Criminal Code Act 1995

Pt 5.1 heading substituted by No 67 of 2018, s 3 and Sch 1 item 1, effective 30 June 2018. The heading formerly read:

Part 5.1 - Treason, urging violence and advocating terrorism or genocide

Pt 5.1 heading substituted by No 82 of 2016, s 3 and Sch 11 item 1, effective 30 November 2016. The heading formerly read:

Part 5.1 - Treason, urging violence and advocating terrorism

Pt 5.1 heading substituted by No 116 of 2014, s 3 and Sch 1 item 57, effective 1 December 2014. The heading formerly read:

Part 5.1 - Treason and urging violence

Pt 5.1 heading substituted by No 127 of 2010, s 3 and Sch 1 item 4, effective 25 November 2010. The heading formerly read:

Part 5.1 - Treason and sedition

Pt 5.1 heading substituted by No 144 of 2005, s 3 and Sch 7 item 5, effective 11 January 2006. The heading formerly read:

Part 5.1 - Treason

Div 80 heading amended by No 113 of 2023, s 3 and Sch 1 item 4, by substituting " , advocating terrorism or genocide, and prohibited symbols and Nazi salute " for " and advocating terrorism or genocide " , effective 8 January 2024.

Div 80 heading substituted by No 82 of 2016, s 3 and Sch 11 item 2, effective 30 November 2016. The heading formerly read:

Division 80 - Treason, urging violence and advocating terrorism

Div 80 heading substituted by No 116 of 2014, s 3 and Sch 1 item 58, effective 1 December 2014. The heading formerly read:

Division 80 - Treason and urging violence

Div 80 heading substituted by No 127 of 2010, s 3 and Sch 1 item 5, effective 25 November 2010. The heading formerly read:

Division 80 - Treason and sedition

Div 80 heading substituted by No 144 of 2005, s 3 and Sch 7 item 6, effective 11 January 2006. The heading formerly read:

Division 80 - Treason

Subdiv B heading inserted by No 127 of 2010, s 3 and Sch 1 item 7, effective 25 November 2010.

S 80.1AA substituted by No 67 of 2018, s 3 and Sch 1 item 4, effective 30 June 2018. No 67 of 2018, s 3 and Sch 1 item 25 contains the saving provision:

25 Saving provision  
(1)
If, immediately before the commencement of this item, a Proclamation is in effect for the purposes of paragraph 80.1AA(1)(b) of the Criminal Code as in force at that time, the Proclamation:

(a) continues in effect despite the repeal and substitution of section 80.1AA of the Criminal Code by this Schedule; and

(b) has effect for the purposes of the Criminal Code as amended by this Schedule as if it had been made under section 80.1AB of the Criminal Code as inserted by this Schedule.

(2)
Subitem (1) does not prevent the Proclamation being repealed.

S 80.1AA formerly read:

SECTION 80.1AA Treason - materially assisting enemies etc.  
Assisting enemies at war with the Commonwealth

(1)
A person commits an offence if:

(a) the Commonwealth is at war with an enemy (whether or not the existence of a state of war has been declared); and

(b) the enemy is specified, by Proclamation made for the purpose of this paragraph, to be an enemy at war with the Commonwealth; and

(c) the person engages in conduct; and

(d) the person intends that the conduct will materially assist the enemy to engage in war with the Commonwealth; and

(e) the conduct assists the enemy to engage in war with the Commonwealth; and

(f) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) has voluntarily put himself or herself under the protection of the Commonwealth; or

(iv) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Note:

If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

(2)
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to a Proclamation made for the purpose of paragraph (1)(b).

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S 80.1AA(2) substituted by No 126 of 2015, s 3 and Sch 1 item 151, effective 5 March 2016. S 80.1AA(2) formerly read:

(2)
Despite subsection 12(2) of the Legislative Instruments Act 2003 , a Proclamation made for the purpose of paragraph (1)(b) of this section may be expressed to take effect from a day:

(a) before the day on which the Proclamation is registered under the Legislative Instruments Act 2003 ; but

(b) not before the day on which the Proclamation is made.

(2A)
Despite subsection 12(3) of the Legislation Act 2003 , a Proclamation made for the purpose of paragraph (1)(b) of this section must not commence before the day on which the Proclamation is made.

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S 80.1AA(2A) inserted by No 126 of 2015, s 3 and Sch 1 item 151, effective 5 March 2016.

(3)
The fault element for paragraph (1)(f) is intention.

Note:

For intention, see subsection 5.2(2).

Assisting countries etc. engaged in armed hostilities against the ADF

(4)
A person commits an offence if:

(a) a country or organisation is engaged in armed hostilities against the Australian Defence Force; and

(b) the person engages in conduct; and

(c) the person intends that the conduct will materially assist the country or organisation to engage in armed hostilities against the Australian Defence Force; and

(d) the conduct assists the country or organisation to engage in armed hostilities against the Australian Defence Force; and

(e) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) has voluntarily put himself or herself under the protection of the Commonwealth; or

(iv) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Note:

If a body corporate is convicted of an offence against subsection (4), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

(5)
The fault element for paragraph (4)(e) is intention.

Note:

For intention, see subsection 5.2(2).

Humanitarian aid

(6)
Subsections (1) and (4) do not apply to engagement 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 (6). See subsection 13.3(3).

Note 2:

There is a defence in section 80.3 for acts done in good faith.

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S 80.1AA(6) amended by No 116 of 2014, s 3 and Sch 1 item 59, by inserting " solely " , effective 1 December 2014.

S 80.1AA inserted by No 127 of 2010, s 3 and Sch 1 item 15, effective 25 November 2010. No 127 of 2010, s 3 and Sch 1 item 16 contains the following saving provision:

16 Saving - Proclamations  
16
A Proclamation in force for the purposes of paragraph 80.1(1)(e) of the Criminal Code just before the commencement of this item has effect, from that commencement, as if it had been made for the purposes of paragraph 80.1AA(1)(b) of that Code, as inserted by this Schedule.