(b) the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and
(c) the person knows that the organisation is a terrorist organisation; and
(d) the association provides support to the organisation; and
(e) the person intends that the support assist the organisation to expand or to continue to exist; and
(f) the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
(g) 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).
Penalty: Imprisonment for 3 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(g).
(4) This section does not apply if:
(a) the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or
(b) the association is in a place being used for public religious worship and takes place in the course of practising a religion; or
(c) the association is only for the purpose of providing aid of a humanitarian nature; or
(d) the association is only for the purpose of providing legal advice or legal representation in connection with:
(i) criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future); or
(ii) the question of whether the organisation is a terrorist organisation; or
(iii) a decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, or proceedings relating to such a decision or proposed decision; or
(iv) a listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or
(v) proceedings conducted by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non‑Citizens in the War Against Terrorism”; or
(vi) proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) This section does not apply unless the person is reckless as to the circumstance mentioned in paragraph (1)(b) and (2)(g) (as the case requires).
Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).
(6) This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).
(7) A person who is convicted of an offence under subsection (1) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place:
(a) at the same time as that conduct; or
(b) within 7 days before or after any of those occasions.
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.
Division 103—Financing terrorism
103.1 Financing terrorism
(1) A person commits an offence if:
(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 paragraph (1)(a). See subsection 5.6(1).
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to facilitate or engage in a specific terrorist act; or
(c) the funds will be used to facilitate or engage in more than one terrorist act.
103.2 Financing a terrorist
(1) A person commits an offence if:
(a) the person intentionally:
(i) makes funds available to another person (whether directly or indirectly); or
(ii) collects funds for, or on behalf of, another person (whether directly or indirectly); and
(b) the first‑mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to facilitate or engage in a specific terrorist act; or
(c) the funds will be used to facilitate or engage in more than one terrorist act.
103.3 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.
Division 104—Control orders
Subdivision A—Objects of this Division
104.1 Objects of this Division
The objects of this Division are to allow conditions to be imposed on a person by a control order for one or more of the following purposes:
(a) protecting the public from a terrorist act;
(b) preventing the provision of support for or the facilitation of a terrorist act;
(c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
104.1A State terrorist acts etc.
(1) A reference in this Division to a terrorist act (including a reference that is expressed as a reference to a terrorist act (within the meaning of section 100.1)) includes a reference to a state terrorist act.
(2) Section 100.4, to the extent it relates to this Division, does not apply in relation to a terrorist act that is a state terrorist act.
(3) A reference in this Division to a terrorist organisation (including a reference that is expressed as a reference to a terrorist organisation (within the meaning of subsection 102.1(1))) or a listed terrorist organisation includes a reference to a state sponsor of terrorism.
Subdivision B—Making an interim control order
104.2 AFP Minister’s consent to request an interim control order
(1) A senior AFP member must not request an interim control order in relation to a person without the AFP Minister’s written consent.
Note: However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the AFP Minister’s consent (see Subdivision C).
(2) A senior AFP member may only seek the AFP Minister’s written consent to request an interim control order in relation to a person if the member:
(a) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has:
(i) provided training to, received training from or participated in training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(c) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.
(3) In seeking the AFP Minister’s consent, the member must give the AFP Minister:
(a) a draft of the interim control order to be requested; and
(aa) the following:
(i) a statement of the facts relating to why the order should be made;
(ii) if the member is aware of any facts relating to why the order should not be made—a statement of those facts; and
(b) if the person is at least 18 years of age and the member has information about the person’s age—that information; and
(ba) if the person is under 18 years of age—information about the person’s age; and
(c) a summary of the grounds on which the order should be made.
Note: An interim control order cannot be requested in relation to a person who is under 14 years of age (see section 104.28).
(3A) To avoid doubt, paragraph (3)(c) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(4) The AFP Minister’s consent may be made subject to the member making changes required by the AFP Minister to the draft of the interim control order to be requested.
(5) To avoid doubt, a senior AFP member may seek the AFP Minister’s consent to request an interim control order in relation to a person even if:
(a) such a request has previously been made in relation to the person; or
(b) the person is detained in custody.
Note: An interim control order in relation to a person who is detained in custody in a prison does not begin to be in force until the person ceases to be detained in custody in a prison (see paragraph 104.5(1)(d) and subsection 104.5(1D)).
(6) In subsection (2), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
104.3 Requesting the court to make an interim control order
If the AFP Minister consents to the request under section 104.2, the senior AFP member may request an interim control order by giving an issuing court the following:
(a) a request the information in which is sworn or affirmed by the member;
(b) all that is required under subsection 104.2(3) (incorporating any change made to the draft of the interim control order under subsection 104.2(4));
(d) the following:
(i) an explanation as to why each of the proposed conditions should be imposed on the person;
(ii) if the member is aware of any facts relating to why any of those conditions should not be imposed on the person—a statement of those facts;
(e) the following:
(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders), and all previous applications for post‑sentence orders or interim post‑sentence orders, in relation to the person;
(ii) the outcomes and particulars of all previous applications for variations of control orders or of post‑sentence orders made in relation to the person;
(iii) the outcomes and particulars of all previous applications for revocations of control orders made in relation to the person;
(iiia) the outcomes and particulars of all previous applications for revocations of post‑sentence orders or interim post‑sentence orders made in relation to the person;
(iiib) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;
(iiic) the outcomes and particulars of all previous applications for review of post‑sentence orders in relation to the person;
(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law;
(f) a copy of the AFP Minister’s consent.
Note: The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2).
104.4 Making an interim control order
(1) The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
(iii) that the person has engaged in a hostile activity in a foreign country; or
(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
(d) the court is satisfied on the balance of probabilities that:
(i) each of the conditions; and
(ii) the combined effect of all of the conditions;
to be imposed on the person by the order in accordance with section 104.5A is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(iii) protecting the public from a terrorist act; or
(iv) preventing the provision of support for or the facilitation of a terrorist act; or
(v) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
Note: The issuing court may, in accordance with section 104.5B, specify conditions from which exemptions may be granted.
(2) For the purposes of paragraph (1)(d), in determining whether:
(a) each of the conditions; and
(b) the combined effect of all of the conditions;
to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
(c) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and
(d) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and
(e) as an additional consideration in all cases—the impact of:
(i) each of those conditions; and
(ii) the combined effect of all of those conditions;
on the person’s circumstances (including the person’s financial and personal circumstances).
(2A) In determining what is in the best interests of a person for the purposes of paragraph (2)(d), the court must take into account the following:
(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
(b) the physical and mental health of the person;
(c) the benefit to the person of having a meaningful relationship with his or her family and friends;
(d) the right of the person to receive an education;
(e) the right of the person to practise his or her religion;
(f) any other matter the court considers relevant.
(4) In paragraphs (1)(c) and (d), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
104.5 Terms of an interim control order
(1) If the issuing court makes the interim control order, the order must:
(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to whom the order relates; and
(c) specify:
(i) all of the conditions that are to be imposed in accordance with section 104.5A on the person by the order; and
(ii) any exemption conditions that are to be imposed in accordance with section 104.5B on the person by the order; and
(d) state that the order does not begin to be in force until:
(i) it is served personally on the person; and
(ii) if the order does not begin to be in force under subsection (1D) when it is served personally on the person—the order begins to be in force under subsection (1E); and
(e) specify a day on which the person may attend the court for the court to:
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or