(5) To avoid doubt, this section does not affect the power under section 5 of this Act to make a prohibited hate group regulation.
114A.8 De‑listing a prohibited hate group
(1) If:
(a) an organisation is specified by a prohibited hate group regulation; and
(b) the AFP Minister ceases to be satisfied that it is reasonably necessary for the organisation to be so specified to protect the Australian community or part of the Australian community against harm of any of the kinds referred to in paragraph 114A.1(1)(a);
the AFP Minister must, by notifiable instrument, make a declaration to the effect that the AFP Minister has ceased to be so satisfied.
(2) Before the AFP Minister makes a declaration under subsection (1), the AFP Minister must:
(a) have regard to the matters referred to in subsection 114A.4(1); and
(b) consult the Attorney‑General in relation to the making of the declaration; and
(c) arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.
Declaration to specify a day
(3) The declaration must specify the day on which the AFP Minister ceased to be satisfied as mentioned in paragraph (1)(b).
(4) The regulations, to the extent to which they specify the organisation, 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.
Delisted organisation may be relisted later
(5) To avoid doubt, subsections (1) to (4) do not prevent the organisation from being subsequently specified by a prohibited hate group regulation if the AFP Minister becomes satisfied as mentioned in subsection 114A.4(1).
114A.9 Reviews by Parliamentary Joint Committee on Intelligence and Security
(1) This section applies in relation to the following legislative instruments:
(a) a prohibited hate group regulation;
(b) an instrument made under section 114A.7 (including or removing names of prohibited hate groups).
(2) The Parliamentary Joint Committee on Intelligence and Security may:
(a) review the legislative instrument at any time; and
(b) report the Committee’s comments and recommendations to each House of the Parliament.
Review of disallowable legislative instrument—extension of disallowance period
(3) If the Committee’s report on a review of a disallowable legislative instrument is tabled in a House of the Parliament under subsection (2):
(a) during the applicable disallowance period for that House; and
(b) on or after the eighth sitting day of the applicable disallowance period;
then Part 2 of Chapter 3 of the Legislation Act 2003 has effect, in relation to that disallowable legislative instrument and that House, as if each period of 15 sitting days referred to in that Part were extended in accordance with the table:
Extension of applicable disallowance period
Item If the Committee’s report is tabled in that House … extend the period of 15 sitting days by …
1 on the fifteenth sitting day of the applicable disallowance period 8 sitting days of that House
2 on the fourteenth sitting day of the applicable disallowance period 7 sitting days of that House
3 on the thirteenth sitting day of the applicable disallowance period 6 sitting days of that House
4 on the twelfth sitting day of the applicable disallowance period 5 sitting days of that House
5 on the eleventh sitting day of the applicable disallowance period 4 sitting days of that House
6 on the tenth sitting day of the applicable disallowance period 3 sitting days of that House
7 on the ninth sitting day of the applicable disallowance period 2 sitting days of that House
8 on the eighth sitting day of the applicable disallowance period 1 sitting day of that House
Applicable disallowance period
(4) The applicable disallowance period for a House of the Parliament means the period of 15 sitting days of that House after the disallowable legislative instrument, or a copy of the disallowable legislative instrument, was laid before that House in accordance with section 38 of the Legislation Act 2003.
Division 114B—Offences
114B.1 Directing the activities of a prohibited hate group
(1) A person commits an offence if:
(a) the person intentionally directs the activities of an organisation; and
(b) the organisation is a prohibited hate group; and
(c) the person knows the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person intentionally directs the activities of an organisation; and
(b) the organisation is a prohibited hate group; and
(c) the person is reckless as to whether the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 10 years.
114B.2 Membership of a prohibited hate group
(1) A person commits an offence if:
(a) the person intentionally is a member of an organisation; and
(b) the organisation is a prohibited hate group; and
(c) the person knows the organisation is a prohibited hate group.
Penalty: Imprisonment for 7 years.
(2) Subsection (1) does not apply if the person proves that the person took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a prohibited hate group.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2: For other defences, see section 114B.7.
114B.3 Recruiting for a prohibited hate group
(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 prohibited hate group; and
(c) the first‑mentioned person knows the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a prohibited hate group; and
(c) the first‑mentioned person is reckless as to whether the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 10 years.
114B.4 Training involving a prohibited hate group
(1) A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation intending the training to assist the organisation to engage in conduct described in paragraph 114A.4(1)(a);
(ii) intentionally provides training to an organisation intending the training to assist the organisation to expand or to continue to exist;
(iii) intentionally receives training from an organisation;
(iv) intentionally participates in training with an organisation; and
(b) the organisation is a prohibited hate group.
Penalty: Imprisonment for 15 years.
(2) Subject to subsection (3), strict liability applies to paragraph (1)(b).
(3) Subsection (1) does not apply unless the person is reckless as to the circumstance mentioned in paragraph (1)(b).
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3)).
Note 2: For other defences, see section 114B.7.
114B.5 Getting funds to, from or for a prohibited hate group
(1) A person commits an offence if:
(a) the person intentionally:
(i) receives funds from, or makes funds available to, an organisation (whether directly or indirectly) intending the receipt or provision of the funds to assist the organisation to engage in conduct described in paragraph 114A.4(1)(a); or
(ii) receives funds from, or makes funds available to, an organisation (whether directly or indirectly) intending the receipt or provision of the funds to assist the organisation to expand or to continue to exist; or
(iii) collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b) the organisation is a prohibited hate group; and
(c) the person knows the organisation is a prohibited hate group.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person intentionally:
(i) receives funds from, or makes funds available to, an organisation (whether directly or indirectly) intending the receipt or provision of the funds to assist the organisation to engage in conduct described in paragraph 114A.4(1)(a); or
(ii) receives funds from, or makes funds available to, an organisation (whether directly or indirectly) intending the receipt or provision of the funds to assist the organisation to expand or to continue to exist; or
(iii) collects funds for, or on behalf of, an organisation (whether directly or indirectly); and
(b) the organisation is a prohibited hate group; and
(c) the person is reckless as to whether the organisation is a prohibited hate group.
Penalty: Imprisonment for 10 years.
(3) Subsections (1) and (2) do not apply to the person’s receipt of funds from the organisation if the person proves that the person received the funds solely for the purpose of the provision of:
(a) legal representation for a person in proceedings relating to this Part; or
(b) legal advice or legal representation in connection with the question of whether the organisation is a prohibited hate group; or
(c) assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).
Note 2: For other defences, see section 114B.7.
114B.6 Providing support to a prohibited hate group
(1) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources intending the support or resources to assist:
(i) the organisation to engage in conduct described in paragraph 114A.4(1)(a); or
(ii) the organisation to expand or to continue to exist; and
(b) the organisation is a prohibited hate group; and
(c) the person knows the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources intending the support or resources to assist:
(i) the organisation to engage in conduct described in paragraph 114A.4(1)(a); or
(ii) the organisation to expand or to continue to exist; and
(b) the organisation is a prohibited hate group; and
(c) the person is reckless as to whether the organisation is a prohibited hate group.
Note: For defences, see section 114B.7.
Penalty: Imprisonment for 10 years.
114B.7 General defences
It is not an offence against this Division to do either of the following:
(a) do a thing in accordance with an arrangement or agreement to which the Commonwealth is a party;
(b) perform an official duty or function for the Commonwealth, a State or a Territory.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Division 114C—General provisions relating to offences
114C.1 Extended geographical jurisdiction for offences
Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Part.
114C.2 Alternative verdicts
(1) This section applies if, in a prosecution for an offence (the prosecuted offence) against a subsection of a section of this Part, 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.
Part 5.4—Harming Australians
Division 115—Harming Australians
115.1 Murder of an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia or any other person by the conduct; and
(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.
Note: This section commenced on 1 October 2002.
(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by a term of imprisonment (other than imprisonment for life)—a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise—a maximum penalty of imprisonment for life.
(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for life.
(2) Absolute liability applies to paragraphs (1)(c) and (e).
(3) If:
(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the person cannot be convicted of an offence against this section in respect of that conduct.
115.2 Manslaughter of an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first‑mentioned person intends that the conduct will cause serious harm, or is reckless as to a risk that the conduct will cause serious harm, to the Australian citizen or resident of Australia or any other person; and
(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.
Note: This section commenced on 1 October 2002.
(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by imprisonment for a term of less than 25 years—a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise—a maximum penalty of imprisonment for a term of not more than 25 years.
(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for a term of not more than 25 years.
(2) Absolute liability applies to paragraphs (1)(b), (c) and (e).
(3) If:
(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the person cannot be convicted of an offence against this section in respect of that conduct.
115.3 Intentionally causing serious harm to an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(a) the person engages in conduct outside Australia; and
(b) the conduct causes serious harm to another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first‑mentioned person intends to cause serious harm to the Australian citizen or resident of Australia or any other person by the conduct.
Penalty: Imprisonment for 20 years.
(2) Absolute liability applies to paragraph (1)(c).
115.4 Recklessly causing serious harm to an Australian citizen or a resident of Australia
(1) A person commits an offence if:
(a) the person engages in conduct outside Australia; and
(b) the conduct causes serious harm to another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first‑mentioned person is reckless as to causing serious harm to the Australian citizen or resident of Australia or any other person by the conduct.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
115.5 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
115.6 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
115.7 Ministerial certificates relating to proceedings
(1) A Minister who administers one or more of the following Acts:
(a) the Australian Citizenship Act 2007;
(b) the Migration Act 1958;
(c) the Australian Passports Act 2005;
may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time.