About this inquiry

On 7 June 2018 the Committee tabled the Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.


Past Public Hearings

16 Mar 2018: East Melbourne, VIC
16 Feb 2018: Canberra, ACT
15 Feb 2018: Canberra, ACT

9. Treason, treachery and other threats to security

9.1
This chapter reviews the proposed new offences of
treason,
treachery,
other threats to security, including:
advocating mutiny,
assisting prisoners of war to escape,
military style training involving foreign government principal,
interference with political rights and duties, and
damage to Commonwealth property.
9.2
The new offences, the relevant sections and proposed penalties are set out below.
Table 9.1:  Treason, treachery and other threats to security offences
New Offence
Section
Penalty
Treason
80.1AA
Life Imprisonment
Treachery
80.1AC
Life Imprisonment
Advocating mutiny
83.1
7 years
Assisting prisoners of war to escape
83.2
15 years
Military style training involving foreign government principal
83.3
20 years
Interference with political rights and duties
83.4
10 years
Damaging Commonwealth property
132.8A
10 years

Treason and treachery

Treason

9.3
Section 80.1AA of the Bill proposes to repeal the existing offence of ‘Treason – materially assisting enemies’ and replaces it with the offence ‘Treason – assisting enemy to engage in armed conflict.’
9.4
The Explanatory Memorandum explains that the new treason offence will
modernise Australia’s treason offences. It will ensure that treason offences regarding assisting an enemy to engage in armed conflict against Australia, which carries a penalty of life imprisonment, appropriately reflect moderns terminology related to armed conflict.1
9.5
The new treason offence provides that a person commits an offence if:
a party (the enemy) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force, and
the enemy is declared in a Proclamation made under section 80.1AB, and
the person engages in conduct, and
the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force, and
the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force, and
at the time the person engages in the conduct
the person knows that the person is an Australian citizen or a resident of Australia, or
the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth, or
the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
9.6
The offence has a maximum penalty of life imprisonment.
9.7
In addition, proposed new section 80.1AB deals with the proclamation of enemy engaged in armed conflict, providing that:
The Governor-General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force [ADF].2
9.8
The Law Council of Australia was broadly supportive of the new treason offence, stating that it
appreciates the necessity to update the treason offences as ‘armed conflict’ reflects the reality of the current international engagements of the ADF and Commonwealth (e.g. the fight against [Islamic State of Iraq and Syria] and the situation in Syria).3
9.9
However, the Law Council also raised concerns around the breadth of the offence, as it
removes the requirement that the person’s conduct assists a country or organisation engaged in hostilities against the Commonwealth or ADF. The proposed requirement is that a person’s conduct provides material assistance to a country or organisation engaged in an armed conflict involving the Commonwealth. Given the multilateral nature of modern conflicts (see, for example, in the case of Syria), this makes the scope of the offence potentially very broad. Further, that someone contributes to acting against the Commonwealth or ADF would seem to be the rationale behind treason.4
9.10
Similarly, the joint councils for civil liberties argued that ‘it is difficult to conceive of a situation appropriate to the triggering of a treason offence that could not be captured by maintaining the more specific “against”’.5
9.11
The joint councils for civil liberties and the Law Council proposed changing the word ‘involving’ to the word ‘against’ in the offence and in the Proclamation power.6
9.12
Responding to these recommendations, the Attorney-General’s Department stated that:
This would not be appropriate given the realities of modern armed conflict. It is entirely possible that the ADF may be engaged in an armed conflict involving multiple actors such as insurgent groups. The ADF may not necessarily be engaged in combat operations against all of the actors in such a context. It may, for example, be engaged in training, advising, and otherwise assisting missions in support of and with the consent of a foreign government, which would not see Australia engaged in combat ‘against’ an enemy. In such circumstances, Australia may still be a party to the armed conflict, in which case the conduct intended to be caught by this provision should still be criminalised.7

Materially assist

9.13
Both the current and proposed treason offence require the accused to intend to ‘materially assist’ an enemy. The term is not defined and will be given its ordinary meaning. The Explanatory Memorandum outlines that the term is intended to include:
the provision of monetary assistances or practical goods, and
assistance which is more than merely trivial.8
9.14
The Committee was interested in the use of the term ‘materially assist’ as opposed to language in the similar Criminal Code offence of ‘Providing support to a terrorist organisation’ (section 102.7), which refers to ‘provides to an organisation support or resources’. The Committee asked the Attorney-General’s Department why there was a difference in language used. The Department replied:
The use of the term ‘materially assist’ is consistent with existing treason offences. It has been retained as it is a high threshold for the assistance that must be provided in order for a treason offence to be committed. It is a higher threshold than that found in the offence relating to terrorist organisations at section 102.7, which is considered appropriate given the severe penalty applying to treason offences.9

Residents

9.15
The Explanatory Memorandum provides that, consistent with existing offences, the proposed offence
ensures that a person only commits this offence if he or she knows that they owe an allegiance to the Commonwealth. This is appropriate because only persons who benefit from the protection of the Australian state should be able to commit treason against the Commonwealth.10
9.16
The current and proposed offence apply to all ‘residents’, defined in the Criminal Code as any ‘individual who is a resident of Australia.’ The Committee sought clarification on whether this term was intended to extend to persons staying in Australia on a temporary visa, for example a student visa, business visa or tourist visa, and if so, whether these persons owe an allegiance to Australia sufficient to engage in treason. The Attorney-General’s Department advised that the Bill ‘is not limited to permanent residents’, explaining that ‘a person who is voluntarily temporarily resident in Australia would be considered to have “voluntarily put himself or herself under the protection of the Commonwealth”’.11

Proclamations

9.17
The Governor-General may, by Proclamation, declare a party (a person, body or group of any kind) to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force (section 80.1AB). The Law Council of Australia expressed concern that
no criteria are prescribed for when a Proclamation may be made under this proposed section. Similarly, there is no requirement of periodic review of such a Proclamation or an ability of revocation.12
9.18
The Attorney-General’s Department responded to this concern:
[T]here would be no benefit in listing further criteria than are already contained in section 80.1AB. The question of whether a party is an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force will be determined based on expert advice in the context of the meaning of the terms in international law.13
9.19
The Law Council further recommended that there should be a requirement of periodic review of such a Proclamation and an ability of revocation when the Governor-General is no longer satisfied that the criterion for making the Proclamation continues to be met.14
9.20
The Department explained that as a Proclamation is a legislative instrument, ‘it can be repealed through the usual processes’.15 In addition it will sunset every ten years under the operation of the Legislation Act 2013, and as a result, this would ensure ‘that such instruments are periodically reviewed and only re-made if required’.16
9.21
The Acts Interpretation Act 1901 provides that a person who is authorised by an Act to make, grant or issue a legislative instrument also has a power to repeal the instrument.17 The Governor-General would have the power to repeal the Proclamation by making another legislative instrument to that effect.
9.22
The Law Council also suggested that there should be a prohibition on the retrospective proclamation of a ‘party to be an enemy engaged in armed conflict’ under proposed section 80.1AB.18
9.23
Responding to the recommendation, the Department pointed to section 12(2) of the Legislation Act 2003,19 which prevents retrospective application of a Proclamation made under section 80.1AB of the Bill.

Consequential amendments

Presumption against bail

9.24
Consequential amendments in Schedule 1 to the Bill, discussed in Chapter 10, affect laws relating to the presumption against bail contained in section 15AA of the Crimes Act 1914. The Bill proposes imposing a new presumption against bail for treason offences.

Treachery

9.25
The Bill proposes to replace the existing ‘Treachery’ offence in section 24AA of the Crimes Act with a modernised offence in section 80.1AC of the Criminal Code. The Explanatory Memorandum provides:
The new treachery offence will criminalise the use of force or violence intended to overthrow the Constitution, the Government of the Commonwealth or of a State or Territory or the lawful authority of the government of the Commonwealth.20
9.26
The new treachery offence provides that a person commits an offence if:
the person engages in conduct, and
the conduct involves the use of force or violence, and
the person engages in the conduct with the intention of overthrowing
the Constitution, or
the Government of the Commonwealth, of a State or of a Territory, or
the lawful authority of the Government of the Commonwealth.
9.27
The offence has a maximum penalty of life imprisonment.
9.28
The amendments narrow the scope of the offence to exclude conduct against countries other than Australia and reduce overlap with treason offences. The Explanatory Memorandum states:
The existing treachery offence at subsection 24AA(1) is not being replicated in the new treachery offence at section 80.1AC to the extent that it relates to acts intended to overthrow the government of a proclaimed country. These are more appropriately dealt with by the laws of the relevant country or through the foreign incursions offences in Part 5.5 of the Criminal Code.
The existing treachery offence at subsection 24AA(2) is not being replicated in the new treachery offence because assisting enemies of the Australian Defence Force is covered by the treason offence in section 80.1AA, as inserted by Item 4 of Schedule 1.21

Lawful authority of the Government

9.29
In addition to overthrow of the Constitution, the Federal Government or a State Government, the offence would also extend to intended conduct to overthrow of the ‘lawful authority of the Commonwealth Government’ by use of force or violence. This term is not defined.
9.30
The Attorney-General’s Department explained that the term ‘is used for consistency with the existing offence of urging violence against the Constitution in section 80.2 of the Criminal Code’,22 and pointed to the Explanatory Memorandum, which states:
For paragraph 80.1AC(1)(c), the prosecution will have to prove beyond a reasonable doubt that the person engaged in his or her conduct with the intention of overthrowing the Constitution, the Government of the Commonwealth or a State or Territory or the lawful authority of the Government of the Commonwealth. This could include the overthrow of an arm of the Government. If a person intended to overthrow the Executive Government then this will be sufficient even if they do not intend to overthrow the Parliament or the judiciary. The application of intention to this result element means that the prosecution will have to prove that the person means to bring about the overthrow or is aware that it will occur in the ordinary course of events.23
9.31
The existing offence that the Department refers to ‘Urging violence against the Constitution’ in section 80.2 of the Criminal Code has a penalty of imprisonment for seven years. At the time this offence was enacted concerns were raised around the ‘vagueness’24 of the term and the,
… extent to which the ‘lawful authority’ of the Government must be challenged in order to constitute urging the ‘overthrow’ of the lawful authority of the Government. For example, is it sufficient that force or violence be urged to resist one or more specific laws, or must there be a more general challenge to the legitimacy of the Government?25

Force or violence

9.32
The Committee sought to clarify whether the reference to ‘force or violence’ in the proposed offence purposefully excludes intimidation or threats, concepts which are explicitly criminalised in the proposed ‘interference with political rights and duties’ offence. The Attorney-General’s Department advised:
The use of the term ‘force or violence’ picks up on the language used in the existing treachery offence at subparagraph 24AA(1)(a)(ii) of the Crimes Act. It is also consistent with the language used in the existing offence of urging violence against the Constitution in section 80.2 of the Criminal Code (see paragraph 80.2(1)(a)).
Conversely, the references to intimidation and threats in new section 83.4 of the Bill pick up on the existing language used in section 28 of the Crimes Act.
Given that a penalty of life imprisonment applies to the treachery offence at subsection 80.1AC of the Bill, it is considered appropriate that the offence be limited to conduct involving force or violence and not extend to conduct involving intimidation or threats.26
9.33
The Law Council of Australia raised a concern regarding the fault element that applies to the offence, stating that
the fault element of intention should be required where the person engages in conduct involving the use of force or violence. That is, the person should be required to have intended to use force or violence given the potential penalty of life imprisonment.27
9.34
The Attorney-General’s Department addressed this recommendation as follows:
As drafted, the physical element is a circumstance element. Consistent with section 5.6 of the Criminal Code, recklessness is the automatic fault element for a circumstance element. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states (at page 20):
The default fault elements were carefully considered and devised in the process of developing the Criminal Code. Consequently, the default fault elements supplied by the Criminal Code should apply unless there is a sound reason to depart from these.
The department has not identified a reason to override the automatic fault element and apply intention to this element.28

Consequential amendments

Citizenship

9.35
Section 35A of the Australian Citizenship Act 2007 enables the Minister to determine that a dual-citizen has ceased to be an Australian citizen in circumstances where the dual-citizen is convicted of a treachery offence against section 24AA of the Crimes Act, and other statutory criteria are met. Schedule 1 to the Bill, discussed in Chapter 10, amends section 35A of the Australian Citizenship Act 2007 so as to apply to the proposed new treachery offences. The Bill also proposes that a conviction for the new treachery offence will be grounds to refuse the citizenship application of a stateless person.

Deportation

9.36
Consequential amendments in Schedule 1 to the Bill, discussed in Chapter 10, affect the Minister’s powers to deport a person convicted of a treachery offence.

Presumption against bail

9.37
Consequential amendments in Schedule 1 to the Bill, discussed in Chapter 10, affect laws relating to the presumption against bail contained in section 15AA of the Crimes Act 1914. The offence of treachery set out in section 24AA of the Crimes Act is currently subject to section 15AA. The Bill proposes substituting this reference to the new treachery offence in proposed section 80.1AC.

Standard non-parole periods

9.38
Section 19AG of the Crimes Act will continue to require minimum non-parole periods to be fixed in relation to all convictions for treachery offences. This matter is discussed in Chapter 10.

Committee comment

Treason

9.39
The Committee accepts the need to modernise the treason offence and has considered concerns that the offence should capture conduct ‘against’ rather than ‘involving’ the Commonwealth or the Australian Defence Force. However, the Committee notes the Attorney-General’s Department’s evidence on the ‘realities of modern armed conflict’ and concludes that the term ‘involving’ the Commonwealth or the Australian Defence Force is appropriate.
9.40
The Committee considered the provision for an enemy to be declared in a Proclamation made under proposed section 80.1AB. The Committee accepts that the making of such a Proclamation must be one which relies on expert evidence at the time and such a Proclamation power should not be fettered by additionally imposed legislative criteria.
9.41
The Committee also considered the Law Council of Australia’s recommendation that there be a requirement of periodic review of Proclamations under proposed section 80.1AB, and an ability of revocation when the Governor-General is no longer satisfied that the criterion for making the Proclamation continues to be met. However, the Committee concludes that such amendments are not necessary. As noted above, a Proclamation by the Governor-General is a legislative instrument and can be repealed if necessary by virtue of sub-section 33(3) of the Acts Interpretation Act 1901. While there is no specific requirement that such a Proclamation be reviewed periodically, the proposed treachery offence in section 81.1AA can only be committed if a party is engaged in armed conflict involving the Commonwealth or the Australian Defence Force. This means that, in the event that peace or victory over the proclaimed enemy is declared, the elements of the offence would not likely be able to be established, even if the Proclamation remained in force.

Treachery

9.42
The Committee notes that the Bill proposes to replace the existing treachery offence in section 24AA of the Crimes Act and replace it with a modernised version in section 80.1AC of the Criminal Code. The Bill narrows the scope of the treachery offence to exclude conduct against countries other than Australia and to reduce overlap with treason offences.
9.43
Similarly to the existing offence, the new offence applies to the use of force or violence with the intention of overthrowing the Constitution, or the Government of the Commonwealth, of a State or of a Territory. The proposed new offence also extends to the use of force or violence with the intention of overthrowing the ‘lawful authority of the Government of the Commonwealth’. To assist with ensuring the offence is clear and unambiguous in its terms, the Committee suggests that the Explanatory Memorandum could clarify the circumstances in which the term ‘lawful authority of the Government of the Commonwealth’ might apply.

Other threats to security

9.44
As noted above, Division 83 inserts four new offences into the Criminal Code. The four new offences, the relevant section and proposed penalty are set out below.
Table 9.2:  Other threats to security—new offences
New Offence
Proposed section
Penalty
Advocating mutiny
83.1
7 years
Assisting prisoners of war to escape
83.2
15 years
Military style training involving foreign government principal
83.3
20 years
Interference with political rights and duties
83.4
10 years
Damaging Commonwealth property
132.8A
10 years
9.45
The offences are similar to existing offences in the Crimes Act 1914, outlined in the table below, which are repealed by Item 43 of Schedule 1 of the Bill.
Table 9.3:  Other threats to security—existing offences
Existing Offence
Section in
Crimes Act 1914
Penalty
Inciting mutiny
25
Imprisonment for life
Assisting prisoners of war to escape
26
Imprisonment for life
Unlawful drilling
27
5 years
Interference with political liberty
28
3 years
Destroying or damaging Commonwealth property
29
10 years

Consequential amendments

Citizenship applications

9.46
Schedules 1 and 2 to the Bill, discussed in Chapter 10, also contain amendments to the definition of ‘national security offence’ in section 3 of the Australian Citizenship Act 2007, which affects the treatment of applications for Australian citizenship made by stateless persons. The offences set out in Table 9.3 are currently defined as a ‘national security offence’ for this purpose. The Bill proposes substituting these references to the new forms of these offences set out in Table 9.2 above, with the exception of the offence of damaging Commonwealth property, which will no longer be deemed to be a ‘national security offence’.

Advocating mutiny

9.47
Section 83.1(1) of the Bill provides that:
(1) A person (the advocate) commits an offence if:
(a) the advocate engages in conduct; and 4 (b) the conduct involves advocating mutiny; and
(c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and (d) at the time the advocate engages in the conduct:
(i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or
(ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or
(iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
9.48
Section 83.1 (advocating mutiny) updates the language used in section 25 (inciting mutiny) of the Crimes Act 1914. It includes a definition of mutiny as follows:
A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force:
(a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or
(b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.29
9.49
The Explanatory Memorandum states that:
The term ‘advocate’ is not defined and is intended to take its ordinary meaning, including to counsel, promote, encourage or urge the commission of a mutiny. The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates mutiny does not escape punishment by relying on a narrow construction of the terms or one of the terms.30
9.50
The breadth of the term is shown by the example offence in the Explanatory Memorandum:
An example of this offence is as follows. Person A is an Australian citizen and is married to a member of the Australian Defence Force. Person A is aware that his spouse is unhappy in her role and encourages his spouse to convince other members of the Australian Defence Force to resist orders from their superiors so that a particular Defence operation against one of Australia’s enemies cannot take place.31
9.51
‘Advocating mutiny’ will have broader application than the existing ‘inciting mutiny offence’, and some submitters considered it could potentially capture citizens offering peaceful protest against Australian military action. Valerie Heath submitted that the offence
could have the effect of criminalising any peaceful advocacy by civilians against Australian involvement in wars or warlike activity or peaceful advocacy that Australian servicemen and women apply the Nuremburg principle in considering the lawfulness of orders they have been given. No policy case has been raised by the Executive that would support such a change.32
9.52
The Law Council of Australia identified that ‘the breadth of the provision may not be compatible with the right to freedom of opinion and expression’. In indicating its opposition to the offence, the Law Council stated:
an updated inciting mutiny offence in the Criminal Code replacing section 25 of the Crimes Act would be preferable. Incitement, conspiracy and attempt provisions in Part 2.4 of the Criminal Code should instead be relied on. If this is not to be accepted, the Law Council recommends that the fault element of intention rather than recklessness should apply as to whether the person’s words or conduct will cause another person to engage in mutiny.33
9.53
At a public hearing, the Law Council reiterated its view that the existing mechanisms in the Criminal Code should be used for the offence, rather than introducing the term ‘advocate’.34

Penalty

9.54
The penalty for advocating mutiny has been reduced to seven years imprisonment from the life imprisonment contained in section 25 of the Crimes Act 1914.

Defence

9.55
As drafted the Bill contains no defence to the offence of advocating mutiny.
9.56
In relation to the proposed offence for advocating mutiny, the Law Council of Australia recommended the provision of a good faith defence
to ensure that individuals or groups who in good faith with their words oppose the actions of the ADF or a defence force of another country that is acting in cooperation with the ADF and calls for a laying down of arms is not subject to the offence.35
9.57
The Attorney-General’s Department did not oppose the Law Council’s recommendation, commenting:
The Bill could be amended to provide that the good faith defence at section 80.3 of the Criminal Code is available for the offence of advocating mutiny. This would mean that the offence does not apply if a person engages in a limited range of conduct undertaken in good faith.36
9.58
It is noted that, should such a defence be made available, section 83.5(4) ‘Consent of Attorney-General required for prosecutions’ would need to be amended so that the Attorney-General must consider whether conduct might be authorised in a way mentioned in section 80.3.

Assisting prisoners of war to escape

9.59
Proposed section 83.2 (assisting prisoners of war to escape) updates the language used in the identically named offence section 26 of the Crimes Act. Specifically, it updates the definition of prisoner of war to be that ‘within the meaning of Article 4 of the Third Geneva Convention’. In addition, the person must be in custody ‘wholly or partly by the Commonwealth or the Australian Defence Force’ and that the conduct ‘takes place in the context of an international armed conflict’.

Penalty

9.60
The penalty for assisting prisoners of war to escape has been reduced to 15 years imprisonment from the existing penalty of life imprisonment contained in section 26 of the Crimes Act. The Explanatory Memorandum notes that
Section 26 of the Crimes Act was enacted in the original Crimes Act in 1914 and the existing penalty of life imprisonment does not reflect contemporary standards of seriousness.37
9.61
The Law Council of Australia pointed out that an element of the offence under proposed section 83.2 is that ‘the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody’. Given the Bill refers to provisions of the Third Geneva Convention, they are, the Law Council argued, directly relevant to the interpretation of this provision. Taking this into account the Law Council argued for a reduction in the penalty as follows:
The Third Geneva Convention stipulates that a prisoner of war should not be punished for a successful escape, and that a prisoner of war captured in the process of escaping, if punished, should only be liable to a disciplinary punishment. In the Law Council’s view, it would be inconsistent with the Third Geneva Convention to make assisting a prisoner of war to escape a criminal offence liable to imprisonment for 15 years.
9.62
The Attorney-General’s Department noted that the offence is ‘not directed at the actions of prisoners of war’, stating:
Given that the offence does not criminalise the acts of prisoners of war but rather persons who assist prisoners of war to escape, it would not be appropriate for the penalty to be lowered based on the obligations in the Third Geneva Convention as the Law Council has suggested.

Defence

9.63
There are no proposed defences to the offence of assisting prisoners of war to escape. No submitters suggested a defence be made available.

Military style training involving foreign government principal

9.64
Proposed section 83.3 (military style training involving foreign government principal) is currently known as ‘unlawful drilling’ in section 27 of the Crimes Act. The section provides that:
(1) A person commits an offence if:
(a) the person provides, receives, or participates in, training, and
(b) the training involves using arms or practising military exercises, movements or evolutions, and
(c) any of the following circumstances exists:
(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3),
(ii) the training is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.38
9.65
The Explanatory Memorandum gives an example of the offence as follows:
Person A participates in training in Australia which is provided by Country E. The training involves the use of weapons and military-style drills. Country E is undertaking the training at a hidden rural location and intends for the training to assist it to conduct military operations against Country F, a close neighbour of Australia. Person A is intending to participate in those future military operations against Country F.39
9.66
The proposed section also offers defences to prosecution where the conduct is either
authorised by written agreement, or
solely for service with armed force other than terrorist organisation.40
9.67
The Law Council of Australia noted that
a State that is responsible for directing, funding or supervising training of the nationals of a second State for the purposes of acting against that second State violates the principle of non-intervention and therefore may amount to an internationally wrongful act.41
and that
[a]n Australian domestic court is unable to make a finding against a foreign State under the principle of sovereignty at international law. Nonetheless, the Law Council encourages the Committee to inquire into the possible impact at international law as to whether a finding by an Australian court for the purposes of this offence may amount to opinio juris at international law.42
9.68
The Attorney-General’s Department addressed this concern of the Law Council and stated that:
these issues will not be relevant to a determination of individual criminal responsibility for the purposes of this offence …
A decision of an Australian court may constitute evidence of either State Practice or opinio juris, which are the two elements required to demonstrate the existence of a customary international law norm. In both instances, however, evidence of one country’s practice or sense of obligation will be insufficient to demonstrate a rule of customary international law. There must be sufficiently widespread and representative practice among countries accompanied by a sense of legal obligation.43

Possible unintended effect on humanitarian agencies

9.69
The Law Council of Australia and a joint submission by the International Committee of the Red Cross and the Australian Red Cross raised concerns in relation to the effect the offence of military style training involving foreign government principal may have on their humanitarian work.44
9.70
The Law Council submitted:
As presently drafted, the offence is too broad, as it applies to a person who ‘provides, receives, or participates in, training’ and ‘the training involves using arms or practising military exercises, movements or evolution’ provided by a foreign principal without the requirement for that training to be directed towards a predetermined hostile act nor for it to form an integral part of that act.45
9.71
The joint submission by the International Committee of the Red Cross and the Australian Red Cross outlined the humanitarian work their organisations undertake, explaining that they support
the efforts of armed forces and groups to disseminate international humanitarian law and international human rights law and to integrate these norms into their doctrine, education and training. These activities allow us to bring a humanitarian perspective to military training environments, and to ensure that participants understand the rules that limit suffering in war and that they are obliged by law to adhere to those rules. They are also part of our ongoing dialogue with armed actors to ensure security and access for future humanitarian operations.46
9.72
Further, the submission raised the concern that, as it is currently drafted, the offence in section 83.3 could apply to the International Committee of the Red Cross and the Australian Red Cross’ humanitarian activities. The submission elaborated:
[T]he Explanatory Memorandum’s example of conduct engaging the offence suggests that the provision is not intended to capture the kind of humanitarian activities outlined above. We recommend that this be made explicit, preferably by way of an exception, or alternatively a defence, to remove the considerable risk that humanitarian actors are, prima facie, exposed to criminal liability.47

Penalty

9.73
The penalty for military style training involving foreign government principal has been increased to 20 years imprisonment from the five years contained in section 27 of the Crimes Act 1914.48
9.74
The Explanatory Memorandum justifies this as follows:
The maximum penalty of 20 years imprisonment is comparable with maximum penalties for offences for providing or receiving training connected to terrorist acts which carry penalties of 15 and 25 years imprisonment. The maximum penalty is appropriate to recognise the serious harm to Australia’s sovereignty, national security and other defence interests that could result from the provision and receipt of military style training by a foreign government principal.49

Defence

9.75
There are two defences to prosecution for this offence as follows:
authorised by written agreement (subsection 83.3(2)), and
solely for service with armed force other than terrorist organisation (subsection 83.3(3)).
9.76
The Explanatory Memorandum points out that the defence at subsection 83.3(2) could apply:
where members of the Australian Defence Force are permitted through a memorandum of understanding to undertake training of the kind described at subsection 83.3(1) with the military forces of a foreign government.50

Interference with political rights and duties

9.77
Section 83.4 (interference with political rights and duties) is currently known as ‘interference with political liberty’ as per section 28 of the Crimes Act 1914.
9.78
The proposed offence in section 83.4 arises where a person engages in conduct and
the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind, and
the conduct results in interference with the exercise or performance, in Australia by any another [sic] person, of an Australian democratic or political right or duty, and
the right or duty arises under the Constitution or a law of the Commonwealth.
9.79
The existing offence in section 28 of the Crimes Act 1914 does not refer to the Commonwealth Constitution. Section 28 states:
Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, commits an offence.51
9.80
The Law Council of Australia outlined the differences in the proposed offence in comparison with the offence in section 28 of the Crimes Act 1914:
‘use of force’ is a broader concept than ‘violence’ and may, as the Explanatory Memorandum indicates, capture ‘acts such as restraining, manipulating, coercing and physically making a person do something against their will’. The Law Council considers that the expansion to conduct involving the use of force is appropriate;
the current offence has as a result that the conduct ‘hinders or interferes with the free exercise or performance, by any other person, of any political right or duty’ (emphasis added). In contrast, the new offence is limited to the result of ‘interference with’ the exercise or performance, in Australia by any another person, of an Australian democratic or political right or duty where that right or duty arises under the Constitution or a law of the Commonwealth. The concept of ‘interference’ is arguably broader than ‘hinders’. The Law Council does not oppose the removal of the term ‘hinders’ in the new offence;
interference must be to an ‘Australian democratic or political right or duty where that right or duty arises under the Constitution or a law of the Commonwealth’. The Law Council supports this amendment…52
9.81
The Law Council also noted:
The Explanatory Memorandum to the Bill does not address the intersection between the proposed new offence and contempt of Parliament. Presumably section 4C of the Crimes Act may apply to ensure that a Member of Parliament may not be punished twice for the one act or omission but this should be clarified in the Explanatory Memorandum.53
9.82
The Attorney-General’s Department advised that
nothing in the Bill affects the Parliament’s powers in relation to contempt. The department agrees with the Law Council that section 4C of the Crimes Act will operate to prevent double jeopardy.54

Penalty

9.83
The penalty for interference with political rights and duties has been increased to ten years imprisonment from the three years contained in section 27 of the Crimes Act 1914.
9.84
In relation to this increase in penalty, the Law Council of Australia was of the view that
clear reasons for the increase from a 3 year to 10 year maximum penalty have not been given. In the absence of a clear justification, the proposed maximum term is too high.55
9.85
The Explanatory Memorandum states that a ten year maximum imprisonment term ‘is appropriate and appropriately criminalises conduct involving force or violence that [interferes] with a person’s exercise of their democratic or political rights or duties’.56

Defence

9.86
The Note to subsection 83.4(1) clarifies that the defence for acts of done in good faith at subsection 80.3 applies to the offence at section 83.4.57

Damaging Commonwealth property

9.87
Damage to Commonwealth property is currently covered by section 29 of the Crimes Act 1914, which provides:
Destroying or damaging Commonwealth property
(1) Any person who intentionally destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, commits an offence.
Penalty: Imprisonment for 10 years.
(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth or to any public authority under the Commonwealth.
9.88
The new offence in section 132.8A (damaging Commonwealth property) reads as follows:
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, or the destruction of, property; and
(c) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to paragraph (1)(c).
(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
9.89
To establish the offence, prosecution will need to prove beyond reasonable doubt that:
the person intentionally engaged in conduct,
the person’s conduct results in damage to, or the destruction of, property and the person is reckless as to this element, and
the property belongs to a Commonwealth entity.58
9.90
This differs from the existing offence of ‘destroying or damaging Commonwealth property’ at section 29 of the Crimes Act, where the offence applies only if the person intentionally destroys or damages the property.
9.91
In relation to this being a category D offence—that is, applying to conduct outside Australia59—the Explanatory Memorandum states:
Category D jurisdiction is appropriate because property belonging to a Commonwealth entity could be located outside of Australian territory. A common example is Australian Embassies and High Commissions located overseas. The application of Category D jurisdiction is also consistent with other Commonwealth property offences in Part 7.2 of the Criminal Code, including the theft offence at section 131.1.60
9.92
The Law Council of Australia considered that
the proposed damaging Commonwealth property offence is more appropriately framed in accordance with the Criminal Code model than the existing offence of destroying or damaging Commonwealth property at section 29 of the Crimes Act.61

Penalty

9.93
The penalty for the proposed new offence is ten years imprisonment. This is unchanged from the existing offence. The Explanatory Memorandum states:
The maximum penalty of 10 years imprisonment is appropriate and consistent with the existing penalty for the offence of destroying or damaging Commonwealth property in section 29 of the Crimes Act. The maximum penalty also complements comparable offences in other Commonwealth legislation. For example, the offence of unauthorised modification of data to cause impairment at subsection 477.2 of the Criminal Code has a maximum penalty of 10 years imprisonment.62

Defence

9.94
There are no specific defences to this offence.

Committee comment

9.95
The Committee received limited evidence regarding the new offences relating to ‘other threats to security’.
9.96
For the offence of ‘advocating mutiny’ in proposed section 83.1, the Committee notes that the term ‘advocating’ is not defined and is intended to take its ordinary meaning. However, the Committee notes that the description of the term in the Explanatory Memorandum uses the same language as in the existing Criminal Code definition of ‘advocate’ for the purpose of the ‘advocating terrorism’ offence in section 80.2C:
advocates: a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.63
9.97
The term is also defined for the purpose of the ‘advocating genocide’ offence in section 80.2D in the Criminal Code, using the same language (‘counsel, promote, encourage or urge’).
9.98
Consistent with these similar offences, and in line the Committee’s requirement for the Bill to be clear and unambiguous in its terms, the Committee recommends that the term ‘advocate’ should be similarly defined for the purpose of the ‘advocating mutiny’ offence at proposed section 83.1.

Recommendation 46

9.99
The Committee recommends that the Bill be amended to define the term ‘advocating’ for the purpose of proposed section 83.1 (advocating mutiny), consistent with other existing offences in the Criminal Code.
9.100
In its report on the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Committee accepted that ‘recklessness’ was the appropriate test for assessing an individual’s behaviour under the proposed ‘advocating terrorism’ offence.64 The Committee notes the proposed offence is ‘advocating mutiny’ as opposed to ‘inciting mutiny’, and similarly accepts that recklessness is the appropriate test for assessing an individual’s behaviour under the offence.
9.101
In its 2014 report, the Committee also considered that the existing ‘good faith’ defence and other criminal law safeguards in relation to ‘advocating terrorism’ would ensure an appropriate balance was struck between free speech, healthy public discourse and the illegal and unwanted encouragement of terrorism.65 The Committee similarly believes that providing a ‘good faith’ defence in relation to the offence of advocating mutiny will provide an appropriate balance between free speech, healthy public discourse and the illegal and unwanted encouragement of mutiny.
9.102
The Committee, therefore, recommends that the Bill be amended to provide that the good faith defence at section 80.3 of the Criminal Code is available for the proposed advocating mutiny offence.

Recommendation 47

9.103
The Committee recommends that the Bill be amended to provide that the ‘good faith’ defence at section 80.3 of the Criminal Code is available for the offence of advocating mutiny.
9.104
Consequential to this recommendation, the Committee recommends that proposed section 83.5(4) ‘Consent of Attorney-General required for prosecutions’ be amended so that, for an offence against section 83.1, the Attorney-General must consider whether conduct might be authorised in a way mentioned in section 80.3.

Recommendation 48

9.105
The Committee recommends that proposed section 83.5(4) ‘Consent of Attorney-General required for prosecutions’ be amended so that, for an offence against section 83.1 (advocating mutiny), the Attorney-General must consider whether conduct might be authorised in a way mentioned in section 80.3.
9.106
The Committee supports the inclusion of an updated offence in proposed section 83.2 for ‘assisting prisoners of war to escape’, and notes the substantial reduction in its maximum penalty from life imprisonment to 15 years in line with ‘contemporary standards of seriousness’.
9.107
In relation to the offence of ‘military style training involving foreign government’ in proposed section 83.3, the Committee notes the concerns of the Law Council, and the International Committee of the Red Cross and the Australian Red Cross, that there could be a possible unintended effect on the work of humanitarian agencies.
9.108
The Committee previously discussed the issue of humanitarian aid in its report Review of the 'declared area' provisions: Sections 119.2 and 119.3 of the Criminal Code where it stated that:
Given the important role of organisations such as the International Red Cross Red Crescent Movement in conflict environments, the Committee considers deterring such organisations from operating in declared areas to be beyond the intention of the legislation. The Committee recommends that this matter be clarified.66
9.109
The Committee made the following recommendation:
The Committee recommends that section 119.2(3) of the Criminal Code be amended to make clear that humanitarian work beyond direct aid, including compliance training on the laws of armed conflict, is considered to be a ‘legitimate purpose’ for entering, or remaining in, a declared area.67
9.110
The Committee does not consider that the proposed offence is intended to impact on legitimate humanitarian work. The Committee recommends that this be made clear in the Bill by the provision of a defence in section 83.3 for those engaged in humanitarian work, including compliance training on the laws of armed conflict.

Recommendation 49

9.111
The Committee recommends that proposed section 83.3 (military style training involving foreign government) be amended to provide a defence against prosecution for those engaged in humanitarian work, including compliance training on the laws of armed conflict.
9.112
In relation to the intersection between the proposed offence of ‘interference with political rights and duties’ (section 83.4) and contempt of Parliament, the Committee notes that the Attorney-General’s Department and the Law Council of Australia agreed that nothing in the Bill affects the Parliament’s powers in relation to contempt. The Committee recommends that this matter be made clear in the Explanatory Memorandum.
9.113
The Committee notes that interference with political rights and duties using force of violence, intimidation or other threats is potentially a very serious matter. However, the Committee notes that no reasons are provided in the Explanatory Memorandum for the increase in maximum penalty from three years’ imprisonment under the existing offence to 10 years’ imprisonment under the revised offence.68 The Committee recommends that the Government reconsider whether this increase in penalty is necessary and proportionate.

Recommendation 50

9.114
The Committee recommends that the Government reduce the penalty for the offence of ‘interference with political rights and duties’ at proposed section 83.4 from 10 years’ imprisonment.

Recommendation 51

9.115
The Committee recommends that the Explanatory Memorandum be amended to clarify that nothing in the Bill affects the Parliament’s powers in relation to contempt.
9.116
In relation to the proposed offence for ‘damaging Commonwealth property’ at section 132.8A, the Committee notes that the offence largely uses similar elements to the existing offence in the Crimes Act, but is framed in accordance with the Criminal Code model. The Committee notes that, under this model, a person will not need to intend their conduct to result in damage to, or the destruction of, Commonwealth property to commit the offence. Rather, they will need to be reckless as to this outcome.

  • 1
    Explanatory Memorandum, p. 27.
  • 2
    Proposed section 80.1AB.
  • 3
    Law Council of Australia, Submission 5, p. 29.
  • 4
    Law Council of Australia, Submission 5, pp. 29-30 (emphasis in original).
  • 5
    Joint councils for civil liberties, Submission 31, p. 40.
  • 6
    Joint councils for civil liberties, Submission 31, p. 40; Law Council of Australia, Submission 5, p. 30.
  • 7
    Attorney-General’s Department, Submission 6.1, p. 6.
  • 8
    Explanatory Memorandum, p. 31.
  • 9
    Attorney-General’s Department, Submission 6.1, p. 86.
  • 10
    Explanatory Memorandum, p. 32.
  • 11
    Attorney-General’s Department, Submission 6.1, p. 87.
  • 12
    Law Council of Australia, Submission 5, p. 30.
  • 13
    Attorney-General’s Department, Submission 6.1, pp. 6 - 7.
  • 14
    Law Council of Australia, Submission 5, p. 30.
  • 15
    Attorney-General’s Department, Submission 6.1, p. 7.
  • 16
    Attorney-General’s Department, Submission 6.1, p. 7.
  • 17
    9.1The relevant provision is subsection 33(3) “Power to make instrument includes power to vary or revoke etc. instrument” Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
  • 18
    Law Council of Australia, Submission 5, p. 30.
  • 19
    Section 12(2) of the Legislation Act 2013 provides that a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result: (a) the person’s rights as at that day would be affected so as to disadvantage the person; or b) liabilities would be imposed on the person in respect of anything done or omitted to be done before that day.
  • 20
    Explanatory Memorandum, p. 34.
  • 21
    Explanatory Memorandum, p. 34.
  • 22
    Attorney-General’s Department, Submission 6.1, p. 87.
  • 23
    Explanatory Memorandum, p. 35.
  • 24
    See Patrick Emerton quoted in Australian Law Reform Council, Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104), tabled 13 December 2006, p. 189.
  • 25
    Australian Law Reform Council, Fighting Words: A Review of Sedition Laws in Australia (ALRC Report 104), tabled 13 December 2006, p. 188.
  • 26
    Attorney-General’s Department, Submission 6.1, pp. 87 -88.
  • 27
    Law Council of Australia, Submission 5, p. 31.
  • 28
    Attorney-General’s Department, Submission 6.1, p. 7.
  • 29
    Proposed section 83.1(2).
  • 30
    Explanatory Memorandum, p. 78.
  • 31
    Explanatory Memorandum, p. 76.
  • 32
    Valerie Heath, Submission 14, p. 1.
  • 33
    Law Council of Australia, Submission 5, p. 39.
  • 34
    Dr David Neal SC, Member, National Criminal Law Committee, Law Council of Australia, Committee Hansard, Melbourne, 16 March 2018, p. 11.
  • 35
    Law Council of Australia, Submission 5, p. 39.
  • 36
    Attorney-General’s Department, Submission 6.1, p. 10.
  • 37
    Explanatory Memorandum, p. 84.
  • 38
    Proposed section 83.3.
  • 39
    Explanatory Memorandum, p. 84.
  • 40
    Proposed paragraphs 83.3(2) and 83.3(3)–(4).
  • 41
    Law Council of Australia, Submission 5, p. 42.
  • 42
    Law Council of Australia, Submission 5, p. 42.
  • 43
    Attorney-General’s Department, Submission 6.1, p. 11.
  • 44
    See Law Council of Australia, Submission 5, pp. 41-42 and International Committee of the Red Cross and the Australian Red Cross, Submission 21.
  • 45
    International Committee of the Red Cross and the Australian Red Cross, Submission 21, p. 3.
  • 46
    Law Council of Australia, Submission 5, pp. 41-42.
  • 47
    International Committee of the Red Cross and the Australian Red Cross, Submission 21, p. 3.
  • 48
    The existing offence of ‘unlawful drilling’ under section 27 the Crimes Act 1914 carries a maximum penalty of imprisonment for 5 years for a person who ‘trains or drills any other person to the use of arms or the practice of military exercises, movements, or evolutions’ in contravention of the directions of a proclamation, or is ‘present at any meeting or assembly of persons’ for the purpose of such training or drilling. The maximum penalty is imprisonment for 2 years for a person who is trained or drilled at such a meeting or assembly.
  • 49
    Explanatory Memorandum, p. 88.
  • 50
    Explanatory Memorandum, p. 88.
  • 51
    Crimes Act 1914, s. 28.
  • 52
    Law Council of Australia, Submission 5, p. 43.
  • 53
    Law Council of Australia, Submission 5, pp. 43-44.
  • 54
    Attorney-General’s Department, Submission 6.1, p. 12.
  • 55
    Law Council of Australia, Submission 5, p. 44.
  • 56
    Explanatory Memorandum, p. 93.
  • 57
    Explanatory Memorandum, p. 93. Item 5 amends subsection 80.3(1) of the Criminal Code to insert the words ‘and section 83.4’ after the words ‘Subdivisions B and C’. The effect of this amendment is to apply the defence for acts done in good faith in section 80.3 to the new offence of ‘Interference with political rights and duties’ in new section 83.4.
  • 58
    Explanatory Memorandum, p. 208.
  • 59
    Section 15.4 of the Criminal Code provides ‘If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
    a.
    whether or not the conduct constituting the alleged offence occurs in Australia, and
    b.
    whether or not a result of the conduct constituting the alleged offence occurs in Australia.
  • 60
    Explanatory Memorandum, p. 210.
  • 61
    Law Council of Australia, Submission 5, p. 54.
  • 62
    Explanatory Memorandum, p. 210.
  • 63
    Criminal Code, section 80.2C(3) (emphasis in original)
  • 64
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, October 2014, p. 39.
  • 65
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, October 2014, p. 43.
  • 66
    Parliamentary Joint Committee on Intelligence and Security, Review of the 'declared area' provisions: Sections 119.2 and 119.3 of the Criminal Code, p. 38.
  • 67
    Parliamentary Joint Committee on Intelligence and Security, Review of the 'declared area' provisions: Sections 119.2 and 119.3 of the Criminal Code, p. 38.
  • 68
    Explanatory Memorandum, p. 93.

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