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  • Treason Offences and Penalties in Australia

    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.

    What the Law at the Federal Level Says about the Crime of Treason and Related Offences

    Section 80.1 of the Criminal Code Act 1995 (Cth) states that a person can only be guilty of treason when:

    • The individual caused any harm or death to the Sovereign, the heir apparent or consort of the Sovereign, the Governor-General or, the Prime Minister.
    • They caused harm resulting in the death of the Sovereign, the Prime Minister, or Governor-General.
    • An individual imprisoned or caused any harm to the Sovereign, the Prime Minister, or Governor-General.
    • They mobilised war against the Commonwealth.
    • An individual instigated non-Australian citizens to carry out an armed invasion of the Commonwealth or the territory belonging to the Commonwealth.

    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:

    • Provide any form of assistance towards a person guilty of treason to help escape punishment for their crime.
    • Fail to give information to the constable regarding another person who they know intends to commit the crime of treason.

    Treason Committed by Assisting an Enemy to Engage in Armed Conflict

    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:

    • The defendant engaged in conduct to materially assist the enemy.
    • The accused's conduct materially helped the enemy in engaging the Commonwealth or the Australian Armed Forces in an armed conflict.
    • The accused knows that they are a citizen or a resident of Australia.
    • The defendant voluntarily put themselves under the protection of the Commonwealth or belongs to a corporate body recognised by the law of the Commonwealth.

    According to Section 80.1AA of the Criminal Code Act 1995 (Cth), an offender under this section is liable to life imprisonment.

    What The Law at the State Level Says about Treason

    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:

    #1. New South Wales

    Section 12 of the Crimes Act 1900 (NSW) states that it is an offence for any person to:

    • Try deposing or deposing the authority of the Queen, her successors, or heirs.
    • Mobilise for war against the Queen, her heir, or successors within the United Kingdom and wherever her dominion reaches. This could be to impose their wishes on the Queen or overthrow the parliaments in the United Kingdom or the NSW.
    • Instigate a foreigner or stranger to invade the United Kingdom or the countries within the jurisdiction of the Queen, her heir or successors and declare such an act in writing or orally.

    Committing any of these offences attracts the life imprisonment sentence.

    #2. South Australia

    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:

    • It is a crime for a person to attempt or carry out the act of deposing Her Majesty in the United Kingdom or any of her territories.
    • It is an offence for any individual to wage war against Her Majesty to impose their wishes or control the parliaments in the United Kingdom or South Australia.
    • A person becomes guilty of a crime when they stir up a foreigner to invade the United Kingdom or countries under Her Majesty's obeisance and declare their heinous act whether in writing or orally.

    An offender under this section is liable to life imprisonment or a term not less than six months.

    #3. Victoria

    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:

    • An individual restrains, imprisons, or injures the Sovereign in any way.
    • A person kills the heir apparent or the consort of the Sovereign.
    • An individual wages war or prepares to wage war against the Commonwealth of Australia.
    • A person tries to assist or assists another individual who is at war with the Commonwealth of Australia.
    • An individual instigates a foreigner to invade the Commonwealth or a territory not part of the Commonwealth.
    • A person intends to carry out any of the offences as mentioned earlier and expresses such intention openly, whether in writing or orally.

    Furthermore, Section 9A(2) of the Crimes Act 1958 (Vic) makes it clear that a person could be guilty of an offence if:

    • They Intentionally received or rendered any form of assistance to a person guilty of treason to help them escape punishment.
    • They refused to provide information to a constable after learning that another individual intended to commit the crime of treason, or they did not try to prevent the crime from happening.

    Committing any of these offences carries a maximum of 20 years imprisonment.

    #4. Tasmania

    According to Section 56 of the Criminal Code Act 1924 (Tas), a person commits the crime of treason when an individual:

    • Kills, injures, restrains, or imprisons the King.
    • Kills the heir apparent or the Queen Consort.
    • Has the intention of committing the crimes earlier mentioned and goes on to express intention whether in writing or orally.
    • Plans with someone else to imprison, restrain, injure, or kill the King.
    • Wages war to remove the King from power in the United Kingdom, Great Britain, Ireland, and other places under the Majesty's dominion.
    • Levies war against the King to control His decision or take charge of the parliaments under the King's dominion.
    • Conspires with a foreigner to wage war to depose the King or control the parliament.
    • Stirs a foreigner to carry out an armed invasion of the territories under the dominion of the King.
    • Renders assistance through any means to a known enemy at war with the King.
    • Whether with consent or not, violates the Queen Consort or the wife of the heir apparent.
    • Perpetrates any act that the law of England considers to be treason.

    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.

    Prosecution for the Crime of Treason at the Federal and State Level

    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.

    Possible Defence to the Crime of 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:

    • The Sovereign
    • The State Governor
    • A Territory Administrator
    • An adviser to any of the authorities mentioned above
    • A person in charge of the government of another country

    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.

    Bottom Line

    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.

    Will a Treason offence in Australia show up on a Nationally Coordinated Criminal History Check?

    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.

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