Foreign Incursions and Recruitment

Given the number of conflicts occurring on the world stage and different affiliations/allegiances – it is not surprising that some people are tempted to travel and engage in hostile activities in a foreign State. However, if the person is an Australian Citizen or was ordinarily resident within Australia then they are committing a criminal offence. It also an offence to recruit persons to participate in same. Offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 are to be dealt with on indictment and require the written constant of the Attorney General before a prosecution is commenced. The relevant provisions are set out below.

CRIMES (FOREIGN INCURSIONS AND RECRUITMENT) ACT 1978 – SECT 6

(1) A person shall not:

(a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or

(b) engage in a hostile activity in a foreign State.

Penalty: Imprisonment for 20 years.

(2) A person shall not be taken to have committed an offence against this section unless:

(a) at the time of the doing of the act that is alleged to constitute the offence, the person:

(I) Was An Australian Citizen; Or

(Ii) Not Being An Australian Citizen, Was Ordinarily Resident In Australia; Or

(b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.

(3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;

(aa) engaging in armed hostilities in the foreign State;

(B) Causing By Force Or Violence The Public In The Foreign State To Be In Fear Of Suffering Death Or Personal Injury;

(i) is the head of state of the foreign State; or

(ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or

(D) Unlawfully Destroying Or Damaging Any Real Or Personal Property Belonging To The Government Of The Foreign State Or Of A Part Of The Foreign State.

(4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign State; or

(b) any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force.

(5) Paragraph (4)(a) does not apply if:

(a) a person enters a foreign State with intent to engage in a hostile activity in that foreign State while in or with an organisation; and

(b) the organisation is a prescribed organisation at the time of entry.

(6) Paragraph (4)(a) does not apply if:

(a) a person engages in a hostile activity in a foreign State while in or with an organisation; and

(b) the organisation is a prescribed organisation at the time when the person engages in that hostile activity.

(7) For the purposes of subsections (5) and (6), prescribed organisation means:

(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or

(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

(8) Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (7)(a), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:

(A) A Serious Violation Of Human Rights; Or

(b) armed hostilities against the Commonwealth or a foreign State allied or associated with the Commonwealth; or

(d) an act prejudicial to the security, defence or international relations of the Commonwealth.

CRIMES (FOREIGN INCURSIONS AND RECRUITMENT) ACT 1978 – SECT 7

(1) A person shall not, whether within or outside Australia:

(A) Do Any Act Preparatory To The Commission Of An Offence Against Section 6, Whether By That Person Or By Another Person;

(B) Accumulate, Stockpile Or Otherwise Keep Arms, Explosives, Munitions, Poisons Or Weapons With The Intention Of Committing An Offence Against Section 6, Whether By That Person Or By Another Person;

(c) train or drill or participate in training or drilling, or be present at a meeting or assembly of persons with intent to train or drill or to participate in training or drilling, any other person in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of preparing that other person to commit an offence against section 6;

(d) allow himself or herself to be trained or drilled, or be present at a meeting or assembly of persons with intent to allow himself or herself to be trained or drilled, in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of committing an offence against section 6;

(e) give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6;

(f) receive or solicit money or goods, or the performance of services, with the intention of supporting or promoting the commission of an offence against section 6;

(g) being the owner, lessee, occupier, agent or superintendent of any building, room, premises or place, intentionally permit a meeting or assembly of persons to be held in the building, room, premises or place with the intention of committing, or supporting or promoting the commission of, an offence against paragraph (a), (b), (c), (d), (e) or (f); or

(H) Being The Owner, Charterer, Lessee, Operator, Agent Or Master Of A Vessel Or The Owner, Charterer, Lessee, Operator Or Pilot In Charge Of An Aircraft, Intentionally Permit The Vessel Or Aircraft To Be Used With The Intention Of Committing, Or Supporting Or Promoting The Commission Of, An Offence Against Paragraph (A), (B), (C), (D), (E) Or (F).

(1A) A reference in subsection (1) to the commission of an offence against section 6 is a reference to the doing of an act that would constitute, or would but for subsection 6(2) constitute, an offence against section 6.

(1B) A person shall not be taken to have committed an offence against this section merely because of doing an act by way of, or for the purposes of, the provision of aid of a humanitarian nature.

(2) A person shall not be taken to have committed an offence against this section in respect of the doing of an act outside Australia unless:

(a) at the time of the doing of that act, the person:

(i) was an Australian citizen; or

(ii) not being an Australian citizen, was ordinarily resident in Australia; or

Penalty: Imprisonment for 10 years.

CRIMES (FOREIGN INCURSIONS AND RECRUITMENT) ACT 1978 – SECT 8

A Person Shall Not, In Australia, Recruit Another Person To Become A Member Of, Or To Serve In Any Capacity With, A Body Or Association Of Persons The Objectives Of Which Are Or Include Any Of The Objectives Referred To In Subsection 6(3).

Penalty: Imprisonment for 7 years.

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