Section 390.3 Criminal Code Act 1995
Associating in Support of Serious Organised Criminal Activity

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Associating in support of serious criminal activity is an offence under section 390.3(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You associated with a person
  2. You did so on 2 or more occasions
  3. The person engaged in, or proposed to engage in, conduct constituting an offence, or was part of conduct constituting an offence
  4. Your association facilitated the engagement of the offence, or proposed engagement of the offence
  5. The offence involved 2 or more persons, and
  6. The offence was a constitutionally covered offence carrying a maximum penalty of at least 3 years in prison.

A ‘constitutionally covered offence’ is:

  1. An offence against the Commonwealth
  2. A state offence that has a federal aspect
  3. An offence against a territory, or
  4. A foreign offence which would constitute an offence if it occurred in Australia.

A ‘foreign offence’ is one against a foreign country or part thereof.

A ‘state offence has a federal aspect’ if:

  1. It is not an ancillary offence, and
  2. It would have been a valid law if enacted by the Commonwealth.

Or:

  1. It is an ancillary offence that relates to a particular primary offence, and
  2. It would have been a valid law if enacted by the Commonwealth.

The definition includes a state offence that:

  1. Affects the interests of the Commonwealth, a Commonwealth body or constitutional corporation
  2. Is engaged in by a constitutional corporation or Commonwealth place
  3. Involves the use of a postal or like service, or an electronic communication
  4. Involves trade or commerce with other countries, between states or territories, or within a territory
  5. Involves banking or insurance
  6. Relates to an international agreement to which Australia is a party, or
  7. Relates to a matter affecting relations between Australia and another country, or is otherwise a subject of international concern.

An ‘ancillary offence’ is:

  1. Conspiring to commit the primary offence
  2. Aiding, abetting, counselling, procuring or being knowingly concerned in the primary offence, or
  3. Attempting to commit the primary offence.

An ‘electronic communication’ is one that occurs by means of guided and/or unguided electromagnetic energy. This includes phone calls, text messages and internet transmissions such as emails and social media posts and exchanges.

It is not necessary for the prosecution to prove the identity of the person associated with however, you are not guilty of the offence if you are able to establish ‘on the balance of probabilities’ that your association was:

  1. With a close family member and related to a matter of family or domestic concern
  2. In a place used for public religious worship and took place in the course of practising religion
  3. Solely for providing humanitarian assistance
  4. Solely for providing legal advice or representation in connection with judicial proceedings, or
  5. Otherwise reasonable in the circumstances.

A ‘close family member’ is defined as:

  1. A spouse or de facto partner
  2. A parent, step-parent or grandparent
  3. A child, step-child or grandchild
  4. A brother, sister, stepbrother or stepsister, or
  5. A guardian or carer.

Duress and necessity are defences to the charge.


Associating in support of serious criminal activity – repeat offence is a crime under section 390.3(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were convicted of an offence under section 390.3(1) being the offence of associating in support of serious criminal activity, and
  2. You committed the same offence after the date of your conviction.

An offence under section 390.3(1) requires the prosecution to prove beyond reasonable doubt that:

  1. You associated with a person
  2. You did so on 2 or more occasions
  3. The person engaged in, or proposed to engage in, conduct constituting an offence, or was part of conduct constituting an offence
  4. Your association facilitated the engagement of the offence, or proposed engagement of the offence
  5. The offence involved 2 or more persons, and
  6. The offence was a constitutionally covered offence carrying a maximum penalty of at least 3 years in prison.

A ‘constitutionally covered offence’ is:

  1. An offence against the Commonwealth
  2. A state offence that has a federal aspect
  3. An offence against a territory, or
  4. A foreign offence which would constitute an offence if it occurred in Australia.

A ‘foreign offence’ is one against a foreign country or part thereof.

A ‘state offence has a federal aspect’ if:

  1. It is not an ancillary offence, and
  2. It would have been a valid law if enacted by the Commonwealth.

Or:

  1. It is an ancillary offence that relates to a particular primary offence, and
  2. It would have been a valid law if enacted by the Commonwealth.

The definition includes a state offence that:

  1. Affects the interests of the Commonwealth, a Commonwealth body or constitutional corporation
  2. Is engaged in by a constitutional corporation or Commonwealth place
  3. Involves the use of a postal or like service, or an electronic communication
  4. Involves trade or commerce with other countries, between states or territories, or within a territory
  5. Involves banking or insurance
  6. Relates to an international agreement to which Australia is a party, or
  7. Relates to a matter affecting relations between Australia and another country, or is otherwise a subject of international concern.

An ‘ancillary offence’ is:

  1. Conspiring to commit the primary offence
  2. Aiding, abetting, counselling, procuring or being knowingly concerned in the primary offence, or
  3. Attempting to commit the primary offence.

An ‘electronic communication’ is one that occurs by means of guided and/or unguided electromagnetic energy.

This includes phone calls, text messages and internet transmissions such as emails and social media posts and exchanges.

It is not necessary for the prosecution to prove the identity of the person associated with however, you are not guilty of the offence if you are able to establish ‘on the balance of probabilities’ that your association was:

  1. With a close family member and related to a matter of family or domestic concern
  2. In a place used for public religious worship and took place in the course of practising religion
  3. Solely for providing humanitarian assistance
  4. Solely for providing legal advice or representation in connection with judicial proceedings, or
  5. Otherwise reasonable in the circumstances.

A ‘close family member’ is defined as:

  1. A spouse or de facto partner
  2. A parent, step-parent or grandparent
  3. A child, step-child or grandchild
  4. A brother, sister, stepbrother or stepsister, or
  5. A guardian or carer.

You cannot be convicted of the offence if your conduct took place:

  1. At the same time as conduct relating to the original offence, or
  2. Within 7 days before or after conduct relating to that offence.

Duress and necessity are defences to the charge.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Associating in Support of Serious Organised Criminal Activity matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

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.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

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    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

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  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

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  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

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    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

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  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

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  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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