Section 390.3 Criminal Code Act | Associating in Support of Serious Organised Criminal Activity


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The Legislation

Section 390.3 of the Criminal Code Act 1995 (Cth) is Associating in Support of Serious Organised Criminal Activity and is extracted below.

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390.3 Associating in support of serious organised criminal activity

(1) A person (the first person) commits an offence if:

(a) the first person associates on 2 or more occasions with another person (the second person); and

(b) the second person engages, or proposes to engage, in conduct (the second person’s conduct) that constitutes, or is part of conduct constituting, an offence against any law; and

(c) the associations facilitate the engagement or proposed engagement by the second person in the second person’s conduct; and

(d) the offence against any law mentioned in paragraph (b) involves 2 or more persons; and

(e) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Penalty: Imprisonment for 3 years.

Repeat offence

(2) A person (the first person) commits an offence if:

(a) the first person has previously been convicted of an offence against subsection (1); and

(b) the first person associates with another person (the second person); and

(c) the second person engages, or proposes to engage, in conduct (the second person’s conduct) that constitutes, or is part of conduct constituting, an offence against any law; and

(d) the association facilitates the engagement or proposed engagement by the second person in the second person’s conduct; and

(e) the offence against any law mentioned in paragraph (c) involves 2 or more persons; and

(f) the offence against any law mentioned in paragraph (c) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Penalty: Imprisonment for 3 years.

Knowledge fault element for paragraphs (1)(b) and (2)(c)

(3) The fault element for paragraphs (1)(b) and (2)(c) is knowledge (by the first person).

Intention fault element for paragraphs (1)(c) and (2)(d)

(3A) The fault element for paragraphs (1)(c) and (2)(d) is intention (by the first person).

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (2)(f).

Note:     For absolute liability, see section 6.2.

Prosecution need not prove identity of certain persons

(5) In a prosecution for an offence against subsection (1) or (2), it is not necessary to prove the identity of any of the persons mentioned in paragraph (1)(d) or (2)(e).

Defence for certain kinds of associations

(6) This section does not apply to an association if:

(a) the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or

(b) the association is in a place being used for public religious worship and takes place in the course of practising a religion; or

(c) the association is only for the purpose of providing aid of a humanitarian nature; or

(d) the association is only for the purpose of providing legal advice or legal representation in connection with judicial or administrative proceedings under a law of the Commonwealth, a State, a Territory or a foreign country; or

(e) the association is reasonable in the circumstances.

Note:     A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3).

(6A) Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.

Other limits on this section

(7) A person who is convicted of an offence against subsection (1) or (2) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence against subsection (1) or (2) for other conduct of the person that takes place:

(a) at the same time as that conduct; or

(b) within 7 days before or after any of those occasions.

(8) This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.