Acts described as blackmail typically involve demanding a benefit from another person in exchange for refraining from engaging in conduct they would not otherwise wish to undertake, while acts of extortion generally involve obtaining a benefit through the use of coercion.
Each Australian state and territory has enacted legislation which criminalises such conduct – primarily by way of offences related to unwarranted demands, blackmail and/or extortion.
Here's a rundown of those laws, including the penalties and legal defences that may apply.
What is blackmail or extortion?
The terms blackmail and extortion are often used interchangeably, as they overlap insofar as both typically involve undue pressure or threats by one person to compel another person to engage in, or refrain from engaging in, conduct against their will.
Such threats may involve revealing information or otherwise acting to the targets detriment unless he or she acts in a particular way, whether this involves doing or not doing a particular physical act, divesting themselves of property such as assets or money or otherwise acting in the interests of the person making the demand.
The offence of blackmail in New South Wales
The offence of blackmail is New South Wales is contained in section 249K of the Crimes Act 1900 (NSW), which provides that:
(1) A person who makes any unwarranted demand with menaces–
(a) with the intention of obtaining a gain or of causing a loss, or
(b) with the intention of influencing the exercise of a public duty,
is guilty of an offence.
Maximum penalty–Imprisonment for 10 years.
(2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence.
Maximum penalty–Imprisonment for 14 years.
The offence in Victoria
In Victoria, the offence of blackmail is outlined under section 87 of the Crimes Act 1958 (VIC) which states:
(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is proper means of reinforcing the demand.
(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
(3) A person guilty of blackmail is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).
The offence in Queensland
In Queensland, the offence of extortion is outlined under section 415 of the Criminal Code (1899) which states:
(1) A person (the “demander”) who, without reasonable cause, makes a demand
(a) with intent to:
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.
Penalty—Maximum penalty
(a) if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender— life imprisonment; or
(b) if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)— life imprisonment; or
(c) otherwise —14 years imprisonment.
The offence in the Australian Capital Territory
In the ACT, the offence of demands accompanied by threats is outlined under section 32 of the Crimes Act 1900 (ACT) which states:
(1) A person who—
(a) makes a demand of another person; or
(b) resists, prevents or hinders his or her lawful apprehension or detention, or that of another person; or
(c) prevents or hinders a police officer from lawfully investigating any act or matter that reasonably calls for investigation by the officer;
with a threat to kill or inflict grievous bodily harm on a person (other than the offender or an accomplice of the offender) is guilty of an offence punishable, on conviction, by imprisonment for—
(d) in the case of an aggravated offence against this section—25 years; or
(e) in any other case—20 years.
(2) A person who—
(a) makes a demand of another person; or
(b) resists, prevents or hinders his or her lawful apprehension or detention, or that of another person; or
(c) prevents or hinders a police officer from lawfully investigating any act or matter that reasonably calls for investigation by the officer;
with a threat to endanger the health, safety or physical wellbeing of a person (other than the offender or an accomplice of the offender) is guilty of an offence punishable, on conviction, by imprisonment for—
(d) in the case of an aggravated offence against this section—13 years; or
(e) in any other case—10 years.
The offence in Tasmania
In Tasmania, the offence of blackmail is outlined under section 241 of the Criminal Code (Tas) which states:
(1) Any person who, with a view to temporary or permanent gain for himself or for any other person or with intent to cause temporary or permanent loss to any other person, makes any unwarranted demand with menaces, is guilty of a crime.
(2) For the purposes of subsection (1) –(a) a demand with menaces is unwarranted unless the person making it does so in the belief that –
(i) he has reasonable grounds for making the demand; and
(ii) the use of the menaces is a proper means of reinforcing the demand; and
(b) the nature of the act or omission that constitutes a demand is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
The maximum penalty for this offence is life imprisonment.
The offence in the Northern Territory
In the Northern Territory, the offence of blackmail and extortion outlined under section 228AO of the Criminal Code (NT) which states:
(1) A person commits an offence if:
(a) the person makes a demand with a menace of another person; and
(b) the person engages in the conduct mentioned in paragraph (a) with the intention of:
(i) obtaining a gain from the other person or a third person; or
(ii) causing the other person or a third person a loss; or
(iii) influencing the other person or a third person in the exercise of their public duty; and
(c) there are no reasonable grounds for the demand; and
(d) the use of the menace is not a proper means of enforcing the demand.
Maximum penalty: Imprisonment for 14 years.
The offence in South Australia
In South Australia, the offence of blackmail is outlined under section 172 of the Criminal Law Consolidation Act 1935 (SA), which states:
(1) A person who menaces another intending to get the other to submit to a demand is guilty of blackmail.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 20 years.
The offence in Western Australia
In Western Australia, the offence of demanding property with threats is outlined under section 397 of the WA Criminal Code, which states:
Any person who, with intent to extort or gain anything from any person, —
(1) Knowing the contents of the writing, causes any person to receive any writing demanding anything from, or that anything be procured to be done or omitted to be done by any person, without reasonable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with; or
(2) Orally demands anything from, or that anything be procured to be done or omitted to be done by, any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with,
is guilty of a crime, and is liable to imprisonment for 14 years.
Key terms related to blackmail in Australia
There are a number of key terms related to the offence of blackmail that needs to be understood in order to determine whether a charge will be proven beyond reasonable doubt.
Unwarranted demand
A demand with is ‘unwarranted' unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand
Menaces
‘Menaces' includes:
- an express or implied threat of any action detrimental or unpleasant to another person, and
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
The section makes clear that a threat against an individual does not constitute a menace unless it would cause:
- an individual of normal stability and courage to act unwillingly in response to the threat, or
- the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.
Further, a threat against a Government or body corporate does not constitute a menace unless it would:
- ordinarily cause an unwilling response, or
- cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.
Defences to blackmail in Australia
Legal defences to blackmail charges include self-defence, duress, necessity and claim of right – the last of this is where you genuinely believed you were legally entitled to all of the property obtained.
Where evidence is raised of a legal defence, the onus of proof shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply.
You are entitled to an acquittal if the prosecution is unable to do this.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
