Foreign incursions and recruitment offences

On 1 December 2014 the Crimes (Foreign Incursions and Recruitment) Act 1978 was repealed and foreign incursions and recruitment offences were relocated to the new Part 5.5 of the Criminal Code Act 1995.

Under Part 5.5 of the Criminal Code, it is an offence to:

• enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country
• prepare to enter, or for another person to enter, a foreign country with an intention to engage in a hostile activity
• recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country.

The Attorney-General may permit recruitment of a person or class of persons to serve with an armed force of a foreign country if it is in the interests of the defence or international relations of Australia.

It is not an offence under Part 5.5 for an Australian to join the armed forces of a foreign country.

If a person is found guilty of entering or preparing to enter a foreign country to engage in a hostile activity, the maximum penalty is life imprisonment. If a person is found guilty of recruiting a person to join an organisation engaged in hostile activities, the maximum penalty is 25 years imprisonment. The maximum penalty for the offence of recruiting persons to serve in or with an armed force of a foreign country is 10 years imprisonment.

Declared area offence

It is an offence for a person to intentionally enter, or remain in, a declared area in a foreign country where the person is reckless to the fact that the area is a declared area. The maximum penalty for this offence is 10 years imprisonment.

The Minister for Foreign Affairs may declare an area in a foreign country if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area. The Minister’s decision will be based on advice provided by Australian Government agencies in the form of a Statement of Reasons.

Whenever possible, the Statement of Reasons will be prepared as a stand-alone document, based on unclassified information about the hostile activity that a listed terrorist organisation is engaging in that area of the foreign country. This enables the Statement of Reasons to be made available to the public, and provides transparency as to the basis on which the Minister’s decision is made.

More information about the declared area offence is available on the Australian National Security website.