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Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]

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2002

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]

 

 

Schedule of the amendments made by the Senate

 

 

 

 

 

(1)     Govt (1) [Sheet DT340]

          Clause 2, page 2 (after table item 8), insert:

8A.  Schedule 1, item 19

The latest of:

(a) the start of the day after the day on which this Act receives the Royal Assent; and

(b) the start of the day after the day on which the Border Security Legislation Amendment Act 2002 receives the Royal Assent; and

(c) the start of the day after the day on which the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 receives the Royal Assent; and

(d) the start of the day after the day on which the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent

 

(2)     Opp (1) [Sheet 2503]

          Page 3 (after line 22), after clause 3, add:

4  Public and independent review of operation of Security Acts relating to terrorism

             (1)  The Attorney-General must cause a review of the operation, effectiveness and implications of amendments made by the Security Legislation Amendment (Terrorism) Act 2002 , Suppression of the Financing of Terrorism Act 2002 , Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 , Border Security Legislation Amendment Act 2002 and Telecommunications Interception Legislation Amendment Act 2002 .

             (2)  The review must be undertaken as soon as practicable after the third anniversary of the commencement of the amendments.



             (3)  The review is to be undertaken by a committee consisting of:

                     (a)  up to two persons appointed by the Attorney-General, one of whom must be a retired judicial officer who shall be the Chair of the Committee; and

                     (b)  the Inspector-General of Intelligence and Security; and

                     (c)  the Privacy Commissioner; and

                     (d)  the Human Rights Commissioner; and

                     (e)  the Commonwealth Ombudsman; and

                      (f)  two persons (who must hold a legal practising certificate in an Australian jurisdiction) appointed by the Attorney-General on the nomination of the Law Council of Australia.

             (4)  The Attorney-General may reject a nomination made under subsection (3)(f). If the Attorney-General rejects a nomination, the Law Council of Australia may nominate another person.

             (5)  The committee must provide for public submissions and public hearings as part of the review.

             (6)  The committee must, within six months of commencing the review, give the Attorney-General and the Parliamentary Joint Committee on ASIO, ASIS and DSD a written report of the review which includes an assessment of matters in subsection (1), and alternative approaches or mechanisms as appropriate.

             (7)  The Attorney-General must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Attorney-General.

             (8)  Before the copy of the report is tabled in Parliament, the Attorney-General may remove information from the copy of the report if the Attorney-General is satisfied on advice from the Director-General of Security or the Commissioner of the Australian Federal Police that its inclusion may:

                     (a)  endanger a person’s safety; or

                     (b)  prejudice an investigation or prosecution; or

                     (c)  compromise the operational activities or methodologies of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Defence Signals Directorate or the Australian Federal Police.

             (9)  The Parliamentary Joint Committee on ASIO, ASIS and DSD must take account of the report of the review given to the Committee, when the Committee conducts its review under paragraph 29(1)(ba) of the Intelligence Services Act 2001 .

(3)     Govt (2) [Sheet DT340]

          Schedule 1, item 1, page 4 (line 8), omit “ integrity and ”.

(4)     Govt (3) [Sheet DT340]

          Schedule 1, item 2, page 4 (lines 20 to 25), omit paragraphs (a), (b) and (c), substitute:

                     (a)  causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister; or

                     (b)  causes harm to the Sovereign, the Governor-General or the Prime Minister resulting in the death of the Sovereign, the Governor-General or the Prime Minister; or

                     (c)  causes harm to the Sovereign, the Governor-General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor-General or the Prime Minister; or

(5)     Govt (4) [Sheet DT340]

          Schedule 1, item 2, page 5 (after line 15), after subsection (1), insert:

          (1A)  Paragraphs (1)(e) and (f) do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

          (1B)  Paragraph (1)(h) does not apply to formation of an intention to engage in conduct that:

                     (a)  is referred to in paragraph (1)(e) or (f); and

                     (b)  is by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3).

(6)     Govt (5) [Sheet DT340]

          Schedule 1, item 3, page 7 (lines 20 to 26), omit the definition of terrorist act , substitute:

terrorist act means an action or threat of action where:

                     (a)  the action falls within subsection (2) and does not fall within subsection (2A); and

                     (b)  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

                     (c)  the action is done or the threat is made with the intention of:

                              (i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

                             (ii)  intimidating the public or a section of the public.

(7)     Opp (2) [Sheet 2503]

          Schedule 1, item 3, page 7 (lines 28 and 29), omit paragraphs (a) and (b), substitute:

                     (a)  causes serious harm that is physical harm to a person; or

                     (b)  causes serious damage to property; or

(8)     Govt (7) [Sheet DT340]

          Schedule 1, item 3, page 7 (after line 29), after paragraph (2)(b), insert:

                   (ba)  causes a person’s death; or

(9)     Govt (8) [Sheet DT340]

          Schedule 1, item 3, page 8 (after line 7), after subsection 100.1(2), insert:

          (2A)  Action falls within this subsection if it:

                     (a)  is advocacy, protest, dissent or industrial action; and

                     (b)  is not intended:

                              (i)  to cause serious harm that is physical harm to a person; or

                             (ii)  to cause a person’s death; or

                            (iii)  to endanger the life of a person, other than the person taking the action; or

                            (iv)  to create a serious risk to the health or safety of the public or a section of the public.

(10)   Govt (9) [Sheet DT340]

          Schedule 1, item 3, page 8 (lines 15 to 17), omit subsection (1), substitute:

             (1)  This Part applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate.

(11)   Govt (10) [Sheet DT340]

          Schedule 1, item 3, page 8 (lines 18 to 20), omit “an action, or threat of action, gives rise to an offence under this Part to the extent that”, substitute “this Part applies to a terrorist act constituted by an action, or threat of action, if”.

(12)   Govt (11) [Sheet DT340] ( As amended by Opp (3) [Sheet 2503] )

          Schedule 1, item 4, page 10 (lines 4 to 21), omit section 101.2, substitute:

101.2   Providing or receiving training connected with terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person provides or receives training; and

                     (b)  the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person provides or receives training; and

                     (b)  the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years.

             (4)  A person commits an offence under this section even if the terrorist act does not occur.

             (5)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (6)  If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(13)   Govt (12) [Sheet DT340]

          Schedule 1, item 4, page 10 (lines 22 to 31), omit section 101.3.

(14)   Govt (13) [Sheet DT340]

          Schedule 1, item 4, page 11 (lines 1 to 16), omit section 101.4, substitute:

101.4   Possessing things connected with terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person possesses a thing; and

                     (b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years.

             (2)  A person commits an offence if:

                     (a)  the person possesses a thing; and

                     (b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 10 years.

             (3)  A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (5)  Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

             (6)  If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(15)   Govt (14) [Sheet DT340]

          Schedule 1, item 4, page 11 (line 17) to page 12 (line 2), omit section 101.5, substitute:

101.5  Collecting or making documents likely to facilitate terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person collects or makes a document; and

                     (b)  the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years .

             (2)  A person commits an offence if:

                     (a)  the person collects or makes a document; and

                     (b)  the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 10 years.

             (3)  A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (5)  Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

             (6)  If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.



(16)   Govt (15) [Sheet DT340]

          Schedule 1, item 4, page 12 (line 11), omit the heading to Division 102, substitute:

Division 102 Terrorist organisations

(17)   Govt (16) [Sheet DT340] ( As amended by Opp (4) and (5) [Sheet 2503] )

          Schedule 1, item 4, page 12 (lines 12 to 24), omit Subdivision A, substitute:

Subdivision A Definitions

102.1   Definitions

             (1)  In this Division:

member of an organisation includes:

                     (a)  a person who is an informal member of the organisation; and

                     (b)  a person who has taken steps to become a member of the organisation; and

                     (c)  in the case of an organisation that is a body corporate—a director or an officer of the body corporate.

recruit includes induce, incite and encourage.

terrorist organisation means:

                     (a)  an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or

                     (c)  an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (3), (4), (5) and (6)).

             (3)  Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that:

                     (a)  the Security Council of the United Nations has made a decision relating wholly or partly to terrorism; and

                     (b)  the organisation is identified in the decision, or using a mechanism established under the decision, as an organisation to which the decision relates; and

                     (c)  the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur) .

             (4)  Regulations for the purposes of paragraph (c) of the definition of terrorist organisation in this section may not take effect earlier than the day after the last day on which they may be disallowed under section 48 of the Acts Interpretation Act 1901 . That section has effect subject to this subsection.

             (5)  Regulations for the purposes of paragraph (c) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

                     (a)  the repeal of those regulations; or

                     (b)  the cessation of effect of those regulations under subsection (6); or

                     (c)  the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

             (6)  A regulation specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section ceases to have effect when:

                     (a)  the decision mentioned in paragraph (3)(b) ceases to have effect; or

                     (b)  the organisation ceases to be identified as described in paragraph (3)(b).

The regulation does not revive even if the organisation is again identified as described in paragraph (3)(b).

             (7)  To avoid doubt, subsection (6) does not prevent:

                     (a)  the repeal of a regulation; or

                     (b)  the making of a regulation that is the same in substance as a regulation that has ceased to have effect because of that subsection.

(18)   Govt (17) [Sheet DT340] ( As amended by Opp (6) to (11) [Sheet 2503] )

          Schedule 1, item 4, page 13 (line 1) to page 14 (line 12), omit Subdivision B, substitute:

Subdivision B Offences

102.2   Directing the activities of a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally directs the activities of an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally directs the activities of an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.3   Membership of a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally is a member of an organisation; and

                     (b)  the organisation is a terrorist organisation because of paragraph (c) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of another paragraph of that definition also); and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 10 years.

             (2)  Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

Note:          A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

102.4   Recruiting for a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the first-mentioned person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.5   Training a terrorist organisation or receiving training from a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.6   Getting funds to or from a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.



             (2)  A person commits an offence if:

                     (a)  the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

             (4)  Subsections (1) and (2) do not apply to the person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

                     (a)  legal representation for a person in proceedings relating to this Division; or

                     (b)  assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note:          A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

102.7   Providing support to a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

(19)   Govt (18) [Sheet DT340]

          Schedule 1, item 4, page 14 (line 13) to page 15 (line 18), omit Subdivision C, substitute:

Subdivision C General provisions relating to offences

102.9   Extended geographical jurisdiction for offences

                   Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

102.10   Alternative verdicts

             (1)  This section applies if, in a prosecution for an offence (the prosecuted offence ) against a subsection of a section of this Division, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of that section.

             (2)  The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(20)   Govt (19) [Sheet DT340]

          Schedule 1, item 5, page 15 (lines 19 to 26), omit the item, substitute:

5  Application

For the purpose of making regulations specifying an organisation for the purposes of paragraph (c) of the definition of terrorist organisation in section 102.1 of the Criminal Code , it does not matter whether the relevant decision of the Security Council of the United Nations was made before or after the commencement of this item.

(21)   Govt (20) [Sheet DT340]

          Schedule 1, page 17 (after line 18), at the end of the Schedule, add:

Intelligence Services Act 2001

19  After paragraph 29(1)(b)

Insert:

                   (ba)  to review, as soon as possible after the third anniversary of the day on which the Security Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent, the operation, effectiveness and implications of amendments made by that Act and the following Acts:

                              (i)  the Border Security Legislation Amendment Act 2002 ;

                             (ii)  the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 ;

                            (iii)  the Suppression of the Financing of Terrorism Act 2002 ; and

 

 

 

 

 

 

HARRY EVANS

Clerk of the Senate

 

 

The Senate

27 June 2002