Criminal Code Act. Australia
has effect subject to subsection (5).
(2) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in this Code.
(3) This subsection covers the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of this Part or Chapter 2.
(4) A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (2) and (3) is to terminate in particular circumstances.
(5) A State ceases to be a referring State if a reference by the State of either or both of the matters covered by subsections (2) and (3) terminate.
(6) In this section:
referred provisions means the provisions of Part 5.3 of this Code as inserted by the Criminal Code Amendment (Terrorism) Act 2002, to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.
100.3 Constitutional basis for the operation of this Part
Operation in a referring State
(1) The operation of this Part in a referring State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.
Operation in a non-referring State
(2) The operation of this Part in a State that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
Note: Subsection 100.4(5) identifies particular powers that are being relied on.
Operation in a Territory
(3) The operation of this Part in the Northern Territory, the Australian Capital Territory or an external Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
Despite subsection 22(3) of the Acts Interpretation Act 1901, this Part as applying in those Territories is a law of the Commonwealth.
Operation outside Australia
(4) The operation of this Part outside Australia and the external Territories is based on:
(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
100.4 Application of provisions
Part generally applies to all terrorist acts and preliminary acts
(1) Subject to subsection (4), this Part applies to the following conduct:
(a) all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);
(b) all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).
Note: See the following provisions:
(a) subsection 101.1(2);
(b) subsection 101.2(4);
(c) subsection 101.4(4);
(d) subsection 101.5(4);
(e) subsection 101.6(3);
(f) section 102.9.
Operation in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State
(2) Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and:
(a) the terrorist act consists of an action and the action occurs in a State that is not a referring State; or
(b) the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State.
(3) Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and:
(a) the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or
(b) the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State.
(4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:
(a) if the conduct is itself a terrorist act — the action or threat of action that constitutes the terrorist act; or
(b) if the conduct is a preliminary act — the action or threat of action that constitutes the terrorist act to which the preliminary act relates.
(5) Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:
(a) the action affects, or if carried out would affect, the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) the threat is made to:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(c) the action is carried out by, or the threat is made by, a constitutional corporation; or
(d) the action takes place, or if carried out would take place, in a Commonwealth place; or
(e) the threat is made in a Commonwealth place; or
(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or
(g) the threat is made using a postal or other like service; or
(h) the action involves, or if carried out would involve, the use of an electronic communication; or
(i) the threat is made using an electronic communication; or
(j) the action disrupts, or if carried out would disrupt, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(k) the action disrupts, or if carried out would disrupt:
(i) banking (other than State banking not extending