Prosecuting Commonwealth Offences

A Commonwealth offence is an offence that breaks a federal law. These offences are governed by the Crimes Act 1914 and the Criminal Code Act 1995, and include crimes committed across state borders and overseas. They are largely investigated by the Australian Federal Police and prosecuted by the Commonwealth Director of Public Prosecutions (CDPP).

Commonwealth offences

The CDPP prosecutes the Commonwealth crimes of:

• fraud of a government entity;
• commercial crimes;
• money laundering;
• importing and exporting drugs;
• people smuggling;
• human trafficking;
• terrorism;
• child exploitation;
• cyber-crimes;
• environmental offences;
• workplace offences.

Federal institutions and agencies

There is a range of federal agencies and organisations established under legislation to investigate and in some cases prosecute Commonwealth offences. These include the Australian Federal Police, the Australian Securities and Investment Commission, Medicare, Centrelink, and the Australian Taxation Office.

Jurisdiction

There is no designated court constituted to deal with Commonwealth offences. The Judiciary Act 1903 allows state and territory courts to exercise federal jurisdiction to deal with Commonwealth crimes. Under this arrangement, unless Commonwealth laws have provided otherwise, state and territory laws apply for matters such as:

• arrest, bail and custody of suspects;
• conviction for summary offences (punishable by up to a year in prison) or indictable offences (punishable by more than a year in prison) that can be dealt with summarily;
• committal proceedings;
• trials;
• appeals stemming from trials or convictions;
• procedure, evidence and competency of witnesses.

Specific procedure

The Constitution and some Commonwealth laws do provide for a specific procedure in some instances. For example, section 80 of the Constitution requires a trial of a Commonwealth indictable offence to be a trial by jury, and the trial to be held in the state where the offence was committed. If the offence was not committed within a state, the parliament must nominate where the trial should be held.

Time frames

There is no time limit to commence a prosecution for an offence that carries a maximum prison term of more than 6 months for a first offence. A 1-year time limit applies for an offence that carries a maximum jail term of 6 months or less, or where punishment is a fine and no imprisonment.

Sentencing considerations

The Crimes Act contains an extensive list of considerations for a court when passing sentence. These include:

• whether the offence forms part of a course of conduct consisting of a series of similar crimes;
• the personal circumstances of any victim;
• any injury, loss or damage resulting from the offence;
• the degree to which the offender has shown contrition for the offence;
• the degree to which the offender has co-operated with law enforcement agencies investigating the offence or other offences;
• the deterrent effect of any sentence;
• the need for adequate punishment;
• the offender’s character, antecedents, age, means and physical or mental condition;
• rehabilitation prospects;
• the effect of any sentence on the person’s family or dependants.

Sentencing options

Under the Crimes Act, there is a range of sentences available to the court. These include:

• dismissal;
• discharge without conviction;
• conviction and release on conditions;
• probation;
• community service;
• fines;
• imprisonment;
• reparation;
• hospital or other orders for offenders suffering from mental illness.

Common Commonwealth offences

There are several Commonwealth offences that state and territory courts deal with regularly.

Centrelink fraud

Prosecutions for Centrelink fraud fall under the Criminal Code Act and can be dealt with by a state or territory court unless the facts are disputed, or the amount of the fraud means imprisonment is an option, or the offender seeks an order for no conviction.

Aviation offences

These offences include when a traveller attempts to carry weapons or prohibited goods onto a plane or through airport screening. They can be charged under the Aviation Transport Security Act 2004.

Telecommunication offences

These offences involve the “improper use of carriage services” under the Criminal Code Act. A person can be charged if they use the carriage service, whether by the method of use or the content of the communication or both, in a way that a reasonable person would consider to be menacing, harassing or offensive.

Australia Post

These offences include stealing mail during its delivery, stealing mailbags or knowingly keeping mail that has been wrongly delivered.

Crimes Act offences

Trespass is one common offence, involving someone going onto Commonwealth land without a lawful excuse. Another is wilful damage, when someone intentionally destroys or damages any property that belongs to the Commonwealth.

For advice or representation in any legal matter, please contact Armstrong Lawyers.