(2) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
115.8 Geographical jurisdiction
Each offence against this Division applies:
(a) whether or not a result of the conduct constituting the alleged offence occurs in Australia; and
(b) if the alleged offence is an ancillary offence and the conduct to which the ancillary offence relates occurs outside Australia—whether or not the conduct constituting the ancillary offence occurs in Australia.
115.9 Meaning of causes death or harm
In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.
Part 5.5—Foreign incursions and recruitment
Division 117—Preliminary
117.1 Definitions
(1) In this Part:
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
armed force does not include an armed force forming part of the Australian Defence Force.
Defence Minister means the Minister administering the Defence Force Discipline Act 1982.
engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).
government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.
listed terrorist organisation has the meaning given by subsection 100.1(1).
military training means training in the use of arms or explosives, or the practice of military exercises or movements.
prescribed organisation is:
(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1); or
(c) a state sponsor of terrorism.
recruit includes induce, incite or encourage.
serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.
Prescribing organisations
(2) Before the Governor‑General makes a regulation prescribing an organisation for the purposes of paragraph (a) of the definition of prescribed organisation in subsection (1), the AFP Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or
(ii) falls with subsection 110.1(2) but does not fall within subsection 110.1(3); or
(c) a terrorist act (within the meaning of the Crimes Act 1914); or
(d) an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.
Note: A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
117.2 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D) applies (subject to this Part) to an offence against this Part.
Division 119—Foreign incursions and recruitment
119.1 Incursions into foreign countries with the intention of engaging in hostile activities
Offence for entering foreign countries with the intention of engaging in hostile activities
(1) A person commits an offence if:
(a) the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and
(b) when the person enters the country, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Offence for engaging in a hostile activity in a foreign country
(2) A person commits an offence if:
(a) the person engages in a hostile activity in a foreign country; and
(b) when the person engages in the activity, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute liability, see section 6.2.
Exception
(4) Subsections (1) and (2) do not apply to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
(5) Paragraph (4)(a) does not apply if:
(a) the person intends to engage, or engages, in a hostile activity in a foreign country while in or with an organisation or entity; and
(b) the organisation or entity is a prescribed organisation at the following time:
(i) for subsection (1)—the time of the entry referred to in that subsection;
(ii) for subsection (2)—the time the person engages in the hostile activity referred to in that subsection.
119.2 Entering, or remaining in, declared areas
(1) A person commits an offence if:
(a) the person enters, or remains in, an area in a foreign country; and
(b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and
(c) when the person enters the area, or at any time when the person is in the area, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for 10 years.
Absolute liability element
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
Exception—entering or remaining solely for legitimate purposes
(3) Subsection (1) does not apply if the person enters, or remains in, the area solely for one or more of the following purposes:
(a) providing aid of a humanitarian nature;
(b) satisfying an obligation to appear before a court or other body exercising judicial power;
(c) performing an official duty for the Commonwealth, a State or a Territory;
(d) performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;
(e) performing an official duty for:
(i) the United Nations, or an agency of the United Nations; or
(ii) the International Committee of the Red Cross;
(f) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;
(g) making a bona fide visit to a family member;
(h) any other purpose prescribed by the regulations.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3).
Exception—entering or remaining solely for service with armed force other than prescribed organisation
(4) Subsection (1) does not apply if the person enters, or remains in, the area solely in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
(5) However, subsection (4) does not apply if:
(a) the person enters, or remains in, an area in a foreign country while in or with an organisation or entity; and
(b) the organisation or entity is a prescribed organisation at the time the person enters or remains in the area as referred to in paragraph (1)(a).
Note 1: For conduct for the defence or international relations of Australia, see section 119.9.
Note 2: Sections 10.1 and 10.3 also provide exceptions to subsection (1) of this section (relating to intervening conduct or event and sudden or extraordinary emergency respectively).
Sunset provision
(6) This section ceases to have effect at the end of 7 September 2027.
119.3 Declaration of areas for the purposes of section 119.2
(1) The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.
(2) A single declaration may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.
(2A) A declaration must not cover an entire country.
Requirement to brief Leader of the Opposition
(3) Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.
Cessation of declaration
(4) A declaration ceases to have effect on the third anniversary of the day on which it takes effect. To avoid doubt, this subsection does not prevent:
(a) the revocation of the declaration; or
(b) the making of a new declaration the same in substance as the previous declaration (whether the new declaration is made or takes effect before or after the previous declaration ceases to have effect because of this subsection).
Note: An offence committed in relation to the declared area before the cessation can be prosecuted after the cessation: see section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislation Act 2003.
(5) If:
(a) an area is declared under subsection (1); and
(b) the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area;
the Foreign Affairs Minister must revoke the declaration.
Note: The Foreign Affairs Minister may, for example, cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area if the organisation ceases to be specified in the regulations.
(5A) Even if paragraph (5)(b) does not apply in relation to a declaration, the Foreign Affairs Minister may revoke the declaration if that Minister considers it necessary or desirable to do so.
(6) To avoid doubt, if a declaration of an area is revoked under subsection (5) or (5A), the revocation of the declaration does not prevent the area from being subsequently declared under subsection (1) if the Foreign Affairs Minister becomes, or remains, satisfied as mentioned in subsection (1).
(7) The Parliamentary Joint Committee on Intelligence and Security may:
(a) review a declaration; and
(b) report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.
Note: A declaration may be disallowed by either House of Parliament under section 42 of the Legislation Act 2003.
(8) In addition, at any time while a declaration is in effect, the Parliamentary Joint Committee on Intelligence and Security may:
(a) review the declaration; and
(b) report the Committee’s comments and recommendations to each House of the Parliament.
Sunset provision
(9) This section ceases to have effect at the end of 7 September 2027.
119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities
Preparatory acts
(1) A person commits an offence if:
(a) the person engages in conduct (whether within or outside Australia); and
(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Accumulating weapons etc.
(2) A person commits an offence if:
(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and
(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Providing or participating in training
(3) A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) providing military training to another person;
(ii) participating in providing military training to another person;
(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and
(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
(4) A person commits an offence if:
(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):
(i) allowing military training to be provided to himself or herself;
(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and
(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Giving or receiving goods and services to promote the commission of an offence
(5) A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) giving money or goods to, or performing services for, any other person, body or association;
(ii) receiving or soliciting money or goods, or the performance of services; and
(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).