(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
In contrast to other forms of complicity in Division 11 of the Criminal Code, s 11.3 does not refer to the operation of special liability provisions (compare Criminal Code s 11.1(6A), 11.2(6), 11.2A(8), 11.4(4A), 11.5(7A)).
However, given that s11.3(a) refers to "a fault element applicable to that physical element", it is likely that any relevant special liability provisions will apply to determine the applicable fault elements.
Commission by proxy varies from its common law equivalent, innocent agency, in several respects. For information on innocent agency at common law, see Innocent Agent (Victorian offences).
First, there is no requirement that the proxy is innocent of the completed offence. Commission by proxy operates in conjunction with, rather than as an alternative to, other forms of complicity (see Crimes Legislation Amendment (Serious and Organised Crime Bill 2009, Explanatory Memorandum, Item 4).
Second, s11.3(b) requires that the conduct of the proxy be conduct that would have constituted an offence if the accused had engaged in the conduct. This excludes the operation of the principle where the accused is legally incapable of committing the offence charged (see, e.g. R v Cogan & Leak  QB 217). For example, where an offence only applies to conduct by a Commonwealth public official (see, e.g. Criminal Code ss139.2, 142.2), s11.3 cannot be used where only the proxy, and not the accused, is a Commonwealth public official (I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Australasian Institute of Judicial Administration, 2002, 267).
While this provision has been in operation since 1995, there have been no reported judgments examining how it operates. Judges should therefore seek submissions on how the principles apply in cases where it arises.