(3) Without limiting subsection (2), this section does not apply to liability for an offence against any of the following provisions:
(a) section 137.1 (false or misleading information);
(b) section 137.2 (false or misleading documents);
(c) section 144.1 (forgery);
(d) section 145.1 (using forged document).
(4) This section does not prevent a person from being liable in any relevant proceedings for conduct of the person that is revealed by a disclosure of information.
Protection against liability for engaging in protected conduct
(5) If a person engages in protected conduct:
(a) the person is not subject to any liability in relevant proceedings for engaging in the protected conduct; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the protected conduct being engaged in; and
(c) the person is not to be considered to have breached any professional ethics in respect of the protected conduct.
(6) Professional ethics includes the following (without limitation):
(a) rules of professional conduct;
(b) rules of professional etiquette;
(c) a code of ethics;
(d) standards of professional conduct.
(7) Without limiting subsection (5):
(a) if the person engages in protected conduct by disclosing information, the person:
(i) has qualified privilege in proceedings for defamation relating to the disclosure; and
(ii) is not liable to an action for defamation at the suit of another person relating to the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the protected conduct constitutes a breach of the contract.
(8) Paragraphs (5)(a) and (7)(a) do not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.
(9) Without limiting paragraphs (5)(b) and (7)(b), if a court is satisfied that:
(a) a person (the employee) is employed in a particular position under a contract of employment with another person (the employer); and
(b) the employee engages in protected conduct; and
(c) the employer purports to terminate the contract of employment on the basis of the person engaging in protected conduct being engaged in;
the court may:
(d) order that the employee be reinstated in that position or a position at a comparable level; or
(e) order the employer to pay the employee an amount instead of reinstating the employee, if the court considers it appropriate to make the order.
Admissibility of evidence
(10) If an individual engages in protected conduct by disclosing information, the information is not admissible in evidence against the individual in relation to liability in any relevant proceedings.
(11) To avoid doubt, this section does not affect the admissibility of evidence in any relevant proceedings of any information obtained as an indirect consequence of a disclosure of information that constitutes protected conduct.
Division 274—Torture
274.1 Definitions
(1) In this Division:
Convention means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations at New York on 10 December 1984.
Note: The text of the Convention is set out in Australian Treaty Series 1989 No. 21 ([1989] ATS 21). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2) An expression that is used both in this Division and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Division, the same meaning as it has in the Convention.
274.2 Torture
(1) A person (the perpetrator) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or suffering on a person (the victim); and
(b) the conduct is engaged in:
(i) for the purpose of obtaining from the victim or from a third person information or a confession; or
(ii) for the purpose of punishing the victim for an act which the victim or a third person has committed or is suspected of having committed; or
(iii) for the purpose of intimidating or coercing the victim or a third person; or
(iv) for a purpose related to a purpose mentioned in subparagraph (i), (ii) or (iii); and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(2) A person (the perpetrator) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or suffering on a person; and
(b) the conduct is engaged in for any reason based on discrimination of any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c).
Note: For absolute liability, see section 6.2.
(4) Subsections (1) and (2) do not apply to conduct arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986).
(5) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).
274.3 Prosecutions
(1) Proceedings for an offence against this Division, where the conduct constituting the alleged offence occurs wholly outside Australia, must not take place except with the consent in writing of the Attorney‑General.
(2) Even though a consent in accordance with subsection (1) has not been given in relation to an offence against this Division:
(a) a person may be arrested for the offence, and a warrant for the arrest of a person for the offence may be issued and executed; and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no further step in proceedings referred to in subsection (1) is to be taken until such a consent has been given.
(3) Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time.
274.4 No defence of exceptional circumstances or superior orders
It is not a defence in a proceeding for an offence under this Division that:
(a) the conduct constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or
(b) in engaging in the conduct constituting the offence the accused acted under orders of a superior officer or public authority;
but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence.
274.5 Jurisdiction of State/Territory courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Division, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
274.6 Concurrent operation intended
This Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth or any law of a State or Territory.
274.7 Double jeopardy
If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence under this Division in respect of that conduct.
Division 279—Video link evidence
279.1 Proceedings to which this Division applies
This Division applies to a proceeding for an offence against any of the following Divisions of this Chapter:
(a) Division 270 (slavery and slavery‑like offences);
(b) Division 271 (trafficking in persons);
(c) Division 272 (child sex offences outside Australia);
(d) Division 273 (offences involving child abuse material outside Australia);
(e) Division 273B (protection of children).
279.2 When court may take evidence by video link
In a proceeding, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link if:
(a) the witness will give the evidence from outside Australia; and
(b) the witness is not a defendant in the proceeding; and
(c) the facilities required by section 279.3 are available or can reasonably be made available; and
(d) the court is satisfied that attendance of the witness at the court to give the evidence would:
(i) cause unreasonable expense or inconvenience; or
(ii) cause the witness psychological harm or unreasonable distress; or
(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and
(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.
279.3 Technical requirements for video link
(1) A witness can give evidence under a direction only if:
(a) the courtroom or other place in Australia where the court is sitting (the Australian location); and
(b) the place where the evidence is given (the overseas location);
are equipped with video facilities that:
(c) enable appropriate persons at the Australian location to see and hear the witness give the evidence; and
(d) enable appropriate persons at the overseas location to see and hear appropriate persons at the Australian location.
(2) In subsection (1):
appropriate persons means such persons as the court considers appropriate.
279.4 Application of laws about witnesses
A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.
Note: This section has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.
279.5 Administration of oaths and affirmations
An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:
(a) by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not) authorised by the court;
(iii) at the place where the witness is to give the evidence.
279.6 Expenses
A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Division.
279.7 Other laws about foreign evidence not affected
This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding.
Chapter 9—Dangers to the community
Part 9.1—Serious drug offences
Division 300—Preliminary
300.1 Purpose
(1) The purpose of this Part is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988 (the TINDAPS Convention).
Note: The text of the Convention is set out in Australian Treaty Series 1993 No. 4. In 2005 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
(2) Subsection (1) does not limit the legislative powers of the Parliament in relation to this Part.
300.2 Definitions
In this Part:
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
aggravated offence has the meaning given by section 310.4.
border controlled drug:
(a) means a substance that is a border controlled drug within the meaning of subsection 301.4(1); and
(b) to avoid doubt, includes a substance that is, under subsection 301.4(2), (3) or 301.13(1A), taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part or particular elements of those offences.
border controlled plant:
(a) means a growing plant that is a border controlled plant within the meaning of subsection 301.5(1); and
(b) to avoid doubt, includes a growing plant that is, under subsection 301.5(2) or 301.13(1A), taken, for the purposes of this Part, to be a border controlled plant only in relation to particular offences against this Part or particular elements of those offences.
border controlled precursor:
(a) means a substance that is a border controlled precursor within the meaning of subsection 301.6(1); and
(b) to avoid doubt, includes a substance that is, under subsection 301.6(1A), (1B) or 301.14(1A), taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part or particular elements of those offences.
child means an individual who is under 18 years of age.
commercial quantity of a serious drug, controlled precursor or border controlled precursor has the meaning given by section 301.10.
conceal a thing includes conceal or disguise:
(a) the nature, source or location of the thing; or
(b) any movement of the thing; or
(c) the rights of any person with respect to the thing; or
(d) the identity of any owner of the thing.
controlled drug has the meaning given by section 301.1.
controlled plant has the meaning given by section 301.2.
controlled precursor has the meaning given by section 301.3.
cultivate has the meaning given by subsection 303.1(1).
cultivates a plant has the meaning given by subsection 303.1(2).
cultivates a plant for a commercial purpose has the meaning given by section 303.3.
determined, in relation to a serious drug, controlled precursor or border controlled precursor, means:
(a) for a serious drug—determined by the AFP Minister under section 301.13; or
(b) for a precursor—determined by the AFP Minister under section 301.14.
drug analogue has the meaning given by section 301.9.
export includes take from Australia.
import, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
listed, in relation to a serious drug, means:
(a) for a controlled drug—listed by a regulation made for the purposes of paragraph 301.1(a); or
(b) for a controlled plant—listed by a regulation made for the purposes of paragraph 301.2(a); or
(c) for a border controlled drug—listed by a regulation made for the purposes of paragraph 301.4(1)(a); or
(d) for a border controlled plant—listed by a regulation made for the purposes of paragraph 301.5(1)(a).
manufacture has the meaning given by subsection 305.1(1).
manufactures a substance has the meaning given by subsection 305.1(2).
manufactures a substance for a commercial purpose has the meaning given by section 305.2.
marketable quantity of a serious drug, controlled precursor or border controlled precursor has the meaning given by section 301.11.
possession of a thing includes the following:
(a) receiving or obtaining possession of the thing;
(b) having control over the disposition of the thing (whether or not the thing is in the custody of the person);
(c) having joint possession of the thing.
pre‑traffics has the meaning given by section 306.1.
procures an individual to pre‑traffic has the meaning given by section 309.9.
procures an individual to traffic has the meaning given by section 309.6.
product of a plant has the meaning given by section 303.2.
requisite fraction has the meaning given by subsection 312.2(3).
sell includes the following:
(a) barter or exchange;
(b) agree to sell.
serious drug means one of the following:
(a) a controlled drug;
(b) a controlled plant;
(c) a border controlled drug;
(d) a border controlled plant.
supply includes the following:
(a) supply, whether or not by way of sale;
(b) agree to supply.
taking, in relation to a substance or plant, means taking the substance or plant, or a product of the plant, into the body.
TINDAPS Convention has the meaning given by section 300.1.
trafficable quantity of a controlled drug, or a controlled plant, has the meaning given by section 301.12.
traffics has the meaning given by section 302.1.
transport includes deliver.
300.3 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Part.
300.4 Concurrent operation intended
(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;