Commonwealth Consolidated Acts Commonwealth Consolidated ActsTaking a reprisal by causing detriment
(1) A person (the first person ) commits an offence in relation to another person (the second person ) if:
(a) the first person engages in conduct; and
(b) engaging in the conduct results in detriment to the second person; and
(c) when the conduct is engaged in, the first person believes or suspects that the second person:
(i) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(ii) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iii) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iv) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; and
(d) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 6 months.
Taking a reprisal by threat to cause detriment
(2) A person (the first person ) commits an offence in relation to another person (the second person ) if:
(a) the first person engages in conduct; and
(b) engaging in the conduct consists of, or results in, a threat to cause detriment to the second person; and
(c) the first person is reckless as to whether the second person fears that the threat would be carried out; and
(d) when the conduct is engaged in, the first person believes or suspects that the second person:
(i) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(ii) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iii) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iv) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; and
(e) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 6 months.
(3) Subsection (2) applies whether or not the threat mentioned in paragraph (2)(b) is:
(a) express or implied; or
(b) conditional or unconditional.
Exception--reasonable administrative action
(4) Subsections (1) and (2) do not apply if the conduct engaged in by the first person is administrative action that is reasonable to protect the second person from detriment.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).
No requirement to prove matters related to a complaint
(5) In a prosecution for an offence against this section, it is not necessary to prove that the second person:
(a) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(b) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(c) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(d) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act.
Note 1: The offences against subsections (1) and (2) relate to whether the first person has taken a reprisal (within the meaning of section 35D) against another person.
Note 2: The offence against subsection (1) relates to a reprisal that consists of causing detriment to another person. The offence against subsection (2) relates to a reprisal that involves a threat to cause detriment to another person.
Note 3: Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness (see subsection 5.4(4) of the Criminal Code ).