(9) The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
(10) In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
80.2K Directions to cease display of prohibited symbols in public
Directions
(1) A police officer may, in accordance with section 80.2L, direct a person to cause a prohibited symbol to cease to be displayed in a public place if:
(a) the prohibited symbol is displayed in a public place as mentioned in subsection 80.2F(1) (including by being made available on the internet); and
(b) subsection (2), (3) or (6) of this section applies.
Note: The police officer may, under section 80.2N, also seize a thing that is, depicts or contains the prohibited symbol.
Circumstances in which direction may be given
(2) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a):
(a) involves dissemination of ideas based on racial superiority or racial hatred; or
(b) could incite another person or a group of persons to offend, insult, humiliate or intimidate:
(i) a person (the targeted person) because of the race of the targeted person; or
(ii) the members of a group of persons (the targeted group) because of the race of some or all of the members of the targeted group.
Note: The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(3) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a) involves advocacy that:
(a) is advocacy of hatred of:
(i) a group of persons distinguished by race, religion or nationality (a targeted group); or
(ii) a member of a targeted group; and
(b) constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:
(i) the targeted group; or
(ii) a member of the targeted group.
Note: The object of this subsection is to give further effect to article 20 of the Covenant.
(4) For the purposes of paragraph (3)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.
(5) For the purposes of paragraph (3)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.
(6) For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is:
(a) a reasonable person; and
(b) a member of a group of persons distinguished by race, colour, sex, sexual orientation, gender identity, intersex status, disability, language, religion, political or other opinion or national, ethnic or social origin;
because of the reasonable person’s membership of that group.
Note: The object of this subsection is to give further effect to article 26 of the Covenant.
(7) For the purposes of subsection (6), it does not matter whether a member of the group sees the prohibited symbol while it is displayed in a public place.
Time by which direction must be complied with
(8) A direction given under subsection (1) must specify the time by which the prohibited symbol must cease to be displayed in a public place. The time must be reasonable.
Definitions
(9) In this section:
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act); or
(c) a member (however described) of a police force of a State or Territory.
80.2L Directions to cease display of prohibited symbols in public—person to whom, and form in which, direction may be given
(1) A police officer may give a direction to cause a prohibited symbol to cease to be displayed in a public place under subsection 80.2K(1) only in accordance with subsection (2), (3) or (4) of this section.
(2) The direction may be given to a person, either orally or in writing, if the police officer suspects on reasonable grounds that:
(a) one or more of the following is satisfied:
(i) the person caused the prohibited symbol to be displayed in a public place;
(ii) the person is an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place;
(iii) the person is an owner or an occupant of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; and
(b) there are steps the person can take to cause the prohibited symbol to cease to be displayed in a public place.
(3) The direction may also be given in writing by being left on or at land or premises on, at or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner or occupier of the land or premises at the time the direction is given.
(4) The direction may also be given in writing by being affixed or placed in a conspicuous manner on an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner of the aircraft, vehicle or vessel at the time the direction is given.
80.2M Directions to cease display of prohibited symbols in public—offence
Offence
(1) A person commits an offence if:
(a) the person is given a direction under subsection 80.2K(1); and
(b) the prohibited symbol specified in the direction does not cease to be displayed in a public place before the time specified in the direction under subsection 80.2K(8).
Penalty: 20 penalty units.
(2) Strict liability applies to paragraph (1)(b).
Defences
(3) Subsection (1) does not apply if:
(a) the conduct that caused the prohibited symbol to be displayed in a public place was genuinely engaged in for a purpose that is:
(i) a religious, academic, educational, artistic, literary or scientific purpose; and
(ii) not contrary to the public interest; or
(b) the conduct that caused the prohibited symbol to be displayed in a public place was engaged in for the purposes of making a news report, or a current affairs report, that is:
(i) in the public interest; and
(ii) made by a person working in a professional journalistic capacity; or
(c) if the prohibited symbol is a prohibited Nazi symbol—any of paragraphs 80.2H(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place; or
(d) if the prohibited symbol is a prohibited organisation symbol—any of paragraphs 80.2HA(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) For the purposes of paragraphs (3)(a), (b) and (c), it does not matter whether the conduct referred to in those paragraphs was conduct of the person who is given the direction as mentioned in paragraph (1)(a).
(5) Subsection (1) does not apply if:
(a) both:
(i) the person (the recipient) who is given the direction did not cause the prohibited symbol to be displayed in a public place; and
(ii) when the direction is given, the recipient is not an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place, or an owner of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; or
(b) either the person (the recipient) who is given the direction takes all reasonable steps to cause the prohibited symbol to cease to be displayed in a public place, or there are no such steps that the recipient can take.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
80.2N Seizing things displaying prohibited symbols in public
(1) A police officer may seize a thing in accordance with this section if the thing is, depicts or contains a prohibited symbol that is displayed in a public place.
Seizing the thing
(2) A police officer may seize the thing, for the purpose of preventing the commission or continuation of an offence under subsection 80.2H or 80.2HA, if the police officer has a reasonable suspicion covered by subsection 80.2K(2), (3) or (6) in relation to display of the prohibited symbol.
Note 1: Sections 80.2H and 80.2HA relate to the public display of prohibited Nazi symbols and prohibited organisation symbols.
Note 2: The police officer may also give a direction under section 80.2K in relation to the display of the prohibited symbol.
(3) In seizing the thing, the police officer:
(a) may use such force or assistance as the police officer considers reasonably necessary; and
(b) may seize the thing only when it actually is in a public place; and
(c) must not damage the thing unless it is reasonably necessary for the seizure.
Return of seized things
(4) The person from whom the thing was seized, or the owner of the thing, may apply:
(a) if the thing was seized by a police officer to whom paragraph (a) or (b) of the definition of police officer in subsection (7) applies—to such a police officer; or
(b) if the thing was seized by a member (however described) of the police force of a State or Territory—to a police officer who is a member (however described) of the police force of that State or Territory;
for the return of the thing.
(5) On application by a person in accordance with subsection (4), the police officer must return the thing to the person, unless the officer is satisfied that:
(a) the thing must be retained to prevent the commission or continuation of an offence under section 80.2H or 80.2HA; or
(b) retention of the thing is necessary for evidentiary purposes.
(6) If no application for the return of the thing is made within 90 days of the day the thing was seized, a police officer who has custody of the thing may destroy or otherwise dispose of the thing.
Definitions
(7) In this section:
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act); or
(c) a member (however described) of a police force of a State or Territory.
Subdivision D—Common provisions
80.3 Defence for acts done in good faith
(1) Subdivisions B and C (other than sections 80.2A, 80.2B, 80.2BA, 80.2BB, 80.2BC, 80.2BD and 80.2BE), and sections 83.1 and 83.4, do not apply to a person who:
(a) tries in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions:
(i) the Sovereign;
(ii) the Governor‑General;
(iii) the Governor of a State;
(iv) the Administrator of a Territory;
(v) an adviser of any of the above;
(vi) a person responsible for the government of another country; or
(b) points out in good faith errors or defects in the following, with a view to reforming those errors or defects:
(i) the Government of the Commonwealth, a State or a Territory;
(ii) the Constitution;
(iii) legislation of the Commonwealth, a State, a Territory or another country;
(iv) the administration of justice of or in the Commonwealth, a State, a Territory or another country; or
(c) urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country; or
(d) points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or
(e) does anything in good faith in connection with an industrial dispute or an industrial matter; or
(f) publishes in good faith a report or commentary about a matter of public interest.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2) In considering a defence under subsection (1), the Court may have regard to any relevant matter, including whether the acts were done:
(a) for a purpose intended to be prejudicial to the safety or defence of the Commonwealth; or
(b) with the intention of assisting a party:
(i) engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and
(ii) declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force; or
(f) with the intention of causing violence or creating public disorder or a public disturbance.
(3) Without limiting subsection (2), in considering a defence under subsection (1) in respect of an offence against Subdivision C, the Court may have regard to any relevant matter, including whether the acts were done:
(a) in the development, performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in the dissemination of news or current affairs.
80.4 Extended geographical jurisdiction for offences
(1) Subject to subsection (2), section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.
(2) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against:
(a) section 80.1AC; or
(b) subsection 80.2A(2); or
(c) subsection 80.2B(2); or
(ca) subsection 80.2BA(2); or
(cb) subsection 80.2BB(2); or
(cc) subsection 80.2BC(2); or
(cd) subsection 80.2BD(2); or
(ce) subsection 80.2BE(2); or
(d) subsection 80.2C(1); or
(e) subsection 80.2H(1); or
(ea) subsection 80.2HA(1); or
(f) subsection 80.2J(1); or
(fa) subsection 80.2JA(1); or
(g) subsection 80.2M(1).
80.6 Division not intended to exclude State or Territory law
It is the intention of the Parliament that this Division is not to apply to the exclusion of a law of a State or a Territory to the extent that the law is capable of operating concurrently with this Division.
Division 82—Sabotage
Subdivision A—Preliminary
82.1 Definitions
In this Division:
advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.
damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply in relation to public infrastructure:
(a) the conduct destroys it or results in its destruction;
(b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable;
(c) the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose;
(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;
(e) the conduct results in it or any part of it becoming defective or being contaminated;
(f) the conduct significantly degrades its quality;
(g) if it is an electronic system—the conduct seriously disrupts it.
foreign principal has the meaning given by section 90.2.
national security has the meaning given by section 90.4.
prejudice: embarrassment alone is not sufficient to prejudice Australia’s national security.
public infrastructure: see section 82.2.
82.2 Public infrastructure
Public infrastructure
(1) Public infrastructure means any of the following:
(a) any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth;
(b) defence premises within the meaning of Part VIA of the Defence Act 1903;
(c) service property, and service land, within the meaning of the Defence Force Discipline Act 1982;
(d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;
(e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:
(i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind, or relates to food (within the meaning of the Food Standards Australia New Zealand Act 1991) intended for the public; and
(ii) is located in Australia; and
(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce;
(f) food (within the meaning of the Food Standards Australia New Zealand Act 1991) that:
(i) is intended for the public; and
(ii) is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
(2) For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2).
Fault element for offences in relation to public infrastructure