Commonwealth: Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)

Defence Legislation Amendment (Application of Criminal Code) Act 2001 Act No. 141 of 2001 as amended This compilation was prepared on 3 June 2003 [This Act was amended by Act No. 63 of 2002 and Act No. 135 of 2003] Amendments from Act No. 63 of 2002 [Schedule 2 (item 10) amended Item 41 of Schedule 1 Schedule 2 (item 10) commenced on 2 October 2001] Amendments from Act No. 135 of 2003 [Schedule 2 (item 28) repealed and substituted subsection 2(2)] Schedule 2 (item 9) commenced on 1 October 2001] Prepared by the Office of Legislative Drafting, Attorney‑General's Department, Canberra Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. 4 Application of amendments........................ Schedule 1—Amendment of Acts Part 1—Amendments relating to the Criminal Code Approved Defence Projects Protection Act 1947 Control of Naval Waters Act 1918 Defence Act 1903 Defence Force Discipline Act 1982 Defence Force Retirement and Death Benefits Act 1973 Defence Forces Retirement Benefits Act 1948 Defence (Special Undertakings) Act 1952 Military Superannuation and Benefits Act 1991 Naval Defence Act 1910 Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 Part 2—Technical amendment Defence Force Discipline Act 1982 An Act relating to the application of the Criminal Code to certain offences, and for other purposes [Assented to 1 October 2001] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Defence Legislation Amendment (Application of Criminal Code) Act 2001. 2 Commencement (1) Sections 1, 2, 3 and 4 commence on the day on which this Act receives the Royal Assent. (2) Part 1 of Schedule 1 commences on 15 December 2001. (3) Part 2 of Schedule 1 is taken to have commenced immediately after the commencement of item 35 of Schedule 2 to the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Application of amendments (1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences. (2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences. Schedule 1—Amendment of Acts Part 1—Amendments relating to the Criminal Code Approved Defence Projects Protection Act 1947 1 After section 3 Insert: 3A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 2 Subsection 4(1) Repeal the subsection, substitute: (1) A person is guilty of an offence if: (a) the person boycotts or threatens to boycott any person, property, work or undertaking; and (b) by doing so the first‑mentioned person: (i) prevents, hinders or obstructs the carrying out of an approved defence project; or (ii) endeavours to prevent, hinder or obstruct the carrying out of an approved defence project. (1A) A person is guilty of an offence if: (a) the person publishes a declaration of a boycott or threat of a boycott; and (b) as a result, the carrying out of an approved defence project is prevented, hindered or obstructed. (1B) A person is guilty of an offence if, by speech or writing, the person advocates or encourages the prevention, hindrance or obstruction of the carrying out of an approved defence project. (1C) Subsections (1), (1A) and (1B) do not apply if the person has a reasonable cause or excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (1C). See subsection 13.3(3) of the Criminal Code. (1D) A person is guilty of an offence if: (a) the person uses violence or a threat of violence to a person or property, or engages in any other unlawful conduct; and (b) by doing so the first‑mentioned person: (i) prevents, hinders or obstructs the carrying out of an approved defence project; or (ii) endeavours to prevent, hinder or obstruct the carrying out of an approved defence project. Control of Naval Waters Act 1918 3 After section 3 Insert: 3AA Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 4 Subsection 6(2) Repeal the subsection, substitute: (2) The master of a vessel is guilty of an offence if: (a) the master is given a direction under subsection (1); and (b) the master fails to comply with the direction. Maximum penalty: $1,000. (2A) An offence under subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Defence Act 1903 5 After section 5A Insert: 6 Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 6 Subsection 51S(3) Repeal the subsection. 7 Sections 61CY and 61CZ Repeal the sections, substitute: 61CY Failure of witness to attend (1) A person is guilty of an offence if: (a) the person is served under paragraph 61CQ(b) with a summons to appear before a Conscientious Objection Tribunal to give evidence and is tendered reasonable expenses; and (b) the person: (i) fails to attend as required by the summons; or (ii) fails to appear and report from day to day and has not been excused, or released from further attendance, by a member. Penalty: Imprisonment for 6 months. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code. (3) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(b). Note: For strict liability, see section 6.1 of the Criminal Code. 61CZ Refusal to be sworn or to answer questions etc. (1) A person is guilty of an offence if the person: (a) is required to produce a document by a summons under paragraph 61CQ(c) served on the person; and (b) refuses or fails to do so. Penalty: Imprisonment for 6 months. (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(c). Note: For strict liability, see section 6.1 of the Criminal Code. (3) A person is guilty of an offence if the person: (a) is appearing before a Conscientious Objection Tribunal to give evidence; and (b) is required under paragraph 61CQ(d) either to take an oath or to make an affirmation; and (c) refuses or fails to comply with the requirement. Penalty: Imprisonment for 6 months. (4) In paragraph (3)(b), strict liability applies to the physical element of circumstance, that the requirement is under paragraph 61CQ(d). Note: For strict liability, see section 6.1 of the Criminal Code. (5) A person is guilty of an offence if the person: (a) is appearing before a Conscientious Objection Tribunal to give evidence; and (b) is required to answer a question by the presiding member; and (c) refuses or fails to answer the question. Penalty: Imprisonment for 6 months. (6) Subsections (1), (3) and (5) do not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal Code. (7) A person is guilty of an offence if the person: (a) is appearing before a Conscientious Objection Tribunal to give evidence; and (b) gives evidence that is false or misleading in a material particular; and (c) knows that the evidence is false or misleading in the material particular. Penalty: Imprisonment for 6 months. 8 Sections 73 to 73E Repeal the sections, substitute: 73A Unlawfully giving or obtaining information as to defences (1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 is guilty of an offence if: (a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and (b) the communication is not in the course of the first‑mentioned person's official duty. (2) A person is guilty of an offence if: (a) the person obtains any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or air force aerodrome or establishment, or to any of the defences of the Commonwealth or any other naval, military or air force information; and (b) that conduct is unlawful. 9 Subsections 73F(1) and (2) Omit ", 73C, 73D or 73E". 10 Paragraph 79(1)(c) Omit "except for lawful cause (the proof of which shall lie upon him)". 11 After subsection 79(1) Insert: (1AA) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (1AB) Paragraph (1)(c) does not apply if the person proves that he or she had lawful cause for possessing the thing in question. Note: The defendant bears a legal burden in relation to the matter in subsection (1AB). See section 13.4 of the Criminal Code. 12 At the end of subsection 79(1A) Add: Note: The defendant bears a legal burden in relation to the matter in paragraph (1A)(b). See section 13.4 of the Criminal Code. 13 Subsection 80A(1) Repeal the subsection, substitute: (1) A person is guilty of an offence if: (a) the person represents himself or herself to be a returned soldier, sailor or airman; and (b) the representation is false. Penalty: $200 or imprisonment for 6 months, or both. 14 Subsection 80A(3) Repeal the subsection. 15 Subsection 80B(1) Repeal the subsection, substitute: (1) A person if guilty of an offence if: (a) the person wears a service decoration; and (b) the person is not the person on whom the decoration was conferred. Penalty: $200. 16 At the end of subsection 80B(2) Add: Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code. 17 At the end of subsection 80B(3) Add: Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code. 18 At the end of subsection 80B(4) Add: Penalty: $200. 19 Subsections 82(1), (2) and (3) Repeal the subsections, substitute: (1) If: (a) a person makes a sketch, drawing, photograph, picture or painting of any defence installation in Australia or of any part of one; and (b) the person has no lawful authority to do so; then: (c) the person is guilty of an offence; and (d) all sketches, drawings, photographs, pictures, and paintings, and all tools and all materials or apparatus for sketching, drawing, photographing or painting found in his or her possession are forfeited and may be destroyed, sold, or otherwise disposed of, as the Governor‑General directs. (1A) The maximum penalty for an offence under subsection (1) is a fine of $200, imprisonment for 6 months, or both. (2) If: (a) a person enters or approaches any defence installation with sketching, drawing, photographing, or painting materials or apparatus in his or her possession; and (b) the person has no lawful authority for that conduct; and (c) the person intends to contravene subsection (1); then: (d) the person is guilty of an offence; and (e) all tools and all materials or apparatus for sketching, drawing, photographing or painting found in his or her possession are forfeited and may be destroyed, sold, or otherwise disposed of, as the Governor‑General directs. (2A) The maximum penalty for an offence under subsection (2) is a fine of $100. (3) A person is guilty of an offence if the person trespasses on: (a) a defence installation, or on any land reserved for or forming part of one (whether or not any erection, fort, fortification, or work of any kind is on the land); or (b) a building or land reserved or set apart for or used in connection with the administration, accommodation, or training of any part of the Defence Force; or (c) an aircraft. Penalty: $40. 20 At the end of section 82 Add: (5) In this section: defence installation means any fort, battery, fieldwork, fortification, aircraft, air force establishment or aircraft material or any naval, military or air force work of defence. 21 Subsections 83(1), (2) and (3) Repeal the subsections, substitute: (1) A person who is not a member of the Defence Force is guilty of an offence if: (a) the person uses or wears a defence emblem or an emblem so nearly resembling a defence emblem as to be capable of being mistaken for such an emblem; and (b) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so. Penalty: $200. (2) A person is guilty of an offence if: (a) the person makes, supplies or offers to supply a defence emblem or an emblem so nearly resembling a defence emblem as to be capable of being mistaken for such an emblem; and (b) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so. Penalty: $500. (3) A person is guilty of an offence if: (a) the person flies or displays a defence flag; and (b) the person is not a member of the Defence Force acting in the course of his or her duties; and (c) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so. Penalty: $200. 22 After subsection 83(4) Insert: (4A) An offence under subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 23 At the end of subsection 83(5) Add: Note: The defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal Code. 24 At the end of section 84 Add: (2) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 25 Sections 86 and 88 Repeal the sections, substitute: 86 Failure of witness to appear (1) A person is guilty of an offence if: (a) the person has been served with a summons under the Defence Force Discipline Act 1982 to appear as a witness before a service tribunal; and (b) the person: (i) fails to appear as required by the summons; or (ii) fails to appear and report himself or herself from day to day and has not been excused or released by the tribunal from further attendance. Penalty: $1,000 or imprisonment for 6 months, or both. (2) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code. 88 False or misleading evidence A person who is appearing as a witness before a service tribunal is guilty of an offence if: (a) the person gives evidence; and (b) the evidence is false or misleading; and (c) the person knows that the evidence is false or misleading. Penalty: $1,000 or imprisonment for 6 months, or both. 26 After subsection 89(1) Insert: (1A) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 27 Section 90 Repeal the section, substitute: (1) A person is guilty of an offence if: (a) an order under section 140 of the Defence Force Discipline Act 1982 applies to the person; and (b) the person contravenes or fails to comply with the order. Penalty: $1,000 or imprisonment for 6 months, or both. (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the order is under section 140 of the Defence Force Discipline Act 1982. Note: For strict liability, see section 6.1 of the Criminal Code. 28 Paragraph 106(b) Omit "intentionally". 29 At the end of section 106 Add: (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the requirement is under section 94. Note: For strict liability, see section 6.1 of the Criminal Code. 30 Paragraph 107(a) Repeal the paragraph, substitute: (a) a sample is provided by a member pursuant to a requirement made by an authorised person under section 94; and (aa) the person interferes with, or otherwise deals with, the sample; and 31 At the end of section 107 Add: (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the requirement is under section 94. Note: For strict liability, see section 6.1 of the Criminal Code. 32 Subsection 116W(5) Repeal the subsection, substitute: (5) A person is guilty of an offence if: (a) a ranger makes a requirement of the person under this section; and (b) the person fails to comply with the requirement. Penalty: $1,000. (6) An offence under subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (7) Subsection (5) does not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (7). See subsection 13.3(3) of the Criminal Code. 33 Section 116Y Repeal the section, substitute: (1) A person is guilty of an offence if: (a) the person assaults or threatens another person; and (b) that other person is a ranger performing his or her duties under this Part or the by‑laws. Penalty: $5,000 or imprisonment for 2 years, or both. (2) In paragraph (1)(b), strict liability applies to the physical element of circumstance, that the performance of the duties is under this Part or the by‑laws. Note: For strict liability, see section 6.1 of the Criminal Code. 34 Section 118 Repeal the section, substitute: 118 Penalty against raising forces without authority A person is guilty of an offence if: (a) the person induces another person to enlist or engage to serve in any naval, military or air force; and (b) the raising of that force has not been authorised by or under this Act or another Act. Penalty: Imprisonment for 6 months. 35 Section 123AA Repeal the section, substitute: 123AA Intoxicating liquor not to be supplied to cadets (1) A person is guilty of an offence if: (a) the person sells or supplies intoxicating liquor to another person; and (b) the person is a member of the Australian Cadet Corps, is under such age as is prescribed, and is in uniform. Penalty: $40. (2) Subsection (1) does not apply if the liquor is sold or supplied by direction of a duly qualified medical practitioner. Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code. (3) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 36 Saving—regulations Regulations that were in effect for the purposes of section 123AA of the Defence Act 1903 immediately before the commencement of this item continue to have effect after that time as if they had been made for the purposes of section 123AA of that Act, as in force after that time. Defence Force Discipline Act 1982 37 Subsection 3(1) Insert: engage in conduct means: (a) do an act; or (b) omit to perform an act. 38 Subsection 3(1) (definition of property) Repeal the definition, substitute: property includes: (a) real property; and (b) personal property; and (c) money; and (d) a thing in action or other intangible property; and (e) electricity; and (f) a wild creature that is: (i) tamed; or (ii) ordinarily kept in captivity; or (iii) reduced (or in the course of being reduced) into the possession of a person. 39 Subsection 3(13) Repeal the subsection, substitute: (13) In this Act, an offence is an ancillary offence in relation to another offence if the first‑mentioned offence is an offence against: (a) section 11.1, 11.4 or 11.5 of the Criminal Code; or (b) section 6 of the Crimes Act 1914; that relates to that other offence. 40 Section 10 Repeal the section, substitute: 10 Application of the Criminal Code Chapter 2 of the Criminal Code applies to all service offences, other than old system offences. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 41 Subsection 11(3) Omit "the principles of the common law that apply in relation to", substitute "the application of Chapter 2 of the Criminal Code to". 42 After subsection 11(3) Insert: (3A) In particular, subsections (1) and (2) merely provide for matters to which a service tribunal must have regard in deciding whether a member was reckless, or negligent. They do not alter the definitions of recklessness and negligence in sections 5.4 and 5.5 of the Criminal Code. (3B) Subsections (1) and (2) do not limit the matters to which a service tribunal may have regard. 43 Sections 12 and 13 Repeal the sections. 44 Divisions 1 to 6 of Part III Repeal the Divisions, substitute: Division 1—Offences relating to operations against the enemy 15 Abandoning or surrendering a post etc. (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person has a duty to defend or destroy a place, post, service ship, service aircraft or service armoured vehicle; and (b) the person knows of that duty; and (c) the person abandons or surrenders to the enemy the place or thing mentioned in paragraph (a). Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15A Causing the capture or destruction of a service ship, aircraft or vehicle (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct causes the capture or destruction by the enemy of a service ship, service aircraft or service armoured vehicle; and (c) by engaging in the conduct, the person intends to bring about that result. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15B Aiding the enemy while captured (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is captured by the enemy; and (b) the person serves with the enemy, aids the enemy in prosecuting hostilities or measures likely to influence morale or aids the enemy in any other manner that is not authorised by international law. Maximum punishment: Imprisonment for life. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15C Providing the enemy with material assistance (1) A person who is a defence member or a defence civilian is guilty of an offence if the person provides the enemy with, or permits or enables the enemy to have access to, arms, ammunition, vehicles, supplies of any description or any other thing likely to assist the enemy. Maximum punishment: Imprisonment for life. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15D Harbouring enemies (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person harbours or protects another person; and (b) that other person is an enemy person; and (c) that other person is not a prisoner of war; and (d) the first‑mentioned person knows that the other person is an enemy person. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15E Offences relating to signals and messages (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is engaged on service in connection with operations against the enemy; and (b) the person: (i) gives a signal, message or other communication that the person knows to be false; or (ii) alters or interferes with a signal, message or other communication; or (iii) alters or interferes with apparatus for giving or receiving a signal, message or other communication. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15F Failing to carry out orders (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person: (i) is ordered by his or her superior officer to prepare for, or to carry out, operations against the enemy; or (ii) is otherwise under orders to prepare for, or to carry out, operations against the enemy; and (b) the person does not use his or her utmost exertions to carry those orders into effect. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 15G Imperilling the success of operations (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in any conduct; and (b) the conduct imperils the success of operations against the enemy. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 16 Communicating with the enemy (1) A person who is a defence member or a defence civilian is guilty of an offence if the person communicates with, or gives intelligence to, the enemy. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. 16A Failing to report information received from the enemy (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person receives information from the enemy; and (b) the person does not make the information known to proper authority; and (c) the information is likely to be directly or indirectly useful in operations against the enemy; and (d) the person knows or could reasonably be expected to know that the information is likely to be directly or indirectly useful in operations against the enemy. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 16B Offence committed with intent to assist the enemy (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct that constitutes an offence against any of sections 15 to 16A (other than section 15B or 15C); and (b) the person engages in that conduct with intent to assist the enemy. Maximum punishment: Imprisonment for life. (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the conduct constitutes an offence against the section concerned. Note: For strict liability, see section 6.1 of the Criminal Code. 17 Leaving a post, abandoning equipment or otherwise failing to perform duty (1) A defence member is guilty of an offence if the member is engaged on service in connection with operations against the enemy and: (a) the member: (i) has a duty to be at a post, position or other place; and (ii) leaves the post, position or place; or (b) the member abandons his or her weapons or other equipment; or (c) the member does not properly perform his or her duty in any other manner in attacking or defending against the enemy. Maximum punishment: Imprisonment for 5 years. (2) It is a defence if the member proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code. (3) In this section: equipment includes vehicles, ammunition, instruments and tools. 18 Endangering morale (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person spreads a report; and (b) the report relates to operations against the enemy; and (c) by spreading the report the person intends to create despondency or unnecessary alarm. Maximum punishment: Imprisonment for 2 years. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is engaged on service in connection with operations against the enemy; and (b) the person spreads a report; and (c) the report relates to operations against the enemy; and (d) by spreading the report the person intends to create despondency or unnecessary alarm. Maximum punishment: Imprisonment for 5 years. 19 Conduct after capture by the enemy (1) A defence member is guilty of an offence if: (a) the member is captured by the enemy; and (b) any reasonable steps are available to the member to rejoin his or her force; and (c) the member does not take those steps. Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) the member and another person are captured by the enemy; and (b) any reasonable steps are available to the other person to rejoin his or her force; and (c) the member prevents or discourages the other person from taking those steps. Maximum punishment: Imprisonment for 5 years. (3) A defence member is guilty of an offence if: (a) the member is captured by the enemy; and (b) the member engages in conduct with the intention of securing favourable treatment for himself or herself; and (c) the conduct is detrimental to other persons also captured by the enemy. Maximum punishment: Imprisonment for 5 years. (4) A defence member is guilty of an offence if: (a) the member is captured by the enemy; and (b) the member is in a position of authority over other persons also captured by the enemy; and (c) the member ill‑treats those other persons. Maximum punishment: Imprisonment for 5 years. Division 2—Mutiny, desertion and unauthorised absence 20 Mutiny (1) A defence member who takes part in a mutiny is guilty of an offence. Maximum punishment: Imprisonment for 10 years. (2) A defence member is guilty of an offence if: (a) the member takes part in a mutiny; and (b) the mutiny's object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service. Maximum punishment: Imprisonment for life. 21 Failing to suppress mutiny (1) A defence member is guilty of an offence if: (a) a mutiny is taking place or is intended; and (b) the member knows that fact; and (c) the member does not take reasonable steps: (i) to suppress or prevent the mutiny; or (ii) to report to proper authority without delay that the mutiny is taking place or is intended. Maximum punishment: Imprisonment for 2 years. (2) A defence member is guilty of an offence if: (a) a mutiny is taking place or is intended; and (b) the member knows that fact; and (c) the member knows, or could reasonably be expected to know, that the mutiny's object, or one of its objects, is: (i) the refusal or avoidance of duty or service in connection with operations against the enemy; or (ii) the impeding of the performance of such duty or service; and (d) the member does not take reasonable steps: (i) to suppress or prevent the mutiny; or (ii) to report to proper authority without delay that the mutiny is taking place or is intended. Maximum punishment: Imprisonment for 5 years. 22 Desertion (1) A defence member is guilty of an offence if the member: (a) is on active service or has been warned for active service; and (b) without leave, and with the intention of avoiding that service, departs from, or does not attend at, his or her place of duty. Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) the member is absent without leave; and (b) the member engages in conduct; and (c) the conduct manifests an intention to avoid active service. Maximum punishment: Imprisonment for 5 years. 23 Absence from duty (1) A defence member is guilty of an offence if the member: (a) is required to attend for duty; and (b) does not attend for the duty. Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if the member: (a) is required to perform a duty; and (b) ceases to perform the duty before he or she is permitted to do so. Maximum punishment: Imprisonment for 12 months. (3) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) It is a defence to a charge under this section if the person proves that he or she had a reasonable excuse for engaging in the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code. 24 Absence without leave (1) A defence member who is absent without leave is guilty of an offence. Maximum punishment: Imprisonment for 12 months. (2) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she was absent due to circumstances not reasonably within the member's control. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. Division 3—Insubordination and violence 25 Assaulting a superior officer (1) A defence member is guilty of an offence if: (a) the member assaults a person; and (b) that person is a superior officer. Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(b). Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 26 Insubordinate conduct (1) A defence member is guilty of an offence if: (a) the member engages in conduct that is threatening, insubordinate or insulting to a person; and (b) the person is a superior officer. Maximum punishment: Imprisonment for 6 months. (2) A defence member is guilty of an offence if: (a) the member uses language that is threatening, insubordinate or insulting about a person; and (b) the language is used in that person's presence; and (c) the person is a superior officer. Maximum punishment: Imprisonment for 6 months. (3) An offence against this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code. 27 Disobeying a lawful command (1) A defence member is guilty of an offence if: (a) a person gives the member a lawful command; and (b) the person giving the command is a superior officer; and (c) the member disobeys the command. Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraphs (1)(b) and (c). Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person who gave the command was a superior officer. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 28 Failing to comply with a direction in relation to a ship, aircraft or vehicle (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is in or near a service ship, service aircraft or service vehicle; and (b) the person is given a lawful direction by, or with the authority of, the person in command of the ship, aircraft or vehicle; and (c) the direction: (i) relates to the sailing or handling of the ship, the flying or handling of the aircraft or the handling of the vehicle; or (ii) affects the safety of the ship, aircraft or vehicle or of the persons on board the ship, aircraft or vehicle; and (d) the first‑mentioned person does not comply with the direction. Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(d). Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 29 Failing to comply with a general order (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) a lawful general order applies to the person; and (b) the person does not comply with the order. Maximum punishment: Imprisonment for 12 months. (2) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the order. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 30 Assaulting a guard (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person assaults another person; and (b) that other person is a member of the Defence Force or of an allied force; and (c) that other person is on guard duty. Maximum punishment: Imprisonment for 2 years. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is engaged on service in connection with operations against the enemy; and (b) the person assaults another person; and (c) that other person is a member of the Defence Force or of an allied force; and (d) that other person is on guard duty. Maximum punishment: Imprisonment for 5 years. 31 Obstructing a police member (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person obstructs another person; and (b) that other person: (i) is a police member acting in the performance of his or her duty; or (ii) is lawfully exercising authority under or on behalf of a service police officer. Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if: (a) the member is called on to assist another person; and (b) that other person: (i) is a police member acting in the performance of his or her duty; or (ii) is lawfully exercising authority under or on behalf of a service police officer; and (c) the member refuses to assist that other person. Maximum punishment: Imprisonment for 12 months. (3) In paragraphs (1)(b) and (2)(b), strict liability applies to the physical element of circumstance, that the person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer. Note: For strict liability, see section 6.1 of the Criminal Code. (4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer, as the case requires. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code. 32 Person on guard or on watch (1) A defence member is guilty of an offence if the member is on guard duty or on watch and the member: (a) sleeps at the member's post or on watch; or (b) is not on duty at a post but sleeps when the member's duty requires him or her to be awake; or (c) is intoxicated (see subsection (5)); or (d) leaves his or her post before being regularly relieved or otherwise absents himself or herself from a place where it is the member's duty to be. Maximum punishment: Imprisonment for 12 months. (2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (3) A defence member is guilty of an offence if the member: (a) is engaged on service in connection with operations against the enemy; and (b) is on guard duty or on watch; and (c) engages in conduct that constitutes an offence against subsection (1). Maximum punishment: Imprisonment for 5 years. (4) Strict liability applies to paragraph (3)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (5) For the purposes of this section, a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform. (6) It is a defence if a person charged with an offence under this section proves that he or she had a reasonable excuse for engaging in the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (6). See section 13.4 of the Criminal Code. 33 Assault, insulting or provocative words etc. A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person: (a) assaults another person; or (b) creates a disturbance or takes part in creating or continuing a disturbance; or (c) within the view or hearing of another person, engages in conduct that is obscene; or (d) uses insulting or provocative words to another person. Maximum punishment: Imprisonment for 6 months. 34 Assaulting an inferior (1) A defence member is guilty of an offence if: (a) the member assaults or ill‑treats a person; and (b) the person is a member of the Defence Force who is of inferior rank to the member. Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(b). Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was a member of the Defence Force of inferior rank to the member. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. Division 4—Offences relating to performance of duty 35 Negligent performance of duty A defence member is guilty of an offence if the member: (a) is required by the member's office or appointment to perform a duty; and (b) by act or omission, performs that duty negligently. Maximum punishment: Imprisonment for 3 months. 36 Dangerous conduct (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct is in or in connection with: (i) the operation, handling, servicing or storage; or (ii) the giving of directions with respect to the operation, handling, servicing or storage; of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and (d) the first‑mentioned person knows of the matter mentioned in paragraph (c); and (e) where the person mentioned in paragraph (c) is an enemy person—the conduct is not in the execution of the first‑mentioned person's duty. Maximum punishment: Imprisonment for 10 years. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct is in or in connection with: (i) the operation, handling, servicing or storage; or (ii) the giving of directions with respect to the operation, handling, servicing or storage; of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and (d) the first‑mentioned person is reckless as to the matter mentioned in paragraph (c); and (e) where the person mentioned in paragraph (c) is an enemy person—the conduct is not in the execution of the first‑mentioned person's duty. Maximum punishment: Imprisonment for 5 years. (3) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct is in or in connection with: (i) the operation, handling, servicing or storage; or (ii) the giving of directions with respect to the operation, handling, servicing or storage; of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and (d) the first‑mentioned person is negligent as to the matter mentioned in paragraph (c); and (e) where the person mentioned in paragraph (c) is an enemy person—the conduct is not in the execution of the first‑mentioned person's duty. Maximum punishment: Imprisonment for 2 years. 36A Unauthorised or negligent discharge of weapon (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person discharges a weapon; and (b) the person is not authorised to discharge the weapon in the circumstances in which the discharge takes place. Maximum punishment: Imprisonment for 6 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if, by act or omission, the person negligently causes or contributes to the discharge of a weapon. Maximum punishment: Imprisonment for 6 months. 37 Intoxicated while on duty etc. (1) A defence member is guilty of an offence if: (a) the member is on duty, or reports or should report for duty; and (b) the member is intoxicated (see subsection (3)). Maximum punishment: Imprisonment for 6 months. (2) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) For the purposes of this section, a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform. 38 Malingering (1) A defence member is guilty of an offence if, with intent to make or keep himself or herself unfit for duty or service, the member: (a) injures himself or herself or causes or permits himself or herself to be injured; or (b) by act or omission, causes himself or herself to suffer from a sickness or disability or prolongs or aggravates a sickness or disability from which he or she is suffering. Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if: (a) the member represents himself or herself to be suffering from a physical or mental condition; and (b) the member makes the representation with intent to avoid duty or service; and (c) the representation is false; and (d) the member knows that the representation is false. Maximum punishment: Imprisonment for 12 months. Division 5—Offences relating to ships, vehicles, aircraft and weapons 39 Loss of, or hazard to, service ship (1) A defence member is guilty of an offence if: (a) the member engages in conduct; and (b) the conduct causes or allows a service ship to be lost, stranded or hazarded; and (c) the member intends that the conduct will have that result. Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) the member engages in conduct; and (b) the conduct causes or allows a service ship to be lost, stranded or hazarded; and (c) the member is reckless as to whether the conduct will have that result. Maximum punishment: Imprisonment for 2 years. (3) A defence member is guilty of an offence if: (a) the member engages in conduct; and (b) the conduct causes or allows a service ship to be lost, stranded or hazarded; and (c) the member is negligent as to whether the conduct will have that result. Maximum punishment: Imprisonment for 6 months. 40 Driving while intoxicated (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a service vehicle in any place, whether a public place or not; and (b) the person is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle. Maximum punishment: Imprisonment for 12 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a vehicle on service land; and (b) the person is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle. Maximum punishment: Imprisonment for 12 months. (3) An offence under this section is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code. 40A Dangerous driving (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a service vehicle in any place, whether a public place or not; and (b) the person does so at a speed, or in a manner, dangerous to another person in that place. Maximum punishment: Imprisonment for 6 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a vehicle on service land; and (b) the person does so at a speed, or in a manner, dangerous to another person on that land. Maximum punishment: Imprisonment for 6 months. (3) Absolute liability applies to paragraphs (1)(a) and (2)(a). Note: For absolute liability, see section 6.2 of the Criminal Code. (4) Strict liability applies to paragraphs (1)(b) and (2)(b). Note: For strict liability, see section 6.1 of the Criminal Code. 40B Negligent conduct in driving (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a service vehicle in any place, whether a public place or not; and (b) in doing so, the person engages in negligent conduct. Maximum punishment: Imprisonment for 3 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a vehicle on service land; and (b) in doing so, the person engages in negligent conduct. Maximum punishment: Imprisonment for 3 months. (3) Absolute liability applies to paragraphs (1)(a) and (2)(a). Note: For absolute liability, see section 6.2 of the Criminal Code. 40C Driving a service vehicle for unauthorised purpose (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person: (i) drives a service vehicle in any place, whether a public place or not; and (ii) is not authorised to drive that vehicle; or (b) the person uses a service vehicle for an unauthorised purpose. Maximum punishment: Imprisonment for 3 months. (2) An offence under this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence to a charge under subsection (1) if the person proves that he or she had a reasonable excuse for the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 40D Driving without due care or attention etc. (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a service vehicle in any place, whether a public place or not; and (b) the person does so without due care and attention or without reasonable consideration for another person in that place. Maximum punishment: (c) if the person is a member of the Defence Force—a fine of the amount of the member's pay for 7 days; or (d) in any other case—a fine of $100. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person drives a vehicle on service land; and (b) the person does so without due care and attention or without reasonable consideration for another person on that land. Maximum punishment: (c) if the person is a member of the Defence Force—a fine of the amount of the member's pay for 7 days; or (d) in any other case—a fine of $100. (3) An offence under this section is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code. 41 Low flying (1) A defence member is guilty of an offence if: (a) the member flies a service aircraft; and (b) by or in accordance with a lawful general order, there is a minimum height at which the member is authorised to fly; and (c) the height at which the member flies is less than that minimum height; and (d) the member is reckless or negligent as to the matter in paragraph (c). Maximum punishment: Imprisonment for 12 months. (2) Strict liability applies to paragraph (1)(b). Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the general order. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 42 Inaccurate certification in relation to ships, aircraft, vehicles etc. A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person gives a certificate, makes or signs a document or makes an entry in a document; and (b) the certificate, document or entry relates to any matter affecting the safety or efficiency of a service ship, service aircraft, service vehicle, service missile or service weapon; and (c) the person does not take reasonable care to ensure the accuracy of the certificate, document or entry. Maximum punishment: Imprisonment for 12 months. Division 5A—Property offences Subdivision A—Service property offences 43 Destroying or damaging service property (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct results in the destruction of, or damage to, service property; and (c) the person intends that result. Maximum punishment: Imprisonment for 5 years. (2) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct results in the destruction of, or damage to, service property; and (c) the person is reckless as to that result. Maximum punishment: Imprisonment for 2 years. (3) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person engages in conduct; and (b) the conduct results in the destruction of, or damage to, service property; and (c) the person is negligent as to that result. Maximum punishment: Imprisonment for 6 months. (4) It is a defence to a charge under subsection (1) if the person proves that he or she had a reasonable excuse for engaging in the relevant conduct. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code. 44 Losing service property (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person loses any property; and (b) the property is, or forms part of, service property issued for the person's use, or entrusted to the person's care, in connection with the person's duties. Maximum punishment: Imprisonment for 6 months. (2) Absolute liability applies to paragraph (1)(a). Note: For absolute liability, see section 6.2 of the Criminal Code. (3) It is a defence if the person proves that he or she took reasonable steps for the safe‑keeping of the lost property. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. 45 Unlawful possession of service property (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is in possession of service property; and (b) the person has no lawful authority for being in possession of the property. Maximum punishment: Imprisonment for 6 months. (2) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the person proves that he or she: (a) was not aware that he or she was in possession of the property; or (b) was not aware that the property was service property; or (c) had a reasonable excuse for his or her possession of the property without authority. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. Subdivision B—Possession of property suspected of having been unlawfully obtained 46 Possession of property suspected of having been unlawfully obtained (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person is in possession of property; and (b) the property may reasonably be suspected of having been unlawfully obtained. Maximum punishment: Imprisonment for 6 months. (2) An offence under subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence if the person proves that he or she: (a) was not aware that he or she was in possession of the property; or (b) was not aware of the circumstances by reason of which that property may reasonably be suspected of having been unlawfully obtained; or (c) had a reasonable excuse for his or her possession of the property. Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code. (4) It is a defence if the person proves that the property was not unlawfully obtained. Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code. Subdivision C—Fraudulent conduct 47 When property belongs to a person (1) For the purposes of this Subdivision, property belongs to a person if, and only if: (a) the person has possession or control of the property; or (b) the person has a proprietary right or interest in the property, other than an equitable interest arising only from: (i) an agreement to transfer an interest; or (ii) an agreement to grant an interest; or (iii) a constructive trust. (2) Subsection (1) has effect subject to subsections 134.1(9) and (10) of the Criminal Code (which deal with money transfers). 47A Dishonesty For the purposes of this Subdivision, dishonest means: (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people. Note: In the case of the offence of theft, see also section 47D. 47B Determination of dishonesty to be a matter for the trier of fact In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact. 47C Theft (1) A person who is a defence member or a defence civilian is guilty of an offence if the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property. Maximum punishment: Imprisonment for 5 years. (2) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of theft. 47D Special rules about the meaning of dishonesty (1) For the purposes of this Subdivision, a person's appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2) However, the rule in subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative. (3) For the purposes of this Subdivision, a person's appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property. 47E Appropriation of property (1) For the purposes of this Subdivision, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. This includes, in a case where a person has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner. (2) For the purposes of this Subdivision, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor's title, amount to an appropriation of the property. 47F Theft of land or things forming part of land (1) For the purposes of this Subdivision, a person cannot commit theft of land, except in the following cases: (a) the case where the