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What makes a person a true citizen of a country is their allegiance to that country. As such, anyone who works against their government to see that it fails is guilty of a heinous crime. In the past, this offence often attracts the instant death penalty. But in recent times, many countries have replaced the death penalty with life imprisonment, including Australia.
In Australia, the Criminal Code Act 1995 (Cth) governs the acts that constitute treason and its penalties. However, not long ago, the Security Legislation Amendment (Terrorism) Act 2002 (Cth) brought about a new chapter 5 into the Criminal Code Act 1995 (Cth). This new chapter (The Security of the Commonwealth) of the Criminal Code Act 1995 (Cth) gives a modernised outlook on the crime of treason and other related offences.
Apart from the federal laws regarding treason, the different states in Australia, such as New South Wales, South Australia, and Victoria, also have their legislation concerning treason.
In this write-up, we will discuss treason at the federal and the state level in Australia. Consequently, this includes the actions that lead to the crime of treason, punishments that it attracts and possible defences.
If an individual is convicted for a Treason offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check. A treason offence is a serious indictable offence in Australia. The offence will remain on an individual’s criminal history check result for life and will not be eligible to get expunged after a certain period of time has elapsed under Spent Convictions Scheme laws.
Section 80.1 of the Criminal Code Act 1995 (Cth) states that a person can only be guilty of treason when:
Under this section, the crime of treason attracts the penalty of life imprisonment. Furthermore, this section clarifies that some actions also amount to the crime of treason and carry the penalty of life imprisonment.
The actions include when a person:
Under Section 80.1AA of the Criminal Code Act 1995 (Cth), it is an offence for any person to render material assistance to an enemy in an armed conflict with the Commonwealth or the Australian Defence Force. However, before the court can find a person guilty of this offence, the prosecution will have to prove that:
According to Section 80.1AA of the Criminal Code Act 1995 (Cth), an offender under this section is liable to life imprisonment.
A person can be guilty of treason at the state level. This is because some of the states in Australia have their legislation as regards treason. This legislation is mostly similar to the Federal laws on treason.
Here are the different states in Australia and their legislation on the crime of treason:
Section 12 of the Crimes Act 1900 (NSW) states that it is an offence for any person to:
Committing any of these offences attracts the life imprisonment sentence.
The South Australian legislation towards treason is similar to the New South Wales Legislation. Section 7 of the Criminal Law Consolidation Act 1935 (SA) states that:
An offender under this section is liable to life imprisonment or a term not less than six months.
Under Section 9A(1) of the Crimes Act 1958 (Vic), any person who commits the crime of treason is liable to life imprisonment or whatever imprisonment term the court sees fit. A person commits the act of treason when:
Furthermore, Section 9A(2) of the Crimes Act 1958 (Vic) makes it clear that a person could be guilty of an offence if:
Committing any of these offences carries a maximum of 20 years imprisonment.
According to Section 56 of the Criminal Code Act 1924 (Tas), a person commits the crime of treason when an individual:
In Tasmania, anyone guilty of treason is liable to imprisonment for the rest of the person's natural life or an imprisonment term that the court determines.
Also, Section 57 of the Criminal Code Act 1924 (Tas) makes it a crime of treason for a person to receive or help anyone who is guilty of treason. However, the person can only face charges for treason after the court has convicted the offender they received for the crime of treason.
Furthermore, Section 58 of the Criminal Code Act 1924 (Tas) makes it compulsory for any individual to report any known information regarding the intention of another person to commit the crime of treason. Failure to do this can result in a person being guilty of a crime.
At the federal level, prosecution for the crime of treason can only commence after the Attorney General has provided written consent. Before the commencement of the trial, the authorities can place a person under arrest and remand the individual without an option for bail until the Attorney General's consent.
At the state level, the proceeding for the crime of treason can only take place when the prosecution has presented at least two witnesses to corroborate the claim of one overt act of treason that the defendant expressed.
It is important to note that the prosecution must take the case to court in the space of at least two years after the commission of the crime. Failure to do so within this timeframe could result in the court dismissing the case. However, this does not apply to the crime of treason that involves killing or causing injury to the Sovereign.
The Federal Court of Australia handles the crime of treason at the federal level. While in the state, the District Court can in come circumstances conduct a trial for treason.
Based on Section 80.3 of the Criminal Code Act 1995 (Cth), the only claim available to counter the accusation of treason is the defence of an act done in good faith.
According to this section of the law, the court may not find a person guilty of treason if they carried out the act in the process of pointing out that there is an error in the counsels or policies of the following authorities:
Also, in this section, a person may not be guilty of a crime if they intended to try and reform the errors or defects in the Federal/State legislation and the administration of justice.
Committing the crime of treason in any part of Australia is an offence against the whole country. As such, the crime of treason is weighty and calls much attention from both the State and Federal governments. For this reason, it is best to seek legal counsel when facing charges for the crime of treason as the crime of treason often results in life imprisonment, whether at the State or Federal level.
If an individual is found guilty of a Treason offence in Australia, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal background check.
Due to the serious nature of a Treason offence and the long associated penalty, a treason offence will remain on an individual’s criminal record for life and will not be eligible for the Spent Convictions Scheme.
Individuals can obtain a criminal history check online via the Australian National Character Check - ANCC® website.
Criminal Code Act 1995 (Cth) - https://www.legislation.gov.au/Details/C2022C00034
Parliament of Australia (Chapter 4 - Treason) - https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Completed_Inquiries/pjcis/securityleg/report/chapter4
Treason (Defunct or Dormant?), Adam Reynolds, Monash University Law Review [Vol 26, No 1] - https://www.austlii.edu.au/au/journals/MonashULawRw/2000/6.pdf
Crimes Act 1900 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040
Criminal Law Consolidation Act 1935 (SA) - https://www.legislation.sa.gov.au/lz?path=%2FC%2FA%2FCRIMINAL%20LAW%20CONSOLIDATION%20ACT%201935
Crimes Act 1958 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/294
Criminal Code Act 1924 (Tas) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1924-069
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