Chapter 5—The security of the Commonwealth Treason and urging violence Australian ComLaw Criminal Code Act 1995

Chapter 5—The security of the Commonwealth

Part 5.1—Treason and urging violence

Division 80—Treason and urging violence

Subdivision A—Preliminary

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.

Subdivision B—Treason

80.1  Treason

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

(a)  causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General or the Prime Minister; or

(b)  causes harm to the Sovereign, the Governor‑General or the Prime Minister resulting in the death of the Sovereign, the Governor‑General or the Prime Minister; or

(c)  causes harm to the Sovereign, the Governor‑General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor‑General or the Prime Minister; or

(d)  levies war, or does any act preparatory to levying war, against the Commonwealth; or

(g)  instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth.

Penalty:  Imprisonment for life.

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

(a)  receives or assists another person who, to his or her knowledge, has committed an offence against this Subdivision (other than this subsection) with the intention of allowing him or her to escape punishment or apprehension; or

(b)  knowing that another person intends to commit an offence against this Subdivision (other than this subsection), does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.

Penalty:  Imprisonment for life.

(8)  In this section:

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

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.

Subdivision C—Urging violence

80.2  Urging violence against the Constitution etc.

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.

(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 person urges the other person to overthrow.

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.

(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, or for a referendum, that the first person urges the other person to interfere with.

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

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.

Subdivision D—Common provisions

80.3  Defence for acts done in good faith

(1)  Subdivisions B and C 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 80.1AA(1)(b) 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.

(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.

80.4  Extended geographical jurisdiction for offences

(1)  Subject to subsection (2), section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

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

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.

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