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.
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.
- 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
- Find out who is prosecuting: the CDPP, the AFP, or NSW policeSection 2 of this guide
- Get a lawyer with Commonwealth experience before the first mentionSection 6 of this guide
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.
| What makes it Commonwealth | The offence is in a federal Act |
| Prosecutor | Commonwealth Director of Public Prosecutions |
| Investigator | Usually the AFP, ATO, Services Australia, Border Force or Home Affairs |
| Sentencing law | Crimes Act 1914 (Cth) Part IB, not the NSW Act |
| Non-conviction outcome | s 19B, the Commonwealth equivalent of s 10 |
| Custody | Sentences 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.
Legal basis: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Judiciary Act 1903 (Cth) s 68 (state courts exercising federal jurisdiction). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
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 order | Nearest NSW equivalent | Notes |
|---|---|---|
| Dismissal or discharge without conviction, s 19B | Section 10 | Similar test: character, triviality, extenuating circumstances; can be with a recognizance |
| Conviction and release on recognizance, s 20(1)(a) | Conditional release order with conviction | A good behaviour bond, up to five years |
| Fine, s 4B | Fine | Penalty 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 service | ICO, CCO | State orders can be used for Commonwealth offenders under s 20AB |
| Imprisonment with recognizance release order, s 20(1)(b) | No direct equivalent | A 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 19AB | Imprisonment | Required 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.
Figures to verify
Requires principal review before release: confirm the current Commonwealth penalty unit value and the s 20AB arrangements for state orders.
Legal basis: Crimes Act 1914 (Cth) ss 4AA, 4B, 16A, 17A, 19AB, 19B, 20, 20AB. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
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.
Legal basis: Criminal Code Act 1995 (Cth) ss 134.2, 135.1, 307.1, 400.3 to 400.9, 474.17. Requires principal review before release: confirm current maximums. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
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.
Legal basis: Crimes Act 1914 (Cth) Part VIIC, s 15AA; Migration Act 1958 (Cth) s 501. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
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.
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 consultationGeneral 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.