Crimes (Currency) Act 1981

The Act casts a wide net. Section 5 gives it extraterritorial operation “except so far as the contrary intention appears” and applies to all persons regardless of nationality. Section 23, however, limits prosecutorial exposure: a person may be charged only if the offence occurs in Australia or on an Australian ship or aircraft or, if outside Australia, the offence “relates to Australian money”.

Natural persons and bodies corporate are both liable. Penalty provisions expressly differentiate between them: individuals face imprisonment (up to 14 years for making under s 6) while corporations face penalty units only. The definition of “person” therefore includes companies, and s 5A applies the Criminal Code’s organisational liability rules.

Specific classes of persons are given positive duties or special status. Authorised persons (the Treasurer or persons authorised in writing by the Treasurer) may consent to otherwise prohibited defacement (s 16), design or distribution of facsimile material (s 19) or importation/exportation of such material (s 20). Officers of ADIs (authorised deposit-taking institutions under the Banking Act 1959) and the Reserve Bank Service who receive non-excepted counterfeit money at their place of business must stamp “counterfeit” on paper items and forward coins to the Royal Australian Mint (s 28(1)). The Mint itself must render such coins incapable of use (s 28(2)).

Police (Australian Federal Police or State/Territory forces) and customs officers are authorised to seize forfeited articles without warrant (s 29(2)–(3)). Examiners appointed by the Treasurer under s 27 may issue certificates that are prima-facie evidence of the results of their examination of foreign counterfeits; the accused may nonetheless require the examiner to be called and cross-examined.

Collectors, numismatists and dealers in old coins must be alert to the distinction between “excepted counterfeit coins” (pre-1966 Australian or withdrawn foreign coins) and non-excepted counterfeits. Possession of the former with intent to defraud is still an offence (s 9(3)), but the stricter possession offence in s 9(1) and the automatic forfeiture rule in s 29 do not apply to excepted coins in the circumstances set out in s 29A.

Designers, printers, publishers and advertisers are affected by the facsimile prohibitions in ss 19 and 20. Machine operators, amusement-arcade owners and manufacturers of coin-operated devices must ensure they do not use, possess or sell tokens that could substitute for currency (s 21).

In short, the statute touches currency handlers, financial institutions, law-enforcement agencies, mint and printing staff, publishers, importers, collectors and any member of the public who comes into contact with suspicious coins or notes.

The Act creates both negative duties (refrain from prohibited conduct) and positive obligations. The central duty is to refrain from any step in the counterfeiting chain. Knowledge is an express fault element in most offences (ss 7, 9(1), 10, 11, 12), consistent with the application of Chapter 2 of the Criminal Code (s 5A). Intent to defraud is required for certain excepted-coin conduct (ss 8(2), 9(3)).

Positive duties include the obligation imposed on bank and public-money officers by s 28(1) to mark and forward counterfeits. The Treasurer’s power to appoint examiners (s 27) and to authorise otherwise prohibited conduct (ss 16, 19, 20) creates an administrative gate-keeping role.

Rights and defences are narrowly framed. The most important is the “reasonable excuse” defence appearing in ss 8(1A), 9(1A), 11(3), 12(2), 13(2), 14(2), 15(2), 21(1A) and 21(3A). The defendant bears an evidential burden (expressly noted by reference to Criminal Code s 13.3(3)). Once that burden is discharged the prosecution must negate the excuse beyond reasonable doubt.

A more specific defence appears in s 9(2) for possession of counterfeit money or securities: the accused must prove on the balance of probabilities that they did not make the item and had no reasonable opportunity to surrender it after discovering its nature.

Section 27(7) gives an accused the right to require an examiner whose certificate is tendered to be called as a prosecution witness and to be cross-examined. Section 29(5) gives the court power to order return of an article if it is not satisfied that forfeiture applies.

The Act does not create positive rights for the public at large, but the requirement in s 27(6) that an accused receive a copy of any examiner’s certificate in advance of trial protects procedural fairness. The limitation on prosecution in s 23 operates as a jurisdictional shield for conduct wholly overseas that does not relate to Australian money.

Penalties are graduated according to the perceived seriousness of the conduct. Making counterfeit money or securities (s 6) carries the highest sanction: 14 years’ imprisonment for individuals, 750 penalty units for corporations. Uttering, buying/selling and importation/exportation offences (ss 7, 8, 10) are 12 years/600 penalty units. Possession (s 9) is 10 years/500 penalty units. Instrument and material offences (ss 11–13) are 10 years/500 penalty units. Information offences (s 14) and clippings offences (s 15) are 5 years or 100 penalty units (individuals) or 200 penalty units (corporations). Defacement, facsimile and token offences (ss 16–21) are lower still: 2 years/50 penalty units down to 20 penalty units for simple possession or use of a token.

Summary disposal is possible for all but the s 21 machine-token offences if both parties consent and the court thinks it proper (s 24(2)). In that event the maximum term of imprisonment is capped at 12 months and the fine at 20 penalty units for individuals, 50 penalty units for corporations (s 24(3)).

Enforcement tools are strong. Automatic forfeiture to the Commonwealth occurs upon the existence of the described articles (s 29(1)). Police and customs may seize without warrant on reasonable grounds (s 29(2)–(3)). Retention is permitted for 90 days or until prosecution is determined. Upon conviction the court must condemn the article if satisfied it is forfeited (s 29(5)(a)). If no prosecution is brought within 90 days the article must be taken before a court of summary jurisdiction and the Crimes Act 1914 s 9 procedure applies (s 29(6)). Condemned articles are dealt with as the Treasurer directs (s 29(7)).

Section 27 certificates provide an efficient evidentiary shortcut for foreign counterfeits. The certificate is prima-facie evidence of its contents; the accused may still insist on oral evidence and cross-examination.

The Act applies the Criminal Code (s 5A), so the general principles of criminal responsibility, attempt, complicity and corporate liability under Chapter 2 govern all offences.

The statute is expressly linked to several other Commonwealth enactments. Section 5A applies Chapter 2 of the Criminal Code to all offences, importing fault elements, defences, corporate responsibility and rules on attempt (s 11.1) and incitement (s 11.4) that are picked up by the extended definition of “offence against this Act” in s 22.

References to the Crimes Act 1914 appear in several places: s 22 includes attempts and accessories under s 6 of that Act; s 29(6) applies the condemnation procedure in Crimes Act s 9; s 29A refers to the pre-1981 version of Crimes Act s 57 (now repealed).

The Judiciary Act 1903 is modified by ss 25 and 26. State courts are invested with jurisdiction without locality limits (subject only to Constitution s 80) and matters under the Act, including interpretation of the Convention, are deemed not to arise directly under a treaty for the purposes of s 38 of the Judiciary Act.

The Banking Act 1959 supplies the definition of “ADI” used in s 28. The Legislation Act 2003 is engaged by s 30(2)–(3), which designates the Minister administering the Australian Federal Police Act 1979 as the rule-maker for regulations relating to Part II offences.

The Civil Aviation Act 1988 and Defence Force regulations are incorporated by reference in the definitions of “Australian aircraft” and “Australian ship” in s 23(2).

At international level the Act gives effect to the 1929 Geneva Convention and Protocol reproduced in the Schedule. Section 26 ensures that questions of Convention interpretation are treated as questions of domestic law rather than treaty interpretation for Judiciary Act purposes.

State and Territory laws dealing with forgery or fraud may overlap, but the Commonwealth Act’s extraterritorial reach and specific currency focus will usually see it take precedence where counterfeit money or prescribed securities are involved. Section 29A protects excepted coins from earlier Commonwealth and Territory forfeiture laws.

Although the statute is titled the Crimes (Currency) Act 1981, the text reflects amendments made after commencement. The most significant is the insertion of s 5A applying the Criminal Code. This change aligned the Act with the general principles of criminal responsibility enacted in 1995 and brought fault elements, defences and corporate liability into a modern statutory framework rather than relying on common-law rules. The notes referencing Criminal Code s 13.3(3) for evidential burdens were added at the same time.

Penalty provisions were converted from fixed dollar fines to penalty units, allowing automatic indexation and reflecting the policy of the Crimes Act 1914 (as amended) that monetary penalties should keep pace with inflation. The distinction between individuals and bodies corporate was made explicit in each penalty clause.

Section 28 was updated to use the term “ADI” and to refer to the Reserve Bank Service, reflecting changes in banking regulation and the structure of the Reserve Bank.

Section 30 was amended to designate a specific rule-maker for Part II regulations, ensuring that the police portfolio minister controls regulations that affect the operation of the offence provisions. These changes modernise procedure, update terminology and maintain consistency with the broader Commonwealth criminal law architecture without altering the substantive prohibitions.

The commencement provisions in s 2 show that the bulk of the Act did not commence until the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985 received Royal Assent, indicating that the 1981 statute was part of a larger legislative package.

The Act itself does not record specific court challenges, but several of its structural features have generated judicial consideration in reported decisions. The breadth of the definition of “counterfeit money” in s 3(1), particularly paragraph (b) concerning material alteration, has required courts to determine what constitutes a “material respect” and whether the alteration was done “in such a manner as to conceal” the change. The inclusion of incomplete or imperfect articles has removed arguments that a counterfeit must be capable of passing all tests.

The reasonable-excuse defences have been litigated on the question of who bears the evidential burden and what constitutes a sufficient discharge of that burden. Because the notes expressly reference Criminal Code s 13.3(3), courts have applied the statutory test rather than older common-law authorities.

The s 9(2) defence (lack of opportunity to surrender) has been construed strictly; courts have required the accused to prove both negative propositions on the balance of probabilities. The distinction between excepted and non-excepted coins has produced argument about the status of coins withdrawn from circulation in foreign jurisdictions that no longer exist (s 3(1) definition of excepted coin, paragraph (b), and s 3(6) extension of “country”).

Forfeiture under s 29 has raised questions about the meaning of “used or capable of use” in relation to genuine mint equipment removed without authority, and about the Treasurer’s discretion in directing the disposal of condemned articles.

Section 27 certificates have been challenged on the adequacy of “reasonable notice” and on whether the examiner’s appointment instrument must be proved. The prima-facie-evidence provision has been upheld provided the procedural preconditions in s 27(6) are met.

Controversies have also arisen in the context of numismatic dealing: legitimate collectors have occasionally been required to demonstrate that their possession of old or altered coins falls outside the intent-to-defraud limb of s 9(3). The interaction between s 19 facsimile prohibitions and freedom of political or artistic expression has been noted in academic commentary, although the consent mechanism and the requirement that the representation be “capable of misleading” have kept the provision within constitutional limits.

Most practitioners assume that once a coin is “old” it falls outside the Act; that is true only for excepted coins and only in the absence of intent to defraud. A pre-1966 Australian penny that has been altered to look like a rare variety can still ground a s 9(3) charge.

The evidential burden on “reasonable excuse” is frequently misunderstood. It is not enough to assert the excuse in a record of interview; the accused must lead evidence capable of raising the issue before the prosecution is required to negative it. In a summary hearing this can be decisive.

Section 28 obligations are strict: a bank teller who simply returns a counterfeit note to a customer without marking it or forwarding the coin commits a breach of statutory duty, even if the customer is known to the teller. The obligation arises whenever non-excepted counterfeit is “presented” at the place of business.

The forfeiture net in s 29(1)(f) is wider than many realise: any article “intended to be used” in connection with an offence is caught even if the offence is never completed. A printer who creates a plate “just in case” may lose the plate and any associated materials.

The extraterritorial reach of s 5 is cut back by s 23. An Australian citizen who manufactures counterfeit US dollars in Thailand cannot be prosecuted under this Act unless the conduct relates to Australian money. Prosecution would have to rely on other legislation or foreign law.

Section 3(7) contains a little-noticed deeming provision: anyone who splits or tears a genuine note with intent to defraud is taken to have made counterfeit money, and both pieces are treated as counterfeit. This can convert a minor act of vandalism into a serious counterfeiting offence.

Finally, the s 27 examiner certificate regime applies only to foreign counterfeits. Domestic counterfeits must be proved by ordinary evidence or by calling officers of the Royal Australian Mint. Defence counsel sometimes overlook this distinction and fail to object to inadmissible opinion evidence.

Compliance begins with awareness of the broad definitions in s 3. Any organisation that handles cash should have a documented procedure for suspected counterfeits that satisfies s 28: tellers must be trained to recognise non-excepted counterfeits, to stamp paper items clearly with the word “counterfeit” on both sides, and to forward coins promptly to the Mint. Failure to follow this process can itself attract regulatory scrutiny from APRA or the Reserve Bank.

Printers, publishers and advertising agencies must obtain the Treasurer’s written consent before producing any material that could be mistaken for currency or an Australian prescribed security. The consent may be conditional; applications should be made well in advance and should demonstrate that the reproduction is for legitimate artistic, educational or commercial purposes and contains overt disclaimers or scaling that prevents deception.

Financial institutions and cash-in-transit companies should maintain a register of surrendered counterfeits, recording the date, the person from whom received, and the steps taken to comply with s 28. This register will be essential if a s 9(2) defence is ever raised by a customer who later claims the item was planted.

Collectors and dealers in rare coins must document provenance and, where an item is an altered genuine coin, ensure that any sale or display does not cross into intent to defraud. Retaining expert opinions or numismatic certificates is prudent.

Importers and exporters of machinery, bullion, security paper or printing ink should conduct due-diligence checks to ensure the items have not been adapted for counterfeiting and are not being sent to or from premises known to be involved in currency production. A reasonable-excuse defence will be difficult to establish without contemporaneous records.

Organisations subject to the Act should include counterfeiting awareness in staff induction and refresher training. Policies should prohibit personal use of any coin-like token in vending machines and should require immediate reporting of any suspected counterfeit to a nominated compliance officer.

Because the Criminal Code applies, organisations should ensure that systems are in place to prevent, detect and correct conduct that could amount to corporate fault under Part 2.5. This includes training, reporting lines and disciplinary consequences.

Finally, any person who inadvertently comes into possession of what appears to be counterfeit money should treat it as non-excepted until proven otherwise, avoid any act that could be characterised as uttering, and surrender it as soon as practicable to a police officer or authorised bank officer. Prompt surrender is the safest way to engage the s 9(2) defence should the matter ever proceed further.

By treating the legislation as a set of interlocking prohibitions rather than a single “counterfeiting” offence, and by maintaining clear records at every point where currency or currency-like material is handled, organisations and individuals can minimise both legal risk and the possibility of inadvertent forfeiture of valuable equipment or materials.