Criminal Code Act 1995 (Australia, unsourced)/Chapter 7/7.8

by Commonwealth of Australia

Part 7.8—Causing harm to, and impersonation and obstruction of, Commonwealth public officials

Division 146—Preliminary

146.1 Definitions

In this Part:

Commonwealth law enforcement officer means a person who is:

(a) a member or special member of the Australian Federal Police; or

(b) a member of the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002; or

(ba) an examiner (within the meaning of that Act); or

(c) a member of the staff of the ACC (within the meaning of that Act); or

(d) the Chief Executive Officer of Customs; or

(e) a person employed in the Australian Customs Service.

fear includes apprehension.

harm means:

(a) physical harm (whether temporary or permanent); or

(b) harm to a person’s mental health (whether temporary or permanent);

but does not include being subjected to a force or impact that is within the limits of what is reasonably acceptable as incidental to:

(c) social interaction; or

(d) life in the community.

harm to a person’s mental health includes significant psychological harm to the person, but does not include a reference to ordinary emotional reactions (for example, distress, grief, fear or anger).

physical harm includes:

(a) unconsciousness; and

(b) pain; and

(c) disfigurement; and

(d) infection with a disease; and

(e) any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

serious harm means any harm (including the cumulative effect of more than one harm) that:

(a) endangers, or is likely to endanger, a person’s life; or

(b) is, or is likely to be, significant and longstanding.

146.2 Causing harm

For the purposes of this Part, a person’s conduct is taken to cause harm if it substantially contributes to harm.

Division 147—Causing harm to Commonwealth public officials

147.1 Causing harm to a Commonwealth public official etc.

Causing harm to a Commonwealth public official

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

(a) the first person engages in conduct; and

(b) the first person’s conduct causes harm to a public official; and

(c) the first person intends that his or her conduct cause harm to the official; and

(d) the harm is caused without the consent of the official; and

(e) the first person engages in his or her conduct because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:

(f) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 13 years; or

(g) in any other case—imprisonment for 10 years.

(1A) Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence.

(1B) If:

(a) a person is charged with an offence against subsection (1); and

(b) the public official concerned is a Commonwealth judicial officer or a Commonwealth law enforcement officer;

a court of summary jurisdiction may, with the consent of the defendant and the prosecutor and if the court is satisfied that it is proper to do so, determine the charge summarily.

(1C) If a court of summary jurisdiction convicts a person of an offence against subsection (1) in accordance with subsection (1B), the penalty that the court may impose is a sentence of imprisonment not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

Causing harm to a former Governor‑General, former Minister or former Parliamentary Secretary

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

(a) the first person engages in conduct; and

(b) the first person’s conduct causes harm to another person; and

(c) the other person is a former Governor‑General, a former Minister or a former Parliamentary Secretary; and

(d) the first person intends that his or her conduct cause harm to the other person; and

(e) the harm is caused without the consent of the other person; and

(f) the first person engages in his or her conduct because of:

(i) the other person’s status as a former Governor‑General, former Minister or former Parliamentary Secretary; or

(ii) any conduct engaged in by the other person in the other person’s former capacity as a Governor‑General, Minister or Parliamentary Secretary.

Penalty: Imprisonment for 10 years.

147.2 Threatening to cause harm to a Commonwealth public official etc.

Threatening to cause serious harm

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

(a) the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

(b) the second person or the third person is a public official; and

(c) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(da) the official is a Commonwealth public official; and

(db) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(dc) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:

(e) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 9 years; or

(f) in any other case—imprisonment for 7 years.

(1A) Absolute liability applies to the paragraphs (1)(da), (db) and (dc) elements of the offence.

Threatening to cause harm

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

(a) the first person makes to another person (the second person) a threat to cause harm to the second person or to a third person; and

(b) the second person or the third person is a public official; and

(c) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(e) the official is a Commonwealth public official; and

(f) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(g) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty: Imprisonment for 2 years

(2A) Absolute liability applies to the paragraphs (2)(e), (f) and (g) elements of the offence.

Threatening to cause serious harm to a former Governor‑General, former Minister or former Parliamentary Secretary

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

(a) the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

(b) the second person or the third person is a former Governor‑General, a former Minister or a former Parliamentary Secretary; and

(c) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the second or third person’s status as a former Governor‑General, a former Minister or a former Parliamentary Secretary; or

(ii) any conduct engaged in by the second or third person in the second or third person’s former capacity as a Governor‑General, a Minister or a Parliamentary Secretary.

Penalty: Imprisonment for 7 years.

Threats

(4) For the purposes of this section, a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

Unnecessary to prove that a threatened person actually feared harm

(5) In a prosecution for an offence against this section, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

147.3 Geographical jurisdiction

Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this Division.

Division 148—Impersonation of Commonwealth public officials

148.1 Impersonation of an official by a non‑official

(1) A person other than a Commonwealth public official is guilty of an offence if:

(a) on a particular occasion, the person impersonates another person in that other person’s capacity as a Commonwealth public official; and

(b) the first‑mentioned person does so knowing it to be in circumstances when the official is likely to be on duty; and

(c) the first‑mentioned person does so with intent to deceive.

Penalty: Imprisonment for 2 years.

(2) A person other than a Commonwealth public official is guilty of an offence if:

(a) the person falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the person does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty: Imprisonment for 2 years.

(2A) For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(3) A person other than a Commonwealth public official is guilty of an offence if:

(a) the person:

(i) impersonates another person in that other person’s capacity as a Commonwealth public official; or

(ii) falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the first‑mentioned person does so with the intention of:

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the exercise of a public duty or function; and

(c) if subparagraph (a)(i) applies—the first‑mentioned person also does so with intent to deceive.

Penalty: Imprisonment for 5 years.

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(4) The definition of duty in section 130.1 does not apply to this section.

(5) To avoid doubt, for the purposes of this section:

(a) impersonation does not include conduct engaged in solely for satirical purposes; and

(b) false representation does not include conduct engaged in solely for satirical purposes.

148.2 Impersonation of an official by another official

(1) A Commonwealth public official is guilty of an offence if:

(a) on a particular occasion, the official impersonates another person in that other person’s capacity as a Commonwealth public official; and

(b) the first‑mentioned official does so knowing it to be in circumstances when the other official is likely to be on duty; and

(c) the first‑mentioned official does so with intent to deceive.

Penalty: Imprisonment for 2 years.

(2) A Commonwealth public official is guilty of an offence if:

(a) the official falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the official does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty: Imprisonment for 2 years.

(2A) For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(3) A Commonwealth public official is guilty of an offence if:

(a) the official:

(i) impersonates another person in the other person’s capacity as a Commonwealth public official; or

(ii) falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the first‑mentioned official does so with the intention of:

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the exercise of a public duty or function; and

(c) if subparagraph (a)(i) applies—the first‑mentioned official also does so with intent to deceive.

Penalty: Imprisonment for 5 years.

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(4) The definition of duty in section 130.1 does not apply to this section.

(5) To avoid doubt, for the purposes of this section:

(a) impersonation does not include conduct engaged in solely for satirical purposes; and

(b) false representation does not include conduct engaged in solely for satirical purposes.

148.3 Geographical jurisdiction

Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this Division.

Division 149—Obstruction of Commonwealth public officials

149.1 Obstruction of Commonwealth public officials

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

(a) the person knows that another person is a public official; and

(b) the first‑mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

(c) the official is a Commonwealth public official; and

(d) the functions are functions as a Commonwealth public official.

Penalty: Imprisonment for 2 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the functions were functions as a Commonwealth public official.

(3) For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions.

(4) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).

(5) The definition of duty in section 130.1 does not apply to this section.

(6) In this section:

function:

(a) in relation to a person who is a public official—means any authority, duty, function or power that is conferred on the person as a public official; or

(b) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.