Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) ACT 2001 NO. 24, 2001 - SCHEDULE 10

1 Subsection 3(1) (paragraph (a) of the definition of associated offence )

(a)

in relation to an offence against section 233B of the Customs Act 1901 —an ancillary offence (within the meaning of the Criminal Code ) that relates to the offence; or

2 Subsection 3(1) (paragraph (b) of the definition of associated offence )

3 Subsection 3(1) (subparagraph (c)(i) of the definition of associated offence )

4 After section 3B

3BA Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

5 Subsection 3V(2)

6 After subsection 3V(2)

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

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

7 Subsection 3ZL(2)

(2) A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.

Penalty: Imprisonment for 12 months.

(3) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

8 Subsection 15V(2)

engage in conduct means:

(a)

do an act; or

(b)

omit to perform an act.

9 Subparagraph 15W(1)(b)(ii)

(ii)

engaged in conduct contrary to Part 2.4 of the Criminal Code in relation to paragraph 233B(1)(b) of the Customs Act 1901 ; and

10 Section 15X

11 Subsection 19AZA(1)

12 At the end of subsection 19AZA(1)

Penalty: 10 penalty units.

13 Subsection 19AZA(2)

14 At the end of subsection 19AZA(2)

Penalty: 10 penalty units.

15 Subsection 19AZA(3)

16 At the end of section 19AZA

(4) Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

(5) Subsections (1) and (2) are offences of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

17 Subsection 23XG(2)

18 Section 23XH

19 Section 23YL (note)

20 Subsection 23YP(2)

21 Subsection 23YQ(7)

22 After subsection 23YQ(7)

(7A) Subsection (7) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7A) (see subsection 13.3(3) of the Criminal Code ).

23 Subsection 24AB(1) (definition of act of sabotage )

24 Subsection 24AB(3)

25 Subsection 24AB(3)

26 Paragraph 24AB(4)(a)

27 Subsection 24AB(5)

28 Section 24C

24C Seditious enterprises

A person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years.

29 Subsection 25(1)

30 Section 26

31 Section 29

32 At the end of section 29

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth or to any public authority under the Commonwealth.

Note: For absolute liability , see section 6.2 of the Criminal Code .

33 Subsection 30AA(3)

34 Section 30F

35 Section 30FC

Note: The heading to section 30FC is altered by omitting " knowingly ".

36 Subsections 30R(1) to (4) (inclusive)

Note: The heading to section 30R is replaced by the heading " Books etc. taken to have been issued by associations ".

37 Paragraph 34(a)

38 Paragraph 34(b)

39 At the end of section 34

(2) Paragraph (1)(a) does not apply if the judge or magistrate has a reasonable excuse.

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

40 Subsection 35(1)

41 Subsection 35(1)

42 After subsection 35(1)

(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the matter is material in the proceeding.

Note: For strict liability , see section 6.1 of the Criminal Code .

43 Section 36

44 Paragraph 36(b)

45 Paragraph 37(b)

46 Paragraph 37(c)

47 Section 38

48 Section 39

49 Section 40

50 At the end of section 41

(2) For a person to be guilty of an offence against subsection (1):

(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 a person be charged falsely with an offence 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.

(3) A person may be found guilty of an offence against subsection (1) even if:

(a)

charging a person falsely pursuant to the agreement is impossible; or

(b)

the only other party to the agreement is a body corporate; or

(c)

each other party to the agreement is a person who is not criminally responsible; or

(d)

subject to subsection (4), all other parties to the agreement have been acquitted of the offence.

(4) A person cannot be found guilty of an offence against subsection (1) if:

(a)

all other parties to the agreement have been acquitted of such an offence; and

(b)

a finding of guilt would be inconsistent with their acquittal.

(5) A person cannot be found guilty of an offence against subsection (1) 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 false charging.

(6) A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.
(7) Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

51 At the end of section 42

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note: For absolute liability , see section 6.2 of the Criminal Code .

(3) For a person to be guilty of an offence against subsection (1):

(a)

the person must have entered into an agreement with one or more other persons; and

(b)

the person and at least one other party to the agreement must have intended to obstruct, prevent, pervert or defeat the course of justice 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.

(4) A person may be found guilty of an offence against subsection (1) even if:

(a)

obstructing, preventing, perverting or defeating the course of justice pursuant to the agreement is impossible; or

(b)

the only other party to the agreement is a body corporate; or

(c)

each other party to the agreement is a person who is not criminally responsible; or

(d)

subject to subsection (5), all other parties to the agreement have been acquitted of the offence.

(5) A person cannot be found guilty of an offence against subsection (1) if:

(a)

all other parties to the agreement have been acquitted of such an offence; and

(b)

a finding of guilt would be inconsistent with their acquittal.

(6) A person cannot be found guilty of an offence against subsection (1) 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 obstruction, prevention, perversion or defeat.

(7) A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.
(8) Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

52 At the end of section 43

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note: For absolute liability , see section 6.2 of the Criminal Code .

(3) For the person to be guilty of an offence against subsection (1), 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.
(4) A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.

53 Section 44

54 After subsection 46(1)

(1A) For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab):

(a)

the person's conduct must have in fact aided the escape or attempted escape by the person in custody, under arrest or in detention (the escapee ); and

(b)

the escapee must have actually escaped or attempted to escape.

(1B) For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab), the person must have intended that his or her conduct would aid the escape or attempted escape by the escapee.
(1C) A person cannot be found guilty of an offence against paragraph (1)(a), (aa) or (ab) if, before the escape or attempted escape, the person:

(a)

terminated his or her aid to the escapee; and

(b)

took all reasonable steps to prevent the escape or attempted escape.

(1D) A person may be found guilty of an offence against paragraph (1)(a), (aa) or (ab) even if the escapee has not been prosecuted, or has not been found guilty of an offence, in relation to the escape or attempted escape.

55 Paragraph 47B(1)(b)

56 After subsection 47B(1)

(1A) Paragraph (1)(b) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code ).

57 Paragraph 47C(1)(c)

58 Subsection 47C(2)

59 Section 49

60 Subparagraphs 50AA(2)(a)(i) and (ii)

(i)

an offence against section 6 or 50DB; or

(ii)

an offence against section 11.1 or 11.5 of the Criminal Code ;

61 Paragraph 50AA(2)(b)

62 Subsection 50AA(3)

63 Subsection 50AA(4)

64 Subsection 50AA(5)

65 At the end of section 50BA

(2) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability , see section 6.2 of the Criminal Code .

Note 2: For a defence based on belief about age, see section 50CA.

66 At the end of section 50BB

(2) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability , see section 6.2 of the Criminal Code .

Note 2: For a defence based on belief about age, see section 50CA.

67 At the end of section 50BC

(2) For the purposes of an offence against subsection (1), absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the first person is outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16;

(c)

in the case of an offence against paragraph (1)(a), (b), (c) or (d)—that the act of indecency referred to in that paragraph is in fact an act of indecency.

Note 1: For absolute liability , see section 6.2 of the Criminal Code .

Note 2: For a defence based on belief about age, see section 50CA.

68 At the end of subsection 50BD(1)

Penalty: Imprisonment for 12 years.

69 After subsection 50BD(1)

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the act of indecency is committed outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16;

(c)

that the act of indecency referred to in that subsection is in fact an act of indecency.

Note 1: For absolute liability , see section 6.2 of the Criminal Code .

Note 2: For a defence based on belief about age, see section 50CA.

70 At the end of section 50BD

(3) For the purposes of an offence against subsection (2), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability , see section 6.2 of the Criminal Code .

Note 2: For a defence based on belief about age, see section 50CA.

71 At the end of section 50CA

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

72 At the end of section 50CB

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code ).

73 After subsection 50DA(1)

(1A) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability , see section 6.2 of the Criminal Code .

(1B) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part.

74 After subsection 50DB(1)

(1A) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability , see section 6.2 of the Criminal Code .

(1B) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part (other than this section).

75 Subsection 76B(3) (penalty)

76 At the end of section 76B

(4) For the purposes of an offence against subsection (1), (2) or (3), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the computer is a Commonwealth computer;

(b)

that the computer is not a Commonwealth computer.

Note: For absolute liability , see section 6.2 of the Criminal Code .

77 Section 76C

78 At the end of section 76C

(2) For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the computer is a Commonwealth computer;

(b)

that the computer is not a Commonwealth computer.

Note: For absolute liability , see section 6.2 of the Criminal Code .

79 Subsection 76D(3) (penalty)

80 At the end of section 76D

(4) For the purposes of an offence against subsection (1), (2) or (3), absolute liability applies to the physical element of circumstance of the offence, that the facility is operated or provided by the Commonwealth or by a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

81 Section 76E

82 At the end of section 76E

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is operated or provided by the Commonwealth or by a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

83 Subsection 78(1)

84 Paragraph 78(2)(a)

85 Paragraph 78(2)(a)

86 Paragraph 78(2)(b)

87 Paragraph 78(3)(a)

88 Subsection 78(4)

89 Subsection 79(2)

90 Subsection 79(7)

91 Subsection 79(7)

92 Paragraph 79(8)(a)

93 Subsection 79(9)

94 Paragraphs 81(1)(a) and (b)

95 Paragraph 83(1)(c)

96 Subsection 83A(1)

97 Paragraph 83A(1)(a)

98 Paragraphs 83A(1)(b) and (c)

99 Paragraph 83A(1)(e)

100 Subsection 83A(2)

101 Subsections 85G(3), (4) and (5)

102 After subsection 85G(5)

(5A) Subsections (3), (4) and (5) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal Code ).

103 Paragraph 85G(6)(a)

104 Paragraph 85G(6)(b)

105 Paragraph 85G(6)(c)

106 Paragraph 85G(6)(d)

107 Section 85H

108 Paragraphs 85H(a), (b) and (c)

109 At the end of section 85H

(2) Subsection (1) does not apply if the person has a reasonable excuse.

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

110 Section 85N

111 Paragraph 85Q(3)(a)

112 Paragraph 85Q(3)(b)

113 Paragraph 85Q(3)(c)

114 Paragraph 85Q(3)(d)

115 Section 85R

116 Subsection 85S(1)

(1) A person must not intentionally use a postal or carriage service supplied by Australia Post:

(a)

with the result that another person is menaced or harassed; or

(b)

in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

Penalty: Imprisonment for 1 year.

(1A) For the purposes of an offence against paragraph (1)(a) or (b), absolute liability applies to the physical element of circumstance of the offence, that the postal or carriage service is supplied by Australia Post.

Note: For absolute liability , see section 6.2 of the Criminal Code .

117 Paragraphs 85T(b) and (d)

118 Section 85U

119 Subsection 85V(1)

120 After subsection 85V(1)

(1A) For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the post-box, or stamp vending machine, is erected by Australia Post;

(b)

that the property belongs to Australia Post.

Note: For absolute liability , see section 6.2 of the Criminal Code .

121 Subsection 85V(2)

122 At the end of section 85V

(3) For the purposes of an offence against subsection (2), absolute liability applies to the physical element of circumstance of the offence, that the notice, writing or other marking is on or attached to property belonging to Australia Post.

Note: For absolute liability , see section 6.2 of the Criminal Code .

123 Subsection 85W(1)

124 Subsections 85X(2) and (3)

125 After subsection 85X(3)

(3A) For the purposes of an offence against subsection (3), strict liability applies to the physical element of circumstance of the offence, that the carriage of the article by post is otherwise than in accordance with the terms and conditions mentioned in paragraph (1)(b).

Note: For strict liability , see section 6.1 of the Criminal Code .

126 Subsection 85X(4)

127 At the end of section 85X

(6) For the purposes of an offence against subsection (4), strict liability applies to the physical element of circumstance of the offence, that the carriage of the article by post is otherwise than in accordance with the requirements mentioned in subsection (5).

Note: For strict liability , see section 6.1 of the Criminal Code .

128 Section 85ZD

129 Subsection 85ZE(1)

(1) A person must not intentionally use a carriage service supplied by a carrier:

(a)

with the result that another person is menaced or harassed; or

(b)

in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

Penalty: Imprisonment for 1 year.

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

130 Subsection 85ZG(1)

131 Subsection 85ZG(1)

132 At the end of subsection 85ZG(1)

Penalty: Imprisonment for 2 years.

133 After subsection 85ZG(1)

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the facility is operated by a carrier;

(b)

that the carriage service is supplied by the carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

134 Subsection 85ZG(2)

135 Subsection 85ZG(2)

136 At the end of section 85ZG

(3) For the purposes of an offence against subsection (2), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

137 Section 85ZH

138 At the end of section 85ZH

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the satellite is operated by a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

139 Section 85ZJ

140 At the end of section 85ZJ

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility belongs to a carrier.

Note: For absolute liability , see section 6.2 of the Criminal Code .

141 After subsection 85ZK(1)

(1A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the offence mentioned in paragraph (1)(a) or (b) would be against a law of the Commonwealth or of a State or Territory.

142 At the end of subsection 85ZK(2)

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

143 At the end of subsection 85ZKA(2)

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

144 Section 90B