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Globalising terror: political violence in the new millenium conference.



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GLOBALISING TERROR: POLITICAL VIOLENCE IN THE NEW MILLENIUM CONFERENCE

Hobart, 8-10 May 2002

PAPER PRESENTED BY KEITH C HOLLAND ASSISTANT SECRETARY SECURITY LAW AND JUSTICE BRANCH ATTORNEY-GENERAL’S DEPARTMENT

AUSTRALIA’S COUNTER-TERRORISM LEGISLATIVE PACKAGE

Following the September 11 terrorist attacks in the United States Mr Robert Cornall, the Secretary of the Attorney-General’s Department, was tasked with the responsibility of conducting a high level review of Australia’s security and counter-terrorism arrangements. Several existing Commonwealth Acts already cover certain types of terrorist conduct, however, the review identified some gaps in our legislative framework in relation to terrorism. Following that review, the Government has developed a counter-terrorism legislative package. The proposals contained in the package will strengthen and consolidate Australia’s legislative framework in regard to terrorism, and demonstrate Australia’s commitment to combating terrorism.

One element of the package, the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002 has been passed by the Australian Parliament. The remaining 6 Bills in the package are currently before the Australian Parliament. The Bills include measures as diverse as border protection and the suppression of terrorist financing. As a whole, the package goes a long way towards ensuring that the counter-terrorism legislative framework is adequate to meet the challenges of the new terrorist environment.

I will run through each element of the package in turn.

Security Legislation Amendment (Terrorism) Bill 2002

This Bill is the key to the package. It:

• creates a new offence of terrorism and a range of related offences all of which have a maximum penalty of life imprisonment; • modernises Australia’s treason offence; and • creates a regime for the Attorney-General to proscribe organisation that have

terrorist links and to make membership or other specified links with such an organisation an offence.

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Terrorism Offences

Broadly, the Bill defines ‘terrorist act’ as an act or threat of action done with the intention of advancing a political, religious or ideological cause. The act or threat of action must also: involve serious harm to a person; endanger a person’s life, involve serious harm to property, create a serious risk to the health or safety of the public; or seriously interfere with, disrupt or destroy an electronic system.

The terrorism offences created by the Bill are:

(i) engaging in a terrorist act; (ii) providing or receiving training for a terrorist act; (iii) directing organisations concerned with a terrorist act; (iv) possessing things connected with a terrorist act; (v) collecting or making documents likely to facilitate a terrorist act; and (vi) acts in preparation for, or planning, a terrorist act.

The maximum penalty for all of the offences is life imprisonment.

With the exception of the offence of engaging in a terrorist act, it is not necessary for a terrorist act to actually occur for a person to be prosecuted for a terrorism offence.

The onus of proof has been reversed for the offences dealing with training for a terrorist act, possessing things connected with a terrorist act and collecting or making documents likely to facilitate a terrorist act. For example, this means that the defendant bears the burden of proving that weapons training they received was not connected with the preparation for, the engagement of a person in or assistance in a terrorist act. Without reversing the onus of proof for these offences, successful prosecutions would be very hard to mount. Given the gravity of the offences, the Australian Government considered it necessary to take the serious step of reversing the onus of proof.

Treason

The Bill modernises and broadens the existing Australian treason offence. The amendments are designed to ensure that the offence of treason reflects the realities of modern conflict. The existing offence is outdated in a number of respects, most notably relying on a formal declaration of war before the treason offence can apply.

However, modern conflicts do not necessarily involve a declared war against a proclaimed enemy. A new limb has been added to the treason offence under which it will be treason to engage in conduct that assists by any means whatever, with the intent to assist, another country or an organisation that is engaged in armed hostilities with the Australian Defence Force. This broadens the existing treason offence by ensuring that it applies not only when Australia is “at war” but also when Australia is engaged in armed hostilities that do

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not constitute a formally declared war. It also removes the need for an enemy to be proclaimed and makes it clear that hostilities can involve a foreign organisation rather than a foreign country. This will ensure the offence covers situations where Australian forces are in conflict with a regime that is not a recognised government, or with non-government groups such as terrorist organisations.

The maximum penalty for treason remains life imprisonment.

Proscribed Organisations

The Bill also contains provisions to allow the Attorney-General to declare one or more organisations to be proscribed organisations.

Once an organisation has been proscribed, it will be an offence to:

(i) direct the activities of a proscribed organisation; (ii) directly or indirectly receive funds or make funds available to the organisation;

(iii) be a member of the organisation; (iv) provide training to, or train with, the organisation; (v) assist the organisation.

To proscribe an organisation the Attorney-General must be satisfied on reasonable grounds that the organisation: • has a specified terrorist connection; or • has endangered or is likely to endanger the security or integrity of the

Commonwealth or another country.

Declarations will have to be notified in the government gazette and major newspapers.

Defences to a prosecution under the new provisions will be available. For example, it will be a defence if the defendant proves a lack of any personal knowledge or recklessness as to the organisation’s activities. Similarly, it will be a defence if the defendant proves that he or she took immediate steps to terminate membership of a proscribed organisation as soon as practicable after it was proscribed.

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002

Of course, in order for new terrorism offences to be successfully prosecuted, terrorist activities have to be identified and investigated. The Australian Security Intelligence Organisation Legislation Amendment Bill 2002 is designed to enhance the investigative powers of the Australian Intelligence Security Organisation (ASIO).

The Bill will empower ASIO to seek a warrant which allows the detention and questioning of persons who may have information important in relation to terrorism

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offences. This extends to persons who are not themselves engaged in terrorist activities, but who may have relevant information.

With the permission of the Attorney-General, ASIO will be able to seek a warrant from a ‘prescribed authority’ to detain and question a person for a period of up to 48 hours. A ‘prescribed authority’ will either be a Federal Magistrate or a senior legal member of the Administrative Appeals Tribunal. Questioning will take place before the prescribed authority in accordance with the conditions of the warrant. Persons detained will be held by the police in accordance with the conditions of the warrant.

Under the proposed legislation, it will be an offence:

(i) not to appear before a prescribed authority; (ii) to fail to give information requested in accordance with that warrant; (iii) to knowingly make a materially false or misleading statement in purported compliance with a warrant; or (iv) to fail to produce any record or thing requested in accordance with the

warrant, unless the person can prove that he or she does not have the record or thing.

These offences will attract a maximum penalty of 5 years imprisonment.

A person may not refuse to answer a question or produce a record or thing on the ground that it might incriminate them. Anything said or any record or thing produced may be used in evidence in a proceeding for a terrorism offence, or an offence relating to failing to comply with the warrant.

With these significant new powers comes the need to ensure that safeguards are in place to protect against the abuse of the powers. The Bill includes a number of safeguards. I won’t list them all for you, but here are some of the more significant ones:

• The Director-General of Security must seek the consent of the Attorney-General to seek a warrant from a prescribed authority. The Attorney-General will only give his consent if satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important to a terrorism offence and that reliance by ASIO on other methods of collecting the intelligence would be ineffective.

• A prescribed authority may only issue a warrant if satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important to a terrorism offence.

• Any questioning must take place before a prescribed authority. • An interpreter must be made available if necessary.

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• The terms of the warrant may allow the person to make contact with others, including a legal adviser. • When a person first appears before a prescribed authority, the prescribed authority must explain what the warrant authorises ASIO to do, the period the warrant is to

be in force and the possibility of facing criminal sanctions if the person does not cooperate. The prescribed authority must also explain to the person their right to communicate with the Inspector-General of Intelligence and Security or the Ombudsman if they wish to complain about ASIO or the Australian Federal Police. • Any person taken into custody or detained must be treated with humanity and with

respect for human dignity and must not be subjected to cruel, inhuman or degrading treatment. • ASIO is required to video make a recording of any appearance before a prescribed authority or any other matter that the prescribed authority directs. • The Attorney-General will receive a report from ASIO on each warrant.

Telecommunications Interception Amendment Bill 2002

To further assist in the investigation of terrorist offences, the Telecommunications Interception Amendment Bill 2002, in part, provides that telecommunications interception warrants may be sought in relation to the investigation of terrorist offences.

Under the Telecommunications Interception Act 1979, interception warrants may be issued to declared law enforcement agencies in connection with the investigation of class 1 or class 2 offences. Class 1 offences currently include murder, kidnapping and equivalent offences.

The Bill amends the Interception Act to expressly include the new terrorist offences as Class 1 offences. The amendments recognise offences involving terrorism as falling within the most serious class of offences for which interception warrants are available.

Suppression of the Financing of Terrorism Bill 2002

Financing is integral to organised terrorist activity and influences both the extent and the seriousness of those activities. The terrorist acts of 11 September 2001 were carried out by a well-financed and highly organised terrorist network.

The measures in the Suppression of the Financing of Terrorism Bill will operate to prevent the movement of funds for terrorist purposes. It will ensure that law enforcement authorities are able to detect and prevent transactions relating to terrorist activity. The Bill will also enhance the exchange of financial transaction reports information with other countries.

The measures in the Bill implement obligations under United Nations Security Council Resolution 1373 and the International Convention for the Suppression of the

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Financing of Terrorism.

The Bill creates a new offence directed at persons who provide or collect funds and are reckless as to whether those funds will be used to facilitate a terrorist act. The maximum penalty for the offence will be imprisonment for life. The offence implements Article 2 of the Convention and paragraph 1(b) of the Security Council Resolution.

The Bill will also amend the Financial Transactions Reports Act 1988 to require financial institutions, insurers, securities dealers, trustees and other cash dealers to report suspected terrorist-related transactions to the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC). Cash dealers are currently required to report other types of suspicious transactions.

The procedures for the disclosure of financial transaction reports information to foreign countries will be significantly streamlined by enabling AUSTRAC, the Australian Security Intelligence Organisation and the Australian Federal Police to disclose information directly to foreign countries and foreign law enforcement and intelligence agencies. Conditions governing disclosure will safeguard privacy and confidentiality and ensure that the information is used only for proper purposes.

In addition, the Bill will introduce offences for using or dealing with the assets of persons and entities involved in terrorist activities and making assets available to those persons or entities. A maximum penalty of 5 years imprisonment will apply to the offences, which implement Security Council Resolution 1373.

Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002

One highly visible form of terrorist activity is terrorist bombings. The international community has taken action with regard to terrorist bombing in the form of the International Convention for the Suppression of Terrorist Bombings. The Convention seeks to enhance international cooperation in devising and adopting effective practical measures for the prevention of acts of terrorism and the prosecution and punishment of their perpetrators.

The Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 will enable Australia to accede to the Convention.

The Bill establishes offences which make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction which would cause major economic loss.

‘Explosive or other lethal device’ is defined broadly, adopting the definition in the Convention. An explosive or lethal advice includes an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage. This means that the Bill will apply not only to bombings in the conventional sense,

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but also to acts such as the attacks on the World Trade Centre and the Pentagon on 11 September 2001.

To reflect the severity of these offences, they will attract a maximum penalty of life imprisonment.

Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002

Terrorist activity doesn’t just involve large scale activities such as bombings. It can also include small scale activities designed to disrupt the normal life of a community.

The Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002 received the Royal Assent on 4 April 2002. The Act introduces new offences directed at the use of postal and similar services to perpetrate hoaxes, make threats and send dangerous articles. This is aimed directly at those who attempt to cause disruption and spread fear by sending dangerous (or apparently dangerous) articles through the post. The sending of anthrax powder and substances designed to look like anthrax powder through the post in the period immediately after September 11 is an example of this.

The new offences modernise the existing law dealing with misuse of the post and increase the penalties available to properly reflect the seriousness of the conduct involved. The amendments also ensure that the offences cover the use of all postal and other like services. Services which are covered include commercial courier services and parcel and packet carrying services.

The new anti-hoax offence carries a maximum penalty of 10 years imprisonment. Using a postal or similar service to make threats is punishable by 10 years imprisonment in the case of a threat to kill, and 7 years for a threat to cause serious harm. A penalty of 10 years imprisonment applies to the sending of dangerous articles.

Border Security Legislation Amendment Bill 2002

The final element of the package involves the protection of Australia’s borders. The Border Security Legislation Amendment Bill 2002 contains amendments to a range of Customs activities that contribute to the security of Australia’s borders.

The amendments deal with border surveillance, the movement of people, the movement of goods and the controls Customs has in place to monitor this activity. The Bill contains a number of amendments to existing legislation, some of which are more significant that others for present purposes. I will mention some of the more significant proposals.

For example, international airline operators will be required to allow Customs access to information about passengers in their computerised reservation systems. This will help Customs to better identify high risk passengers who need further

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assessment on arrival. Penalties will apply where shipping companies and airlines do not comply with all the reporting requirements.

In keeping with the need to closely monitor activities at airports these amendments will also provide Customs with the authority to obtain information about people who work in the secure and restricted areas of international airports. Employers will be required to provide Customs with details, such as name, address and date and place of birth, of new employees commencing work in these areas. Authorities who issue aviation security identification will also be required to provide details when these identities are issued or renewed.

To assist with monitoring the movement of goods across our borders it is proposed to make reporting of in-transit goods that pass through Australian ports or airports mandatory. The amendments will also provide a power to seize, under warrant, in-transit cargo which is connected with a terrorist act or prejudices Australia's defence or national security or international peace and security.

Collectively, these amendments will allow Customs to make a more significant contribution to protecting Australia's borders.

SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE INQUIRY INTO THE SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL AND RELATED BILLS

On 12 March 2002, the Suppression of the Financing of Terrorism Bill 2002, the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, the Border Security Legislation Amendment Bill 2002 and the Telecommunications Interception Legislation Amendment Bill 2002 were introduced into the House of Representatives, together with the Security Legislation Amendment (Terrorism) Bill 2002.

The House of Representatives passed the five Bills on 13 March 2002. On 14 March 2002, the Bills were introduced into the Senate and the second reading debate was adjourned.

The Bills were referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 3 May 2002.

The Committee heard evidence from a broad range of interested parties at public hearings in Sydney, Melbourne and Canberra and received over 400 written submissions.

The Committee ultimately reported on 8 May 2002. The Committee’s recommendations are reproduced at Attachment A.

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COMMONWEALTH AND STATES AND TERRITORIES AGREEMENT ON TERRORISM AND MULTI-JURISDICTIONAL CRIME

In addition to the Commonwealth’s legislative package, work has begun on augmenting Australia’s capacity to deal with terrorism in cooperation with the States and Territories.

At a meeting on 5 April 2002, the Prime Minister and State and Territory Leaders agreed that a new national framework is needed to meet the new challenges of combating terrorism and multi-jurisdictional crime. In relation to terrorism, the Leaders agreed:

1. The Commonwealth will have responsibility for ‘national terrorist situations’, to include attacks on Commonwealth targets, multi-jurisdictional attacks, threats against civil aviation and those involving chemical, biological, radiological and nuclear materials.

2. The Commonwealth will consult and seek the agreement of affected States and Territories before a national terrorist situation is declared and States and Territories agree not to withhold unreasonably such agreement.

3. To take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power of specific, jointly agreed legislation, including roll back provisions to ensure that the new Commonwealth law does not override State law where that is not intended and to come into effect by 31 October 2002. The Commonwealth will have power to amend the new Commonwealth legislation in accordance with provisions similar to those which apply under Corporations arrangements. Any amendment based on the referred power will require consultation with and agreement of States and Territories, and this requirement to be contained in the legislation.

4. That all jurisdictions will review their legislation and counter-terrorism arrangements to make sure that they are sufficiently strong.

5. That the Commonwealth and States and Territories will continue to: (i) improve Australia’s anti-terrorist intelligence capacity and to develop effective means for sharing intelligence; (ii) significantly upgrade the central coordination capacity so that the operational arms of the Commonwealth and the States and Territories can obtain the information and strategic advice necessary to respond rapidly and effectively.

6. The existing Standing Advisory Committee on Commonwealth/State Cooperation for Protection Against Violence (SAC-PAV) will also be reconstituted as the National Counter-Terrorism Committee with a broader mandate to cover prevention and consequence management issues and with Ministerial oversight arrangements.

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IMPLEMENTATION OF COUNTER-TERRORISM CONVENTIONS

Of course, September 11 was not the beginning of work to develop a legislative framework for counter-terrorism.

The international community has been working for many years to address counter-terrorism issues. There is a suite of 12 international instruments concerning terrorism. They deal with a broad range of terrorist activity, including the unlawful seizure of aircraft, the taking of hostages and the financing of terrorism.

The conventions include a number of obligations that are common to the majority of the instruments. First, the instruments require offences to be created under the party’s domestic law. They also require states to act to prevent the commission of offences and to take remedial action if a crime takes place. The commission of any offences and any remedial action taken must be reported as soon as possible to the appropriate international body.

The instruments require the party’s domestic law to establish jurisdiction over the offence in certain circumstances (such as where there is a territorial or national link to the offender or operator of the object attacked). Party states are also required to cooperate generally in relation to extradition and mutual assistance in the investigation of offences. In particular, they are required to detain an alleged offender found in its territory, notify states with jurisdiction over the offence in question and conduct preliminary investigations. Further, party states are required to extradite suspects in detention to a state with jurisdiction over the offence or put them on trial themselves.

Australia has taken domestic legislative action to implement 9 of the 12 instruments. Two additional instruments will be implemented by elements of the counter-terrorism legislative package.

INTERNATIONAL INSTRUMENTS CONCERNING TERRORISM TO WHICH AUSTRALIA IS A PARTY & DOMESTIC IMPLEMENTING LEGISLATION

1. Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963) Convention entered into force on 4 December 1969. Convention deposited with the International Civil Aviation Organization (ICAO). Australia did not sign Convention, but deposited an instrument of accession on 22 June 1970 with an effective date of 20 September 1970. Convention obligations implemented under the Crimes (Aviation) Act 1991.

2. Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague, 1970)

Convention entered into force on 14 October 1971. Convention deposited with ICAO.

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Australia signed the Convention on 15 June 1971. Australia ratified the Convention on 9 November 1972. Implemented under the Crimes (Aviation) Act 1991, covering the hijacking of a civilian aircraft

3. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1971) Convention entered into force on 26 January 1973. Convention deposited with ICAO. Australia signed the Convention on 12 October 1972. Australia ratified the Convention on 12 July 1973. Implemented under the Crimes (Aviation) Act 1991, covering attacks against a person on board a civilian aircraft in flight or against the aircraft itself which would endanger the aircraft.

4. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (Montreal, 1988) Supplementary Protocol to above Convention. Protocol entered into force on 6 August 1989. Protocol deposited with ICAO. Australia did not sign the Protocol, but deposited an instrument of accession on 23 October 1990, with an effective date of 22 November 1990. Implemented under the Crimes (Aviation) Act 1991, covering attacks against a person at an international airport which causes or is likely to cause serious injury or death, or attacks against the facilities of or aircraft located at an international airport, which endanger or is likely to endanger safety at that airport

5. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (Rome, 1988) Convention entered into force on 1 March 1992. Convention deposited with the International Maritime Organization (IMO). Australia did not sign Convention, but deposited an instrument of accession on 19 February 1993, with an effective date of 20 May 1993. Implemented under the Crimes (Ships and Fixed Platforms) Act 1992, covering the hijacking of a civilian ship, or attacks against a person on board a ship or the ship itself in a manner likely to endanger the safe navigation of that ship; or deliberately endangering shipping generally through sabotage or misinformation.

6. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Rome, 1988) Supplementary Protocol to above Convention. Protocol entered into force on 1 March 1992. Protocol deposited with the IMO. Australia did not sign Convention, but deposited an instrument of accession on 19 February 1993, with an effective date of 20 May 1993. Implemented under the Crimes (Ships and Fixed Platforms) Act 1992, covering the hijacking of a fixed platform, or attacks against a person on board a fixed platform or the fixed platform itself in a manner which is likely to endanger its safety.

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7. Convention on the Physical Protection of Nuclear Material (Vienna, 1980) Convention entered into force on 8 February 1987. Convention deposited with the International Atomic Energy Agency (IAEA). Australia signed Convention on 22 February 1984. Australia ratified the Convention on 22 October 1987. Implemented under the Nuclear Non-Proliferation (Safeguards) Act 1987, covering the mishandling nuclear material in a way likely to cause death or serious injury to any person or substantial damage to property, obtaining nuclear material illegally, or threatening to use nuclear material to cause death or serious injury to any person or substantial property damage.

8. International Convention against the Taking of Hostages (New York, 1979)

Convention entered into force on 3 June 1983. Convention deposited with the United Nations. Australia did not sign the Convention, but deposited an instrument of accession on 21 May 1990. Implemented under the Crimes (Hostages) Act 1989, covering the taking of hostages in order to compel a third party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.

9. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (New York, 1973)

Convention entered into force on 20 February 1977. Convention deposited with the United Nations. Australia signed the Convention on 30 December 1974. Australia ratified the Convention on 20 June 1977. Implemented under the Crimes (Internationally Protected Persons) Act 1976, covering attacks upon the person or official premises or the means of transport of an internationally protected person likely to endanger his life, person or liberty (ie, head of State or Government, a visiting Minister for Foreign Affairs, as well as members of his family who accompany him, any representative or official of a State or any official or other agent of an international organisation of an intergovernmental character).

INTERNATIONAL INSTRUMENTS TO WHICH AUSTRALIA IS NOT A PARTY

10. International Convention for the Suppression of the Financing of Terrorism (New York, 1999) Convention has not yet entered into force. Convention deposited with the United Nations. Australia signed the Convention on 15 October 2001. Convention open for signature until 31 December 2001. The Convention will be implemented by the Suppression of the Financing of Terrorism Bill 2002.

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11. International Convention for the Marking of Plastic Explosives for the Purposes of Detection (Montreal, 1991) Convention entered into force on 21 June 1998. Convention deposited with ICAO. Australia has not signed or acceded to this Convention.

12. International Convention for the Suppression of Terrorist Bombings (New York, 1997) Convention entered into force on 23 May 2001. Convention deposited with the United Nations. Australia did not sign this Convention, however accession is currently being progressed. This Convention will be implemented by the Criminal Code Amendment (Terrorist Bombings) Bill 2002.

NB - the Convention on the Safety of United Nations and Associated Personnel has not been formally included on this list as it is not strictly counter-terrorist in nature. This is consistent with the approach adopted by the United Nations Secretary General who maintains a list of twelve counter-terrorism Conventions, exactly as above. This Convention is deposited with the United Nations and entered into force on 15 January 1999. Australia signed the Convention on 22 December 1995 and ratified it on 4 December 2000.

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ATTACHMENT A

SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

INQUIRY INTO THE SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL AND RELATED BILLS

RECOMMENDATIONS

Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]

Recommendation 1

The Committee recommends that proposed section 80.1 in the Bill be amended so that the terms 'conduct that assists by any means whatever' and 'engaged in armed hostilities' are defined, in order to ensure that the humanitarian activities of aid agencies are not caught within the ambit of the offence of treason.

Recommendation 2

The Committee recommends that the definition of 'terrorist act' in proposed section 100.1 in the Bill be amended to include a third element, namely that the action or threat of action is designed to influence government by undue intimidation or undue coercion, or to unduly intimidate the public or a section of the public.

Recommendation 3

The Committee recommends that:

(i) the Bill be amended to remove proposed sections 101.2(2), 101.4(2) and 101.5(2), which impose absolute liability in respect of certain elements of those offences; and

(ii) the offences in proposed sections 101.2(1), 101.4(1) and 101.5(1) be amended to provide that they are committed if the person knew or was reckless as to the required element in 101.2(1)(b), 101.4(1)(b) and 101.5(1)(b).

Recommendation 4

The Committee recommends:

(i) that proposed Division 102 in the Bill in relation to the proscription of organisations with a terrorist connection not be agreed to; and

(ii) that the Attorney-General review the proscription provisions with a view to developing a statutory procedure which:

• does not vest a broad and effectively unreviewable discretion in a member of the Executive;

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• restricts the proposed ground under which an organisation may be proscribed if it has endangered or is likely to endanger the 'security or integrity' of the Commonwealth or any country, by defining 'integrity' as meaning 'territorial integrity';

• provides detailed procedures for revocation, including giving a proscribed organisation the right to apply for review of that decision;

• provides for adequate judicial review of the grounds for declarations of proscription;

• more appropriately identifies and defines the proposed offences in relation to proscribed organisations, particularly in relation to the offence of 'assisting' such an organisation; and

• does not create offences with elements of strict liability, given the very high proposed penalties.

Telecommunications Interception Legislation Amendment Bill 2002

Recommendation 5

The Committee recommends that the Attorney-General review the current law on access to stored communications of delayed messages services with a view to amending the Telecommunications Interception Legislation Amendment Bill 2002 so that the accessing of such data requires a telecommunication interception warrant.

Suppression of the Financing of Terrorism Bill 2002

Recommendation 6

The Committee recommends that proposed section 103.1 in the Suppression of the Financing of Terrorism Bill 2002 be amended so that the financing of terrorism offence includes an element of intent.

Recommendation 7

The Committee recommends that:

(a) provision be made, either by way of an amendment to the Suppression of the Financing of Terrorism Bill 2002 or under regulations, that before any decision is taken to freeze assets in respect of a proscribed person or entity, the Australian Federal Police set an appropriate course of action in consultation with the relevant financial institution or institutions before any asset is frozen; and

(b) once action has been taken to freeze an asset, the owner of assets must be advised in writing as soon as possible and their rights and obligations explained.