The bill amends the Criminal Code Act 1995 to create a new offence that criminalises organising or facilitating the entry into Australia of a person who has engaged in conduct amounting to a terrorism offence, intends to do so, or is or has been a member of a terrorist organisation. The new provision applies to private actors (not Commonwealth authorities) and carries a maximum penalty of 10 years' imprisonment.
The offence includes an exception where the organiser has prior written permission from both the Foreign Affairs Minister and the Home Affairs Minister; the defendant bears an evidential burden to raise that exception. The bill also updates cross‑references and extends two transitional or time‑limited provisions in the Criminal Code from 7 September 2027 to 7 September 2030.
For compliance officers, immigration and transport operators, NGOs and prosecutors, the change creates a broad facilitation offence, a ministerial authorisation route, and an unusual absolute‑liability element about whether the actor is a Commonwealth authority or is acting for one.
At a Glance
What It Does
Adds section 119.3A to the Criminal Code to prohibit organising or facilitating the entry into Australia of persons linked to terrorist conduct or organisations, with a maximum penalty of 10 years. It inserts definitions tying ‘terrorism offence’ and ‘terrorist organisation’ to existing criminal law and defines the Home Affairs Minister for the new powers.
Who It Affects
Private individuals and entities who arrange, assist or coordinate travel to Australia — including smugglers, migration agents, charities, diaspora networks, airlines and transport providers — plus prosecutors, the Department of Home Affairs and the Foreign Affairs portfolio when authorising exceptions.
Why It Matters
The offence creates a blunt criminal tool aimed at shutting routes used by terror‑linked persons to return or travel to Australia, while concentrating gatekeeping power in two ministers. The absolute‑liability and evidential‑burden features raise novel enforcement and defence issues for criminal practitioners and affected organisations.
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What This Bill Actually Does
The bill inserts a new targeted facilitation offence into the Criminal Code. It makes it criminal for any private person to organise or otherwise facilitate a person's entry into Australia from overseas if the person being assisted has committed acts that amount to a terrorism offence, is known to intend to commit such an offence, or is or has been a member of a terrorist organisation.
The new offence expressly excludes Commonwealth authorities and any action taken on their behalf, and it sets a maximum penalty of 10 years' imprisonment.
Two definitional updates sit alongside the offence: the Home Affairs Minister is defined by reference to the Australian Border Force Act 2015, and the bill imports existing meanings for 'terrorism offence' and 'terrorist organisation' from current criminal statutes. The provision sets an absolute‑liability rule for two matters: whether the actor is a Commonwealth authority and whether they acted other than on behalf of a Commonwealth authority.
This removes the need for the prosecution to prove mens rea on those two points.The bill creates a safety valve: a person does not commit the offence if they organised or facilitated entry with prior written permission from both the Foreign Affairs Minister and the Home Affairs Minister. The defendant must meet an evidential burden to point to that permission (the bill references the Code's existing rule on evidential burdens).
Finally, the bill amends two existing Criminal Code subsections to push their operative date from 7 September 2027 to 7 September 2030, extending the timeframe for those provisions to remain effective or transitional arrangements to operate.
The Five Things You Need to Know
The bill adds section 119.3A to the Criminal Code, making it an offence to organise or facilitate entry into Australia of a person linked to terrorism, punishable by up to 10 years in prison.
The offence is committed if, while organising or facilitating entry, the other person has committed a terrorism offence, intends to do so, or is/has been a member of a terrorist organisation.
The text defines 'Home Affairs Minister' by reference to the Australian Border Force Act 2015 and imports 'terrorism offence' and 'terrorist organisation' from existing laws.
Absolute liability applies to the two factual matters that the organiser is not a Commonwealth authority and that they did not act on behalf of a Commonwealth authority, meaning no mental element is required for those points.
A defence exists where the organiser had prior written permission from both the Foreign Affairs Minister and the Home Affairs Minister; the defendant bears an evidential burden to rely on that permission.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Defines Home Affairs Minister and imports terrorism definitions
The bill inserts a definition identifying the Home Affairs Minister as the minister who administers the Australian Border Force Act 2015, and ties the terms 'terrorism offence' and 'terrorist organisation' to their established meanings in the Crimes Act 1914 and Division 102 of the Criminal Code. Practically, this avoids drafting new definitions and ensures the new offence references the same substantive elements and list‑based regime already used across Australian terrorism law.
Extends specified date references from 2027 to 2030
Two existing subsections in the Criminal Code that previously referred to 7 September 2027 are amended to read 7 September 2030. Those are likely transitional or sunset‑type dates; by moving them to 2030 the bill prolongs the operative period of the associated provisions. This is a mechanical but important change for any compliance calendar relying on the earlier date.
Creates the core offence and lists its three factual heads
The core subsection criminalises organising or facilitating entry from a foreign country where, during the assistance, the person assisted has either (a) previously engaged in conduct that would constitute a terrorism offence, (b) is known by the organiser to intend to engage in such conduct, or (c) is or has been a member of a terrorist organisation. The provision requires the facilitation to relate to entry into Australia and to be done by someone who is not a Commonwealth authority and not acting for one; the maximum penalty is 10 years' imprisonment.
Removes mens rea for whether the actor is a Commonwealth authority or acting for one
Paragraphs dealing with whether the organiser is a Commonwealth authority or whether they acted other than on behalf of a Commonwealth authority are subject to absolute liability. That means the prosecution need not prove any fault element on those points; once the facts are established, the mental state of the accused on those specific matters is irrelevant. In practice, this shifts risk onto defendants where the distinction between private and Commonwealth activity can be factually disputed.
Provides a written‑permission defence requiring evidence from the defendant
The subsection excludes conduct authorised by prior written permission of both the Foreign Affairs Minister and the Home Affairs Minister. The bill notes that a defendant bears an evidential burden to point to that permission under the Code’s evidential‑burden rule. This creates a two‑minister gatekeeping mechanism: permission must come from both portfolios and a defendant must adduce some evidence of that permission to avoid prosecution.
This bill is one of many.
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Explore Criminal Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Australian Federal Police and Commonwealth security agencies — the new offence gives investigators and prosecutors a distinct statutory tool to pursue private facilitators who bring terror‑linked persons into Australia, with a substantial maximum penalty to support serious charges.
- Department of Home Affairs and Border Force — the legislation reinforces border protection objectives and centralises responsibility for exemptions through the Home Affairs portfolio, strengthening administrative control over who may lawfully organise entry.
- Prosecutors — clearer statutory elements and the absolute‑liability provisions reduce the need to prove certain mental‑state elements, simplifying prosecution strategy in contested cases.
Who Bears the Cost
- Humanitarian organisations, migration agents and community groups — individuals or organisations that assist travel for refugees, family reunification or consular cases may face criminal exposure if the person assisted has past or present terrorism links, raising compliance and legal‑risk burdens.
- Transport and travel industry actors (airlines, carriers, brokers) — while not directly targeted, commercial facilitators that arrange manifests, bookings or transit could become investigative targets or witnesses and may need to adopt enhanced vetting and record‑keeping practices.
- Private individuals and diaspora networks — people who help relatives or community members return to Australia could face significant criminal risk where historical membership or past conduct triggers the offence, even where they lacked knowledge of offending.
- Ministerial offices and departments — the Foreign Affairs and Home Affairs portfolios will absorb administrative work to consider, issue and document written permissions, creating resource and decision‑making demands.
Key Issues
The Core Tension
The bill pits the state's interest in preempting returns or movements of people linked to terrorism against the risk of criminalising legitimate assistance: stronger preventive tools and ministerial control reduce security gaps, but broad facilitation language, absolute‑liability elements and shifted defence burdens raise real concerns about fairness, overreach and practical application to humanitarian actors and ordinary citizens.
The bill trades a preventive security objective for broad criminal exposure. 'Organises or facilitates' is a wide formulation that captures everything from arranging travel documents to more active smuggling; the statute does not circumscribe low‑level or humanitarian assistance, leaving uncertainty for benign actors. Establishing that the assisted person 'has engaged in conduct constituting a terrorism offence' at any time while the facilitator acts creates evidential complexity: prosecutors may rely on historical convictions, intelligence assessments or membership lists, raising questions about admissible proof and classified material in criminal trials.
The absolute‑liability aspects and the shift of an evidential burden to defendants create procedural and fairness issues. Absolute liability for whether someone is a Commonwealth authority or acting on behalf of one eliminates mens rea on that point and could catch private contractors or volunteers who reasonably thought they were assisting a Commonwealth function.
Requiring defendants to adduce evidence of ministerial permission narrows the usual protections of the presumption of innocence and places practical pressure on disclosure and document management. Finally, concentrating the exemption power in two Ministers creates a politicised gate — useful for national security control but susceptible to delays, inconsistent decision‑making, and potential judicial review challenges about reasonableness and procedural fairness.
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