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Western Australia
Terrorism (Commonwealth Powers) Bill 2002
CONTENTS
1. Short title and purpose 1
2. Commencement 2
3. Definitions 2
4. Reference of matters 3
5. Termination of references 4
Schedule 1 -- Part 5.3 of
Commonwealth Criminal Code 5
165--2 page i
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Terrorism (Commonwealth Powers) Bill 2002
A Bill for
An Act to refer certain matters relating to terrorist acts to the
Parliament of the Commonwealth for the purposes of
section 51(xxxvii) of the Constitution of the Commonwealth.
The Parliament of Western Australia enacts as follows:
1. Short title and purpose
(1) This Act may be cited as the Terrorism (Commonwealth
Powers) Act 2002.
(2) The purpose of this Act is to refer certain matters relating to
terrorist acts to the Parliament of the Commonwealth for the
purposes of section 51(xxxvii) of the Constitution of the
Commonwealth.
page 1
Terrorism (Commonwealth Powers) Bill 2002
s. 2
2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. Definitions
In this Act --
5 "Commonwealth Criminal Code" means the Criminal Code
set out in the Schedule to the Criminal Code Act 1995 of
the Commonwealth, or a law of the Commonwealth that
replaces that Code;
"criminal responsibility legislation" means the provisions of
10 Chapter 2 of the Commonwealth Criminal Code, as in force
from time to time;
"express amendment" of the terrorism legislation or the
criminal responsibility legislation means the direct
amendment of the text of the legislation (whether by the
15 insertion, omission, repeal, substitution or relocation of
words or matter) by Commonwealth Acts, but does not
include the enactment by a Commonwealth Act of a
provision that has or will have substantive effect otherwise
than as part of the text of the legislation;
20 "references" means the references under section 4(1)(a)
and (b);
"referred provisions" means the text set out in Schedule 1 to
the extent to which it deals with matters that are included in
the legislative powers of the Parliament of the State;
25 "terrorism legislation" means the provisions of Part 5.3 of the
Commonwealth Criminal Code enacted in the terms, or
substantially in the terms, of the text set out in Schedule 1
and as in force from time to time;
"terrorist act" has the same meaning it has in the text set out in
30 Schedule 1.
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Terrorism (Commonwealth Powers) Bill 2002
s. 4
4. Reference of matters
(1) The following matters are referred to the Parliament of the
Commonwealth --
(a) the matters to which the referred provisions relate, but
5 only to the extent of the making of laws with respect to
those matters by including the referred provisions in the
Commonwealth Criminal Code in the terms, or
substantially in the terms, of the text set out in
Schedule 1; and
10 (b) the matter of terrorist acts, and actions relating to
terrorist acts, but only to the extent of the making of
laws with respect to that matter by making express
amendments of the terrorism legislation or the criminal
responsibility legislation.
15 (2) The reference of a matter under subsection (1) has effect
only --
(a) if and to the extent that the matter is not included in the
legislative powers of the Parliament of the
Commonwealth (otherwise than by a reference for the
20 purposes of section 51(xxxvii) of the Constitution of the
Commonwealth); and
(b) if and to the extent that the matter is included in the
legislative powers of the Parliament of the State.
(3) The operation of each paragraph of subsection (1) is not
25 affected by the other paragraph.
(4) For the avoidance of doubt, it is the intention of the Parliament
of the State that --
(a) the terrorism legislation or the criminal responsibility
legislation may be expressly amended, or have its
30 operation otherwise affected, at any time after the
commencement of this Act by provisions of
Commonwealth Acts the operation of which is based on
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Terrorism (Commonwealth Powers) Bill 2002
s. 5
legislative powers that the Parliament of the
Commonwealth has apart from under the references; and
(b) the terrorism legislation or the criminal responsibility
legislation may have its operation affected, otherwise
5 than by express amendment, at any time after the
commencement of this Act by provisions of instruments
authorised by that legislation.
(5) Despite any other provision of this section, the references have
effect for a period --
10 (a) beginning on the day on which this Act comes into
operation; and
(b) ending on the day fixed, pursuant to section 5, as the day
on which the references under this Act are to terminate,
but no longer.
15 5. Termination of references
(1) The Governor may, at any time, by proclamation, fix a day as
the day on which the references are to terminate.
(2) The day fixed under subsection (1) must be no earlier than the
first day after the end of the period of 3 months beginning with
20 the day on which the proclamation is published in the Gazette.
(3) The Governor may, by proclamation, revoke a proclamation
published under subsection (1), in which case the revoked
proclamation is taken (for the purposes of section 4) never to
have been published.
25 (4) A revoking proclamation has effect only if published before the
day fixed under subsection (1).
(5) The revocation of a proclamation published under
subsection (1) does not prevent publication of a further
proclamation under that subsection.
30 (6) A proclamation is to be made under this section if and only if
the making of that proclamation has been recommended by
resolution passed by both Houses of Parliament of this State.
page 4
Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
Schedule 1 -- Part 5.3 of Commonwealth Criminal Code
(Section 3)
Part 5.3 Terrorism
Division 100 Preliminary
5 100.1 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
10 paragraph 51 (xx) of the Constitution applies.
express amendment of the provisions of this Part or Chapter 2
means the direct amendment of the provisions (whether by the
insertion, omission, repeal, substitution or relocation of words
or matter).
15 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
20 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.
25 organisation means a body corporate or an unincorporated
body whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
30 referring State has the meaning given by section 100.2.
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall
within subsection (3); and
(b) the action is done or the threat is made with the intention
5 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
10 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:
15 (a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person
taking the action; or
20 (e) creates a serious risk to the health or safety of the public
or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys,
an electronic system including, but not limited to:
(i) an information system; or
25 (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;
30 or
(vi) a system used for, or by, a transport system.
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(3) 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
5 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
10 public or a section of the public.
(4) 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
15 (b) a reference to the public includes a reference to the public
of a country other than Australia.
100.2 Referring States
(1) A State is a referring State if the Parliament of the State has
referred the matters covered by subsections (2) and (3) to the
20 Parliament of the Commonwealth for the purposes of
paragraph 51 (xxxvii) of the Constitution:
(a) if and to the extent that the matters are not otherwise
included in the legislative powers of the Parliament of the
Commonwealth (otherwise than by a reference under
25 paragraph 51 (xxxvii) of the Constitution); and
(b) if and to the extent that the matters are included in the
legislative powers of the Parliament of the State.
This subsection has effect subject to subsection (5).
(2) This subsection covers the matters to which the referred
30 provisions relate to the extent of making laws with respect to
those matters by including the referred provisions in this Code.
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
(3) This subsection covers the matter of terrorist acts, and actions
relating to terrorist acts, to the extent of the making of laws with
respect to that matter by making express amendment of this Part
or of Chapter 2.
5 (4) A State is a referring State even if a law of the State provides
that the reference to the Commonwealth Parliament of either or
both of the matters covered by subsections (2) and (3) is to
terminate in particular circumstances.
(5) A State ceases to be a referring State if a reference by the State
10 of either or both of the matters covered by subsections (2) and
(3) terminates.
(6) In this section:
referred provisions means the provisions of Part 5.3 of this Code
as inserted by the Criminal Code Amendment (Terrorism)
15 Act 2002, to the extent to which they deal with matters that are
included in the legislative powers of the Parliaments of the States.
100.3 Constitutional basis for the operation of this Part
(1) Operation in a referring State
The operation of this Part in a referring State is based on:
20 (a) the legislative powers that the Commonwealth Parliament
has under section 51 of the Constitution (other than
paragraph 51 (xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament
has in respect of matters to which this Part relates
25 because those matters are referred to it by the Parliament
of the referring State under paragraph 51 (xxxvii) of the
Constitution.
Note. The State reference fully supplements the Commonwealth Parliament's
other powers by referring the matters to the Commonwealth
30 Parliament to the extent to which they are not otherwise included in
the legislative powers of the Commonwealth Parliament.
(2) Operation in a non-referring State
The operation of this Part in a State that is not a referring State
is based on the legislative powers that the Commonwealth
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
Parliament has under section 51 of the Constitution (other than
paragraph 51 (xxxvii)).
Note. Subsection 100.4 (5) identifies particular powers that are being relied
on.
5 (3) Operation in a Territory
The operation of this Part in the Northern Territory, the
Australian Capital Territory or an external Territory is based on:
(a) the legislative powers that the Commonwealth Parliament
has under section 122 of the Constitution to make laws
10 for the government of that Territory; and
(b) the legislative powers that the Commonwealth Parliament
has under section 51 of the Constitution (other than
paragraph 51 (xxxvii)).
Despite subsection 22 (3) of the Acts Interpretation Act 1901,
15 this Part as applying in those Territories is a law of the
Commonwealth.
(4) Operation outside Australia
The operation of this Part outside Australia and the external
Territories is based on:
20 (a) the legislative powers that the Commonwealth Parliament
has under paragraph 51 (xxix) of the Constitution; and
(b) the other legislative powers that the Commonwealth
Parliament has under section 51 of the Constitution (other
than paragraph 51 (xxxvii)).
25 100.4 Application of provisions
(1) Part generally applies to all terrorist acts and preliminary
acts
Subject to subsection (4), this Part applies to the following
conduct:
30 (a) all actions or threats of action that constitute terrorist acts
(no matter where the action occurs, the threat is made or
the action, if carried out, would occur);
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
(b) all actions (preliminary acts) that relate to terrorist acts
but do not themselves constitute terrorist acts (no matter
where the preliminary acts occur and no matter where the
terrorist acts to which they relate occur or would occur).
5 Note. See the following provisions:
(a) subsection 101.1 (2);
(b) subsection 101.2 (4);
(c) subsection 101.4 (4);
(d) subsection 101.5 (4);
10 (e) subsection 101.6 (3);
(f) section 102.9.
(2) Operation in relation to terrorist acts and preliminary acts
occurring in a State that is not a referring State
Subsections (4) and (5) apply to conduct if the conduct is itself
15 a terrorist act and:
(a) the terrorist act consists of an action and the action
occurs in a State that is not a referring State; or
(b) the terrorist act consists of a threat of action and the
threat is made in a State that is not a referring State.
20 (3) Subsections (4) and (5) also apply to conduct if the conduct is a
preliminary act that occurs in a State that is not a referring State
and:
(a) the terrorist act to which the preliminary act relates
consists of an action and the action occurs, or would
25 occur, in a State that is not a referring State; or
(b) the terrorist act to which the preliminary act relates
consists of a threat of action and the threat is made, or
would be made, in a State that is not a referring State.
(4) Notwithstanding any other provision in this Part, this Part
30 applies to the conduct only to the extent to which the Parliament
has power to legislate in relation to:
(a) if the conduct is itself a terrorist act--the action or threat
of action that constitutes the terrorist act; or
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(b) if the conduct is a preliminary act--the action or threat of
action that constitutes the terrorist act to which the
preliminary act relates.
(5) Without limiting the generality of subsection (4), this Part
5 applies to the 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
10 (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
15 (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
20 (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
25 (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
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Schedule 1 Part 5.3 of Commonwealth Criminal Code
(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
5 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
10 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.
(6) To avoid doubt, subsections (2) and (3) apply to a State that is
not a referring State at a particular time even if no State is a
15 referring State at that time.
100.5 Application of Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901, as in force on the day on
which Schedule 1 to the Criminal Code Amendment
(Terrorism) Act 2002 commences, applies to this Part.
20 (2) Amendments of the Acts Interpretation Act 1901 made after
that day do not apply to this Part.
100.6 Concurrent operation intended
(1) This Part is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
25 (2) Without limiting subsection (1), this Part is not intended to
exclude or limit the concurrent operation of a law of a State or
Territory that makes:
(a) an act or omission that is an offence against a provision of
this Part; or
30 (b) a similar act or omission;
an offence against the law of the State or Territory.
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(3) Subsection (2) applies even if the law of the State or Territory
does any one or more of the following:
(a) provides for a penalty for the offence that differs from the
penalty provided for in this Part;
5 (b) provides for a fault element in relation to the offence that
differs from the fault elements applicable to the offence
under this Part;
(c) provides for a defence in relation to the offence that differs
from the defences applicable to the offence under this Part.
10 (4) If:
(a) an act or omission of a person is an offence under this Part
and is also an offence under the law of a State or Territory;
and
(b) the person has been punished for the offence under the law
15 of the State or Territory;
the person is not liable to be punished for the offence under this
Part.
100.7 Regulations may modify operation of this Part to deal with
interaction between this Part and State and Territory laws
20 (1) The regulations may modify the operation of this Part so that:
(a) provisions of this Part do not apply to a matter that is
dealt with by a law of a State or Territory specified in the
regulations; or
(b) no inconsistency arises between the operation of a
25 provision of this Part and the operation of a State or
Territory law specified in the regulations.
(2) Without limiting subsection (1), regulations made for the
purposes of that subsection may provide that the provision of
this Part does not apply to:
30 (a) a person specified in the regulations; or
(b) a body specified in the regulations; or
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
(c) circumstances specified in the regulations; or
(d) a person or body specified in the regulations in the
circumstances specified in the regulations.
(3) In this section:
5 matter includes act, omission, body, person or thing.
100.8 Approval for changes to or affecting this Part
(1) This section applies to:
(a) an express amendment of this Part (including this
section); and
10 (b) an express amendment of Chapter 2 that applies only to
this Part (whether or not it is expressed to apply only to
this Part).
(2) An express amendment to which this section applies is not to be
made unless the amendment is approved by:
15 (a) a majority of the group consisting of the States, the
Australian Capital Territory and the Northern Territory;
and
(b) at least 4 States.
Division 101 Terrorism
20 101.1 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)
25 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
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(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
5 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
10 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).
15 Penalty: Imprisonment for 15 years.
(3) A person commits an offence under this section even if the
terrorist act does not occur.
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against this section.
20 (5) 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
25 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
30 (1) A person commits an offence if:
(a) the person possesses a thing; and
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
(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
5 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
10 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).
15 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.
20 (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)).
25 (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
30 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.
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
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
5 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.
10 (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
15 (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
20 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,
25 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
30 satisfied that the defendant is guilty of the offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
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
5 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.
10 (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
15 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;
20 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.
25 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
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(b) an organisation that is specified by the regulations for the
purposes of this paragraph (see subsections (2), (3) and
(4)).
(2) Before the Governor-General makes a regulation specifying an
5 organisation for the purposes of paragraph (b) 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
10 (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
15 a terrorist act (whether or not the terrorist act has
occurred or will occur).
(3) Regulations for the purposes of paragraph (b) 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
20 avoid doubt, this subsection does not prevent:
(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under
subsection (4); or
(c) the making of new regulations the same in substance as
25 those regulations (whether the new regulations are made
or take effect before or after those regulations cease to
have effect because of this subsection).
(4) A regulation specifying an organisation for the purposes of
paragraph (b) of the definition of terrorist organisation in this
30 section ceases to have effect when:
(a) the decision mentioned in paragraph (2) (a) ceases to
have effect; or
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Schedule 1 Part 5.3 of Commonwealth Criminal Code
(b) the organisation ceases to be identified as described in
paragraph (2) (b).
The regulation does not revive even if the organisation is again
identified as described in paragraph (2) (b).
5 (5) To avoid doubt, subsection (4) 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.
10 (6) For the purpose of making regulations specifying an
organisation for the purposes of paragraph (b) of the definition
of terrorist organisation in this section, it does not matter
whether the relevant decision of the Security Council of the
United Nations was made before or after 6 July 2002.
15 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
20 (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:
25 (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.
30 Penalty: Imprisonment for 15 years.
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
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
5 (b) the organisation is a terrorist organisation because of
paragraph (b) of the definition of terrorist organisation
in this Division (whether or not the organisation is a
terrorist organisation because of paragraph (a) of that
definition also); and
10 (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
15 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
20 (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
25 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
30 (b) the organisation is a terrorist organisation; and
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
(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
5 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
10 (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
15 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.
20 102.6 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
25 (b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist
organisation.
Penalty: Imprisonment for 25 years.
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(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
5 (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.
(3) Subsections (1) and (2) do not apply to the person's receipt of
10 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
15 of the Commonwealth or a State or Territory.
Note. A defendant bears a legal burden in relation to the matter in
subsection (3) (see section 13.4).
102.7 Providing support to a terrorist organisation
(1) A person commits an offence if:
20 (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
25 (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
30 support or resources that would help the organisation
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Terrorism (Commonwealth Powers) Bill 2002
Schedule 1 Part 5.3 of Commonwealth Criminal Code
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
5 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)
10 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
15 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
20 as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
Division 103 Financing terrorism
103.1 Financing terrorism
(1) A person commits an offence if:
25 (a) the person provides or collects funds; and
(b) the person is reckless as to whether the funds will be used
to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
Note. Intention is the fault element for the conduct described in
30 paragraph (1) (a). See subsection 5.6 (1).
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Terrorism (Commonwealth Powers) Bill 2002
Part 5.3 of Commonwealth Criminal Code Schedule 1
(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).
5 Division 106 Transitional provisions
106.1 Saving--regulations made for the purposes of the definition of
terrorist organisation
(1) If:
(a) regulations were made before commencement for the
10 purposes of paragraph (c) of the definition of terrorist
organisation in subsection 102.1 (1), as in force before
commencement; and
(b) the regulations were in force immediately before
commencement;
15 the regulations have effect, after commencement, as if they had
been made for the purposes of paragraph (b) of the definition of
terrorist organisation in subsection 102.1 (1), as in force after
commencement.
(2) In this section, commencement means the commencement of
20 this section.
page 25
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