Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (116 of 2014)
Schedule 1 Main counter terrorism amendments
Part 1 Amendments
Criminal Code Act 1995
110 At the end of Chapter 5 of the Criminal Code
Add:
Part 5.5 - Foreign incursions and recruitment
Division 117 - Preliminary
117.1 Definitions
(1) In this Part:
armed force does not include an armed force forming part of the Australian Defence Force.
Defence Minister means the Minister administering the Defence Force Discipline Act 1982.
engage in a hostile activity : a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.
listed terrorist organisation has the meaning given by subsection 100.1(1).
military training means training in the use of arms or explosives, or the practice of military exercises or movements.
prescribed organisation is:
(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
recruit includes induce, incite or encourage.
serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.
Prescribing organisations
(2) Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (a) of the definition of prescribed organisation in subsection (1), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or
(c) a terrorist act (within the meaning of section 100.1); or
(d) an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.
117.2 Extended geographical jurisdiction - category D
Section 15.4 (extended geographical jurisdiction - category D) applies (subject to this Part) to an offence against this Part.
Division 119 - Foreign incursions and recruitment
119.1 Incursions into foreign countries with the intention of engaging in hostile activities
Offence for entering foreign countries with the intention of engaging in hostile activities
(1) A person commits an offence if:
(a) the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and
(b) when the person enters the country, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Offence for engaging in a hostile activity in a foreign country
(2) A person commits an offence if:
(a) the person engages in a hostile activity in a foreign country; and
(b) when the person engages in the activity, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute liability, see section 6.2.
Exception
(4) Subsections (1) and (2) do not apply to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
(5) Paragraph (4)(a) does not apply if:
(a) the person intends to engage, or engages, in a hostile activity in a foreign country while in or with an organisation; and
(b) the organisation is a prescribed organisation at the following time:
(i) for subsection (1) - the time of the entry referred to in that subsection;
(ii) for subsection (2) - the time the person engages in the hostile activity referred to in that subsection.
119.2 Entering, or remaining in, declared areas
(1) A person commits an offence if:
(a) the person enters, or remains in, an area in a foreign country; and
(b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and
(c) when the person enters the area, or at any time when the person is in the area, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for 10 years.
Absolute liability element
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
Exception - entering or remaining solely for legitimate purposes
(3) Subsection (1) does not apply if the person enters, or remains in, the area solely for one or more of the following purposes:
(a) providing aid of a humanitarian nature;
(b) satisfying an obligation to appear before a court or other body exercising judicial power;
(c) performing an official duty for the Commonwealth, a State or a Territory;
(d) performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;
(e) performing an official duty for the United Nations or an agency of the United Nations;
(f) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;
(g) making a bona fide visit to a family member;
(h) any other purpose prescribed by the regulations.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3).
Exception - entering or remaining solely for service with armed force other than prescribed organisation
(4) Subsection (1) does not apply if the person enters, or remains in, the area solely in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
(5) However, subsection (4) does not apply if:
(a) the person enters, or remains in, an area in a foreign country while in or with an organisation; and
(b) the organisation is a prescribed organisation at the time the person enters or remains in the area as referred to in paragraph (1)(a).
Note 1: For conduct for the defence or international relations of Australia, see section 119.9.
Note 2: Sections 10.1 and 10.3 also provide exceptions to subsection (1) of this section (relating to intervening conduct or event and sudden or extraordinary emergency respectively).
Sunset provision
(6) This section ceases to have effect at the end of 7 September 2018.
119.3 Declaration of areas for the purposes of section 119.2
(1) The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.
(2) A single declaration may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.
(2A) A declaration must not cover an entire country.
Requirement to brief Leader of the Opposition
(3) Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.
Cessation of declaration
(4) A declaration ceases to have effect on the third anniversary of the day on which it takes effect. To avoid doubt, this subsection does not prevent:
(a) the revocation of the declaration; or
(b) the making of a new declaration the same in substance as the previous declaration (whether the new declaration is made or takes effect before or after the previous declaration ceases to have effect because of this subsection).
Note: An offence committed in relation to the declared area before the cessation can be prosecuted after the cessation: see section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislative Instruments Act 2003.
(5) If:
(a) an area is declared under subsection (1); and
(b) the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area;
the Foreign Affairs Minister must revoke the declaration.
Note: The Foreign Affairs Minister may, for example, cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area if the organisation ceases to be specified in the regulations.
(6) To avoid doubt, subsection (5) does not prevent an area from being subsequently declared if the Foreign Affairs Minister becomes satisfied as mentioned in subsection (1).
Review of declaration
(7) The Parliamentary Joint Committee on Intelligence and Security may review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislative Instruments Act 2003.
119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities
Preparatory acts
(1) A person commits an offence if:
(a) the person engages in conduct (whether within or outside Australia); and
(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Accumulating weapons etc.
(2) A person commits an offence if:
(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and
(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Providing or participating in training
(3) A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) providing military training to another person;
(ii) participating in providing military training to another person;
(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and
(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
(4) A person commits an offence if:
(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):
(i) allowing military training to be provided to himself or herself;
(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and
(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Giving or receiving goods and services to promote the commission of an offence
(5) A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) giving money or goods to, or performing services for, any other person, body or association;
(ii) receiving or soliciting money or goods, or the performance of services; and
(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).
Note: For absolute liability, see section 6.2.
Exception
(7) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8) A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.
119.5 Allowing use of buildings, vessels and aircraft to commit offences
Use of buildings
(1) A person commits an offence if:
(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and
(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and
(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the meeting to be so held, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Use of vessels or aircraft
(2) A person commits an offence if:
(a) the person is:
(i) an owner, charterer, lessee, operator, agent or master of a vessel; or
(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and
(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and
(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the use, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note: For absolute liability, see section 6.2.
Exception
(4) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
119.6 Recruiting persons to join organisations engaged in hostile activities against foreign governments
A person commits an offence if:
(a) the person recruits, in Australia, another person to become a member of, or to serve in any capacity with, a body or association of persons; and
(b) the objectives of the body or association include any one or more of the objectives referred to in the definition of engage in a hostile activity in subsection 117.1(1).
Note: For conduct for the defence or international relations of Australia, see section 119.9.
Penalty: Imprisonment for 25 years.
119.7 Recruiting persons to serve in or with an armed force in a foreign country
Recruiting others to serve with foreign armed forces
(1) A person commits an offence if the person recruits, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Publishing recruitment advertisements
(2) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the person is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the advertisement or item of news contains information:
(i) relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or
(ii) relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4) A person commits an offence if:
(a) the person engages in conduct in Australia; and
(b) the person engages in the conduct intending to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5) This section does not apply in relation to service of a person in or with an armed force in circumstances if a declaration under subsection 119.8(2) covers the person and the circumstances of the person’s service in or with the armed force.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
Armed forces that are not part of the government of a foreign country
(6) A reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.
(7) Without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.
119.8 Declaration in relation to specified armed forces
Service
(1) The Minister may, by legislative instrument, declare that section 119.1 or 119.2 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the service of that person or class of persons in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
Recruitment
(2) The Minister may, by legislative instrument, declare that section 119.7 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
119.9 Exception - conduct for defence or international relations of Australia
This Division does not apply in relation to conduct engaged in by a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: See also section 119.12 (declarations for the purposes of proceedings).
119.10 Mode of trial
(1) A prosecution for any of the following offences is (subject to subsection (2)) to be on indictment:
(a) an offence against this Division;
(b) an offence against section 6 of the Crimes Act 1914, or an ancillary offence, that relates to an offence against this Division.
(2) If the law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person’s commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment, a person charged in that State or Territory with an offence referred to in subsection (1) may be dealt with in accordance with that law.
119.11 Consent of Attorney-General required for prosecutions
(1) Proceedings for the commitment of a person for the following must not be instituted without the written consent of the Attorney-General:
(a) the trial on indictment for an offence against the following provisions:
(i) this Division;
(ii) section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Division;
(b) the summary trial of a person for an offence referred to in paragraph (a).
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be charged with an offence referred to in paragraph (1)(a);
(b) a person may be arrested for an offence referred to in paragraph (1)(a), and a warrant for such an arrest may be issued and executed;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
119.12 Declarations for the purposes of proceedings
(1) The Foreign Affairs Minister may, in writing, declare that:
(a) a specified authority is in effective governmental control in a specified foreign country or part of a foreign country; or
(b) a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.
(2) The Defence Minister may, in writing, declare that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.
(3) Without limiting subsection (1) or (2), a declaration under that subsection may be made in relation to a specified day or period.
(4) In proceedings for an offence referred to in paragraph 119.11(1)(a), a certificate under this section is prima facie evidence of the matters stated in the certificate.