Commonwealth Criminal Code: Guide for practitioners
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
- (2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if committing the offence incited is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
- (4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
- (a) if the offence incited is punishable by life imprisonment— imprisonment for 10 years; or
- (b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
- (c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
- (d) if the offence is otherwise punishable by imprisonment— imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
- (e) if the offence incited is not punishable by imprisonment— the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act.
Incitement, like attempt and conspiracy, is a separate and distinct offence from the offence which is the subject of incitement. Attempt, incitement and conspiracy can overlap in their applications to criminal conduct. One who sends a hired thug on an unsuccessful foray to injure a Commonwealth public official incites an offence, conspires with the thug and attempts the offence, for the offender has gone beyond mere preparation to commit an offence against 147.1 Causing harm to a Commonwealth public official. Unlike attempt and conspiracy, however, incitement is not punishable with the same severity as the principal offence.
Though incitement is a preparatory offence, akin to attempt, there is no impediment to conviction of incitement in circumstances where the principal offence has been committed.325 In practice, incitement which succeeds in its object will usually result in conviction for the principal offence as an accomplice. Unlike conspiracy, which cannot be attempted, it is an offence to attempt to incite another.326 However, there can be no liability in the converse cases of incitement to conspire, incitement to attempt or incitement to incite.327 The extensions of criminal liability for preparatory crime cannot be piled one on the other in an infinite regress.
Since the prohibition of incitement penalises communication, restricting freedom of expression, liability is narrowly limited to communications which are intended to promote the commission of an offence. Incitement does not extend to instances of recklessness with respect to the effects which speech or other communication might have in providing an incentive or essential information for the commission of crime.
11.4-A A person who urges another to commit an offence, with the intention that the offence be committed, is guilty of incitement
The restriction of liability to circumstances in which the defendant “urges” the commission of an offence narrows the common law, which traditionally imposed liability for incitement when the offender “counsels, commands or advises” the commission of an offence.328 The Code formulation was intended to emphasis the necessity for proof that the activity of the defendant was meant to encourage the commission of the offence: The Model Criminal Code Officers Committee “was concerned that some courts have interpreted ‘incites’ as only requiring that D causes rather than advocates the offence”.329 Since the conduct element of incitement is urging another to commit an offence, it follows that the prosecution must prove that the offender meant to urge the other to commit an offence: 5.2 Intention.
The requirement of intention that the offence be committed in ss(2) reinforces the implications which arise from the prohibition against “urging” the commission of an offence. This is a requirement of ulterior intention, not intention: discussed 5.2-D. Intention accordingly bears its ordinary meaning here, requiring proof that it was the offender’s object to induce commission of the offence incited.
11.4-B The Code imposes liability for an attempt to incite an offence against Commonwealth law
Liability for incitement requires proof of communication, since one cannot urge another to a course of action unless the other is conscious of the defendant’s command, request, plea or shouts of encouragement. However, failed attempts to communicate an incitement are punishable as an attempt to incite330 and punishable to the same extent as if the incitement had been communicated.
11.4-C Impossibility of success is no answer to a charge of incitement
English common law would allow impossibility to defeat a charge of incitement.331 In Australia, the emergent common law consensus that impossibility is no answer to a charge of attempt would probably persuade courts in most jurisdictions to adopt the same rule for incitement. The issues which arise for discussion of the effect of impossibility are essentially the same, whether incitement or attempt is in issue: discussed 11.1-E. The Code declares that a person can be convicted of incitement though it is impossible to commit the principal offence: ss(3). So long as it can be said that the defendant urged the commission of an offence known to the law, there is no ground for distinction between “legal” and “factual” impossibility. Though impossibility is no answer to a charge of incitement, ss(4) provides that “defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of attempting to commit that offence”: discussed below, 11.4-D.
11.4-D Defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of incitement to commit that offence
This limiting principle is common to attempt, incitement and conspiracy. Difficulty is unlikely to be encountered when a person charged with incitement claims the benefit of a defence or procedural limitations. The issue of potential difficulty, as in attempts, is whether a particular defining element of an offence is a “limitation or qualifying provision” which bars liability both for the completed offence and the incitement. Applications are discussed above: 11.1-F.
11.4-E “Special liability provisions” which apply to the principal offence apply as well to the liability for inciting that offence
The Dictionary to the Criminal Code provides a definition of special liability provisions. There are three varieties:
- Provisions which impose absolute liability for one or more but not all of the physical elements of an offence; or
- Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or
- Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing.
Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to factors which establish Commonwealth jurisdiction over the offence. Section 11.4(4A) displaces the usual rules which govern the proof of fault in federal offences. An identical provision appears in s11.1(6A) Attempt where it is discussed at greater length in 11.1-G.
11.4-F The penalty for incitement is determined by the penalty for the offence incited
Unlike attempt and conspiracy, which are punishable with the same severity as the principal offence, maximum penalties for incitement are determined by a statutory scale of lesser penalties.
Hence the absence of any need for a provision equivalent to ss4(b) in 11.1 Attempt, which permits conviction of attempt though the offender may have succeeded in committing the offence.
Section 11.1 Attempt exempts complicity and conspiracy from its provisions in ss(7). Incitement remains subject to the prohibition against attempt.
Section 11.4 Incitement, ss(5).
Glanville Williams, Criminal Law: The General Part (1961) 252. Section 7A of the Commonwealth Crimes Act 1914 provides a blanket prohibition: “incites to, urges, aids or encourages”. Compare the UK Draft Criminal Code (1985) s51(1), “encourages”; Model Penal Code, ALI Proposed Official Draft 1962, s5.02(1), “encourages or requests”.
MCC, Ch 2: General Principles of Criminal Responsibility, Final Report 1992, 93. The reference to causation here is colloquial rather than accurate. The Committee was concerned to avoid liability for incitement where D’s activities merely provided a resource or occasion for an offence by others.
The same result obtains at common law: Ransford (1874) 13 Cox CC 9; Crichton  SASR 1.
Fitzmaurice  QB 1083; DPP v Nock  AC 979.