Criminal Code Act 1995 (Australia, unsourced)/Chapter 4

Chapter 4—The integrity and security of the international community and foreign governments

Division 70—Bribery of foreign public officials

70.1 Definitions

In this Division:

benefit includes any advantage and is not limited to property.

business advantage means an advantage in the conduct of business.

control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

duty, in relation to a foreign public official, means any authority, duty, function or power that:

(a) is conferred on the official; or

(b) that the official holds himself or herself out as having.

foreign government body means:

(a) the government of a foreign country or of part of a foreign country; or

(b) an authority of the government of a foreign country; or

(c) an authority of the government of part of a foreign country; or

(d) a foreign local government body or foreign regional government body; or

(e) a foreign public enterprise.

foreign public enterprise means a company or any other body or association where:

(a) in the case of a company—one of the following applies:

(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;

(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;

(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;

(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;

(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and

(b) in the case of any other body or association—either of the following applies:

(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;

(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and

(c) the company, body or association:

(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or

(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;

because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be.

foreign public official means:

(a) an employee or official of a foreign government body; or

(b) an individual who performs work for a foreign government body under a contract; or

(c) an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country; or

(d) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or

(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or

(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or

(g) an employee of a public international organisation; or

(h) an individual who performs work for a public international organisation under a contract; or

(i) an individual who holds or performs the duties of an office or position in a public international organisation; or

(j) an individual who is otherwise in the service of a public international organisation; or

(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or

(l) an individual who:

(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or

(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs.

public international organisation means:

(a) an organisation:

(i) of which 2 or more countries, or the governments of 2 or more countries, are members; or

(ii) that is constituted by persons representing 2 or more countries, or representing the governments of 2 or more countries; or

(b) an organisation established by, or a group of organisations constituted by:

(i) organisations of which 2 or more countries, or the governments of 2 or more countries, are members; or

(ii) organisations that are constituted by the representatives of 2 or more countries, or the governments of 2 or more countries; or

(c) an organisation that is:

(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or

(ii) a commission, council or other body established by an organisation so described or such an organ; or

(iii) a committee, or subcommittee of a committee, of an organisation described in paragraph (a) or (b), or of such an organ, council or body.

share includes stock.

70.2 Bribing a foreign public official

(1) A person is guilty of 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

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the benefit is not legitimately due to the other person; and

(c) the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:

(i) obtain or retain business; or

(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).

Penalty: Imprisonment for 10 years.

Note 1: For defences, see sections 70.3 and 70.4.

Note 2: Section 4B of the Crimes Act 1914 allows a court to impose a fine instead of imprisonment or in addition to imprisonment.

Benefit that is not legitimately due

(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:

(a) the fact that the benefit may be customary, or perceived to be customary, in the situation;

(b) the value of the benefit;

(c) any official tolerance of the benefit.

Business advantage that is not legitimately due

(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:

(a) the fact that the business advantage may be customary, or perceived to be customary, in the situation;

(b) the value of the business advantage;

(c) any official tolerance of the business advantage.

70.3 Defence—conduct lawful in foreign public official’s country

(1) A person is not guilty of 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...

the person would not have been guilty of an offence against...

1

an employee or official of a foreign government body

in the place where the central administration of the body is located

a 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 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 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 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 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 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 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 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 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 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 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 is not guilty of an offence against section 70.2 if:

(a) the person’s conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and

(b) assuming that the first‑mentioned person’s conduct had occurred instead in relation to:

(i) the other foreign public official of whom the first‑mentioned foreign public official was an authorised intermediary; or

(ii) the other foreign public official in relation to whom the first‑mentioned foreign public official held himself or herself out to be an authorised intermediary;

subsection (1) would have applied in relation to the first‑mentioned person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) To avoid doubt, if:

(a) a person’s conduct occurred in relation to a foreign public official covered by 2 or more paragraphs of the definition of foreign public official in section 70.1; and

(b) at least one of the corresponding items in subsection (1) is applicable to the conduct of the first‑mentioned person;

subsection (1) applies to the conduct of the first‑mentioned person.

70.4 Defence—facilitation payments

(1) A person is not guilty of 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.

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) 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.

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

71.1 Purpose

The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.

71.2 Murder of a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for life.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.3 Manslaughter of a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 25 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.4 Intentionally causing serious harm to a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 20 years.

Maximum penalty (aggravated offence): Imprisonment for 25 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.5 Recklessly causing serious harm to a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 19 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.6 Intentionally causing harm to a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 10 years.

Maximum penalty (aggravated offence): Imprisonment for 13 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.7 Recklessly causing harm to a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 7 years.

Maximum penalty (aggravated offence): Imprisonment for 9 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.8 Unlawful sexual penetration

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 15 years.

Maximum 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:

sexually penetrate means:

(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or

(b) penetrate (to any extent) the mouth of a person by the penis of another person; or

(c) continue to sexually penetrate as defined in paragraph (a) or (b).

(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.

(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

71.9 Kidnapping a UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 15 years.

Maximum 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.

71.10 Unlawful detention of UN or associated person

(1) A person is guilty of 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.

Maximum penalty: Imprisonment for 5 years.

Maximum penalty (aggravated offence): Imprisonment for 6 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.11 Intentionally causing damage to UN or associated person’s property etc.

(1) A person is guilty of 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).

Maximum penalty: Imprisonment for 10 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b), (d) and (e).

71.12 Threatening to commit other offences

A person is guilty of 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.

Maximum penalty:

(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or

(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or

(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or

(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.

Note: Section 71.23 defines UN or associated person.

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 torture; or

(b) the offence was committed by the use or threatened use of an offensive weapon; or

(c) the offence was committed against a person in an abuse of authority.

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.

(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).

(4) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

torture means the deliberate and systematic infliction of severe pain over a period of time.

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).

71.15 Defence—medical or hygienic procedures

A person is not criminally responsible for an offence against section 71.8 in respect of any sexual penetration carried out in the course of a procedure in good faith for medical or hygienic purposes.

Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

71.16 Jurisdictional requirement

(1) A person commits an offence under this Division only if:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and:

(i) at the time of the alleged offence, the person is an Australian citizen; or

(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(iii) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; or

(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or

(c) the alleged offence is committed against an Australian citizen; or

(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.

(2) In this section:

Australian aircraft means:

(a) an aircraft registered, or required to be registered, under the Civil Aviation Regulations as an Australian aircraft; or

(b) an aircraft (other than a defence aircraft) that is owned by, or in the possession or control of, a Commonwealth entity; or

(c) a defence aircraft.

Australian ship means:

(a) a ship registered, or required to be registered, under the Shipping Registration Act 1981; or

(b) an unregistered ship that has Australian nationality; or

(c) a defence ship.

defence aircraft means an aircraft of any part of the Australian Defence Force, and includes an aircraft that is being commanded or piloted by a member of that Force in the course of his or her duties as such a member.

defence ship means a ship of any part of the Australian Defence Force, and includes a ship that is being operated or commanded by a member of that Force in the course of his or her duties as such a member.

71.17 Exclusion of this Division if State/Territory laws provide for corresponding offences

(1) A State or Territory court does not have jurisdiction to determine a charge of an offence under this Division if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory.

(2) If:

(a) a prosecution is brought against a person under this Division; and

(b) a court finds that there is a corresponding State offence;

then this section does not prevent the person from being prosecuted for the State offence.

71.18 Double jeopardy

If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct.

71.19 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

71.20 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.

71.21 Ministerial certificates relating to proceedings

(1) The Minister for Foreign Affairs 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 Minister for Immigration and Multicultural Affairs may issue a certificate stating that:

(a) a person is or was an Australian citizen at a particular time; or

(b) a person is or was a stateless person whose habitual residence is or was in Australia.

(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

71.22 Jurisdiction of State courts preserved

For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Act, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.

71.23 Definitions

(1) In this Division:

associated personnel means:

(a) persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations; or

(b) persons engaged by the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency; or

(c) persons deployed by a humanitarian non‑governmental organisation or agency under an agreement with the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency;

to carry out activities in support of the fulfilment of the mandate of a UN operation.

Convention means the Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 December 1994.

Note: The text of the Convention is set out in Australian Treaty Series 1995 No. 1. In 2000 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world‑wide web site.

UN enforcement action means a UN operation:

(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and

(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and

(c) to which the law of international armed conflict applies.

UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:

(a) the operation is for the purpose of maintaining or restoring international peace and security; or

(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.

UN or associated person means a person who is a member of any UN personnel or associated personnel.

UN personnel means:

(a) persons engaged or deployed by the Secretary‑General of the United Nations as members of the military, police or civilian components of a UN operation; or

(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.

(2) In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.

Division 72—International terrorist activities using explosive or lethal devices

72.1 Purpose

The purpose of this Division 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 on the Internet through that Department’s world‑wide web site.

72.2 ADF members not liable for prosecution

Nothing in this Division makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.

72.3 Offences

(1) A person commits an offence if:

(a) the person intentionally delivers, places, discharges or detonates a device; and

(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and

(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:

(i) a place of public use; or

(ii) a government facility; or

(iii) a public transportation system; or

(iv) an infrastructure facility; and

(d) the person intends to cause death or serious harm.

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).

72.4 Jurisdictional requirement

(1) A person commits an offence under this Division 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.

72.5 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

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 Division in respect of that conduct.

72.7 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.

(3) In determining whether to bring proceedings for an offence under this Division, 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 Division, the Attorney‑General must also have regard to:

(a) whether the conduct constituting the offence also gives rise to an offence under a law of a State or Territory; and

(b) whether a prosecution relating to the conduct under the State or Territory law has been or will be commenced.

72.8 Ministerial certificates relating to proceedings

(1) The Minister administering the Charter of the United Nations Act 1945 may issue a certificate stating any of the following matters:

(a) that the Convention entered into force for Australia on a specified day;

(b) that the Convention remains in force for Australia or any other State Party on a specified day;

(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 6 of the Convention.

(2) The Minister administering the Australian Citizenship Act 1948 may issue a certificate stating that:

(a) a person is or was an Australian citizen at a particular time; or

(b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.

(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

72.9 Jurisdiction of State courts preserved

For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Division, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.

72.10 Definitions

In this Division:

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.

Division 73—People smuggling and related offences

Subdivision A—People smuggling offences

73.1 Offence of people smuggling

(1) A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and

(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and

(c) the other person is not a citizen or permanent resident of the foreign country; and

(d) the first person organises or facilitates the entry:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.

73.2 Aggravated offence of people smuggling (exploitation etc.)

(1) A person (the first person) is guilty of an offence if the first person commits the offence of people smuggling in relation to another person (the victim) and any of the following applies:

(a) the first person commits the offence intending that the victim will be exploited after entry into the foreign country (whether by the first person or another);

(b) in committing the offence, the first person subjects the victim to cruel, inhuman or degrading treatment;

(c) in committing the offence, the first person’s conduct:

(i) gives rise to a danger of death or serious harm to the victim; and

(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

(3) In this section:

forced labour means the condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats:

(a) is not free to cease providing labour or services; or

(b) is not free to leave the place or area where the person provides labour or services.

sexual servitude has the same meaning as in Division 270.

slavery has the same meaning as in Division 270.

threat means:

(a) a threat of force; or

(b) a threat to cause a person’s deportation; or

(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person.

73.3 Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and

(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and

(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country; and

(d) the first person organises or facilitates the entry:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

73.4 Jurisdictional requirement

A person commits an offence against this Subdivision only if:

(a) both:

(i) the person is an Australian citizen or a resident of Australia; and

(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or

(b) both:

(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and

(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.

73.5 Attorney‑General’s consent required

(1) Proceedings for an offence against this Subdivision must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody or released on bail in connection with an offence against this Subdivision before the necessary consent has been given.

Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries

73.6 Meaning of travel or identity document

(1) For the purposes of this Subdivision, a document is a travel or identity document if it is:

(a) a travel document; or

(b) an identity document.

73.7 Meaning of false travel or identity document

(1) For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:

(a) the document, or any part of the document:

(i) purports to have been made in the form in which it is made by a person who did not make it in that form; or

(ii) purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

(b) the document, or any part of the document:

(i) purports to have been made in the terms in which it is made by a person who did not make it in those terms; or

(ii) purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

(c) the document, or any part of the document:

(i) purports to have been altered in any respect by a person who did not alter it in that respect; or

(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

(d) the document, or any part of the document:

(i) purports to have been made or altered by a person who did not exist; or

(ii) purports to have been made or altered on the authority of a person who did not exist; or

(e) the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

(2) For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).

(3) This section has effect as if a document that purports to be a true copy of another document were the original document.

73.8 Making, providing or possessing a false travel or identity document

A person (the first person) is guilty of an offence if:

(a) the first person makes, provides or possesses a false travel or identity document; and

(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

(c) the first person made, provided or possessed the document:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.9 Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats

(1) A person (the first person) is guilty of an offence if:

(a) the first person provides or possesses a travel or identity document; and

(b) the first person knows that:

(i) the issue of the travel or identity document; or

(ii) an alteration of the travel or identity document;

has been obtained dishonestly or by threats; and

(c) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

(d) the first person provided or possessed the document:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) For the purposes of subsection (1), a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

(3) For the purposes of subsection (1), dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(4) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

73.10 Providing or possessing a travel or identity document to be used by a person who is not the rightful user

A person (the first person) is guilty of an offence if:

(a) the first person provides or possesses a travel or identity document; and

(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

(c) the first person knows that the other person is not the person to whom the document applies; and

(d) the first person provided or possessed the document:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.11 Taking possession of or destroying another person’s travel or identity document

A person (the first person) is guilty of an offence if:

(a) the first person takes possession of, or destroys, a travel or identity document that applies to another person (the other person); and

(b) the first person does so intending to conceal the other person’s identity or nationality; and

(c) at the time of doing so, the first person intends to organise or facilitate the entry of the other person into a foreign country:

(i) having obtained, or with the intention of obtaining, whether directly or indirectly, a benefit to organise or facilitate that entry; and

(ii) where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.12 Jurisdictional requirement

Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.