SECURITY LEGISLATION AMENDMENT (TERRORISM) ACT 2002 - SCHEDULE 1 - Amendments relating to treason and terrorism

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SECURITY LEGISLATION AMENDMENT (TERRORISM) ACT 2002 - SCHEDULE 1

- Amendments relating to treason and terrorism

Criminal Code Act 1995

1 The Schedule (after Chapter 4 of the Criminal Code )

Insert:

Chapter 5—The security of the Commonwealth

Note: If either the Criminal Code Amendment (Espionage and Related Offences) Act 2002 or the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(3) of this Act.

2 The Schedule (Chapter 5 of the Criminal Code )

Insert in the appropriate numerical position:

Part 5.1—Treason Division 80—Treason 80.1 Treason

(1): A person commits an offence, called treason, if the person:

(a) causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister; or
(b) causes harm to the Sovereign, the Governor-General or the Prime Minister resulting in the death of the Sovereign, the Governor-General or the Prime Minister; or
(c) causes harm to the Sovereign, the Governor-General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor-General or the Prime Minister; or
(d) levies war, or does any act preparatory to levying war, against the Commonwealth; or
(e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
(ii) specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or
(f) engages in conduct that assists by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed hostilities against the Australian Defence Force; or
(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or
(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.

Penalty: Imprisonment for life.

(1A): Paragraphs (1)(e) and (f) do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

(1B): Paragraph (1)(h) does not apply to formation of an intention to engage in conduct that:

(a) is referred to in paragraph (1)(e) or (f); and
(b) is by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3).

(2): A person commits an offence if the person:

(a) receives or assists another person who, to his or her knowledge, has committed treason with the intention of allowing him or her to escape punishment or apprehension; or
(b) knowing that another person intends to commit treason, does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.

Penalty: Imprisonment for life.

(3): Proceedings for an offence against this section must not be commenced without the Attorney-General's written consent.
(4): Despite subsection (3):

(a) a person may be arrested for an offence against this section; or
(b) a warrant for the arrest of a person for such an offence may be issued and executed;

and the person may be charged, and may be remanded in custody or on bail, but:

(c) no further proceedings may be taken until that consent has been obtained; and
(d) the person must be discharged if proceedings are not continued within a reasonable time.

(5): On the trial of a person charged with treason on the ground that he or she formed an intention to do an act referred to in paragraph (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that intention by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the indictment.
(6): Section 24F of the Crimes Act 1914 applies to this section in the same way it would if this section were a provision of Part II of that Act.
(7): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
(8): In this section:

"constable" means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

"organisation" means:

(a) a body corporate; or
(b) an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

3 The Schedule (at the end of Chapter 5 of the Criminal Code )

Add:

Part 5.3—Terrorism Division 100—Preliminary 100.1 Definitions

(1): In this Part:

"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

"constitutional corporation "means a corporation to which paragraph 51(xx) of the Constitution applies.

"funds "means:

(a) property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and
(b) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.

"organisation" means:

(a) a body corporate; or
(b) an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

"terrorist act" means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (2A); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

(2): Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(ba) causes a person's death; or
(c) endangers a person's life, other than the life of the person taking the action; or
(d) creates a serious risk to the health or safety of the public or a section of the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.

(2A): Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.

(3): In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a country other than Australia.

100.2 Constitutional basis for offences

(1): This Part applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate.
(2): Without limiting the generality of subsection (1), this Part applies to a terrorist act constituted by an action, or threat of action, if:

(a) the action affects, or if carried out would affect, the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) the threat is made to:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(c) the action is carried out by, or the threat is made by, a constitutional corporation; or
(d) the action takes place, or if carried out would take place, in a Commonwealth place; or
(e) the threat is made in a Commonwealth place; or
(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or
(g) the threat is made using a postal or other like service; or
(h) the action involves, or if carried out would involve, the use of an electronic communication; or
(i) the threat is made using an electronic communication; or
(j) the action disrupts, or if carried out would disrupt, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(k) the action disrupts, or if carried out would disrupt:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or
(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law; or
(n) the action takes place, or if carried out would take place, outside Australia; or
(o) the threat is made outside Australia.

Note: If the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(4) of this Act.

4 The Schedule (after Division 100 of the Criminal Code )

Insert:

Division 101—Terrorism 101.1 Terrorist acts

(1): A person commits an offence if the person engages in a terrorist act.

Penalty: Imprisonment for life.

(2): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

101.2 Providing or receiving training connected with terrorist acts

(1): A person commits an offence if:

(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(4): A person commits an offence under this section even if the terrorist act does not occur.
(5): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
(6): If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.4 Possessing things connected with terrorist acts

(1): A person commits an offence if:

(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(2): A person commits an offence if:

(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3): A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.
(4): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
(5): Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6): If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.5 Collecting or making documents likely to facilitate terrorist acts

(1): A person commits an offence if:

(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(2): A person commits an offence if:

(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3): A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.
(4): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
(5): Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6): If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.6 Other acts done in preparation for, or planning, terrorist acts

(1): A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2): A person commits an offence under subsection (1) even if the terrorist act does not occur.
(3): Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Division 102—Terrorist organisations Subdivision A—Definitions 102.1 Definitions

(1): In this Division:

"member "of an organisation includes:

(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation; and
(c) in the case of an organisation that is a body corporate—a director or an officer of the body corporate.

"recruit" includes induce, incite and encourage.

"terrorist organisation" means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or
(c) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (3), (4), (5) and (6)).

(3): Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that:

(a) the Security Council of the United Nations has made a decision relating wholly or partly to terrorism; and
(b) the organisation is identified in the decision, or using a mechanism established under the decision, as an organisation to which the decision relates; and
(c) the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

(4): Regulations for the purposes of paragraph (c) of the definition of terrorist organisation in this section may not take effect earlier than the day after the last day on which they may be disallowed under section 48 of the Acts Interpretation Act 1901 . That section has effect subject to this subsection.
(5): Regulations for the purposes of paragraph (c) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under subsection (6); or
(c) the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

(6): A regulation specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section ceases to have effect when:

(a) the decision mentioned in paragraph (3)(b) ceases to have effect; or
(b) the organisation ceases to be identified as described in paragraph (3)(b).

The regulation does not revive even if the organisation is again identified as described in paragraph (3)(b).

(7): To avoid doubt, subsection (6) does not prevent:

(a) the repeal of a regulation; or
(b) the making of a regulation that is the same in substance as a regulation that has ceased to have effect because of that subsection.

Subdivision B—Offences 102.2 Directing the activities of a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally directs the activities of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person intentionally directs the activities of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.3 Membership of a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally is a member of an organisation; and
(b) the organisation is a terrorist organisation because of paragraph (c) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of another paragraph of that definition also); and
(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 10 years.

(2): Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

102.4 Recruiting for a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first-mentioned person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.5 Training a terrorist organisation or receiving training from a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally provides training to, or intentionally receives training from, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person intentionally provides training to, or intentionally receives training from, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

102.6 Getting funds to or from a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

(4): Subsections (1) and (2) do not apply to the person's receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

(a) legal representation for a person in proceedings relating to this Division; or
(b) assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

102.7 Providing support to a terrorist organisation

(1): A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2): A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

Subdivision C—General provisions relating to offences 102.9 Extended geographical jurisdiction for offences

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

102.10 Alternative verdicts

(1): This section applies if, in a prosecution for an offence (the prosecuted offence ) against a subsection of a section of this Division, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of that section.
(2): The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

5 Application

For the purpose of making regulations specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in section 102.1 of the Criminal Code , it does not matter whether the relevant decision of the Security Council of the United Nations was made before or after the commencement of this item.

Crimes Act 1914

6 Subsection 4J(7)

Repeal the subsection, substitute:

(7): This section does not apply in relation to an offence against:

(a) section 24AA, 24AB or 78 or subsection 79(2) or (5) of this Act; or
(b) section 80.1 of the Criminal Code .

Note: If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 commences before or at the same time as item 2 of Schedule 1 to this Act, then this item does not commence at all. See subsection 2(5) of this Act.

7 Subsection 4J(7)

Repeal the subsection, substitute:

(7): This section does not apply to an offence against:

(a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or
(b) section 80.1 or 91.1 of the Criminal Code .

Note: If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 does not commence before or at the same time as item 2 of Schedule 1 to this Act, then this item does not commence at all. See subsection 2(6) of this Act.

8 Section 24

Repeal the section.

9 Subsection 24AC(1)

Omit "24,".

10 Subparagraph 24F(2)(b)(ii)

Omit "paragraph 24(1)(d)", substitute "paragraph 80.1(1)(e) of the Criminal Code ".

11 After paragraph 24F(2)(b)

Insert:

(ba) with intent to assist:
(i) another country; or
(ii) an organisation (within the meaning of section 100.1 of the Criminal Code );
that is engaged in armed hostilities against the Australian Defence Force;

12 Paragraph 24F(2)(c)

After "subsection 24AA(4)", insert "of this Act".

13 Paragraph 24F(2)(d)

After "paragraphs 24AA(2)(a) and (b)", insert "of this Act".

Migration Act 1958

14 Subparagraph 203(1)(c)(i)

Omit "24,".

15 After subparagraph 203(1)(c)(i)

Insert:

(ia) an offence against section 80.1 of the Criminal Code ; or

16 Subparagraph 203(1)(c)(ii)

Omit "that Act that relates to an offence mentioned in subparagraph (i)", substitute "the Crimes Act 1914 that relates to an offence mentioned in subparagraph (i) or (ia)".

17 Subparagraph 203(1)(c)(iia)

After "subparagraph (i)", insert "or (ia)".

18 Saving of Proclamations

A Proclamation that was in force for the purpose of paragraph 24(1)(d) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a Proclamation that was in force for the purpose of paragraph 80.1(1)(e) of the Criminal Code .

Intelligence Services Act 2001

19 After paragraph 29(1)(b)

Insert:

(ba) to review, as soon as possible after the third anniversary of the day on which the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent, the operation, effectiveness and implications of amendments made by that Act and the following Acts:
(i) the Border Security Legislation Amendment Act 2002 ;
(ii) the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 ;
(iii) the Suppression of the Financing of Terrorism Act 2002 ; and

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