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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

 

 

 

 

 

 

 

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)

 

 



SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002

OUTLINE

 

The Security Legislation Amendment (Terrorism) Bill 2002, as introduced into the House of Representatives, is designed to enhance the Commonwealth’s ability to combat terrorism and treason by:

·           inserting a series of provisions into the Criminal Code Act 1995 (the Criminal Code) directed against terrorism;

·           replacing the existing treason offence in the Crimes Act 1914 with a new updated offence in the Criminal Code; and

·           facilitating the aircraft security officer program.

 

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 make a number of additional amendments.

The amendments that respond to recommendations of the Committee will:

·         create a defence to the offence of treason relating to the provision of humanitarian aid (item 4, Recommendation 1);

·         remove the proscribed organisations provisions and replace them with a range of offences relating to “terrorist organisations” (items 12, 15, 16, 17, 18 and 19; Recommendation 4);

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

·         remove absolute liability and the reverse onus in respect of fault from the terrorism offences that had made provision for this and replace those offences with tiered offences carrying different fault elements and graduated penalties (items 11, 13 and 14, Recommendation 3).

The remaining amendments will:

·         make a minor amendment to the proposed heading to Chapter 5 of the Criminal Code (item 2)

·         include references to the Governor-General and Prime Minister in the treason offence (item 3);

·         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 proposed section 100.2 to ensure that it covers the new terrorist organisation offences (items 9 and 10);

·         provide for a review of the Security Legislation Amendment (Terrorism) Bill 2002, 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 to be conducted after 3 years (items 1 and 20).

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments will have no financial impact.



 

NOTES ON ITEMS

 

Item 1

 

This item would amend clause 2 of the Bill as introduced to provide for the commencement of the review provision to be inserted by item 20 of the Government amendments.  The amendment to the Intelligence Services Act 2001 to provide for the review of the provisions of the Security Legislation Amendment (Terrorism) Bill 2002, 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 would commence at the start of the day after the day on which the last of those bills receives Royal Assent.

 

Item 2

 

This item would amend item 1 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 3

 

This item would amend item 2 of Schedule 1 to the Bill as introduced to modernise the treason offence in proposed section 80.1 by including references to the Governor-General and the Prime Minister.  Historically, the treason offence has applied to persons who kill, harm, imprison or restrain the Sovereign.  The proposed amendment will ensure the offence also applies to persons who kill, harm, imprison or restrain the Governor-General or the Prime Minister.  This reflects the importance of the Governor-General and the Prime Minister in Australia’s governmental framework.

 

Item 4

 

This item would amend item 2 of Schedule 1 to the Bill as introduced to create a defence to the treason offence in proposed section 80.1 for persons who provide aid of a humanitarian nature.  The defence will apply to the ‘assisting an enemy’ and ‘assisting another country or organisation’ limbs of the offence (proposed paragraphs 80.1(1)(e) and (f)) and the ‘forms an intent’ limb in its application to these two limbs (proposed paragraph 80.1(1)(h)).  This ensures people who provide assistance of this nature will not be guilty of the offence.  This item implements R ecommendation 1 in the Committee report on the Bill.

Item 5

This item would amend item 3 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 will 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 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 3 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 3 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 3 of Schedule 1 to 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 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 causes property damage would not constitute a “terrorist act”.

 

Item 9

 

This item would amend item 3 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 item 17 of the Government amendments.  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 3 of 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 item 17 of the Government amendments.  The reasons for this amendment are described above in relation to item 9.

 

Item 11

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to replace the terrorist training offence in proposed section 101.2 with three offences carrying different fault elements and graduated penalties. 

 

As a consequence of these amendments, absolute liability would no longer apply to the terrorist training offence.  Instead, the prosecution would be required to prove fault in respect of the ‘terrorist connection’ element of each of the new offences .  The r emoval of absolute liability and the reverse onus in respect of fault implements Recommendation 3 of the Committee’s report on the Bill.

 

The amendments would also broaden the training offences so that they apply to all training connected to a terrorist act, rather than being limited to training in the making or use of firearms, explosives or chemical, biological, radiological or nuclear weapons.  This would ensure that training in flying an aircraft or unarmed combat, for example, would be covered by the offences.

 

The offence in proposed subsection 101.2(1) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally received or provided training and that the defendant knew that the training was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  This offence would attract a maximum penalty of 25 years imprisonment.

 

The offence in proposed subsection 101.2(2) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally received or provided training and that the defendant was reckless as to whether the training was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  To prove recklessness on the part of the defendant, the prosecution would have to demonstrate that the defendant was aware of a substantial risk that the training was connected to a terrorist act and that, having regard to the circumstances known to the defendant, it was unjustifiable to take that risk (section 5.4, Criminal Code).  This offence would carry a maximum penalty of 15 years imprisonment.

 

The offence in proposed subsection 101.2(3) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally received or provided training and that the defendant was negligent with respect to the fact that the training was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  This offence would attract a maximum penalty of 10 years imprisonment.

 

A defendant would be negligent with respect to the fact that the training was connected to a terrorist act if his or her conduct involved:

(i) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(ii) such a high risk that the ‘terrorist connection’ exists or will exist

that the conduct merits criminal punishment for the offence (section 5.5, Criminal Code).  Negligence is a standard fault element recognised in the Criminal Code and is a fault element in numerous offences in Australian criminal law, including manslaughter. 

 

The tiering of penalties (knowledge, 25 years; recklessness, 15 years; negligence, 10 years) ensures that while there is scope to prosecute circumstances falling short of actual knowledge of the ‘terrorist connection’, the maximum penalties reflect the degree of fault involved.

 

Proposed subsection 101.2(4) makes it clear that an offence may arise under this section even if the terrorist act does not occur.  This is consistent with the operation of the equivalent offence in the Bill as introduced, and ensures that the offence can apply to preparation for terrorist acts.

 

Proposed subsection 101.2(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.2(1), (2) or (3).  Category D jurisdiction is unrestricted.  Its application to the terrorist training offences means that the offences will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.  In view of the very serious nature of these offences and the depth of international concern regarding training for terrorist activities it is appropriate for Australia to criminalise this conduct regardless of where it occurs.  The application of Category D geographical jurisdiction is consistent with the other terrorism offences in the Bill as introduced, including the terrorist training offence.

 

Proposed subsection 101.2(6) would ensure that where a person is charged with one of the above offences and the court is not satisfied that the person is guilty of that offence but is satisfied that the person is guilty of one of the other offences, the court may instead find the person guilty of the other offence.  Procedural fairness would have to be accorded to the defendant before an alternative verdict could be given.  This is a standard ‘alternative verdicts’ provision for situations where there are tiered or closely overlapping offences.  Equivalent provisions are found in subsections 132.1(9), 136.1(7), 471.2(6) and 471.2(7) of the Criminal Code.

 

Item 12

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to remove the offence of directing the activities of a terrorist organisation (proposed section 101.3) consequent upon the insertion of a range of offences relating to terrorist organisations by item 17 of the Government amendments, which would cover directing the activities of a terrorist organisations. 

 

Item 13

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to replace the offence of possessing a thing connected with a terrorist act (proposed section 101.4) with two offences carrying different fault elements and graduated penalties. 

 

As a consequence of these amendments, absolute liability would no longer apply to the offence.  Instead, the prosecution would be required to prove fault in respect of the ‘terrorist connection’ element of each of the new offences .  The r emoval of absolute liability and the reverse onus in respect of fault implements Recommendation 3 of the Committee’s report on the Bill.

 

The offence in proposed subsection 101.4(1) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally possessed a thing and that the defendant knew that the thing was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  This offence would attract a maximum penalty of 15 years imprisonment.

 

The offence in proposed subsection 101.4(2) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally possessed a thing and that the defendant was reckless as to whether the thing was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  To prove recklessness on the part of the defendant, the prosecution would have to demonstrate that the defendant was aware of a substantial risk that the thing was connected to a terrorist act and that, having regard to the circumstances known to the defendant, it was unjustifiable to take that risk (section 5.4, Criminal Code).  This offence would carry a maximum penalty of 10 years imprisonment.

 

Proposed subsection 101.4(3) makes it clear that an offence may arise under this section even if the terrorist act does not occur.  This is consistent with the operation of the equivalent offence in the Bill as introduced, and ensures that the offence can apply to preparation for terrorist acts.

 

Proposed subsection 101.4(4) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.4(1) or (2).  Category D jurisdiction is unrestricted.  Its application to the preparatory offences in section 101.4 means that the offences will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.  The application of Category D geographical jurisdiction is consistent with the terrorism offences in the Bill as introduced.

 

Proposed section 101.4(5) creates a defence to the offences in proposed subsection 101.4(1) and 101.4(2).  The defence applies if the person proves that the possession of the thing or collection or making of the document was not intended to facilitate preparations for, engagement in, or assistance in, a terrorist act .  The defendant bears an evidential burden in relation to this defence, ie, the defendant would only need to adduce or point to evidence that suggests a reasonable possibility they lacked this intent (section 13.4, Criminal Code).  The creation of this defence is consistent with the approach of the United Kingdom in relation to the equivalent offence in the Terrorism Act 2000 (although that offence imposes a more difficult ‘legal’ burden on a defendant to prove the defence). 

 

Proposed subsection 101.4(6) would ensure that where a person is charged with one of the above offences and the court is not satisfied that the person is guilty of that offence but is satisfied that the person is guilty of the other offence, the court may instead find the person guilty of the other offence.  Procedural fairness would have to be accorded to the defendant before an alternative verdict could be given.  This is a standard ‘alternative verdicts’ provision for situations where there are tiered or closely overlapping offences.  Equivalent provisions are found in subsections 132.1(9), 136.1(7), 471.2(6) and 471.2(7) of the Criminal Code.

 

Item 14

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to replace the offence of collecting or making a document connected with a terrorist act (proposed section 101.5) with two offences carrying different fault elements and graduated penalties. 

 

As a consequence of these amendments, absolute liability would no longer apply to the offence.  Instead, the prosecution would be required to prove fault in respect of the ‘terrorist connection’ element of each of the new offences .  The r emoval of absolute liability and the reverse onus in respect of fault implements Recommendation 3 of the Committee’s report on the Bill.

 

The offence in proposed subsection 101.5(1) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally collected or made a document and that the defendant knew that the document was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  This offence would attract a maximum penalty of 15 years imprisonment.

 

The offence in proposed subsection 101.5(2) would require the prosecution to prove beyond reasonable doubt that the defendant intentionally collected or made a document and that the defendant was reckless as to whether the document was connected with preparation for, the engagement of a person in, or assistance in, a terrorist act.  To prove recklessness on the part of the defendant, the prosecution would have to demonstrate that the defendant was aware of a substantial risk that the document was connected to a terrorist act and that, having regard to the circumstances known to the defendant, it was unjustifiable to take that risk (section 5.4, Criminal Code).  This offence would carry a maximum penalty of 10 years imprisonment.

 

Proposed subsection 101.5(3) makes it clear that an offence may arise under this section even if the terrorist act does not occur.  This is consistent with the operation of the equivalent offence in the Bill as introduced, and ensures that the offence can apply to preparation for terrorist acts.

 

Proposed subsection 101.5(4) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.5(1) or (2).  Category D jurisdiction is unrestricted.  Its application to the preparatory offences in section 101.5 means that the offences will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.  The application of Category D geographical jurisdiction is consistent with the terrorism offences in the Bill as introduced.

 

Proposed section 101.5(5) creates a defence to the offences in proposed subsection 101.5(1) and 101.5(2).  The defence applies if the person proves that the possession of the thing or collection or making of the document was not intended to facilitate preparations for, engagement in, or assistance in, a terrorist act .  The defendant bears an evidential burden in relation to this defence, ie, the defendant would only need to adduce or point to evidence that suggests a reasonable possibility they lacked this intent (section 13.4, Criminal Code). 

 

Proposed subsection 101.5(6) would ensure that where a person is charged with one of the offences and the court is not satisfied that the person is guilty of that offence but is satisfied that the person is guilty of one of the other offences, the court may instead find the person guilty of the other offence.  Procedural fairness would have to be accorded to the defendant before an alternative verdict could be given.  This is a standard ‘alternative verdicts’ provision for situations where there are tiered or closely overlapping offences.  Equivalent provisions are found in subsections 132.1(9), 136.1(7), 471.2(6) and 471.2(7) of the Criminal Code.

 

Item 15

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to replace the existing heading to proposed Division 102 with the new heading “Terrorist organisations”.  This amendment is consequent on the replacement of the proscribed organisations regime in proposed Division 102 with a range of offences relating to terrorist organisations by items 16, 17 and 18. 

 

Item 16

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to insert proposed new subdivision A of Division 102 to replace the existing subdivision A relating to proscribed organisations.  New subdivision A consists of section 102.1, which contains definitions relevant to the new terrorist organisations offences to be inserted by item 17.  The amendments made by this item and items 17 and 18 respond to Recommendation 4 of the Committee’s report on the Bill.

 

The definition of “member” is the same as the definition in the proscribed organisations provisions in the Bill as introduced.  “Member” is defined to include an informal member and a person who has taken steps to become a member to ensure that the terrorist organisations offences can apply in relation to organisations that do not have a formal membership structure, maintain membership lists or issue membership cards.  The definition of “recruit” would make it clear that recruiting a person to join, or participate in the activities of, a terrorist organisation includes induce, inciting or encouraging a person to join or participate.  The definition of “terrorist organisation” includes organisations engaged in, preparing, planning, assisting or fostering the doing of a terrorist act and organisations specified in regulations by the Governor-General. 

 

Proposed subsections 102.1(2) and (3) provide that the Governor-General can only make a regulation specifying an organisation if the Minister is satisfied on reasonable grounds (i) that it is an organisation engaged in, preparing, planning, assisting or fostering the doing of a terrorist act, or (ii) that the Security Council of the United Nations has made a decision relating wholly or partly to terrorism that identifies the organisation as an organisation to which the decision relates and that the organisation is engaged in, preparing, planning, assisting or fostering the doing of a terrorist act. 

 

Where there are regulations specifying an organisation, the prosecution would only need to prove the fact that the organisation is specified in regulation to prove it is a terrorist organisation and would not be required to adduce additional evidence of the Security Council’s decision or the organisation’s engagement in, or preparation or planning for, the doing of terrorist acts.  (This is subject to the regulation having been validly made; see below).  Listing an organisation also provides a more effective way to deter association with terrorist organisations by allowing a clear and unequivocal announcement that association with specified organisations is prohibited.

 

Regulations specifying an organisation would be tabled in Parliament and subject to disallowance.  Proposed subsection 102.1(4) ensures that the regulation will not take effect until after the disallowance period has expired.  This period is 15 sitting days in each House of Parliament after the regulation has been tabled (section 44 of the Acts Interpretation Act 1901 ).  Any regulation that is not made in accordance with the grounds set out in subsections 102.1(2) or 102.1(3) on the basis of proper evidence could be challenged in the courts as falling outside the requirements imposed by the regulation-making power.

 

Proposed subsection 102.1(5) provides that regulations specifying an organisation cease to have effect two years from the date on which they take effect.  However, this does not prevent regulations listing the same organisations from being made again, or the repeal of a regulation (proposed subsection 102.1(7)).  The proposed provision will ensure that the Minister reviews the listing of an organisation every two years to determine whether there are still reasonable grounds for listing the organisation.

 

Proposed subsection 102.1(6) provides that regulations specifying an organisation on the basis of a Security Council decision cease to have effect when the decision of the Security Council ceases to bind Australia under the Charter of the United Nations. 

 

Item 17

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to insert proposed new subdivision B of Division 102 to replace the existing subdivision B relating to proscribed organisations.  New subdivision B consists of proposed sections 102.2 to 102.7, which contain new terrorist organisations offences relating to directing, membership, recruitment, training, funding and provision of support or resources.  These new offences would replace the proscribed organisations offence in the Bill as introduced.  The amendments made by this item and items 16 and 18 respond to Recommendation 4 of the Committee’s report on the Bill.

 

Proposed section 102.2 would make it an offence to direct the activities of a terrorist organisation (replacing section 101.3 of the Bill as introduced).  Proposed section 102.3 would make it an offence to be a member of a terrorist organisation.  Proposed section 102.4 would make it an offence to recruit a person to join, or participate in the activities of, a terrorist organisation.  Proposed section 102.5 would make it an offence to provide training to, or receive training from, a terrorist organisation.  Proposed section 102.6 would make it an offence to receive funds from, or make funds available to, a terrorist organisation.  Proposed section 102.7 would make it an offence to provide support or resources to a terrorist organisation that would assist the organisation to engage, prepare, plan, assist or foster a terrorist act.  Proposed subsections 102.3(2) and 102.6(4) create defences to the membership and funding offences.  These defences are discussed in further detail below.

 

The membership offence in proposed section 102.3 would require the prosecution to prove beyond reasonable doubt that the organisation is an organisation engaged in, preparing, planning, assisting or fostering the doing of a terrorist act, regardless of whether the organisation is listed in regulations.  Furthermore, the offence would only apply where the defendant knows that the organisation to which he or she belongs is a terrorist organisation, as it is appropriate for an offence which applies to membership alone to require the prosecution to prove a high degree of fault.  To prove knowledge on the part of the defendant, the prosecution would have to demonstrate either that the defendant knew that the organisation engaged in, preparing, planning, assisting or fostering the doing of a terrorist act or, if the organisation is listed in regulations, that the defendant knew it was a listed organisation.  The membership offence would attract a maximum penalty of 25 years imprisonment. 

 

Proposed subsection 102.3(2) creates a defence to the membership offence.  The defence applies 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 first knew the organisation was a terrorist organisation.  The defendant bears a legal burden to prove this fact.  A legal burden of proof on the defendant must be discharged on the balance of probabilities (section 13.5, Criminal Code).  This reflects the need to ensure that defences to these serious offences cannot be raised without solid evidence.

 

Sections 102.2, 102.4, 102.5, 102.6 and 102.7 each contain three offences carrying different fault elements and graduated penalties.  The offences that require the prosecution to prove that the defendant knew the organisation was a terrorist organisation would carry a maximum penalty of 25 years imprisonment.  If the defendant is reckless as to whether the organisation is a terrorist organisation, a maximum penalty of 15 years imprisonment would apply.  Where the prosecution proves that the defendant was negligent with respect to the fact that the organisation was a terrorist organisation, the offence would attract a maximum penalty of 10 years imprisonment.

 

To prove that the defendant was reckless as to whether the organisation was a terrorist organisation, the prosecution would have to demonstrate that the defendant was aware of a substantial risk that the organisation was a terrorist organisation and that, having regard to the circumstances known to the defendant, it was unjustifiable to take that risk (section 5.4, Criminal Code). 

 

A defendant would be negligent with respect to the fact that the organisation was a terrorist organisation if his or her conduct involved:

(i) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(ii) such a high risk that the organisation was a terrorist organisation;

that the conduct merits criminal punishment for the offence (section 5.5, Criminal Code).  Negligence is a standard fault element recognised in the Criminal Code and is a fault element in numerous offences in Australian criminal law, including manslaughter.

 

Proposed subsection 102.6(4) creates a defence to the funding offence in proposed section 102.6.  The defence applies if the person proves that he or she received funds from an organisation solely for the purpose of providing legal representation for a person in proceedings relating to the Division (for example, challenging regulations or defending a prosecution for an offence) or assisting the organisation to comply with a legal requirement (for example, submitting a tax return).  As with the defence to the membership offence in proposed subsection 102.3(2), the defendant bears the legal burden of proving this defence.

 

Item 18

 

This item would amend item 4 of Schedule 1 to the Bill to insert proposed new subdivision C of Division 102 to replace the existing subdivision C relating to proscribed organisations.  New subdivision C contains provisions (proposed sections 102.9 and 102.10) generally applicable to the terrorist organisations offences in subdivision B (see item 17).  The amendments made by this item and items 16 and 17 respond to Recommendation 4 of the Committee’s report on the Bill.

 

Proposed section 102.9 applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against Division 102.  Category D jurisdiction is unrestricted.  Its application to the terrorist organisations offences means that the offences will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.  In view of the very serious nature of these offences and the depth of international concern regarding terrorist organisations it is appropriate for Australia to criminalise this conduct regardless of where it occurs.  The application of Category D geographical jurisdiction is consistent with the other terrorism offences in the Bill as introduced.

 

Proposed section 102.10 would ensure that where a person is charged with an offence against a subsection of section 102.2, 102.4, 102.5, 102.6 or 102.7 and the court is not satisfied that the person is guilty of that offence but is satisfied that the person is guilty of one of the other offences in that section, the court may instead find the person guilty of the other offence.  Procedural fairness would have to be accorded to the defendant before an alternative verdict could be given.  This is a standard ‘alternative verdicts’ provision for situations where there are tiered or closely overlapping offences.  Equivalent provisions are found in subsections 132.1(9), 136.1(7), 471.2(6) and 471.2(7) of the Criminal Code.

 

Item 19

 

This item would amend item 4 of Schedule 1 to the Bill as introduced to remove the transitional provision relating to proscribed organisations and substitute a new transitional provision relating to terrorist organisations.  This amendment is consequent upon the removal of the proscribed organisations provisions by item 15 of the Government amendments and their replacement with new terrorist organisations offences.

 

The transitional provision makes it clear that regulations could be made specifying an organisation for the purposes of paragraph (c) of the definition of “terrorist organisation” regardless of whether the Security Council decision relating to the organisation was made before or after the commencement of the terrorist organisations provisions.

 

Item 20

This item would insert new item 19 in Schedule 1 to the Bill as introduced to provide for a review of the provisions of the Security Legislation Amendment (Terrorism) Bill 2002, 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.  Item 19 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 Legislation Amendment (Terrorism) 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.