Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2013-2014

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

COUNTER-TERRORISM LEGISLATION AMENDMENT (FOREIGN FIGHTERS) BILL 2014

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments

to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)



AMENDMENTS TO THE COUNTER-TERRORISM LEGISLATION AMENDMENT (FOREIGN FIGHTERS) BILL 2014

General outline

1.                   The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Bill) was introduced in the Senate on 24 September 2014, and was the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security (the Committee) on 17 October 2014.

2.                   The Government will move a number of amendments to the Bill to implement the recommendations made by the Committee in its Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Report of the Parliamentary Joint Committee on Intelligence and Security). 

3.                   In addition, the Government will move a technical amendment to the Migration Act 1958 (Migration Act) to correct an error that occurred in the drafting of the Bill.

Financial impact statement

4.                   The amendments to the Bill do not have a financial impact.



5.                    

Statement of compatibility with human rights

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

Amendments to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

6.                   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

7.                   The amendments to Schedule 1 of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Bill) amend the Australian Passports Act 2005 (Australian Passports Act), the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Crimes Act 1914 (Crimes Act), the Criminal Code Act 1995 (Criminal Code), the Foreign Evidence Act 1994 (Foreign Evidence Act) , the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act), the Independent National Security Legislation Amendment Act 2010 (INSLM Act), the Intelligence Services Act 2001 (Intelligence Services Act) and the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act) to implement recommendations of the Report of the Parliamentary Joint Committee on Intelligence and Security.

8.                   Amendments to Schedules 2, 3 and 5 of the Bill, which amend the Migration Act, A New Tax System (Family Assistance) Act 1999 (Family Assistance Act), the Paid Parental Leave Act 2010 (PPL Act), the Social Security Act 1991 (Social Security Act) and the Customs Act 1901 (Customs Act), implement recommendations of the Report of the Parliamentary Joint Committee on Intelligence and Security.  One of the amendments to Schedule 5 makes a technical correction to the Migration Act to address an error that occurred late in the drafting of the Bill.

Overview of measures

Australian Passports Act 2005

9.                   The amendments to the Australian Passports Act include:

·        limiting the power to request the suspension of an Australian travel document to the Director-General of Security

·        providing that the Director-General of Security can only delegate the power to request the suspension of an Australian travel document to one or more Deputy Director-Generals of Security

·        requiring the Minister administering the Australian Federal Police Act 1979 to consider whether to revoke a certificate issued under subsection 48A(4) facilitating a ‘silent’ passport cancellation within 12 months of the issuing of that certificate and then every 12 months after the Minister last considered whether to revoke the certificate, and

·        limiting the power of the Minister for Foreign Affairs to delegate the power to suspend an Australian travel document to the Secretary of the Department of Foreign Affairs and Trade.

 Australian Security Intelligence Organisation Act 1979

10.               The amendments to the ASIO Act include :

·          provide that the questioning and detention and questioning powers in the ASIO Act will sunset on 7 September 2018, and

·          require the Attorney-General to consider whether to revoke a certificate issued under paragraph 38(2)(a) of the ASIO Act within 12 months after the issuing of that certificate and then every 12 months after the Attorney-General last considered whether to revoke the certificate.

Crimes Act 1914

11.               Amendments to the Crimes Act reduce the sunset period for the powers in Division 3A of Part 1A of the Crimes Act.  

12.               In addition, amendments to the Crimes Act relating to delayed notification search warrants include:

·        limit the categories of eligible issuing officers available to issue delayed notification search warrants or perform other relevant functions under new Part IAAA

·        reduce the extension period to delay notification to an occupier of a warrant premise or an occupier of an adjoining premise without seeking Ministerial authorisation from 18 months to 12 months, and

·        insert additional exemptions to the unauthorised disclosure of information to address disclosure in the course of obtaining legal advice and disclosure of warrant information to the Ombudsman.

Criminal Code Act 1995

13.               The Criminal Code is amended to reduce the sunset period for the operation of the powers in the Division.

14.               The amendments to the Criminal Code also include enhancements to the preventative detention order regime to:

·        clarify the requirements when applying for a preventative detention order in relation to a person whose name is not known, and

·        reduce the sunset period for the operation of the powers in the Division.

15.               The amendments to the Criminal Code also include enhancements to foreign incursions and recruitment provisions to:

·        replace the phrase ‘engage in subverting society’ with a cross-reference to the conduct contained in the definition of ‘terrorist act’ in section 100.1 of the Criminal Code and constraining it to conduct that would be considered to be a ‘serious offence’ if undertaken within Australia

·        provide that a declaration for the purposes of the declared area offence cannot cover an entire country, and

·        provide for the Parliamentary Joint Committee on Intelligence and Security to review each declaration before the end of the disallowance period.

Foreign Evidence Act 1994

16.               The amendments to the Foreign Evidence Act include:

·        extend the application of the admissibility exception of foreign evidence obtained by torture or duress by public officials to such torture or duress committed by any person who directly obtained material as a result of torture or duress

·        expand the definition of ‘duress’ to include other threats that a reasonable person might respond to, namely, imminent threats to a third party or damage or loss of the person’s significant assets, and

·        require the court to give an appropriate instruction to the jury about the potential unreliability of foreign evidence admitted in terrorism-related proceedings unless there is a good reason not to do so. 

Foreign Passports (Law Enforcement and Security) Act 2005

17.               The amendments to the Foreign Passports Act include:

·        limit the power to request the 14-day surrender of a person’s foreign travel document to the Director-General of Security, and

·        provide that the Director-General of Security can only delegate the power to request the 14-day surrender of a person’s foreign travel document to one or more Deputy Director-Generals of Security.

Independent National Security Legislation Monitor Act 2010

18.               The amendments to the INSLM Act provide for the Independent National Security Legislation Monitor to complete a review of:

·          the control order regime in Division 104 of the Criminal Code

·          the preventative detention order regime in Division 105 of the Criminal Code

·          the new declared areas offence in section 119.2 of the Criminal Code

·          the terrorism stop, search and seizure powers in Division 3A of Part 1A of the Crimes Act, and

·          the detention and questioning and questioning powers in Subdivisions B and C of Division 3 of Part III of the ASIO Act.

by 7 September 2017.



 

Intelligence Service Act 2001

19.               The amendments to the Intelligence Services Act include:

·          provide for the Parliamentary Joint Committee on Intelligence and Security to review the questioning and detention and detention powers in the ASIO Act by 7 March 2018, and

·          confer oversight of AFP activities that relate to Part 5.3 of the Criminal Code on the Parliamentary Joint Committee on Intelligence and Security.

Parliamentary Joint Committee on Law Enforcement Act 2010

20.               The amendments to the PJCLE Act remove Parliamentary Joint Committee on Law Enforcement oversight of AFP activities that relate to Part 5.3 of the Criminal Code.

A New Tax System (Family Assistance) Act 1999, Paid Parental Leave Act 2010, Social Security Act 1991 

21.               The amendments to these Acts will:

·        specify the factors to which the Attorney-General must have regard when considering whether to issue a security notice (the effect of any security notice issued by the Attorney-General is that the person will not be eligible for family assistance, parental leave pay or dad and partner pay, or social security payments or concession cards)

·        require the Attorney-General to review a security notice within 12 months of it coming into force, and thereafter, within 12 months after the Attorney-General last considered whether to revoke it, and

·        remove the amendment to Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 so that section 13 of that Act will apply to decisions to issue notices.

Customs Act 1901

22.               The amendments to the Customs Act give effect to Recommendation 32 of the Report of the Parliamentary Joint Committee on Intelligence and Security.  The Committee recommended that the allowable period of detention by a Customs officer without notification to a family member or other person be two hours, rather than four hours as proposed in the Bill.

Migration Act 1958

23.               The amendments to the Migration Act correct a drafting error and clarify the collection and use of personal identifiers.

Human rights implications

24.               The amendments are consistent with Australia’s human rights obligations and do not engage any specific human rights. 

NOTES ON CLAUSES

Schedule 1 Amendments

Items 1 to 5 - Amendments to the Australian Passports Act

Item 1 - Suspending Australian passports

25.               This item enables only the Director-General of Security to request the suspension of an Australian travel document rather than the Australian Security Intelligence Organisation (ASIO) as an organisation (inserted as an amendment to item 21 in Part 1 in Schedule 1 of the Bill).  The item implements Recommendation 26 of the Report of the Parliamentary Joint Committee on Intelligence and Security and will increase accountability as the request will be attributable to the Director-General of Security.

Item 2 - Suspending Australian passports

26.               This item reflects the change made in item 1, which only allows the Director-General of Security to make a suspension request (inserted as an amendment to item 21 in Part 1 in Schedule 1 of the Bill).

Item 3 - Suspending Australian passports

27.               This item reflects the change made in item 1 and ensures the provisions do not allow ‘rolling suspensions’ (inserted as an amendment to item 21 in Part 1 in Schedule 1 of the Bill).  Subsection 22A(3) provides that a further suspension request can only be made where it is based on new information that was not before any officer of ASIO, including the Director-General of Security, during the suspension period.

28.               Proposed subsection 22A(4) allows the Director-General of Security to delegate the power to request a suspension of Australian travel documents under subsection 22A(2).  The Director-General of Security can only delegate this power to a Deputy Director-General of Security as defined in the ASIO Act.  This power of delegation is consistent with Recommendation 26 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

29.               Proposed subsection 22A(5) provides that a Deputy Director-General of Security who has been delegated power under proposed subsection 22A(4) must comply with any directions of the Director-General of Security in exercising that power.  This requirement is consistent with that provided for delegations by the Minister under subsection 51(3) of the Passports Act.

Item 4 - Reviewing law enforcement certificate

30.               This item requires the Minister administering the Australian Federal Police Act 1979 to consider whether to revoke a certificate issued under subsection 48A(4) within 12 months of the issuing of the certificate (inserted as an amendment to item 25 in Part 1 in Schedule 1 of the Bill).  Paragraph 48A(6A)(b) also provides that the Minister must consider within each 12-month period after the last consideration whether to revoke the certificate.  This item implements Recommendation 28 of the Report of the Parliamentary Joint Committee on Intelligence and Security and seeks to ensure that the Minister give consideration, at an appropriate time, to whether the certificate remains necessary.

Item 5 - Delegating suspension power

31.               This item amends the delegation power in section 51 (inserted as an amendment to item 26 in Part 1 in Schedule 1 of the Bill).  It implements Recommendation 27 of the Report of the Parliamentary Joint Committee on Intelligence and Security by limiting the ability of the Minister for Foreign Affairs to delegate the power to suspend a person’s travel documents under section 22A of the Passports Act to the Secretary of the Department of Foreign Affairs and Trade.  The limited availability of review for a decision to suspend a travel document supports the need to limit the delegation of the power.

Items 6 and 7 - Amendments to the Australian Security Intelligence Organisation Act

Item 6 - Sunset provision

32.               This item amends the sunset provision in section 34ZZ of the ASIO Act (inserted as an amendment to item 33 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that, after 7 September 2018, Division 3 of Part III of the ASIO Act ceases to have effect.

33.               Selecting a date for the sunset rather than referring to the uncertain date of ‘two years after the last Federal election’ was preferred as it provides greater certainty regarding the duration of these powers.  The 7 September 2018 date was selected because it is two years after the third anniversary of the last general election.  Further, although the sunset could have been set as 14 January 2019 (two years after the last date on which Parliament could be dissolved, being three years after the first meeting of the House of Representatives), selecting the earlier date was considered more appropriate given the Parliamentary Joint Committee on Intelligence and Security preferred a shorter sunset period.

Item 7 - Reviewing security certificate

34.               This item introduces subsection 38(7) into ASIO Act (inserted as new item 34A in Schedule 1 of the Bill).  Paragraph 38(7)(a) requires the Attorney-General to consider whether to revoke a certificate issued under paragraph 38(2)(a) of the ASIO Act within 12 months of the issuing of that certificate.  Paragraph 38(7)(b) also requires the Attorney-General to consider within each 12-month period after the last consideration whether to revoke the certificate.  Subsection 38(7) will only apply to certificates issued under paragraph 38(2)(a) on or after the commencement of the provision

35.               This item implements Recommendation 28 of the Report of the Parliamentary Joint Committee on Intelligence and Security.  Subsection 38(7) requires the Attorney-General to consider whether to revoke every certificate issued under paragraph 38(2)(a) within 12 months, not just those certificates issued in relation to passports.  This item seeks to ensure that a certificate is only in place where it is essential to the security of the nation.

Items 8 to 10 - Amendments to the Crimes Act - Sunset Provisions

Item 8 - Sunset provision

36.               This item amends the sunset provision in subsection 3UK(1) of the Crimes Act (inserted as an amendment to item 43 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that, after 7 September 2018, a police officer must not exercise powers or perform duties under Division 3A of the Crimes Act in relation to a seizure notice issued under section 3UF.  

37.               Selecting a date for the sunset rather than referring to the uncertain date of ‘two years after the last Federal election’ was preferred as it provides greater certainty regarding the duration of these powers.  The 7 September 2018 date was selected because it is two years after the third anniversary of the last general election.  Further, although the sunset could have been set as 14 January 2019 (two years after the last date on which Parliament could be dissolved, being three years after the first meeting of the House of Representatives), selecting the earlier date was considered more appropriate given the Committee preferred a shorter sunset period.

Item 9 - Sunset provision

38.               This item amends the sunset provision in subsection 3UK(2) of the Crimes Act (inserted as an amendment to item 44 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a declaration under section 3UJ that is in force on 7 September 2018 ceases to be in force at that time.

Item 10 - Sunset provision

39.               This item amends the sunset provision in subsection 3UK(3) of the Crimes Act (inserted as an amendment to item 45 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a police officer cannot apply for and the Minister cannot make a declaration under section 3UJ after 7 September 2018.

Items 11 to 16 - Amendments to Part IAAA - Delayed notification search warrants

Items 11, 12 and 13 - AAT Members

40.               This item amends new subsection 3ZZAF(1) of the Bill (inserted as an amendment to item 51 in Part 1 of Schedule 1 of the Bill) by limiting the categories of nominated Administrative Appeals Tribunal (AAT) Members authorised to issue a delayed notification search warrant and perform related functions under this Act to the Deputy President and full-time senior members.  This implements Recommendation 1 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which sought the removal of ‘members’ and ‘part-time senior members’ from the categories of eligible issuing officers under Part IAAA. 

41.               This item also amends new subsection 3ZZAF(2) of the Bill (inserted as an amendment to item 51 in Part 1 of Schedule 1 of the Bill) to provide that the Minister must not nominate a full-time senior member under subsection 3ZZAF(1) unless the person is enrolled, and has been so enrolled for at least five years, as a legal practitioner of the High Court, of another federal court, or of the Supreme Court of a state or the Australian Capital Territory.  The Northern Territory is covered by the reference to state, as defined in subsection 3(1) of the Crimes Act.

Item 14 - Extended time for giving occupier’s notice

42.               This item amends new subsection 3ZZDC(6) (inserted as an amendment to item 51 in Part 1 of Schedule 1 of the Bill) by reducing the extension period available to delay notification to an occupier of a warrant premise or an adjoining premise without seeking Ministerial approval from 18 months to 12 months.  This implements Recommendation 2 of the Report of the Parliamentary Joint Committee on Intelligence and Security and ensures that extensions to notification periods in longer-term investigations are subject to an appropriate degree of scrutiny. 

Items 15 and 16 - Disclosure of warrant information for legal advice or to Ombudsman

43.               These items amends new subsection 3ZZHA(2) (inserted as an amendment to item 51 of Part 1 of Schedule 1 of the Bill) by inserting additional exceptions to the unauthorised disclosure of information offence set out in subsection 3ZZHA(1).  This implements Recommendation 3 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which sought the inclusion of explicit exceptions to address obtaining legal advice and inspections by the Ombudsman.

44.               New paragraph 3ZZHA(2)(aa) inserts an exception to capture disclosure of information for the purpose of obtaining or providing legal advice related to delayed notification search warrants.

45.               New paragraph 3ZZHA(2)(da) inserts an exception to capture disclosure of information by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman’s staff.  This applies to disclosure by any person in the course of an inspection by the Ombudsman (as set out in Division 7 of Part IAAA), disclosure in conjunction with a complaint made to the Ombudsman or disclosure in any other circumstance to the Commonwealth Ombudsman. 

46.               This also makes explicit that the Bill does not intend to criminalise the communication of information by Commonwealth Ombudsman staff to the Commonwealth Ombudsman or other staff within the Office of the Commonwealth Ombudsman in the performance of their duties.  This is also consistent with subsection 3ZZGE(3), which provides that nothing in section 3ZZHA or any other law prevents an officer of an eligible agency from providing information to an inspecting officer in any form or from providing access to records of the eligible agency for the purposes of an inspection in relation to delayed notification search warrants.

Item 17 - Amendment to the Criminal Code - Definitions

Item 17 - Meaning of engage in a hostile activity

47.               This item inserts a definition for the term engage in a hostile activity into section 100.1 for the purposes of Part 5.3 of the Criminal Code (inserted as item 62A in Part 1 of Schedule 1 of the Bill). 

48.               The amendment provides that, for the purposes of Part 5.3 of the Criminal Code, ‘engage in a hostile activity’ has the same meaning as it has in new subsection 117.1(1) of the Criminal Code.  This amendment obviates the need to include a cross reference to the definition in subsection 117.1(1) each time the expression is used in Part 5.3.

Items 18 to 36 - Amendment to the Criminal Code - Control Orders

Item 18 - Meaning of engage in a hostile activity

49.               This item deletes the words ‘(within the meaning of subsection 117.1(1))’ from paragraph 104.2(2)(b) as amended by the Bill (inserted as an amendment to item 71 in Part 1 of Schedule 1 of the Bill).  This amendment is consequential to the amendment to section 100.1 that inserts a cross reference to the proposed definition of ‘engage in a hostile activity’ in subsection 117.1(1) of the Criminal Code. 

Item 19 - Control orders

50.               This item deletes the words ‘or a foreign country’ from new subparagraph 104.2(2)(b)(iii) (inserted as an amendment to item 71 in Part 1 of Schedule 1 of the Bill) and is necessary in order to separate the new ground for seeking consent to request an interim control order into two grounds.  Subparagraph 104.2(2)(b)(iii) is now limited to seeking consent to request an interim control order on the basis of a conviction for a terrorism offence in Australia. 

Item 20 - Control orders

51.               This item inserts new subparagraph 104.2(b)(iv) into the Criminal Code (inserted as an amendment to item 71 in Part 1 of Schedule 1 of the Bill).  This amendment completes the separation of the new grounds for seeking of the Attorney-General’s consent to request an interim control order into two grounds.  New subparagraph 104.2(b)(iv) provides for seeking consent to request an interim control order on the basis of a conviction overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.  This implements Recommendation 9 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

Item 21 - Meaning of engage in a hostile activity

52.               This item omits the words ‘(within the meaning of subsection 117.1(1))’ from paragraph 104.2(2)(b) as amended by the Bill (inserted as an amendment to item 73 in Part 1 of Schedule 1 of the Bill).  This amendment is consequential to the amendment to section 100.1 that inserts a cross reference to the proposed definition of ‘engage in a hostile activity’ in subsection 117.1(1) of the Criminal Code.

Item 22 - Grounds for making an interim control order

53.               This item omits the words ‘or a foreign country’ from new subparagraph 104.4(1)(c)(iv) (inserted as an amendment to item 73 in Part 1 of Schedule 1 of the Bill).  This amendment separates the new ground for making an interim control order on the basis of a conviction for a terrorism offence into two separate grounds.  Subparagraph 104.4(1)(c)(iv) is now limited to making an interim control order on the basis of a conviction for a terrorism offence in Australia.

Item 23 - Grounds for making an interim control order

54.               This item omits the word ‘and’ at the end of subparagraph 104.4(1)(c)(iv) as amended by the Bill and replaces it with the word ‘or’ (inserted as an amendment to item 73 in Part 1 of Schedule 1 of the Bill).  This amendment is consequential to the insertion of new subparagraph 104.4(1)(c)(v).

Item 24 - Grounds for making an interim control order

55.               This item amends paragraph 104.4(1)(c) by adding new subparagraph 104.4(1)(c)(v) (inserted as an amendment to item 73 in Part 1 of Schedule 1 of the Bill).  New subparagraph 104.4(1)(c)(v) provides for the making of an interim control order on the basis of a conviction overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.  This amendment reflects the fact that a person who has engaged in conduct equivalent to a terrorism offence and been convicted of that offence could represent a real threat to the safety and security of Australians because the person has the demonstrated ability and disposition to engage in terrorist conduct.

Item 25 -Application for variation

56.               This item amends subsection 104.23(1) of the Criminal Code, which provides for the applications for variation of a control order by the Commissioner of the AFP (inserted as new item 81A in Part 1 of Schedule 1 of the Bill).

57.               New item 81A amends subsection 104.23(1), which provides that the Commissioner of the AFP may apply to an issuing court to add one or more obligations, prohibitions or restrictions to a confirmed control order where the Commissioner suspects on reasonable grounds that either:

·        the varied order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act, or

·        the person the subject of the order has either:

o    participated in training with a terrorist organisation

o    engaged in or support for or otherwise facilitated engagement in a hostile activity in a foreign country

o    been convicted of a terrorism related offence in Australia, or

o    been convicted of a terrorism related offence overseas.

58.               The change of the threshold from ‘considers’ to ‘suspects’ on reasonable grounds for the ground of substantially assisting in preventing a terrorist act at revised paragraph 104.23(1)(a) is consistent with the amendment to the threshold for requesting an interim control order under paragraph 104.2(2)(a).

Item 26 - Sunset Provision

59.               This item amends the sunset provision in subsection 104.32(1) of the Criminal Code (inserted as an amendment to item 86 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a control order that is in force on 7 September 2018 ceases to be in force at that time.

Item 27 - Sunset Provision

60.               This item amends the sunset provision in subsection 104.32(2) of the Criminal Code (inserted as an amendment to item 87 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a control order cannot be requested, made or confirmed after 7 September 2018.

Items 28 to 32 - Amendments to the Criminal Code - Preventative Detention Orders

Item 28 - Preventative detention orders

61.               This item repeals paragraph 105.8(6)(a) of the Criminal Code and replaces it with a new paragraph (inserted as an amendment to item 94 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 11 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

62.               New paragraph 105.8(6)(a) provides that an initial preventative detention order may be made by a senior AFP member in relation to a person whose full name is not known. 

63.               New subparagraph 105.8(6)(a)(i) provides that an initial preventative detention order can be made in relation to an alias by which a person is known only if, after reasonable inquiries have been made, the person’s true name  is not known.  Similarly, new subparagraph 105.8(6)(a)(ii) provides that an initial preventative detention order can be made by reference to a description that is sufficient to identify the person only if, after reasonable inquiries have been made, the person’s true name is not known. 

Item 29 - Preventative detention orders

64.               This item inserts the words ‘as soon as reasonably practicable after the order is made’ after the word ‘must’ into subsection 105.8(8) of the Criminal Code (inserted as new item 95A in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 12 of the Report of the Parliamentary Joint Committee on Intelligence and Security by requiring notification to the Commonwealth Ombudsman and provision of a copy of the order to the Commonwealth Ombudsman to occur as soon as reasonably practicable after the order is made.

Item 30 - Preventative detention orders

65.               This item repeals paragraph 105.12(6)(a) of the Criminal Code and replaces it with a new paragraph (inserted as an amendment to item 96 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 11 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

66.               New paragraph 105.12(6)(a) provides that a continued preventative detention order may be made by a judge, AAT member or retired judge in relation to a person whose full name is not known. 

67.               New subparagraph 105.12(6)(a)(i) provides that a continued preventative detention order can be made in relation to an alias by which a person is known only if, after reasonable inquiries have been made, the person’s true name  is not known.  Similarly, new subparagraph 105.8(6)(a)(ii) provides that a continued preventative detention order can be made by reference to a description that is sufficient to identify the person only if, after reasonable inquiries have been made, the person’s true name is not known. 

68.               This item also amends subsection 105.12(8) of the Criminal Code (inserted as new item 96A in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 12 of the Report of the Parliamentary Joint Committee on Intelligence and Security by requiring notification to the Commonwealth Ombudsman and provision of a copy of the order to the Commonwealth Ombudsman to occur as soon as reasonably practicable after the order is made.

Item 31 - Sunset provision

69.               This item amends the sunset provision in subsection 105.53(1) of the Criminal Code (inserted as an amendment to item 107 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a preventative detention order or a prohibited contact order that is in force on 7 September 2018 ceases to be in force at that time.

Item 32 - Sunset provision

70.               This item amends the sunset provision in subsection 104.53(2) of the Criminal Code (inserted as an amendment to item 108 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that a preventative detention order or a prohibited contact order cannot be applied for or made after 7 September 2018.

Item 33 - Amendment to application provision

Item 33 - Varying control order

71.               This item inserts new subsection 106.5(4A) into the Bill (inserted as an amendment to item 109 in Part 1 of Schedule 1 of the Bill).  New subsection 106.5(4A) provides that the amendment to section 104.23 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 only applies in relation to control orders where the relevant interim control order is requested after that commencement.

Items 34 to 42 - Foreign Incursions and Recruitment

Item 34 - Foreign incursions

72.               This item repeals the definition of ‘engage in a hostile activity’ in subsection 117.1(1) of the Bill and replaces it with a revised definition (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This item implements Recommendations 15 and 16 of the Report of the Parliamentary Joint Committee on Intelligence and Security (item 47 completes the implementation of Recommendation 17).

73.               Replacing the words ‘the engagement, by that person or any other person, in subverting society in that or any other foreign country’ with the words ‘the engagement, by that or any other person, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3)’ in the definition of ‘engage in a hostile activity’ implements Recommendation 15 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

74.               Revised paragraph 117.1(1)(a) of the definition of ‘engage in a hostile activity’ means engaging in conduct in another country with the intention of achieving one or more of the following objectives: 

·        the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

·        the engagement, by that or any other person, in action that:

o    falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

o    if engaged in in Australia, would constitute a serious offence;

·        intimidating the public or a section of the public of that or any other foreign country;

·        causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

·        unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

75.               Limiting paragraph 117.1(1)(b) to action that would constitute a serious offence if the action was engaged in in Australia implements Recommendation 16 of the Report of the Parliamentary Joint Committee on Intelligence and Security.  For the purposes of a prosecution of a relevant offence, it does not matter whether any of the objectives as set out in paragraphs 117.1(1)(a) to (e) was achieved.  Accordingly, the prosecution will not need to prove that the person actually committed a particular serious offence contrary to Australian law.  However, it will be necessary for the prosecution to provide information about the type of offence that constitutes the action inherent in the objective the person intended to achieve.

Item 35 - Foreign incursions

76.               This item omits the definition of ‘engage in subverting society’ from subsection 117.1 of the Bill (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment is consequential to the amendment of the definition of ‘engage in a hostile activity’ which implements Recommendation 15 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

Item 36 - Foreign incursions

77.               This item inserts a definition of ‘serious offence’ (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment completes the implementation of Recommendation 16 of the Report of the Parliamentary Joint Committee on Intelligence and Security by limiting the actions covered by subparagraph 117.1(1)(b) of the definition of ‘engage in hostile activity’ to conduct that constitutes a serious offence under Australian law.

78.               The definition provides that a serious offence, for the purposes of new Part 5.5, means an offence against a law of the Commonwealth, a State or a Territory, that is punishable by at least 2 years imprisonment.  The two year threshold is consistent with section 3C of the Crimes Act, which provides the definition of serious offence for the purposes of the search, information gathering, arrest and related powers in Part IAA of the Crimes Act.  It was not considered appropriate to insert a cross reference to that definition because it excludes State offences that do not have a federal aspect and also excludes serious terrorism offences, which are defined separately as ‘serious terrorism offences’.

Item 37 - Foreign incursions

79.               This item removes paragraph 117.1(2)(b) and replaces it with a revised paragraph 117.1(2)(b) (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment is consequential to the amendment of the definition of ‘engage in a hostile activity’ which implements Recommendation 15 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

80.               This amendment provides that, before the Governor-General makes a regulation prescribing an organisation under new paragraph 117.1(2)(b) for the purposes of a subsection 119.8(1) declaration, the Governor-General must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3). 

81.               A person who engages in conduct that would otherwise be contrary to one of the offences in sections 119.1, 119.2 or 119.7 has a defence if their conduct was undertaken in the course of, and as part of, their service in any capacity in or with the armed forces of another country if those armed forces are a prescribed organisation under subsection 117.1(2).

Item 38 - Foreign incursions

82.               This item inserts a cross reference to the definition of ‘international relations’ (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 17 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing greater specificity about the meaning of ‘international relations’.

Item 39 - Foreign incursions

83.               This item deletes new subsections 117.1(3) and (4) (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 15 of the Report of the Parliamentary Joint Committee on Intelligence and Security by replacing the definition of ‘engages in subverting society’ with a cross reference to the definition of ‘terrorist act’ in the Criminal Code.

Item 40 - Sunset provision

84.               This item amends the sunset provision in new subsection 119.2(6) of the Criminal Code (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  The amendment implements Recommendation 20 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing that the new declared area offence ceases to have effect on 7 September 2018.

Item 41 - Declared areas

85.               This item removes new subsection 119.3(2) from the Criminal Code and replaces it with revised subsection 119.3(2) and a new subsection 119.3(2A) (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 18 of the Report of the Parliamentary Joint Committee on Intelligence and Security by removing the provision that provides for a declaration to be made over an entire country.

86.               Revised subsection 119.3(2) provides that a single declaration for the purposes of the new offence in section 119.2 may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.

87.               New subsection 119.3(2A) expressly provides that a declaration must not cover an entire country.

Item 42 - Declared areas

88.               This item inserts new subsection 119.3(7) into the Criminal Code (inserted as an amendment to item 110 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 19 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing for the Committee to conduct a review of a declaration before the end of the disallowable period for the relevant instrument.

Items 43 to 45 - Amendments to the Foreign Evidence Act

Item 43 - Evidence obtained by torture or duress

89.               This item will substitute current subsection 27D(2) with a revised subsection 27D(2) to broaden the category of persons whose acts or omissions or whose acts may amount to torture or duress (inserted as an amendment to item 125 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 22 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

90.               Section 27D sets out the circumstances by which foreign evidence adduced in terrorism-related proceedings will be admissible.  Subsection 27D(2) outlines the exceptions to admissibility in terrorism-related proceedings and provides that evidence must be excluded if the court is satisfied the material, or the information contained in the material, was obtained directly as a result of torture or duress.  Subsection 27D(2) as currently drafted provides that an act or omission will only amount to torture or an act will only amount to duress if inflicted by a person who is a public official, a person acting in an official capacity or a person acting at the instigation, or with the consent or acquiescence, of a public official or a person acting in an official capacity.  Recommendation 22 of the Report of the Parliamentary Joint Committee on Intelligence and Security notes concerns expressed in relation to the torture and duress mandatory exclusion being limited to material obtained by a person in the capacity of a public official, acting in an official capacity or acting at the instigation, or with the consent or acquiescence of a public official or another person acting in an official capacity. 

91.               New subsection 27D(2) will provide that foreign material or foreign government material will not be admissible where the court is satisfied that the material, or information contained in the material, was obtained directly as a result of torture or duress.  Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) expressly defines torture as conduct inflicted ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’.  This amendment will result in a more expansive definition of torture for the purposes of the Foreign Evidence Act by including conduct inflicted by any person, whilst still capturing the relevant conduct defined under Article 1 of the CAT. 

Item 44 - Duress

92.               This item will substitute current paragraph 27D(3)(b) with a new paragraph 27D(3)(b) to broaden the definition of duress and capture threats of this nature whilst still ensuring this exception to admissibility is limited to appropriately serious conduct)  (inserted as an amendment to item 125 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 23 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

93.               Section 27D sets out the circumstances in which foreign evidence adduced in terrorism-related proceedings will be admissible.  Subsection 27D(2) outlines the exceptions to admissibility in terrorism-related proceedings and provides that evidence must be excluded if the court is satisfied the material, or the information contained in the material, was obtained directly as a result of torture or duress.  The definition of duress at subsection 27D(3) is currently satisfied where a person performs actions because of threats of death or serious injury to themselves, or to family members, being threats of such a nature that a reasonable person would have responded by providing the material or information.  Recommendation 23 of the Report of the Parliamentary Joint Committee on Intelligence and Security notes concerns expressed regarding the current definition of duress.  In particular, the Committee suggests that the definition does not accommodate situations in which a reasonable person might respond to threats made to them against a close friend, innocent third parties or a significant asset such as that person’s home or business. 

94.               New paragraph 27D(3)(b) will expand the definition of duress to include situations where  a threat is made to imminently cause death or serious injury to the person, a member of the person’s family or a third party or where a threat is made to imminently cause loss of, or damage to, the person’s significant assets.  The effect of the amended provision will be to broaden the definition of duress to capture threats made against the person, their family or third parties and threats made against the person’s significant assets.  Any threats against the person, their family, third parties or the person’s significant assets will necessarily be subject to paragraph 27D(3)(c) which requires the threat to meet the threshold of being one to which a reasonable person would respond by providing the material or information. 

Item 45 - Jury warning

95.               This item will insert new section 27DA after section 27D (inserted as an amendment to item 125 in Part 1 of Schedule 1 of the Bill).  This amendment implements Recommendation 24 of the Report of the Parliamentary Joint Committee on Intelligence and Security. 

96.               Section 27D sets out the circumstances by which foreign evidence adduced in terrorism-related proceedings will be admissible.  Subsection 27D(2) outlines the exceptions to admissibility in terrorism-related proceedings and provides that evidence must be excluded if the court is satisfied the material, or the information contained in the material, was obtained directly as a result of torture or duress.  The admissibility of evidence cannot be equated with the reliability of that evidence.  For this reason, section 27D displaces only rules of admissibility, leaving unaffected rules of proof including jury warnings.  If evidence is not excluded pursuant to subsection 27D(2), it would remain up to the court to determine the value and reliability of that evidence.  Recommendation 24 of the Report of the Parliamentary Joint Committee on Intelligence and Security notes the potential unreliability of certain foreign evidence and recommends that a provision based on section 165 of the Evidence Act 1995 be included to allow the court to give an appropriate direction to juries, where necessary, about the potential unreliability of foreign evidence admitted under Part 3A.

97.               Section 27DA will provide that, at the request of a party to proceedings, the judge is to warn the jury that foreign material or foreign government material may be unreliable, is to inform the jury of matters that may cause that material to be unreliable and is to warn the jury of the need for caution in determining whether to accept the material and the weight to be given to the material.  Subsection 27DA(2) will provide that the judge is not required to give a direction under subsection 27DA(1) if there are good reasons not to do so, consistent with subsection 165(3) of the Evidence Act.  Subsection 27DA(3) will provide that the judge may use any words in warning and informing the jury.  Subsection 27DA(4) provides that the provision does not affect any other power of the judge to give a warning to, or to inform, the jury, nor is the failure to give a warning fatal to the outcome of the matter.  The effect of this provision is that where foreign material or foreign government material is considered pursuant to Part 3A of the Foreign Evidence Act 1994, a party to proceedings may raise issue regarding evidence admitted so that it may be subject to a discretionary jury warning by a judge. 

Items 46 to 49 - Amendments to the Foreign Passports (Law Enforcement and Security) Act

Item 46 - Surrender of foreign passports

98.               This item enables the Director-General of Security to request a 14-day surrender of a person’s foreign travel documents under subsection 15A(1) rather than ASIO as an organisation (inserted as an amendment to item 129 in Part 1 of Schedule 1 of the Bill).  The item implements Recommendation 26 of the Report of the Parliamentary Joint Committee on Intelligence and Security and will increase accountability as the suspension request will be attributable to the Director-General of Security.

Item 47 - Surrender of foreign passports

99.               This item reflects the change made in item 46, which only allows the Director-General of Security to make a 14-day surrender order request under subsection 15A(1) of the Foreign Passports Act (inserted as an amendment to item 129 of Part 1 of Schedule 1 of the Bill).

Item 48 - Surrender of foreign passports

100.           This item reflects the change made in item 46 and ensures the provisions do not allow ‘rolling’ 14-day surrender orders (inserted as an amendment to item 129 in Part 1 of Schedule 1 of the Bill).  Subsection 15A(2) provides that a further 14-day surrender order request can only be made where it is based on new information that was not before any officer of ASIO, including the Director-General of Security, during the 14-day period the surrender order is in effect.

101.           Subsection 15A(3) allows the Director-General of Security to delegate the power to request a 14-day surrender order under subsection 16A(1).  The Director-General of Security can only delegate this power to a Deputy Director-General of Security as defined in the ASIO Act.  This power of delegation is consistent with the intent of Recommendation 26 of the Report of the Parliamentary Joint Committee on Intelligence and Security and mirrors the changes made to the requesting authority under the Passports Act in items 1 to 3.

102.           Subsection 15A(4) provides that a Deputy Director-General of Security who has been delegated power under subsection 15A(1) must comply with any directions of the Director-General of Security in exercising that power.  This requirement is consistent with that provided for delegations by the Minister for Foreign Affairs under subsection 23A(2) of the Foreign Passports Act.

Item 49 - Surrender of foreign passports

103.           This item reflects the change made by item 46, which only allows the Director-General of Security to make a request under subsection 15A(1) (subject to the delegation power in subsection 15A(3)) (inserted as an amendment to item 131 in Part 1 of Schedule 1 of the Bill).

Item 50 - Amendments to the Independent National Security Legislation Monitor Act

Item 50 - Independent National Security Legislation Monitor

104.           This item requires the Independent National Security Legislation Monitor to complete a review of certain powers and the new declared areas offence by 7 September 2017 (inserted as new item 131A in Schedule 1 of the Bill).  This amendment implements Recommendations 13 and 21 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

105.           New subsection 6(1B) of the Independent National Security Legislation Monitor Act requires the Independent National Security Legislation Monitor to complete the review provided by paragraph 6(1)(a) of the Act into the ASIO questioning and questioning and detention powers in Division 3 of Part III of the ASIO Act and any other provision of that Act as far as it relates to that Division, the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act 1914 and any other provision of that Act as far as it relates to that Division, the control order regime in Division 104 and the preventative detention order regime in Division 105 of the Criminal Code and any other provision of that Code as far as it relates to those Divisions, and the new declared areas offence in sections 119.2 and 119.3 of the Criminal Code and any other provision of that Code as far as it relates to those sections by 7 September 2017.

Item 51 - Amendment to the Intelligence Services Act

Item 51 - Sunset provision; PJCIS functions

106.           This item amends the Intelligence Services Act to provide the Parliamentary Joint Committee on Intelligence and Security with oversight of the AFP with respect to its functions under Part 5.3 of the Criminal Code (inserted as amendments to items 132 and 133 in Schedule 1 of the Bill and the insertion of new items 131B and 133A to 133G into Schedule 1 of the Bill). 

107.           New item 131B inserts a definition of the AFP into section 3 of the Parliamentary Joint Committee on Intelligence and Security Act.  This amendment is relevant to the amendment conferring monitoring and review powers over the AFP onto the Committee.

108.           The amendment to item 132 removes existing paragraph 29(1)(ba) from the Intelligence Services Act and replaces it with new paragraphs 29(1)(baa), (bab) and (bac).  Those new paragraphs authorise the Parliamentary Joint Committee on Intelligence and Security to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code, report to Parliament, inquire into any question in connection with its functions under paragraph in relation to monitoring and reviewing the AFP’s performance of its functions under Part 5.3.

109.           The amendment to item 133 provides for the Committee to review of the ASIO questioning and detention and questioning powers by 7 March 2018.

110.           New items 133A and 133B amend subsection 29(3) to specify that the functions of the Committee do not include conducting inquiries into individual complaints about the activities of the AFP, and do not include reviewing sensitive operational information or operational methods available to the AFP or reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.  These amendments are consistent with the limitations on the Committee in relation to AFP functions.

111.           New item 133C adds new paragraph 30(d) at the end of section 30.  This amendment adds the Commissioner of the AFP as an agency head, which then authorises the Committee to request the Commissioner brief the Committee for the purposes of performing its functions.

112.           New items 133D and 133E amend clause 1A of Schedule 1 to provide that, for the purposes of the Schedule, the AFP is an agency, the Commissioner of the AFP is an agency head.  New item 133F amends clause 1A of Schedule 1 to provide that, for the purposes of the Schedule, a staff member includes a member of special member of the AFP.

113.           New item 133G provides that the amendments to the Intelligence Services Act apply in relation to the performance of the AFP of its functions under Part 5.3 of the Criminal Code, whether those functions are performed before or after this item commences.

Item 52 - Amendment to the Parliamentary Joint Committee on Law Enforcement Act

Item 52 - PJCIS functions

114.           This item is consequential to the conferral of the oversight function on the Committee in relation to certain functions of the AFP (inserted as new item 135A in Schedule 2 of the Bill), implementing Recommendation 14 of the Report of the Parliamentary Joint Committee on Intelligence and Security.  The amendment to subsection 7(2) removes the oversight function with respect to the monitoring, reviewing or reporting on the performance by the AFP of its functions under Part 5.3 of the Criminal Code from the Parliamentary Joint Committee on Law Enforcement.  The amendments will confer that authority on the Parliamentary Joint Committee on Intelligence and Security.

115.           This item also provides that the removal of that function from the Parliamentary Joint Committee on Law Enforcement has effect in relation to the performance of the AFP of its functions under Part 5.3 of the Criminal Code, whether those functions are performed before or after this item commences.

Schedule 2 Amendments

Items 53 to 67 - Stopping welfare payments

Items 53, 54, 57, 58, 62 and 63 - Giving of security notice

116.           These items insert a definition of the ‘Attorney-General’s Secretary’, and ‘Human Services Secretary’ for the purposes of seeking advice from the Department of Human Services (inserted as an amendment to item 1 in Part 1 of Schedule 2 of the Bill). 

Items 55, 60 and 65 - Giving of security notice

117.           These items specify the factors to which the Attorney-General must have regard when considering whether to issue a security notice (inserted as amendments to items 2, 4, and 6 in Schedule 2 of the Bill).  The effect of any security notice issued by the Attorney-General is that the person will not be eligible for family assistance, parental leave pay or dad and partner pay, or social security payments or concession cards.  These amendments implement Recommendation 29 of the Report of the Parliamentary Joint Committee on Intelligence and Security and will provide greater clarity of the Attorney-General’s decision making process. 

118.           Item 55 amends new section 57GJ of the A New Tax System (Family Assistance) Act 1999 , Item 60 amends new section 278C of the Paid Parental Leave Act 2010 and Item 65 amends new section 38N of the  Social Security Act 1991 , so that, before giving a security notice  the Attorney-General must have regard to:

·        the extent (if any) that any welfare payments of the individual who is the subject of the notice, are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, and

·        the likely effect of welfare cancellation on the individual’s dependants. To facilitate the Attorney-General’s decision, the Attorney-General’s Secretary is required to seek advice from the Secretary of the Department of Human Services and inform the Attorney-General of that advice.

119.           These considerations are not an exhaustive list and it will be open to the Attorney-General to have regard to any other matters when considering whether to issue a security notice.

Items 56, 61 and 66 - Annual review of security notice; giving of security notice

120.           These items require the Attorney-General to review a security notice issued under new section 57GJ of A New Tax System (Family Assistance) Act 1999 , new section 278C of the Paid Parental Leave Act 2010 and new section 38N of Social Security Act 1991 (inserted as amendments to items 2, 4 and 6 of Schedule 2 of the Bill)

121.           The review will require the Attorney General to consider whether to revoke a security notice within 12 months of it coming into force, and thereafter, within 12 months after the Attorney-General last considered whether to revoke it. 

122.           These amendments implement Recommendation 30 of the Report of the Parliamentary Joint Committee on Intelligence and Security and will ensure security notices are subject to regular review to determine whether the person should remain ineligible to receive welfare payments on the basis of national security concerns.

Items 59 and 64 - Giving of security notice

123.           Item 59 is a consequential amendment the insertion of new subsections 278C(2) and (3) into new section 278C of the Paid Parental Leave Act 2010 (inserted as an amendment to item 4 of Schedule 2 of the Bill).

124.           Item 64 is a consequential amendment to the insertion of new paragraphs 38N(2) and (3) into new section 38N of the Social Security Act 1991 (inserted as an amendment to item 6 in Schedule 2 of the Bill).

Item 67 - Judicial review

125.           Item 67 removes proposed Part 2 of Schedule 2 of the Bill.  This item will remove the amendment to Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) so that section 13 of that Act will apply to decisions of the Attorney-General to issue a security notice and decisions of the Immigration Minister and Foreign Affairs Minister to issue a notice.  This will mean that reasons for those decisions may be obtained under section 13 of the Act.

Schedule 3 Amendments

Items 68 to 69 - Amendments to the Customs Act

Item 68 - Detention without notification

126.           This item omits the words ‘4 hours’ and replaces them with ‘2 hours’ (inserted as amendments to item 6 in Schedule 3 of the Bill).  This amendment implements Recommendation 32 of the Report of the Parliamentary Joint Committee on Intelligence and Security by increasing the period before a Customs officer must notify a family member or other person of the detention of a person under this section from 45 minutes to two hours (rather than four hours as proposed by the Bill).

127.           Under current subsection 219ZJB(5), if a person is detained for a period of greater than 45 minutes, the person has the right to have a family member or another person notified of the person’s detention.  However, under subsection 219ZJB(7) of the Customs Act, an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.

128.           Due to vulnerabilities with regard to the time and opportunity for the officer of Customs to undertake sufficient enquiries once a person is detained, especially in order to determine whether the notification to a family member or other person should or should not be made, it was proposed to amend subsection 219ZJB(5) to increase the timeframe from 45 minutes to four hours.

129.           This amendment gives effect to Recommendation 32 of the Committee.  The Committee recommended that the allowable period of detention by a Customs officer without notification to a family member or other person be extended from 45 minutes to two hours, rather than four hours as proposed in the Bill.

130.           The effect of this amendment will amend the maximum time period to 2 hours.

Item 69 - Detention without notification

131.           This item omits the words ‘4 hours’ and replaces them with ‘2 hours’ (inserted as an amendment to item 8 in Schedule 3 of the Bill), implementing Recommendation 32 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

132.           Under proposed subsection 219ZJCA(4), if a person is detained for a period of greater than four hours, the person has the right to have a family member or another person notified of the person’s detention.  However, under subsection 219ZJCA(6) of the Customs Act, an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.

133.           The Committee recommended that the allowable period of detention by a Customs officer without notification to a family member or other person be two hours, rather than four hours as proposed in the Bill.

134.           The effect of this amendment will amend the time period from four hours to two hours.

Schedule 5 Amendments

Items 70 to 79 - Amendments to the Migration Act - Identifying Persons in Immigration Clearance

Item 70 - Technical correction

135.           This item replaces the word ‘authority’ with the word ‘officer’ (inserted as an amendment to item 3 in Schedule 5 of the Bill).  This corrects an editing error that occurred during the consolidation of the Bill.  This is a technical amendment to the Bill.

136.           The effect of the amendment is that only a clearance officer may make a requirement to provide one or more personal identifiers under paragraph 166(1)(c), rather than a clearance authority (a clearance authority is defined to mean both a clearance officer and an authorised system). 

Item 71 - Personal identifiers

137.           This amendment omits paragraph 166(1)(d) from the Bill and substitutes it with a new paragraph 166(1)(d) (inserted as an amendment to item 3 in Schedule 5 of the Bill).  This amendment gives effect to Recommendation 35 of the Report of the Parliamentary Joint Committee on Intelligence and Security. 

138.           The effect of omitted paragraph 166(1)(d) would have been that:

If a person presents evidence to an authorised system under paragraph 166(1)(a) - then the person must also provide to the authorised system:

·          a photograph or other image of the person’s face and shoulders; and

·          any other personal identifier referred to in subsection (5) that is prescribed by the regulations.

139.           The Committee recommended that the Bill be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations 1994 (the Migration Regulations). 

140.           In order to give effect to the Committee’s recommendation, new paragraph 166(1)(d) has been substituted to provide that:

If a person presents evidence to an authorised system under paragraph 166(1)(a) - then the person must also provide to the authorised system a photograph or other image of the person’s face and shoulders.

141.           The new substituted paragraph 166(1)(d) removes the ability to prescribe further personal identifiers for this purpose in the Migration Regulations.

142.           Section 166 relates to persons entering Australia.  Similar amendments are made to section 175, which relates to persons departing Australia and section 170 which relates to persons travelling on a domestic leg as part of an international journey.

Item 72 - Personal identifiers

143.           This amendment omits the reference to paragraph 166(1)(d) from the heading of subsection  166(5) of the Migration Act as inserted by the Bill (inserted as an amendment to item 7 in Schedule 5 of the Bill).  This is a consequential amendment.

144.           Subsection 166(5) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 166(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 166(5) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 166(1)(d) from the heading of subsection 166(5).

Item 73 - Personal identifiers

145.           This amendment omits the reference to paragraph 166(1)(d) from the amendment to subsection 166(5) as made by the Bill (inserted as an amendment to item 8 in Schedule 5 of the Bill).  This is a consequential amendment.

146.           Subsection 166(5) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 166(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 166(5) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 166(1)(d) from subsection 166(5).

Item 74 - Personal identifiers

147.           This amendment omits paragraph 170(1)(d) from the Bill and substitutes it with a new paragraph 170(1)(d) (inserted as an amendment to item 15 in Schedule 5 of the Bill).  This amendment gives effect to Recommendation 35 of the Report of the Parliamentary Joint Committee on Intelligence and Security. 

148.           The effect of omitted paragraph 170(1)(d) would have been that:

If a person presents evidence to an authorised system under paragraph 170(1)(a) - then the person must also provide to the authorised system:

·          a photograph or other image of the person’s face and shoulders; and

·          any other personal identifier referred to in subsection (2A) that is prescribed by the regulations.

149.           The Committee recommended that the Bill be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations. 

150.           In order to give effect to the Committee’s recommendation, new paragraph 170(1)(d) has been substituted to provide that:

If a person presents evidence to an authorised system under paragraph 170(1)(a) - then the person must also provide to the authorised system a photograph or other image of the person’s face and shoulders.

151.           The new substituted paragraph 170(1)(d) removes the ability to prescribe further personal identifiers for this purpose in the Migration Regulations.

Item 75 - Personal identifiers

152.           This amendment omits the reference to paragraph 170(1)(d) from the heading of subsection 170(2A) of the Migration Act as inserted by the Bill (inserted as an amendment to item 19 in Schedule 5 of the Bill).  This is a consequential amendment.

153.           Subsection 170(2A) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 170(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 170(2A) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 170(1)(d) from the heading of subsection 170(2A).

Item 76 - Personal identifiers

154.           This amendment omits the reference to paragraphs 170(1)(c) and (d) from the amendment to subsection 170(2A) and replaces it with a reference to subsection 170(1)(c) only (inserted as an amendment to item 20 in Schedule 5 of the Bill).  This is a consequential amendment.

155.           Subsection 170(2A) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 170(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 170(2A) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 170(1)(d) from subsection 170(2A).

Item 77 - Personal identifiers

156.           This amendment omits paragraph 175(1)(d) from the Bill and substitutes it with a new paragraph 175(1)(d) (inserted as an amendment to item 28 in Schedule 5 of the Bill).  This amendment gives effect to Recommendation 35 of the Report of the Parliamentary Joint Committee on Intelligence and Security. 

157.           The effect of omitted paragraph 175(1)(d) would have been that:

If a person presents evidence to an authorised system under paragraph 175(1)(a) - then the person must also provide to the authorised system:

·          a photograph or other image of the person’s face and shoulders; and

·          any other personal identifier referred to in subsection (5) that is prescribed by the regulations.

158.           The Committee recommended that the Bill be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations. 

159.           In order to give effect to the Committee’s recommendation, new paragraph 175(1)(d) has been substituted to provide that:

If a person presents evidence to an authorised system under paragraph 175(1)(a) - then the person must also provide to the authorised system a photograph or other image of the person’s face and shoulders.

160.           The new substituted paragraph 175(1)(d) removes the ability to prescribe further personal identifiers for this purpose in the Migration Regulations.

Item 78 - Personal identifiers

161.           This amendment omits the reference to paragraph 175(1)(d) from the heading of subsection 175(2A) of the Migration Act as inserted by the Bill (inserted as an amendment to item 32 in Schedule 5 of the Bill).   This is a consequential amendment.

162.           Subsection 175(2A) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 175(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 175(2A) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 175(1)(d) from the heading of subsection 175(2A).

Item 79 - Personal identifiers

163.           This amendment omits the reference to paragraphs 175(1)(c) and (d) from the amendment to subsection 175(2A) and replaces it with a reference to paragraph 175(1)(c) (inserted as an amendment to item 33 in Schedule 5 of the Bill).  This is a consequential amendment.

164.           Subsection 175(2A) limits the types of personal identifiers that can be required to be presented or provided.  Given that new substituted paragraph 175(1)(d) now only requires the provision of a photograph or other image of the person’s face and shoulders, it is no longer relevant for subsection 175(2A) to provide a limitation on the types of the personal identifiers that can be required.  The amendment therefore removes the reference to paragraph 175(1)(d) from subsection 175(2A).