(7) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8) A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.
119.5 Allowing use of buildings, vessels and aircraft to commit offences
Use of buildings
(1) A person commits an offence if:
(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and
(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and
(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the meeting to be so held, 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.
Use of vessels or aircraft
(2) A person commits an offence if:
(a) the person is:
(i) an owner, charterer, lessee, operator, agent or master of a vessel; or
(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and
(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and
(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the use, 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
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note: For absolute liability, see section 6.2.
Exception
(4) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.
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.
119.6 Recruiting persons to join organisations engaged in hostile activities against foreign governments
A person commits an offence if:
(a) the person recruits, in Australia, another person to become a member of, or to serve in any capacity with, a body or association of persons; and
(b) the objectives of the body or association include any one or more of the objectives referred to in the definition of engage in a hostile activity in subsection 117.1(1).
Note: For conduct for the defence or international relations of Australia, see section 119.9.
Penalty: Imprisonment for 25 years.
119.7 Recruiting persons to serve in or with an armed force in a foreign country
Recruiting others to serve with foreign armed forces
(1) A person commits an offence if the person recruits, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Publishing recruitment advertisements
(2) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the person is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the advertisement or item of news contains information:
(i) relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or
(ii) relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4) A person commits an offence if:
(a) the person engages in conduct in Australia; and
(b) the person engages in the conduct intending to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5) This section does not apply in relation to service of a person in or with an armed force in circumstances if a declaration under subsection 119.8(2) covers the person and the circumstances of the person’s service in or with the armed force.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3).
Note 2: For conduct for the defence or international relations of Australia, see section 119.9.
Armed forces that are not part of the government of a foreign country
(6) A reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.
(7) Without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.
119.8 Declaration in relation to specified armed forces
Service
(1) The AFP Minister may, by legislative instrument, declare that section 119.1 or 119.2 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the service of that person or class of persons in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
Recruitment
(2) The AFP Minister may, by legislative instrument, declare that section 119.7 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
119.9 Exception—conduct for defence or international relations of Australia
This Division does not apply in relation to conduct engaged in by a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: See also section 119.12 (declarations for the purposes of proceedings).
119.10 Mode of trial
(1) A prosecution for any of the following offences is (subject to subsection (2)) to be on indictment:
(a) an offence against this Division;
(b) an offence against section 6 of the Crimes Act 1914, or an ancillary offence, that relates to an offence against this Division.
(2) If the law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person’s commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment, a person charged in that State or Territory with an offence referred to in subsection (1) may be dealt with in accordance with that law.
119.11 Consent of Attorney‑General required for prosecutions
(1) Proceedings for the commitment of a person for the following must not be instituted without the written consent of the Attorney‑General:
(a) the trial on indictment for an offence against the following provisions:
(i) this Division;
(ii) section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Division;
(b) the summary trial of a person for an offence referred to in paragraph (a).
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be charged with an offence referred to in paragraph (1)(a);
(b) a person may be arrested for an offence referred to in paragraph (1)(a), and a warrant for such an arrest may be issued and executed;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
119.12 Declarations for the purposes of proceedings
(1) The Foreign Affairs Minister may, in writing, declare that:
(a) a specified authority is in effective governmental control in a specified foreign country or part of a foreign country; or
(b) a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.
(2) The Defence Minister may, in writing, declare that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.
(3) Without limiting subsection (1) or (2), a declaration under that subsection may be made in relation to a specified day or period.
(4) In proceedings for an offence referred to in paragraph 119.11(1)(a), a certificate under this section is prima facie evidence of the matters stated in the certificate.
Part 5.6—Secrecy of information
Division 121—Preliminary
121.1 Definitions
(1) In this Part:
cause harm to Australia’s interests means to:
(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the Australian Federal Police under:
(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002; or
(c) harm or prejudice Australia’s international relations in relation to information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and
(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(f) harm or prejudice the health or safety of the Australian public or a section of the Australian public; or
(g) harm or prejudice the security or defence of Australia.
Commonwealth officer means any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract;
but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
deal has the same meaning as in Part 5.2.
Note: For the meaning of deal in that Part, see subsections 90.1(1) and (2).
domestic intelligence agency means:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Geospatial‑Intelligence Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Australian Signals Directorate; or
(f) the Office of National Intelligence.
foreign military organisation means:
(a) the armed forces of the government of a foreign country; or
(b) the civilian component of:
(i) the Department of State of a foreign country; or
(ii) a government agency in a foreign country;
that is responsible for the defence of the country.
information has the meaning given by section 90.1.
inherently harmful information means information that is any of the following:
(a) security classified information;
(c) information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions;
(e) information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.
international relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004.
proper place of custody has the meaning given by section 121.2.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
security classification has the meaning given by section 90.5.
security classified information means information that has a security classification.
security or defence of Australia includes the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies.
(2) To avoid doubt, communicate includes publish and make available.
(3) For the purposes of a reference, in an element of an offence in this Part, to security classified information or security classification, strict liability applies to the element that:
(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as mentioned in paragraph 90.5(1)(b).
Note: See the definitions of security classified information in subsection (1) and security classification in section 90.5.
121.2 Definition of proper place of custody
(1) Proper place of custody has the meaning prescribed by the regulations.
(2) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.
Division 122—Secrecy of information
122.1 Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc.
Communication of inherently harmful information
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1: For exceptions to the offences in this section, see section 122.5.
Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 7 years.
Other dealings with inherently harmful information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) the information is inherently harmful information; and