ANTI-TERRORISM ACT (NO. 2) 2005 – SCHEDULE 7

Commonwealth Consolidated Acts


ANTI-TERRORISM ACT (NO. 2) 2005 – SCHEDULE 7

Sedition

Crimes Act 1914

1  Paragraph 4J(7)(b)

Omit “section 80.1 or 91.1”, substitute “Division 80 or section 91.1”.

2  Sections 24A to 24E

Repeal the sections.

3  Paragraph 30A(1)(b)

Omit “as defined in section 24A”, substitute “(see subsection (3))”.

4  At the end of section 30A

Add:

(3)  In this section:

“seditious intention” means an intention to use force or violence to effect any of the following purposes:

(a)  to bring the Sovereign into hatred or contempt;

(b)  to urge disaffection against the following:

(i)  the Constitution;

(ii)  the Government of the Commonwealth;

(iii)  either House of the Parliament;

(c)  to urge another person to attempt to procure a change, otherwise than by lawful means, to any matter established by law of the Commonwealth;

(d)  to promote feelings of ill‑will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

Criminal Code Act 1995

5  Part 5.1 of the Criminal Code (heading)

Repeal the heading, substitute:

Part 5.1 — Treason and sedition

6  Division 80 of the Criminal Code (heading)

Repeal the heading, substitute:

Division 80 — Treason and sedition

7  Before section 80.1 of the Criminal Code

Insert:

80.1A   Definition of organisation

In this Division:

“organisation” means:

(a)  a body corporate; or

(b)  an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

8  Subsection 80.1(1A) of the Criminal Code (note)

Omit “Note”, substitute “Note 1”.

9  At the end of subsection 80.1(1A) of the Criminal Code

Add:

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

10  Subsections 80.1(3), (4), (6) and (7) of the Criminal Code

Repeal the subsections.

11  Subsection 80.1(8) of the Criminal Code (definition of organisation )

Repeal the definition.

12  At the end of Division 80 of the Criminal Code

Add:

80.2   Sedition

Urging the overthrow of the Constitution or Government

(1)  A person commits an offence if the person urges another person to overthrow by force or violence:

(a)  the Constitution; or

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

(c)  the lawful authority of the Government of the Commonwealth.

Penalty:  Imprisonment for 7 years.

(2)  Recklessness applies to the element of the offence under subsection (1) that it is:

(a)  the Constitution; or

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

(c)  the lawful authority of the Government of the Commonwealth;

that the first‑mentioned person urges the other person to overthrow.

Urging interference in Parliamentary elections

(3)  A person commits an offence if the person urges another person to interfere by force or violence with lawful processes for an election of a member or members of a House of the Parliament.

Penalty:  Imprisonment for 7 years.

(4)  Recklessness applies to the element of the offence under subsection (3) that it is lawful processes for an election of a member or members of a House of the Parliament that the first‑mentioned person urges the other person to interfere with.

Urging violence within the community

(5)  A person commits an offence if:

(a)  the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and

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

Penalty:  Imprisonment for 7 years.

(6)  Recklessness applies to the element of the offence under subsection (5) that it is a group or groups that are distinguished by race, religion, nationality or political opinion that the first‑mentioned person urges the other person to use force or violence against.

Urging a person to assist the enemy

(7)  A person commits an offence if:

(a)  the person urges another person to engage in conduct; and

(b)  the first‑mentioned person intends the conduct to assist an organisation or country; and

(c)  the organisation or country is:

(i)  at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

(ii)  specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth.

Penalty:  Imprisonment for 7 years.

Urging a person to assist those engaged in armed hostilities

(8)  A person commits an offence if:

(a)  the person urges another person to engage in conduct; and

(b)  the first‑mentioned person intends the conduct to assist an organisation or country; and

(c)  the organisation or country is engaged in armed hostilities against the Australian Defence Force.

Penalty:  Imprisonment for 7 years.

Defence

(9)  Subsections (7) and (8) 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 (9). See subsection 13.3(3).

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

80.3   Defence for acts done in good faith

(1)  Sections 80.1 and 80.2 do not apply to a person who:

(a)  tries in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions:

(i)  the Sovereign;

(ii)  the Governor‑General;

(iii)  the Governor of a State;

(iv)  the Administrator of a Territory;

(v)  an adviser of any of the above;

(vi)  a person responsible for the government of another country; or

(b)  points out in good faith errors or defects in the following, with a view to reforming those errors or defects:

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

(ii)  the Constitution;

(iii)  legislation of the Commonwealth, a State, a Territory or another country;

(iv)  the administration of justice of or in the Commonwealth, a State, a Territory or another country; or

(c)  urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country; or

(d)  points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or

(e)  does anything in good faith in connection with an industrial dispute or an industrial matter; or

(f)  publishes in good faith a report or commentary about a matter of public interest.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).

(2)  In considering a defence under subsection (1), the Court may have regard to any relevant matter, including whether the acts were done:

(a)  for a purpose intended to be prejudicial to the safety or defence of the Commonwealth; or

(b)  with the intention of assisting an enemy:

(i)  at war with the Commonwealth; and

(ii)  specified by Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the Commonwealth; or

(c)  with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Australian Defence Force; or

(d)  with the intention of assisting a proclaimed enemy of a proclaimed country (within the meaning of subsection 24AA(4) of the Crimes Act 1914 ); or

(e)  with the intention of assisting persons specified in paragraphs 24AA(2)(a) and (b) of the Crimes Act 1914 ; or

(f)  with the intention of causing violence or creating public disorder or a public disturbance.

80.4   Extended geographical jurisdiction for offences

Section 15.4 (extended geographical jurisdiction–category D) applies to an offence against this Division.

80.5   Attorney‑General’s consent required

(1)  Proceedings for an offence against this Division must not be commenced without the Attorney‑General’s written consent.

(2)  Despite subsection (1):

(a)  a person may be arrested for an offence against this Division; or

(b)  a warrant for the arrest of a person for such an offence may be issued and executed;

and the person may be charged, and may be remanded in custody or on bail, but:

(c)  no further proceedings may be taken until that consent has been obtained; and

(d)  the person must be discharged if proceedings are not continued within a reasonable time.

80.6   Division not intended to exclude State or Territory law

It is the intention of the Parliament that this Division is not to apply to the exclusion of a law of a State or a Territory to the extent that the law is capable of operating concurrently with this Division.

Migration Act 1958

13  Subparagraph 203(1)(c)(i)

Omit “24C,”.

14  Subparagraph 203(1)(c)(ia)

Omit “section 80.1”, substitute “Division 80”.

Surveillance Devices Act 2004

15  Subparagraph 30(1)(a)(v)

Repeal the subparagraph.

16  Subparagraph 30(1)(a)(vi)

Omit “, 80.1”.

17  Subparagraph 30(1)(a)(vii)

Repeal the subparagraph.

18  Subparagraph 30(1)(a)(viii)

After “Division”, insert “72, 80, 101, 102, 103 or”.

 

 

 

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