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Committing an Offence at the Direction of an Organisation

Committing an offence at the direction of an organisation is a crime under section 390.5(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 7 years in prison.

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

  1. You committed an offence (the underlying offence)
  2. You did so at the direction of an organisation or a member thereof
  3. The organisation consisted of 2 or more persons
  4. The organisation’s aims or activities included facilitating engagement in conduct, or actually engaging in conduct, which constituted an offence for the benefit of the organisation
  5. That offence was a constitutionally covered offence carrying a maximum penalty of at least 3 years in prison, and
  6. The underlying offence was a constitutionally covered offence carrying a maximum penalty of at least 12 months 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, if it occurred in Australia, would constitute an offence.

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.

You may be found guilty even if your conduct did not actually aid the organisation.

Duress and necessity are defences to the charge.

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