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AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 4A

When a State offence has a federal aspect

Object

             (1)  The object of this section is to identify State offences that have a federal aspect because:

                     (a)  they potentially fall within Commonwealth legislative power because of:

                              (i)  the elements of the State offence; or

                             (ii)  the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence); or

                     (b)  either:

                              (i)  the ACC investigating them is incidental to the ACC investigating an offence against a law of the Commonwealth or a Territory; or

                             (ii)  the ACC undertaking an intelligence operation relating to them is incidental to the ACC undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory.

Federal aspect

             (2)  For the purposes of this Act, a State offence has a federal aspect if, and only if:

                     (a)  both:

                              (i)  the State offence is not an ancillary offence; and

                             (ii)  assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State--the provision would have been a valid law of the Commonwealth; or

                     (b)  both:

                              (i)  the State offence is an ancillary offence that relates to a particular primary offence; and

                             (ii)  assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State--the provision would have been a valid law of the Commonwealth; or

                     (c)  assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence--that provision would have been a valid law of the Commonwealth; or

                     (d)  both:

                              (i)  the ACC is undertaking an investigation relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and

                             (ii)  if the ACC is undertaking, or were to undertake, an investigation relating to a relevant criminal activity that relates to the State offence--that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i); or

                     (e)  both:

                              (i)  the ACC is undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory; and

                             (ii)  if the ACC is undertaking, or were to undertake, an intelligence operation relating to the State offence--that operation is, or would be, incidental to the operation mentioned in subparagraph (i).

Specificity of acts or omissions

             (3)  For the purposes of paragraph (2)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (2)(c)

             (4)  A State offence is taken to be covered by paragraph (2)(c) if:

                     (a)  the State offence affects the interests of:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (b)  the State offence was committed by a constitutional corporation; or

                     (c)  the State offence was committed in a Commonwealth place; or

                     (d)  the State offence involved the use of a postal service or other like service; or

                     (e)  the State offence involved an electronic communication; or

                      (f)  the State offence involved 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

                     (g)  the State offence involved:

                              (i)  banking (other than State banking not extending beyond the limits of the State concerned); or

                             (ii)  insurance (other than State insurance not extending beyond the limits of the State concerned); or

                     (h)  the State offence relates to a matter outside Australia.

             (5)  Subsection (4) does not limit paragraph (2)(c).

Definitions

             (6)  In this section:

"ancillary offence , in relation to an offence (the primary offence" ), means:

                     (a)  an offence of conspiring to commit the primary offence; or

                     (b)  an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

                     (c)  an offence of attempting to commit the primary offence.

"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.

"electronic communication" means a communication of information:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (animated or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

"intelligence operation" means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to relevant criminal activity, but that may involve undertaking investigations relating to relevant criminal activity.

"State offence" means an offence against a law of a State.



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