StandardCriminal Law
Working draft for principal review. Legal-basis notes marked "Requires principal review" need confirmation before release.
Serious charges

Commonwealth offences: how they differ from state charges

What makes a charge a Commonwealth offence, who prosecutes it, how the sentencing framework differs, and why general criminal experience is not enough.

Reading time 7 minApplies to Commonwealth charges heard in NSW courts
The short answer

A Commonwealth offence is one created by federal law: drug importation, Centrelink and tax fraud, money laundering, cybercrime, child abuse material online, terrorism. It is prosecuted by the Commonwealth DPP, not NSW police, and sentenced under the Commonwealth Crimes Act, which has its own orders, its own rules and no NSW-style standard non-parole periods. The differences are large enough that these matters need a lawyer who does Commonwealth work.

What to do this week
  1. Check whether the Act on your notice is a Commonwealth Act: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Social Security (Administration) Act 1999 (Cth), Migration Act 1958 (Cth)Section 1 of this guide
  2. Find out who is prosecuting: the CDPP, the AFP, or NSW policeSection 2 of this guide
  3. Get a lawyer with Commonwealth experience before the first mentionSection 6 of this guide
Am I in the wrong place?

Every Commonwealth charge is the wrong place for self-representation. Even the smallest, a Centrelink overpayment, is prosecuted by a specialist agency under a framework NSW criminal lawyers themselves have to learn separately.

Quick reference
What makes it CommonwealthThe offence is in a federal Act
ProsecutorCommonwealth Director of Public Prosecutions
InvestigatorUsually the AFP, ATO, Services Australia, Border Force or Home Affairs
Sentencing lawCrimes Act 1914 (Cth) Part IB, not the NSW Act
Non-conviction outcomes 19B, the Commonwealth equivalent of s 10
CustodySentences of imprisonment set with a recognizance release order or a non-parole period under the Commonwealth rules

1What makes an offence a Commonwealth offence

Start here

The Commonwealth Parliament creates offences in areas within federal power: importing and exporting, including drugs and weapons; the tax and social security systems; telecommunications, which brings in most online offences; immigration; corporations; and national security. If the section on your notice cites a Commonwealth Act, the matter is a Commonwealth matter whatever court it is heard in. The most common Commonwealth charges in a NSW Local Court are Centrelink fraud, tax offences, using a carriage service to menace or harass, and drug importation.

2Who prosecutes and where

The players

Commonwealth offences are prosecuted by the Commonwealth Director of Public Prosecutions, a separate agency from the NSW DPP and from NSW police prosecutors. The investigator is usually the Australian Federal Police, the Australian Taxation Office, Services Australia, the Australian Border Force, or the Department of Home Affairs. The matter is heard in NSW courts exercising federal jurisdiction: the Local Court for less serious matters, the District Court for indictable matters, the Supreme Court for the most serious. The procedure is the NSW procedure. The law being applied is Commonwealth law.

Representations, the process described in the possession course, go to the CDPP, and the CDPP's decisions are governed by its own prosecution policy, which is published and which sets out when a prosecution will be discontinued.

3The sentencing framework

Different orders, different rules

Commonwealth offenders are sentenced under Part IB of the Crimes Act 1914, not the NSW Crimes (Sentencing Procedure) Act. The purposes and factors overlap with NSW law but are set out differently, and the available orders are different.

Commonwealth orderNearest NSW equivalentNotes
Dismissal or discharge without conviction, s 19BSection 10Similar test: character, triviality, extenuating circumstances; can be with a recognizance
Conviction and release on recognizance, s 20(1)(a)Conditional release order with convictionA good behaviour bond, up to five years
Fine, s 4BFinePenalty units are Commonwealth units, currently $330 each; a term of imprisonment can be converted to a fine at a set rate
Intensive correction order or community serviceICO, CCOState orders can be used for Commonwealth offenders under s 20AB
Imprisonment with recognizance release order, s 20(1)(b)No direct equivalentA term of imprisonment, part served, then release on a bond for the balance; the usual form for shorter Commonwealth sentences
Imprisonment with non-parole period, s 19ABImprisonmentRequired for sentences over three years; no NSW-style standard non-parole periods

The Commonwealth framework requires the court to consider the offender's character, antecedents, age and cultural background, and specifically the effect of a sentence on family and dependants, in a list that reads differently from s 21A. It also contains the general deterrence emphasis that Commonwealth courts apply heavily to fraud on the revenue and to importation.

Check

Figures to verify

Requires principal review before release: confirm the current Commonwealth penalty unit value and the s 20AB arrangements for state orders.

4Penalties

The scale

Commonwealth maximums for serious offences are high. Importing a commercial quantity of a border controlled drug carries life. Money laundering carries up to 25 years depending on the value. Dealing with the proceeds of crime, general dishonesty against a Commonwealth entity, and using a carriage service offences carry from two to ten years. Centrelink fraud under the general dishonesty provisions carries ten years, and a sentence of imprisonment, often with a recognizance release order, is common where the amount is large.

5Other differences that matter

Detail

Bail is decided under the NSW Bail Act, but for some Commonwealth offences, terrorism in particular, Commonwealth law imposes its own presumption against bail. Spent convictions follow the Commonwealth scheme in Part VIIC of the Crimes Act 1914, not the NSW Act. Legal Aid NSW assesses eligibility for Commonwealth matters under Commonwealth guidelines and funding. And non-citizens face visa cancellation on character grounds where a Commonwealth conviction results in a sentence of twelve months or more, or in some categories on any conviction.

6What to do now

Action

Say nothing to the investigating agency without a lawyer; Commonwealth investigators interview under the same rules as police and the recording is used the same way. Do not respond to letters from the ATO, Services Australia or Border Force about a suspected offence without advice, because a response is a statement. Get a lawyer with Commonwealth experience before the first mention, and ask them directly how many Commonwealth matters they have run.

Get a lawyer if this applies

Any Commonwealth charge

The prosecuting agency, the sentencing framework and the available orders are all different from NSW law, and the CDPP prosecutes to a published policy that a lawyer can use. A consultation with the lawyers who built Standard before your first mention is the right step, and the first question to ask is about Commonwealth experience.

Request a consultation

General information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.