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National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004

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2002- 2003- 2002-2003 2004

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

CRIMINAL CODE AMENDMENT NATIONAL SECURITY INFORMATION ( HAMAS AND LASHKAR-E-TAYYIBA CRIMINAL PROCEEDINGS ) (CONSEQUENTIAL AMENDMENTS) BILL 200 3 4

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)



CRIMINAL CODE AMENDMENT NATIONAL SECURITY INFORMATION

( HAMAS AND LASHKAR-E-TA YY IBA CRIMINAL PROCEEDINGS ) (CONSEQUENTIAL AMENDMENTS) BILL 200 3 4

 

GENERAL OUTLINE

 

The Criminal Code Amendment National Security Information ( Hamas Criminal Proceedings and Lashka-e-Ta yy iba ) (Consequential Amendments) Bill 200 3 4 (the Bill) amends the Administrative Decisions (Judicial Review) Act 1977 and the Judiciary Act 1903 in regards to a court’s jurisdiction to hear or determine an application by a defendant in a federal criminal proceeding (the defendant) , where th e application relates to a decision of the Attorney-General to issue a certificate under section   120 24  or 122 26 of the National Security Information (Criminal Proceedings) Act 2004 (certificate decision).

 

Specifically, the Bill amends the Administrative Decisions (Judicial Review) Act 1977 to include a certificate decision of the Attorney - General as a related criminal justice process decision.  This amendment will have the effect of limiting the jurisdiction of a court to hear or determine a defendant’s application under that Act , where the application relates to a certificate decision of the Attorney-General.   In addition , the amendment will prevent a person from request ing the Attorney-General to provide reasons for the certificate decision .

 

The Bill amends the Judiciary Act 1903 to include a certificate decision of the Attorney - General as a related criminal justice process decision.  This amendment will have the effect of generally giving the Supreme Court of the State or Territory in which the prosecution or appeal is before , a court jurisdiction with respect to any matter in which the defendant seeks a writ of mandamus or prohibition or an injunction against the Attorney-General in relation to a certificate decision This amendment will generally exclude the jurisdiction of the Federal Court of Australia with respect to any of these matters. amends the Criminal Code Act 1995 (the Criminal Code) to enhance the Commonwealth’s ability to combat terrorism .

 

 

This Bill creates a basis for the identification and listing of the Hamas and Lashka-e-Tayyiba Hizballah External Security Organisation as terrorist organisations under Australian law, if the Minister is satisfied that the Hizballah External Security Organisation either Hamas and Lashka-e-Tayyiba    are engaged in terrorist activity. The effect of this is to avoid the requirement that an organisation be first identified in, or pursuant to, a decision of the United Nations Security Council relating wholly or partly to terrorism, or using a mechanism established under the decision, as a condition precedent to specifying the organisation in regulations as a terrorist organisation.

 

The Bill inserts a provision whereby, if either or both organisations are listed in a regulation made under the Bill, and the Minister subsequently ceases to be satisfied that either or both organisations are directly or indirectly engaged in terrorist activity, a declaration to that effect must be made. The result of such a declaration will be that any listing of the relevant organisation will cease to have effect      .

Schedule 1 The Bill will commence on 4 November 2003, the date the legislation was introduced into the House of Representatives to allow for the retrospective operation of the regulations if necessary.  If regulations are made,. They could operate retrospectively from the time at which a public announcement is made by a Minister stating the Government’s intention to list the Hizballah External Security Organisation either or both Hamas and Lashka-e-Tayyiba in regulations.

 

Financial Impact

 

The Bill is not It is not expected t o hat the Bill will have a direct financial impact.

 

 



NOTES ON CLAUSES

 

Part 1

 

  Preliminary

 

 

Clause 1: Short t T itle

 

This clause is a formal provision specifying the short title of the Bill This clause is a formal provision specifying the short title of the Bill .

 

Clause 2 2 : Commencement

 

This clause specifies the days on which the various provisions of the Bill commence.  Section 1 to 3   2 of the Bill ( and anything in the Bill not covered elsewhere by this clause) of

Subclause 2(1) provides that each provision of the Criminal Code Amendment ( Hizballah ) Act (2003) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

Sections 1 - 3 will commence on the day the Act receives the Royal Assent.

Schedule 1 will commence T t he   Bill is taken to have commenced on 4 November 200 commence on the day on which the Act receives Royal Assent of the Act 3 .  

 

Schedule s  1 Clauses 10 to 215 and 2 of the Bill commence s immediately after the commencement of sections   10 3 to   215 44 of the National Security Information (Criminal Proceedings) Act 2004 . on the 28 th day after the Act receives Royal Assent .

 

Clause 3 3 10 : Schedule(s)

 

This clause is the operative clause that gives effect to the amendments set out in the Schedules to the Act .

 

Schedule 1 - Amendment of the Administrative Decisions (Judicial Review) Act 1977

 

Item 1

 

This item repeals and substitutes the definition of related criminal justice process decision in subsection 9A (4) to include a reference to a certificate decision of the Attorney-General.   The effect of th is amendment is to limit , via subsection 9A (1), the jurisdiction of courts to hear a defendant’s application under the Administrative Decisions (Judicial Review) Act 1977 in relation to a certificate decision of the Attorney-General while the prosecution or appeal is before a court.

 

This amendment ensures that an application under the Act does not delay a prosecution or appeal that is before a court.

 

Item 2

 

This item inserts in Schedule 2 a certificate decision of the Attorney-General.   Th e effect of this amendment is that section   13 will not apply to a certificate decision of the Attorney-General Th is means that a person cannot request the Attorney-General to furnish a written statement setting out the findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the certificate decision.

 

The nature of a certificate decision is such that exposure of the reasons for the decisions could itself prejudice Australia’s national security .   For this reason, the Attorney-General is not required to provide a statement of reasons under section   13 of the Act.

Schedule 2 - Amendment of the Judiciary Act 1903

 

Item 1

 

This item repeals and substitutes the definition of related criminal justice process decision in subsection 39B (3) to include a reference to a certificate decision of the Attorney-General.   The effect of this amendment is to give give generally , via subsection 39B (1 C ) , the Supreme Court of the State or Territory in which the prosecution or appeal is before a court, jurisdiction with respect to any matter in which the defendant seeks a writ of mandamus or prohibition or an injunction against the Attorney-General in relation to a certificate decision Th is amendment also generally excludes the jurisdiction of the Federal Court of Australia with respect to any such matter.   S ubsection 39B (1D) provides an exception where the prosecution in question has not commenced .

 

This amendment promotes administrative efficiency by ensuring that the application for a writ of mandamus or prohibition or an injunction is heard by the same court that is likely to hear the prosecution or appeal . Schedule(s) Object of this Act

 

Clause 3 10 provides th e object of the Act.

 

Clause 15: Extension of Act to external Territories

 

This clause provides that the Bill extends to all external Territories.

 

Clause 20: Act binds the Crown

 

This clause provides that the Bill binds the Crown.

 

Part 2

 

Interpretation

 

 

Division 1 - Definitions

 

Clause 25: Definitions

 

This clause defines many of the terms that are defined elsewhere in the Bill .

 

Division 2 - National   S ecurity and national security information

 

Clause 30: Meaning of national security

 

 

 

Clause 35: Meaning of security

 

 

 

Clause 40: Meaning of international relations

 

 

 

Clause 45: Meaning of law enforcement interests

 

 

 

Clause 50: Meaning of national interests

 

 

 

Clause 55: Meaning of security information

 

 

Division 3 - Federal C riminal proceeding etc

 

Clause 60: Meaning of federal criminal proceeding

 

 

 

Clause 65 Meaning of criminal proceeding

 

 

 

Clause 68: Meaning of defendant

 

 

 

Division 4 - Other interpretation provisions

 

Clause 70: Operation of other Acts etc.

 

 

 

Clause 75: General powers of a court

 

 

Part 3

 

Protection of national security information in federal criminal proceedings

 

Division 1 - Preliminary

 

Clause 80: Application of Part

 

 

 

Clause 85: Court must have regard to object of this Act

 

 

 

Division 2 - Management of national security information

 

Clause 90: Pre-trial conferences

 

 

 

Clause 95: Arra n gements about disclosure etc. of national security information

 

 

 

 

Division 4 - Closed hearings and non-disclosure orders

 

Clause 145: Closed hearing requirements

 

 

 

Clause 147 : Intervention by the Attorney-General

 

 

 

Clause 175: Duration of court orders

 

 

 

Division 5 - Ap p ea l s

 

Clause 185: Appeals

 

 

 

Part 4

 

Security Clearances

 

Clause 190: Defendants legal representative etc. must apply for a security clearance

 

 

 

Clause 195: Access to national security information

 

 

 

Part 5

 

Offences

 

 

 

Part 6

 

Miscellaneous

 

Clause 210: Rules of court

 

 

 

Clause 215: Regulation s

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

at each Act specified in a Schedule is amended as set out in the Schedule concerned.

 

 

 

Schedule 1 - Amendments

 

Item 1 - The Schedule (subsection 102.1(1) of the Criminal Code )

 

Item 1 inserts a definition of ‘Hamas Organisation’ into subsection 102.1(1) to mean the

 

 

 

 

 

 

Item 1 inserts paragraph (c).



Proposed subsection 102.1(1)(c) defines ‘Hizballah Organisation’ to mean the Hizballah External Security Organisation, and whatever name the organisation is known by from time to time, and any organisation derived from that organisation.  This provision means that the Act will continue to operate with respect to the Hizballah External Security Organisation and its derivatives even if that organisation changes its name.

 

For the purpose of the definition of ‘terrorist organisation’, the Hizballah External Security Organisation is a terrorist organisation if that is organisation is specified by regulations for the purposes of this paragraph.  That is, that it meets the criteria set out in subsections (7), (8) and (9).

 

Item 3 - The Schedule (subsection 102.1 (7), (8), (9), (10), (11), (12), (13), and (14) of the Criminal Code )

 

Proposed Subsection 102.1(7)

 

Proposed subsection 102.1(7) enables the Hizballah External Security Organisation to be specified in regulations as terrorist organisations if the Minister is satisfied on reasonable grounds that either or both of the organisations are 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.

It will remain a requirement for the Minister to be satisfied that the relevant organisation is engaged in terrorist activity.

Proposed Subsection 102.1(8)

Proposed subsection 102.1(8) is, in effect, a sunset clause that provides that if regulations are made for the purpose of listing either or both organisations as terrorist organisations the regulations will only be valid for two years from the date they are made unless, during that time, the regulations are repealed or otherwise cease to have effect, or new regulations are made which are, in substance, the same.

Proposed Subsection 102.1(9)

Proposed subsection 102.1(9) inserts a mechanism making ineffective a listing of either or both organisations, in the event that the Minister ceases to be satisfied of certain matters, colloquially referred to as ‘de-listing’. In the event that the conditions specified in paragraphs (a) and (b) are satisfied, subsection 102.1(9) obliges the Minister to make a declaration, to be published in the Gazette , detailing the matters described in those paragraphs.

This provision requires the Minister to publish a written notice of his or her decision to “de-list” either or both organisations. The regulation(s) will cease to have effect from the date of that declaration.  This does not prevent authorities from investigating and, if appropriate, prosecuting for offences committed in relation to either or both organisations (membership of a terrorist organisation; directing activities of a terrorist organisation etc.) where these offences occurred prior to the de-listing of the relevant organisation.

This provision provides the Minister with the ability to make a determination about the suitability of continuing to specify either or both organisations in regulations, which is independent of the initial decision to specify that organisation in regulations, and to “de-list” the organisation where such a course of action is determined by the Minister to be appropriate.  These provisions are of course predicated on the Minister making a decision to specify either or both organisations in regulations.

Proposed Subsection 102.1(10)

Proposed subsection 102.1(10) provides that either or both organisations, if de-listed under subsection 102.1(9), may be subsequently re-listed. This provision takes account of the potentially changing nature of the organisation, in terms of such factors as leadership, organisational aspirations, activity, etc.

Proposed Subsection 102.1(11) and (12)

Proposed subsection 102.1(11) introduces a mechanism allowing for the listing of either or both organisations in regulations to operate retrospectively, subject to paragraphs 102.1(11)(a)-(c), from the time of a public announcement made by the Minister, or another Minister, as described in paragraph (b). 

Paragraph (a) ensures that the retrospective operation of the regulation(s) does not pre-empt the decision-making process of the Minister which is required before the either or both organisation can be specified in regulations.

Paragraph (b) then requires the Minister to make a public announcement to that effect.  The listing of either or both organisations will commence from the time of that announcement.  That announcement must also be published on the internet and in major daily newspapers pursuant to subsection 102.1(12).  The announcement must be made on the same day that the Attorney-General makes a determination that he or she is satisfied of the conditions set out in subsection 102.1(7) for the purposes of paragraph 102.1(10)(a).

Paragraph (c) provides that a regulation specifying either or both organisations to be a terrorist organisation be made within 60 days of the day on which the Act receives Royal Assent in order for it to operate retrospectively from the date of the announcement for the purposes of the subsection. Paragraph (c) effectively operates as a sunset clause, limiting the period of time in which regulations with retrospective application can be made to 60 days after the commencement of the Act.

Proposed Subsection 102.1(13)

Proposed subsection 102.1(13) provides that, if a regulation ceases to have effect as a result of this section, section 50 of the Acts Interpretation Act 1901 applies.   This means that, in the event a regulation ceases to have effect pursuant to this section, certain matters, consequent upon the operation of that regulation while in force and necessary for the proper operation of the regulation, will not be affected despite the regulation subsequently ceasing to have effect.

Proposed Subsection 102.1(14)

The provision ensures that the scope of operation of paragraph 102.1(1)(b) is not diminished in relation to its potential applicability to either or both organisations, notwithstanding that paragraph 102.1(1)(c) (definition of terrorist organisation) applies exclusively to that organisation.  That is, paragraph 102.1(1)(c) is not intended to constitute the sole mechanism by which either or both organisations might be identified as a terrorist organisation for the purposes of section 102.1.

 

Item 4 - The Schedule (paragraph 102.3(1)(b) of the Criminal Code )

This item ensures that paragraph 102.3(1)(b) in relation to terrorist organisation membership offences includes paragraphs 102.1(1)(d) and (e), the definition of terrorist organisation that is specific to Hamas and Lashkar-e-Taiba.