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National Security Legislation Amendment Bill 2010

Schedule 1 Treason and urging violence

Part 1 Amendments commencing on the day after Royal Assent

Crimes Act 1914

1  Subparagraph 24F(2)(b)(ii)

Omit “paragraph 80.1(1)(e)”, substitute “paragraph 80.1AA(1)(b)”.

2  Part IIA (heading)

Repeal the heading, substitute:

Part IIA Protection of public and other services

3  Sections 30A to 30H and 30R

Repeal the sections.

Criminal Code Act 1995

4  Part 5.1 of the Criminal Code (heading)

Repeal the heading, substitute:

Part 5.1 Treason and urging violence

5  Division 80 of the Criminal Code (heading)

Repeal the heading, substitute:

Division 80 Treason and urging violence

6  Before section 80.1A of the Criminal Code

Insert:

Subdivision A Preliminary

7  Before section 80.1 of the Criminal Code

Insert:

Subdivision B Treason

8  Subsection 80.1(1) of the Criminal Code

Omit “, called treason,”.

9  Paragraphs 80.1(1)(e) and (f) of the Criminal Code

Repeal the paragraphs.

10  Paragraph 80.1(1)(g) of the Criminal Code

Omit “Commonwealth; or”, substitute “Commonwealth.”.

11  Paragraph 80.1(1)(h) of the Criminal Code

Repeal the paragraph.

12  Subsections 80.1(1A) and (1B) of the Criminal Code

Repeal the subsections.

13  Paragraphs 80.1(2)(a) and (b) of the Criminal Code

Omit “treason”, substitute “an offence against this Subdivision (other than this subsection)”.

14  Subsection 80.1(5) of the Criminal Code

Repeal the subsection.

15  After section 80.1 of the Criminal Code

Insert:

80.1AA   Treason—materially assisting enemies etc.

Assisting enemies at war with the Commonwealth

             (1)  A person commits an offence if:

                     (a)  the Commonwealth is at war with an enemy (whether or not the existence of a state of war has been declared); and

                     (b)  the enemy is specified, by Proclamation made for the purpose of this paragraph, to be an enemy at war with the Commonwealth; and

                     (c)  the person engages in conduct; and

                     (d)  the person intends that the conduct will materially assist the enemy to engage in war with the Commonwealth; and

                     (e)  the conduct assists the enemy to engage in war with the Commonwealth; and

                      (f)  when the person engages in the conduct, the person:

                              (i)  is an Australian citizen; or

                             (ii)  is a resident of Australia; or

                            (iii)  has voluntarily put himself or herself under the protection of the Commonwealth; or

                            (iv)  is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty:  Imprisonment for life.

Note:          If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

             (2)  Despite subsection 12(2) of the Legislative Instruments Act 2003 , a Proclamation made for the purpose of paragraph (1)(b) of this section may be expressed to take effect from a day:

                     (a)  before the day on which the Proclamation is registered under the Legislative Instruments Act 2003 ; but

                     (b)  not before the day on which the Proclamation is made.

             (3)  The fault element for paragraph (1)(f) is intention.

Note:          For intention, see subsection 5.2(2).

Assisting countries etc. engaged in armed hostilities against the ADF

             (4)  A person commits an offence if:

                     (a)  a country or organisation is engaged in armed hostilities against the Australian Defence Force; and

                     (b)  the person engages in conduct; and

                     (c)  the person intends that the conduct will materially assist the country or organisation to engage in armed hostilities against the Australian Defence Force; and

                     (d)  the conduct assists the country or organisation to engage in armed hostilities against the Australian Defence Force; and

                     (e)  when the person engages in the conduct, the person:

                              (i)  is an Australian citizen; or

                             (ii)  is a resident of Australia; or

                            (iii)  has voluntarily put himself or herself under the protection of the Commonwealth; or

                            (iv)  is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty:  Imprisonment for life.

Note:          If a body corporate is convicted of an offence against subsection (4), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

             (5)  The fault element for paragraph (4)(e) is intention.

Note:          For intention, see subsection 5.2(2).

Humanitarian aid

             (6)  Subsections (1) and (4) do not apply to engagement in conduct 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 (6). See subsection 13.3(3).

Note 2:       There is a defence in section 80.3 for acts done in good faith.

16  Saving—Proclamations

A Proclamation in force for the purposes of paragraph 80.1(1)(e) of the Criminal Code just before the commencement of this item has effect, from that commencement, as if it had been made for the purposes of paragraph 80.1AA(1)(b) of that Code, as inserted by this Schedule.

17  Before section 80.2 of the Criminal Code

Insert:

Subdivision C Urging violence

18  Subsection 80.2(1) of the Criminal Code

Repeal the subsection, substitute:

Urging the overthrow of the Constitution or Government by force or violence

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person to overthrow by force or violence:

                              (i)  the Constitution; or

                             (ii)  the Government of the Commonwealth, of a State or of a Territory; or

                            (iii)  the lawful authority of the Government of the Commonwealth; and

                     (b)  the first person does so intending that force or violence will occur.

Penalty:  Imprisonment for 7 years.

Note:          For intention, see section 5.2.

Note:       The heading to section 80.2 of the Criminal Code is replaced by the heading “ Urging violence against the Constitution etc. ”.

19  Subsection 80.2(2) of the Criminal Code

Omit “first-mentioned”, substitute “first”.

20  Subsection 80.2(3) of the Criminal Code

Repeal the subsection, substitute:

Urging interference in Parliamentary elections or constitutional referenda by force or violence

             (3)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:

                              (i)  an election of a member or members of a House of the Parliament; or

                             (ii)  a referendum; and

                     (b)  the first person does so intending that force or violence will occur.

Penalty:  Imprisonment for 7 years.

Note:          For intention, see section 5.2.

21  Subsection 80.2(4) of the Criminal Code

Omit “that the first-mentioned”, substitute “, or for a referendum, that the first”.

22  Subsection 80.2(6) of the Criminal Code

Omit “first-mentioned”, substitute “first”.

23  At the end of subsection 80.2(6) of the Criminal Code

Add:

Note:          There is a defence in section 80.3 for acts done in good faith.

24  Subsections 80.2(7) to (9) of the Criminal Code

Repeal the subsections.

25  Before section 80.3 of the Criminal Code

Insert:

Subdivision D Common provisions

26  Subsection 80.3(1) of the Criminal Code

Omit “Sections 80.1 and 80.2”, substitute “Subdivisions B and C”.

27  Subparagraph 80.3(2)(b)(ii) of the Criminal Code

Omit “paragraph 80.1(1)(e)”, substitute “paragraph 80.1AA(1)(b)”.

28  At the end of section 80.3 of the Criminal Code

Add:

             (3)  Without limiting subsection (2), in considering a defence under subsection (1) in respect of an offence against Subdivision C, the Court may have regard to any relevant matter, including whether the acts were done:

                     (a)  in the development, performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in the dissemination of news or current affairs.

29  Application

The reference in subsection 80.3(3) of the Criminal Code , as added by this Schedule, to an offence against Subdivision C of Division 80 of that Code includes a reference to an offence against section 80.2 of that Code as in force before the commencement of this item.

30  Section 80.5 of the Criminal Code

Repeal the section.

31  Application

The amendment of the Criminal Code made by item 30 of this Schedule applies in relation to offences committed after the commencement of this item.

32  Dictionary in the Criminal Code

Insert:

referendum has the same meaning as in the Referendum (Machinery Provisions) Act 1984 .



 

Part 2 Amendments commencing 28 days after Royal Assent

Criminal Code Act 1995

33  Subsection 80.2(5) of the Criminal Code

Repeal the subsection.

34  Subsection 80.2(6) of the Criminal Code

Repeal the subsection (not including the note).

35  At the end of Subdivision C of Division 80 of the Criminal Code

Add:

80.2A   Urging violence against groups

Offences

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group ); and

                     (b)  the first person does so intending that force or violence will occur; and

                     (c)  the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and

                     (d)  the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty:  Imprisonment for 7 years.

Note:          For intention, see section 5.2.

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group ); and

                     (b)  the first person does so intending that force or violence will occur; and

                     (c)  the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

Penalty:  Imprisonment for 5 years.

Note:          For intention, see section 5.2.

             (3)  The fault element for paragraphs (1)(c) and (2)(c) is recklessness.

Note:          For recklessness, see section 5.4.

Alternative verdict

             (4)  Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:

                     (a)  is not satisfied that the defendant is guilty of the offence; but

                     (b)  is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against subsection (2).

             (5)  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.

Note:          There is a defence in section 80.3 for acts done in good faith.

80.2B   Urging violence against members of groups

Offences

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person ); and

                     (b)  the first person does so intending that force or violence will occur; and

                     (c)  the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group ); and

                     (d)  the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and

                     (e)  the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty:  Imprisonment for 7 years.

Note:          For intention, see section 5.2.

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person ); and

                     (b)  the first person does so intending that force or violence will occur; and

                     (c)  the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group ); and

                     (d)  the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

Penalty:  Imprisonment for 5 years.

Note:          For intention, see section 5.2.

             (3)  For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

             (4)  The fault element for paragraphs (1)(d) and (2)(d) is recklessness.

Note:          For recklessness, see section 5.4.

Alternative verdict

             (5)  Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:

                     (a)  is not satisfied that the defendant is guilty of the offence; but

                     (b)  is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against subsection (2).

             (6)  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.

Note:          There is a defence in section 80.3 for acts done in good faith.

36  Section 80.4 of the Criminal Code

Omit “Section”, substitute “(1) Subject to subsection (2), section”.

37  At the end of section 80.4 of the Criminal Code

Add:

             (2)  Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against subsection 80.2A(2) or 80.2B(2).