(b) a legislative instrument made on or after that commencement.
106.13 Application and transitional—Counter‑Terrorism and Other Legislation Amendment Act 2023
Control orders
(1) The amendments of Division 104 of Part 5.3 made by the Counter‑Terrorism and Other Legislation Amendment Act 2023 do not apply in relation to:
(a) an interim control order made before the commencement of this section; or
(b) a confirmed control order made before the commencement of this section; or
(c) a confirmed control order made on or after the commencement of this section if the interim control order that is confirmed by the confirmed control order was made before the commencement of this section.
Issuing court
(2) The amendment of subsection 100.1(1) made by the Counter‑Terrorism and Other Legislation Amendment Act 2023 does not apply in relation to an order made by the Federal Circuit and Family Court of Australia (Division 2) before the commencement of this section.
Appointment as an issuing authority for continued preventative detention orders
(3) If:
(a) a person held an appointment under subsection 105.2(1) immediately before the commencement of this section; and
(b) the person is covered by a paragraph of subsection 105.2(1) immediately after the commencement of this section;
the amendments of subsection 105.2(1) made by the Counter‑Terrorism and Other Legislation Amendment Act 2023 do not affect the continuity of the person’s appointment.
(4) If:
(a) a person held an appointment under subsection 105.2(1) immediately before the commencement of this section; and
(b) the person is not covered by a paragraph of subsection 105.2(1) immediately after the commencement of this section;
then:
(c) the person’s appointment lapses immediately after the commencement of this section; and
(d) the amendments of subsection 105.2(1) made by the Counter‑Terrorism and Other Legislation Amendment Act 2023 do not affect the continuity of an order made by the person under Division 105 before the commencement of this section.
Part 5.3A—State sponsors of terrorism
Division 110—Preliminary
Subdivision A—Definitions
110.1 Definitions
(1) In this Part:
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
associate: a person associates with another person if the person meets or communicates with the other person.
Australian permanent resident means a person who is a permanent resident within the meaning of the Australian Citizenship Act 2007.
close family member of a person (the first person) means:
(a) the first person’s spouse or de facto partner; or
(b) a parent, step‑parent or grandparent of the first person; or
(c) any other person who would be a parent, step‑parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or
(d) a child, step‑child or grandchild of the first person; or
(e) any other person who would be a step‑child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step‑brother or step‑sister of the first person; or
(g) any other person who would be a brother, sister, step‑brother or step‑sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
associate: a person associates with another person if the person meets or communicates with the other person.
Australian permanent resident means a person who is a permanent resident within the meaning of the Australian Citizenship Act 2007.
close family member of a person (the first person) means:
(a) the first person’s spouse or de facto partner; or
(b) a parent, step‑parent or grandparent of the first person; or
(c) any other person who would be a parent, step‑parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or
(d) a child, step‑child or grandchild of the first person; or
(e) any other person who would be a step‑child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step‑brother or step‑sister of the first person; or
(g) any other person who would be a brother, sister, step‑brother or step‑sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
foreign state entity means any of the following entities:
(a) the government of a foreign country or of part of a foreign country;
(b) an authority of the government of a foreign country;
(c) an authority of the government of part of a foreign country;
(d) a foreign local government body or foreign regional government body;
(e) an entity prescribed by the regulations for the purposes of this paragraph.
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.
member of an entity includes any of the following:
(a) an employee or official of the entity;
(b) an individual who performs work for the entity under a contract;
(c) an individual who, under a law of a foreign country or of part of a foreign country, holds or performs the duties of an appointment, office or position that is in or relates to the entity;
(d) an individual who holds or performs the duties of an appointment, office or position that:
(i) is in or relates to the entity; and
(ii) is created by custom or convention of a foreign country or of part of a foreign country;
(e) an individual who is otherwise in the service of the entity (including service as a member of a military force or police force);
(f) an individual who:
(i) is an authorised intermediary of an individual who is a member of the entity under any of the paragraphs of this definition; or
(ii) holds the individual out to be the authorised intermediary of an individual who is a member of the entity under any of the paragraphs of this definition.
recruit includes induce, incite and encourage.
state sponsor of terrorism: see subsection 110.3(1).
state terrorist act: see section 111.1.
targeted at Australia: see section 110.2.
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 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.
Elements of the definition of terrorist act
(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
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(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
(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.
Actions that are not terrorist acts
(3) Action falls within this subsection if it is:
(a) advocacy, protest, dissent or industrial action that 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; or
(b) conduct that takes place in the context of, and is associated with, an international armed conflict.
References to person, property or public
(4) In this Part:
(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 (other than a reference to the Australian public) includes a reference to the public of a country other than Australia.
110.2 When a terrorist act is targeted at Australia
(1) For the purposes of this Part, an action, or a threat of action, that is a terrorist act is targeted at Australia if:
(a) the action is, or is threatened to be, done in Australia; or
(b) the action falls within subsection (2); or
(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 or Territory, or of part of a State or Territory; or
(ii) intimidating the Australian public or a section of the Australian public.
Action harming Australians or Australian interests
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person who is:
(i) an Australian citizen; or
(ii) an Australian permanent resident; or
(b) causes serious damage to property, and the Commonwealth or a State or Territory has:
(i) possession or control of the property; or
(ii) a proprietary right or interest in the property (other than an equitable interest arising only from an agreement to transfer an interest, an agreement to grant an interest or a constructive trust); or
(c) causes the death of a person who is:
(i) an Australian citizen; or
(ii) an Australian permanent resident; or
(d) endangers the life of a person who is:
(i) an Australian citizen; or
(ii) an Australian permanent resident;
other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the Australian public or a section of the Australian public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system that operates wholly or partly in Australia, including, but not limited to:
(i) an information system that operates wholly or partly in Australia; or
(ii) a telecommunications system that operates wholly or partly in Australia; or
(iii) an Australian financial system; or
(iv) a system used for the delivery of essential services by the Commonwealth or a State or Territory; or
(v) a system used for, or by, an essential public utility that operates wholly or partly in Australia; or
(vi) a system used for, or by, a transport system that operates wholly or partly in Australia.
Subdivision B—State sponsors of terrorism
110.3 Meaning of state sponsor of terrorism
(1) In this Code:
state sponsor of terrorism means an entity that is specified by the regulations for the purposes of this definition (see subsections (3) to (5), section 110.4 and subsection 110.5(5)).
Meaning of advocated
(2) For the purposes of this section, an entity advocated the doing of a terrorist act if:
(a) the entity directly or indirectly counselled, promoted, encouraged or urged the doing of a terrorist act; or
(b) the entity directly or indirectly provided instruction on the doing of a terrorist act; or
(c) the entity directly praised the doing of a terrorist act in circumstances where there was a substantial risk that such praise might have had the effect of leading a person (regardless of the person’s age or any mental impairment that the person might suffer) to engage in a terrorist act.
Regulations to specify state sponsors of terrorism
(3) Before the Governor‑General makes a regulation specifying an entity for the purposes of the definition of state sponsor of terrorism in subsection (1), the AFP Minister must be satisfied on reasonable grounds that:
(a) the entity is a foreign state entity; and
(b) the entity or a member of the entity:
(i) has directly or indirectly engaged in, prepared, planned, assisted in or fostered the doing of a terrorist act that was targeted at Australia; or
(ii) has advocated the doing of a terrorist act that was targeted at Australia.
(4) In paragraph (3)(b):
(a) a reference to a terrorist act includes a reference to a terrorist act that occurred before subsection (3) commences; and
(b) a reference to having engaged in, prepared, planned, assisted in, fostered or advocated the doing of a terrorist act includes a reference to having engaged in, prepared, planned, assisted in, fostered or advocated the doing of a terrorist act before subsection (3) commences.
(5) Before the Governor‑General makes a regulation specifying an entity for the purposes of the definition of state sponsor of terrorism in subsection (1), the AFP Minister must:
(a) obtain the Foreign Affairs Minister’s agreement in writing to the entity being specified for the purposes of that definition; and
(b) arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.
References to the doing of a terrorist act
(6) In this section, a reference to the doing of a terrorist act includes:
(a) a reference to the doing of a terrorist act, even if a terrorist act does not occur; and
(b) a reference to the doing of a specific terrorist act; and
(c) a reference to the doing of more than one terrorist act.
110.4 Including or removing names of specified state sponsor of terrorism
(1) This section applies if the AFP Minister is satisfied on reasonable grounds that:
(a) an entity is specified in regulations made for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1); and
(b) the entity:
(i) is referred to by another name (the alias), in addition to, or instead of, a name used to specify the entity in the regulations; or
(ii) no longer uses a name (the former name) used in the regulations to specify the entity.
(2) The AFP Minister may, by legislative instrument, amend the regulations to do either or both of the following:
(a) include the alias in the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(i);
(b) remove the former name from the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(ii).
(3) Amendment of regulations under subsection (2) does not prevent the further amendment or repeal of the regulations by regulations made under section 5 of this Act for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1).
(4) The AFP Minister may not, by legislative instrument made under this section, amend the regulations to remove entirely an entity that has been specified.
(5) To avoid doubt, this section does not affect the power under section 5 of this Act to make regulations for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1).
110.5 Declaration in relation to a state sponsor of terrorism
Power to make declaration
(1) If:
(a) an entity is specified by regulations made for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1); and
(b) the AFP Minister is satisfied that it is not appropriate for the entity to continue to be so specified;
the AFP Minister may, by notifiable instrument, make a declaration to the effect that the AFP Minister is so satisfied.
(2) The AFP Minister may make a declaration under subsection (1):
(a) on application under section 110.6; or
(b) on the AFP Minister’s own initiative.
(3) The declaration must specify the day on which the AFP Minister becomes satisfied that it is not appropriate for the entity to continue to be specified by regulations made for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1).
(4) Before the AFP Minister makes a declaration under subsection (1), the AFP Minister must consult the Foreign Affairs Minister in relation to the making of the declaration.
Effect of declaration
(5) The regulations, to the extent to which they specify the entity, are taken to cease to have effect on the day specified in the declaration under subsection (3), even if that day occurred before the day on which the declaration is made.
(6) To avoid doubt, subsections (1) to (5) do not prevent the entity from being subsequently specified by regulations made for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1) if the AFP Minister is satisfied as mentioned in subsection 110.3(3).
110.6 Application for declaration
(1) The following may apply to the AFP Minister for a declaration under subsection 110.5(1) in relation to a state sponsor of terrorism:
(a) the Parliamentary Joint Committee on Intelligence and Security;
(b) the foreign country to which the state sponsor of terrorism belongs.
(2) The application must:
(a) be in writing; and
(b) be made on the grounds that there is a basis for the AFP Minister to be satisfied that it is not appropriate for the state sponsor of terrorism to continue to be specified by regulations made for the purposes of the definition of state sponsor of terrorism in subsection 110.3(1).
110.7 Reviews by Parliamentary Joint Committee on Intelligence and Security