136Geographical jurisdiction of civil penalty provisions and offences

136 Geographical jurisdiction of civil penalty provisions and offences

Geographical jurisdiction of offences and civil penalty provisions (1) A person does not contravene a civil penalty provision of this Act, or commit an offence against this Act, unless at least one of the following paragraphs applies in relation to the conduct constituting the alleged contravention or offence: (a) the conduct, or a result of the conduct, occurs wholly or partly in Australia, or on board an Australian aircraft or Australian ship; (b) for conduct alleged to constitute an ancillary contravention—the conduct, or a result of the conduct, that would constitute the primary contravention to which the ancillary contravention relates would have occurred wholly or partly in a place covered by paragraph (a); (c) for conduct alleged to constitute an ancillary offence—the conduct, or a result of the conduct, that would constitute the primary offence to which the ancillary offence relates was intended by the person to occur wholly or partly in a place covered by paragraph (a); (d) the conduct occurs wholly outside Australia and the person engaging in the conduct is an Australian entity, an Australian citizen or a permanent resident of Australia. Defence for primary contravention or primary offence (2) Despite subsection (1), a person does not contravene a civil penalty provision of this Act, or commit an offence against this Act, if: (a) the alleged contravention or offence is a primary contravention or primary offence; and (b) the conduct constituting the alleged contravention or offence occurs wholly in a foreign country, but not on board an Australian aircraft or Australian ship; and (c) the person is not an Australian entity, an Australian citizen or a permanent resident of Australia; and (d) there is not in force, in the foreign country or the part of the foreign country where the conduct constituting the alleged contravention or offence occurred, a law creating a pecuniary or criminal penalty for conduct corresponding to the conduct constituting the alleged contravention or offence. Defence for ancillary contravention or ancillary offence (3) Despite subsection (1), a person does not contravene a civil penalty provision of this Act, or commit an offence against this Act, if: (a) the alleged contravention or offence is an ancillary contravention or ancillary offence; and (b) for conduct constituting an alleged contravention—the conduct constituting the primary contravention to which the alleged contravention relates, or a result of that conduct, occurs, or would have occurred, wholly in a foreign country, but not on board an Australian aircraft or Australian ship; and (c) for conduct constituting an alleged offence—the conduct constituting the primary offence to which the alleged offence relates, or a result of that conduct, occurs, or was intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or Australian ship; and (d) the person is not an Australian entity, an Australian citizen or a permanent resident of Australia; and (e) there is not in force, in the foreign country or the part of the foreign country where the conduct constituting the alleged contravention or offence occurred, a law creating a pecuniary or criminal penalty for conduct corresponding to the conduct constituting the primary contravention or primary offence to which the alleged contravention or offence relates. (4) A person who is alleged to have contravened a civil penalty provision of this Act and who wishes to rely on subsection (2) or (3) bears an evidential burden (within the meaning of the Criminal Code) in relation to the matters set out in the subsection. (5) For the purposes of the application of subsection 13.3(3) of the Criminal Code to an offence against this Act, subsections (2) and (3) of this section are taken to be exceptions provided by the law creating the offence.