sch.1-sec.391Definition of stealing

### sch.1-sec.391 Definition of stealing A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say— an intent to permanently deprive the owner of the thing of it; an intent to permanently deprive any person who has any special property in the thing of such property; an intent to use the thing as a pledge or security; an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the person’s indebtedness in respect of the thing. The presumption provided for by subsection (2A) is rebuttable. The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property. When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner can not be discovered. The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. For stealing that is a failure to pay an employee, or another person on behalf of the employee, an amount payable to the employee or other person in relation to the performance of work by the employee— the amount is a thing that is capable of being stolen; and subsection (6) does not apply; and the amount is converted to the person’s own use when— the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and the amount is not paid. In this section— Act includes an Act of another State or the Commonwealth. industrial instrument means— an industrial instrument under the Industrial Relations Act 2016 , schedule 5 ; or a fair work instrument under the Fair Work Act 2009 (Cwlth) . owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question. special property , in a thing, includes— a charge or lien on the thing; and a right arising from or dependent on holding possession of the thing, whether by the person entitled to the right or by another person for the other person’s benefit; and a right of an employee, in relation to the performance of work by the employee— to be paid the thing; or to have the thing paid to another person on behalf of the employee. sch 1 pt 6 div 1 ch 36 s 391 amd 1943 7 Geo 6 No. 14 s 15; 1989 No. 17 s 37 ; 2020 No. 34 s 4 (sch.1-sec.391-ssec.1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing. (sch.1-sec.391-ssec.2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say— an intent to permanently deprive the owner of the thing of it; an intent to permanently deprive any person who has any special property in the thing of such property; an intent to use the thing as a pledge or security; an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. (sch.1-sec.391-ssec.2A) A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the person’s indebtedness in respect of the thing. (sch.1-sec.391-ssec.2B) The presumption provided for by subsection (2A) is rebuttable. (sch.1-sec.391-ssec.3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. (sch.1-sec.391-ssec.4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. (sch.1-sec.391-ssec.4A) It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property. (sch.1-sec.391-ssec.5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner can not be discovered. (sch.1-sec.391-ssec.6) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act. (sch.1-sec.391-ssec.6A) For stealing that is a failure to pay an employee, or another person on behalf of the employee, an amount payable to the employee or other person in relation to the performance of work by the employee— the amount is a thing that is capable of being stolen; and subsection (6) does not apply; and the amount is converted to the person’s own use when— the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and the amount is not paid. (sch.1-sec.391-ssec.7) In this section— Act includes an Act of another State or the Commonwealth. industrial instrument means— an industrial instrument under the Industrial Relations Act 2016 , schedule 5 ; or a fair work instrument under the Fair Work Act 2009 (Cwlth) . owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question. special property , in a thing, includes— a charge or lien on the thing; and a right arising from or dependent on holding possession of the thing, whether by the person entitled to the right or by another person for the other person’s benefit; and a right of an employee, in relation to the performance of work by the employee— to be paid the thing; or to have the thing paid to another person on behalf of the employee. - (a) an intent to permanently deprive the owner of the thing of it; - (b) an intent to permanently deprive any person who has any special property in the thing of such property; - (c) an intent to use the thing as a pledge or security; - (d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; - (e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; - (f) in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner. - (a) the amount is a thing that is capable of being stolen; and - (b) subsection (6) does not apply; and - (c) the amount is converted to the person’s own use when— (i) the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and (ii) the amount is not paid. - (i) the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and - (ii) the amount is not paid. - (i) the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and - (ii) the amount is not paid. - (a) an industrial instrument under the Industrial Relations Act 2016 , schedule 5 ; or - (b) a fair work instrument under the Fair Work Act 2009 (Cwlth) . - (a) a charge or lien on the thing; and - (b) a right arising from or dependent on holding possession of the thing, whether by the person entitled to the right or by another person for the other person’s benefit; and - (c) a right of an employee, in relation to the performance of work by the employee— (i) to be paid the thing; or (ii) to have the thing paid to another person on behalf of the employee. - (i) to be paid the thing; or - (ii) to have the thing paid to another person on behalf of the employee. - (i) to be paid the thing; or - (ii) to have the thing paid to another person on behalf of the employee.