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Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Lambie)



CRIMINAL CODE AMENDMENT (PROHIBITION OF FULL FACE COVERINGS IN PUBLIC PLACES) BILL 2017

 

OUTLINE

 

The purpose of the Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017 is to amend the Criminal Code Act 1995 (Cth) to increase security in all public places covered under the jurisdiction of the Commonwealth, and promote civil harmony and assimilation in a climate of increasing public safety issues.

 

It is necessary for this Bill to be linked to the National Terrorism Threat Level and activated when the terrorism threat level reaches 'Probable'. By doing this, the public can feel at ease knowing the Government is doing everything it can to protect its citizens in face of the growing threat of terrorism. Full face coverings conceal the identity of the wearer, disrupting the authorities’ ability to track down a perpetrator in the event of a crime. Prohibiting the use of full face coverings also acts as a deterrent to those who contemplate committing a crime.  This prohibition promotes public safety by making it easier to identify everyone.

 

The main provisions of this Bill will restrict people from wearing full face coverings in a Commonwealth place, such as airports, seaports and the Northern and Australian Capital Territories. There are commonsense exceptions, including the lawful pursuit of the wearer’s occupation; lawful entertainment, recreation and sport; genuine artistic purpose; and safety equipment.

 

This Bill will also introduce a further two offences: a) for those who intimidate or force an adult into wearing identity concealing garments. b) for those who force or intimidate children into wearing identity concealing garments.

 

In Australia, the threat from organised crime and terrorism is real. Gone are the easy days where we knew and trusted our neighbours and left our backdoors unlocked. Many Australians fear for their lives as soon as they step out their front door, never knowing if they will be the victim of a random terrorist attack, or if they will feel the impact of organised crime groups flooding our communities with drugs like ice.

 

The security and the safety of the community must come first. Moreover, the community must feel safe. Full face coverings such as helmets, masks, balaclavas and other facial coverings worn in public without good reason, often cause unnecessary fear with the Australian general public. Therefore, the security and safety will be enhanced with the introduction of this Bill.

 

While I acknowledge the right of people to express their religion, custom and culture, I also acknowledge that there are limits to those individual rights, especially when it becomes necessary to protect the rights and freedoms of others. It is now time to protect the rights and freedoms of the majority of Australians and send a powerful message to those who want to undermine our peaceful, democratic lifestyle and culture.

 

Australians are not the only people who have expressed concerns and feel unsafe when citizens wear full face coverings without good reason in public. As a secular State, France has already banned face coverings in public spaces, including masks, helmets, balaclavas, burqas and niqabs. In France, the law defines public space to include the street, museums, shops, public transportation, parks, banks and even during the course of employment within the public sector. According to Parliamentary Library research, Belgium and Turkey have also successfully implemented similar laws.

 

This legislation will enable all Australians who want to go peacefully about their business, to feel safe in public spaces. It does so by enacting commonsense security provisions.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.                        This clause provides for the Bill, once enacted, to be called the Criminal Code Amendment ( Prohibition of Full Face Coverings in Public Places) Act 2017.

Clause 2: Commencement

2.                        T his clause provides for Schedule 1 to commence the day after this Bill receives Royal Assent.

Clause 3 - Schedules

3.                   Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Criminal Code Act 1995

4.                   This Schedule amends the Criminal Code Act 1995 to prohibit full face coverings in public places under the jurisdiction of the Commonwealth.

Item 1 - At the end of Chapter 9 of the Criminal Code

5.                   This Item adds new Part 9.10—Wearing full face coverings in public places and new Division 395—Wearing full face coverings in public places.

  

·          Subdivision 395.1clarifies the jurisdiction of this Bill, namely a Commonwealth place within the definition of the Commonwealth Places (Application of Laws) Act 1970 and Australian territories.

·          Subdivision 395.2, subsection (1) provides for the time in which the Minister must declare the prohibition of full face coverings. Specifically, this sub-section details that the prohibition must be declared when a threat level under the National Terrorism Advisory System is higher than possible. The National Terrorism Advisory System measures the nation’s terrorism threat level. There are five levels that inform the public of the likelihood of an act of terrorism occurring in Australia. Beginning at the lowest level, the scale is: Not Expected, Possible, Probable, Expected and Certain (the highest level).

·          Subsection (2) of Subdivision 395.2 states that the declaration made under subsection (1) is not a disallowable instrument. It is inappropriate to disallow this item under section 42 of the Legislation Act 2003 , for national security reasons. The time period for disallowance is 15 sitting days, whereas a terrorist threat, or terrorist action, must be dealt with immediately for the safety of the nation and cannot be put on hold for an indefinite period of time.

·          Subdivision 395.3 outlines that a person commits an offence if the relevant terrorism threat declaration is in force and wears a full face covering in a public place; if a person compels another person to wear a full face covering in a public place; and if a person compels a child to wear a full face covering in a public place.

·          Subsection (4) of this subdivision provides for exceptions to this law, including: the lawful pursuit of the wearer’s occupation, the wearer’s participation in lawful entertainment, recreation, or sport; genuine artistic purpose; and protective gear.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The first and foremost purpose of this Bill is public safety. When people have the intention of committing a crime, in many cases, they attempt to conceal their identity so they have the best chance of evading the law.

 

This Bill will restrict the ability for someone to conceal their identity in Commonwealth jurisdiction, such as airports, seaports, and the Northern and Australian Capital Territories.

 

Once enacted, this Bill will create a legislative environment in which Australian citizens can feel safe, which has been compromised due to the ongoing Middle Eastern wars Australia has participated in - and still participates in.

 

While this Bill takes into account exceptions for full face coverings in the genuine pursuit of entertainment, work, and artistic purpose; the right of the Australian public to feel safe must be the primary consideration of the Government.

 

Full face covering prohibition will act as a deterrent, and may have the effect of lowering crime rates. However, the primary purpose is increased national security and a safe environment for Australian citizens in public places.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms. This bill may impact on the religious freedoms of some groups of people living in Australia, however by linking the restrictions on facial coverings to the National Terrorism Threat Level it is a reasonable and balanced approach to maintaining and enhancing public security at a time when further public attacks by extremists and enemies of Australia are considered certain by all our security agencies.

 

Conclusion

This Bill is compatible with human rights as its measures are reasonable and proportional to the declared threat level.

 

Senator Lambie