Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
National Security Legislation Amendment Bill 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

6181

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

National Security Legislation Amendment Bill 2010

 

 

(1)     Schedule 1, item 15, page 6 (line 1), after “will”, insert “directly and”.

[direct assistance]

(2)     Schedule 1, item 15, page 6 (line 3), after “conduct”, insert “directly and materially”.

[direct assistance]

(3)     Schedule 1, item 15, page 6 (line 30), after “will”, insert “directly and”.

[direct assistance]

(4)     Schedule 1, item 15, page 6 (line 33), after “conduct”, insert “directly and materially”.

[direct assistance]

(5)     Schedule 1, item 15, page 7 (line 12), at the end of the heading to subsection 80.1AA(6), add “ and conscientious objection ”.

[conscientious objection]

(6)     Schedule 1, item 15, page 7 (line 14), after “purposes of,”, insert “conscientious objection or”.

[conscientious objection]

(7)     Schedule 1, item 35, page 11 (line 21), omit “would”, substitute “is intended to”.

[intended threat to Commonwealth]

(8)     Schedule 1, item 35, page 11 (line 25) to page 12 (line 6), omit subsections 80.2A(2) and (3), substitute:

             (3)  The fault element for paragraph (1)(c) is recklessness.

Note:          For recklessness, see section 5.4.

[consequential - urging violence against groups in the community]

(9)     Schedule 1, item 35, page 12 (line 13), omit “subsection (2)”, substitute “subsection 290.1(1)”.

[consequential - urging violence against groups in the community]

(10)   Schedule 1, item 35, page 12 (after line 6), after subsection 80.2A(3), insert:

          (3A)  It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

                     (a)  in the development, performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in the dissemination of news or current affairs.

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

[defence for urging violence against groups]

(11)   Schedule 1, item 35, page 12 (line 32), omit “would”, substitute “is intended to”.

[intended threat to Commonwealth]

(12)   Schedule 1, item 35, page 13 (lines 3 to 20), omit subsections 80.2B(2), (3) and (4), substitute:

             (3)  For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

             (4)  The fault element for paragraph (1)(d) is recklessness.

Note:          For recklessness, see section 5.4.

[consequential - urging violence against groups in the community]

(13)   Schedule 1, item 35, page 13 (line 27), omit “subsection (2)”, substitute “subsection 290.2(1)”.

[consequential - urging violence against groups in the community]

(14)   Schedule 1, item 35, page 13 (after line 20), after subsection 80.2B(4), insert:

          (4A)  It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

                     (a)  in the development, performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in the dissemination of news or current affairs.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (4A). See subsection 13.3(3).

[defence for urging violence against groups]

(15)   Schedule 1, Part 2, page 14 (after line 5), at the end of the Part, add:

38  Before Part 9.1 of Chapter 9 of the Criminal Code

Insert:

Part 9.1A—Urging violence against groups in the community

290.1  Urging violence against groups in the community

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group ); and

                     (b)  force or violence is reasonably likely to occur; and

                     (c)  the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:          For intention, see section 5.2.

             (2)  The fault element for paragraph (1)(c) is recklessness.

Note:          For recklessness, see section 5.4.

             (3)  It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

                     (a)  in the development, performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in the dissemination of news or current affairs.

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

290.2   Urging violence against members of groups in the community

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person ); and

                     (b)  force or violence is reasonably likely to occur; and

                     (c)  the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group ); and

                     (d)  the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:          For intention, see section 5.2.

             (2)  For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

             (3)  The fault element for paragraph (1)(d) is recklessness.

Note:          For recklessness, see section 5.4.

             (4)  It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

                     (a)  in the development, performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in the dissemination of news or current affairs.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (4). See subsection 13.3(3).

[urging violence against groups in the community]

(16)   Schedule 2, item 1, page 15 (lines 5 and 6), omit the item, substitute:

1  Section 9A

Repeal the section.

[refused classification for matter advocating terrorist acts]

(17)   Schedule 2, page 15 (before line 8), before item 2, insert:

1A  Paragraphs 102.1(1A)(a) and (b) of the Criminal Code

Repeal the paragraphs, substitute:

                     (a)  the organisation directly counsels or urges the doing of a terrorist act; or

                     (b)  the organisation directly provides instruction on the doing of a terrorist act.

[definition of advocates]

(18)   Schedule 2, item 2, page 15 (lines 8 and 9), omit the item, substitute:

2  Paragraph 102.1(1A)(c) of the Criminal Code

Repeal the paragraph.

[definition of advocates]

(19)   Schedule 2, page 15 (after line 20), after item 4, insert:

4A  After subsection 102.1(2) of the Criminal Code

Insert:

       (2AA)  For the purposes of being satisfied on reasonable grounds under paragraph (2)(b) that an organisation advocates the doing of a terrorist act, the Minister must have regard to whether:

                     (a)  the person advocating a terrorist act is the leader of the organisation;

                     (b)  the advocacy is in any official material distributed by the organisation;

                     (c)  the advocacy is accepted or rejected by other members of the organisation as representing the views of the organisation;

                     (d)  the organisation has any other involvement in terrorism;

                     (e)  the person advocating terrorism did not intend for a terrorist act to be committed.

[definition of advocates]

(20)   Schedule 2, page 15 (after line 20), after item 4, insert:

4B  After section 102.1 of the Criminal Code

Insert:

102.1AA   Review by the Administrative Appeals Tribunal

             (1)  An application may be made to the Administrative Appeals Tribunal for review of a decision to specify an organisation by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1 .

             (2)  The regulations may prescribe the procedures to be followed by the Tribunal in considering an application under subsection (1).

[review by AAT]

(21)   Schedule 3, item 10, page 22 (line 16), omit “reasonably suspects”, substitute “believes on reasonable grounds”.

[state of mind of investigating officer]

(22)   Schedule 3, item 16, page 27 (line 19), omit “reasonably suspects”, substitute “believes on reasonable grounds”.

[state of mind of investigating officer]

(23)   Schedule 3, item 16, page 29 (line 14), omit “23DC,”.

[consequential - unspecific disregarded time]

(24)   Schedule 3, item 16, page 29 (lines 23 to 25), omit paragraph 23DB(9)(m).

[unspecific disregarded time]

(25)   Schedule 3, item 16, page 29 (lines 26 to 32), omit subsection 23DB(10), substitute:

           (10)  To avoid doubt subsection (9) does not prevent the person being questioned during a time covered by a paragraph of subsection (9), but if the person is questioned during such a time, the time is not to be disregarded.

[consequential - unspecific disregarded time]

(26)   Schedule 3, item 16, page 29 (line 33) to page 30 (line 4), subsection 23DB(11) TO BE OPPOSED .

[unspecific disregarded time]

(27)   Schedule 3, item 16, page 30 (line 12) to page 34 (line 8), sections 23DC and 23DD TO BE OPPOSED .

[unspecific disregarded time]

(28)   Schedule 3, item 16, page 37 (lines 7 and 8), omit “20 hours”, substitute “44 hours”.

[total length of investigation period]

(29)   Schedule 3, item 16, page 37 (line 12), omit “, 23DD(5)(b)”.

[consequential - unspecific disregarded time]

(30)   Schedule 4, item 4, page 39 (after line 24), after subsection 3UEA(1), insert:

          (1A)  If one or more police officers have entered premises in accordance with subsection (1), one of them must, within 24 hours after the entry, apply for a retrospective search warrant.

          (1B)  The regulations must prescribe the requirements to be met before an issuing officer issues a retrospective warrant.

          (1C)  If the issuing officer does not issue the warrant, then any evidence obtained under subsection (1) or (2) is inadmissible in proceedings against a person.

[retrospective warrant]

(31)   Schedule 4, page 40 (after line 29), after item 4, insert:

4A  Before section 3UF

Insert:

3UEB  Commissioner’s annual report to Minister

             (1)  As soon as practicable after 30 June in each year, the Commissioner of the Australian Federal Police must submit a report to the Minister setting out the details required by subsection (2) in relation to emergency entries to premises made by Australian Federal Police officers under subsection 3UEA(1) during the previous 12 months.

             (2)  The report must include the following details:

                     (a)  the number of emergency entries that were made during the period to which the report relates;

                     (b)  the number of applications for retrospective warrants that were made during the period to which the report relates;

                     (c)  the number of applications for retrospective warrants that were refused by an issuing officer during the period to which the report relates;

                     (d)  any other information prescribed for the purposes of this paragraph.

             (3)  The Commissioner must advise the Minister of any information in a report that, in the Commissioner’s opinion, should be excluded from the report before the report is laid before the Parliament because:

                     (a)  the information, if made public, could reasonably be expected to:

                              (i)  endanger a person’s safety; or

                             (ii)  prejudice an investigation or prosecution; or

                     (b)  making the information public would be contrary to the public interest for any other reason.

             (4)  The Minister must exclude information from a report if the Minister is satisfied on the advice of the Commissioner of any of the grounds set out in subsection (3) and must then cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

             (4)  A report must not disclose any information that identifies any person involved in an emergency entry or related operation or that is likely to lead to such a person being identified.

[AFP annual report on emergency entries]

(32)   Schedule 6, page 43 (after line 3), before item 1, insert:

1A  Paragraph 15AA(2)(a)

Repeal the paragraph.

[repeal of presumption against bail for terrorism related offences]

(33)   Schedule 6, item 1, page 43 (line 26) to page 44 (line 7), subsections 15AA(3C) and (3D) TO BE OPPOSED .

[no stay on grant of bail]

(34)   Schedule 6, item 2, page 44 (lines 9 and 10), omit “, (3B), (3C) and (3D)”, substitute “and (3B)”.

[consequential - no stay on grant of bail]

(35)   Schedule 8, page 47 (line 1) to page 74 (line 33), omit the Schedule, substitute:

Schedule 8—Repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004

1  The whole of the Act

Repeal the Act.

[repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004]

(if amt (35) above not agreed to, Senator Ludlam to move amts (36) and (37) below)

(36)   Schedule 8, item 26, page 52 (line 27), omit “or”.

[consequential - subpoenas and other orders not required to be notified to AG]

(37)   Schedule 8, item 26, page 52 (lines 28 to 32), omit paragraph 24(1)(c).

[subpoenas and other orders not required to be notified to AG]