Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Foreign Affairs (the Minister)

Australian Passports Act 2005

Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026

Legislative Authority

Section 57 of the Australian Passports Act 2005 (the Passports Act) provides that the Minister may, by legislative instrument, specify any of the matters that the Passports Act provides may be specified in a Minister’s determination. For subparagraph 14(1)(a)(v) of the Passports Act, indictable offences against a law of the Commonwealth are those offences specified in a Minister’s Determination.

Section 24 of the Foreign Passports (Law Enforcement and Security) Act 2005 (the Foreign Passports Act) provides that the Minister may, by legislative instrument, specify any matters that the Foreign Passports Act provides may be specified in a Minister’s determination. For subparagraph 15(1)(a)(v) of the Foreign Passports Act, indictable offences against a law of the Commonwealth are those offences specified in a Minister’s Determination.

Purpose

This Determination strengthens the Australian Government’s ability to prevent, disrupt and respond to threats in protecting Australia against state-sponsored terrorism. It makes a limited, consequential amendment to the Australian Passports Determination 2015, to ensure newly created state-sponsored terrorism offences are included within existing passport refusal and cancellation frameworks.  This supports Australia’s firm commitment to proactively countering terrorism in all its forms, including emerging threats from foreign state actors and their proxies. . It does not amend the Passports Act.

The Criminal Code Amendment (State Sponsors of Terrorism) Act 2025 (the State Sponsors Act) introduced State-sponsored terrorism offences in new Part 5.3A, Divisions 111-113 of the Criminal Code Act 1995 (the Criminal Code).

• Division 111 provides for offences connected with state terrorist acts, covering the doing of such an act, as well as any steps taken to plan, support, enable or prepare such an act, including conduct that poses a direct threat to Australia’s national security and the safety of its people.
• Division 111 also captures instances where state entities are supporting non-state entities in the commission of terrorist acts, including steps in preparation of these acts.

• Division 112 provides for offences in relation to dealings with a state sponsor of terrorism, including directing the activities of a state sponsor of terrorism, the provision of support and funding, membership, association and recruitment.

• Division 113 provides for offences connected with the financing of a state terrorist act targeted at Australia, including the financing of a person involved in such an act.

The State Sponsors Act made consequential amendments to paragraph 48A(4)(c) of the Passports Act to include an offence under Part 5.3A of the Criminal Code. This extended the circumstances in which a notice of refusal or cancellation of an Australian travel document is not required to be made to include investigation by the Minister administering the Australian Federal Police Act 1979 of new State-sponsored terrorism offences.

The Passports Act and the Foreign Passports Act provide that the Minister for Foreign Affairs may or must refuse to issue an Australian travel document to a person, cancel a person’s Australian travel document, or make an order for the surrender of a person’s foreign travel document, in prescribed circumstances.

Relevant to the State Sponsors Act, subparagraph 14(1)(a)(v) of the Passports Act provides that a competent authority may make a refusal or cancellation request to the Minister for Foreign Affairs if the competent authority suspects, on reasonable grounds, that if an Australian travel document were issued to a person, the person would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth. Paragraph 14(1)(b) requires that, in order to make a refusal or cancellation request under section 14 of the Passports Act, the competent authority further consider that a refusal to issue or cancellation of the person’s Australian travel document is required in order to prevent the person from engaging in the prescribed harmful conduct. Indictable offences for subparagraph 14(1)(a)(v) of the Passports Act are prescribed at section 13 of the Australian Passports Determination 2015 (the Passports Determination).

Subparagraph 15(1)(a)(v) of the Foreign Passports Act provides that a competent authority may request that the Minister for Foreign Affairs make an order under section 16 of the Foreign Passports Act if the competent authority suspects, on reasonable grounds, that if the person’s foreign travel document were not surrendered, they would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth. Paragraph 15(1)(b) requires that, in order to make a request under section 15 of the Foreign Passports Act, the competent authority considers that an order to surrender a person’s foreign travel document is required to prevent the person engaging in the prescribed harmful conduct. Section 8 of the Foreign Passports Determination prescribes that for subparagraph 15(1)(a)(v) of the Foreign Passports Act the offences mentioned in subsections 13(1) and (2) of the Passports Determination are specified.

The Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026 (the Amendment) inserts a consequential update to subsection 13(1) of the Australian Passports Determination 2015 to reflect the introduction of new state‑sponsored terrorism offences under Part 5.3A of the Criminal Code. It prescribes new state-sponsored terrorism offences at Part 5.3A, Divisions 111-113 of the Criminal Code, introduced by the State Sponsors Act, as offences for the purpose of competent authority requests under subparagraph14(1)(a)(v) of the Passports Act and subparagraph15(1)(a)(v) of the Foreign Passports Act.

The Amendment does not create new powers, alter existing legal thresholds, or change the operation of the Act in relation to citizenship status, repatriation, or individuals previously associated with non‑state terrorist organisations.

Consultation

Relevant to the Criminal Code Amendment (State Sponsors of Terrorism) Act 2025, the Attorney General’s Department undertook significant consultation regarding the consistent treatment of existing terrorism offences and the new offences the State Sponsors Act inserted into the Criminal Code. This included the Department of Prime Minister and Cabinet; Department of Foreign Affairs and Trade; Department of Home Affairs; Australian Secret Intelligence Service; Australian Security Intelligence Organisation; Department of Defence; Department of Industry, Science and Resources; Australian Signals Directorate; Australian Radioactive Waste Agency; and Department of Social Services.

Within the Department of Foreign Affairs and Trade, the Counter-Terrorism Branch in the International Security Division coordinated the Department’s input to the State Sponsors Act, consulting with the Australian Passport Office, Consular and Crisis Division, East Asia Division, Europe Division, Humanitarian Programs Division, Legal Division, Middle East and Africa Division, People Division, and Regulatory and Legal Division. This consultation addressed the policy considerations underpinning the State Sponsors Act, as well as consequential amendments to legislation administered by the Foreign Affairs Minister.

With respect to this amending instrument, which is required to enable a competent authority to request refusal or cancellation of an Australian travel document, or order for surrender of a foreign travel document for persons suspected of engaging in state-sponsored terrorism offences, the Australian Passport Office has directly consulted with the National Security Section of the Attorney General’s Department and the Counter-Terrorism Branch and Legal Division of the Department of Foreign Affairs and Trade.

Other Matters

Details of the Amendment are set out at Attachment A.

The Amendment is a legislative instrument for the purposes of the Legislation Act 2003.

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

Details of the Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026

Section 1 – Name

This section provides that the name of the instrument is the Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026 (the Amendment).

Section 2 – Commencement

This section provides for the commencement of the Amendment, as set out in the table in subsection 2(1).

Column 2 of the Table in subsection 2(1) provides for the whole of the Amendment to commence on the day after registration.

Subsection 2(2) provides that any information in column 3 of the table is not part of the Amendment. Information may be inserted in this column, or information in it may be edited, in any published version of the Amendment.

Section 3 – Authority

This section provides that the Amendment is made under the Australian Passports Act 2005 (the Passports Act).

Section 4 – Schedules

This section provides for each instrument in the Schedule to be amended as set out in the Schedule to the Amendment. The instrument to be amended is the Australian Passports Determination 2015.

Schedule 1 – Amendments

Schedule 1 to the Amendment provides for the amendments to the Determination.

Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026 (the Amendment) will amend section 13 of the Australian Passports Determination 2015 (the Passports Determination) to capture new offences introduced to the Criminal Code Act 1995 (the Criminal Code) by way of the Criminal Code Amendment (State Sponsors of Terrorism) Act 2025 (State Sponsors Act).

The Criminal Code Amendment (State Sponsors of Terrorism) Bill 2025 was introduced by the Australian Government following an assessment by the Australian Security Intelligence Organisation (ASIO) that found credible evidence Iran’s Islamic Revolutionary Guard Corps (IRGC) had directed at least two criminal and antisemitic attacks in Australia in 2024. The attacks sought to undermine Australia’s security and erode social cohesion. In response, the Australian Government committed to introducing a legislative framework to address the evolving terrorist threat posed by malign foreign state entities, allowing the Government to hold these entities and their proxies to account and to take decisive preventative action against terrorism threats.

The State Sponsors Act introduced offences in new Part 5.3A (State sponsors of terrorism) that sought to criminalise conduct engaged in by foreign state entities, including conduct engaged in by persons who would seek to assist or support these activities.

Terrorism offences in Part 5.3, Divisions 100-103 of the Criminal Code provide the Australian government with the ability to list an organisation as a terrorist organisation by way of making regulations. In doing so, the Australian Government puts the organisation on notice, and makes it clear to the Australian public that certain dealings with listed organisations are criminal offences. This framework, however, does not extend to foreign state entities who engage in or sponsor terrorist acts.

The new Part 5.3A of the Criminal Code provides that the Governor-General may make a regulation specifying an entity as a state sponsor of terrorism on the advice of the Australian Federal Police (AFP) Minister, if the AFP Minister is satisfied the entity is a foreign state entity, and the entity or a member of the entity has directly or indirectly engaged in, prepared, planned, assisted in or fostered the doing of a terrorist act that was targeted at Australia, or has advocated the doing of a terrorist act that was targeted at Australia. Before the Governor-General makes a regulation specifying an entity as a state sponsor of terrorism, the AFP Minister must obtain the Foreign Affairs Minister’s written agreement and arrange for the Leader of the Opposition in the House of Representatives to be briefed.

New offences related to state-sponsored terrorism are introduced at Divisions 111, 112 and 113 of the Criminal Code. The offences criminalise conduct engaged in by a state sponsor of terrorism, in addition to offences which criminalise conduct engaged in by persons who seek to or provide support for these activities.

• Division 111 provides for offences connected with state terrorist acts, covering the doing of such an act, as well as steps in support or preparation of such an act. Division 111 also captures instances where state entities are supporting non-state entities in the commission of terrorist acts, including steps in preparation of these acts.
• Division 112 provides for offences in relation to dealings with a state sponsor of terrorism, including directing the activities of a state sponsor of terrorism, the provision of support and funding, membership, association and recruitment.
• Division 113 provides for offences connected with the financing of state terrorist acts targeted at Australia, including the financing of a person involved in such an act.

A series of general defences are included in the State Sponsors Act, intended to mitigate unintended criminal liability attaching to persons who may be required to engage with a listed foreign state entity for a legitimate purpose which is not connected to terrorism.

The Australian Passports Act 2005 (the Passports Act) and the Foreign Passports (Law Enforcement and Security) Act 2005 (the Foreign Passports Act) include existing provisions allowing a competent authority to request the Minister for Foreign Affairs refuse to issue or cancel an Australian travel document (subsection 14(1) of the Passports Act) or make an order for the surrender of a foreign travel document (subsection 15(1) of the Foreign Passports Act) where the competent authority suspects, on reasonable grounds, that if the person was issued (or held) a travel document, they would be likely to engage in conduct that:

1.             might prejudice the security of Australia or a foreign country; or
2.             might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
3.             might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
4.             might constitute an indictable offence against this Act; or
5.             might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination.

Paragraph 14(1)(b) of the Passports Act and paragraph 15(1)(b) of the Foreign Passports Act include, as part of the legal test that the competent authority considers that the refusal to issue or cancellation of an Australian travel document, or order for the surrender of a foreign travel document, is required in order to prevent the person from engaging in the prescribed harmful conduct.

For subparagraph 14(1)(a)(v) of the Passports Act and subparagraph 15(1)(a)(v) of the Foreign Passports Act, the offences are prescribed at section 13 of the Passports Determination. This instrument amends the Passports Determination to include offences against Divisions 111, 112 and 113 of the Criminal Code (state sponsors of terrorism) as offences against which a competent authority may request the Minister for Foreign Affairs refuse to issue or cancel an Australian travel document or make an order for the surrender of a foreign travel document.

Human rights implications

This Disallowable Legislative Instrument engages the following human rights under the International Covenant on Civil and Political Rights (ICCPR):

• the right to freedom of movement as set out in Article 12.
• the right to protection of the family as set out in Article 17 and 23.

Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone shall be free to leave any country, including their own. Article 12(4) of the ICCPR provides that none shall be arbitrarily deprived of the right to enter their own country. A similar right is found in Article 10 of the Convention on the Rights of the Child (CRC), Article 18 of the Convention on the Rights of Persons with Disabilities (CRPD), Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and Article 15 of Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

Article 12(3) expressly provides that the right in Article 12(2) may be subject to restrictions which are provided for by law, are necessary to protect national security, public order, public health or morals, or the rights and freedoms of others, and are consistent with the other rights recognised in the ICCPR. In order to be ‘necessary’ the UN Human Rights Committee has stated that such restrictions must also conform to the principle of proportionality.

Restrictions on movement to prevent potential harmful conduct

Section 14 of the Passports Act (with sections 13 and 14 of the Passports Determination) and section 15 of the Foreign Passports Act (with sections 8 and 9 of the Foreign Passports Determination), contain provisions dealing with potential for harmful conduct by a person holding, or seeking to hold, an Australian travel document, or holding a foreign travel document.

These provisions provide that a competent authority may request the Minister for Foreign Affairs refuse to issue or cancel an Australian travel document, or make an order for the surrender of a foreign travel document in cases where it is suspected, on reasonable grounds, that the relevant person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, or endanger the health or physical safety of other persons, or interfere with the rights or freedoms of other persons set out in the ICCPR, or might constitute an indictable offence against either the Passports Act or the Foreign Passports Act, or another Commonwealth law specified in a Ministerial Determination. Paragraph 14(1)(b) of the Passports Act and paragraph 15(1)(b) of the Foreign Passports Act further require that the competent authority consider that the refusal to issue or cancellation of an Australian travel document, or surrender of a foreign travel document, is necessary to prevent the person from engaging in the prescribed harmful conduct.

These provisions ensure any restrictions on movement are provided by law and are necessary, reasonable and proportionate to achieve the legitimate purpose of protecting Australia’s national security interests, public order, and the rights and freedoms of others. Extending the frameworks to include new offences introduced in relation to state sponsors of terrorism therefore complies with Articles 12 of the ICCPR.

Section 13 of the Passports Determination specifies a range of serious indictable offences for the purposes of subparagraph 14(1)(a)(v) of the Passports Act. Section 8 of the Foreign Passports Determination prescribes that offences relevant to competent authority requests under subparagraph 15(1)(a)(v) of the Foreign Passports Act are those offences mentioned in subsections 13(1) and 13(2) of the Passports Determination. Each of the offences listed in section 13 are included because of their serious and transnational nature.

The new offences at Part 5.3A of the Criminal Code are serious terrorism related offences, sponsored by an entity specified in regulations made by the Governor-General, subject to the Australian Federal Police Minister being satisfied on reasonable grounds that the entity meets the requisite legislative criteria, with written agreement from the Minister for Foreign Affairs. The serious offences at Divisions 111-113 of the Criminal Code carry maximum penalties up to life in prison.

Including the new state-sponsored terrorism offences at Section 13 of the Passports Determination for the purpose of a request by a competent authority to refuse to issue or cancel an Australian travel document under subparagraph 14(1)(a)(v) of the Passports Act, or that the Minister for Foreign Affairs make an order for the surrender of a foreign travel document under subparagraph 15(1)(a)(v) of the Foreign Passports Act, is necessary, reasonable and proportionate to the legitimate objective of protecting the security of Australia or a foreign country and protecting other persons whose health or physical safety may be endangered, or whose rights and freedoms may be interfered with as set out in the ICCPR.

The ability for a ‘competent authority’ to request the Minister refuse to issue or cancel an Australian travel document, or demand surrender of a foreign travel document, on the basis of a suspicion, on reasonable grounds, that if the person held a travel document they would be likely to engage in state-sponsored terrorism offences allows for the ‘competent authority’ to undertake a fulsome investigation while preventing the person suspected of an indictable offence from using a travel document to avoid prosecution by leaving the Commonwealth or another country, or using the travel document to travel to a location with the intent of supporting or committing an act of state-sponsored terrorism.

In practice, most competent authority requests with respect to potential for harmful conduct are made by the Director-General of Security, within the meaning of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act). An adverse security assessment furnished by the Australian Security Intelligence Organisation (ASIO) under the ASIO Act forms the basis of the competent authority request in these situations.

On occasion, requests are made by a law enforcement agency, such as the Australian Federal Police, on the basis of a reasonable suspicion that a person would be likely to engage in conduct that might endanger the health or physical safety of others or might constitute an indictable offence against the Passports Act or Foreign Passports Act, or a law of the Commonwealth and that the person should be refused an Australian travel document, or be required to surrender a foreign travel document, in order to prevent the person from engaging in the conduct. Previous and recent relevant convictions may be considered as reasonable grounds for making a request.

The competent authorities defined at subsection 14(3) of the Passports Act, listed at section 14 of the Passports Determination, defined at subsection 15(2) and listed at section 9 of the Foreign Passports Determination are limited. The majority of competent authority requests come from the head of a prescribed agency or other suitably senior position in the organisation. For those agencies where a specific officer or level of seniority has not been specified in legislation, the Department of Foreign Affairs and Trade will only accept competent authority requests if they are authorised by an SES (or equivalent) officer.

With respect to requests relating to potential for harmful conduct, the Minister has a discretion to refuse to issue or cancel an Australian travel document (subsection 14(2) and paragraph 22(2)(d) of the Passports Act) or to order surrender of a foreign travel document (subsection 16(1) of the Foreign Passports Act). An important safeguard is that all competent authority requests related to potential for harmful conduct are decided by the Minister.

Further, a decision by the Minister to refuse to issue or cancel an Australian travel document under subsection 14(2) of the Passports Act or to order surrender of a foreign travel document under subsection 16(1) of the Foreign Passports Act is a reviewable decision under subsections 48(b) and 48(c) of the Passports Act and subsection 23(1) of the Foreign Passports Act. This upholds a person’s rights under Article 2 of the ICCPR.

In light of the serious nature of the potential for harmful conduct set out in section 14 of the Passports Act and section 15 of the Foreign Passports Act, the restrictions imposed on the rights protected by Article 12 of the ICCPR are not arbitrary and are considered necessary to achieve the legitimate objectives of national security, public order and the protection of the rights and freedoms of others. The administration of these requests and level of seniority in making a request and in deciding whether or not to refuse or cancel a passport further ensures the powers are applied in a reasonable and proportionate manner.

The Right to Protection of the Family

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his family. Article 23 provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The provisions described above which allow for, or require, the refusal to issue or cancellation of an Australian travel document, or for an order of surrender of a foreign travel document in relation to law enforcement matters or to prevent potential harmful conduct, may limit protection of the family by preventing a person from leaving Australia to visit family outside Australia. This is especially relevant where laws and measures impose long periods of separation due to law enforcement issues relevant to a person’s background.

In the matter of refusal or cancellation of an Australian travel document under section 14 of the Passports Act, with section 13 of the Passports Determination, or where an order is made for the surrender of a foreign passport under section 15 of the Foreign Passports Act, with section 8 of the Foreign Passports Determination, the refusal/cancellation or order of surrender and its consequence of preventing travel is balanced against the importance of sustaining law and order, contributing to international law enforcement cooperation, protecting the security of Australia or a foreign country, and protecting other persons whose health or physical safety may be endangered, or whose rights and freedoms may be interfered with as set out in the ICCPR. The decision to refuse to issue or cancel an Australian travel document or make an order for the surrender of a foreign travel document does not prevent a person’s family from travelling to or applying for a visa to travel to Australia for reunification purposes. Further, the restriction on the issue of an Australian travel document will only remain in place so long as there is a need to facilitate law enforcement including investigation and prosecution of offences.

Where a prescribed competent authority makes a request under section 14 of the Passports Act or section 15 of the Foreign Passports Act, that the Minister refuse to issue or cancel an Australian travel document or make an order for surrender of a foreign travel document based on a suspicion on reasonable grounds that if a person held a travel document they would be likely to engage in harmful conduct. The decision is discretionary and is taken at the highest level. All competent authority requests of this kind are decided by the Minister and are reviewable under subsections 48(b) and 48(c) of the Passports Act and subsection 23(1) of the Foreign Passports Act.

Noting the serious nature of offences prescribed for section 14 of the Passports Act and section 15 of the Foreign Passports Act, any restriction on the right to protection of the family is balanced against the legitimate objectives of national security, public order and the protection of the rights and freedoms of others.

Conclusion

The Australian Passports Amendment (State Sponsors of Terrorism) Determination 2026 is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, that being the right to freedom of movement, those limitations are reasonable, necessary and proportionate.