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Associating in Support of Serious Criminal Activity – Repeat Offence

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.

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