Criminal Code Act 1995
SECTION 1
1
Short title
This Act may be cited as the Criminal Code Act 1995. SECTION 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.
SECTION 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.
SECTION 3A 3A External Territories
The Criminal Code extends to every external Territory. SECTION 3B 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. SECTION 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.
(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.
SECTION 5 Regulations (1)
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
For the purposes of the Legislation Act 2003, the Minister administering the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of the following provisions of the Criminal Code:
(a) Division 71 (offences against United Nations and associated personnel);
(b) Division 72 (explosives and lethal devices);
(c) Division 73 (people smuggling and related offences);
(d) Part 5.1 (treason and related offences);
(e) Part 5.2 (espionage and related offences);
(f) Part 5.3 (terrorism), other than Division 100 (preliminary provisions);
(g) Part 5.4 (harming Australians);
(h) Part 5.5 (foreign incursions and recruitment);
(i) Division 270 (slavery and slavery-like conditions);
(j) Division 271 (trafficking in persons and debt b@ndage);
(k) Division 272 (child sex offences outside Australia);
(l) Division 273 (offences involving child abuse material outside Australia);
(la) Division 273A (possession of child-like sex dolls etc.);
(lb) Division 273B (protection of children);
(m) Chapter 9 (dangers to the community);
(n) Chapter 10 (national infrastructure).
(3)
Subsection (2) applies despite subsection 6(1) of the Legislation Act 2003.
Schedule - The Criminal Code
The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
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. SECTION 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.
SECTION 2.3 2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For the purpose of interpreting those provisions in connection with an offence, the other provisions of this Chapter may be considered, whether or not those other provisions apply to the offence concerned. Part 2.2 - The elements of an offence Division 3 - General SECTION 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.
SECTION 3.2 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.
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:
(a) do an act; or
(b) omit to perform an act.
SECTION 4.2 Voluntariness (1)
Conduct can only be a physical element if it is voluntary.
(2)
Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3)
The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4)
An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5)
If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6)
Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
(7)
Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
SECTION 4.3 4.3 Omissions
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
Division 5 - Fault elements
SECTION 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.
SECTION 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.
SECTION 5.3 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. SECTION 5.4 Recklessness (1)
A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)
A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)
The question whether taking a risk is unjustifiable is one of fact.
(4)
If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
SECTION 5.5 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;
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.
Division 6 - Cases where fault elements are not required SECTION 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.
SECTION 6.2 Absolute liability (1)
If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2)
If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)
The existence of absolute liability does not make any other defence unavailable.
Part 2.3 - Circumstances in which there is no criminal responsibility
A child under 10 years old is not criminally responsible for an offence. SECTION 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.
SECTION 7.3 Mental impairment (1)
A person is notcriminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2)
The question whether the person was suffering from a mental impairment is one of fact.
(3)
A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4)
The prosecution can only rely on this section if the court gives leave.
(5)
The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6)
A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7)
If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8)
In this Code:
(9)
The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Division 8 - Intoxication SECTION 8.1 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. SECTION 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.
(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.
SECTION 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.
SECTION 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;
(5)
A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
SECTION 8.5 8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the person's conduct constituting the offence was as a result of intoxication that was not self-induced. Division 9 - Circumstances involving mistake or ignorance SECTION 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.
SECTION 9.2 Mistake of fact (strict liability) (1)
A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2)
A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
SECTION 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.
SECTION 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
(b) (Repealed by No 127 of 2004)
(c) at the time of the conduct, the subordinate legislation:
(3)
In this section:
SECTION 9.5 Claim of right (1)
A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2)
A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3)
This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Division 10 - Circumstances involving external factors SECTION 10.1 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. SECTION 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.
SECTION 10.3 Sudden or extraordinary emergency (1)
A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2)
This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
SECTION 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;
(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.
SECTION 10.5 10.5 Lawful authority
A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law. Part 2.4 - Extensions of criminal responsibility Division 11 SECTION 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.
(3A)
Subsection (3) has effect subject to subsection (6A).
(4)
A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5)
A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A)
Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7)
It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
SECTION 11.2 Complicity and common purpose (1)
A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)
For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3)
For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)
Subsection (3) has effect subject to subsection (6).
(4)
A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5)
A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6)
Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7)
If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
SECTION 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:
Offence committed in accordance with the agreement
(2)
An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence ) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct - that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3)
An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence ) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)
For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non-verbal etc
(5)
The agreement:
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc
(6)
A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc
(7)
A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8)
Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
SECTION 11.3
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;
A person who urges the commission of an offence commits the offence of incitement.
(2)
For the person to be guilty, the person must intend that the offence incited be committed.
(2A)
Subsection (2) has effect subject to subsection (4A).
(3)
A person may be found guilty even if committing the offence incited is impossible.
(4)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A)
Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5)
It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).(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.
SECTION 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.
(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:
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4)
A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5)
A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6)
A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A)
Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8)
Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
SECTION 11.6 References in Acts to offences (1)
A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2)
A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3)
Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4)
In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first-mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
Part 2.5 - Corporate criminal responsibility Division 12 SECTION 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.
SECTION 12.2 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. SECTION 12.3 Fault elements other than negligence (1)
If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
(2)
The means by which such an authorisation or permission may be established include:
(a) proving that the body corporate's board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
(3)
Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
(4)
Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
(5)
If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
(6)
In this section:
SECTION 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;
(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.
SECTION 12.5 Mistake of fact (strict liability) (1)
A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent the conduct.
(2)
A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
SECTION 12.6 12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate. Part 2.6 - Proof of criminal responsibility Division 13 SECTION 13.1 Legal burden of proof - prosecution (1)
The prosecution bears a legal burden ofproving every element of an offence relevant to the guilt of the person charged.
(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:
SECTION 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.
SECTION 13.3 Evidential burden of proof - defence (1)
Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2)
A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3)
A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4)
The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5)
The question whether an evidential burden has been discharged is one of law.
(6)
In this Code:
SECTION 13.4 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. SECTION 13.5 13.5 Standard of proof - defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities. SECTION 13.6 13.6 Use of averments
A law that allows the prosecution to make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment. Part 2.7 - Geographical jurisdiction Division 14 - Standard geographical jurisdiction SECTION 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:
(b) if a law of the Commonwealth provides that this section applies to a particular offence - this section applies to that offence.
(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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) all of the following conditions are satisfied:
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:
(4)
For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.
Defence - ancillary offence
(5)
If this section applies to a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(6)
For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.
Division 15 - Extended geographical jurisdiction SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(d) all of the following conditions are satisfied:
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:
(c) there is not in force in:
(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:
(e) there is not in force in:
(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.
SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(d) all of the following conditions are satisfied:
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:
(c) there is not in force in:
(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:
(e) there is not in force in:
(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.
SECTION 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.
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:
(c) there is not in force in:
(3)
For the purposes of the application of subsection 13.3(3) toan 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:
(e) there is not in force in:
(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.
SECTION 15.4 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.
Division 16 - Miscellaneous
SECTION 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:
(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.
SECTION 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;
Sending electronic communications
(2)
For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
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.
SECTION 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 .
SECTION 16.4 16.4 Result of conduct
A reference in this Part to a result of conduct constituting an offence is a reference to a result that is a physical element of the offence (within the meaning of subsection 4.1(1)). CHAPTER 4 - THE INTEGRITY AND SECURITY OF THE INTERNATIONAL COMMUNITY AND FOREIGN GOVERNMENTS Division 70 - Bribery of foreign public officials Subdivision A - Definitions
SECTION 70.1
70.1
Definitions
In this Division:
(a) is an officer, employee, agent or contractor of the other person; or
(b) is a subsidiary (within the meaning of the Corporations Act 2001) of the other person; or
(c) is controlled (within the meaning of the Corporations Act 2001) by the other person; or
(d) otherwise performs services for or on behalf of the other person.
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
(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.
(a) in the case of a company - one of the following applies:
(b) in the case of any other body or association - either of the following applies:
(c) the company, body or association:
(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 performsthe 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:
(m) an individual standing, or nominated, (whether formally or informally) as a candidate to be a foreign public official covered by any of paragraphs (a) to (k) of this definition.
(a) an organisation:
(b) an organisation established by, or a group of organisations constituted by:
(c) an organisation that is:
SECTION 70.2
Bribing a foreign public official
(1)
A person commits an offence if: (a) the person:
(2)
For the purposes of paragraph (1)(b): (a) the first-mentioned person does not need to intend to influence a particular foreign public official; and (b) the first-mentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and (c) business, or a business or personal advantage, does not need to be actually obtained or retained.
Penalty for individual
(3)
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
(4)
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 body corporate committed, or began committing, the offence.
SECTION 70.2A
Improper influence
Determination to be a matter for the trier of fact
(1)
In a prosecution for an offence against section 70.2, the determination of whether influence is improper is a matter for the trier of fact.
Matters that must be disregarded
(2)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact must disregard the following: (a) the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation; (b) any official tolerance of the benefit; (c) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
Matters to which regard may be had
(3)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact may have regard to the following: (a) the recipient or intended recipient of the benefit; (b) the nature of the benefit; (c) the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit); (d) whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit; (e) if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so - that fact; (f) whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly; (g) whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented; (h) if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:
(4)
To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.
SECTION 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:
(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:
(2A)
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 (the relevant foreign public official ); and (b) the relevant foreign public official is covered by paragraph (m) of the definition of foreign public official in section 70.1 because the relevant foreign public official is a candidate to be a particular foreign public official (the substantive foreign public official ); and (c) assuming that the first-mentioned person's conduct had occurred wholly in the place, the foreign country or the part of the foreign country, as the case may be, (the relevant place ) referred to in the item of the table in subsection (1) that would be applicable if the first-mentioned person's conduct had occurred in relation to the substantive foreign public official, a written law in force in the relevant place permits the provision of the benefit to the relevant foreign public official.
(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;
SECTION 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:
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:
(c) does not involve a decision about:
(d) does not involve encouraging a decision about:
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.
SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(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:
(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.
Subdivision C - Failure to prevent bribery of foreign public officials
SECTION 70.5A
Failing to prevent bribery of a foreign public official
Offence
(1)
A person (the first person ) commits an offence if: (a) the first person is a body corporate:
(2)
Absolute liability applies to: (a) paragraphs (1)(a) and (c); and (b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and (c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.
(3)
To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.
(4)
Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.
Exception
(5)
Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent: (a) the commission of an offence against section 70.2 by any associate of the first person; and (b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.
Penalty
(6)
An offence against subsection (1) 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 associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2 - 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 first person during the period (the turnover period ) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.
Geographical jurisdiction
(7)
Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against subsection (1).
Indictable offence
(8)
An offence against subsection (1) is an indictable offence.
SECTION 70.5B
Guidance on preventing bribery of foreign public officials
(1)
The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
(2)
Guidance under subsection (1) is not a legislative instrument.
Subdivision D - Miscellaneous
SECTION 70.5C
Meaning of annual turnover
(1)
For the purposes of this Division, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; (b) supplies that are input taxed; (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); (d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(2)
Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.
SECTION 70.5D
70.5D
Related bodies corporate
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.
SECTION 70.6
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. Division 71 - Offences against United Nations and associated personnel SECTION 71.1 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. SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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
(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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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
(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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
(3)
In this section:
(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.
SECTION 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:
(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.
SECTION 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 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
(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).
(2)
Strict liability applies to paragraphs (1)(b), (d) and (e).
SECTION 71.12 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.(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person) - imprisonment for 10 years; or
(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person) - imprisonment for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person) - imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person) - imprisonment for 3 years.
SECTION 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:
(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.
SECTION 71.14 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:
(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.
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.
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(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.
(2)
(Repealed by No 136 of 2012)
SECTION 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;
SECTION 71.18 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. SECTION 71.19 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. SECTION 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.
SECTION 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.
SECTION 71.22 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 Convention, is taken not to be a matter arising directly under a treaty. SECTION 71.23 Definitions (1)
In this Division:
(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;
(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and
(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and
(c) to which the law of international armed conflict applies.
(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.
(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.
Division 72 - Explosives and lethal devices
Subdivision A - International terrorist activities using explosive or lethal devices
SECTION 72.1
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.
SECTION 72.2
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.
SECTION 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:
(d) the person intends to cause death or serious harm.
(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:
(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.
(3)
Strict liability applies to paragraphs (1)(c) and (2)(c).
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:
(b) at the time of the alleged offence, the person is an Australian citizen;
(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;
(f) the alleged offence is committed against:
(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.
SECTION 72.5 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.
SECTION 72.6
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.
SECTION 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.
SECTION 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.
(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.
SECTION 72.9 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.
SECTION 72.10
72.10
Definitions
In this Subdivision:
Subdivision B - Plastic explosives
SECTION 72.11
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.
SECTION 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.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 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.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 72.14
Manufacturing unmarked plastic explosives etc.
(1)
A person commits an offence if:
(a) the person:
(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.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 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.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 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;
(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;
(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.
SECTION 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:
(2)
The fault element for paragraphs (1)(b) and (c) is recklessness.
SECTION 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;
(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:
(b) both:
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3)
An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
(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.
SECTION 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;
(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:
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;
(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.
SECTION 72.20
72.20
Authorisation for existing stocks - 3 year limit
(Repealed by No 31 of 2014)
SECTION 72.21
72.21
Authorisation of manufacturers - 6 month transitional period
(Repealed by No 31 of 2014)
SECTION 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:
(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.
SECTION 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:
(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.
SECTION 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;
(2)
A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3)
A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4)
Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
SECTION 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).
SECTION 72.26
72.27
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.
SECTION 72.27
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.
SECTION 72.28
DELEGATION BY AFP MINISTER
(1)
The AFP Minister may, by writing, delegate to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee, or an acting SES employee, in that Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
(2)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the AFP Minister.
SECTION 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
(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;
(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 ofthe 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.
SECTION 72.30
Review by Administrative Review Tribunal of authorisation decisions
(1)
An application may be made to the Administrative Review 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 Review 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.
SECTION 72.31
72.31
Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Subdivision.
SECTION 72.32
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.
SECTION 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.
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.
SECTION 72.34
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.
SECTION 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;
SECTION 72.36
72.36
Definitions
In this Subdivision:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(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.
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
(a) formulated with:
(b) as a mixture, malleable or flexible at normal room temperature.
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
(a) the AFP Minister; or
(b) the Minister for Defence.
(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.
Subdivision C - Cluster munitions and explosive bomblets
SECTION 72.37
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.
SECTION 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.
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:
(b) the other person does the act; and
(c) the first person intends that the act be done.
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).
SECTION 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).
(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.
(3)
The regulations may prescribe requirements relating to authorisations under subsection (2).
(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.
SECTION 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.
Intended transfer to Australian Defence Force
(2)
Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3)
Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4)
Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
SECTION 72.41
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:
(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.
SECTION 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:
(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:
(2)
This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
SECTION 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).
(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.
SECTION 72.44
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.
SECTION 72.45
72.45
Definitions
In this Subdivision:
(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.
This Act may be cited as the Criminal Code Act 1995. SECTION 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.
SECTION 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.
SECTION 3A 3A External Territories
The Criminal Code extends to every external Territory. SECTION 3B 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. SECTION 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.
(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.
SECTION 5 Regulations (1)
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
View history note
Hide history note(2)
For the purposes of the Legislation Act 2003, the Minister administering the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of the following provisions of the Criminal Code:
(a) Division 71 (offences against United Nations and associated personnel);
(b) Division 72 (explosives and lethal devices);
(c) Division 73 (people smuggling and related offences);
(d) Part 5.1 (treason and related offences);
(e) Part 5.2 (espionage and related offences);
(f) Part 5.3 (terrorism), other than Division 100 (preliminary provisions);
(g) Part 5.4 (harming Australians);
(h) Part 5.5 (foreign incursions and recruitment);
(i) Division 270 (slavery and slavery-like conditions);
(j) Division 271 (trafficking in persons and debt b@ndage);
(k) Division 272 (child sex offences outside Australia);
(l) Division 273 (offences involving child abuse material outside Australia);
(la) Division 273A (possession of child-like sex dolls etc.);
(lb) Division 273B (protection of children);
(m) Chapter 9 (dangers to the community);
(n) Chapter 10 (national infrastructure).
(3)
Subsection (2) applies despite subsection 6(1) of the Legislation Act 2003.
Schedule - The Criminal Code
Section 3
CHAPTER 1 - CODIFICATION Division 1 SECTION 1.1 1.1 CodificationThe only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
Note:
Under subsection 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.
CHAPTER 2 - GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY Part 2.1 - Purpose and application Division 2 SECTION 2.1 2.1 PurposeThe 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. SECTION 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.
SECTION 2.3 2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For the purpose of interpreting those provisions in connection with an offence, the other provisions of this Chapter may be considered, whether or not those other provisions apply to the offence concerned. Part 2.2 - The elements of an offence Division 3 - General SECTION 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.
SECTION 3.2 3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
Note 1:
See Part 2.6 on proof of criminal responsibility.
Note 2:
See Part 2.7 on geographical jurisdiction.
Division 4 - Physical elements SECTION 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.
(a) do an act; or
(b) omit to perform an act.
SECTION 4.2 Voluntariness (1)
Conduct can only be a physical element if it is voluntary.
(2)
Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3)
The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4)
An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5)
If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6)
Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
(7)
Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
SECTION 4.3 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.
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.
SECTION 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.
SECTION 5.3 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. SECTION 5.4 Recklessness (1)
A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)
A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)
The question whether taking a risk is unjustifiable is one of fact.
(4)
If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
SECTION 5.5 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.
SECTION 5.6 Offences that do not specify fault elements (1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)
If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note:
Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
Division 6 - Cases where fault elements are not required SECTION 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.
SECTION 6.2 Absolute liability (1)
If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2)
If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)
The existence of absolute liability does not make any other defence unavailable.
Part 2.3 - Circumstances in which there is no criminal responsibility
Note:
This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.
Division 7 - Circumstances involving lack of capacity SECTION 7.1 7.1 Children under 10A child under 10 years old is not criminally responsible for an offence. SECTION 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.
SECTION 7.3 Mental impairment (1)
A person is notcriminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2)
The question whether the person was suffering from a mental impairment is one of fact.
(3)
A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4)
The prosecution can only rely on this section if the court gives leave.
(5)
The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6)
A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7)
If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8)
In this Code:
mental impairment
includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9)
The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Division 8 - Intoxication SECTION 8.1 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. SECTION 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.
SECTION 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.
SECTION 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.
SECTION 8.5 8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the person's conduct constituting the offence was as a result of intoxication that was not self-induced. Division 9 - Circumstances involving mistake or ignorance SECTION 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.
SECTION 9.2 Mistake of fact (strict liability) (1)
A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2)
A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note:
Section 6.2 prevents this section applying in situations of absolute liability.
SECTION 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.
SECTION 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
(b) (Repealed by No 127 of 2004)
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3)
In this section:
available
includes available by sale.
subordinate legislation
means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.
SECTION 9.5 Claim of right (1)
A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2)
A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3)
This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Division 10 - Circumstances involving external factors SECTION 10.1 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. SECTION 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.
SECTION 10.3 Sudden or extraordinary emergency (1)
A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2)
This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
SECTION 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.
SECTION 10.5 10.5 Lawful authority
A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law. Part 2.4 - Extensions of criminal responsibility Division 11 SECTION 11.1 Attempt (1)
A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)
For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)
For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note:
Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A)
Subsection (3) has effect subject to subsection (6A).
(4)
A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5)
A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A)
Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7)
It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
SECTION 11.2 Complicity and common purpose (1)
A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)
For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3)
For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)
Subsection (3) has effect subject to subsection (6).
(4)
A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5)
A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6)
Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7)
If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.
SECTION 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
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
Offence committed in accordance with the agreement
(2)
An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence ) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct - that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3)
An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence ) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)
For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non-verbal etc
(5)
The agreement:
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc
(6)
A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc
(7)
A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8)
Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
A 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.
SECTION 11.4 Incitement (1)A person who urges the commission of an offence commits the offence of incitement.
(2)
For the person to be guilty, the person must intend that the offence incited be committed.
(2A)
Subsection (2) has effect subject to subsection (4A).
(3)
A person may be found guilty even if committing the offence incited is impossible.
(4)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A)
Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5)
It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
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.
SECTION 11.5 Conspiracy (1)
A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Note:
Penalty units are defined in section 4AA of the Crimes Act 1914.
(2)
For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A)
Subsection (2) has effect subject to subsection (7A).
(3)
A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4)
A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5)
A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6)
A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7)
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A)
Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8)
Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
SECTION 11.6 References in Acts to offences (1)
A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2)
A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3)
Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4)
In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first-mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first-mentioned law is impliedly to the contrary effect.
Note:
Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section.
Part 2.5 - Corporate criminal responsibility Division 12 SECTION 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.
SECTION 12.2 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. SECTION 12.3 Fault elements other than negligence (1)
If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
(2)
The means by which such an authorisation or permission may be established include:
(a) proving that the body corporate's board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
(3)
Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
(4)
Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
(5)
If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
(6)
In this section:
board of directors
means the body (by whatever name called) exercising the executive authority of the body corporate.
corporate culture
means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.
high managerial agent
means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy.
SECTION 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.
SECTION 12.5 Mistake of fact (strict liability) (1)
A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent the conduct.
(2)
A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
SECTION 12.6 12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate. Part 2.6 - Proof of criminal responsibility Division 13 SECTION 13.1 Legal burden of proof - prosecution (1)
The prosecution bears a legal burden ofproving 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.
SECTION 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.
SECTION 13.3 Evidential burden of proof - defence (1)
Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2)
A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3)
A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4)
The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5)
The question whether an evidential burden has been discharged is one of law.
(6)
In this Code:
evidential burden
, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
SECTION 13.4 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. SECTION 13.5 13.5 Standard of proof - defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities. SECTION 13.6 13.6 Use of averments
A law that allows the prosecution to make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment. Part 2.7 - Geographical jurisdiction Division 14 - Standard geographical jurisdiction SECTION 14.1 Standard geographical jurisdiction (1)
This section may apply to a particular offence in either of the following ways:
(a) unless the contrary intention appears, this section applies to the following offences:
(i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;
(ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth provides that this section applies to a particular offence - this section applies to that offence.
Note:
In the case of paragraph (b), the expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
(2)
If this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defence - primary offence
(3)
If this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).
(4)
For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.
Defence - ancillary offence
(5)
If this section applies to a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
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.
(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;
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).
(6)
For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.
Division 15 - Extended geographical jurisdiction SECTION 15.1 Extended geographical jurisdiction - category A (1)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note:
The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence - primary offence
(2)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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
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.
(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;
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.
SECTION 15.2 Extended geographical jurisdiction - category B (1)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note:
The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence - primary offence
(2)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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
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.
(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;
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.
SECTION 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
a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the first-mentioned offence.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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) toan 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
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.
(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;
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.
SECTION 15.4 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).
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.
SECTION 16.2 When conduct taken to occur partly in Australia
Sending things
(1)
For the purposes of this Part, if a person sends a thing, or causes a thing to be sent:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2)
For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3)
For the purposes of this section, point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.
SECTION 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 .
SECTION 16.4 16.4 Result of conduct
A reference in this Part to a result of conduct constituting an offence is a reference to a result that is a physical element of the offence (within the meaning of subsection 4.1(1)). CHAPTER 4 - THE INTEGRITY AND SECURITY OF THE INTERNATIONAL COMMUNITY AND FOREIGN GOVERNMENTS Division 70 - Bribery of foreign public officials Subdivision A - Definitions
In this Division:
advantage
means an advantage of any kind and is not limited to property.
annual turnover
has the meaning given by section 70.5C.
associate
: a person is an
associate
of another person if the first-mentioned person:
(a) is an officer, employee, agent or contractor of the other person; or
(b) is a subsidiary (within the meaning of the Corporations Act 2001) of the other person; or
(c) is controlled (within the meaning of the Corporations Act 2001) by the other person; or
(d) otherwise performs services for or on behalf of the other person.
benefit
(Repealed by No 5 of 2024)
business advantage
(Repealed by No 5 of 2024)
control
, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
duty
, in relation to a foreign public official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government
body means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country; or
(d) a foreign local government body or foreign regional government body; or
(e) a foreign public enterprise.
foreign public enterprise
means a company or any other body or association where:
(a) in the case of a company - one of the following applies:
(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;
(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;
(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company's board of directors;
(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and
(b) in the case of any other body or association - either of the following applies:
(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or
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.
(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;
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 performsthe duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or
(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or
(g) an employee of a public international organisation; or
(h) an individual who performs work for a public international organisation under a contract; or
(i) an individual who holds or performs the duties of an office or position in a public international organisation; or
(j) an individual who is otherwise in the service of a public international organisation; or
(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(m) an individual standing, or nominated, (whether formally or informally) as a candidate to be a foreign public official covered by any of paragraphs (a) to (k) of this definition.
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
Subdivision B - Bribery of foreign public officials
(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.
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
(b) the first-mentioned person does so with the intention of improperly influencing a foreign public official (who may be the other person) in order to obtain or retain business or a business or personal advantage (whether or not for the first-mentioned person).
(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
Note:
See also section 70.2A. For defences, see sections 70.3 and 70.4.
(2)
For the purposes of paragraph (1)(b): (a) the first-mentioned person does not need to intend to influence a particular foreign public official; and (b) the first-mentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and (c) business, or a business or personal advantage, does not need to be actually obtained or retained.
Penalty for individual
(3)
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
(4)
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 body corporate committed, or began committing, the offence.
Determination to be a matter for the trier of fact
(1)
In a prosecution for an offence against section 70.2, the determination of whether influence is improper is a matter for the trier of fact.
Matters that must be disregarded
(2)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact must disregard the following: (a) the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation; (b) any official tolerance of the benefit; (c) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
(i) if the value of the business or advantage is insignificant - that fact;
(ii) in the case of an advantage - any official tolerance of the advantage;
(iii) in the case of an advantage - the fact that the advantage may be customary, or perceived to be customary, in the situation.
Matters to which regard may be had
(3)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact may have regard to the following: (a) the recipient or intended recipient of the benefit; (b) the nature of the benefit; (c) the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit); (d) whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit; (e) if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so - that fact; (f) whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly; (g) whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented; (h) if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:
(i) the accuracy of the record or documentation; and
(i) whether there is evidence that due diligence was exercised by the first-mentioned person in section 70.2 in relation to the benefit, or the offer or promise to provide the benefit; (j) whether any of the following conduct is contrary to a written law in force in the place where that conduct occurs:
(ii) whether the record or documentation is consistent with the ordinary practices of the person who made the record or documentation;
(i) the provision of the benefit, or the offer or promise to provide the benefit;
(ii) the acceptance of the benefit;
(k) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
(iii) any conduct directly connected with conduct referred to in subparagraph (i) or (ii);
(i) whether the business or advantage was awarded on a competitive or non-commercial basis;
(ii) whether there is any demonstrable conflict of interest in the provision of the business or advantage.
(4)
To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.
A person does not commit an offence against section 70.2 in the cases set out in the following table:
| Defence of lawful conduct | |||
| Item | In a case where the person's conduct occurred in relation to this kind of foreign public official... | and if it were assumed that the person's conduct had occurred wholly... | this written law requires or permits the provision of the benefit... |
| 1 | an employee or official of a foreign government body | in the place where the central administration of the body is located | a written law in force in that place |
| 2 | an individual who performs work for a foreign government body under a contract | in the place where the central administration of the body is located | a written law in force in that place |
| 3 | an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 4 | an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 5 | an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force) | in the place where the central administration of the body is located | a written law in force in that place |
| 6 | a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 7 | an employee of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 8 | an individual who performs work for a public international organisation under a contract | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 9 | an individual who holds or performs the duties of a public office or position in a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 10 | an individual who is otherwise in the service of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 11 | a member or officer of the legislature of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2)
A person does not commit an offence against section 70.2 if:
(a) the person's conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and
(b) assuming that the first-mentioned person's conduct had occurred instead in relation to:
(i) the other foreign public official of whom the first-mentioned foreign public official was an authorised intermediary; or
subsection (1) would have applied in relation to the first-mentioned person.
(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;
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(2A)
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 (the relevant foreign public official ); and (b) the relevant foreign public official is covered by paragraph (m) of the definition of foreign public official in section 70.1 because the relevant foreign public official is a candidate to be a particular foreign public official (the substantive foreign public official ); and (c) assuming that the first-mentioned person's conduct had occurred wholly in the place, the foreign country or the part of the foreign country, as the case may be, (the relevant place ) referred to in the item of the table in subsection (1) that would be applicable if the first-mentioned person's conduct had occurred in relation to the substantive foreign public official, a written law in force in the relevant place permits the provision of the benefit to the relevant foreign public official.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2A). 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.
SECTION 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 against the bringing about of that loss or that destruction;
(iii) a prosecution for the offence is instituted more than 7 years after the conduct occurred.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2)
For the purposes of this section, a routine government action is an action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs:
(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;
(ii) processing government papers such as a visa or work permit;
(iii) providing police protection or mail collection or delivery;
(iv) scheduling inspections associated with contract performance or related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of records
(3)
A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a) - the identity of that other person; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person's signature or some other means of verifying the person's identity.
SECTION 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).
(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.
Subdivision C - Failure to prevent bribery of foreign public officials
Offence
(1)
A person (the first person ) commits an offence if: (a) the first person is a body corporate:
(i) that is a constitutional corporation; or
(ii) that is incorporated in a Territory; or
(b) an associate of the first person:
(iii) that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; and
(i) commits an offence against section 70.2; or
(c) the associate does so for the profit or gain of the first person.
(ii) engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence (the notional offence ) against section 70.2; and
(2)
Absolute liability applies to: (a) paragraphs (1)(a) and (c); and (b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and (c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.
(3)
To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.
(4)
Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.
Exception
(5)
Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent: (a) the commission of an offence against section 70.2 by any associate of the first person; and (b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.
Note:
A defendant bears a legal burden in relation to the matter in subsection (5): see section 13.4.
Penalty
(6)
An offence against subsection (1) 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 associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2 - 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 first person during the period (the turnover period ) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.
Geographical jurisdiction
(7)
Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against subsection (1).
Indictable offence
(8)
An offence against subsection (1) is an indictable offence.
The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
(2)
Guidance under subsection (1) is not a legislative instrument.
For the purposes of this Division, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; (b) supplies that are input taxed; (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); (d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(2)
Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.
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. Division 71 - Offences against United Nations and associated personnel SECTION 71.1 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. SECTION 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).
SECTION 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.
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).
SECTION 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).
SECTION 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
(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).
SECTION 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).
SECTION 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
(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).
SECTION 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).
(3)
In this section:
(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.
SECTION 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.
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.
SECTION 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).
SECTION 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
(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).
SECTION 71.12 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:
Note:
Section 71.23 defines UN or associated person .
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:
(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.
torture
(Repealed by No 37 of 2010)
SECTION 71.14 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:
(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).
SECTION 71.15 71.5 Defence - medical or hygienic proceduresA 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).
SECTION 71.16 71.16 Jurisdictional requirementA person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(iii) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; or
(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or
(c) the alleged offence is committed against an Australian citizen; or
(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
(Repealed by No 136 of 2012)
SECTION 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.
SECTION 71.18 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. SECTION 71.19 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. SECTION 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.
SECTION 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.
SECTION 71.22 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 Convention, is taken not to be a matter arising directly under a treaty. SECTION 71.23 Definitions (1)
In this Division:
(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
(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.
(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.
Division 72 - Explosives and lethal devices
The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note:
The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department's website.
Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
A 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.
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 and extended supervision orders (see section 105A.23).
SECTION 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;
(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.
SECTION 72.5 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.
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.
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.
SECTION 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.
(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.
SECTION 72.9 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.
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.
The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.
Note:
The Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means. This is known as the marking of the explosives.
A 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.
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.
(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.
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.
SECTION 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.
(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.
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.
Note1:
A defendant bears a legal burden in relation to the matter in subsection (1) (see section 13.4).
Note 2:
For the marking requirements, see section 72.33.
(2)
If:
(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the second marking requirement;
it is a defence if the defendant proves that, at the time of the alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
Note 1:
A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2:
For the marking requirements, see section 72.33.
Note 3:
For minimum manufacture concentration , see section 72.34.
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
legibly displayed on the outer surface of the wrapper.
(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;
Penalty: Imprisonment for 2 years.
(2)
The fault element for paragraphs (1)(b) and (c) is recklessness.
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.
(2)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the following:
(i) research, development or testing of new or modified explosives;
(ii) development or testing of explosives detection equipment;
(iii) training in explosives detection;
(iv) forensic science; or
(b) both:
(i) the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and
(ii) the explosive device is for use exclusively for defence purposes; or
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3)
An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
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.
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.
(Repealed by No 31 of 2014)
(Repealed by No 31 of 2014)
A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2)
An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
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.
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.
(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).
SECTION 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).
A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.
A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.
The AFP Minister may, by writing, delegate to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee, or an acting SES employee, in that Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
all or any of the AFP Minister's powers under sections 72.18, 72.19, 72.24 and 72.25.
(2)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the AFP Minister.
The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice-Admiral or a higher rank; or
(c) an officer of the Australian Army who holds the rank of Lieutenant-General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.24 and 72.25.
(2)
A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning ofthe 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.
An application may be made to the Administrative Review 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 Review 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.
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Subdivision.
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
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.
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 |
This section applies in relation to a prosecution for an offence against this Subdivision.
(2)
If no detection agent can be detected in a sample of a plastic explosive when tested using:
(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement.
Note:
A defendant bears a legal burden in relation to proving the contrary (see section 13.4).
In this Subdivision:
AFP Minister
means the Minister administering the Australian Federal Police Act 1979.
Convention on the Marking of Plastic Explosives
means:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
the Convention as so amended.
(ii) the amendment binds Australia;
Note:
In 2006, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Department of Defence
means the Department that deals with matters relating to defence.
detection agent
has the meaning given by section 72.34.
explosive device
includes the following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export
includes take from Australia.
first marking requirement
has the meaning given by subsection 72.33(2).
high explosive
means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import
includes bring into Australia.
manufacture a substance
means any process by which a substance is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
marking requirement
has the meaning given by section 72.33.
minimum manufacture concentration
has the meaning given by section 72.34.
Minister for Defence
means the Minister administering the Defence Act 1903.
plastic explosive
means an explosive product (including an explosive produce in flexible or elastic sheet form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form have a vapour pressure less than 10-4 Pa at a temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room temperature.
possess
a substance includes the following:
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
(a) the AFP Minister; or
(b) the Minister for Defence.
second marking requirement
has the meaning given by subsection 72.33(3).
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer
means transfer ownership or possession.
unmarked plastic explosive
means a plastic explosive that breaches a marking requirement.
wrapper
, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.
The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.
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.
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.
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).
(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.
Transfer to foreign party to Convention on Cluster Munitions
(1)
Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munition.
Note 1:
A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2:
This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.
Intended transfer to Australian Defence Force
(2)
Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3)
Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4)
Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth's exclusive control.
Note 1:
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2:
The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3:
This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or
(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and
(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;
(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.
Note:
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
(2)
This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
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.
This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.
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.
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.
(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.