132.4 Burglary ........................................................................337
132.5 Aggravated burglary......................................................339
132.6 Making off without payment .........................................340
132.7 Going equipped for theft or a property offence .............341
132.8 Dishonest taking or retention of property ......................342
132.9 Geographical jurisdiction ..............................................343
Part 7.3—Fraudulent conduct 344
Division 133—Preliminary 344
133.1 Definitions.....................................................................344
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Division 134—Obtaining property or a financial advantage by
deception 345
134.1 Obtaining property by deception ...................................345
134.2 Obtaining a financial advantage by deception ...............348
134.3 Geographical jurisdiction ..............................................348
Division 135—Other offences involving fraudulent conduct 349
135.1 General dishonesty ........................................................349
135.2 Obtaining financial advantage .......................................350
135.4 Conspiracy to defraud ...................................................351
135.5 Geographical jurisdiction ..............................................354
Part 7.4—False or misleading statements 355
Division 136—False or misleading statements in applications 355
136.1 False or misleading statements in applications..............355
Division 137—False or misleading information or documents 358
137.1 False or misleading information ....................................358
137.2 False or misleading documents......................................359
137.3 Geographical jurisdiction ..............................................360
Part 7.5—Unwarranted demands 361
Division 138—Preliminary 361
138.1 Unwarranted demand with menaces ..............................361
138.2 Menaces ........................................................................361
Division 139—Unwarranted demands 363
139.1 Unwarranted demands of a Commonwealth public
official ...........................................................................363
139.2 Unwarranted demands made by a Commonwealth
public official ................................................................363
139.3 Geographical jurisdiction ..............................................364
Part 7.6—Bribery and related offences 365
Division 140—Preliminary 365
140.1 Definition ......................................................................365
140.2 Obtaining.......................................................................365
Division 141—Bribery 366
141.1 Bribery of a Commonwealth public official ..................366
Division 142—Offences relating to bribery 369
142.1 Corrupting benefits given to, or received by, a
Commonwealth public official ......................................369
142.2 Abuse of public office ...................................................370
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142.3 Geographical jurisdiction ..............................................371
Part 7.7—Forgery and related offences 372
Division 143—Preliminary 372
143.1 Definitions.....................................................................372
143.2 False documents ............................................................373
143.3 False Commonwealth documents ..................................374
143.4 Inducing acceptance of false documents .......................375
Division 144—Forgery 376
144.1 Forgery ..........................................................................376
Division 145—Offences relating to forgery 378
145.1 Using forged document .................................................378
145.2 Possession of forged document .....................................379
145.3 Possession, making or adaptation of devices etc.
for making forgeries ......................................................381
145.4 Falsification of documents etc. ......................................383
145.5 Giving information derived from false or
misleading documents ...................................................384
145.6 Geographical jurisdiction ..............................................385
Part 7.8—Causing harm to, and impersonation and obstruction
of, Commonwealth public officials 386
Division 146—Preliminary 386
146.1 Definitions.....................................................................386
146.2 Causing harm ................................................................387
Division 147—Causing harm to Commonwealth public officials 388
147.1 Causing harm to a Commonwealth public official
etc. .................................................................................388
147.2 Threatening to cause harm to a Commonwealth
public official etc...........................................................390
147.3 Geographical jurisdiction ..............................................392
Division 148—Impersonation of Commonwealth public officials 393
148.1 Impersonation of an official by a non-official ...............393
148.2 Impersonation of an official by another official ............394
148.3 Geographical jurisdiction ..............................................395
Division 149—Obstruction of Commonwealth public officials 396
149.1 Obstruction of Commonwealth public officials.............396
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Part 7.20—Miscellaneous 398
Division 261—Miscellaneous 398
261.1 Saving of other laws ......................................................398
261.2 Contempt of court..........................................................398
261.3 Ancillary offences .........................................................398
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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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Section 5
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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
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.
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The Criminal Code Schedule
Codification Chapter 1
Division 1
Section 1.1
Criminal Code Act 1995 3
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Schedule—The Criminal Code Section 3
Chapter 1—Codification
Division 1
1.1 Codification
The only offences against laws of the Commonwealth are those
offences created by, or under the authority of, this Code or any
other Act.
Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means
an Act passed by the Parliament of the Commonwealth.
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Schedule The Criminal Code
Chapter 2 General principles of criminal responsibility
Part 2.1 Purpose and application
Division 2
Section 2.1
4 Criminal Code Act 1995
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Chapter 2—General principles of criminal
responsibility
Part 2.1—Purpose and application
Division 2
2.1 Purpose
The purpose of this Chapter is to codify the general principles
of criminal responsibility under laws of the Commonwealth. It
contains all the general principles of criminal responsibility that
apply to any offence, irrespective of how the offence is created.
2.2 Application
(1) This Chapter applies to all offences against this Code.
(2) Subject to section 2.3, this Chapter applies on and after
15 December 2001 to all other offences.
(3) Section 11.6 applies to all offences.
2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For
the purpose of interpreting those provisions in connection with an
offence, the other provisions of this Chapter may be considered,
whether or not those other provisions apply to the offence
concerned.
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The Criminal Code Schedule
General principles of criminal responsibility Chapter 2
The elements of an offence Part 2.2
General Division 3
Section 3.1
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Part 2.2—The elements of an offence
Division 3—General
3.1 Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is
no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault
elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence
the following must be proved:
(a) the existence of such physical elements as are, under the law
creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault
element is required, one of the fault elements for the physical
element.
Note 1: See Part 2.6 on proof of criminal responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
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Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 4 Physical elements
Section 4.1
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Division 4—Physical elements
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct,
occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of
affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2 Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person
whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving
the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted
is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of
affairs, the state of affairs is only voluntary if it is one over which
the person is capable of exercising control.
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General principles of criminal responsibility Chapter 2
The elements of an offence Part 2.2
Physical elements Division 4
Section 4.3
Criminal Code Act 1995 7
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(6) Evidence of self-induced intoxication cannot be considered in
determining whether conduct is voluntary.
(7) Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency,
accident, reasonable mistake, duress or force.
4.3 Omissions
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the
offence is committed by an omission to perform an act that
there is a duty to perform by a law of the Commonwealth, a
State or a Territory, or at common law.
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Schedule The Criminal Code
Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 5 Fault elements
Section 5.1
8 Criminal Code Act 1995
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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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General principles of criminal responsibility Chapter 2
The elements of an offence Part 2.2
Fault elements Division 5
Section 5.5
Criminal Code Act 1995 9
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(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will satisfy
that fault element.
5.5 Negligence
A person is negligent with respect to a physical element of an
offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a
reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for
a physical element that consists only of conduct, intention is the
fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for
a physical element that consists of a circumstance or a result,
recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving
intention, knowledge or recklessness.
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Chapter 2 General principles of criminal responsibility
Part 2.2 The elements of an offence
Division 6 Cases where fault elements are not required
Section 6.1
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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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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General principles of criminal responsibility Chapter 2
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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Part 2.3 Circumstances in which there is no criminal responsibility
Division 9 Circumstances involving mistake or ignorance
Section 9.5
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(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative
character made directly or indirectly under an Act, or in force
directly or indirectly under an Act.
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has a
physical element relating to property if:
(a) at the time of the conduct constituting the offence, the
person is under a mistaken belief about a proprietary or
possessory right; and
(b) the existence of that right would negate a fault element
for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising
necessarily out of the exercise of the proprietary or possessory
right that he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence
relating to the use of force against a person.
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Circumstances involving external factors Division 10
Section 10.1
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Division 10—Circumstances involving external factors
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a
physical element to which absolute liability or strict liability
applies if:
(a) the physical element is brought about by another person
over whom the person has no control or by a non-human
act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard
against the bringing about of that physical element.
10.2 Duress
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence under
duress.
(2) A person carries out conduct under duress if and only if he or she
reasonably believes that:
(a) a threat has been made that will be carried out unless an
offence is committed; and
(b) there is no reasonable way that the threat can be rendered
ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of
a person with whom the person under duress is voluntarily
associating for the purpose of carrying out conduct of the kind
actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in response
to circumstances of sudden or extraordinary emergency.
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Division 10 Circumstances involving external factors
Section 10.4
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(2) This section applies if and only if the person carrying out the
conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist;
and
(b) committing the offence is the only reasonable way to deal
with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self-defence
(1) A person is not criminally responsible for an offence if he or
she carries out the conduct constituting the offence in
self-defence.
(2) A person carries out conduct in self-defence if and only if he or she
believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself
or herself or another person; or
(c) to protect property from unlawful appropriation, destruction,
damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is
committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he
or she perceives them.
(3) This section does not apply if the person uses force that involves
the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying
it out is not criminally responsible for it.
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Circumstances involving external factors Division 10
Section 10.5
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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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Division 11
Section 11.1
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Part 2.4—Extensions of criminal responsibility
Division 11
11.1 Attempt
(1) A person who attempts to commit an offence commits the
offence of attempting to commit that offence and is punishable
as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than
merely preparatory to the commission of the offence. The question
whether conduct is more than merely preparatory to the
commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and
knowledge are fault elements in relation to each physical element
of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or
knowledge would need to be established in respect of each physical
element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence
cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of attempting to
commit that offence.
(6A) Any special liability provisions that apply to an offence apply also
to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit an offence against
section 11.2 (complicity and common purpose), section 11.2A
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Section 11.2
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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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Section 11.2A
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(6) Any special liability provisions that apply to an offence apply also
for the purposes of determining whether a person is guilty of that
offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person
either:
(a) is guilty of a particular offence otherwise than because of the
operation of subsection (1); or
(b) is guilty of that offence because of the operation of
subsection (1);
but is not able to determine which, the trier of fact may nonetheless
find the person guilty of that offence.
11.2A Joint commission
Joint commission
(1) If:
(a) a person and at least one other party enter into an agreement
to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the
agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the
agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to
in whichever of subsection (2) or (3) applies and is punishable
accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the
agreement makes up the physical elements consisting of
conduct of an offence (the joint offence) of the same type as
the offence agreed to; and
(b) to the extent that a physical element of the joint offence
consists of a result of conduct—that result arises from the
conduct engaged in; and
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Section 11.2A
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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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Section 11.3
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Person may be found guilty even if another party not prosecuted
etc.
(7) A person may be found guilty of an offence because of the
operation of this section even if:
(a) another party to the agreement has not been prosecuted or has
not been found guilty; or
(b) the person was not present when any of the conduct
constituting the physical elements of the joint offence was
engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply
also for the purposes of determining whether a person is guilty of
that offence because of the operation of this section.
11.3 Commission by proxy
A person who:
(a) has, in relation to each physical element of an offence, a
fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not
together with conduct of the procurer) would have
constituted an offence on the part of the procurer if the
procurer had engaged in it;
is taken to have committed that offence and is punishable
accordingly.
11.4 Incitement
(1) A person who urges the commission of an offence commits the
offence of incitement.
(2) For the person to be guilty, the person must intend that the offence
incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
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(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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Section 11.5
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11.5 Conspiracy
(1) A person who conspires with another person to commit an
offence punishable by imprisonment for more than 12 months,
or by a fine of 200 penalty units or more, commits the offence
of conspiracy to commit that offence and is punishable as if the
offence to which the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or
more other persons; and
(b) the person and at least one other party to the agreement must
have intended that an offence would be committed pursuant
to the agreement; and
(c) the person or at least one other party to the agreement must
have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence
even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the
following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence
exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement
have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an
offence if:
(a) all other parties to the agreement have been acquitted of the
conspiracy and a finding of guilt would be inconsistent with
their acquittal; or
(b) he or she is a person for whose benefit or protection the
offence exists.
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Section 11.6
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(5) A person cannot be found guilty of conspiracy to commit an
offence if, before the commission of an overt act pursuant to the
agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the
offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the
interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that
apply to an offence apply also to the offence of conspiracy to
commit that offence.
(7A) Any special liability provisions that apply to an offence apply also
to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced
without the consent of the Director of Public Prosecutions.
However, a person may be arrested for, charged with, or remanded
in custody or on bail in connection with, an offence of conspiracy
before the necessary consent has been given.
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a
law of the Commonwealth (including this Code) includes a
reference to an offence against section 11.1 (attempt), 11.4
(incitement) or 11.5 (conspiracy) of this Code that relates to such
an offence.
(2) A reference in a law of the Commonwealth (including this Code)
to a particular offence includes a reference to an offence against
section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of
this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth
is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth
to:
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(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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Section 12.1
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Part 2.5—Corporate criminal responsibility
Division 12
12.1 General principles
(1) This Code applies to bodies corporate in the same way as it
applies to individuals. It so applies with such modifications as
are set out in this Part, and with such other modifications as
are made necessary by the fact that criminal liability is being
imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including
one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for
offences that only specify imprisonment as a penalty.
12.2 Physical elements
If a physical element of an offence is committed by an employee,
agent or officer of a body corporate acting within the actual or
apparent scope of his or her employment, or within his or her
actual or apparent authority, the physical element must also be
attributed to the body corporate.
12.3 Fault elements other than negligence
(1) If intention, knowledge or recklessness is a fault element in
relation to a physical element of an offence, that fault element must
be attributed to a body corporate that expressly, tacitly or impliedly
authorised or permitted the commission of the offence.
(2) The means by which such an authorisation or permission may be
established include:
(a) proving that the body corporate’s board of directors
intentionally, knowingly or recklessly carried out the relevant
conduct, or expressly, tacitly or impliedly authorised or
permitted the commission of the offence; or
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(b) proving that a high managerial agent of the body corporate
intentionally, knowingly or recklessly engaged in the relevant
conduct, or expressly, tacitly or impliedly authorised or
permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body
corporate that directed, encouraged, tolerated or led to
non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain
a corporate culture that required compliance with the relevant
provision.
(3) Paragraph (2)(b) does not apply if the body corporate proves that it
exercised due diligence to prevent the conduct, or the authorisation
or permission.
(4) Factors relevant to the application of paragraph (2)(c) or (d)
include:
(a) whether authority to commit an offence of the same or a
similar character had been given by a high managerial agent
of the body corporate; and
(b) whether the employee, agent or officer of the body corporate
who committed the offence believed on reasonable grounds,
or entertained a reasonable expectation, that a high
managerial agent of the body corporate would have
authorised or permitted the commission of the offence.
(5) If recklessness is not a fault element in relation to a physical
element of an offence, subsection (2) does not enable the fault
element to be proved by proving that the board of directors, or a
high managerial agent, of the body corporate recklessly engaged in
the conduct or recklessly authorised or permitted the commission
of the offence.
(6) In this section:
board of directors means the body (by whatever name called)
exercising the executive authority of the body corporate.
corporate culture means an attitude, policy, rule, course of conduct
or practice existing within the body corporate generally or in the
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part of the body corporate in which the relevant activities takes
place.
high managerial agent means an employee, agent or officer of the
body corporate with duties of such responsibility that his or her
conduct may fairly be assumed to represent the body corporate’s
policy.
12.4 Negligence
(1) The test of negligence for a body corporate is that set out in
section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical element
of an offence; and
(b) no individual employee, agent or officer of the body
corporate has that fault element;
that fault element may exist on the part of the body corporate if the
body corporate’s conduct is negligent when viewed as a whole
(that is, by aggregating the conduct of any number of its
employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited
conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of
the conduct of one or more of its employees, agents or
officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
12.5 Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2 (mistake of fact
(strict liability)) in respect of conduct that would, apart from this
section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who
carried out the conduct was under a mistaken but reasonable
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belief about facts that, had they existed, would have meant
that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to
prevent the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact
that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of
the conduct of one or more of its employees, agents or
officers; or
(b) failure to provide adequate systems for conveying relevant
information to relevant persons in the body corporate.
12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct
or event) in respect of a physical element of an offence brought
about by another person if the other person is an employee, agent
or officer of the body corporate.
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Part 2.6—Proof of criminal responsibility
Division 13
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element
of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person’s guilt.
(2) The prosecution also bears a legal burden of disproving any
matter in relation to which the defendant has discharged an
evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means the burden of proving
the existence of the matter.
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged
beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence
specifies a different standard of proof.
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on
a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying
on a provision of Part 2.3 (other than section 7.3) bears an
evidential burden in relation to that matter.
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(3) A defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter. The
exception, exemption, excuse, qualification or justification need
not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a
matter if evidence sufficient to discharge the burden is adduced by
the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is
one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
13.4 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a
legal burden if and only if the law expressly:
(a) specifies that the burden of proof in relation to the matter
in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the
contrary is proved.
13.5 Standard of proof—defence
A legal burden of proof on the defendant must be discharged
on the balance of probabilities.
13.6 Use of averments
A law that allows the prosecution to make an averment is taken not
to allow the prosecution:
(a) to aver any fault element of an offence; or
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(b) to make an averment in prosecuting for an offence that is
directly punishable by imprisonment.
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Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1 Standard geographical jurisdiction
(1) This section may apply to a particular offence in either of the
following ways:
(a) unless the contrary intention appears, this section applies to
the following offences:
(i) a primary offence, where the provision creating the
offence commences at or after the commencement of
this section;
(ii) an ancillary offence, to the extent to which it relates to a
primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth provides that this section
applies to a particular offence—this section applies to that
offence.
Note: In the case of paragraph (b), the expression offence is given an
extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3
and subsection 11.6(1).
(2) If this section applies to a particular offence, a person does not
commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
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(ii) the conduct constituting the alleged offence occurs
wholly outside Australia;
(iii) the conduct constituting the primary offence to which
the ancillary offence relates, or a result of that conduct,
occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an
Australian aircraft or an Australian ship.
Defence—primary offence
(3) If this section applies to a particular offence, a person does not
commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(b) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the first-mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (3). See subsection 13.3(3).
(4) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (3) of this section is taken to be an exception
provided by the law creating the offence.
Defence—ancillary offence
(5) If this section applies to a particular offence, a person does not
commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
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(c) the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs,
or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an
Australian ship; and
(d) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates,
or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is
intended by the person to occur;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (5). See subsection 13.3(3).
(6) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (5) of this section is taken to be an exception
provided by the law creating the offence.
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Division 15—Extended geographical jurisdiction
15.1 Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs
wholly outside Australia;
(iii) the conduct constituting the primary offence to which
the ancillary offence relates, or a result of that conduct,
occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an
Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
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Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the first-mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (2) of this section is taken to be an exception
provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(c) the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs,
or is intended by the person to occur, wholly in a foreign
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country, but not on board an Australian aircraft or an
Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates,
or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is
intended by the person to occur;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.2 Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
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(c) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a
resident of Australia; or
(iii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs
wholly outside Australia;
(iii) the conduct constituting the primary offence to which
the ancillary offence relates, or a result of that conduct,
occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an
Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
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(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the first-mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (2) of this section is taken to be an exception
provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to
a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(c) the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs,
or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an
Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates,
or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is
intended by the person to occur;
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a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.3 Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides that this section applies to
a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence
occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to
a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
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a law of that foreign country, or that part of that foreign
country, that creates an offence that corresponds to the
first-mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (2) of this section is taken to be an exception
provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to
a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(c) the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs,
or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an
Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates,
or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is
intended by the person to occur;
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a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
15.4 Extended geographical jurisdiction—category D
If a law of the Commonwealth provides that this section applies to
a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence
occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged
offence occurs in Australia.
Note: The expression offence is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
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Division 16—Miscellaneous
16.1 Attorney-General’s consent required for prosecution if alleged
conduct occurs wholly in a foreign country in certain
circumstances
(1) Proceedings for an offence must not be commenced without the
Attorney-General’s written consent if:
(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence;
and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country; and
(c) at the time of the alleged offence, the person alleged to have
committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
(2) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with an offence before
the necessary consent has been given.
16.2 When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a person sends a thing, or causes a
thing to be sent:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a person sends, or causes to be sent,
an electronic communication:
(a) from a point outside Australia to a point in Australia; or
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(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point includes a mobile or
potentially mobile point, whether on land, underground, in the
atmosphere, underwater, at sea or anywhere else.
16.3 Meaning of Australia
(1) For the purposes of the application of this Part to a particular
primary offence, Australia has the same meaning it would have if
it were used in a geographical sense in the provision creating the
primary offence.
(2) For the purposes of the application of this Part to a particular
ancillary offence, Australia has the same meaning it would have if
it were used in a geographical sense in the provision creating the
primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a provision creating an offence
extends to an external Territory, it is to be assumed that if the
expression Australia were used in a geographical sense in that
provision, that expression would include that external Territory.
(4) This section does not affect the meaning of the expressions
Australian aircraft, Australian citizen or Australian ship.
16.4 Result of conduct
A reference in this Part to a result of conduct constituting an
offence is a reference to a result that is a physical element of the
offence (within the meaning of subsection 4.1(1)).
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Chapter 4—The integrity and security of the
international community and foreign
governments
Division 70—Bribery of foreign public officials
70.1 Definitions
In this Division:
benefit includes any advantage and is not limited to property.
business advantage means an advantage in the conduct of
business.
control, in relation to a company, body or association, includes
control as a result of, or by means of, trusts, agreements,
arrangements, understandings and practices, whether or not having
legal or equitable force and whether or not based on legal or
equitable rights.
duty, in relation to a foreign public official, means any authority,
duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government body means:
(a) the government of a foreign country or of part of a foreign
country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country;
or
(d) a foreign local government body or foreign regional
government body; or
(e) a foreign public enterprise.
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foreign public enterprise means a company or any other body or
association where:
(a) in the case of a company—one of the following applies:
(i) the government of a foreign country or of part of a
foreign country holds more than 50% of the issued share
capital of the company;
(ii) the government of a foreign country or of part of a
foreign country holds more than 50% of the voting
power in the company;
(iii) the government of a foreign country or of part of a
foreign country is in a position to appoint more than
50% of the company’s board of directors;
(iv) the directors (however described) of the company are
accustomed or under an obligation (whether formal or
informal) to act in accordance with the directions,
instructions or wishes of the government of a foreign
country or of part of a foreign country;
(v) the government of a foreign country or of part of a
foreign country is in a position to exercise control over
the company; and
(b) in the case of any other body or association—either of the
following applies:
(i) the members of the executive committee (however
described) of the body or association are accustomed or
under an obligation (whether formal or informal) to act
in accordance with the directions, instructions or wishes
of the government of a foreign country or of part of a
foreign country;
(ii) the government of a foreign country or of part of a
foreign country is in a position to exercise control over
the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under
a law of a foreign country or of part of a foreign
country; or
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(ii) enjoys special benefits or privileges under a law of a
foreign country or of part of a foreign country;
because of the relationship of the company, body or
association with the government of the foreign country or of
the part of the foreign country, as the case may be.
foreign public official means:
(a) an employee or official of a foreign government body; or
(b) an individual who performs work for a foreign government
body under a contract; or
(c) an individual who holds or performs the duties of an
appointment, office or position under a law of a foreign
country or of part of a foreign country; or
(d) an individual who holds or performs the duties of an
appointment, office or position created by custom or
convention of a foreign country or of part of a foreign
country; or
(e) an individual who is otherwise in the service of a foreign
government body (including service as a member of a
military force or police force); or
(f) a member of the executive, judiciary or magistracy of a
foreign country or of part of a foreign country; or
(g) an employee of a public international organisation; or
(h) an individual who performs work for a public international
organisation under a contract; or
(i) an individual who holds or performs the duties of an office or
position in a public international organisation; or
(j) an individual who is otherwise in the service of a public
international organisation; or
(k) a member or officer of the legislature of a foreign country or
of part of a foreign country; or
(l) an individual who:
(i) is an authorised intermediary of a foreign public official
covered by any of the above paragraphs; or
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(ii) holds himself or herself out to be the authorised
intermediary of a foreign public official covered by any
of the above paragraphs.
public international organisation means:
(a) an organisation:
(i) of which 2 or more countries, or the governments of 2
or more countries, are members; or
(ii) that is constituted by persons representing 2 or more
countries, or representing the governments of 2 or more
countries; or
(b) an organisation established by, or a group of organisations
constituted by:
(i) organisations of which 2 or more countries, or the
governments of 2 or more countries, are members; or
(ii) organisations that are constituted by the representatives
of 2 or more countries, or the governments of 2 or more
countries; or
(c) an organisation that is:
(i) an organ of, or office within, an organisation described
in paragraph (a) or (b); or
(ii) a commission, council or other body established by an
organisation so described or such an organ; or
(iii) a committee, or subcommittee of a committee, of an
organisation described in paragraph (a) or (b), or of such
an organ, council or body.
share includes stock.
70.2 Bribing a foreign public official
(1) A person commits an offence if:
(a) the person:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to
another person; or
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(iv) causes an offer of the provision of a benefit, or a
promise of the provision of a benefit, to be made to
another person; and
(b) the benefit is not legitimately due to the other person; and
(c) the first-mentioned person does so with the intention of
influencing a foreign public official (who may be the other
person) in the exercise of the official’s duties as a foreign
public official in order to:
(i) obtain or retain business; or
(ii) obtain or retain a business advantage that is not
legitimately due to the recipient, or intended recipient,
of the business advantage (who may be the
first-mentioned person).
Note: For defences see sections 70.3 and 70.4.
(1A) For the purposes of paragraph (1)(c):
(a) the first-mentioned person does not need to intend to
influence a particular foreign public official; and
(b) business, or a business advantage, does not need to be
actually obtained or retained.
Benefit that is not legitimately due
(2) For the purposes of this section, in working out if a benefit is not
legitimately due to a person in a particular situation, disregard the
following:
(a) the fact that the benefit may be, or be perceived to be,
customary, necessary or required in the situation;
(b) the value of the benefit;
(c) any official tolerance of the benefit.
Business advantage that is not legitimately due
(3) For the purposes of this section, in working out if a business
advantage is not legitimately due to a person in a particular
situation, disregard the following:
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(a) the fact that the business advantage may be customary, or
perceived to be customary, in the situation;
(b) the value of the business advantage;
(c) any official tolerance of the business advantage.
Penalty for individual
(4) An offence against subsection (1) committed by an individual is
punishable on conviction by imprisonment for not more than 10
years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine not more than the greatest of
the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the
body corporate, and any body corporate related to the body
corporate, have obtained directly or indirectly and that is
reasonably attributable to the conduct constituting the
offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.
(6) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
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(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning in that subsection as they have in that Act.
(8) The question whether 2 bodies corporate are related to each other
is to be determined for the purposes of this section in the same way
as for the purposes of the Corporations Act 2001.
70.3 Defence—conduct lawful in foreign public official’s country
(1) A person does not commit an offence against section 70.2 in the
cases set out in the following table:
Defence of lawful conduct
Item In a case where the
person’s conduct occurred
in relation to this kind of
foreign public official...
and if it were
assumed that the
person’s conduct had
occurred wholly...
this written law
requires or
permits the
provision of the
benefit ...
1 an employee or official of a
foreign government body
in the place where the
central administration
of the body is located
a written law in
force in that place
2 an individual who performs
work for a foreign
government body under a
contract
in the place where the
central administration
of the body is located
a written law in
force in that place
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Defence of lawful conduct
Item In a case where the
person’s conduct occurred
in relation to this kind of
foreign public official...
and if it were
assumed that the
person’s conduct had
occurred wholly...
this written law
requires or
permits the
provision of the
benefit ...
3 an individual who holds or
performs the duties of an
appointment, office or
position under a law of a
foreign country or of part of
a foreign country
in the foreign country
or in the part of the
foreign country, as the
case may be
a written law in
force in the
foreign country or
in the part of the
foreign country,
as the case may
be
4 an individual who holds or
performs the duties of an
appointment, office or
position created by custom
or convention of a foreign
country or of part of a
foreign country
in the foreign country
or in the part of the
foreign country, as the
case may be
a written law in
force in the
foreign country or
in the part of the
foreign country,
as the case may
be
5 an individual who is
otherwise in the service of a
foreign government body
(including service as a
member of a military force
or police force)
in the place where the
central administration
of the body is located
a written law in
force in that place
6 a member of the executive,
judiciary or magistracy of a
foreign country or of part of
a foreign country
in the foreign country
or in the part of the
foreign country, as the
case may be
a written law in
force in the
foreign country or
in the part of the
foreign country,
as the case may
be
7 an employee of a public
international organisation
in the place where the
headquarters of the
organisation is located
a written law in
force in that place
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Defence of lawful conduct
Item In a case where the
person’s conduct occurred
in relation to this kind of
foreign public official...
and if it were
assumed that the
person’s conduct had
occurred wholly...
this written law
requires or
permits the
provision of the
benefit ...
8 an individual who performs
work for a public
international organisation
under a contract
in the place where the
headquarters of the
organisation is located
a written law in
force in that place
9 an individual who holds or
performs the duties of a
public office or position in a
public international
organisation
in the place where the
headquarters of the
organisation is located
a written law in
force in that place
10 an individual who is
otherwise in the service of a
public international
organisation
in the place where the
headquarters of the
organisation is located
a written law in
force in that place
11 a member or officer of the
legislature of a foreign
country or of part of a
foreign country
in the foreign country
or in the part of the
foreign country, as the
case may be
a written law in
force in the
foreign country or
in the part of the
foreign country,
as the case may
be
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1). See subsection 13.3(3).
(2) A person does not commit an offence against section 70.2 if:
(a) the person’s conduct occurred in relation to a foreign public
official covered by paragraph (l) of the definition of foreign
public official in section 70.1 (which deals with
intermediaries of foreign public officials covered by other
paragraphs of that definition); and
(b) assuming that the first-mentioned person’s conduct had
occurred instead in relation to:
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(i) the other foreign public official of whom the
first-mentioned foreign public official was an authorised
intermediary; or
(ii) the other foreign public official in relation to whom the
first-mentioned foreign public official held himself or
herself out to be an authorised intermediary;
subsection (1) would have applied in relation to the
first-mentioned person.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in relation to a foreign public
official covered by 2 or more paragraphs of the definition of
foreign public official in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is
applicable to the conduct of the first-mentioned person;
subsection (1) applies to the conduct of the first-mentioned person.
70.4 Defence—facilitation payments
(1) A person does not commit an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person’s conduct was engaged in for the sole or dominant
purpose of expediting or securing the performance of a
routine government action of a minor nature; and
(c) as soon as practicable after the conduct occurred, the person
made a record of the conduct that complies with
subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the
actions of another person over whom the
first-mentioned person had no control, or because of a
non-human act or event over which the first-mentioned
person had no control, and the first-mentioned person
could not reasonably be expected to have guarded
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against the bringing about of that loss or that
destruction;
(iii) a prosecution for the offence is instituted more than 7
years after the conduct occurred.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine government action is an
action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs:
(i) granting a permit, licence or other official document
that qualifies a person to do business in a foreign
country or in a part of a foreign country;
(ii) processing government papers such as a visa or work
permit;
(iii) providing police protection or mail collection or
delivery;
(iv) scheduling inspections associated with contract
performance or related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from
deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular
person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular
person; or
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(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies
with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom
the conduct occurred; and
(d) if that foreign public official is not the other person
mentioned in paragraph 70.2(1)(a)—the identity of that other
person; and
(e) particulars of the routine government action that was sought
to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the
person’s identity.
70.5 Territorial and nationality requirements
(1) A person does not commit an offence against section 70.2 unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia and:
(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a
resident of Australia; or
(iii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2 is given an extended
meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).
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(2) Proceedings for an offence against section 70.2 must not be
commenced without the Attorney-General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly
outside Australia; and
(b) at the time of the alleged offence, the person alleged to have
committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with an offence against
section 70.2 before the necessary consent has been given.
70.6 Saving of other laws
This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
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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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Section 72.6
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72.6 Double jeopardy and foreign offences
If a person has been convicted or acquitted of an offence in respect
of conduct under the law of a foreign country, the person cannot be
convicted of an offence under this Subdivision in respect of that
conduct.
72.7 Bringing proceedings under this Subdivision
(1) Proceedings for an offence under this Subdivision must not be
commenced without the Attorney-General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody,
or released on bail, in connection with an offence under this
Subdivision before the necessary consent has been given.
(3) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must have regard to the
terms of the Convention, including paragraph 2 of Article 19.
(4) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must also have regard to:
(a) whether the conduct constituting the offence also gives rise
to an offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State
or Territory law has been or will be commenced.
72.8 Ministerial certificates relating to proceedings
(1) The Minister administering the Charter of the United Nations Act
1945 may issue a certificate stating any of the following matters:
(a) that the Convention entered into force for Australia on a
specified day;
(b) that the Convention remains in force for Australia or any
other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a
State Party under paragraph 1 or 2 of Article 6 of the
Convention.
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Section 72.9
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(2) The Minister administering the Australian Citizenship Act 2007
may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time;
or
(b) a person is or was a stateless person whose habitual residence
is or was in Australia at a particular time.
(3) In any proceedings, a certificate under this section is prima facie
evidence of the matters in the certificate.
72.9 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Subdivision, including a question of
interpretation of the Convention, is taken not to be a matter arising
directly under a treaty.
72.10 Definitions
In this Subdivision:
Convention means the Convention referred to in section 72.1.
explosive or other lethal device has the same meaning as in the
Convention.
government facility has the same meaning as State or government
facility has in the Convention.
infrastructure facility has the same meaning as in the Convention.
place of public use has the same meaning as in the Convention.
public transportation system has the same meaning as in the
Convention.
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Section 72.11
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Subdivision B—Plastic explosives
72.11 Purpose
The purpose of this Subdivision is to create offences relating to
plastic explosives and give effect to the Convention on the
Marking of Plastic Explosives.
Note: The Convention requires the introduction of detection agents into
plastic explosives so as to render the explosives detectable by vapour
detection means. This is known as the marking of the explosives.
72.12 Trafficking in unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19,
72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.13 Importing or exporting unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18,
72.19, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
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Section 72.14
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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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Section 72.17
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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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Section 72.19
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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
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Conditions and restrictions
(3) An authorisation under subsection (1) is subject to such conditions
and restrictions as are specified in the authorisation.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have
regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is
reasonable; and
(e) such other matters (if any) as the responsible Minister
considers relevant.
Sunset
(5) This section ceases to have effect at the end of 15 years after its
commencement.
72.22 Authorisation for overseas defence purposes—7 day limit
(1) A member of the Australian Defence Force is authorised to
possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the
operation outside Australia of the Australian Defence Force;
and
(b) the member believes on reasonable grounds that there is
insufficient time to obtain an authorisation under this
Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
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Section 72.23
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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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Section 72.26
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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 Minister
(1) The Minister may, by writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee, or an acting SES employee, in the
Department, where the employee occupies or acts in a
position with a classification of Senior Executive Band 3;
all or any of the 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 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
(b) an officer of the Australian Navy who holds the rank of
Vice-Admiral or a higher rank; or
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(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
94 Criminal Code Act 1995
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72.34 Detection agents and minimum manufacture concentrations
For the purposes of this Subdivision, the following table defines:
(a) detection agent; and
(b) the minimum manufacture concentration for each detection
agent.
Detection agents and minimum manufacture concentrations
Item Detection agent Minimum manufacture
concentration
1 Ethylene glycol dinitrate (EGDN)
(molecular formula: C2H4(NO3)2)
(molecular weight: 152)
0.2% by mass
2 2,3-Dimethyl-2,3-dinitrobutane (DMNB)
(molecular formula: C6H12(NO2)2)
(molecular weight: 176)
1% by mass
3 para-Mononitrotoluene (p-MNT)
(molecular formula: C7H7NO2)
(molecular weight: 137)
0.5% by mass
4 a substance prescribed for the purposes of
this table item
the concentration prescribed for
the purposes of this table item in
relation to the substance
72.35 Presumption as to concentration of detection agent
(1) This section applies in relation to a prosecution for an offence
against this Subdivision.
(2) If no detection agent can be detected in a sample of a plastic
explosive when tested using:
(a) a method generally accepted in the scientific community as a
reliable means of measuring the concentration of detection
agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
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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:
Convention on the Marking of Plastic Explosives means:
(a) the Convention on the Marking of Plastic Explosives for the
Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
(ii) the amendment binds Australia;
the Convention as so amended.
Note: In 2006, the text of the Convention was accessible through the
Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Department of Defence means the Department that deals with
matters relating to defence.
detection agent has the meaning given by section 72.34.
explosive device includes the following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export includes take from Australia.
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Section 72.36
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first marking requirement has the meaning given by
subsection 72.33(2).
high explosive means an explosive with a velocity of detonation
that is greater than the velocity of sound in the explosive (typically
greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import includes bring into Australia.
manufacture a substance means any process by which a substance
is produced, and includes the following:
(a) the process of transforming a substance into a different
substance;
(b) the reprocessing of a substance.
marking requirement has the meaning given by section 72.33.
minimum manufacture concentration has the meaning given by
section 72.34.
Minister for Defence means the Minister administering the
Defence Act 1903.
plastic explosive means an explosive product (including an
explosive product in flexible or elastic sheet form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form
have a vapour pressure less than 10¯ 4
Pa at a
temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room
temperature.
possess a substance includes the following:
(a) receive or obtain possession of the substance;
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(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 Minister; or
(b) the Minister for Defence.
second marking requirement has the meaning given by
subsection 72.33(3).
traffic in a substance means:
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of
transferring any of it or believing that another person intends
to transfer any of it; or
(e) transport or deliver the substance with the intention of
transferring any of it or believing that another person intends
to transfer any of it; or
(f) guard or conceal the substance with the intention of
transferring any of it or the intention of assisting another
person to transfer any of it; or
(g) possess the substance with the intention of transferring any of
it.
For the purposes of paragraph (d), preparing a substance for
transfer includes packaging the substance or separating the
substance into discrete units.
transfer means transfer ownership or possession.
unmarked plastic explosive means a plastic explosive that
breaches a marking requirement.
wrapper, in relation to a plastic explosive, means a wrapper the
inner surface of which is in contact with the plastic explosive.
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Section 72.37
98 Criminal Code Act 1995
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Subdivision C—Cluster munitions and explosive bomblets
72.37 Purpose
The purpose of this Subdivision is to create offences relating to
cluster munitions and explosive bomblets and give effect to the
Convention on Cluster Munitions.
72.38 Offences relating to cluster munitions
Doing acts with a cluster munition
(1) A person commits an offence if the person does any of the
following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2) A person (the first person) commits an offence if:
(a) the first person assists, encourages or induces another person
to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
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Section 72.39
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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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Section 72.42
102 Criminal Code Act 1995
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Note 2: The expression offence against section 72.38 is given an extended
meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and
subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the
Convention on Cluster Munitions.
72.42 Defence—acts by military personnel of countries not party to
Convention on Cluster Munitions
(1) Section 72.38 does not apply to the stockpiling, retention or
transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that
is not a party to the Convention on Cluster Munitions;
or
(ii) a person who is connected with such forces as described
in subsection (2) and is neither an Australian citizen nor
a resident of Australia; and
(b) is done in connection with the use by those forces of any of
the following in Australia in the course of military
cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft
being commanded or piloted by a member of those
forces in the course of his or her duties as such a
member;
(iii) a ship of any part of those forces or a ship being
operated or commanded by a member of those forces in
the course of his or her duties as such a member.
Note: A defendant bears an evidential burden in relation to the matter in this
section: see subsection 13.3(3).
(2) This subsection covers a person with any of the following
connections with the armed forces of a foreign country that is not a
party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those
forces;
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(b) the person is serving with an organisation accompanying any
of those forces;
(c) the person is attached to or accompanying those forces and is
subject to the law of that country governing any of the armed
forces of that country.
72.43 Forfeiture of cluster munition
(1) This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1);
or
(b) makes an order under section 19B of the Crimes Act 1914
relating to an offence against subsection 72.38(1).
Note: The expression offence against subsection 72.38(1) is given an
extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3
and subsection 11.6(2).
(2) The court may order forfeiture to the Commonwealth of any cluster
munition involved in the offence.
(3) A cluster munition ordered to be forfeited to the Commonwealth
becomes the Commonwealth’s property.
72.44 Application of this Subdivision to explosive bomblets
This Subdivision applies in relation to explosive bomblets in the
same way as it applies in relation to cluster munitions.
72.45 Definitions
In this Subdivision:
cluster munition has the meaning given by paragraph 2 of Article
2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions means the Convention on
Cluster Munitions done at Dublin on 30 May 2008.
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Section 72.45
104 Criminal Code Act 1995
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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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Section 73.3
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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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Section 73.3A
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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, urging violence and advocating
terrorism or genocide
Division 80—Treason, urging violence and advocating
terrorism or genocide
Subdivision A—Preliminary
80.1A Definition of organisation
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.
Subdivision B—Treason
80.1 Treason
(1) A person commits an offence if the person:
(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
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(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—materially assisting enemies etc.
Assisting enemies at war with the Commonwealth
(1) A person commits an offence if:
(a) the Commonwealth is at war with an enemy (whether or not
the existence of a state of war has been declared); and
(b) the enemy is specified, by Proclamation made for the purpose
of this paragraph, to be an enemy at war with the
Commonwealth; and
(c) the person engages in conduct; and
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(d) the person intends that the conduct will materially assist the
enemy to engage in war with the Commonwealth; and
(e) the conduct assists the enemy to engage in war with the
Commonwealth; and
(f) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) has voluntarily put himself or herself under the
protection of the Commonwealth; or
(iv) is a body corporate incorporated by or under a law of
the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Note: 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.
(2) Subsection 12(2) (retrospective application of legislative
instruments) of the Legislation Act 2003 does not apply to a
Proclamation made for the purpose of paragraph (1)(b).
(2A) Despite subsection 12(3) of the Legislation Act 2003, a
Proclamation made for the purpose of paragraph (1)(b) of this
section must not commence before the day on which the
Proclamation is made.
(3) The fault element for paragraph (1)(f) is intention.
Note: For intention, see subsection 5.2(2).
Assisting countries etc. engaged in armed hostilities against the
ADF
(4) A person commits an offence if:
(a) a country or organisation is engaged in armed hostilities
against the Australian Defence Force; and
(b) the person engages in conduct; and
(c) the person intends that the conduct will materially assist the
country or organisation to engage in armed hostilities against
the Australian Defence Force; and
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(d) the conduct assists the country or organisation to engage in
armed hostilities against the Australian Defence Force; and
(e) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) has voluntarily put himself or herself under the
protection of the Commonwealth; or
(iv) is a body corporate incorporated by or under a law of
the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Note: If a body corporate is convicted of an offence against subsection (4),
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
fine of up to 10,000 penalty units.
(5) The fault element for paragraph (4)(e) is intention.
Note: For intention, see subsection 5.2(2).
Humanitarian aid
(6) Subsections (1) and (4) do not apply to engagement 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 (6). See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for acts done in good faith.
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:
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(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of
a Territory; or
(iii) the lawful authority of the Government of the
Commonwealth; and
(b) the first person does so intending that force or violence will
occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) Recklessness applies to the element of the offence under
subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a
Territory; or
(c) the lawful authority of the Government of the
Commonwealth;
that the first person urges the other person to overthrow.
Urging interference in Parliamentary elections or constitutional
referenda by force or violence
(3) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to
interfere, by force or violence, with lawful processes for:
(i) an election of a member or members of a House of the
Parliament; or
(ii) a referendum; and
(b) the first person does so intending that force or violence will
occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(4) Recklessness applies to the element of the offence under
subsection (3) that it is lawful processes for an election of a
member or members of a House of the Parliament, or for a
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referendum, that the first person urges the other person to interfere
with.
Note: There is a defence in section 80.3 for acts done in good faith.
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.
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Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the
prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is
guilty of an offence (the alternative offence) against
subsection (2).
(5) The trier of fact may find the defendant not guilty of the prosecuted
offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that
finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
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:
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(a) the first person intentionally urges another person, or a
group, to use force or violence against a person (the targeted
person); and
(b) the first person does so intending that force or violence will
occur; and
(c) the first person does so because of his or her belief that the
targeted person is a member of a group (the targeted group);
and
(d) the targeted group is distinguished by race, religion,
nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note: For intention, see section 5.2.
(3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial
whether the targeted person actually is a member of the targeted
group.
(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.
Note: For recklessness, see section 5.4.
Alternative verdict
(5) Subsection (6) applies if, in a prosecution for an offence (the
prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is
guilty of an offence (the alternative offence) against
subsection (2).
(6) The trier of fact may find the defendant not guilty of the prosecuted
offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that
finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
80.2C Advocating terrorism
(1) A person commits an offence if:
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(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
(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:
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(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
(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
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common purpose), 11.2A (joint commission) or 11.3
(commission by proxy).
(4) A reference in this section to advocating genocide includes a
reference to:
(a) advocating genocide, even if genocide does not occur; and
(b) advocating the commission of a specific offence that is
genocide; and
(c) advocating the commission of more than one offence, each of
which is genocide.
Subdivision D—Common provisions
80.3 Defence for acts done in good faith
(1) Subdivisions B and C 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
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practice in the Commonwealth, a State, a Territory or another
country; or
(d) points out in good faith any matters that are producing, or
have a tendency to produce, feelings of ill-will or hostility
between different groups, in order to bring about the removal
of those matters; or
(e) does anything in good faith in connection with an industrial
dispute or an industrial matter; or
(f) publishes in good faith a report or commentary about a
matter of public interest.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1). See subsection 13.3(3).
(2) In considering a defence under subsection (1), the Court may have
regard to any relevant matter, including whether the acts were
done:
(a) for a purpose intended to be prejudicial to the safety or
defence of the Commonwealth; or
(b) with the intention of assisting an enemy:
(i) at war with the Commonwealth; and
(ii) specified by Proclamation made for the purpose of
paragraph 80.1AA(1)(b) to be an enemy at war with the
Commonwealth; or
(c) with the intention of assisting another country, or an
organisation, that is engaged in armed hostilities against the
Australian Defence Force; or
(d) with the intention of assisting a proclaimed enemy of a
proclaimed country (within the meaning of
subsection 24AA(4) of the Crimes Act 1914); or
(e) with the intention of assisting persons specified in paragraphs
24AA(2)(a) and (b) of the Crimes Act 1914; 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:
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(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.
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 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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Part 5.2 Offences relating to espionage and similar activities
Division 90 Preliminary
Section 90.1
126 Criminal Code Act 1995
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Part 5.2—Offences relating to espionage and similar
activities
Division 90—Preliminary
90.1 Definitions
(1) In this Part:
article includes any thing, substance or material.
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.
intelligence or security agency has the meaning given by
section 85ZL of the Crimes Act 1914.
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 or defence of a country includes the operations,
capabilities and technologies of, and methods and sources used by,
the country’s intelligence or security agencies.
sketch includes a representation of a place or thing.
the Commonwealth includes the Territories.
(2) In this Part, unless the contrary intention appears:
(a) expressions referring to obtaining, recording, using, having in
possession, communicating or retaining include obtaining,
recording, using, having in possession, communicating or
retaining in whole or in part, and whether the thing or
information itself, or only the substance, effect or description
of the thing or information, is obtained, recorded, used,
possessed, communicated or retained; and
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(b) a reference to a sketch, document or article or to information
is to be read as including a reference to a copy of, a part of or
a copy of a part of a sketch, document or article or
information.
(3) For the purposes of this Part, a place that is occupied by, or a thing
that is under the control of, the Commonwealth is taken to belong
to the Commonwealth.
(4) This Part applies to and in relation to a document or article
regardless of who made it and what information it contains.
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Part 5.2 Offences relating to espionage and similar activities
Division 91 Offences relating to espionage and similar activities
Section 91.1
128 Criminal Code Act 1995
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Division 91—Offences relating to espionage and similar
activities
91.1 Espionage and similar activities
(1) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security
or defence; or
(ii) information concerning the security or defence of
another country, being information that the person
acquired (whether directly or indirectly) from the
Commonwealth; and
(b) the person does so intending to prejudice the
Commonwealth’s security or defence; and
(c) the person’s act results in, or is likely to result in, the
information being communicated or made available to
another country or a foreign organisation, or to a person
acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security
or defence; or
(ii) information concerning the security or defence of
another country, being information that the person
acquired (whether directly or indirectly) from the
Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending to give an advantage to another country’s
security or defence; and
(c) the person’s act results in, or is likely to result in, the
information being communicated or made available to
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another country or a foreign organisation, or to a person
acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth’s security
or defence; or
(ii) information concerning the security or defence of
another country, being information that the person
acquired (whether directly or indirectly) from the
Commonwealth; and
(b) the person does so:
(i) intending that the record will, or may, be delivered to
another country or a foreign organisation, or to a person
acting on behalf of such a country or organisation; and
(ii) intending to prejudice the Commonwealth’s security or
defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth’s security
or defence; or
(ii) information concerning the security or defence of
another country, being information that the person
acquired (whether directly or indirectly) from the
Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending that the record will, or may, be delivered to
another country or a foreign organisation, or to a person
acting on behalf of such a country or organisation; and
(iii) intending to give an advantage to another country’s
security or defence.
Penalty: Imprisonment for 25 years.
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Part 5.2 Offences relating to espionage and similar activities
Division 91 Offences relating to espionage and similar activities
Section 91.2
130 Criminal Code Act 1995
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(5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the
person concerned does not need to have a particular country,
foreign organisation or person in mind at the time when the person
makes, obtains or copies the record.
(6) A person charged with an offence under this section may only be
remanded on bail by a judge of the Supreme Court of a State or
Territory. This subsection has effect despite anything in
section 93.1.
Note: Section 93.1 deals with how a prosecution is instituted.
(7) Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to offences under this section.
91.2 Defence—information lawfully available
(1) It is a defence to a prosecution of an offence against
subsection 91.1(1) or (2) that the information the person
communicates or makes available is information that has already
been communicated or made available to the public with the
authority of the Commonwealth.
(2) It is a defence to a prosecution of an offence against
subsection 91.1(3) or (4) that the record of information the person
makes, obtains or copies is a record of information 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
subsections (1) and (2). See subsection 13.3(3).
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Prosecutions and hearings Division 93
Section 93.1
Criminal Code Act 1995 131
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Division 93—Prosecutions and hearings
93.1 Institution of prosecution
(1) A prosecution under this Part may be instituted only by, or with the
consent of, the Attorney-General or a person acting under the
Attorney-General’s direction.
(2) However:
(a) a person charged with an offence against this Part may be
arrested, or a warrant for his or her arrest may be issued and
executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting
under his or her direction has not been obtained, but no further
proceedings are to be taken until that consent has been obtained.
(3) Nothing in this section prevents the discharging of the accused if
proceedings are not continued within a reasonable time.
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 interest of the security
or defence of the Commonwealth:
(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
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Part 5.2 Offences relating to espionage and similar activities
Division 93 Prosecutions and hearings
Section 93.2
132 Criminal Code Act 1995
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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.
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Forfeiture Division 94
Section 94.1
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Division 94—Forfeiture
94.1 Forfeiture of articles etc.
A sketch, article, record or document which is made, obtained,
recorded, retained, forged, possessed or otherwise dealt with in
contravention of this Part is forfeited to the Commonwealth.
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Chapter 5 The security of the Commonwealth
Part 5.3 Terrorism
Division 100 Preliminary
Section 100.1
134 Criminal Code Act 1995
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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).
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
or Territory that are, declared by the regulations to correspond to
Division 105 of this Act.
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engage in a hostile activity has the meaning given by
subsection 117.1(1).
express amendment of the provisions of this Part or Chapter 2
means the direct amendment of the provisions (whether by the
insertion, omission, repeal, substitution or relocation of words or
matter).
frisk search means:
(a) a search of a person conducted by quickly running the hands
over the person’s outer garments; and
(b) an examination of anything worn or carried by the person
that is conveniently and voluntarily removed by the person.
funds means:
(a) property and assets of every kind, whether tangible or
intangible, movable or immovable, however acquired; and
(b) legal documents or instruments in any form, including
electronic or digital, evidencing title to, or interest in, such
property or assets, including, but not limited to, bank credits,
travellers cheques, bank cheques, money orders, shares,
securities, bonds, debt instruments, drafts and letters of
credit.
identification material, in relation to a person, means prints of the
person’s hands, fingers, feet or toes, recordings of the person’s
voice, samples of the person’s handwriting or photographs
(including video recordings) of the person, but does not include
tape recordings made for the purposes of section 23U or 23V of the
Crimes Act 1914.
initial preventative detention order means an order made under
section 105.8.
interim control order means an order made under section 104.4,
104.7 or 104.9.
issuing authority:
(a) for initial preventative detention orders—means a senior AFP
member; and
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(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.
prohibited contact order means an order made under
section 105.15 or 105.16.
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Preliminary Division 100
Section 100.1
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referring State has the meaning given by section 100.2.
seizable item means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful
custody; or
(c) could be used to contact another person or to operate a device
remotely.
senior AFP member means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
superior court means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(d) the Supreme Court of a State or Territory; or
(e) the District Court (or equivalent) of a State or Territory.
terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within
subsection (3); and
(b) the action is done or the threat is made with the intention of
advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the
government of the Commonwealth or a State, Territory
or foreign country, or of part of a State, Territory or
foreign country; or
(ii) intimidating the public or a section of the public.
tracking device means any electronic device capable of being used
to determine or monitor the location of a person or an object or the
status of an object.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
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(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person
taking the action; or
(e) creates a serious risk to the health or safety of the public or a
section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an
electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government
services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person;
or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person
taking the action; or
(iv) to create a serious risk to the health or safety of the
public or a section of the public.
(4) In this Division:
(a) a reference to any person or property is a reference to any
person or property wherever situated, within or outside
Australia; and
(b) a reference to the public includes a reference to the public of
a country other than Australia.
Note: A court that is sentencing a person who has been convicted of an
offence against this Part, the maximum penalty for which is 7 or more
years of imprisonment, must warn the person about continuing
detention orders (see section 105A.23).
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Section 100.2
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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.
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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:
(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 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 Minister must arrange for
the Leader of the Opposition in the House of Representatives to be
briefed in relation to the proposed regulation.
(3) Regulations for the purposes of paragraph (b) of the definition of
terrorist organisation in this section cease to have effect on the
third anniversary of the day on which they take effect. To avoid
doubt, this subsection does not prevent:
(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under
subsection (4); or
(c) the making of new regulations the same in substance as those
regulations (whether the new regulations are made or take
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effect before or after those regulations cease to have effect
because of this subsection).
(4) If:
(a) an organisation is specified by regulations made for the
purposes of paragraph (b) of the definition of terrorist
organisation in this section; and
(b) the 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 Minister must, by written notice published in the Gazette, make
a declaration to the effect that the 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 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 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 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 Minister must consider the de-listing application.
(18) Subsection (17) does not limit the matters that may be considered
by the 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 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 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 Minister is satisfied
as referred to in subparagraph (1)(b)(i);
(b) remove the former name from the regulations if the 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 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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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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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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Section 102.10
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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
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 Attorney-General’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 Attorney-General’s written
consent.
Note: However, in urgent circumstances, a senior AFP member may request
an interim control order without first obtaining the Attorney-General’s
consent (see Subdivision C).
(2) A senior AFP member may only seek the Attorney-General’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
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(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to
terrorism, a terrorist organisation (within the meaning of
subsection 102.1(1)) or a terrorist act (within the
meaning of section 100.1); or
(iv) been convicted in a foreign country of an offence that is
constituted by conduct that, if engaged in in Australia,
would constitute a terrorism offence (within the
meaning of subsection 3(1) of the Crimes Act 1914); or
(c) suspects on reasonable grounds that the order in the terms to
be requested would substantially assist in preventing the
provision of support for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided
support for or otherwise facilitated the engagement in a
hostile activity in a foreign country.
(3) In seeking the Attorney-General’s consent, the member must give
the Attorney-General:
(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
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National Security Information (Criminal and Civil Proceedings)
Act 2004).
(4) The Attorney-General’s consent may be made subject to the
member making changes required by the Attorney-General to the
draft of the interim control order to be requested.
(5) To avoid doubt, a senior AFP member may seek the
Attorney-General’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 Attorney-General 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
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not be imposed on the person—a statement of those
facts;
(e) the following:
(i) the outcomes and particulars of all previous requests for
interim control orders (including the outcomes of the
hearings to confirm the orders) in relation to the person;
(ii) the outcomes and particulars of all previous applications
for variations of control orders made in relation to the
person;
(iii) the outcomes and particulars of all previous applications
for revocations of control orders made in relation to the
person;
(iv) the outcomes and particulars of all previous applications
for preventative detention orders in relation to the
person;
(v) information (if any) that the member has about any
periods for which the person has been detained under an
order made under a corresponding State preventative
detention law;
(f) a copy of the Attorney-General’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
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(iii) that the person has engaged in a hostile activity in a
foreign country; or
(iv) that the person has been convicted in Australia of an
offence relating to terrorism, a terrorist organisation
(within the meaning of subsection 102.1(1)) or a
terrorist act (within the meaning of section 100.1); or
(v) that the person has been convicted in a foreign country
of an offence that is constituted by conduct that, if
engaged in in Australia, would constitute a terrorism
offence (within the meaning of subsection 3(1) of the
Crimes Act 1914); or
(vi) that making the order would substantially assist in
preventing the provision of support for or the facilitation
of a terrorist act; or
(vii) that the person has provided support for or otherwise
facilitated the engagement in a hostile activity in a
foreign country; and
(d) the court is satisfied on the balance of probabilities that each
of the obligations, prohibitions and restrictions to be imposed
on the person by the order is reasonably necessary, and
reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation
of a terrorist act; or
(iii) preventing the provision of support for or the facilitation
of the engagement in a hostile activity in a foreign
country.
(2) For the purposes of paragraph (1)(d), in determining whether each
of the obligations, prohibitions and restrictions to be imposed on
the person by the order is reasonably necessary, and reasonably
appropriate and adapted, the court must take into account:
(a) as a paramount consideration in all cases—the objects of this
Division (see section 104.1); and
(b) as a primary consideration in the case where the person is 14
to 17 years of age—the best interests of the person; and
(c) as an additional consideration in all cases—the impact of the
obligation, prohibition or restriction on the person’s
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circumstances (including the person’s financial and personal
circumstances).
(2A) In determining what is in the best interests of a person for the
purposes of paragraph (2)(b), the court must take into account the
following:
(a) the age, maturity, sex and background (including lifestyle,
culture and traditions) of the person;
(b) the physical and mental health of the person;
(c) the benefit to the person of having a meaningful relationship
with his or her family and friends;
(d) the right of the person to receive an education;
(e) the right of the person to practise his or her religion;
(f) any other matter the court considers relevant.
(3) The court need not include in the order an obligation, prohibition
or restriction that was sought by the senior AFP member if the
court is not satisfied as mentioned in paragraph (1)(d) in respect of
that obligation, prohibition or restriction.
(4) In paragraphs (1)(c) and (d), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(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
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(e) specify a day on which the person may attend the court for
the court to:
(i) confirm (with or without variation) the interim control
order; or
(ii) declare the interim control order to be void; or
(iii) revoke the interim control order; and
(f) specify the period during which the confirmed control order
is to be in force, which must not end more than 12 months
after the day on which the interim control order is made; and
(g) state that the person’s lawyer may attend a specified place in
order to obtain a copy of the interim control order; and
(h) set out a summary of the grounds on which the order is made.
Note 1: An interim control order made in relation to a person must be served
on the person at least 48 hours before the day specified as mentioned
in paragraph (1)(e) (see section 104.12).
Note 2: If the person is 14 to 17 years of age, then a confirmed control order
must not end more than 3 months after the day on which the interim
control order is made (see section 104.28).
(1A) The day specified for the purposes of paragraph (1)(e) must be as
soon as practicable, but at least 72 hours, 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.
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(2AA) To avoid doubt, if a control order is in force in relation to a person,
the control order does not cease to be in force merely because the
person is detained in custody.
Note: However, if a person is detained in custody, and a control order is
made in relation to the person, the control order does not begin to be
in force until the person is released from custody (see
paragraph (1)(d)).
(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;
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(k) a requirement that the person allow impressions of his or her
fingerprints to be taken;
(l) a requirement that the person participate in specified
counselling or education.
Note: Restrictions apply to the use of photographs or impressions of
fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see
section 104.22).
(3A) If the court imposes a requirement under paragraph (3)(d) that the
person wear a tracking device, then the court must also impose on
the person by the order a requirement that the person do all of the
following:
(a) take steps specified in the order (if any) and reasonable steps
to ensure that the tracking device and any equipment
necessary for the operation of the tracking device are or
remain in good working order;
(b) report to persons specified in the order (if any), at the times
and places specified in the order (if any), for the purposes of
having the tracking device inspected;
(c) if the person becomes aware that the tracking device or any
equipment necessary for the operation of the tracking device
is not in good working order—notify an AFP member as
soon as practicable, but no later than 4 hours, after becoming
so aware.
(3B) If the court imposes a requirement under paragraph (3)(d) that the
person wear a tracking device, then the court must also include in
the order an authorisation for one or more AFP members:
(a) to take steps specified in the order to ensure that the tracking
device and any equipment necessary for the operation of the
tracking device are or remain in good working order; and
(b) to enter one or more premises specified in the order for the
purposes of installing any equipment necessary for the
operation of the tracking device.
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Communicating and associating
(4) Subsection 102.8(4) applies to paragraph (3)(e) and the person’s
communication or association in the same way as that subsection
applies to section 102.8 and a person’s association.
(5) This section does not affect the person’s right to contact,
communicate or associate with the person’s lawyer unless the
person’s lawyer is a specified individual as mentioned in
paragraph (3)(e). If the person’s lawyer is so specified, the person
may contact, communicate or associate with any other lawyer who
is not so specified.
Counselling and education
(6) A person is required to participate in specified counselling or
education as mentioned in paragraph (3)(l) only if the person
agrees, at the time of the counselling or education, to participate in
the counselling or education.
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 Attorney-General’s consent under section 104.2 is not required
before the request is made.
Note: However, if the Attorney-General’s consent is not obtained before the
member makes the request, the Attorney-General’s consent must be
obtained within 8 hours of the member making the request (see
section 104.10).
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(3) The issuing court may require communication by voice to the
extent that is practicable in the circumstances.
(4) The request must include the following:
(a) all that is required under paragraphs 104.3(b) to (e) in respect
of an ordinary request for an interim control order;
(b) an explanation as to why the making of the interim control
order is urgent;
(c) if the Attorney-General’s consent has been obtained before
making the request—a copy of the Attorney-General’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
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(b) the day on which, and the time at which, it was completed.
(4) The member must then complete a form of order in terms
substantially corresponding to those given by the issuing court,
stating on the form:
(a) the name of the court; and
(b) the day on which, and the time at which, the order was
completed.
(5) Within 24 hours of being informed under subsection (3), the
member must give or transmit the following to the issuing court:
(a) the form of order completed by the member;
(b) if the information and the explanation included in the request
were not already sworn or affirmed—that information and
explanation duly sworn or affirmed;
(c) if the Attorney-General’s consent was not obtained before
making the request—a copy of the Attorney-General’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 Attorney-General’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 Attorney-General’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;
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(b) an explanation that is sworn or affirmed as to why the
making of the interim control order without first obtaining
the Attorney-General’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).
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 Attorney-General’s
consent to request the order to the court; or
(ii) notify the court in writing that the Attorney-General’s
consent was not obtained.
Note: Section 104.10 deals with the Attorney-General’s consent.
104.10 Obtaining the Attorney-General’s consent within 8 hours
(1) If the Attorney-General’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 Attorney-General:
(a) refuses his or her consent to request the order; or
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(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 Attorney-General’s
consent to request a new interim control order in relation to the person
(see subsection 104.2(5)).
(3) If the order ceases to be in force under subsection (2), the senior
AFP member must, as soon as practicable:
(a) notify the court that the order has ceased to be in force; and
(b) if the order has been served on the person in relation to
whom it was made:
(i) annotate the order to indicate that it has ceased to be in
force; and
(ii) cause the annotated order to be served personally on the
person.
Note: For the personal service of documents on a person detained in
custody, see section 104.28B.
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.
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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
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
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relation to an application to revoke or vary the order if it
is confirmed; and
(c) must ensure that the person understands the information
provided under paragraph (b) (taking into account the
person’s age, language skills, mental capacity and any other
relevant factor).
Note: For the personal service of documents on a person detained in
custody, see section 104.28B.
(3) Paragraphs (1)(b) and (c) do not apply if the actions of the person
in relation to whom the interim control order has been made make
it impracticable for the AFP member to comply with those
paragraphs.
(3A) Paragraphs (1)(b) and (c) do not apply if the person in relation to
whom the interim control order has been made is detained in
custody and it is impracticable for the AFP member to comply with
those paragraphs.
(4) A failure to comply with paragraph (1)(c) does not make the
control order ineffective to any extent.
If person is resident, or order made, in Queensland
(5) If:
(a) the person in relation to whom the interim control order is
made is a resident of Queensland; or
(b) the issuing court that made the interim control order did so in
Queensland;
an AFP member must give to the Queensland public interest
monitor a copy of the order.
If person is 14 to 17
(6) As soon as practicable after an interim control order is made in
relation to a person who is 14 to 17 years of age, and at least 48
hours before the day specified as mentioned in
paragraph 104.5(1)(e), an AFP member must take reasonable steps
to serve a copy of the order personally on at least one parent or
guardian of the person.
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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
(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
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(d) to put at risk the safety of the community, law enforcement
officers or intelligence officers.
The fact that information of a kind mentioned in this subsection is
not required to be disclosed does not imply that such information is
required to be disclosed in other provisions of this Part that relate
to the disclosure of information.
(4) If the senior AFP member elects not to confirm the order, and the
order has already been served on the person, then:
(a) the order immediately ceases to be in force; and
(b) an AFP member must:
(i) annotate the order to indicate that it has ceased to be in
force; and
(ii) cause the annotated order and a copy of the notification
to be served personally on the person; and
(iii) if the person is a resident of Queensland, or the court
made the order in Queensland—give the Queensland
public interest monitor a copy of the annotated order
and the notification; and
(iv) if the person is 14 to 17 years of age—cause reasonable
steps to be taken to serve a copy of the annotated order
and the notification personally on at least one parent or
guardian of the person.
Note: For the personal service of documents on a person detained in
custody, see section 104.28B.
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.
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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;
(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) 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.
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Failure of person or representative etc. to attend
(4) The court may confirm the order without variation if none of the
following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made
the order in Queensland—the Queensland public interest
monitor.
Attendance of person or representative etc.
(5) The court may take the action mentioned in subsection (6) or (7) if
any of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made
the order in Queensland—the Queensland public interest
monitor.
(6) The court may declare, in writing, the order to be void if the court
is satisfied that, at the time of making the order, there were no
grounds on which to make the order.
(7) Otherwise, the court may:
(a) revoke the order if, at the time of confirming the order, the
court is not satisfied as mentioned in paragraph 104.4(1)(c);
or
(b) confirm and vary the order by removing one or more
obligations, prohibitions or restrictions if, at the time of
confirming the order, the court is satisfied as mentioned in
paragraph 104.4(1)(c) but is not satisfied as mentioned in
paragraph 104.4(1)(d); or
(c) confirm the order without variation if, at the time of
confirming the order, the court is satisfied as mentioned in
paragraphs 104.4(1)(c) and (d).
Note: If the court confirms the interim control order, the court must make a
new order under section 104.16.
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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:
(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.
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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:
(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.
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(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.
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;
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(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.
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.
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(3) The following persons may adduce additional evidence (including
by calling witnesses or producing material), or make additional
submissions, to the court in relation to the application to revoke or
vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (2)(b) applies—the Queensland public interest
monitor.
(4) Subsection (3) does not otherwise limit the power of the court to
control proceedings in relation to an application to revoke or vary a
confirmed control order.
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
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(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.
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).
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Penalty: Imprisonment for 2 years.
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:
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(a) a copy of the additional obligations, prohibitions and
restrictions to be imposed on the person by the order; and
(b) the following:
(i) an explanation as to why each of those obligations,
prohibitions and restrictions should be imposed on the
person; and
(ii) if the Commissioner is aware of any facts relating to
why any of those obligations, prohibitions or restrictions
should not be imposed on the person—a statement of
those facts; and
(c) the outcomes and particulars of all previous applications
under this section for variations of the order; and
(d) if the person is at least 18 years of age and the Commissioner
has information about the person’s age—that information;
and
(e) if the person is under 18 years of age—information about the
person’s age.
Note 1: A control order cannot be made in relation to a person who is under 14
years of age (see section 104.28).
Note 2: An offence might be committed if the application is false or
misleading (see sections 137.1 and 137.2).
(3) As soon as practicable after an application is made under
subsection (1), the Commissioner must:
(a) cause the documents mentioned in subsection (3AA) to be
served personally on the person in relation to whom the order
is made; and
(b) if the person is a resident of Queensland, or the court will
hear the application in Queensland—cause the documents
mentioned in subsection (3AA) to be given to the
Queensland public interest monitor; and
(c) if the person is 14 to 17 years of age—cause reasonable steps
to be taken to serve the documents mentioned in
subsection (3AA) personally on at least one parent or
guardian of the person.
(3AA) The documents are the following:
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(a) written notice of the application and the grounds on which
the variation is sought;
(b) a copy of the documents mentioned in paragraph (2)(b);
(c) any other written details required to enable the person in
relation to whom the order is made to understand and
respond to the substance of the facts, matters and
circumstances which will form the basis of the variation of
the order.
(3A) To avoid doubt, subsections (3) and (3AA) do not require any
information to be given if disclosure of that information is likely:
(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.
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(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
(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).
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(2A) In determining what is in the best interests of the person for the
purposes of paragraph (2)(b), the court must take into account the
matters referred to in subsection 104.4(2A).
(3) The court need not include in the order an obligation, prohibition
or restriction that was sought if the court is not satisfied as
mentioned in paragraph (1)(b) in respect of that obligation,
prohibition or restriction.
(4) In paragraph (1)(b), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(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:
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(i) the effect of the additional obligations, prohibitions and
restrictions;
(ii) the effect of sections 104.18, 104.21 and 104.27 (and
section 104.22 if appropriate);
(iii) that the person may have appeal and review rights in
relation to the decision of the issuing court to vary the
order;
(iv) the person’s right to apply under section 104.18 for an
order revoking or varying the order;
(v) the right of the person or one or more representatives of
the person, and (if relevant) the right of the Queensland
public interest monitor, to adduce evidence or make
submissions under subsection 104.19(3) or 104.23(4) in
relation to an application to revoke or vary the order;
and
(d) must ensure that the person understands the information
provided under paragraph (c) (taking into account the
person’s age, language skills, mental capacity and any other
relevant factor).
Note: For the personal service of documents on a person detained in
custody, see section 104.28B.
(3) Paragraphs (1)(c) and (d) do not apply if the actions of the person
in relation to whom the control order has been made make it
impracticable for the AFP member to comply with those
paragraphs.
(3A) Paragraphs (1)(b), (c) and (d) do not apply if the person in relation
to whom the control order has been made is detained in custody
and it is impracticable for the AFP member to comply with those
paragraphs.
(4) A failure to comply with paragraph (1)(d) does not make the
control order ineffective to any extent.
If person is 14 to 17
(5) As soon as practicable after a control order in relation to a person
who is 14 to 17 years of age is varied under section 104.24, an AFP
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member must take reasonable steps to serve a copy of the varied
order personally on at least one parent or guardian of the person.
Subdivision G—Offences relating to control orders
104.27 Offence for contravening a control order
A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the person contravenes the order.
Penalty: Imprisonment for 5 years.
104.27A Offence relating to tracking devices
(1) A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the control order requires the person to wear a tracking
device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss
of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a
control order is in force in relation to another person; and
(b) the perpetrator knows that, or is reckless as to whether, the
control order requires the other person to wear a tracking
device; and
(c) the perpetrator engages in conduct; and
(d) the conduct results in interference with, or disruption or loss
of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
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Subdivision H—Special rules for young people (14 to 17)
104.28 Special rules for young people
Rule for people under 14
(1) A control order cannot be requested, made or confirmed in relation
to a person who is under 14 years of age.
Rule for people 14 to 17
(2) If an issuing court is satisfied that a person in relation to whom an
interim control order is being made or confirmed is 14 to 17 years
of age, the period during which the confirmed control order is to be
in force must not end more than 3 months after the day on which
the interim control order is made by the court.
(3) Subsection (2) does not prevent the making of successive control
orders in relation to the same person.
Young person’s right to legal representation
(4) If an issuing court is satisfied, in proceedings relating to a control
order, that:
(a) the person to whom the control order relates, or the person in
relation to whom the control order is requested, is at least 14
but under 18; and
(b) the person does not have a lawyer acting in relation to the
proceedings;
the court must appoint a lawyer to act for the person in relation to
the proceedings.
(5) However, the issuing court is not required to appoint a lawyer if:
(a) the proceedings are ex parte proceedings relating to a request
for an interim control order; or
(b) the person refused a lawyer previously appointed under
subsection (4) during proceedings relating to:
(i) the control order; or
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(ii) if the control order is a confirmed control order—the
interim control order that was confirmed.
(6) The regulations may provide in relation to the appointing of
lawyers under subsection (4) (including in relation to lawyers
appointed under that subsection).
Subdivision I—Miscellaneous
104.28A Interlocutory proceedings
(1) Proceedings in relation to a request under section 104.3, 104.6 or
104.8 to make an interim control order are taken to be interlocutory
proceedings for all purposes (including for the purpose of
section 75 of the Evidence Act 1995).
(2) The following proceedings are taken not to be interlocutory
proceedings for any purpose (including for the purpose of
section 75 of the Evidence Act 1995):
(a) proceedings in relation to the confirmation under
section 104.14 of an interim control order;
(b) proceedings in relation to an application under
section 104.18, 104.19 or 104.23 to revoke or vary a
confirmed control order.
104.28B 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
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)).
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(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 Attorney-General must, as soon as practicable after each
30 June, cause to be prepared a report about the operation of this
Division, Division 5 of Part IAAB of the Crimes Act 1914
(monitoring warrants), and the rest of that Part to the extent that it
relates to that Division, during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must
include the following matters:
(a) the number of interim control orders made under:
(i) section 104.4; and
(ii) section 104.7; and
(iii) section 104.9;
(aa) the number of interim control orders in respect of which an
election was made under section 104.12A not to confirm the
order;
(b) the number of control orders confirmed under section 104.14;
(c) the number of control orders declared to be void under
section 104.14;
(d) the number of control orders revoked under sections 104.14
and 104.20;
(e) the number of control orders varied under sections 104.14,
104.20 and 104.24;
(f) particulars of:
(i) any complaints made or referred to the Commonwealth
Ombudsman that related to control orders; and
(ii) any information given under section 40SA of the
Australian Federal Police Act 1979 that related to
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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 Attorney-General 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 Attorney-General of declarations,
revocations or variations
The Commissioner must cause:
(a) the Attorney-General to be notified in writing if:
(i) a control order is declared to be void under
section 104.14; or
(ii) a control order is revoked under section 104.14 or
104.20; or
(iii) a control order is varied under section 104.14, 104.20 or
104.24; and
(b) the Attorney-General 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.
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104.32 Sunset provision
(1) A control order that is in force at the end of 7 September 2018
ceases to be in force at that time.
(2) A control order cannot be requested, made or confirmed after
7 September 2018.
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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 Minister 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 Minister 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.
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.
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.
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)).
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(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
(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.
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(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.
(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
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(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
(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.
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(3) If:
(a) a continued preventative detention order is being applied for;
and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(a);
the information in the application for the prohibited contact order
must be sworn or affirmed by the AFP member.
(3A) If:
(a) a continued preventative detention order is being applied for;
and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(b);
the information in the application for the prohibited contact order
must be sworn or affirmed by the AFP member unless the issuing
authority is satisfied that it is not practical to administer an oath or
affirmation to the member.
(4) If the issuing authority makes the preventative detention order, the
issuing authority may, subject to subsection (4A), make a
prohibited contact order under this section that the subject is not,
while being detained under the preventative detention order, to
contact the person specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on which the order may be made.
(4A) If the application for the prohibited contact order is made orally in
person or by telephone, or by fax, email or other electronic means
of communication, the issuing authority must not make the order
unless the issuing authority is satisfied that it was necessary,
because of urgent circumstances, to apply for the order by such
means.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in
relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the
making of the prohibited contact order; and
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(b) give the Commonwealth Ombudsman a copy 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:
(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.
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(3A) If:
(a) the preventative detention order is a continued preventative
detention order; and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(b);
the information in the application for the prohibited contact order
must be sworn or affirmed by the AFP member unless the issuing
authority is satisfied that it is not practical to administer an oath or
affirmation to the member.
(4) The issuing authority may, subject to subsection (4A), make a
prohibited contact order under this section that the subject is not,
while being detained under the preventative detention order, to
contact the person specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on which the order may be made.
(4A) If the application for the prohibited contact order is made orally in
person or by telephone, or by fax, email or other electronic means
of communication, the issuing authority must not make the order
unless the issuing authority is satisfied that it was necessary,
because of urgent circumstances, to apply for the order by such
means.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in
relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the
making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the
prohibited contact order.
(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.
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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:
(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.
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Prohibited contact order
(4) If:
(a) a prohibited contact order is in force in relation to a person’s
detention under a preventative detention order; and
(b) the police officer who is detaining the person under the
preventative detention order is satisfied that the grounds on
which the prohibited contact order was made have ceased to
exist;
the police officer must:
(c) if the police officer is an AFP member—apply to an issuing
authority for preventative detention orders of that kind for the
revocation of the prohibited contact order; or
(d) if the police officer is not an AFP member—inform a senior
AFP member of the police officer’s reasons for being
satisfied that the grounds on which the prohibited contact
order was made have ceased to exist.
(5) If:
(a) a senior AFP member is informed by a police officer under
paragraph (4)(d); and
(b) the senior AFP member is satisfied that the grounds on which
the prohibited contact order was made in relation to the
person’s detention under the preventative detention order
have ceased to exist;
the senior AFP member must apply to an issuing authority for
preventative detention orders of that kind for the revocation of the
prohibited contact order.
(6) If:
(a) a prohibited contact order is in force in relation to a person’s
detention under a preventative detention order; and
(b) an issuing authority for preventative detention orders of that
kind is satisfied, on application by an AFP member, that the
grounds on which the prohibited contact order was made
have ceased to exist;
the issuing authority must revoke the prohibited contact order.
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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
(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:
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(a) any police officer may take the person into custody; and
(b) any police officer may detain the person.
(2) A police officer, in taking a person into custody under and in
detaining a person under a preventative detention order, has the
same powers and obligations as the police officer would have if the
police officer were arresting the person, or detaining the person, for
an offence.
(3) In subsection (2):
offence means:
(a) if the police officer is an AFP member—an offence against a
law of the Commonwealth; or
(b) if the police officer is not an AFP member—an offence
against a law of the State or Territory of whose police force
the police officer is a member.
(4) Subsection (2) does not apply to the extent to which particular
powers, and the obligations associated with those powers, are
provided for in this Subdivision or Subdivision D or E.
Nominated senior AFP member
(5) If a preventative detention order is made in relation to person, the
Commissioner of the Australian Federal Police must nominate a
senior AFP member (the nominated senior AFP member) to
oversee the exercise of powers under, and the performance of
obligations in relation to, the preventative detention order.
(6) The nominated senior AFP member must be someone who was not
involved in the making of the application for the preventative
detention order.
(7) The nominated senior AFP member must:
(a) oversee the exercise of powers under, and the performance of
obligations in relation to, the preventative detention order;
and
(b) without limiting paragraph (a), ensure that the provisions of
section 105.17 (which deals with revocation of preventative
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detention orders and prohibited contact orders) are complied
with in relation to the preventative detention order; and
(c) receive and consider any representations that are made under
subsection (8).
(8) The following persons:
(a) the person being detained under the preventative detention
order;
(b) a lawyer acting for that person in relation to the preventative
detention order;
(c) a person with whom that person has contact under
subsection 105.39(2);
are entitled to make representations to the nominated senior AFP
member in relation to:
(d) the exercise of powers under, and the performance of
obligations in relation to, the preventative detention order;
and
(e) without limiting paragraph (a), compliance with the
provisions of section 105.17 (which deals with revocation of
preventative detention orders and prohibited contact orders)
in relation to the preventative detention order; and
(f) the person’s treatment in connection with the person’s
detention under the preventative detention order.
(9) The Commissioner of the Australian Federal Police may, in
writing, delegate to a senior AFP member the Commissioner’s
powers under subsection (5).
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.
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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.
(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
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(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.
(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
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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.
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.
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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.
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:
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(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
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
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detained under the order at a prison or remand centre of a State or
Territory.
(2) If an arrangement is made under subsection (1):
(a) the preventative detention order is taken to authorise the
person in charge of the prison or remand centre to detain the
subject at the prison or remand centre while the order is in
force in relation to the subject; and
(b) section 105.33 applies in relation to the subject’s detention
under the order at the prison or remand centre as if:
(i) the person in charge of that prison or remand centre; or
(ii) any other person involved in the subject’s detention at
that prison or remand centre;
were a person exercising authority under the order or
implementing or enforcing the order; and
(c) the senior AFP member who makes the arrangement is taken,
while the subject is detained at the prison or remand centre,
to be the AFP member detaining the subject for the purposes
of Subdivisions D and E of this Division.
(3) The arrangement under subsection (1) may include provision for
the Commonwealth meeting the expenses of the subject’s detention
at the prison or remand centre.
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)).
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(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:
(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
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(g) the fact that the person may seek from a federal court a
remedy relating to:
(i) the order; or
(ii) the treatment of the person in connection with the
person’s detention under the order; and
(h) the person’s entitlement under section 105.37 to contact a
lawyer; and
(i) the name and work telephone number of the senior AFP
member who has been nominated under subsection 105.19(5)
to oversee the exercise of powers under, and the performance
of obligations in relation to, the order.
Note: Paragraph (g)—see section 105.51.
(2A) Without limiting paragraph (2)(c), the police officer detaining the
person under the order must inform the person under that
paragraph about the persons that he or she may contact under
section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform the
person being detained of:
(a) the fact that a prohibited contact order has been made in
relation to the person’s detention; or
(b) the name of a person specified in a prohibited contact order
that has been made in relation to the person’s detention.
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)).
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(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
(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
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Section 105.30
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(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.
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.
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Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3)).
(2) The police officer detaining the person under the preventative
detention order complies with subsection 105.28(1) or 105.29(1) if
the police officer informs the person in substance of the matters
covered by subsection 105.28(2) or 105.29(2) (even if this is not
done in language of a precise or technical nature).
(3) The police officer who is detaining the person under the
preventative detention order must arrange for the assistance of an
interpreter in complying with subsection 105.28(1) or 105.29(1) or
section 105.30 if the police officer has reasonable grounds to
believe that the person is unable, because of inadequate knowledge
of the English language or a disability, to communicate with
reasonable fluency in that language.
(4) Without limiting subsection (3), the assistance of the interpreter
may be provided by telephone.
(5) The lawfulness of a person’s detention under a preventative
detention order is not affected by a failure to comply with
subsection 105.28(1) or 105.29(1), section 105.30 or subsection (3)
of this section.
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,
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or the continued preventative detention order, must give the person
a copy of the continued preventative detention order.
(5) As soon as practicable after a preventative detention order is
extended, or further extended, under section 105.10 or 105.14, the
police officer who is detaining the person under the preventative
detention order must give the person a copy of the extension or
further extension.
(6) A person who is being detained under a preventative detention
order may request a police officer who is detaining the person to
arrange for a copy of:
(a) the order; or
(c) any extension or further extension of the order under
section 105.10 or 105.14;
to be given to a lawyer acting for the person in relation to the
order.
Note 1: Section 105.37 deals with the person’s right to contact a lawyer and
the obligation of the police officer detaining the person to give the
person assistance to choose a lawyer.
Note 2: Section 105.40 prevents the person from contacting a lawyer who is
specified in a prohibited contact order.
(7) The police officer must make arrangements for a copy of the order,
or the extension or further extension, to be given to the lawyer as
soon as practicable after the request is made.
(8) Without limiting subsection (7), the copy of the order, or the
extension, may be faxed or emailed to the lawyer.
(9) To avoid doubt, subsection (7) does not entitle the lawyer to be
given a copy of, or see, a document other than the order, or the
extension or further extension.
(10) Nothing in this section requires a copy of a prohibited contact
order to be given to a person.
(11) The police officer who gives:
(a) the person being detained under an initial preventative
detention order; or
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(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
(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.
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(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).
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
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(e) if he or she engages in a business together with another
person or other people—that other person or one of those
other people; and
(f) if the police officer detaining the person being detained
agrees to the person contacting another person—that person;
by telephone, fax or email but solely for the purposes of letting the
person contacted know that the person being detained is safe but is
not able to be contacted for the time being.
(2) To avoid doubt, the person being detained is not entitled, under
subsection (1), to disclose:
(a) the fact that a preventative detention order has been made in
relation to the person; or
(b) the fact that the person is being detained; or
(c) the period for which the person is being detained.
(3) In this section:
family member of a person means:
(a) the person’s spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.
(4) For the purposes of this section, the family members of a person
are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the
person is the child, because of the definition of child in the
Dictionary;
(c) anyone else who would be a member of the person’s family
if someone mentioned in paragraph (a) or (b) is taken to be a
family member of the person.
105.36 Contacting Ombudsman etc.
(1) The person being detained is entitled to contact:
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(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.
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:
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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;
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
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;
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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 Department.
(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.
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(3) Without limiting subsection (2), the interpreter referred to in that
subsection may be a police officer.
(4) If the person being detained indicates that he or she wishes the
contact to take place in a language other than English, the police
officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be
provided if it is reasonably practicable to do so during the
period during which the person is being detained; and
(b) if it is reasonably practicable to do so—arrange for those
services to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained under a preventative
detention order; and
(b) a lawyer;
for a purpose referred to in paragraph 105.37(1)(a), (b), (c), (ca),
(d) or (e) is not admissible in evidence against the person in any
proceedings in a court.
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
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(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.
(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
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the contact can be effectively monitored by a police officer
exercising authority under the preventative detention order.
(8) If the communication that takes place during the contact takes
place in a language other than English, the contact may continue
only if the content and meaning of the communication in that
language can be effectively monitored with the assistance of an
interpreter.
(9) Without limiting subsection (8), the interpreter referred to in that
subsection may be a police officer.
(10) If the person being detained indicates that he or she wishes the
communication that takes place during the contact to take place in
a language other than English, the police officer who is detaining
the person must:
(a) arrange for the services of an appropriate interpreter to be
provided if it is reasonably practicable to do so during the
period during which the person is being detained; and
(b) if it is reasonably practicable to do so—arrange for those
services to be provided as soon as practicable.
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
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(c) the disclosure occurs while the subject is being detained
under the order; and
(d) the disclosure is not one that the subject is entitled to make
under section 105.36, 105.37 or 105.39.
Penalty: Imprisonment for 5 years.
Lawyer
(2) A person (the lawyer) commits an offence if:
(a) a person being detained under a preventative detention order
(the detainee) contacts the lawyer under section 105.37; and
(b) the lawyer discloses to another person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the lawyer in the
course of the contact; and
(c) the disclosure occurs while the detainee is being detained
under the order; and
(d) the disclosure is not made for the purposes of:
(i) proceedings in a federal court for a remedy relating to
the preventative detention order or the treatment of the
detainee in connection with the detainee’s detention
under the order; or
(ii) a complaint to the Commonwealth Ombudsman under
the Ombudsman Act 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
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(iii) a complaint to an officer or authority of a State or
Territory about the treatment of the detainee by a
member of the police force of that State or Territory in
connection with the detainee’s detention under the
order; or
(iv) making representations to the senior AFP member
nominated under subsection 105.19(5) in relation to the
order, or another police officer involved in the
detainee’s detention, about the exercise of powers under
the order, the performance of obligations in relation to
the order or the treatment of the detainee in connection
with the detainee’s detention under the order.
Penalty: Imprisonment for 5 years.
Person having special contact with detainee who is under 18 years
of age or incapable of managing own affairs
(3) A person (the parent/guardian) commits an offence if:
(a) a person being detained under a preventative detention order
(the detainee) has contact with the parent/guardian under
section 105.39; and
(b) the parent/guardian discloses to another person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the
parent/guardian in the course of the contact; and
(c) the other person is not a person the detainee is entitled to
have contact with under section 105.39; and
(d) the disclosure occurs while the detainee is being detained
under the order; and
(e) the disclosure is not made for the purposes of:
(i) a complaint to the Commonwealth Ombudsman under
the Ombudsman Act 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
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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
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
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(d) when the disclosure is made, the detainee has not had contact
with the other parent/guardian under section 105.39 while
being detained under the order; and
(e) the parent/guardian does not, before making the disclosure,
inform the senior AFP member nominated under
subsection 105.19(5) in relation to the order that the
parent/guardian is proposing to disclose information of that
kind to the other parent/guardian.
Penalty: Imprisonment for 5 years.
(4B) If:
(a) a person (the parent/guardian) is a parent or guardian of a
person being detained under a preventative detention order
(the detainee); and
(b) the parent/guardian informs the senior AFP member
nominated under subsection 105.19(5) in relation to the order
that the parent/guardian proposes to disclose information of
the kind referred to in paragraph (3)(b) to another parent or
guardian of the detainee (the other parent/guardian);
that senior AFP member may inform the parent/guardian that the
detainee is not entitled to contact the other parent/guardian under
section 105.39.
Note: The parent/guardian may commit an offence against subsection (2) if
the other parent/guardian is a person the detainee is not entitled to
have contact with under section 105.39 and the parent/guardian does
disclose information of that kind to the other parent/guardian. This is
because of the operation of paragraph (3)(c).
Interpreter assisting in monitoring contact with detainee
(5) A person (the interpreter) commits an offence if:
(a) the interpreter is an interpreter who assists in monitoring the
contact that a person being detained under a preventative
detention order (the detainee) has with someone while the
detainee is being detained under the order; and
(b) the interpreter discloses to another person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
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(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that interpreter obtains in the course of
assisting in the monitoring of that contact; and
(c) the disclosure occurs while the detainee is being detained
under the order.
Penalty: Imprisonment for 5 years.
Passing on improperly disclosed information
(6) A person (the disclosure recipient) commits an offence if:
(a) a person (the earlier discloser) discloses to the disclosure
recipient:
(i) the fact that a preventative detention order has been
made in relation to a person; or
(ii) the fact that a person is being detained under a
preventative detention order; or
(iii) the period for which a person is being detained under a
preventative detention order; or
(iv) any information that a person who is being detained
under a preventative detention order communicates to a
person while the person is being detained under the
order; and
(b) the disclosure by the earlier discloser to the disclosure
recipient contravenes:
(i) subsection (1), (2), (3) or (5); or
(ii) this subsection; and
(c) the disclosure recipient discloses that information to another
person; and
(d) the disclosure by the disclosure recipient occurs while the
person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is
being detained under the order.
Penalty: Imprisonment for 5 years.
Police officer or interpreter monitoring contact with lawyer
(7) A person (the monitor) commits an offence if:
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(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).
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.
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Note 1: This subsection will not apply to the person if the person is released
from detention under the order (even though the order may still be in
force in relation to the person).
Note 2: A contravention of this subsection may be an offence under
section 105.45.
(3) An AFP member, or an ASIO employee or an ASIO affiliate, must
not question a person while the person is being detained under an
order made under a corresponding State preventative detention
law.
Note 1: This subsection will not apply to the person if the person is released
from detention under the order (even though the order may still be in
force in relation to the person).
Note 2: A contravention of this subsection may be an offence under
section 105.45.
(4) If a police officer questions a person while the person is being
detained under a preventative detention order, the police officer
who is detaining the person must ensure that:
(a) a video recording is made of the questioning if it is
practicable to do so; or
(b) an audio recording is made of the questioning if it is not
practicable for a video recording to be made of the
questioning.
Note: A contravention of this subsection may be an offence under
section 105.45.
(5) Subsection (4) does not apply if:
(a) the questioning occurs to:
(i) ensure the safety and well being of the person being
detained; or
(ii) determine whether the person is the person specified in
the order; and
(b) complying with subsection (4) is not practicable because of
the seriousness and urgency of the circumstances in which
the questioning occurs.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3)).
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(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.
(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.
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(6) The taking of identification material from a person who:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if a parent or guardian of the person is not acceptable to the
person—another appropriate person.
Note 1: For appropriate person, see subsection (11).
Note 2: A contravention of this subsection may be an offence under
section 105.45.
(7) Despite this section, identification material may be taken from a
person who is under 18 years of age and is capable of managing his
or her affairs if:
(a) subsections (8) and (9) are satisfied; or
(b) subsection (8) or (9) is satisfied (but not both) and a Judge of
the Federal Circuit Court of Australia orders that the material
be taken.
In deciding whether to make such an order, the Judge of the
Federal Circuit Court of Australia must have regard to the matters
set out in subsection (5).
(8) This subsection applies if the person agrees in writing to the taking
of the material.
(9) This subsection applies if either:
(a) a parent or guardian of the person; or
(b) if a parent or guardian is not acceptable to the person—
another appropriate person;
agrees in writing to the taking of the material.
Note: For appropriate person, see subsection (11).
(10) Despite this section, identification material may be taken from a
person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her affairs;
if the person consents in writing.
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(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.
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.
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Section 105.45
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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.
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.
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Section 105.47
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105.47 Annual report
(1) The Attorney-General must, as soon as practicable after each
30 June, cause to be prepared a report about the operation of this
Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must
include the following matters:
(a) the number of initial preventative detention orders made
under section 105.8 during the year;
(b) the number of continued preventative detention orders made
under section 105.12 during the year;
(c) whether a person was taken into custody under each of those
orders and, if so, how long the person was detained for;
(d) particulars of:
(i) any complaints made or referred to the Commonwealth
Ombudsman during the year that related to the detention
of a person under a preventative detention order; and
(ii) any information given under section 40SA of the
Australian Federal Police Act 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 Attorney-General 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
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(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.
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).
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(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.
(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.
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Section 105.52
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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
(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.
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(3) If:
(a) the person applies to the court for:
(i) review of the application for, or the making of, the
Commonwealth order or the person’s treatment in
connection with the person’s detention under the
Commonwealth order; or
(ii) a remedy in relation to the application for, or the
making of, the Commonwealth order or the person’s
treatment in connection with the person’s detention
under the Commonwealth order; and
(b) the person applies to the court for an order under this
subsection;
the court may order the Commissioner of the Australian Federal
Police to give the court, and the parties to the proceedings, the
information that was put before the person who issued the
Commonwealth order when the application for the Commonwealth
order was made.
(4) Subsection (3) does not require information to be given to the
court, or the parties to the proceedings, if the disclosure of the
information is likely to prejudice national security (within the
meaning of the National Security Information (Criminal and Civil
Proceedings) Act 2004).
(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 2018 ceases to be in force at that
time.
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(2) A preventative detention order, and a prohibited contact order,
cannot be applied for, or made, after 7 September 2018.
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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 Attorney-General, or a legal representative of the
Attorney-General, (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 Attorney-General 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 the
Attorney-General 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 Attorney-General later decides not to take any of the
actions referred to in any of paragraphs (5)(a) to (d), or after
the Attorney-General takes such action the Court makes an
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order—within 2 business days of the Attorney-General’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 Attorney-General, the offender, or a legal representative of the
Attorney-General 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
Attorney-General 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.
Other relevant experts
(8) This section does not prevent the Attorney-General, the offender,
or a legal representative of the Attorney-General or offender, from
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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 Attorney-General bears the onus of satisfying the Court of the
matters referred to in paragraphs (1)(b) and (c).
Period of order
(4) The order must specify the period during which it is in force.
(5) The period must be a period of no more than 3 years that the Court
is satisfied is reasonably necessary to prevent the unacceptable
risk.
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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:
(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;
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(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 Attorney-General, or a legal representative of the
Attorney-General, 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;
(ii) the period for which a continuing detention order or an
interim detention order is in force in relation to the
offender; and
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(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 Attorney-General, or a legal representative of the
Attorney-General, must, before the end of the period referred to in
subsection (1B), apply to a Supreme Court of a State or Territory
for a review of a continuing detention order that is in force in
relation to a terrorist offender.
Note: For when an application is not required to be made, see subsection (2).
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(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.
(3) Otherwise, the Court must dismiss the application.
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(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 Attorney-General; 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 Attorney-General, the offender, or a legal representative of the
Attorney-General or offender, may nominate one or more relevant
experts for the purposes of subsection (3).
(3B) Subsection (3) does not prevent the Attorney-General, the offender,
or a legal representative of the Attorney-General 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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(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 Attorney-General 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 Attorney-General bears the onus of satisfying the Court of the
matters referred to in subsection (4).
(6A) The Attorney-General, or the legal representative of the
Attorney-General, must present to the Court:
(a) a copy of any material in the possession of the
Attorney-General or legal representative; and
(b) a statement of any facts that the Attorney-General 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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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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(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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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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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 Attorney-General may request a person prescribed by the
regulations for the purposes of this subsection to give the
Attorney-General information that the Attorney-General
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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Disclosing information
(3) The Attorney-General 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 Attorney-General;
(ii) a legal representative of the Attorney-General;
(iii) the Secretary of the Department;
(iv) an APS employee in the Department; and
(b) the Attorney-General 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 Attorney-General
The Attorney-General 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;
(b) any APS employee in the Department who performs duties in
connection with the administration or execution of this
Division.
105A.21 Arrangement with States and Territories
(1) The Attorney-General 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.
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(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 Attorney-General 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 Attorney-General 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.
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:
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Division 105A Continuing detention orders
Section 105A.24
292 Criminal Code Act 1995
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(a) affect the validity of the sentence for the offence; or
(b) prevent an application from being made under this Division
in relation to the person.
105A.24 Effect of continuing detention orders on bail or parole laws
(1) A person in relation to whom a continuing detention order or an
interim detention order is in force is not eligible to be released on
bail or parole until the order ceases to be in force.
(2) Subsection (1) does not prevent the person from applying, before
the order ceases to be in force, to be released on bail if the person
is charged with an offence while the order is in force.
Note: Although the person can apply to be released on bail, as a result of
subsection (1), the person cannot be released on bail until the
continuing detention order ceases to be in force.
(3) This section applies despite any law of the Commonwealth, a State
or a Territory.
105A.25 Sunset provision
A continuing detention order, and an interim detention order,
cannot be applied for, or made, after the end of 10 years after the
day the Criminal Code Amendment (High Risk Terrorist Offenders)
Act 2016 received the Royal Assent.
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Transitional provisions Division 106
Section 106.1
Criminal Code Act 1995 293
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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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Section 106.3
294 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.
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Part 5.4 Harming Australians
Division 115 Harming Australians
Section 115.1
300 Criminal Code Act 1995
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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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Section 115.3
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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:
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);
(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).
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Section 117.1
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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 Minister must be
satisfied on reasonable grounds that the organisation is directly or
indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) the engagement, in Australia or a foreign country allied or
associated with Australia, in action that falls within
subsection 100.1(2) but does not fall within
subsection 100.1(3); or
(c) a terrorist act (within the meaning of section 100.1); or
(d) an act prejudicial to the security, defence or international
relations (within the meaning of section 10 of the National
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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
Section 119.1
308 Criminal Code Act 1995
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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 the United Nations or an
agency of the United Nations;
(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 2018.
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.
(6) To avoid doubt, subsection (5) does not prevent an area from being
subsequently declared if the Foreign Affairs Minister becomes
satisfied as mentioned in subsection (1).
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Review of declaration
(7) The Parliamentary Joint Committee on Intelligence and Security
may review a declaration before the end of the period during which
the declaration may be disallowed under section 42 of the
Legislation Act 2003.
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
(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:
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(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
(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):
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(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):
(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
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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.
Absolute liability element
(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c)
and (5)(c).
Note: For absolute liability, see section 6.2.
Exception
(7) This section does not apply if the person engages in conduct solely
by way of, or for the purposes of, the provision of aid of a
humanitarian nature.
Note 1: A defendant bears an evidential burden in relation to the matter in
subsection (7): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see
section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8) A reference in this section to the commission of an offence against
section 119.1 includes a reference to doing an act that would
constitute an offence against section 119.1 if paragraphs
119.1(1)(b) and (2)(b) were disregarded.
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
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(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
(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.
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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:
(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.
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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
(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.
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Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4) A person commits an offence if:
(a) the person engages in conduct in Australia; and
(b) the person engages in the conduct intending to facilitate or
promote the recruitment of persons to serve in any capacity
in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5) This section does not apply in relation to service of a person in or
with an armed force in circumstances if a declaration under
subsection 119.8(2) covers the person and the circumstances of the
person’s service in or with the armed force.
Note 1: A defendant bears an evidential burden in relation to the matter in
subsection (5): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see
section 119.9.
Armed forces that are not part of the government of a foreign
country
(6) A reference in this section to an armed force in a foreign country
includes any armed force in a foreign country, whether or not the
armed force forms part of the armed forces of the government of
that foreign country.
(7) Without limiting this section, a person recruits another person to
serve in or with an armed force in a foreign country if the other
person enters a commitment or engagement to serve in any
capacity in or with an armed force, whether or not the commitment
or engagement is legally enforceable or constitutes legal or formal
enlistment in that force.
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119.8 Declaration in relation to specified armed forces
Service
(1) The 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
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 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
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.
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).
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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).
(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.
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(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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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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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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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
(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.
132.9 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Section 133.1
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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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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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Section 134.1
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Intention of permanently depriving a person of property
(6) For the purposes of this section, if:
(a) a person obtains property belonging to another without
meaning the other permanently to lose the thing itself; and
(b) the person’s intention is to treat the thing as the person’s own
to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the other of
it.
(7) For the purposes of subsection (6), a borrowing or lending of a
thing amounts to treating the thing as the borrower’s or lender’s
own to dispose of regardless of another’s rights if, and only if, the
borrowing or lending is for a period and in circumstances making it
equivalent to an outright taking or disposal.
(8) For the purposes of subsection (6), if:
(a) a person has possession or control (lawfully or not) of
property belonging to another; and
(b) the person parts with the property under a condition as to its
return that the person may not be able to perform; and
(c) the parting is done for purposes of the person’s own and
without the other’s authority;
the parting is taken to amount to treating the property as the
person’s own to dispose of regardless of the other’s rights.
Money transfers
(9) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if a person (the first
person) causes an amount to be transferred from an account held
by another person (the second person) to an account held by the
first person:
(a) the amount is taken to have been property that belonged to
the second person; and
(b) the first person is taken to have obtained the property for
himself or herself with the intention of permanently
depriving the second person of the property.
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(10) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if a person (the first
person) causes an amount to be transferred from an account held
by another person (the second person) to an account held by a third
person:
(a) the amount is taken to have been property that belonged to
the second person; and
(b) the first person is taken to have obtained the property for the
third person with the intention of permanently depriving the
second person of the property.
(11) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if:
(a) a credit is made to an account (the credited account); and
(b) a debit is made to another account (the debited account); and
(c) either:
(i) the credit results from the debit; or
(ii) the debit results from the credit;
the amount of the credit is taken to be transferred from the debited
account to the credited account.
(12) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), a person is taken to
cause an amount to be transferred from an account if the person
induces another person to transfer the amount from the account
(whether or not the other person is the holder of the account).
General deficiency
(13) A person may be convicted of an offence against this section
involving all or any part of a general deficiency in money even
though the deficiency is made up of any number of particular sums
of money that were obtained over a period of time.
(14) A person may be convicted of an offence against this section
involving all or any part of a general deficiency in property other
than money even though the deficiency is made up of any number
of particular items of property that were obtained over a period of
time.
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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
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 5 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 5 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 5 years.
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(6) Absolute liability applies to the paragraph (5)(c) element of the
offence.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person does anything with the intention of dishonestly
influencing a public official in the exercise of the official’s
duties as a public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 5 years.
(8) In a prosecution for an offence against subsection (7), it is not
necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public
official.
135.2 Obtaining financial advantage
(1) A person commits an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial
advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to
receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to the paragraph (1)(b) element of the
offence.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial
advantage for another person from a third person; and
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(ab) the person knows or believes that the other person is not
eligible to receive that financial advantage; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(2A) Absolute liability applies to the paragraph (2)(b) element of the
offence.
(3) For the purposes of subsection (2), a person is taken to have
obtained a financial advantage for another person from a
Commonwealth entity if the first-mentioned person induces the
Commonwealth entity to do something that results in the other
person obtaining the financial advantage.
(4) The definition of obtaining in section 130.1 does not apply to this
section.
135.4 Conspiracy to defraud
Obtaining a gain
(1) A person commits an offence if:
(a) the person conspires with another person with the intention
of dishonestly obtaining a gain from a third person; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is not
necessary to prove that the defendant knew that the third person
was a Commonwealth entity.
Causing a loss
(3) A person commits an offence if:
(a) the person conspires with another person with the intention
of dishonestly causing a loss to a third person; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
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(4) In a prosecution for an offence against subsection (3), it is not
necessary to prove that the defendant knew that the third person
was a Commonwealth entity.
(5) A person commits an offence if:
(a) the person conspires with another person to dishonestly cause
a loss, or to dishonestly cause a risk of loss, to a third person;
and
(b) the first-mentioned person knows or believes that the loss
will occur or that there is a substantial risk of the loss
occurring; and
(c) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is not
necessary to prove that the defendant knew that the third person
was a Commonwealth entity.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person conspires with another person with the intention
of dishonestly influencing a public official in the exercise of
the official’s duties as a public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is not
necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public
official.
General provisions
(9) For a person to be guilty of an offence against this section:
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(a) the person must have entered into an agreement with one or
more other persons; and
(b) the person and at least one other party to the agreement must
have intended to do the thing pursuant to the agreement; and
(c) the person or at least one other party to the agreement must
have committed an overt act pursuant to the agreement.
(10) A person may be found guilty of an offence against this section
even if:
(a) obtaining the gain, causing the loss, causing the risk of loss,
or influencing the Commonwealth public official, as the case
may be, is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is a person who is not
criminally responsible; or
(d) subject to subsection (11), all other parties to the agreement
have been acquitted of the offence.
(11) A person cannot be found guilty of an offence against this section
if:
(a) all other parties to the agreement have been acquitted of such
an offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
(12) A person cannot be found guilty of an offence against this section
if, before the commission of an overt act pursuant to the
agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the doing of the thing.
(13) A court may dismiss a charge of an offence against this section if
the court thinks that the interests of justice require the court to do
so.
(14) Proceedings for an offence against this section must not be
commenced without the consent of the Director of Public
Prosecutions. However, before the necessary consent has been
given, a person may be:
(a) arrested for an offence against this section; or
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(b) charged with an offence against this section; or
(c) remanded in custody or released on bail in connection with
an offence against this section.
135.5 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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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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Section 136.1
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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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(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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Division 137 False or misleading information or documents
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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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”.
137.2 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).
(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
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Division 137 False or misleading information or documents
Section 137.3
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(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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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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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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Unwarranted demands Division 139
Section 139.1
Criminal Code Act 1995 363
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Division 139—Unwarranted demands
139.1 Unwarranted demands of a Commonwealth public official
A person commits an offence if:
(a) the person makes an unwarranted demand with menaces of
another person; and
(b) the demand or the menaces are directly or indirectly related
to:
(i) the other person’s capacity as a Commonwealth public
official; or
(ii) any influence the other person has in the other person’s
capacity as a Commonwealth public official; and
(c) the first-mentioned person does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the official in the exercise of the official’s
duties as a Commonwealth public official.
Penalty: Imprisonment for 12 years.
139.2 Unwarranted demands made by a Commonwealth public
official
A Commonwealth public official commits an offence if:
(a) the official makes an unwarranted demand with menaces of
another person; and
(b) the demand or the menaces are directly or indirectly related
to:
(i) the official’s capacity as a Commonwealth public
official; or
(ii) any influence the official has in the official’s capacity as
a Commonwealth public official; and
(c) the official does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
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(iii) influencing another Commonwealth public official in
the exercise of the other official’s duties as a
Commonwealth public official.
Penalty: Imprisonment for 12 years.
139.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction—category C)
applies to each offence against this Division.
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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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Division 141 Bribery
Section 141.1
366 Criminal Code Act 1995
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Division 141—Bribery
141.1 Bribery of a Commonwealth public official
Giving a bribe
(1) A person commits an offence if:
(a) the person dishonestly:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to
another person; or
(iv) causes an offer of the provision of a benefit, or a
promise of the provision of a benefit, to be made to
another person; and
(b) the person does so with the intention of influencing a public
official (who may be the other person) in the exercise of the
official’s duties as a public official; and
(c) the public official is a Commonwealth public official; and
(d) the duties are duties as a Commonwealth public official.
(2) In a prosecution for an offence against subsection (1), it is not
necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public
official.
Receiving a bribe
(3) A Commonwealth public official commits an offence if:
(a) the official dishonestly:
(i) asks for a benefit for himself, herself or another person;
or
(ii) receives or obtains a benefit for himself, herself or
another person; or
(iii) agrees to receive or obtain a benefit for himself, herself
or another person; and
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(b) the official does so with the intention:
(i) that the exercise of the official’s duties as a
Commonwealth public official will be influenced; or
(ii) of inducing, fostering or sustaining a belief that the
exercise of the official’s duties as a Commonwealth
public official will be influenced.
Geographical jurisdiction
(4) Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against subsection (1) or (3).
Penalty for individual
(5) An offence against subsection (1) or (3) committed by an
individual is punishable on conviction by imprisonment for not
more than 10 years, a fine not more than 10,000 penalty units, or
both.
Penalty for body corporate
(6) An offence against subsection (1) or (3) committed by a body
corporate is punishable on conviction by a fine not more than the
greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the
body corporate, and any body corporate related to the body
corporate, have obtained directly or indirectly and that is
reasonably attributable to the conduct constituting the
offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.
(7) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
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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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Section 142.1
Criminal Code Act 1995 369
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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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(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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(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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Part 7.7 Forgery and related offences
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Section 143.1
372 Criminal Code Act 1995
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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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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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Part 7.7 Forgery and related offences
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Section 143.3
374 Criminal Code Act 1995
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(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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(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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Division 144 Forgery
Section 144.1
376 Criminal Code Act 1995
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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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(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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Section 145.1
378 Criminal Code Act 1995
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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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(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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(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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Section 145.3
Criminal Code Act 1995 381
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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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Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.3
382 Criminal Code Act 1995
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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 383
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145.4 Falsification of documents etc.
(1) A person commits an offence if:
(a) the person dishonestly damages, destroys, alters, conceals or
falsifies a document; and
(b) the document is:
(i) kept, retained or issued for the purposes of a law of the
Commonwealth; or
(ii) made by a Commonwealth entity or a person in the
capacity of a Commonwealth public official; or
(iii) held by a Commonwealth entity or a person in the
capacity of a Commonwealth public official; and
(c) the first-mentioned person does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss.
Penalty: Imprisonment for 7 years.
(1A) Absolute liability applies to the paragraph (1)(b) element of the
offence.
(2) A person commits an offence if:
(a) the person dishonestly damages, destroys, alters, conceals or
falsifies a document; and
(b) the person does so with the intention of:
(i) obtaining a gain from another person; or
(ii) causing a loss to another person; and
(c) the other person is a Commonwealth entity.
Penalty: Imprisonment for 7 years.
(3) In a prosecution for an offence against subsection (2), it is not
necessary to prove that the defendant knew that the other person
was a Commonwealth entity.
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Part 7.7 Forgery and related offences
Division 145 Offences relating to forgery
Section 145.5
384 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 385
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(3) In a prosecution for an offence against subsection (2), it is not
necessary to prove that the defendant knew that the other person
was a Commonwealth entity.
145.6 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D)
applies to each offence against this Division.
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Part 7.8 Causing harm to, and impersonation and obstruction of, Commonwealth
public officials
Division 146 Preliminary
Section 146.1
386 Criminal Code Act 1995
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Part 7.8—Causing harm to, and impersonation and
obstruction of, Commonwealth public officials
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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Part 7.8
Preliminary Division 146
Section 146.2
Criminal Code Act 1995 387
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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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public officials
Division 147 Causing harm to Commonwealth public officials
Section 147.1
388 Criminal Code Act 1995
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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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Part 7.8
Causing harm to Commonwealth public officials Division 147
Section 147.1
Criminal Code Act 1995 389
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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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Part 7.8 Causing harm to, and impersonation and obstruction of, Commonwealth
public officials
Division 147 Causing harm to Commonwealth public officials
Section 147.2
390 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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Part 7.8
Causing harm to Commonwealth public officials Division 147
Section 147.2
Criminal Code Act 1995 391
Compilation No. 113 Compilation date: 1/7/17 Registered: 17/7/17
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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Division 147 Causing harm to Commonwealth public officials
Section 147.3
392 Criminal Code Act 1995
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(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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Part 7.8
Impersonation of Commonwealth public officials Division 148
Section 148.1
Criminal Code Act 1995 393
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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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Part 7.8 Causing harm to, and impersonation and obstruction of, Commonwealth
public officials
Division 148 Impersonation of Commonwealth public officials
Section 148.2
394 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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Part 7.8
Impersonation of Commonwealth public officials Division 148
Section 148.3
Criminal Code Act 1995 395
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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, and impersonation and obstruction of, Commonwealth
public officials
Division 149 Obstruction of Commonwealth public officials
Section 149.1
396 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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Section 149.1
Criminal Code Act 1995 397
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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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Chapter 7 The proper administration of Government
Part 7.20 Miscellaneous
Division 261 Miscellaneous
Section 261.1
398 Criminal Code Act 1995
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Part 7.20—Miscellaneous
Division 261—Miscellaneous
261.1 Saving of other laws
This Chapter is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or
Territory.
261.2 Contempt of court
This Chapter does not limit the power of a court to punish a
contempt of the court.
261.3 Ancillary offences
To avoid doubt, subsection 11.6(2) does not apply to the following
provisions:
(a) subsection 131.1(2) (theft);
(b) subsection 132.1(2) (receiving);
(c) subsection 132.2(2) (robbery);
(d) subsection 132.3(2) (aggravated robbery);
(e) subsections 132.4(2), (5) and (9) (burglary);
(f) subsection 132.5(2) (aggravated burglary);
(g) the definitions of aggravated burglary, aggravated robbery,
burglary, receiving, robbery and theft in the Dictionary.
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