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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Counter-Terrorism Legislation
Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(Attorney-General)
A Bill for an Act to amend the
Criminal Code Act
1995
, and for other purposes
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1
--
Prohibited symbols
3
Crimes Act 1914
3
Criminal Code Act 1995
3
Schedule 2
--
Use of carriage service for violent extremist
material
19
Crimes Act 1914
19
Criminal Code Act 1995
19
Schedule 3
--
Advocating terrorism
25
Criminal Code Act 1995
25
Schedule 4
--
Terrorist organisation regulations
26
Part 1
--
Sunsetting
26
Criminal Code Act 1995
26
Legislation (Exemptions and Other Matters) Regulation 2015
26
Part 2
--
De-listing declarations
27
Criminal Code Act 1995
27
Part 3
--
De-listing applications
28
Criminal Code Act 1995
28
Part 4
--
Reviews
29
Criminal Code Act 1995
29
Part 5
--
Application provisions
31
Criminal Code Act 1995
31
Schedule 5
--
Other measures
33
Criminal Code Act 1995
33
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
1
A Bill for an Act to amend the
Criminal Code Act
1
1995
, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Counter-Terrorism Legislation Amendment
5
(Prohibited Hate Symbols and Other Measures) Act 2023
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
The 28th day after this Act receives the
Royal Assent.
3. Schedule 3,
item 1
The day after this Act receives the Royal
Assent.
4. Schedule 3,
item 2
The 28th day after this Act receives the
Royal Assent.
5. Schedules 4
and 5
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Note:
The provisions of the
Legislation (Exemptions and Other Matters)
12
Regulation 2015
amended or inserted by this Act, and any other
13
provisions of those regulations, may be amended or repealed by
14
regulations made under section 62 of the
Legislation Act 2003
(see
15
subsection 13(5) of that Act).
16
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
3
Schedule
1--Prohibited symbols
1
2
Crimes Act 1914
3
1 Paragraph 4J(7)(b)
4
After "
Division 8
0", insert "(other than Subdivision CA)".
5
2 Paragraphs 15AA(2)(c) and (d)
6
After "
Division 80
", insert "
(other than Subdivision CA)
".
7
3 Paragraph 19AG(1)(c)
8
After "
Division 8
0", insert "(other than Subdivision CA)".
9
Criminal Code Act 1995
10
4 Division 80 of the
Criminal Code
(heading)
11
Omit "
and advocating terrorism or genocide
", substitute "
,
12
advocating terrorism or genocide, and prohibited symbols
".
13
5 After Subdivision C of Division 80 of the
Criminal Code
14
Insert:
15
Subdivision CA
--
Publicly displaying, and trading in,
16
prohibited symbols
17
80.2E Meaning of
prohibited symbol
18
Each of the following is a
prohibited symbol
:
19
(a) the Islamic State flag;
20
(b) the Nazi hakenkreuz;
21
(c) the Nazi double-sig rune;
22
(d) something that so nearly resembles a thing to which
23
paragraph (a), (b) or (c) applies that it is likely to be confused
24
with, or mistaken for, that thing.
25
Schedule 1
Prohibited symbols
4
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
80.2F Meaning of
displayed in a public place
1
(1) A thing is
displayed in a public place
if it is capable of being seen
2
by a member of the public who is in a public place (whether or not
3
the thing is actually so seen by a member of the public).
4
(2) A thing is also
displayed in a public place
if it is included in:
5
(a) a document (including, for example, a newspaper, magazine,
6
program, leaflet or ticket); or
7
(b) a film, video or television program;
8
that is available, or distributed, to the public or a section of the
9
public.
10
(3) A thing is also
displayed in a public place
if it is included in a
11
document, film, video or television program that is available, or
12
distributed to, the public or a section of the public by means of a
13
telegraphic, telephonic or other like service within the meaning of
14
paragraph 51(v) of the Constitution including, for example, by
15
means of the internet.
16
Example: If a thing is included in a document that is available to the public or a
17
section of the public on a website, then the thing is displayed in a
18
public place under this subsection.
19
(4) In this section,
available
or
distributed
includes available or
20
distributed as of right or by invitation, whether express or implied,
21
and whether or not a charge is made for availability or distribution.
22
80.2G Meaning of
trades
23
(1) For the purposes of this Subdivision, a person
trades
in goods if:
24
(a) the person sells the goods; or
25
(b) the person prepares the goods for supply with the intention of
26
selling the goods or believing that another person intends to
27
sell the goods; or
28
(c) the person transports the goods with the intention of selling
29
the goods or believing that another person intends to sell the
30
goods; or
31
(d) the person guards or conceals the goods with the intention of
32
selling the goods or assisting another person to sell the
33
goods; or
34
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
5
(e) the person possesses the goods with the intention of selling
1
the goods.
2
(2) For the purposes of paragraph (1)(b) and section 80.2J, preparing
3
goods for supply includes packaging the goods or separating the
4
goods into discrete units.
5
(3) This section and section 80.2J apply in relation to leasing out or
6
renting out (or agreeing to lease out or rent out) in the same way as
7
they apply in relation to selling.
8
(4) In this section and section 80.2J:
9
conceal
goods includes conceal or disguise:
10
(a) the nature, source or location of the goods; or
11
(b) any movement of the goods; or
12
(c) the rights of any person with respect to the goods; or
13
(d) the identity of any owner of the goods.
14
possession
of goods includes the following:
15
(a) receiving or obtaining possession of the goods;
16
(b) having control over the disposition of the goods (whether or
17
not the goods are in the custody of the person);
18
(c) having joint possession of the goods.
19
sell
includes the following:
20
(a) barter or exchange;
21
(b) agree to sell.
22
supply
includes the following:
23
(a) supply, whether or not by way of sale;
24
(b) agree to supply.
25
transport
includes deliver.
26
80.2H Public display of prohibited symbols
27
(1) A person commits an offence if:
28
(a) the person causes a thing to be displayed in a public place;
29
and
30
(b) the thing is a prohibited symbol; and
31
Schedule 1
Prohibited symbols
6
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(c) subsection (3), (4) or (7) applies; and
1
(d) subsection (9) does not apply.
2
Note:
For defences, see subsection (10).
3
Penalty: Imprisonment for 12 months.
4
(2) Absolute liability applies to paragraphs (1)(c) and (d).
5
(3) For the purposes of paragraph (1)(c), this subsection applies if a
6
reasonable person would consider that the conduct mentioned in
7
paragraph (1)(a):
8
(a) involves dissemination of ideas based on racial superiority or
9
racial hatred; or
10
(b) could incite another person or a group of persons to offend,
11
insult, humiliate or intimidate:
12
(i) a person (the
targeted person
) because of the race of the
13
targeted person; or
14
(ii) the members of a group of persons (the
targeted group
)
15
because of the race of some or all of the members of the
16
targeted group.
17
Note:
The object of this subsection is to give further effect to Article 4 of the
18
International Convention on the Elimination of All Forms of Racial
19
Discrimination, done at New York on 21 December 1965. The
20
Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS
21
40) and could in 2023 be viewed in the Australian Treaties Library on
22
the AustLII website (http://www.austlii.edu.au).
23
(4) For the purposes of paragraph (1)(c), this subsection applies if a
24
reasonable person would consider that the conduct mentioned in
25
paragraph (1)(a) involves advocacy that:
26
(a) is advocacy of hatred of:
27
(i) a group of persons distinguished by race, religion or
28
nationality (a
targeted group
); or
29
(ii) a member of a targeted group; and
30
(b) constitutes incitement of another person or group of persons
31
to offend, insult, humiliate, intimidate or use force or
32
violence against:
33
(i) the targeted group; or
34
(ii) a member of the targeted group.
35
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
7
Note:
The object of this subsection is to give further effect to article 20 of
1
the Covenant.
2
(5) For the purposes of paragraph (4)(a), it does not matter whether the
3
conduct actually results in the hatred mentioned in that paragraph.
4
(6) For the purposes of paragraph (4)(b), it does not matter whether the
5
conduct actually incites another person as mentioned in that
6
paragraph.
7
(7) For the purposes of paragraph (1)(c), this subsection applies if the
8
conduct mentioned in paragraph (1)(a) is likely to offend, insult,
9
humiliate or intimidate a person who is:
10
(a) a reasonable person; and
11
(b) a member of a group of persons distinguished by race,
12
colour, sex, language, religion, political or other opinion or
13
national or social origin;
14
because of the reasonable person's membership of that group
.
15
Note:
The object of this subsection is to give further effect to article 26 of
16
the Covenant.
17
(8) For the purposes of subsection (7), it does not matter whether a
18
member of the group sees the thing while it is displayed in a public
19
place.
20
(9) For the purposes of paragraph (1)(d), this subsection applies if a
21
reasonable person would consider that:
22
(a) the conduct mentioned in paragraph (1)(a) is engaged in for a
23
purpose that is:
24
(i) a religious, academic, educational, artistic, literary or
25
scientific purpose; and
26
(ii) not contrary to the public interest; or
27
(b) the conduct mentioned in paragraph (1)(a) is engaged in for
28
the purposes of making a news report, or a current affairs
29
report, that:
30
(i) is in the public interest; and
31
(ii) is made by a person working in a professional capacity
32
as a journalist.
33
Schedule 1
Prohibited symbols
8
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
Defences
1
(10) Subsection (1) does not apply to a person engaging in conduct
2
mentioned in paragraph (1)(a) if:
3
(a) engaging in the conduct is necessary for enforcing a law of:
4
(i) the Commonwealth; or
5
(ii) a State; or
6
(iii) a Territory; or
7
(iv) a foreign country; or
8
(v) a part of a foreign country; or
9
(b) engaging in the conduct is necessary for monitoring
10
compliance with, or investigating a contravention of, a law
11
of:
12
(i) the Commonwealth; or
13
(ii) a State; or
14
(iii) a Territory; or
15
(iv) a foreign country; or
16
(v) a part of a foreign country; or
17
(c) the person engages in the conduct for the purposes of
18
proceedings in a court or tribunal; or
19
(d) both:
20
(i) the person engages in the conduct in connection with
21
the performance by a public official of the official's
22
duties or functions; and
23
(ii) engaging in the conduct is reasonable in the
24
circumstances for the purpose of the public official
25
performing that duty or function; or
26
(e) both:
27
(i) the person engages in the conduct in connection with an
28
individual assisting a public official in relation to the
29
perform
ance of the public official's duties or functions;
30
and
31
(ii) engaging in the conduct is reasonable in the
32
circumstances for the purpose of the individual assisting
33
the public official in relation to the performance of the
34
public official's duties or functi
ons; or
35
(f) in the case of conduct that involves displaying in public:
36
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
9
(i) the Islamic State flag; or
1
(ii) something that so nearly resembles the Islamic State
2
flag that it is likely to be confused with, or mistaken for,
3
the Islamic State flag;
4
the person genuinely engages in the conduct for the purpose
5
of opposing global jihadist ideology or a related ideology; or
6
(g) in the case of conduct that involves displaying in public:
7
(i) the Nazi hakenkreuz; or
8
(ii) the Nazi double-sig rune; or
9
(iii) something that so nearly resembles a thing to which
10
subparagraph (i) or (ii) applies that it is likely to be
11
confused with, or mistaken for, that thing;
12
the person genuinely engages in the conduct for the purpose
13
of opposing Nazi ideology, fascism or a related ideology.
14
Note:
A defendant bears an evidential burden in relation to the matters in
15
this subsection (see subsection 13.3(3)).
16
Functions
17
(11) The references in this section to function or functions do not, by
18
implication, affect the meaning of the expressions duty or duties
19
when used in any other provision of this Code.
20
80.2J Trading in prohibited symbols
21
(1) A person commits an offence if:
22
(a) the person trades in goods; and
23
(b) the goods depict or contain a prohibited symbol; and
24
(c) the person knows that, or is reckless as to whether, the
25
prohibited symbol is associated with Nazi ideology or global
26
jihadist ideology; and
27
(d) subsection (3) applies; and
28
(e) subsections (4) and (5) do not apply.
29
Note:
For defences, see subsections (6) to (8).
30
Penalty: Imprisonment for 12 months.
31
(2) Absolute liability applies to paragraphs (1)(d) and (e).
32
Schedule 1
Prohibited symbols
10
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
Jurisdictional requirements
1
(3) For the purposes of paragraph (1)(d), this subsection applies if:
2
(a) the trading occurs to any extent outside Australia; or
3
(b) the trading involves transportation across State borders,
4
either for reward or in connection with a commercial
5
arrangement; or
6
(c) the trading occurs within a Territory or involves
7
transportation to or from a Territory; or
8
(d) the trading is engaged in by, or on behalf of, a constitutional
9
corporation; or
10
(e) some of the trading is engaged in by communication using a
11
postal, telegraphic, telephonic or other like service within the
12
meaning of paragraph 51(v) of the Constitution; or
13
(f) the trading:
14
(i) occurs to any extent at a Commonwealth place; or
15
(ii) involves transportation to or from a Commonwealth
16
place; or
17
(g) the person is an alien; or
18
(h) the trading involves the person:
19
(i) selling the goods to an alien; or
20
(ii) preparing the goods for supply with the intention of
21
selling them to an alien or believing that another person
22
intends to sell them to an alien or believing that an alien
23
intends to sell them; or
24
(iii) transporting the goods with the intention of selling them
25
to an alien or believing that another person intends to
26
sell them to an alien or believing that an alien intends to
27
sell them; or
28
(iv) guarding or concealing the goods with the intention of
29
selling them to an alien or with the intention of assisting
30
another person to sell them to an alien or with the
31
intention of assisting an alien to sell them; or
32
(v) possessing the goods with the intention of selling them
33
to an alien.
34
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
11
Other matters
1
(4) For the purposes of paragraph (1)(e), this subsection applies if a
2
reasonable person would consider that:
3
(a) the goods that are traded are intended to serve a religious,
4
academic, educational, artistic, literary or scientific purpose;
5
and
6
(b)
the person's trading in the goods is not contrary to the publi
c
7
interest.
8
(5) For the purposes of paragraph (1)(e), this subsection applies if:
9
(a) the goods that are traded contain one or more news reports or
10
current affairs reports; and
11
(b) each prohibited symbol that the goods depict or contain
12
appears in such a report and only appears in such a report;
13
and
14
(c) in relation to each such report in which a prohibited symbol
15
appears
--
a reasonable person would consider that:
16
(i) the report was made by a person working in a
17
professional capacity as a journalist; and
18
(ii) disseminating the report is in the public interest.
19
Defences
20
(6) Subsection
(1) does not apply to a person's trading in goods if:
21
(a) the goods that are traded contain commentary on public
22
affairs; and
23
(b) each prohibited symbol that the goods depict or contain
24
appears in the commentary and only appears in the
25
commentary; and
26
(c) in relation to commentary in which a prohibited symbol
27
appears
--
making the commentary is in the public interest.
28
Note:
A defendant bears an evidential burden in relation to the matters in
29
this subsection (see subsection 13.3(3)).
30
(7) Subsection
(1) does not apply to a person's trading in goods if th
e
31
trading is necessary for or of assistance in:
32
(a) enforcing a law of the Commonwealth, a State or Territory,
33
or a foreign country; or
34
Schedule 1
Prohibited symbols
12
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(b) monitoring compliance with, or investigating a contravention
1
of, a law of the Commonwealth, a State or Territory, or a
2
foreign country; or
3
(c) the administration of justice (whether within or outside
4
Australia).
5
Note:
A defendant bears an evidential burden in relation to the matters in
6
this subsection (see subsection 13.3(3)).
7
(8) Subsection
(1) does not apply to a person's trading in goods if:
8
(a) both:
9
(i) the trading is in connection with the performance by a
10
public official of the o
fficial's duties or functions; and
11
(ii) the trading is reasonable in the circumstances for the
12
purpose of the public official performing that duty or
13
function; or
14
(b) both:
15
(i) the trading is in connection with an individual assisting
16
a public official in relation to the performance of the
17
public official's duties or functions; and
18
(ii) the trading is reasonable in the circumstances for the
19
purpose of the individual assisting the public official in
20
relation to the performance of the public official's du
ties
21
or functions.
22
Note:
A defendant bears an evidential burden in relation to the matters in
23
this subsection (see subsection 13.3(3)).
24
Interpretation
25
(9) The references in this section to function or functions do not, by
26
implication, affect the meaning of the expressions duty or duties
27
when used in any other provision of this Code.
28
(10) In this section,
Commonwealth place
has the same meaning as in
29
the
Commonwealth Places (Application of Laws) Act 1970
.
30
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
13
80.2K Directions to cease display of prohibited symbols in public
1
Directions
2
(1) A police officer may, in accordance with section 80.2L, direct a
3
person to cause a prohibited symbol to cease to be displayed in a
4
public place if:
5
(a) the prohibited symbol is displayed in a public place as
6
mentioned in subsection 80.2F(1) (other than by being made
7
available on the internet); and
8
(b) subsection (2), (3) or (6) of this section applies.
9
Circumstances in which direction may be given
10
(2) For the purposes of paragraph (1)(b), this subsection applies if the
11
police officer reasonably suspects that the display in a public place
12
mentioned in paragraph (1)(a):
13
(a) involves dissemination of ideas based on racial superiority or
14
racial hatred; or
15
(b) could incite another person or a group of persons to offend,
16
insult, humiliate or intimidate:
17
(i) a person (the
targeted person
) because of the race of the
18
targeted person; or
19
(ii) the members of a group of persons (the
targeted group
)
20
because of the race of some or all of the members of the
21
targeted group.
22
Note:
The object of this subsection is to give further effect to Article 4 of the
23
International Convention on the Elimination of All Forms of Racial
24
Discrimination, done at New York on 21 December 1965. The
25
Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS
26
40) and could in 2023 be viewed in the Australian Treaties Library on
27
the AustLII website (http://www.austlii.edu.au).
28
(3) For the purposes of paragraph (1)(b), this subsection applies if the
29
police officer reasonably suspects that the display in a public place
30
mentioned in paragraph (1)(a) involves advocacy that:
31
(a) is advocacy of hatred of:
32
(i) a group of persons distinguished by race, religion or
33
nationality (a
targeted group
); or
34
(ii) a member of a targeted group; and
35
Schedule 1
Prohibited symbols
14
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(b) constitutes incitement of another person or group of persons
1
to offend, insult, humiliate, intimidate or use force or
2
violence against:
3
(i) the targeted group; or
4
(ii) a member of the targeted group.
5
Note:
The object of this subsection is to give further effect to article 20 of
6
the Covenant.
7
(4) For the purposes of paragraph (3)(a), it does not matter whether the
8
conduct actually results in the hatred mentioned in that paragraph.
9
(5) For the purposes of paragraph (3)(b), it does not matter whether the
10
conduct actually incites another person as mentioned in that
11
paragraph.
12
(6) For the purposes of paragraph (1)(b), this subsection applies if the
13
police officer reasonably suspects that the display in a public place
14
mentioned in paragraph (1)(a) is likely to offend, insult, humiliate
15
or intimidate a person who is:
16
(a) a reasonable person; and
17
(b) a member of a group of persons distinguished by race,
18
colour, sex, language, religion, political or other opinion or
19
national or social origin;
20
because of the reasonable person's
membership of that group.
21
Note:
The object of this subsection is to give further effect to article 26 of
22
the Covenant.
23
(7) For the purposes of subsection (6), it does not matter whether a
24
member of the group sees the prohibited symbol while it is
25
displayed in a public place.
26
Time by which direction must be complied with
27
(8) A direction given under subsection (1) must specify the time by
28
which the prohibited symbol must cease to be displayed in a public
29
place. The time must be reasonable.
30
Definitions
31
(9) In this section:
32
police officer
means:
33
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
15
(a) a member of the Australian Federal Police (within the
1
meaning of the
Australian Federal Police Act 1979
); or
2
(b) a special member of the Australian Federal Police (within the
3
meaning of that Act); or
4
(c) a member (however described) of a police force of a State or
5
Territory.
6
80.2L Directions to cease display of prohibited symbols in public
--
7
person to whom, and form in which, direction may be
8
given
9
(1) A police officer may give a direction to cause a prohibited symbol
10
to cease to be displayed in a public place under
11
subsection 80.2K(1) only in accordance with subsection (2), (3) or
12
(4) of this section.
13
(2) The direction may be given to a person, either orally or in writing,
14
if the police officer suspects on reasonable grounds that:
15
(a) one or more of the following is satisfied:
16
(i) the person caused the prohibited symbol to be displayed
17
in a public place;
18
(ii) the person is an owner or an occupier of land or
19
premises on, at or from which the prohibited symbol is
20
displayed in a public place;
21
(iii) the person is an owner or an occupant of an aircraft,
22
vehicle or vessel on or from which the prohibited
23
symbol is displayed in a public place; and
24
(b) there are steps the person can take to cause the prohibited
25
symbol to cease to be displayed in a public place.
26
(3) The direction may also be given in writing by being left on or at
27
land or premises on, at or from which the prohibited symbol is
28
displayed in a public place. In this case, the direction is taken to
29
have been given to each person who is an owner or occupier of the
30
land or premises at the time the direction is given.
31
(4) The direction may also be given in writing by being affixed or
32
placed in a conspicuous manner on an aircraft, vehicle or vessel on
33
or from which the prohibited symbol is displayed in a public place.
34
In this case, the direction is taken to have been given to each
35
Schedule 1
Prohibited symbols
16
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
person who is an owner of the aircraft, vehicle or vessel at the time
1
the direction is given.
2
80.2M Directions to cease display of prohibited symbols in public
--
3
offence
4
Offence
5
(1) A person commits an offence if:
6
(a) the person is given a direction under subsection 80.2K(1);
7
and
8
(b) the prohibited symbol specified in the direction does not
9
cease to be displayed in a public place before the time
10
specified in the direction under subsection 80.2K(8).
11
Penalty: 20 penalty units.
12
(2) Strict liability applies to paragraph (1)(b).
13
Defences
14
(3) Subsection (1) does not apply if:
15
(a) the conduct that caused the prohibited symbol to be displayed
16
in a public place was genuinely engaged in for a purpose that
17
is:
18
(i) a religious, academic, educational, artistic, literary or
19
scientific purpose; and
20
(ii) not contrary to the public interest; or
21
(b) the conduct that caused the prohibited symbol to be displayed
22
in a public place was engaged in for the purposes of making a
23
news report, or a current affairs report, that is:
24
(i) in the public interest; and
25
(ii) made by a person working in a professional capacity as
26
a journalist; or
27
(c) any of paragraphs 80.2H(10)(a) to (g) applied to the person
28
engaging in the conduct that caused the prohibited symbol to
29
be displayed in a public place.
30
Note:
A defendant bears an evidential burden in relation to the matters in
31
this subsection (see subsection 13.3(3)).
32
Prohibited symbols
Schedule 1
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
17
(4) For the purposes of paragraphs (3)(a), (b) and (c), it does not
1
matter whether the conduct referred to in those paragraphs was
2
conduct of the person who is given the direction as mentioned in
3
paragraph (1)(a).
4
(5) Subsection (1) does not apply if:
5
(a) both:
6
(i) the person (the
recipient
)
who is given the direction did
7
not cause the prohibited symbol to be displayed in a
8
public place; and
9
(ii) when the direction is given, the recipient is not an
10
owner or an occupier of land or premises on, at or from
11
which the prohibited symbol is displayed in a public
12
place, or an owner of an aircraft, vehicle or vessel on or
13
from which the prohibited symbol is displayed in a
14
public place; or
15
(b) either the person (the
recipient
)
who is given the direction
16
takes all reasonable steps to cause the prohibited symbol to
17
cease to be displayed in a public place, or there are no such
18
steps that the recipient can take.
19
Note:
A defendant bears an evidential burden in relation to the matters in
20
this subsection (see subsection 13.3(3)).
21
6 Subsection 80.4(2) of the
Criminal Code
22
Repeal the subsection, substitute:
23
(2) Section 15.2 (extended geographical jurisdiction
--
category B)
24
applies to an offence against:
25
(a) section 80.1AC; or
26
(b) subsection 80.2A(2); or
27
(c) subsection 80.2B(2); or
28
(d) subsection 80.2C(1); or
29
(e) subsection 80.2H(1); or
30
(f) subsection 80.2J(1); or
31
(g) subsection 80.2M(1).
32
7 Dictionary in the
Criminal Code
33
Insert:
34
Schedule 1
Prohibited symbols
18
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
displayed in a public place
has the meaning given by
1
section 80.2F.
2
prohibited symbol
has the meaning given by section 80.2E.
3
public place
includes any place to which the public, or a section of
4
the public, have access as of right or by invitation, whether express
5
or implied, and whether or not a charge is made for admission to
6
the place.
7
8 Transitional provision
8
For the purposes of Subdivision CA of Division 80 of the
Criminal
9
Code
, if:
10
(a) a person caused a thing to be displayed in a public place
11
before the commencement of this item; and
12
(b) on that commencement, the thing had not ceased to be
13
displayed in a public place;
14
the person is taken to cause, on that commencement, the thing to be
15
displayed in a public place.
16
Use of carriage service for violent extremist material
Schedule 2
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
19
Schedule
2--Use of carriage service for
1
violent extremist material
2
3
Crimes Act 1914
4
1 Subsection 3(1) (after paragraph (b) of the definition of
5
terrorism offence
)
6
Insert:
7
(ba) an offence against Subdivision HA of Division 474 of the
8
Criminal Code
; or
9
2 At the end of subsection 15GE(3)
10
Add:
11
; (f) Subdivision HA of Division 474 (Use of carriage service for
12
violent extremist material).
13
Criminal Code Act 1995
14
3 After Subdivision H of Division 474 of the
Criminal Code
15
Insert:
16
Subdivision HA
--
Offences relating to use of carriage service
17
for violent extremist material
18
474.45A Meaning of
violent extremist material
19
(1) Material is
violent extremist material
if:
20
(a) the material:
21
(i) describes or depicts serious violence; or
22
(ii) provides instruction on engaging in serious violence; or
23
(iii) supports or facilitates serious violence; and
24
(b) a reasonable person would consider that, in all the
25
circumstances, the material is intended to directly or
26
indirectly advance a political, religious or ideological cause;
27
and
28
Schedule 2
Use of carriage service for violent extremist material
20
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(c) a reasonable person would consider that, in all the
1
circumstances, the material is intended to assist, encourage or
2
induce a person to:
3
(i) engage in, plan or prepare for an intimidatory act; or
4
(ii) do a thing that relates to engaging in, planning or
5
preparing for an intimidatory act; or
6
(iii) join or associate with an organisation that is directly
7
engaged in the doing of any intimidatory act, or that is
8
preparing, planning, assisting in or fostering the doing
9
of any intimidatory act.
10
(2) For the purposes of paragraph (1)(a),
serious violence
is action that
11
falls within subsection 100.1(2).
12
(3) An
intimidatory act
is a violent action, or threat of violent action,
13
where the action is done, or the threat is made, with the intention
14
of:
15
(a) coercing, or influencing by intimidation, the government of
16
the Commonwealth or a State, Territory or foreign country,
17
or of part of a State, Territory or foreign country; or
18
(b) intimidating the public or a section of the public.
19
(4) To avoid doubt:
20
(a) material may be intended to do a thing referred to in
21
paragraph (1)(b) or (c) even if the material is also intended,
22
or mainly intended, to do one or more other things; and
23
(b) an action may be done, or a threat may be made, with an
24
intention referred to in subsection (3) even if that intention is
25
not the only intention, or the main intention, with which the
26
action is done or the threat is made.
27
(5) Material is also
violent extremist material
if:
28
(a) it is reasonable to consider the material together with other
29
material; and
30
(b) were all of the material to be taken to be a single item of
31
material, it would constitute violent extremist material under
32
subsection (1).
33
Use of carriage service for violent extremist material
Schedule 2
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
21
474.45B Using a carriage service for violent extremist material
1
(1) A person commits an offence if:
2
(a) the person:
3
(i) accesses material; or
4
(ii) causes material, or an electronic link that can be used to
5
access material, to be transmitted to the person; or
6
(iii) transmits, makes available, publishes, distributes,
7
advertises or promotes material or an electronic link that
8
can be used to access material; or
9
(iv) solicits material or an electronic link that can be used to
10
access material; and
11
(b) the person does so using a carriage service; and
12
(c) the material is violent extremist material.
13
Penalty: Imprisonment for 5 years.
14
(2) To avoid doubt, the following are the fault elements for the
15
physical elements of an offence against subsection (1):
16
(a) intention is the fault element for the conduct referred to in
17
paragraph (1)(a);
18
(b) recklessness is the fault element for the circumstance referred
19
to in paragraph (1)(c).
20
(3) Absolute liability applies to paragraph (1)(b).
21
474.45C Possessing or controlling violent extremist material
22
obtained or accessed using a carriage service
23
(1) A person commits an offence if:
24
(a) the person has possession or control of material; and
25
(b) the material is in the form of data held in a computer or
26
contained in a data storage device; and
27
(c) the person used a carriage service to obtain or access the
28
material; and
29
(d) the material is violent extremist material.
30
Penalty: Imprisonment for 5 years.
31
Schedule 2
Use of carriage service for violent extremist material
22
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(2) To avoid doubt, the following are the fault elements for the
1
physical elements of an offence against subsection (1):
2
(a) intention is the fault element for the conduct referred to in
3
paragraph (1)(a);
4
(b) recklessness is the fault element for the circumstance referred
5
to in paragraph (1)(d).
6
(3) Strict liability applies to paragraph (1)(b).
7
(4) Absolute liability applies to paragraph (1)(c).
8
(5) If the prosecution proves beyond reasonable doubt the matters
9
mentioned in paragraphs (1)(a), (b) and (d), then it is presumed,
10
unless the person proves to the contrary, that the person:
11
(a) obtained or accessed the material; and
12
(b) used a carriage service to obtain or access the material.
13
Note:
A defendant bears a legal burden in relation to the matters in this
14
subsection: see section 13.4.
15
474.45D Defences in respect of violent extremist material
16
(1) Subsection 474.45B(1) or 474.45C(1) does not apply to engaging
17
in conduct in relation to material if:
18
(a) the conduct is necessary for enforcing a law of:
19
(i) the Commonwealth; or
20
(ii) a State; or
21
(iii) a Territory; or
22
(iv) a foreign country; or
23
(v) a part of a foreign country; or
24
(b) the conduct is necessary for monitoring compliance with, or
25
investigating a contravention of, a law of:
26
(i) the Commonwealth; or
27
(ii) a State; or
28
(iii) a Territory; or
29
(iv) a foreign country; or
30
(v) a part of a foreign country; or
31
(c) the conduct is for the purposes of proceedings in a court or
32
tribunal; or
33
Use of carriage service for violent extremist material
Schedule 2
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
23
(d) both:
1
(i) the conduct is necessary for, or of assistance in,
2
conducting scientific, medical, academic or historical
3
research; and
4
(ii) the conduct is reasonable in the circumstances for the
5
purpose of conducting that scientific, medical, academic
6
or historical research; or
7
(e) the material relates to a news report, or a current affairs
8
report, that:
9
(i) is in the public interest; and
10
(ii) is made by a person working in a professional capacity
11
as a journalist; or
12
(f) both:
13
(i) the conduct is in connection with the performance by a
14
public official of the official's duties or functions; and
15
(ii) the conduct is reasonable in the circumstances for the
16
purpose of the public official performing that duty or
17
function; or
18
(g) both:
19
(i) the conduct is in connection with an individual assisting
20
a public official in relation to the performance of the
21
public official's duties or functions; and
22
(ii) the conduct is reasonable in the circumstances for the
23
purpose of the individual assisting the public official in
24
relation to the performance of the public official's duties
25
or functions; or
26
(h) the conduct is for the purpose of advocating the lawful
27
procurement of a change to any matter established by law,
28
policy or practice in:
29
(i) the Commonwealth; or
30
(ii) a State; or
31
(iii) a Territory; or
32
(iv) a foreign country; or
33
(v) a part of a foreign country;
34
and the conduct is reasonable in the circumstances for that
35
purpose; or
36
Schedule 2
Use of carriage service for violent extremist material
24
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(i) the conduct relates to the development, performance,
1
exhibition or distribution, in good faith, of an artistic work.
2
Note:
A defendant bears an evidential burden in relation to the matters in
3
this subsection (see subsection 13.3(3)).
4
Functions
5
(2) The references in this section to function or functions do not, by
6
implication, affect the meaning of the expressions duty or duties
7
when used in any other provision of this Code.
8
474.45E Consent to commencement of proceedings where defendant
9
under 18
10
(1) Proceedings for an offence against this Subdivision must not be
11
commenced without the consent of the Attorney-General if the
12
defendant was under 18 at the time the defendant allegedly
13
engaged in the conduct constituting the offence.
14
(2) However, a person may be arrested for, charged with, or remanded
15
in custody or on bail in connection with, such an offence before the
16
necessary consent has been given.
17
4 Subsections 475.1A(1) and (2) of the
Criminal Code
18
After "G", insert ", HA".
19
5 Dictionary in the
Criminal Code
20
Insert:
21
intimidatory act
has the meaning given by subsection 474.45A(3).
22
violent extremist material
has the meaning given by
23
section 474.45A.
24
6 Transitional provision
25
For the purposes of paragraph 474.45C(1)(c) of the
Criminal Code
, it
26
does not matter whether the person obtained or accessed the material
27
before, on or after the commencement of this item.
28
Advocating terrorism
Schedule 3
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
25
Schedule
3--Advocating terrorism
1
2
Criminal Code Act 1995
3
1 Subsection 80.2C(1) of the
Criminal Code
(penalty)
4
Repeal the penalty, substitute:
5
Penalty:
6
(a) if subparagraph (a)(i) of this subsection applies
--
7
imprisonment for 7 years; or
8
(b) if subparagraph (a)(ii) of this subsection applies
--
9
imprisonment for 7 years or for the maximum term of
10
imprisonment for the terrorism offence advocated, whichever
11
is the lesser.
12
2 Subsection 80.2C(3) of the
Criminal Code
(definition of
13
advocates
)
14
Repeal the definition, substitute:
15
advocates
: a person
advocates
the doing of a terrorist act or the
16
commission of a terrorism offence if:
17
(a) the person counsels, promotes, encourages or urges the doing
18
of a terrorist act or the commission of a terrorism offence; or
19
(b) the person provides instruction on the doing of a terrorist act
20
or the commission of a terrorism offence; or
21
(c) the person praises the doing of a terrorist act or the
22
commission of a terrorism offence in circumstances where
23
there is a substantial risk that such praise might have the
24
effect of leading another person to engage in a terrorist act or
25
to commit a terrorism offence.
26
Schedule 4
Terrorist organisation regulations
Part 1
Sunsetting
26
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
Schedule
4--Terrorist organisation
1
regulations
2
Part
1--Sunsetting
3
Criminal Code Act 1995
4
1 Subsection 102.1(1) of the
Criminal Code
(paragraph (b) of
5
the definition of
terrorist organisation
)
6
Omit
"
(3)
", substitute "(2A)".
7
2 Subsection 102.1(1) of the
Criminal Code
(paragraph (b) of
8
the definition of
terrorist organisation
)
9
After "and (4)", insert "
and section 1
02.1AA"
.
10
3 Subsection 102.1(3) of the
Criminal Code
11
Repeal the subsection.
12
4 Subsection 102.1AA(3) of the
Criminal Code
13
Repeal the subsection, substitute:
14
(3) Amendment of regulations under subsection (2) does not prevent
15
the further amendment or repeal of the regulations by regulations
16
made under section 5 of this Act for the purposes of paragraph (b)
17
of the definition of
terrorist organisation
in subsection 102.1(1).
18
Legislation (Exemptions and Other Matters)
19
Regulation
2015
20
5 Section 12 (after table item 18B)
21
Insert:
22
23
18C
A regulation made solely for the purposes of paragraph (b) of the definition
of
terrorist organisation
in subsection 102.1(1) of the
Criminal Code
Terrorist organisation regulations
Schedule 4
De-listing declarations
Part 2
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
27
Part
2--De
-
listing declarations
1
Criminal Code Act 1995
2
6 Subsection 102.1(1) of the
Criminal Code
(paragraph (b) of
3
the definition of
terrorist organisation
)
4
Omit "(4)", substitute "(4B)".
5
7 Subsection 102.1(4) of the
Criminal Code
6
Omit "The regulations, to the extent to which they
specify the
7
organisation, cease to have effect when the declaration is made."
.
8
8 After subsection 102.1(4) of the
Criminal Code
9
Insert:
10
(4A) The declaration must specify the day on which the Minister ceased
11
to be so satisfied.
12
(4B) The regulations, to the extent to which they specify the
13
organisation, are taken to cease to have effect on the day specified
14
in the declaration under subsection (4A), even if that day occurred
15
before the day on which the declaration is made.
16
9 Subsection 102.1(5) of the
Criminal Code
17
Omit "
subsection (4) does
", substitute "
subsections (4) to (4B) do
".
18
Schedule 4
Terrorist organisation regulations
Part 3
De-listing applications
28
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
Part
3--De
-
listing applications
1
Criminal Code Act 1995
2
10 Subsection 102.1(17) of the
Criminal Code
3
Omit
"
(17) If
"
, substitute
"
(16) Subsection (17) applies if
"
.
4
11 At the end of paragraph 102.1(17)(c) of the
Criminal Code
5
Add
"
and
"
.
6
12 Subsection 102.1(17) of the
Criminal Code
7
Omit all the words after paragraph (c), substitute:
8
(d) the AFP Minister did not receive an application from any
9
individual or organisation under paragraph (b) of this
10
subsection in relation to the listed organisation during the 12
11
months ending when the AFP Minister receives the de-listing
12
application.
13
13 After subsection 102.1(17) of the
Criminal Code
14
Insert:
15
(17) The AFP Minister must, as soon as practicable after receiving the
16
de-listing application, consider whether the listed organisation:
17
(a) is directly or indirectly engaged in, preparing, planning,
18
assisting in or fostering the doing of a terrorist act; or
19
(b) advocates the doing of a terrorist act;
20
as the case requires.
21
Note:
If the AFP Minister ceases to be satisfied of either of these (as the case
22
requires), the AFP Minister must make a declaration under
23
subsection (4) in relation to the listed organisation.
24
14 Subsection 102.1(18) of the
Criminal Code
25
Omit
"
Subsection (17) does
"
, substitute
"
Subsections (16) and (17) do
"
.
26
Terrorist organisation regulations
Schedule 4
Reviews
Part 4
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
29
Part
4--Reviews
1
Criminal Code Act 1995
2
15 Subsection 102.1A(1) of the
Criminal Code
(heading)
3
Repeal the heading.
4
16 Subsection 102.1A(1) of the
Criminal Code
5
Omit "disallowable", substitute "legislative".
6
17 Subsection 102.1A(2) of the
Criminal Code
(heading)
7
Repeal the heading.
8
18 Paragraphs 102.1A(2)(a) and (b) of the
Criminal Code
9
Repeal the paragraphs, substitute:
10
(a) review the legislative instrument at any time; and
11
(b) report the Committee
'
s comments and recommendations to:
12
(i) each House of the Parliament; or
13
(ii) the AFP Minister.
14
19 Subsection 102.1A(3) of the
Criminal Code
(heading)
15
After "
disallowable
", insert "
legislative
".
16
20 Subsection 102.1A(3) of the
Criminal Code
17
After "disallowable"
(first occurring)
, insert "legislative".
18
21 Subsection 102.1A(3) of the
Criminal Code
19
After "Parliament", insert "under
subsection (
2)".
20
22 Subsection 102.1A(3) of the
Criminal Code
21
After "disallowable" (second occurring), insert "legislative".
22
23 Subsection 102.1A(4) of the
Criminal Code
23
After "disallowable" (wherever occurring), insert "legislative".
24
Schedule 4
Terrorist organisation regulations
Part 4
Reviews
30
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
24 Dictionary in the
Criminal Code
1
Insert:
2
disallowable legislative instrument
has the meaning given by the
3
Legislation Act 2003
.
4
Terrorist organisation regulations
Schedule 4
Application provisions
Part 5
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
31
Part
5--Application provisions
1
Criminal Code Act 1995
2
25 In the appropriate position in Division 106 of the
Criminal
3
Code
4
Insert:
5
106.12 Application provision for certain amendments in the
6
Counter-Terrorism Legislation Amendment (Prohibited
7
Hate Symbols and Other Measures) Act 2023
8
(1) The amendments made by Part 1 of Schedule 4 to the
9
Counter-Terrorism Legislation Amendment (Prohibited Hate
10
Symbols and Other Measures) Act 2023
apply in relation to:
11
(a) regulations made before the commencement of this section
12
that were not repealed, and did not cease to have effect,
13
before that commencement; or
14
(b) regulations made on or after that commencement.
15
(2) The amendments made by Part 2 of Schedule 4 to the
16
Counter-Terrorism Legislation Amendment (Prohibited Hate
17
Symbols and Other Measures) Act 2023
apply in relation to a
18
declaration made under subsection 102.1(4) of this Code on or
19
after the commencement of this section.
20
(3) The amendments made by Part 3 of Schedule 4 to the
21
Counter-Terrorism Legislation Amendment (Prohibited Hate
22
Symbols and Other Measures) Act 2023
apply in relation to a
23
de-listing application received on or after the commencement of
24
this section.
25
(4) A reference in paragraph 102.1(16)(d) of this Code to an
26
application made under paragraph (b) of subsection 102.1(16) is
27
taken to include a reference to an application made under
28
paragraph 102.1(17)(b) of this Code during the 12 months ending
29
immediately before the commencement of this section.
30
Schedule 4
Terrorist organisation regulations
Part 5
Application provisions
32
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
No. , 2023
(5) The amendments made by Part 4 of Schedule 4 to the
1
Counter-Terrorism Legislation Amendment (Prohibited Hate
2
Symbols and Other Measures) Act 2023
apply in relation to:
3
(a) a legislative instrument made before the commencement of
4
this section that was not repealed, and did not cease to have
5
effect, before that commencement; or
6
(b) a legislative instrument made on or after that
7
commencement.
8
Other measures
Schedule 5
No. , 2023
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols
and Other Measures) Bill 2023
33
Schedule
5--Other measures
1
2
Criminal Code Act 1995
3
1 Paragraph 271.11(f) of the
Criminal Code
4
Omit "for the purposes of paragraph
51(xix) of the Constitution".
5
2 Subparagraphs 474.37(1)(f)(ii) and (2)(f)(ii) of the
Criminal
6
Code
7
Before "performing", inser
t
"the public official".
8
3 Dictionary in the
Criminal Code
9
Insert:
10
alien
means a person who is an alien for the purposes of
11
paragraph 51(xix) of the Constitution.
12