Key points

• The Criminal Code Amendment (State Sponsors of Terrorism) Bill 2025 (the Bill) establishes a new framework within the Criminal Code to allow the Governor‑General, on advice of the relevant AFP Minister, to list foreign state entities (meaning foreign governments or related authorities) as state sponsors of terrorism.
  • For an entity to be prescribed as a state sponsor of terrorism, a range of conditions must be satisfied including that the AFP Minister is satisfied that the entity is a foreign state entity which has directly or indirectly engaged in conduct regarding the preparation of a terrorist act targeted at Australia.
    • Additionally, the AFP Minister must obtain the Foreign Affairs Minister’s agreement to the entity being listed and must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.
• The introduction of the Bill comes after the Australian Security Intelligence Organisation publicly revealed that the Iranian Government had directed at least two antisemitic attacks in Australia in 2024.
• The Bill provides for a range of new offences including:
  • engaging in state terrorist acts
  • offences relating to state terrorist acts, including providing or receiving training connected with state terrorist acts, collecting or making documents likely to facilitate state terrorist acts, or any other act done in preparation for state terrorist acts and
  • offences relating to membership, recruitment, training, funding, providing support, associating with, or directing activities of a state sponsor of terrorism.
• The Parliamentary Joint Committee on Intelligence and Security has issued an advisory report on the Bill, recommending an amendment (discussed below) and that the Bill be passed.  
• The Senate Standing Committee for the Scrutiny of Bills raised concerns in relation to the Bill’s potential impact on personal rights and liberties, including freedom of expression, reversal of the burden of proof and the reliance on delegated legislation.  

Introductory Info

Date of introduction: 2025-10-08
House introduced in: House of Representatives
Portfolio: Attorney-General
Commencement: Schedules 1–3 will commence by Proclamation to ‘allow sufficient time for the Commonwealth to consult the states and territories on [the proposed] amendments’ (p. 24). However, if those schedules do not commence within 6 months of Royal Assent, the provisions are repealed on the day after the end of that period and will not commence at all. Schedule 4, which contains unrelated amendments will commence on the day after Royal Assent.

Purpose of the Bill

The purpose of the Criminal Code Amendment (State Sponsors of Terrorism) Bill 2025 (the Bill) is to amend the Criminal Code Act 1995 to establish a framework to list foreign state entities as state sponsors of terrorism and respond to state sponsored terrorist acts, and to make consequential amendments to a range of Commonwealth legislation.

Structure of the Bill

The Bill is comprised of 4 schedules:

• Schedule 1 inserts proposed Part 5.3A into the Criminal Code to deal with state sponsors of terrorism and state terrorist acts, including prescribing offences connected with state terrorist acts and dealings with a state sponsor of terrorism
• Schedule 2 amends Part 5.3 of the Criminal Code to provide that orders available under Divisions 104 (control orders), 105 (preventative detention orders) and 105A (post‑sentence orders) are available in respect of state sponsors of terrorism and state terrorist acts. Schedule 2 also makes consequential amendments to other Commonwealth legislation to give effect to the extended application of Part 5.3 orders to new Part 5.3A
• Schedule 3 makes consequential amendments to several Commonwealth laws to ensure consistency in the treatment of terrorist organisations and terrorist acts and state sponsors of terrorism and state terrorist acts across Commonwealth legislation
• Schedule 4 makes technical amendments to the operation of sentencing provisions in the Crimes Act 1914 and amends Division 80 of the Criminal Code to ensure consistency in the way in which the prohibited terrorist organisation symbols offences operate.

Background

On 26 August 2025, Prime Minister Anthony Albanese announced at a press conference that there was enough credible intelligence to conclude that the Iranian Government directed at least two antisemitic attacks against Australia's Jewish community:

• the 20 October 2024 attack on the Lewis’ Continental Kitchen, Sydney and
• the 6 December 2024 attack on the Adass Israel Synagogue, Melbourne.

According to Director-General of Security Mike Burgess, investigation by the Australian Security Intelligence Organisation (ASIO) uncovered links between the alleged crimes and Iran's Islamic Revolutionary Guard Corps (IRGC). ASIO found that the IRGC ‘used a complex web of proxies to hide its involvement’. He added that while ASIO was still investigating possible Iranian involvement in other attacks, it did not believe the regime was responsible for every act of antisemitism in Australia.

Consequently, the Government:

• withdrew Australia’s Ambassador to Iran and suspended operations at Australia’s embassy in Tehran
• expelled the Iranian ambassador to Australia and three additional Iranian diplomats (although it has been reported that a small group of staff remain working at the Iranian embassy)
• announced that it would introduce legislation allowing it to list the IRGC as a terrorist organisation.

In 2022–23, the Senate Foreign Affairs, Defence and Trade Committee had undertaken an Inquiry into human rights implications of recent violence in Iran. The Committee’s 2023 Report into the human rights implications of recent violence in Iran contained 12 recommendations including:

• the use of sanctions to target Islamic Republic of Iran and IRGC-affiliated individuals and entities responsible for malicious cyber activity against Australia (Recommendation 7)
• that the Australian Government take the necessary steps to formally categorise the IRGC as an organisation involved in supporting and facilitating terrorism (Recommendation 8)
• that any Iranian officials in Australia considered to be involved in intimidation, threats, or monitoring of Australians be expelled (Recommendation 11).

The Government’s response to the Report (September 2023) noted Recommendations 7 and 11. According to the Minister for Foreign Affairs, Senator Penny Wong (p. 21), the Government has now sanctioned 200 Iranian linked persons and entities, including almost 100 IRGC linked individuals and entities.

The Government, however, refused to accept Recommendation 8 based on the Attorney‑General’s Department (AGD) submission that, as an organ of a nation state, the IRGC is not the kind of entity that is covered by the terrorist organisation provisions in Division 102 of the Criminal Code.

Policy position of non-government parties/independents

Following the announcement of the intention to list the IRGC as a terrorist organisation, Opposition Leader Sussan Ley stated that the Coalition was entirely united behind the measures to expel the Iranian ambassador and list the IRGC as a terrorist organisation (p. 21). The Coalition criticised the Government for not listing the IRGC as a terrorist organisation in 2023 despite its previous offer of bipartisan support for legislation that would allow the listing of the IRGC as a terrorist organisation (p. 77).

In debate of the Bill in the House of Representatives, Shadow Attorney-General Andrew Wallace indicated Coalition support for the Bill, but criticised the timing of the Bill and the limited period for scrutiny:

At the outset, it should be said that the coalition supports this bill. It has been a long time coming—too long. Whilst the coalition supports the bill, the process that this government has undertaken to get to this point is as regrettable as it is noteworthy … The Attorney-General, when referring the bill to the [Parliamentary Joint Committee on Intelligence and Security (PJCIS)], requested that the PJCIS report back by 24 October 2025. The net effect of this request is that, in order to complete its report within this extremely truncated period, stakeholders were afforded just seven clear days in which to consider the bill and provide submissions before the public hearing

…

This government's approach to this bill is emblematic of how it conducts national security policy: do nothing, delay and obfuscate for as long as possible, and only do the right thing once all other alternatives have been exhausted. The bill has not been, in my view, appropriately scrutinised by the PJCIS and was akin to a box-ticking exercise by the government (p. 3).

Mr Wallace expressed concern that the limited time available for scrutiny by the PJCIS ‘is a concerning trend of this government’:

I've watched this government seek to ram important national security legislation through the PJCIS, and it must stop …

The PJCIS was once considered the most important committee in this parliament. Its members receive briefings on matters of national security by agencies within our national intelligence community. It has largely acted in a bipartisan manner since its inception … But the government continues to trash this legacy by virtue of its intent to nobble the ability of the PJCIS to appropriately and fulsomely conduct its vital work.

…

Some submitters have indicated to me that they simply will not and physically cannot provide submissions in the times often set by the government. Why does this matter? Because national security matters. Our laws that govern national security and security agencies matter. The lives, rights and liberties of Australians matter. But if this government continues to trash these conventions, we will have ill-considered laws that will have unintended consequences that cost the lives of Australians and/or trash the very principles of our Western liberal democracy (p. 3).

Mr Wallace moved an amendment to the Bill, which is discussed below. The amendment was not supported by the House.  

The Greens previously expressed support for listing the IRGC as a terrorist organisation in their additional comments (p. 97) to the 2023 Report into the human rights implications of recent violence in Iran. This support was re-iterated in a media release following the recent announcement of the intention to list the IRGC as a terrorist organisation.

In debate on the Bill in the House of Representatives, Independent Member Allegra Spender, in whose electorate the 20 October 2024 attack on the Lewis’ Continental Kitchen took place, expressed support for the Bill, noting that ‘some of us have been asking for on behalf of our communities for nearly three years. While I accept that this is a step not to be taken lightly, I'm pleased to see that the government has finally acted’ (p. 100).

Stakeholder comments

The Australian United Solidarity for Iran, the Australian Iranian Community Organisation (AIC) and the Australian Iranian Community Alliance (AICA) have expressed support for the proposed amendments in their respective submissions to the PJCIS inquiry into the Bill. The AIC and the AICA recommend additional measures to support the proposed framework, such as travel restrictions on members or affiliates of specified state sponsors of terrorism, visa cancellations and immigration controls, financial sanctions (including asset freezing) and review of diplomatic privileges and accreditation where credible evidence of intimidation or propaganda is identified.

Comments from other stakeholders are discussed in the Key issues and provisions section below,

Key issues and provisions

Key definitions

Schedule 1 of the Bill inserts proposed Part 5.3A (consisting of proposed sections 110.1 to 114.4) into the Criminal Code to deal with state sponsors of terrorism and state terrorist acts. As stated in the PJCIS public hearing (pp. 2–3), this new regime is to ‘sit parallel to the existing terrorism framework’ which currently exists in Part 5.3 of the Criminal Code. The current regime, within Division 102 of the Criminal Code, refers to ‘terrorist organisations’.

Currently, a terrorist organisation is defined in section 102.1 of the Criminal Code as an organisation that is:

• directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or
• specified in Regulations made by the Governor-General (and once specified is referred to as a listed terrorist organisation, per section 100.1 of the Criminal Code).

An organisation is further defined in section 100.1 of the Criminal Code as a body corporate or an unincorporated body. Division 102 does not currently apply to foreign state entities.

Proposed section 110.1 contains definitions of key terms that will apply to proposed Part 5.3A. While some definitions align with those in existing sections 100.1 and 102.1 (for application to existing Part 5.3), there are key distinctions.

Terrorist act

The proposed definition of terrorist act in proposed section 110.1 largely reflects the definition in section 100.1, which contains three key elements, and is where:

1. an action, or threat of action
   • causes serious harm to persons (including death) or serious damage to property
   • endangers a person’s life
   • creates a serious risk to the health or safety of the public or
   • seriously interferes with, seriously disrupts or destroys an electronic system and
2. the action is done or the threat is made with the intention of advancing a political, religious or ideological cause and
3. the action is done or the threat is made with the intention of:
   • coercing, or influencing by intimidation, an Australian government or foreign government or
   • intimidating the public.

As with the definition in section 100.1, certain non-harmful advocacy, protest, dissent or industrial action is not a terrorist act. In addition, the Bill provides that conduct that takes place in the context of, and is associated with, an international armed conflict (proposed subsection 110.1(3)) is also excluded from the definition of terrorist act. The Explanatory Memorandum (EM) notes that this element has been included because ‘the actions of states in international armed conflict are regulated by international humanitarian law, with breaches of those laws already criminalised through offences in Division 268’ (p. 29, paragraph [28]).

Foreign state entities

Other terms defined in proposed section 110.1 include foreign state entity and member of an entity. A foreign state entity is defined broadly to mean the government, or an authority of the government, of a foreign country, or of a part of a foreign country. It does not, however, include a foreign country in its entirety (EM, p. 27, paragraphs [13]–[14]). Additional entities may be prescribed by regulations as foreign state entities.

Similarly, a member of an entity is defined broadly to include the leader and employees of an entity, statutory appointments, those completing military or law enforcement service or an authorised intermediary (EM, pp. 27–28, paragraph [18]).

State sponsor of terrorism

Proposed section 110.3 defines a state sponsor of terrorism as an entity specified by regulations made by the Governor-General. Specifying an entity as a state sponsor of terrorism would allow for the prosecution of offences under proposed Divisions 111–113.

Requirements to prescribe a state sponsor of terrorism

Proposed section 110.3 provides that, before the Governor-General can make a regulation to specify a state sponsor of terrorism, the AFP Minister (currently the Minister for Home Affairs) must:

1. be satisfied on reasonable grounds that:
   • the entity is a foreign state entity; and
   • the entity or a member of the entity:
     • has directly or indirectly engaged in, prepared, planned, assisted in or fostered the doing of a terrorist act that was targeted at Australia (defined in proposed section 110.2) or
     • has advocated (defined in proposed subsection 110.3(2)) the doing of a terrorist act that was targeted at Australia and
2. obtain the Foreign Affairs Minister’s agreement in writing to the entity being specified and
3. arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

Proposed subsection 110.3(2) states that an entity advocated the doing of a terrorist act if the entity:

• directly or indirectly counselled, promoted, encouraged or urged the doing of a terrorist act
• directly or indirectly provided instruction on the doing of a terrorist act or
• directly praised the doing of a terrorist act, where there was a substantial risk that such praise might have led a person to engage in a terrorist act.

As further outlined in proposed section 110.2, a terrorist act will be targeted at Australia when the action:

• is, or is threatened to be, done in Australia
• causes serious physical harm (including death) to Australian citizens or permanent residents; causes serious damage to Commonwealth, state or territory property; endangers the life of an Australian citizen or permanent resident; creates a serious risk to the health or safety of the Australian public; or seriously interferes with, seriously disrupts or destroys an electronic system (including where any of these listed actions take place outside Australia) or
• is done or the threat is made with the intention of coercing, or influencing by intimidation, an Australian government or the government of a foreign country, or intimidating the Australian public.

Reference to the doing of a terrorist act in this context includes the doing of a specific or more than one terrorist act. It also includes a reference to the doing of a terrorist act, even if a terrorist act does not occur (proposed subsection 110.3(6)).

Additionally, a foreign state entity could be prescribed as a state sponsor of terrorism for acts that occurred prior to the commencement of Schedule 1 to the Bill (proposed subsection 110.3(4)). This means that, for example, the IRGC (assuming all legislative requirements were met) could potentially be specified as a state sponsor of terrorism for the 2024 antisemitic attacks.

Amending names of specified state sponsor of terrorism

In some instances, foreign state entities may be known by aliases. Where an entity is prescribed as a state sponsor of terrorism, and where such an entity may have an alias or former name, the AFP Minister may, by legislative instrument, amend the regulations to include an alias or remove a former name in certain circumstances (proposed section 110.4).

Delisting a specified state sponsor of terrorism

In some circumstances, it may no longer be appropriate for a state sponsor of terrorism to continue to be specified as such. In these circumstances, proposed section 110.5 provides a mechanism for the AFP Minister to delist a state sponsor of terrorism. A declaration may be made on the AFP Minister’s own initiative, or on application made by either the PJCIS or by the foreign country to which the state sponsor of terrorism belongs (proposed section 110.6). This power recognises that prescribing an entity as a state sponsor of terrorism is not a set‑and-forget action.

Before making a proposed section 110.5 declaration, proposed subsection 110.5(4) requires the AFP Minister to consult the Foreign Affairs Minister, given the associated significant foreign policy and diplomatic considerations. Delisting an entity would not, however, prevent it from being subsequently specified as a state sponsor of terrorism (proposed subsection 110.5(6)).

Regulations specifying a state sponsor of terrorism and legislative instruments amending the name of a specified state sponsor of terrorism are open to review by the PJCIS, which may also report its comments and recommendations to each House of Parliament (proposed subsection 110.7(2)).

In its inquiry into the Bill, the PJCIS expressed concern that the Bill does not extend the Committee’s role to monitor and review the AFP’s functions under Part 5.3 of the Criminal Code to also include proposed Part 5.3A (Advisory report, p. 35, paragraph [2.28]). The PJCIS therefore recommended amending the Bill to

… add in paragraphs 29(1)(baa) and (bab) of the Intelligence Services Act 2001 reference to new Part 5.3A of the Criminal Code; in order to ensure that the PJCIS will have the ability to monitor and review AFP counter-terrorism functions in relation to new Part 5.3A to the same extent that it currently monitors and reviews such functions in relation to Part 5.3 (Recommendation 1).

As mentioned above, Shadow Attorney-General Andrew Wallace, who was Deputy Chair of the PJCIS when it reported on the Bill, moved an amendment in the House to implement Recommendation 1 of the PJCIS report.

The Attorney-General advised that while the Government supports the PJCIS’s recommendation in principle, the Attorney-General’s Department had advised that the amendment was unnecessary:

… nothing in the proposed part 5.3A confers any new powers or functions on the AFP. Part 5.3A only create new offences, not new functions, with the investigative functions of the AFP instead drawn from the Australian Federal Police Act 1979. However, schedule 2 of this bill does make amendments to the existing part 5.3 to ensure that powers exercised by the AFP in respect of terrorist organisation offences—that is, the various order frameworks in divisions 104, 105 and 105A—can also be exercised for state sponsors of terrorism. Therefore, the government maintains that current sections 29(1)(baa) and (bab) of the Intelligence Services Act 2001 do provide the committee the function to monitor and review the performance of the functions of the AFP under part 5.3 whether engaged in by a state or non-state entity. For those reasons, the government will not be supporting this amendment (p. 104).

The amendment moved by Mr Wallace was negatived by the House of Representatives.   

Offences

Proposed Divisions 111–113 create several offences punishable by imprisonment for maximum terms ranging from 3 years to life, depending on the severity of the offence.

Given the national security and foreign relations considerations associated with these offences, the Attorney-General’s written consent is required to commence proceedings for offences against the proposed Divisions (proposed subsection 114.4(1)). As the EM states, the requirement for the Attorney-General’s consent:

provides an opportunity for the Attorney-General to consider the appropriateness of the proposed prosecution in all the circumstances of the case, including the context of the conduct, and need to protect the community from the impacts of entities listed as state sponsors of terrorism and state terrorist acts. (p. 11, paragraph [33]).

A person may, however, be arrested, charged, remanded in custody or released on bail before consent has been given (proposed subsection 114.4(2)).

The offences provide an extensive framework to allow for the prosecution of persons engaged in state terrorist acts, as well as a range of affiliated offending, including providing or receiving training connected with state terrorist acts, possessing things connected with state terrorist acts, and collecting or making documents likely to facilitate state terrorist acts.

Sections 12.2 to 12.6 (dealing with corporate criminal responsibility) of the Criminal Code apply in relation to offences contained within proposed Divisions 111–113 as if a reference to a body corporate included a reference to a foreign state entity that is a person. Where a listed foreign state entity is not a legal person under domestic law, liability will flow to the parent entity that is a legal person (EM, p. 59, paragraph [246]). A foreign state entity that is a legal person is taken to have committed any of the offences if:

• a part of the entity is a state sponsor of terrorism
• that state sponsor of terrorism is not a person and
• that state sponsor of terrorism would have committed the offence if it were a person (proposed subsection 114.1(2)).

As a person’s status as a foreign state entity or a member of a foreign state entity does not go to the person’s culpability for the substance of an offence, strict liability applies, and the prosecution would not have to prove any fault element in that regard. That is, the prosecution would not need to prove that the defendant was aware that the entity had been listed as a state sponsor of terrorism. The defence of mistake of fact at section 9.2 of the Criminal Code would nevertheless be available as noted in the EM (p. 35, paragraph [68]).

Recognising the transnational nature of state sponsored terrorism and to prevent a person from escaping prosecution or punishment due to a jurisdictional loophole, proposed section 114.2 provides that the extended geographical jurisdiction—category D in section 15.4 of the Criminal Code applies to offences in the proposed Divisions. This means that the offences would apply to conduct, or a result of conduct, constituting the alleged offence that occurs in Australia or anywhere else in the world.

Proposed section 110.8 clarifies that state and territory laws are intended to operate concurrently alongside provisions contained in the Bill. To avoid double jeopardy, proposed subsection 110.8(4) provides that if the act or omission of a person is an offence under proposed Part 5.3A as well as under the law of a state or territory, and the person has been punished for the offence under the law of the state or territory, the person is not liable to be punished for the offence under proposed Part 5.3A.

Activities relating to state terrorist acts (Division 111)

Proposed Subdivision A, Division 111 contains two tranches of offences. Firstly, it contains the offence of engaging in state terrorist acts (proposed section 111.2). A state terrorist act is defined in proposed section 111.1 as a terrorist act engaged in by a state sponsor of terrorism or a member of a state sponsor of terrorism. This extends to terrorist acts carried out in concert with an entity that is not a state sponsor of terrorism or a member of a state sponsor of terrorism. The EM notes that this is intended to ‘ensure that a foreign state entity or non-state entities cannot avoid liability under this section by working in collaboration’ (p. 35, paragraph [65]).

The second category of offences included in proposed Subdivision A, Division 111 are offences related to state terrorist acts. These offences capture both state sponsors of terrorism and other persons who meet the offence elements. The offences in this category are:

• providing or receiving training connected with state terrorist acts (proposed section 111.3)
• possessing things connected with state terrorist acts (proposed section 111.4)
• collecting or making documents likely to facilitate state terrorist acts (proposed section 111.5)
• other acts done in preparation for, or planning, state terrorist acts (proposed section 111.6).

The offence in proposed section 111.6 is exceptionally broad as it covers any act done (by any person) in preparation for, or planning, a state terrorist act, with an attached maximum penalty of imprisonment for life.

Activities of state sponsor of terrorism relating to terrorist acts engaged in by others (Division 111)

The offences in proposed Subdivision B, Division 111 relate to support provided by a state sponsor of terrorism or a member of a state sponsor of terrorism to non-state actor proxies who may engage in terrorist acts (EM, p. 40, paragraph [103]).

The offences in proposed Subdivision B, Division 111 replicate those in proposed Subdivision A, Division 111. For clarity, the offences are:

• providing or receiving training connected with terrorist acts (proposed section 111.7)
• possessing things connected with terrorist acts (proposed section 111.8)
• collecting or making documents likely to facilitate terrorist acts (proposed section 111.9)
• any other act done in preparation for, or planning, terrorist acts (proposed section 111.10).

Dealings with state sponsor of terrorism (Division 112)

Proposed Division 112 provides for a range of offences relating to membership, recruitment, training, funding, providing support, associating with, or directing activities of state sponsors of terrorism.

Proposed Division 112 offences cover intentional dealings with state sponsor of terrorism, namely:

• directing activities of a state sponsor of terrorism (proposed section 112.1)
• being a member of a state sponsor of terrorism (proposed section 112.2)
• recruiting for a state sponsor of terrorism (proposed section 112.3)
• providing, receiving or participating in training with a state sponsor of terrorism (proposed section 112.4)
• receiving funds from, making funds available to, or collecting funds for a state sponsor of terrorism (proposed section 112.5)
• providing support to a state sponsor of terrorism (proposed section 112.6)
• associating with state sponsor of terrorism on 2 or more occasions (proposed section 112.7)

Additionally, some of these offences—being proposed sections 112.1, 112.3, 112.5 and 112.6—provide for higher penalties where persons know (as defined in section 5.3 of the Criminal Code) the entity is a state sponsor of terrorism, and lower penalties where a person is reckless (as defined in section 5.4 of the Criminal Code) as to whether the entity is a state sponsor of terrorism.

There are a range of exceptions contained within some of the offence provisions in proposed Division 112. For instance, proposed subsection 112.5(4) contains exceptions to ensure that legal practitioners are not prosecuted for receiving funds from a state sponsor of terrorism when providing legal services to persons accused of proposed Division 112 offences or entities seeking advice on their status as a state sponsor of terrorism.

Similarly, certain associations with a state sponsor of terrorism would not constitute an offence if the association is:

• with a close family member and relates only to a matter reasonably regarded as a matter of family or domestic concern (proposed paragraph 112.7(5)(a))
• in a place being used for public religious worship and takes place in the course of practice a religion (proposed paragraph 112.7(5)(b))
• only for the purpose of providing aid of a humanitarian nature (proposed paragraph 112.7(5)(c))
• only for the purpose of providing advice or legal representation in connection with specified matters (proposed paragraph 112.7(5)(d)).

A defendant would bear the evidential burden in relation to these exceptions.

In its comments on the Bill, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) advised that it considered that this reversal of the evidential burden was not adequately addressed in Bill’s explanatory materials and requested that the Government provide an addendum to the EM containing a more detailed justification for this approach (p. 10).

Proposed subsection 112.7(6) clarifies that proposed section 112.7 does not apply to the extent (if any) that it would infringe the implied freedom of political communication. The Alliance for Journalists’ Freedom recommends the inclusion of a specific exemption for journalism undertaken in the public interest in its submission to the PJCIS inquiry into the Bill.

Financing state terrorist acts targeted at Australia (Division 113)

Proposed Division 113 would make it an offence to finance state terrorist acts targeted at Australia (proposed section 113.1) or intentionally finance a person involved in state terrorist acts targeted at Australia (proposed section 113.2). It would suffice if the financier is reckless as to whether the funds will be used to facilitate or engage in a state terrorist act targeted at Australia.

General defences

In addition to existing defences in the Criminal Code (predominantly contained in Division 9 and Division 10), proposed sections 112.8 and 113.3 contain specific defences to offence conduct contained in proposed Divisions 112 and 113, respectively. As summarised by the EM:

These defences apply in respect of legitimate or unavoidable engagement with foreign state entities who are state sponsors of terrorism. This includes where a person engages with a state sponsor of terrorism for the provision of a service for which there are no reasonable alternatives, in compliance with a specific law or order of the court, or in the course of their duties as a Commonwealth, state or territory public official. The defendant would bear the evidential burden in respect of these defences. (p. 53, paragraph [208]; p. 57, paragraph [232])

Proposed paragraphs 112.8(1)(e) and 113.3(1)(e) provide that the performance of an official duty or function for the United Nations (UN) or an agency of the UN, or the International Committee of the Red Cross (ICRC) is a defence (EM, p. 55, paragraph [217]; p. 58, paragraph [241]). Given how specific this defence is to these specific organisations, it is unlikely that it would extend to any other aid organisation. However, proposed paragraph 112.7(5)(c) provides an exception to the offence of associating with state sponsors of terrorism for associations that are only for the purpose of providing aid of a humanitarian nature.

In a joint submission to the PJCIS inquiry into the Bill, the Australian Council for International Development (ACFID) and Save the Children Australia repeated earlier calls for the inclusion in the Criminal Code of broad humanitarian exemptions consistent with UN Security Council Resolutions 2664 and 2761 ‘to provide regulatory certainty for the work of [Australian non-governmental organisations] in responding to global humanitarian crises’ (p. 2, paragraph [7] of the legal advice attached to the joint submission).

At the PJCIS public hearing in relation to the Bill, representatives of the AGD (pp. 8–10) and Department of Foreign Affairs and Trade (DFAT) (pp. 15–16) acknowledged this concern and stated that they were directly engaging with ACFID and Save the Children Australia to address the concern as it relates to both Part 5.3 of the Criminal Code and proposed Part 5.3A.

DFAT also clarified that the UN and the ICRC were specifically exempted because, in their assessment, these entities ‘have robust assurance and safety mechanisms to manage the risks associated with delivering assistance in areas where a state sponsor of terrorism may be operating’ (p. 15). The Australian Red Cross Society’s (ARCS) submission to the PJCIS inquiry into the Bill, however, notes that the ICRC exemption is ‘drafted narrowly and does not extend to the [International Federation of Red Cross and Red Crescent Societies (IFRC)], Australian Red Cross Society or other National Societies in the Red Cross and Red Crescent Movement’ (p. 4, paragraph [1.6]). The ARCS recommended amending the proposed exemption in this regard and including a humanitarian exemption for offences in Part 5.3 of the Criminal Code and proposed Part 5.3A.

The AGD acknowledged the need to consider including humanitarian entities more broadly, but noted that this would need ‘to be done in quite a considered way to ensure that we are not extending defence to any agency and to ensure it is actually legitimate rather than two individuals with malicious intent under the cover of a charity then getting a carveout’ (p. 10).

Consequential amendments to Commonwealth legislation

Schedules 2 and 3 make consequential amendments to several Commonwealth Acts, including the Criminal Code.

In particular, Part 1, Schedule 2 provides that references to a terrorist act in Divisions 104 (control orders), 105 (preventative detention orders) and 105A (post‑sentence orders) of the Criminal Code include references to a state terrorist act. This would allow control orders, preventative detention orders and post‑sentence orders to be made in relation to state terrorist acts. Similarly, references to a terrorist organisation or listed terrorist organisation, would include a reference to a state sponsor of terrorism.

In its comments on the Bill, the Scrutiny of Bills Committee noted its longstanding concerns with the ‘extraordinary powers’ available under control orders, preventative detention orders and post‑sentence orders and advised that it considers that any extension of the scope of conduct and offences to which they may apply requires close scrutiny (p. 3).

Furthermore, item 29, Schedule 3 amends subsection 80.2E(3) of the Criminal Code to expand the definition of prohibited terrorist organisation symbol to include a symbol that a state sponsor of terrorism uses, or members of a state sponsor of terrorism use, to identify the state sponsor of terrorism or any part of the state sponsor of terrorism. The flag of a foreign country or part of a foreign country, by itself, would however be exempted under proposed subsection 80.2E(4) (item 30, Schedule 3).

The Scrutiny of Bills Committee raised concern with the impact that the expansion of the definition of prohibited terrorist organisation symbol may have on freedom of expression and the lack of clear guidance as to which symbols are prohibited (pp. 6-7). The expansion of the definition would extend the scope of conduct that would be an offence under section 80.2HA (public display of prohibited terrorist organisation symbols) and section 80.2JA (trading in prohibited terrorist organisation symbols), which are subject to maximum sentences of 5 years imprisonment and 12 months imprisonment, respectively (p. 5). The Committee noted that section 80.2HA is subject to a mandatory minimum term of imprisonment of 12 months (section 16AAA of the Crimes Act) and reiterated its concern with mandatory minimum sentences, which ‘fetter judicial discretion and may result in the imposition of sentences of imprisonment that are disproportionate to the offence in the circumstances’ (p. 7).

Item 49, Schedule 3 proposes to insert section 13A in the Foreign States Immunities Act 1985 as an exception to the immunity from the civil jurisdiction of Australian courts afforded to foreign states under section 9. Under the proposed provision, a foreign state would not be immune in proceedings concerning state terrorism.