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Suppression of the Financing of Terrorism Bill 2002

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2002

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE SENATE

 

 

 

 

 

 

SUPPRESSION OF THE FINANCING OF TERRORISM BILL 2002

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 



SUPPRESSION OF THE FINANCING OF TERRORISM BILL 2002

OUTLINE

 

The Suppression of the Financing of Terrorism Bill 2002, as introduced into the House of Representatives, amends the Criminal Code Act 1995 (Criminal Code), the Financial Transactions Reports Act 1988 (FTR Act), the Mutual Assistance in Criminal Matters Act 1987 and the Charter of the United Nations Act 1945 , to enhance the Commonwealth’s counter terrorism legislative framework by:

·         creating an offence directed at those who provide or collect funds to facilitate terrorist activities;

·         requiring cash dealers to report suspected terrorist-related transactions;

·         enabling the Director of the Australian Transaction Reports and Analysis Centre (Austrac), the Australian Federal Police Commissioner and the Director-General of Security to disclose financial transaction reports information directly to foreign countries, foreign law enforcement agencies and foreign intelligence agencies; and

·         introducing higher penalty offences for providing assets to, or dealing in assets of, persons and entities engaged in terrorist activities.

 

The measures in the Bill implement obligations under United Nations Security Council Resolution 1373 and the International Convention for the Suppression of the Financing of Terrorism. 

 

The proposed government amendments to the Bill respond to the recommendations of the Senate Legal and Constitutional Legislation Committee (‘the Committee’) in its report on the Bill and address a number of issues that have been identified since the introduction of the Bill into Parliament.  The amendments that respond to recommendations of the Committee will:

·         tighten the definition of “terrorist act” (items 5 and 8, Recommendation 2);

·         insert an explanatory note at the end of the proposed financing of terrorism offence (item 11, Recommendation 6); and

·         provide that regulations may be made setting out the procedures to be followed in relation to the freezing of assets, including procedures for notifying those whose assets are frozen (item 19, Recommendation 7).

The remaining amendments will:

·         rectify a minor error in the commencement provision (item 2);

·         amend the proposed heading to Chapter 5 of the Criminal Code (item 4);

·         limit the inclusion of actions involving serious harm to a person in the definition of “terrorist act” to actions involving serious physical harm (item 6);

·         clarify that the definition of “terrorist act” includes causing death (item 7);

·         modify the constitutional basis provision in section 100.2 to ensure it covers new terrorist organisations offences to be inserted into the Security Legislation Amendment (Terrorism) Bill 2002 (items 9 and 10);

·         enhance the privacy safeguards relating to the disclosure of financial transaction reports information to foreign countries and foreign law enforcement and intelligence agencies (items 14, 15 and 17);

·         allow for access to financial transaction reports information by the Queensland Crime and Misconduct Commission and the Royal Commission into the Western Australian Police (items 13 and 16);

·         remove the provision for review of the amendments to the FTR Act, consequent upon the insertion of a general review mechanism into the Security Legislation Amendment (Terrorism) Bill 2002 (items 12 and 18); and

·         exclude financing of terrorism offences from the definition of “political offence” in the Extradition Act 1988 (items 1, 3 and 20).

 

 

 

FINANCIAL IMPACT STATEMENT

The amendments will have no financial impact.



 

NOTES ON ITEMS

Item 1

This item would amend the long title of the Bill as introduced to include a reference to the Extradition Act 1988 , consequent upon the insertion of amendments to the Extradition Act into the Bill by item 20.

Item 2

This item would amend clause 2 of the Bill as introduced to ensure that the financing of terrorism offence in item 3 of Schedule 1 commences immediately after the headings and definitions in items 1 and 2 of that Schedule.

Item 3

This item would amend clause 2 of the Bill as introduced to provide for the commencement of the amendments to the Extradition Act inserted into the Bill by item 19.  The proposed amendments to the Extradition Act would commence at the same time as the proposed financing of terrorism offence.

Item 4

This item would amend item 2 of Schedule 1 to the Bill as introduced to omit the words “and integrity” from the proposed heading to Chapter 5 of the Criminal Code (‘The integrity and security of the Commonwealth’).  This amendment responds to concerns raised during the Committee’s consideration of the Bill in relation to the ambiguity of the term “integrity”.

Item 5

This item would amend item 2 of Schedule 1 to the Bill as introduced to tighten the definition of “terrorist act” by clarifying the exemption for advocacy, protest, dissent and industrial action and inserting an additional limb into the definition. 

The definition of “terrorist act” would be amended to specify that actions falling within proposed subsection 100.1(2A) (to be inserted by item 8 of the Government amendments) are excluded from the definition.  This would ensure that advocacy, protest, dissent or industrial action would not be covered by the definition unless it is intended to cause serious harm that is physical harm to a person, cause a person’s death, endanger a person’s life or create a serious risk to health or safety.  For example, a protest which only causes property damage would not constitute a “terrorist act”.

The definition of “terrorist act” would also be amended to insert an additional requirement that an action be done, or a threat of action be made, with the intention of coercing, or influencing by intimidation, a government or intimidating the public or a section of the public.  This amendment will ensure that the definition of “terrorist act” reflects the terms of the United Kingdom Terrorism Act 2000 and Article 2 of the International Convention for the Suppression of the Financing of Terrorism.  The amendment responds to Recommendation 2 of the Committee report on the Bill.

Item 6

This item would amend item 2 of Schedule 1 to the Bill as introduced to modify the definition of “terrorist act” so that actions involving serious harm to a person are only covered by the definition where they involve serious physical harm.  This will ensure that actions involving harm only to a person’s mental health do not constitute a “terrorist act”.

Item 7

This item would amend item 2 of Schedule 1 to the Bill as introduced to clarify that a “terrorist act” includes an act which causes a person’s death.  Although the existing reference to actions involving serious harm to a person would cover actions which cause the death of a person, the inclusion of a specific reference to death will ensure consistency with other Criminal Code offences.

Item 8

This item would amend item 2 of Schedule 1 of the Bill as introduced to insert proposed subsection 100.1(2A).  Actions falling within proposed subsection 100.1(2A) would be excluded from the definition of “terrorist act” (see item 5).  This would ensure that advocacy, protest, dissent or industrial action would not be covered by the definition unless it is intended to cause serious harm to, or the death of, a person, endanger a person’s life or create a serious risk to health or safety.  For example, a protest which causes property damage would not constitute a “terrorist act”.

Item 9

 

This item would amend item 2 of Schedule 1 to the Bill as introduced to ensure that the constitutional basis provision in section 100.2 covers the new terrorist organisations offences to be inserted by the Government amendments to the Security Legislation Amendment (Terrorism) Bill 2002.  The amendment makes it clear that the proposed terrorism offences, including the terrorist organisations offences, only apply to terrorist acts in relation to which the Commonwealth Parliament has power to legislate.  This will ensure that the terrorist organisations provisions are linked to the Commonwealth’s legislative power under the Constitution. 

 

Item 10

 

This item would amend item 2 of the Bill as introduced to ensure that the constitutional basis provision in section 100.2 covers the new terrorist organisations offences inserted by the Government amendments to the Security Legislation Amendment (Terrorism) Bill 2002.  The reasons for this amendment are described above in relation to item 9.

Item 11

This item would amend item 3 of Schedule 1 to the Bill as introduced to include an explanatory note at the end of the financing of terrorism offence in proposed section 103.1.  The note would indicate to readers of the legislation that the fault element of intention applies to the conduct of providing or collecting funds in paragraph 103.1(1)(a) of the offence.  The fault element of intention applies to this conduct because section 5.6 of the Criminal Code provides that, where a law creating an offence does not specify a fault element for a physical element of the offence, intention applies to physical elements consisting of conduct.  This amendment responds to Recommendation 6 of the Committee.

Item 12

This item would omit the heading to Part 1 of Schedule 2 consequent upon the removal of Part 2 (Review of effectiveness of amendments) by item 18 of the Government amendments.

Item 13

This item would amend subsection 27(1B) of the FTR Act by inserting items 9A and 9B in Schedule 2 to the Bill as introduced.

Item 9A would replace the reference to the “Queensland Crime Commission” in subsection 27(1B) with a reference to the “Crime and Misconduct Commission of Queensland” and insert a reference to the “Royal Commission (appointed by the Governor of Western Australia on 12 December 2001) into whether since 1 January there has been corrupt or criminal conduct by any Western Australian police officer” (“the WA Royal Commission”).  This amendment is consequent upon the amendments in Item 16 of the Government Amendments and would ensure that the Crime and Misconduct Commission and the Royal Commission must undertake to comply with the Information Privacy Principles set out in section 14 of the Privacy Act 1998 before they can be authorised to access financial transaction reports (FTR) information.  The structure of the provision would also be modified to make it easier to list additional agencies.

Item 9B would ensure that the operation of subsection 27(1B) in respect of the Anti-Corruption Commission of Western Australia is not affected by the repeal and replacement of existing subsection 27(1B) by item 9A.

Item 14

This item would amend item 14 of Schedule 2 of the Bill as introduced to enhance the privacy safeguards relating to the disclosure of FTR information by the Director of the Australian Transaction Reports and Analysis Centre (Austrac) to foreign countries.  These amendments are equivalent to those made by items 15 and 17 in relation to disclosure of FTR information by the Australian Federal Police (AFP) Commissioner and Director-General of Security respectively.

 

Proposed paragraph 27(11A)(a) of the FTR Act would be amended to include the additional requirement that, before communicating FTR information to a foreign country, the Director must be satis fied that the country has given appropriate undertakings for ensuring the FTR information will only be used for the purpose for which it is communicated. 

Item 15

This item would amend item 14 of Schedule 2 of the Bill as introduced to enhance the privacy safeguards relating to the disclosure of FTR information by the AFP Commissioner to foreign law enforcement agencies.  These amendments are equivalent to those made by items 14 and 17 in relation to disclosure of FTR information by the Director of Austrac and Director-General of Security respectively.

Proposed paragraph 27(11B)(a) of the FTR Act would be amended to include the additional requirement that, before communicating FTR information to a foreign law enforcement agency, the Commissioner must be satis fied that the agency has given appropriate undertakings for ensuring the FTR information will only be used for the purpose for which it is communicated. 

The paragraph would also be amended to replace the requirement that the Commissioner be satisfied that the foreign law enforcement agency has given appropriate undertakings to ensure the information is used in the performance of the agency’s functions with the new requirement that the Commissioner be satisfied that the agency has given appropriate undertaking for controlling the use that is made of the information.  This amendment would ensure that the conditions that apply to disclosure of FTR information by the Commissioner are identical to the conditions that apply to disclosure by the Director of Austrac.

Item 16

This item would amend subsections 27(16) and 27(17) of the FTR Act by inserting items 14A to 14G in Schedule 2 to the Bill as introduced.

Items 14A and 14B would omit the references to the “Criminal Justice Commission of Queensland” and the “Queensland Crime Commission” in paragraphs 27(16)(d) and (h) and replace them with a reference to the new “Crime and Misconduct Commission of Queensland” in paragraph 27(16)(h).  Subsection 27(16) specifies State and Territory agencies that the Director of Austrac can authorise to have access to FTR information for the purpose of performing their functions. 

These amendments to subsection 27(16) reflect the fact that the Criminal Justice Commission has been merged with the Queensland Crime Commission to create a new Crime and Misconduct Commission under the Queensland Crime and Misconduct Act 2001 .  The amendment will enable the Crime and Misconduct Commission to have access to FTR information for the purposes of investigating major crime and misconduct in public administration.

Item 14C would add new paragraph 27(16)(j), which contains a reference to the WA Royal Commission.  This amendment would enable the Royal Commission to have access to FTR information for the purpose of investigating corrupt police conduct.  The proposed inclusion of the WA Royal Commission is consistent with the existing inclusion of the Wood Royal Commission into the New South Wales Police Service.

Item 14D would repeal paragraphs 27(17)(k) to (m), which contain references to the Chairman of the Criminal Justice Commission of Queensland, a member of the Commission and an officer of the Commission.  This amendment is consequent upon the removal of the reference to the Criminal Justice Commission in paragraph 27(16)(d) of the Act by item 14A.

Item 14E would repeal paragraphs 27(17)(t) and (u), which contain references to the Crime Commissioner, or an Assistant Crime Commissioner, of the Queensland Crime Commission and a member of the staff of that Commission.  This amendment is consequent upon the removal of the reference to the Queensland Crime Commission in paragraph 27(16)(h) of the Act by item 14B.

Item 14F would insert paragraphs 27(17)(ua) and (ub), which contain references to a Commissioner of the Crime and Misconduct Commission of Queensland and Assistant Commissioner, Senior Officer or member of the staff of the Commission.  This amendment is consequent upon the insertion of the reference to the Crime and Misconduct Commission of Queensland in paragraph 27(16)(h) of the Act by item 14B and will ensure that those persons can access FTR information under subsection 27(3).

Item 14G would add paragraphs 27(17)(x) and (y), which contain references to the person constituting the WA Royal Commission and a member of the staff of that Royal Commission.  This amendment is consequent upon the insertion of the reference to the WA Royal Commission in paragraph 27(16)(h) of the Act by item 14C and will ensure that those persons can access FTR information under subsection 27(3).

Item 17

This item would amend item 18 of Schedule 2 of the Bill as introduced to enhance the privacy safeguards relating to the disclosure of FTR information by the Director-General of Security to foreign intelligence agencies.  These amendments are equivalent to those made by items 14 and 15 in relation to disclosure of FTR information by the Director of Austrac and AFP Commissioner respectively.

Proposed paragraph 27AA(5A)(a) of the FTR Act would be amended to include the additional requirement that, before communicating FTR information to a foreign intelligence agency, the Director-General must be satis fied that the agency has given appropriate undertakings for ensuring the FTR information will only be used for the purpose for which it is communicated. 

The paragraph would also be amended to replace the requirement that the Director-General be satisfied that the foreign intelligence agency has given appropriate undertakings to ensure the information is used in the performance of the agency’s functions with the new requirement that the Director-General be satisfied that the agency has given appropriate undertaking for controlling the use that is made of the information.  This amendment would ensure that the conditions that apply to disclosure of FTR information by the Director-General are identical to the conditions that apply to disclosure by the Director of Austrac.

Item 18

This item would amend Schedule 2 to the Bill as introduced to remove Part 2 of the Schedule, which provides for a review of the amendments to the FTR Act.  The removal of Part 2 is consequent upon the insertion into the Security Legislation Amendment (Terrorism) Bill 2002 (‘Security Bill’) of a general review mechanism covering the provisions of that Bill, the Suppression of the Financing of Terrorism Bill, the Border Security Legislation Amendment Bill 2002 and the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002. 

 

The review provision to be inserted in the Security Bill would amend the Intelligence Services Act 2001 to provide for the Parliamentary Joint Committee on ASIO, ASIS and DSD to review the operation, effectiveness and implications of amendments made by the counter-terrorism bills.  The review would be conducted three years after the Security Bill receives Royal Assent.  The Committee is required to report its comments and recommendations arising from the review to each House of the Parliament and to the responsible Minister (section 29(1)(c) of the Intelligence Services Act).  Schedule 1 to the Intelligence Services Act contains provisions empowering the Committee to obtain information and documents, take evidence and publish evidence and the contents of documents.

Item 19

This item would amend the Charter of the United Nations Act 1945 by inserting proposed section 22A into item 1 of Schedule 3 to the Bill.  Proposed section 22A would enable the Governor-General to make regulations under the Act setting out the procedures to be followed in relation to the freezing of assets.  The regulations could include procedures for financial institutions to consult the Australian Federal Police before deciding to freeze an asset and for the notification of those whose assets are frozen.  This amendment responds to Recommendation 7 of the Committee.

Item 20

This item would amend the definition of “political offence” in section 5 of the Extradition Act 1988 by inserting a new Schedule 4 to the Bill.  The amendment would exclude offences constituted by conduct referred to in Article 2 of the International Convention for the Suppression of the Financing of Terrorism from the definition of “political offence” in the Extradition Act and, by reference, the Mutual Assistance in Criminal Matters Act 1987 (which cross-refers to the Extradition Act definition).  The amendment will ensure that financing of terrorism offences are not considered political offences for extradition or mutual assistance purposes.

This amendment implements Article 14 of the International Convention for the Suppression of the Financing of Terrorism, which states that none of the offences within the scope of the Convention are to be regarded as political offences for the purposes of extradition or mutual assistance.