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Anti-Terrorism Laws Reform Bill 2009

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2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

Anti-Terrorism Laws Reform Bill 2009

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator S Ludlam)

 

 

 

 

 

 



 

 

ANTI-TERRORISM LAWS REFORM BILL 2009

 

Outline

 

The Anti-Terrorism Reform Bill 2009 (the Bill) purpose is to restore core democratic principles into Australian laws dealing with terrorism offences.

 

The Bill amends the following Acts:

 

·          Criminal Code Act 1995 to amend the definitions relating to terrorism offences, provisions relating to the proscription of ‘terrorist organisations', offences relating to interaction with ‘terrorist organisations’, offence relating to 'reckless possession of a thing' and repealing the offence of sedition;

 

·          Crimes Act 1914 to amend provisions relating to detention of terrorism suspects including changes to the periods of detention of persons suspected of terrorism offences and bail conditions for such persons; and

 

·          Australian Security Information Organisation Act 1979 to amend provisions relating to the questioning of terrorism suspects and the detention of terrorism suspects.

 

The Bill also repeals the National Security Information Act 2004 .

 

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.       This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

2.       The Bill's provisions are to commence the day after it receives Royal Assent

 

Clause 3 - Schedules

 

3.       This clause provides that an Act that is specified in a Schedule in amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.



 

 

 

Schedule 1 - Amendments to the Criminal Code Act 1995

 

Criminal Code Act 1995

 

Items 1 and 2 - Repeal of Sedition offences

 

4.       Item 1 repeals section 80.2 of the Criminal Code Act 1995. Section 80.2 currently provides for the offence of sedition. Item 2 is a consequential amendment deleting references to section 80.2.

 

Items 3 and 4 - Definition of terrorist act

 

5.       This item repeals the current definition of terrorist act in section 100.1 of the Criminal Code Act 1995 and inserts a new definition . The definition inserted by the Bill is based on the definition used by the United Nations Security Council.

 

6.       Item 3 removes references to "threat of action" and "advancing a political, religious or ideological cause" in subsection 100.1(1).

 

7.       Items 4 amends subsections 100 .1(2) and (3) to:

 

·          limit action that can be considered a terrorist act to action that causes a person's death; endangers a person's life (other than the person taking the action); causes serious physical harm to a person; involves taking a person hostage or creates or a serious risk to the health or safety of the public;

·          remove references to the damage of property and interference, disruption or destruction of information, telecommunication, financial, transport, or essential public utility systems or the delivery of essential government services as action that can be considered a terrorist act; and

·          includes that an action will not fall within the definition of a terrorist act if the action is not intended either to cause a person’s death, to cause serious physical harm to a person, or to be a taking of a person hostage.

 

8.       Item 4 also adds subsection (3A) to section 100.1 to provide that action will not be a terrorist act if it takes place in the context of, and is associated with, an armed conflict. The armed conflict need not be an international armed conflict. A new subsection (3B) defines a rmed conflict as having the same meaning as in Division 268 of the Criminal Code Act 1995 . The new subsection (3B) also defines take a person hostage as to seize or detail that person and to threaten to kill, injure to continue to detail that person.

 

 

Item 5 - Possessing things connected with terrorist acts

 

9.       This item repeals section 101.4 of the Criminal Code Act 1995 . Section 101.4 provides for the offence of possessing things connected with terrorist acts.

 

 

 

Item 7 - Definition of terrorist organisation

 

10.   This item removes the reference to "fostering the doing of" a terrorist act in the definition of terrorist organisation in section 102.1 of the Criminal Code Act 1995 .

 

Items 6,  8 and 10 - Terrorist organisation regulations

 

11.   These items amend section 102.1 of the Criminal Code which provides for terrorist organisations to be proscribed in regulations. The items amend section 102.1 to:

·          provide notification, if it is practicable, to a person, or organization affected, when the proscription of an organization is proposed.

·          provide the means, and right, for persons and organizations, to be heard in opposition, when proscription is considered. 

·          provide for the establishment of an advisory committee, to be appointed to advice the Attorney-General on cases that have been submitted for proscription of an organization.

·          require the committee to consist of people who are independent of the process of proscribing terrorist organizations, such as those with expertise in security analysis, public affairs, public administration and legal practice.

·          require the role of the committee be publicised,

·          allow the committee to consult publicly and to receive submissions from members of the public to assist in their role.

 

12.   Item 8 repeals subsection 102.1(2) and inserts new subsections 102.1(1AA), (2), (2AA), (2AB), (2AC), (2AD), and (2AE). The new subsection 102.1(1AA) provides that an organisation that has been notified that it is proposed to be listed as a terrorist organisation has the right to oppose the proposed listing. Subsection (2) provides that before the Governor-General makes a regulation specifying an organisation as a terrorist organisation, the Minister must ensure the organisation is notified, if it is practical to do so, of the proposed listing and the organisation and its members are notified of their right to oppose the proposed listing.  If the proposed listing is at the request of a foreign country the organisation, its members and the Advisory Committee must be advised of that fact. The Minster must also be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in the doing of a terrorist act or advocates the doing of a terrorist act.

 

13.    Subsection (2AA) requires the Minister to seek advice and take into account recommendations of the Advisory Committee in making a decision whether the Minster is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in the doing of a terrorist act or advocates the doing of a terrorist act.

 

14.   Subsection (2AB) provides that if the Governor-General makes a regulation listing an organisation, the Minister must ensure the organisation is notified of the listing and the consequences of that listing for its member. The Minister must also cause to be published, on the internet, in newspapers, in the Gazette and in any other way required by regulation, a notice that the regulation has been made and the consequences of the listing for the members of the organisation.

 

15.   Subsection (2AC) requires if the listing was requested by a foreign country, the notice under (2AB) must include that information.

 

16.   Subsection (2AD) provides that the making of a regulation listing an organisation constitutes a decision to list an organisation for the purposes of subsection (2AE) and section 102.1AA.

 

17.   Subsection (2AE) provides that a notice under (2AB) must also state that the decision to list an organisation may be reviewed by the Administrative Appeals Tribunal. The notice must also state the time in which such an application can be made, who can apply for the review and where the application for review can be made.

 

18.   Item 9 inserts new sections 102.1AA, 102.1AB and 102.1AC.

 

19.   Section 102.1AA provides that application can be made to the Administrative Appeals Tribunal for a review of a decision to list an organisation. It also provides that regulations must be made to provide for the procedures to be followed by the Tribunal in considering such an application.

 

20.   Section 102.1AB establishes a Listing Advisory Committee. The Advisory Committee is to consist of at least 5 members appointed by the Minister. Members are to hold office on a part-time basis for a specified period of no more than 3 years. The terms and conditions of the appointment including remuneration are determined in the instrument of appointment. The Minster must not appoint a person to the Advisory Committee unless the Minister is satisfied the person is not otherwise connected to the process of listing an organisation and if the Minster is satisfied that the person has knowledge of or experience in human or civil rights, security analysis, public affairs, public administration, legal practice or a field specified in regulations. One member of the Advisory Committee is to be appointed by the Minister as the convenor. The Minister may terminate the appointment of a member in writing. A member may also resign in writing.

 

21.   Section 102.1AC provides for the functions of the Advisory Committee which include advising the Minister on any proposed listing of an organisation and to consider and make recommendations on any application made to the Minister opposing a propose listing. The Advisory Committee may publicise its role, engage in public consultations or do anything else it considers necessary in carrying out its function.

 

22.   Item 6 inserts into subsection 102.1(1) a definition of Advisory Committee as the Listing Advisory Committee established by section 102.1AB.

 

Item 10 - Training a terrorist organisation or receiving training from a terrorist organisation

 

23.   This item repeals and replaces section 102.5 providing for the offence of training a terrorist organisation or receiving training from a terrorist organisation. The new subsection 102.5(1) provides a person commits an offence with a penalty of imprisonment up to 25 years if the person intentionally provides training to a terrorist organisation or receives training from a terrorist organization and the person knows the organisation is a terrorist organisation. New subsection 102.5(2) provides for an offence of training a terrorist organisation or receiving training from a terrorist organisation where the person is reckless as to whether the organisation is a terrorist organisation. This offence carries a penalty of up to 15 years imprisonment. The amendment also removes the strict liability for the offence of training a terrorist organisation or receiving training from a terrorist organisation where the organisation is specified in the regulations made under section 102.1(1).

 

Items 11 to 15 - Providing support to a terrorist organisation

 

24.    These items amend section 102.7 of the Criminal Code Act 1995 to replace the word "support" with the term "material support" and define material support to exclude the mere publication of views that appear to be favourable to an organisation or its objectives. These items implement a recommendation by the Parliamentary Joint Committee on Intelligence and Security made in their Review of Security and Counter-Terrorism Legislation in December 2006.

 

25.   The amendments also provide that for an offence under section 102.7 to be committed a person must intend the material support or resources provided to be used by a terrorist organisation to engage in certain activities.

 

Item 16 - Associating with a terrorist organisation

 

26.   This item repeals section 102.8 of the Criminal Code Act 1995 . Section 102.8 currently provides for the offence of associating with a terrorist organisation.

 



 

Schedule 2 - Amendments to the Crimes Act 1914

 

Crimes Act 1914

 

Item 1 - Bail

 

27.   This item repeals section 15AA of the Crimes Act 1914 . Section 15AA currently provides for a presumption against bail for certain offences.

 

Items 2 to 7 - Powers of detention

 

28.   These items amend provisions relating to the powers of detention for person suspected of terrorism offences.

 

29.   Item 2 inserts a new section 23BA requiring that a person detained under this Division 2 of Part IC of the Crimes Act 1914 shall be informed of their rights.

 

30.   Items 4 and 5 repeal provisions specifying time during which suspension or delay of questioning can be disregarded. This time is known as 'investigative dead time' and has the effect of prolonging the period a person can be detained. Item 4 repeals paragraph 23CA(8)(l) and item 5 repeals section 23CB. Items 3 and 6 are a consequential amendment to items 4 and 5.

 

31.   Item 7 repeals and replaces subsection 23DA(2) to require an application for the extension of an investigative period to be made to a judge of the federal court who is a judicial officer. 

 

 

 

Schedule 3 - Amendments to the Australian Security Intelligence Organisation Act 1979 (ASIO Act)

 

Australian Security Intelligence Organisation Act 1979

 

Items 1 to 4 - Questioning and detention warrants

 

32.   These items amend provisions relating to the ability of the Minster to allow detention without charge to continue beyond 168 hours if at the end of the 2168 hours new material justified the issuing of a separate warrant.

 

33.    Item 2 amends subsection 34F(6) to insert new paragraphs (c) and (d). New paragraph (c) provides that the Minister may not consent to a request to issue a warrant under section 34G unless the Minister is satisfied that the offence in relation to which the warrant sought was committed after the end of the person's first period of detention under Division 3 of Part III of the ASIO Act and arose in different circumstances to those in the offence to which the earlier warrant arose. New paragraph (d) provides that the questioning of the person under the warrant sought under section 34G must not relate to the offence to which any earlier warrant relates or the circumstances in which such an offence was committed. Item 1 is a consequential amendment to Item 2.

 

34.   Item 4 amends subsection 34G(2) to insert new paragraphs (c) and (d). New paragraph (c) provides that a warrant under section 34G may not be issued by the issuing authority unless the issuing authority is satisfied that the offence in relation to which the warrant is sought was committed after the end of the person's period of detention  under Division 3 of Part III of the ASIO Act for the first arrest and arose in different circumstances to those in the offence to which any earlier warrants arose. New paragraph (d) provides that the questioning of the person under the warrant requested must not relate to the offence to which any earlier warrant relates or the circumstances in which such an offence was committed. Item 3 is a consequential amendment to Item 4.

 

 

Item 6 - Directions by prescribed authority

 

35.   Item 6 repeals subsection 34K(10) of the ASIO Act. This removes the prohibition on a person who has been taken into custody or detained under Division 3 of Part III of the ASIO Act from contacting anyone while in custody or detention.

 

Items 5 and 7 - Persons not to be detained for more than 24 hours

 

36.   Item 7 amends section 34S to replace "168 hours" with "24 hours". This item provides that the maximum period a person may be detained under Division 3 of Part III of the ASIO Act is 24 hours. Item 5 is a consequential amendment to item 7.

 

Items 8 to 11 - Repeal of other provisions

 

37.   Item 8 repeals section 34ZP of the ASIO Act. Section 34ZP currently provides that a person may be questioned under a warrant issued under Division 3 of Part III of the ASIO Act in the absence of their lawyer of choice.

 

38.   Item 9 repeals section 34ZR of the ASIO Act. Section 34ZR currently provides for a parent, guardian or other representative of a person being questioned under a warrant issued under Division 3 of Part III of the ASIO Act to be removed if a prescribed authority considers the parent or guardian or other representative's conduct is unduly disrupting questioning of the person.

 

39.   Item 10 repeals subsection 34ZS(2) of the ASIO Act. Subsection 34ZS(2) currently provides for an offence with a penalty of imprisonment of 5 years if a person discloses operational information and the person has the information as a direct or indirect result of the issue of  a warrant under Division 3 of Part III of the ASIO Act or the doing of anything authorised by or in connection with the warrant within 2 years starting the end of the period specified in the warrant as the period during which the warrant is to be in force. The disclosure must not be a permitted disclosure. The terms operation information and permitted disclosure are defined in subsection 34ZS(5).

 

40.   Item 11 repeals section 34ZT of the ASIO Act.  Section 34ZT currently provides that regulations may be made to prohibit or regulate access to information by lawyers acting for a person in connection with proceedings for a remedy relating to a warrant issued under Division 3 of Part III of the ASIO Act in relation to the person or the treatment of the person in connection with such a warrant.

 

 

 

 

Schedule 4 - Repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004

 

Item 1 - Repeal

 

41.   Item 1 repeals the National Security Information (Criminal and Civil Proceedings) Act 2004 .