House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 1 - Treason and urging violence

Overview

Schedule 1 contains amendments to the treason and sedition (urging violence) offences in response to recommendations from various reviews. The proposed amendments take into account the recommendations of these reviews and also the input received as a result of public consultation on this Bill.

The treason offences in section 80.1 of the Criminal Code were reviewed by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in 2006 following the review undertaken by the Security Legislation Review Committee (Sheller Committee). The Sheller Committee tabled its report, Report of the Security Legislation Review Committee (Sheller Committee Report), in Parliament in June 2006. The PJCIS tabled its report, Review of Security and Counter-Terrorism Legislation (2006 PJCIS Report) in Parliament in December 2006.

The sedition offences in section 80.2 of the Criminal Code were reviewed by the Australian Law Reform Commission (ALRC) in 2006 as part of its review of sedition and related laws in Australia (the treason offences were also considered as part of this review). The ALRC report, Fighting Words : A Review of Sedition Laws in Australia (ALRC Report), was tabled in Parliament in September 2006.

The ALRC made numerous recommendations to improve and clarify the offences to ensure greater understanding of their operation. The Government accepted the recommendations of the ALRC report, which included removing the term 'sedition' and replacing it with the phrase 'urging violence' and clarifying and modernising elements of the offences.

Schedule 1 of this Bill will also extend the offence to cover urging violence against a group or individual on the basis of national and ethnic origin in addition to race, religion, nationality or political opinion.

Part 1 - Amendments commencing day after Royal Assent

Crimes Act 1914

Item 1: Subparagraph 24F(2)(b)(ii)

Item 1 is a consequential amendment to the Crimes Act 1914 (Crimes Act), required as a result of the amendment to the treason offence and the creation of the new treason offence at section 80.1AA. Subparagraph 24F(2)(b)(ii) of the Crimes Act provides that assisting an enemy at war with the Commonwealth is not an act done in good faith. As the proclamation of an enemy will now form part of the treason offence in paragraph 80.1AA(1)(b) and not the treason offence at paragraph 80.1(1)(e), this item will remove the reference to paragraph 80.1(1)(e) and substitute paragraph 80.1AA(1)(b) in subparagraph 24F(2)(b)(ii) of the Crimes Act.

Item 2: Part IIA (heading)

This item will repeal the current heading of Part IIA of the Crimes Act (which includes a reference to protection of the Constitution) and insert a new heading 'Protection of public and other services'. This will more accurately reflect the content of the Part following the repeal of a number of offences (see item 3).

Item 3: Sections 30A to 30H and 30R

This item will repeal sections 30A to 30H and 30R of Part IIA of the Crimes Act, most of which relate to unlawful associations. These provisions are no longer relevant in the current security environment, and offences within the Criminal Code relating to terrorist organisations adequately address associating with a terrorist organisation. This implements recommendations of both the ALRC and the 1991 Committee of Review of Commonwealth Criminal Law (Gibbs Committee). Section 30C, which contains the offence of advocating or inciting to crime, is also proposed to be repealed as it is effectively redundant in light of the offence in subsection 80.2(1).

Criminal Code Act 1995

Item 4: Part 5.1 (heading)

This item will amend the heading for Part 5.1 of the Criminal Code to reflect other proposed amendments to the titles of particular offences, namely substituting "sedition" offences to become "urging violence" offences.

Item 5: Division 80 (heading)

This item will amend the heading for Division 80 of the Criminal Code to reflect other proposed amendments to the titles of particular offences, namely substituting "sedition" offences to become "urging violence" offences.

Item 6: Before section 80.1A

This item will insert a new Subdivision A and clarify that section 80.1A makes provision for preliminary matters.

Item 7: Before section 80.1

This item will create a new Subdivision B dealing with the offence of treason.

Item 8: Subsection 80.1(1)

This item will delete "called treason" from subsection 80.1(1) of the Criminal Code as it is not needed.

Item 9: Paragraphs 80.1(1)(e) and (f)

This item will repeal paragraphs 80.1(1)(e) and (f) of the Criminal Code. The offences contained within these paragraphs have been revised and are proposed to be included in new section 80.1AA (see item 15).

Item 10: Paragraph 80.1(1)(g)

This item is a technical provision to give effect to the amendment made by item 11.

Item 11: Paragraph 80.1(1)(h)

This item will repeal the redundant offence at paragraph 80.1(1)(h) of the Criminal Code of forming an intention to do any act referred to in section 80.1 and manifesting that intention by an overt act, as ancillary offences set out under Part 2.4, Division 11 of the Criminal Code (attempt, complicity and common purpose, incitement and conspiracy) provide equivalent coverage.

Item 12: Subsections 80.1(1A) and (1B)

This item will repeal subsections 80.1(1A) and 80.1(1B) of the Criminal Code as they relate to offences which are proposed to be repealed under items 9 and 11 respectively and are therefore redundant.

Item 13: Paragraphs 80.1(2)(a) and (b)

This item is a technical provision to reflect that treason offences are proposed to be included in a new Subdivision B.

Item 14: Subsection 80.1(5)

This item will repeal subsection 80.1(5) of the Criminal Code as it relates exclusively to an offence that is proposed by item 11 to be repealed and is therefore redundant.

Item 15: After section 80.1

This item will insert a new section 80.1AA into the Criminal Code. It will replace paragraphs 80.1(1)(e) and (f) of the Criminal Code (repealed by item 9) with new offences and implement a number of recommendations made by the PJCIS and ALRC.

Requiring an allegiance element

The traditional underpinning of the concept of treason is a breach of a person's obligation to the Crown and loyalty to Australia. Currently, the treason offences under paragraphs 80.1(1)(e) and (f) of the Criminal Code can be committed by anyone acting anywhere in the world. The 2006 PJCIS Report noted that these offences apply to people who have no allegiance and do not benefit from the protection of the Australian State.

The proposed new paragraphs 80.1AA(1)(f) and (4)(e) of the Criminal Code provide for an allegiance or duty requirement within the treason offence. In order for a person to commit the offences in proposed new section 80.1AA of the Criminal Code, the person must be a citizen of Australia or a resident of Australia, or must have voluntarily placed himself or herself under the protection of the Commonwealth, or must be a body corporate incorporated under a law of a State or Territory or the Commonwealth.

Proposed subsections 80.1AA(3) and 80.1AA(5) will make it clear that the fault element for paragraphs 80.1AA(1)(f) and 80.1AA(4)(e) of the Criminal Code is 'intention', as defined in subsection 5.2(2). In order to make out the offence, it would therefore be necessary to prove that, at the time of committing the offence, the person intended to, rather than simply being reckless as to the fact: be an Australian citizen or resident; voluntarily place himself or herself under the protection of the Commonwealth; or to be a body corporate incorporated under a law of a State or Territory or the Commonwealth.

Clarifying providing assistance to the enemy

Both the PJCIS and ALRC noted it was possible that the term 'assist' in the treason offence could be given a broad interpretation and that this was not appropriate, given the seriousness of the offence. This item will qualify the treason offences at proposed new paragraphs 80.1AA(1)(d) and (e) and 80.1AA(4)(c) and (d) of the Criminal Code, to the effect that the offences will only apply when a person provides material assistance to the enemy. This will clarify that the conduct standard in the proposed new offences in section 80.1AA of the Criminal Code must be conduct that will materially assist the enemy. It reflects the intended operation of the offence by making it clear that, in order to commit the offence, a person must provide assistance to the enemy that is real or concrete.

Ensuring a Proclamation of an enemy is not retrospective

Proposed new subsection 80.1AA(2) of the Criminal Code will clarify that a Proclamation, made for the purposes of paragraph 80.1AA(1)(b) of the Criminal Code, declaring an enemy to be an enemy at war with the Commonwealth, may not be expressed to take effect before the day on which it is made. Proposed subsection 80.1AA(2) of the Criminal Code also provides that a Proclamation may take effect from a day before the day on which it is registered under the Legislative Instruments Act 2003 , but not before the day on which it is made.

In a national security emergency situation, where a decision is made to declare an enemy to be an enemy at war with the Commonwealth by a Proclamation under paragraph 80.1AA(1)(b) of the Criminal Code, it may be desirable for the Proclamation to take effect immediately. This means that the act of assisting an enemy specified in a Proclamation could become an offence under subsection 80.1AA(1) of the Criminal Code from the time that the Proclamation is made, rather than the time that the Proclamation is registered, which can be several days after the Proclamation has been made.

Proposed subsection 80.1AA(6) replicates current subsection 80.2(9) by providing that the offences in proposed subsections 80.1AA(1) and (4) of proposed section 80.1AA do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature. However, a defendant bears an evidential burden to establish that his or her conduct was engaged in for the purposes of the providing aid of a humanitarian nature.

Item 16: Saving - Proclamations

This item is a technical transition provision that will ensure there is no interruption to the operation of a Proclamation that is in force for the purposes of paragraph 80.1(1)(e) of the Criminal Code, and provides the Proclamation will have the same effect as if it had been made for the purposes of paragraph 80.1AA(1)(b) of the Criminal Code.

Item 17: Before section 80.2

This item inserts a new Subdivision C entitled 'Urging Violence' to replace the subsection previously titled 'Sedition'.

The proposed urging violence offences criminalise the urging of force or violence. While the offences in sections 80.2A and 80.2B of the Criminal Code, in effect, condemn ethno-racially or religiously motivated discrimination, they are serious criminal offences that target conduct that has the potential to impact on the security of the Commonwealth. The offences have been carefully drafted to capture conduct that is criminally culpable. It is desirable for these offences to be located with related offences in Chapter 5 of the Criminal Code.

Item 18: Subsection 80.2(1)

Item 18 repeals the existing sedition offence in subsection 80.2(1) and replaces it with a new offence called 'Urging the overthrow of the Constitution or Government by force or violence'. This new offence will be committed if a person intentionally urges another person to overthrow by force or violence the Constitution, the Government of the Commonwealth, of a State or of a Territory, or the lawful authority of the Government of the Commonwealth, with the intention that force or violence will occur. While section 5.6 of the Criminal Code makes it clear that this offence would include the fault element of intention contained in section 5.2 of the Code, the proposed new offence specifically includes the fault element of intention within the offence to ensure clarity and understanding of the operation of the offence.

The amendment would also add an additional element at paragraph 80.2(1)(b) by requiring that the person intend that the force or violence will occur as a result of the urging.

Item 19: Subsection 80.2(2)

Item 19 will amend subsection 80.2(2) to delete 'first-mentioned' person and replace with 'first' person to ensure clarity and consistency within the section.

Item 20: Subsection 80.2(3)

Item 20 will repeal the existing sedition offence at subsection 80.2(3) and replace it with a new offence called 'Urging interference in Parliamentary elections or constitutional referenda by force or violence'. The amendment will extend the offence to include urging interference by force or violence with lawful processes for referenda, and will include an additional fault element that the person intends that force or violence occur. While section 5.6 of the Criminal Code makes it clear that this offence would include the fault element of intention contained in section 5.2 of the Code, the proposed new offence specifically includes the fault element of intention within the offence to ensure clarity and understanding of the operation of the offence.

Item 21: Subsection 80.2(4)

Item 21 contains technical amendments required as a result of amendments to the sedition offences.

Item 22: Subsection 80.2(6)

Item 22 will amend subsection 80.2(6) to delete 'first-mentioned' person and replace with 'first' person to ensure clarity and consistency within the section.

Item 23: At the end of subsection 80.2(6)

Item 23 will add a note to ensure readers are aware that section 80.3 contains a defence for acts done in good faith.

Item 24: Subsections 80.2(7) to (9)

Item 24 will repeal subsections 80.2(7) to (9) which contain the offences relating to the urging of a person to assist an organisation or country engaged in armed hostilities with the Commonwealth or Australian Defence Force (ADF). These sections will be repealed because the treason offences in proposed sections 80.1 and 80.1AA will adequately criminalise action taken by a person to assist an enemy engaged in hostilities against Australia and the ADF.

Item 25: Before section 80.3

Item 25 will create a new Subdivision D containing common provisions for both the treason and sedition subdivisions.

Items 26 to 27: Section 80.3

Items 26 and 27 are technical amendments necessary as a result of other amendments to Part 5.1 of the Criminal Code outlined in this Explanatory Memorandum.

Item 28: At the end of section 80.3

Item 28 will provide additional matters to which a court may have regard when considering a defence under subsection 80.3(1) to the urging violence offences in Subdivision C of Division 80. Section 80.3 contains a defence for acts done in good faith. It lists a number of matters the court may have regard to when considering the defence. The ALRC recommended that, in relation to the urging violence offences (in Subdivision C), the trier of fact should have regard to the context in which the conduct occurred. The proposed new subsection 80.3(3) will provide that, in considering a defence for the urging violence offences, the court may have regard to any matter, including whether the acts were done in relation to artistic work, for genuine academic or scientific purposes, or in the dissemination of news or current affairs.

Item 29: Application

Item 29 is a technical amendment to clarify the operation of proposed new subsection 80.3(3).

Item 30: Section 80.5

Item 30 will repeal section 80.5, which requires that the Attorney-General must give consent before proceedings for an offence against Division 80 may commence. This is consistent with a recommendation by the ALRC.

Item 31: Application

Item 31 will clarify how the proposed amendment repealing section 80.5 will apply. This amendment will only apply to offences committed after the commencement of the new provision. Proceedings for offences against Division 80 committed before the commencement of the new provisions will still require the Attorney-General's consent.

Item 32: Dictionary

Item 32 will inset a definition of 'referendum' in the Criminal Code Dictionary and provide that it has the same meaning as in the Referendum (Machinery Provisions) Act 1984 .

Part 2 - Amendments commencing 28 days after Royal Assent

Criminal Code Act 1995

Items 33 and 34: Subsections 80.2(5) and (6)

These items will repeal sections 80.2(5) and 80.2(6) which contain the offence of urging violence within the community. These subsections are proposed to be replaced by new sections 80.2A (urging violence against groups) and 80.2B (urging violence against members of groups).

Item 35: At the end of Subdivision C of Division 80

Item 35 will insert new offences of 'urging violence against groups' and 'urging violence against members of groups'. The amendments will extend the urging community violence offence to cover circumstances in which a person urges a group to use force or violence against a group distinguished by national origin or ethnic origin (in addition to existing race, religion, nationality or political opinion).

Under proposed section 80.2A, a person will commit an offence if the person intentionally urges another person or a group to use force or violence against the targeted group, intends that force or violence will occur and is reckless as to whether the targeted group is distinguished by race, religion, nationality, national origin, ethnic origin or political opinion. In addition, under proposed subsection 80.2A(1), the use of force or violence must threaten the peace, order and good government of the Commonwealth. Proposed subsection 80.2A(2) replicates the offence in subsection 80.2A(1), but does not require that the force or violence would threaten the peace, order and good government of the Commonwealth. Accordingly, it carries a lower penalty of 5 years' imprisonment, compared to the penalty of 7 years for subsection 80.2A(1).

Proposed new section 80.2B contains the offence of urging violence against individual members of groups as opposed to groups as a whole. This offence complements the offence of urging violence against groups contained in proposed section 80.2A. Under proposed section 80.2B, a person will commit an offence if they intentionally urge another person or group to use force or violence against a person, they intend that the force or violence occur and they urge such force or violence by reason of their belief that the person is a member of a group distinguished by race, religion, nationality, national origin, ethnic origin or political opinion.

Similarly to proposed section 80.2A, subsection 80.2B(1) requires that the force of violence threaten the peace, order and good government of the Commonwealth, while subsection 80.2B(2) replicates the offence in subsection 80.2B(1) but does not include this requirement. Accordingly, subsection 80.2B(2) has a lower maximum penalty of 5 years compared to the maximum penalty under subsection 80.2B(1) of 7 years imprisonment. Proposed subsection 80.2B(3) also clarifies that, for the purposes of the offences in proposed subsections 80.2B(1) and 80.2B(2), it is immaterial whether the targeted person is actually a member of the targeted group. The relevant factor is that the person urging the force or violence believes they are.

Both proposed sections 80.2A and 80.2B contain provisions for alternative verdicts. Subsections 80.2A(4) and (5) and 80.2B(5) and (6) provide for the option of an alternative verdict against subsections 80.2A(2) and 80.2B(2) respectively. Subsections 80.2A(2) and 80.2B(2) do not contain the requirement that the force or violence must threaten the peace, order, and good government of the Commonwealth. This means that in both sections 80.2A and 80.2B, where the prosecution is unable to prove this final element of the offence under subsection (1) - which carries a maximum penalty of seven years imprisonment - the defendant may still be found guilty of an offence against subsection (2).

Items 36 and 37: Section 80.4

Item 36 will amend section 80.4 to apply section 15.2 of the Criminal Code (extended geographical jurisdiction - Category B) to offences against subsections 80.2A(2) and 80.2B(2) (Category D is applied to the other offences). This amendment to apply Category B geographical jurisdiction to these offences reflects the fact that these offences are aimed at conduct occurring primarily in Australia. On the other hand, Category D geographical jurisdiction applies whether or not the offence is committed in Australia and wherever the result of the conduct occurs.