COUnter-terrorism Amendment (State sponsors of terrorism) regulations 2025

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

section 133 of the Aviation Transport Security Act 2004

section 91 of the Crimes Act 1914

section 5 of the Criminal Code Act 1995

sections 41 and 504 of the Migration Act 1958

section 132 of the Insurance Act 1973

section 300 of the Telecommunications (Interception and Access) Act 1979

Purpose and operation of the Instrument

The Criminal Code Amendment (State Sponsors of Terrorism) Act 2025 (the Act) amended the Criminal Code Act 1995 (Criminal Code) to introduce a framework through which state entities can be specified in regulations as state sponsors of terrorism, as well as introducing offences for state terrorist acts and certain dealings with state sponsors of terrorism. The Act also made amendments to primary legislation across the Commonwealth statute book to ensure consistent treatment of terrorist acts and terrorist organisations, and state sponsors of terrorism and state terrorist acts. As a result of these changes, further consequential amendments are required to a variety of regulations.

The Counter-Terrorism Legislation Amendment (State Sponsors of Terrorism) Regulations 2025 (the Regulations) would make these consequential amendments to six existing regulations. The Regulations would amend these regulations to ensure that state sponsors of terrorism, state terrorist acts and serious Part 5.3A offences are treated in a consistent manner to terrorist organisations, terrorist acts and serious Part 5.3 offences.

The proposed Regulations would make amendments to the:

•          Aviation Transport Security Regulations 2005 which would insert a reference to Part 5.3A of the Criminal Code alongside the existing reference to Part 5.3 in note 5 to the definition of ‘conviction’ in subregulation 6.01(1). This amendment would clarify that a conviction under Part 5.3A does not become spent for the purpose of assessing whether to issue the convicted person with an Aviation Security Identification Card.

•          Crimes Regulations 2019 which would insert a reference to Part 5.3A of the Criminal Code in the definitions of ‘aviation security offence’ and ‘health security offence’ in section 4. This would ensure that serious Part 5.3A offences can also be considered for the disclosure of information on spent convictions in certain circumstances.

•          Criminal Code Regulations 2019 which would insert a reference to a serious Part 5.3A offence alongside the existing reference to a serious Part 5.3 offence in paragraph 10(j). This amendment would ensure consistency in respect of engaging a relevant expert to assess the risk of an offender committing a serious Part 5.3A offence.

•          Insurance Regulations 2024 which would replace the existing definition of terrorist act in paragraph 10(1)(d) with the new definition in the Crimes Act, which references both a terrorist act and a state terrorist act. This would ensure that loss or liability is consistently treated for the purpose of atypical insurance risk.

•          Migration Regulations 1994 which would provide for a reference to a state sponsor of terrorism under paragraph 8556(b) in visa condition 8556. This would require that the holder of a visa not associate or communicate with a foreign state entity prescribed by regulations under the Criminal Code as a state sponsor of terrorism. This change would ensure consistency in the treatment of a terrorist organisation and a state sponsor of terrorism. The Regulations would also insert an application provision in Schedule 13, providing that the amended visa condition only applies to visas granted on or after commencement of the Regulations.

•          Telecommunications (Interception and Access) Regulations 2017 which would insert a reference to a serious Part 5.3A offence alongside existing references to a serious Part 5.3 offence in warrant Forms 2A, 2B, 2C, 4A, 4B, 4C and 4D in Schedule 1. This change would align the warrant forms with the new definition in the Telecommunications (Interception and Access) Act 1979 as inserted by the Act, and reflect the intention that these warrants are available for state terrorist acts and serious Part 5.3A offences in the same manner as terrorist acts and serious Part 5.3 offences.

The following provisions provide that the Governor-General may make regulations prescribing matters required or permitted by the primary legislation to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the primary legislation:

•          Section 133 of the Aviation Transport Security Act 2004

•          Section 91 of the Crimes Act 1914

•          Section 5 of the Criminal Code Act 1995

•          Section 132 of the Insurance Act 1973

•          Sections 41 and 504 of the Migration Act 1958, and

•          Section 300 of the Telecommunications (Interception and Access) Act 1979.

The Attorney-General obtained approval from the Minister for Home Affairs and the Assistant Treasurer for the amendments to regulations in their respective portfolios.

Documents incorporated by reference

This instrument does not incorporate a document by reference.

Consultation

Consultation was undertaken with the Department of Home Affairs and Treasury regarding the proposed amendments to regulations within their portfolios. Following departmental consultation, the Attorney-General wrote to the Minister for Home Affairs and Assistant Treasurer seeking their approval of the aspects of the Regulations that fell within their portfolio responsibilities. Approval was provided with the Minister for Home Affairs and Assistant Treasurer supportive of pursuing the amendments through this mechanism.

Statement of Compatibility with Human Rights

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

Counter-Terrorism Legislation Amendment (State Sponsors of Terrorism) Regulations 2025

These Regulations are compatible with the human rights and freedom recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulations

The Regulations would amend regulations to ensure consistency in the treatment of state sponsors of terrorism and state terrorist acts under Part 5.3A of the Criminal Code Act 1995 (the Criminal Code) and terrorist organisations and terrorist acts under Part 5.3 of the Criminal Code.

Specifically, the Regulations would amend the:

•          Aviation Transport Security Regulations 2005 which would insert a reference to Part 5.3A of the Criminal Code alongside the existing reference to Part 5.3 in note 5 to the definition of ‘conviction’ in subregulation 6.01(1). This amendment would clarify that a conviction under Part 5.3A does not become spent for the purpose of assessing whether to issue the convicted person with an Aviation Security Identification Card.

•          Crimes Regulations 2019 which would insert a reference to Part 5.3A of the Criminal Code in the definitions of ‘aviation security offence’ and ‘health security offence’ in section 4. This would ensure that serious Part 5.3A offences can also be considered for the disclosure of information on spent convictions in certain circumstances.

•          Criminal Code Regulations 2019 which would insert a reference to a serious Part 5.3A offence alongside the existing reference to a serious Part 5.3 offence in paragraph 10(j). This amendment would ensure consistency in respect of engaging a relevant expert to assess the risk of an offender committing a serious Part 5.3A offence.

•          Insurance Regulations 2024 which would replace the existing definition of terrorist act in paragraph 10(1)(d) with the new definition in the Crimes Act, which references both a terrorist act and a state terrorist act. This would ensure that loss or liability is consistently treated for the purpose of atypical insurance risk.

•          Migration Regulations 1994 which would provide for a reference to a state sponsor of terrorism under paragraph 8556(b) in visa condition 8556. This would require that the holder of a visa not associate or communicate with a foreign state entity prescribed by regulations under the Criminal Code as a state sponsor of terrorism. This change would ensure consistency in the treatment of a terrorist organisation and a state sponsor of terrorism. The Regulations would also insert an application provision in Schedule 13, providing that the amended visa condition only applies to visas granted on or after commencement of the Regulations.

•          Telecommunications (Interception and Access) Regulations 2017 which would insert a reference to a serious Part 5.3A offence alongside existing references to a serious Part 5.3 offence in warrant Forms 2A, 2B, 2C, 4A, 4B, 4C and 4D in Schedule 1. This change would align the warrant forms with the new definition in the Telecommunications (Interception and Access) Act 1979 as inserted by the Act, and reflect the intention that these warrants are available for state terrorist acts and serious Part 5.3A offences in the same manner as terrorist acts and serious Part 5.3 offences.

Human rights implications

Amendments in the Regulations would engage the following human rights under the International Covenant on Civil and Political Rights (ICCPR):

•          the right to protection against arbitrary and unlawful interferences with privacy under Article 17, and

•          the right to freedom of association under Article 22.

Right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence. The United National Human Rights Council (UNHRC) has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. Article 17 does not set out the circumstances in which this right may be limited. However, in addition to being authorised by law and not arbitrary, other limitations which are necessary in a democratic society or in the interests of national security may be legitimate objectives.

The amendments made by the Regulations would engage this right to the extent they clarify that certain telecommunications warrants are available in relation to state terrorist acts and serious Part 5.3A offences in the same manner as terrorist acts and serious Part 5.3 offences. These warrants authorise the interception of communications made to or from a telecommunication service, which could occur in a private home and interfere with a person’s private life. They are connected to the monitoring, management and compliance of individuals subject to a Part 5.3 terrorism-related order.

The scope of these warrants is limited as they are only available for Part 5.3 supervisory orders or in applications for post sentence orders. The exercise of these powers cannot be considered arbitrary because they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security interests, including preventing and responding to state terrorist acts. Additionally, Part 5.3 orders can only be made by the court, and each scheme contains elements to ensure the conditions, requirements or detention imposed by such orders are reasonably necessary, appropriate and adapted to address the identified risk, and includes mechanisms for review, variation and revocation.

The Regulations also extend certain provisions for information sharing under the Crimes Regulations 2019 and the Criminal Code Regulations 2019 in relation to Part 5.3A offences. The amendments to the Crimes Regulations allows information to be shared in certain circumstances for the purposes of other legislation, aimed at ensuring the safety of the community. Similarly, the amendments to the Criminal Code Regulations permit information sharing with specific persons when assessing the risk of a terrorist offender committing a serious Part 5.3 or Part 5.3A offence in relation to Division 105A of the Criminal Code (post sentence orders). These amendments are limited in scope to only allow sharing of information in specific circumstances related to Part 5.3 or Part 5.3A offences, ensuring they are reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia’s national security interests and the Australian community from state terrorist acts and the actions of state sponsors of terrorism.

Right to freedom of association under Article 22 of the ICCPR

Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right is not absolute and may be limited for certain purposes, including national security, public safety, and the protection of the rights and freedoms of others.

The amendments in the Regulations would engage this right through the imposition of a new visa condition providing that the visa holder must not associate or communicate with a state sponsor of terrorism. This limitation is permissible, as it is to advance the legitimate objectives of national security, public safety, and protection of the rights and freedoms of others. The measure does not impinge on the freedom to associate with any person or group other than state sponsors of terrorism. The imposition of the condition is also the least restrictive measure to address these concerns, as the limitation only applies to certain types of entities of concern. Further, the imposition of this addition visa condition aligns with the current visa condition that prohibits visa holders from associating or communicating with organisations prescribed as terrorist organisations.

Due to the severity of the danger posed by state sponsors of terrorism, it is reasonable, necessary and proportionate to limit the right of individuals who by their association or communication with a state sponsor of terrorism, pose a threat to Australians.

Conclusion

To the extent that the Regulations limit rights, those limitations are authorised by law, reasonable, necessary and proportionate in achieving the legitimate aim of protecting Australia’s national security and the Australian community.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

Section 1 provides that the title of the instrument is the Counter-Terrorism Legislation Amendment (State Sponsors of Terrorism) Regulations 2025.

Section 2 – Commencement

Section 2 provides that the instrument commences on the day after the instrument is registered.

Section 3 – Authority

Section 3 provides that the instrument is made under the following Acts:

• Aviation Transport Security Act 2004
• Crimes Act 1914
• Criminal Code Act 1995
• Insurance Act 1973
• Migration Act 1958, and
• Telecommunications (Interception and Access) Act 1979.

Section 4 – Schedules

Section 4 provides that each regulation amended by the instrument is amended as set out in Schedule 1.

SCHEDULE 1 – Amendments

Aviation Transport Security Regulations 2005

Section 1 – Subregulation 6.01(1) (note 5 to the definition of conviction)

Section 1 would insert ‘Part 5.3A’ after the reference to ‘Part 5.3’ in note 5 of the definition of conviction contained in subregulation 6.01(1). This note provides that certain convictions do not become spent for the purpose of assessing whether to issue an Aviation Security Identification Card (ASIC). This amendment would clarify that convictions for offences under Part 5.3 or Part 5.3A of the Criminal Code do not become spent, and are able to be considered for the purpose of assessing the issuance of an ASIC.

Crimes Regulations 2019

Section 2 – Section 4 (at the end of the definition of aviation security offence)

Section 2 would insert new paragraph (c) at the end of the definition of aviation security offence in section 4 of the regulations which would state ‘Part 5.3A of the Criminal Code (State sponsors of terrorism)’. The definition of the term aviation security offence currently captures offences against the Crimes (Aviation) Act 1991 (other than section 15) and against Part 5.3 of the Criminal Code (Terrorism). The term aviation security offence is used in Schedule 2 of the Regulations, which concerns the disclosure of information on spent convictions in certain circumstances. Relevantly for an aviation security offence, this includes:

• Item 13 - Issuance of an ASIC to a person in accordance with the Aviation Transport Security Regulations 2005
• Item 20(a) - For the purposes of the AusCheck Scheme in connection to an application for, or holder of, an ASIC within the meaning of the AusCheck Act 2007
• Item 21 - Assessing whether to approve the issue of an ASIC in accordance with the Aviation Transport Security Regulations

This will ensure that offences under Part 5.3A are treated consistently with offences under Part 5.3 of the Criminal Code in respect of the disclosure of information in the circumstances outlined above. This reflects the serious nature of these offences and the possibility of serious harm resulting from state terrorist acts and state sponsors of terrorism under Part 5.3A.

Section 3 – Section 4 (paragraph (b) of the definition of health security offence)

Section 3 would replace the reference to ‘or 5.3’ with ‘,5.3 or 5.3A’ in paragraph (b) of the definition of health security offence in section 4 of the regulations. This would mean a health security offence would include an offence against Part 5.1 (Treason), 5.3 (Terrorism) or 5.3A (State sponsors of terrorism) of the Criminal Code. The term health security offence is used in Schedule 2 of the Regulations, which concerns the disclosure of information on spent convictions in certain circumstances. Relevantly for a health security offence, this includes:

• Item 20(c) - For an individual required to undergo, or who has undergone, a National Health Security check within the meaning of the Security Sensitive Biological Agent (SSBA) Standards determined under section 35 of the National Health Security Act 2007
• Item 23 – Assessing whether to authorise a person under clause 3.3 of the SSBA Standards

This will ensure that offences under Part 5.3A are treated consistently with offences under Part 5.3 of the Criminal Code for the disclosure of information in the circumstances outlined above. This reflects the serious nature of these offences and the possibility of serious harm resulting from state terrorist acts and state sponsors of terrorism under Part 5.3A.

Criminal Code Regulations 2019

Section 4 – Paragraph 10(j)

Section 4 would insert ‘or 5.3A’ after the reference to ‘serious Part 5.3’ in paragraph 10(j). Regulation 10 provides a list of prescribed persons for the purposes of sharing information in connection to Division 105A of the Criminal Code (post sentence orders), under section 105A.19. Paragraph 10(j) provides a list of who is a relevant expert to assess the risk of a terrorist offender committing certain offences. The Act replaced of the term ‘serious Part 5.3 offence’ with ‘serious Part 5.3 and 5.3A offence’ in the Criminal Code. This amendment would align the regulations with the Criminal Code, ensuring consistency in the treatment of these offences and avoid any doubt as to the application of this regulation in respect of relevant experts assessing the risk of an offender committing these offences.

Insurance Regulations 2025

Section 5 – Paragraph 10(1)(d)

Section 5 would replace the definition of ‘terrorist act’ in paragraph 10(1)(d) with the definition in the Crimes Act, which was inserted by the Act. The Crimes Act definition provides that a terrorist act means:

• a terrorist act within the meaning of subsection 100.1(1) of the Criminal Code, or
• a state terrorist act within the meaning of the Criminal Code.

Regulation 10 provides circumstances of atypical risk covered by insurance contracts. Paragraph (1)(d) includes loss or liability arising for a terrorist act. The amendment would ensure that both a terrorist act and a state terrorist act will be treated as a ‘terrorist act’ for the purposes of these regulations, ensuring consistent treatment of terrorist acts and state terrorist acts for the purpose of insurance risk.

Migration Regulations 1994

Section 6 – At the end of paragraph 8556(b) of Schedule 8

Section 6 would insert new paragraph (c) at the end of clause 8556 of Schedule 8 which would state ‘a state sponsor of terrorism (within the meaning of the Criminal Code)’. Clause 8556 imposes a visa condition that a visa holder is not permitted to communicate or associate with entities listed under Part 4 of the Charter of the United Nations Act 1945 or organisations prescribed as terrorist organisations under the Criminal Code. This condition was introduced to ensure that visa holders do not communicate or associate with prescribed terrorist organisation, and to facilitate visa cancellation if such communications occurs or an association is identified.  

This amendment would include a new requirement under visa condition 8556 that the visa holder must not associate or communicate with a foreign state entity prescribed by regulations under the Criminal Code as a state sponsor of terrorism. This amendment would provide consistency in the treatment of terrorist organisations and state sponsors of terrorism for the purpose of visa conditions.

Section 7 – In the appropriate position in Schedule 13

Section 7 would insert regulation 15801, operation of amendments, into Schedule 13 of the Migration Regulations. This amendment would provide that Schedule 8, as amended by the Regulations (see section 6 above), only applies in relation to a visa granted on or after the commencement of that instrument. This means that the amended visa condition, as far as it relates to associating and communicating with a state sponsor of terrorism, only applies to visas granted on or after the commencement of the Regulations.  

Telecommunications (Interception and Access) Regulations 2017

Section 8 – Schedule 1 (Forms 2A, 2B, 2C, 4A, 4B, 4C and 4D)

Section 8 would insert ‘or 5.3A’ after references to ‘serious Part 5.3’ in Forms 2A, 2B, 2C, 4A, 4B, 4C and 4D.

Forms 2A and 2B relate to telecommunications service warrants for Part 5.3 supervisory orders. Both forms use the term ‘serious Part 5.3 offence’ in paragraph (3)(ga) when describing the risk posed by an individual subject to a control order.

Form 2C relates to a telecommunications service warrant for post sentence order applications, and uses the term ‘serious Part 5.3 offence’ in paragraph (2)(f) when describing the risk posed by an individual subject to a post sentence order.

Forms 4A and 4B relate to named person warrants for Part 5.3 supervisory orders for telecommunication services. Both forms use the term ‘serious Part 5.3 offence’ in paragraph (3)(ga) when describing the risk posed by an individual subject to a control order.

Forms 4C and 4D relate to named person warrants for post sentence order applications for telecommunication services. Both forms also use the term ‘serious Part 5.3 offence’ in paragraph (2)(f) when describing the risk posed by an individual subject to a post sentence order.

The amendments would insert reference to Part 5.3A alongside references to a ‘serious Part 5.3 offence’. This would align the forms with the language used in the Telecommunications (Interception and Access) Act 1979, following amendments by the Act, and the intention that these warrants are available for state terrorist acts and serious Part 5.3A offences in the same manner as terrorist acts and serious Part 5.3 offences.