14.1 Standard geographical jurisdiction

Commonwealth Criminal Code: Guide for practitioners 

14.1 Standard geographical jurisdiction

(1) This section may apply to a particular offence in either of the following ways:

  1. (a) unless the contrary intention appears, this section applies to the following offences:
    1. (i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;
    2. (ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);
  2. (b) if a law of the Commonwealth provides that this section applies to a particular offence—this section applies to that offence.

Note: In the case of paragraph (b), the expression offence is given an extended meaning by subsection 11.2(1), section 11.3 and subsection 11.6(1).

(2) If this section applies to a particular offence, a person does not commit the offence unless:

  1. (a) the conduct constituting the alleged offence occurs:
    1. (i) wholly or partly in Australia; or
    2. (ii) wholly or partly on board an Australian aircraft or an Australian ship; or
  2. (b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
    1. (i) wholly or partly in Australia; or
    2. (ii) wholly or partly on board an Australian aircraft or an Australian ship; or
  3. (c) all of the following conditions are satisfied:
    1. (i) the alleged offence is an ancillary offence;
    2. (ii) the conduct constituting the alleged offence occurs wholly outside Australia;
    3. (iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

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

Defence—primary offence

(3) If this section applies to a particular offence, a person is not guilty of the offence if: (aa) the alleged offence is a primary offence; and

  1. (a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
  2. (b) there is not in force in:
    1. (i) the foreign country where the conduct constituting the alleged offence occurs; or
    2. (ii) the part of the foreign country where the conduct constituting the alleged offence occurs; a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first-mentioned offence.

(4) For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.

(Subsection (5) contains a defence similar to subsection (3) in relation to ancillary offences.)

Section 14.1 enables standard geographical jurisdiction to be applied to a particular offence by an express provision to that effect. However, express application will not be necessary for offence provisions commencing at or after the commencement of section 14.1, where standard geographical jurisdiction will apply unless contrary provision is made. The same form of jurisdiction will also govern the related ancillary offences which include
11.1 Attempt, 11.4 Incitement, 11.5 Conspiracy and liability as an accomplice or for acts of an innocent agent.
The situations where a particular case falls within standard geographical jurisdiction are detailed in ss14.1(2). This is done by reference to ‘conduct’ and  ‘result’.  These expressions are used in conformity with their meaning   as physical elements of the offence in question: 4.1 Physical elements. In particular, reference to a “result” in Part 2.7 does not refer to consequences  or collateral effects of the defendant’s conduct, unless they are elements of  the offence: 16.4 Result of conduct.
Standard geographical jurisdiction will be satisfied if the conduct constituting the alleged offence occurs wholly or partly in “Australia” (defined in section 16.3 Meaning of Australia) or wholly or partly on board an “Australian aircraft” or an “Australian ship” (see the definitions in the Dictionary).

The jurisdictional requirements will also be satisfied if a result of the conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. As noted, this condition of jurisdiction can only be satisfied where a ‘result’ is an element of the offence. Only a few Commonwealth offences have a ‘result’ in that sense, so the ‘result’ basis for jurisdiction will only be applicable to those offences. An example might be:

  1. (a) an offence of destroying an aircraft where the conduct which caused the destruction occurs outside Australia but the actual destruction of the aircraft (say a foreign aircraft) occurs in Australia, or
  2. (b) an offence of obtaining something by deception where the deceptive conduct occurs outside Australia but the thing is obtained in Australia.

In the case of an ‘ancillary offence’, such as attempt, incitement or conspiracy, it may be that the conduct occurs wholly outside Australia and there is no relevant ‘result’ in Australia of the ancillary offence itself. In that case, by virtue of proposed paragraph 14.1(2)(c), the jurisdictional requirement might still be satisfied by reference to the primary offence, for example where a defendant incites a person, in a foreign country, to commit an offence and the person commits that offence (the primary offence) in Australia or the defendant intends that the primary offence be committed in Australia.

Provision is made in ss14.1(3) for a defence where standard geographical jurisdiction is satisfied but the conduct occurs wholly in a foreign country, for example where only a ‘result’ occurs in Australia or (in the case of an ancillary offence) the primary offence is intended to occur in Australia. The defence will apply if there was no offence in the country where the conduct occurred corresponding to the Commonwealth offence charged. The inquiry is not into whether the particular conduct alleged would have amounted to an offence of some kind or other under the law of the other country. Therefore it need not be relevant that in the other country there is an applicable defence, relating, for example, to age, nationality or other capacity. The inquiry is into whether the other country has under its law a corresponding offence. ‘Corresponding’ does not mean ‘exactly the same’ but means ‘of a corresponding kind’. For example, if the charged offence was bribing an Australian official, a corresponding offence of the other country could be bribing an official of that country. If the charged offence was destruction of (or theft of ) Australian government property and the other country had not legislated specifically for government property, a corresponding offence could be simple destruction of (or theft of ) property.  The same principles apply   to ancillary offences (ss14.1(5) and (6)).