National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (67 of 2018)

Schedule 1   Treason, espionage, foreign interference and related offences

Part 1   Main amendments

Criminal Code Act 1995

4   Section 80.1AA of the Criminal Code

Repeal the section, substitute:

80.1AA Treason - assisting enemy to engage in armed conflict

(1) A person commits an offence if:

(a) a party (the enemy ) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and

(b) the enemy is declared in a Proclamation made under section 80.1AB; and

(c) the person engages in conduct; and

(d) the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and

(e) the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and

(f) at the time the person engages in the conduct:

(i) the person knows that the person is an Australian citizen or a resident of Australia; or

(ii) the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth; or

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

Note 1: There is a defence in section 80.3 for acts done in good faith.

Note 2: 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.

Penalty: Imprisonment for life.

(2) Strict liability applies to paragraph (1)(b) and subparagraph (1)(f)(iii).

(3) Absolute liability applies to paragraph (1)(e).

(4) Subsection (1) does not apply to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).

80.1AB Proclamation of enemy engaged in armed conflict

The Governor-General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

Note: See subsection 80.1AA(1) for the effect of the Proclamation.

80.1AC Treachery

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct involves the use of force or violence; and

(c) the person engages in the conduct with the intention of overthrowing:

(i) the Constitution; or

(ii) the Government of the Commonwealth, of a State or of a Territory; or

(iii) the lawful authority of the Government of the Commonwealth.

Note 1: There is a defence in section 80.3 for acts done in good faith.

Note 2: 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.

Penalty: Imprisonment for life.