Data Availability and Transparency Act 2022

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:

the conduct, or a result of the conduct, occurs wholly or partly in Australia, or on board an Australian aircraft or Australian ship;

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);

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);

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.

Despite subsection (1), a person does not contravene a civil penalty provision of this Act, or commit an offence against this Act, if:

the alleged contravention or offence is a primary contravention or primary offence; and

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

the person is not an Australian entity, an Australian citizen or a permanent resident of Australia; and

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.

Despite subsection (1), a person does not contravene a civil penalty provision of this Act, or commit an offence against this Act, if:

the alleged contravention or offence is an ancillary contravention or ancillary offence; and

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

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

the person is not an Australian entity, an Australian citizen or a permanent resident of Australia; and

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.

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.

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.

This means that a defendant bears an evidential burden in relation to the matters in subsections (2) and (3).

Division 14 of the Criminal Code (standard geographical jurisdiction) does not apply in relation to an offence against this Act (this section applies instead).

A reference in this section to a result of conduct is a reference to a result that is an element of the civil penalty provision or offence.

For the purposes of this section and without limitation, if a person sends, or causes to be sent, an electronic communication or other thing:

from a point outside Australia to a point in Australia; or

from a point in Australia to a point outside Australia;

A point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.