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Assisting an Enemy to Engage in Armed Conflict

Assisting an Enemy to Engage in Armed Conflict is an offence under Section 80.1AA of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of life in prison.

To establish the offence, the prosecution must prove that:

  1. A party was engaged in armed conflict involving the commonwealth or the Australian defence force
  2. That party was declared by proclamation to be an ‘enemy’
  3. You engaged in conduct intended to materially assist that enemy
  4. Your conduct did materially assist that enemy, and
  5. You knew you were an Australian citizen or resident, you were a company incorporated under a Commonwealth law or a law of an Australian state or territory, or you knew you voluntarily put yourself under the Commonwealth’s care

You are not guilty if your conduct was solely to provide humanitarian aid or assistance provided you are able to establish this ‘on the balance of probabilities’.

You are also not guilty if you acted in ‘good faith’, which includes:

  1. Trying to show that the sovereign, governor-general, state governor, territory administrator or their advisers were mistaken in their ‘counsels, policies or actions’
  2. Pointing out errors or defects in government, the constitution, legislation or the administration of justice to correct them, or
  3. Attempting to lawfully change a policy, practice or law

The onus is on you to establish the defence ‘on the balance of probabilities’.

Other defences to the charge include:

  1. Self defence
  2. Duress, and
  3. Necessity

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