(Cth) Exempt Humanitarian Organisations from Criminal Liability
- Simone Mateo, Amrita Chahal, Liora Fletcher, Mahnoor Asif & Noah Star
- 16 hours ago
- 7 min read
Author: Simone Mateo, Amrita Chahal, Liora Fletcher, Mahnoor Asif & Noah Star | Publish date: 27/5/2026
P: In Australia, humanitarian aid groups risk criminal charges when operating in terrorist-controlled areas.
S: The Attorney-General should amend Sections 102.6-102.8 and 103.1-103.2 of the Criminal Code Act 1995 (Cth) to introduce a humanitarian exemption to exempt humanitarian organisations from criminal liability when operating in terrorist-controlled areas.
E: Save the Children Australia & the Australian Council for International Development: ‘Humanitarian exemption should be applied as an offence-specific carve-out or defence to the offence provisions under sections 102.6-102.8 and 103.1-103.2 of the Criminal Code.’
Problem Identification:
Sections 102.6-102.8 and 103.01-103.02 of the Criminal Code 1995 Act (Cth) (the Act) prohibit getting funds to, providing support for, associating with, and financing, terrorist individuals and organisations. The Act does not contain a uniform exemption for humanitarian organisations, whose activities may inadvertently be covered by the Act’s ‘strict liability’ function. The Act outlines penalties, including life imprisonment.
The Humanitarian Practice Network highlighted that organisations may knowingly or unknowingly engage in acts that expose them to liability. They also noted that organisations may become wary of acts they believe will expose them to legal consequences, ‘even if no laws prohibit those actions’. According to a 2025 parliamentary submission by the Australian Council for International Development (ACFID) and Save the Children Australia (STCA), the current laws are ‘overly broad’. They further highlighted that this undermines the NGOs’ ability to deliver aid effectively.
Context:
The United Nations (UN) defines ‘humanitarian assistance’ as ‘material or logistical assistance’ provided to ‘save lives, alleviate suffering and maintain human dignity’ in response to humanitarian crises.
According to the UN, in 2026, 239 million people required ‘urgent humanitarian assistance’.
Arguments:
The International Review of the Red Cross (IRRC) outlined that the legal risks of operating in terrorist-controlled areas cause humanitarian organisations to ‘overcorrect by limiting or withdrawing their activities … even if humanitarian needs are high.’ The IRRC outlined that this will ultimately ‘endanger the provision of timely, effective and necessary humanitarian assistance.’ STCA highlighted that ‘critical services that can be a lifeline for children … may be unavailable or delayed.’ For example, the 2025 parliamentary submission noted that Australian NGOs ‘seeking to deliver humanitarian assistance to Gaza, including to hospitals which may be administered by the Hamas administration, risk contravening [the Act]’.
Additionally, the International Committee of the Red Cross reported that private sector partners are often reluctant to provide services and funding to NGOs due to the risk of ‘substantial penalties’. They specified that this could also result in the ‘cancellation of programmes, increased costs, and substantial delays for financial transactions’.
The Financial Action Task Force noted the risk of humanitarian exemptions regarding potential abuse ‘for the financing of terrorism’. However, in considering similar exemptions, the UN posited that ‘there is no evidence that the exemption has led to more diversion of humanitarian assistance to terrorist groups’ due to the ‘stringent regulatory controls’ placed on NGOs.
Advice/Solution Identification:
ACFID and STCA have called for an exemption for humanitarian aid across sections 102.6-102.8 and 103.1-103.2 of the Criminal Code.
Precedent:
There is international precedent for uniform exemptions from domestic laws for humanitarian organisations in the US, UK and the EU.
Public Support:
Broad Support
Australian Red Cross - They have broadly stated a change to uniform humanitarian exemption across Australia’s autonomous and UN-mandated sanctions regimes. However, they have not explicitly called for legislative change.
International Committee of the Red Cross - They have broadly stated a change to uniform humanitarian exemption across Australia’s autonomous and UN-mandated sanctions regimes. However, they have not explicitly mentioned which sections of the Criminal Code should be amended.
Lowly Institute - They have broadly stated a change to humanitarian exemptions. However, they have not explicitly mentioned which sections of the Criminal Code should be amended.
This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.
News Coverage:
The Mandarin - “Australia’s humanitarian rhetoric is undermined by its own laws”. The article reported on the real-life impacts of delayed humanitarian aid and the disconnect between Australia’s position as a humanitarian leader and its current legislation. By: Lindsay Evans | 21 October 2025 - Read the article here.
Lowy Institute - “The legal reform needed to match Australia’s global humanitarian promises”. The article noted the difficulties faced by Australian NGOs in operating in conflict-affected areas and the international precedents for humanitarian reform. By: Tom Barber & Naomi Brooks | 16 October 2025 - Read the article here.
AAP News - “Aid carve-outs for human rights sanctions endorsed”. The article reported on who has provided broad support for a humanitarian exemption. By: Dominic Giannini | 7 March 2025 - Read the article here.
Where to go to learn more:
(2025) Reform Proposal for a Humanitarian Exemption to Australia’s Sanctions and Counter-terrorism Financing Regimes | Australian Council for International Development and Save the Children Australia - This submission to the Parliamentary Joint Committee on Intelligence and Security advocated for a humanitarian exemption and explained the various existing precedents for such reform. View the full submission here.
(2023) Australia’s Autonomous Sanctions Review | Australian Council for International Development - This submission to the Australian Department of Foreign Affairs and Trade examined Australia’s Autonomous Sanctions Framework and provided recommendations for reform, including a humanitarian exemption. View the full submission here.
(2014) Counter-terrorism laws and regulations – What aid agencies need to know | Humanitarian Practice Network - This paper explained how legal uncertainty and counter-terrorism regulations influence humanitarian decision-making, often causing organisations to limit operations even where assistance is lawful. View the full paper here.
(2022) Counterterrorism, sanctions and financial access challenges: Course corrections to safeguard humanitarian action | International Review of the Red Cross - This article explored how counter-terrorism measures and sanctions regimes create financial and legal barriers for humanitarian organisations, including challenges such as bank de-risking. View the full article here.
Criminal Code Act 1995 (Cth) - Read the full Act here.
Human Perspective:
Content Warning: Reference to conflict and terrorism
Lisa is a dedicated Australian NGO program manager providing critical care to vulnerable communities in areas of armed conflict. To set up their operations, Lisa rented a warehouse to store medical supplies. However, Lisa was approached by a member of an armed group, listed as a terrorist organisation, requesting a $300 fee to proceed, and an ongoing monthly tax of $200 from all international organisations accessing the area. In Lisa’s training, it was made clear to her that providing material support or resources to non-state actors could find her in breach of Australian counter-terrorism laws, exposing her and her organisation to serious criminal liability. The options weighed down on Lisa as she considered the consequences of each choice – the serious legal implications facing her and the team, against the urgent needs of civilians relying on the clinic for life-saving medical treatment. Due to the complex legal challenge this posed, Lisa had to withdraw her organisation from the area. Whilst this was difficult for Lisa, it paled in comparison to the impact this had on communities relying on her organisation’s aid for survival. Upon returning to Australia, Lisa was upset and frustrated with current legislation, and she felt helpless in her efforts to reconcile her legal obligations with her humanitarian mission, effectively forcing her to abandon those most in need to avoid Australian criminal prosecution. Lisa had tried to save lives, and yet under Australian Law, she was the one facing imprisonment.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A
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Reference list:
Australian Council for International Development. (2023). ACFID Submission: Australia’s Autonomous Sanctions Review. https://acfid.asn.au/wp-content/uploads/2023/05/ACFID_Autonomous-Sanctions-Review-Submission_Feb2023.pdf
Australian Council for International Development & Save the Children Australia. (2025, October 9). Submission 1: Review of the Criminal Code Amendment (State Sponsors of Terrorism) Bill 2025. Parliamentary Joint Committee on Intelligence and Security.
Australian Red Cross. (n.d.) Australia commits to new sanctions measures to ensure respect for IHL. https://www.redcross.org.au/stories/ihl/magnitsky/
Australian Red Cross, International Committee of the Red Cross & International Federation of Red Cross and Red Crescent Societies. (2023). Submission to the Australian Sanctions Office Review of Australia's Autonomous Sanctions Framework - International Committee of the Red Cross and Australian Red Cross. https://www.dfat.gov.au/sites/default/files/review-australia-autonomous-sanctions-framework-submission-international-committee-red-cross-australian-red-cross.pdf#page=7
Barber, T., & Brooks, N. (2025). The legal reform needed to match Australia’s global humanitarian promises. Lowy Institute. https://www.lowyinstitute.org/the-interpreter/legal-reform-needed-match-australia-s-global-humanitarian-promises
Burniske, J., Modirzadeh, N., & Lewis, D. (2014). What aid agencies need to know (HPN Network Paper No. 79). Humanitarian Practice Network. https://odihpn.org/wp-content/uploads/2014/11/NP_79_crc_string_FINAL.pdf
Criminal Code Act 1995 (Cth). https://www.legislation.gov.au/C2004A04868/latest/text
Department of Home Affairs. (2025, March 25). Anti-Money Laundering and Counter-Terrorism Financing. Australian Government. https://www.homeaffairs.gov.au/about-us/our-portfolios/criminal-justice/anti-money-laundering-and-counter-terrorism-financing
Department for General Assembly and Conference Management. (n.d.). Humanitarian assistance. United Nations. https://unterm.un.org/unterm2/en/view/59171aec-7207-4d95-b851-7b7b6d7b27ea
Eckert, S. (2022). Counterterrorism, sanctions and financial access challenges: Course corrections to safeguard humanitarian action. International Review of the Red Cross. https://international-review.icrc.org/articles/counterterrorism-sanctions-and-financial-access-challenges-916
Evans, L. (2025, October 21). Australia’s humanitarian rhetoric is undermined by its own laws. The Mandarin. https://www.themandarin.com.au/301426-australias-humanitarian-rhetoric-is-undermined-by-its-own-laws/
Emergency Action Alliance. (2023, November 28). Essential compassion: Unpacking the vital role of humanitarian aid. https://emergencyaction.org.au/essential-compassion-unpacking-the-vital-role-of-humanitarian-aid/
Financial Action Task Force. (2014). Risk of Terrorist Abuse in Non-Profit Organisations. https://www.fatf-gafi.org/en/publications/Methodsandtrends/Risk-terrorist-abuse-non-profits.html
Financial Action Task Force. (2015). Combating the Abuse of Non-Profit Organisation (Recommendation 8). https://www.fatf-gafi.org/content/dam/fatf-gafi/guidance/BPP-combating-abuse-non-profit-organisations.pdf
Office of the High Commissioner. (2025, December 1). European Union: UN experts alarmed by risk of humanitarian assistance criminalisation. United Nations. https://www.ohchr.org/en/press-releases/2025/12/european-union-un-experts-alarmed-risk-humanitarian-assistance
Paxton-Hall. (2023, November 27). Bank De-Risking. https://www.paxton-hall.com.au/2023/11/27/bank-de-risking/
Save the Children. (2023). Review of the Legal Framework for Autonomous Sanctions. https://www.dfat.gov.au/sites/default/files/review-australia-autonomous-sanctions-framework-submission-save-children.pdf#page=7
Terrey, S.-M., & Münichsdorfer, A. (2024). Humanitarian exemptions: Illusive progress in safeguarding humanitarian assistance in the international counterterrorism architecture. Journal of Conflict and Security Law, 29(2), 249–272. https://doi.org/10.1093/jcsl/krae009
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