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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Anti-terrorism
Bill 2004
No. ,
2004
(Attorney-General)
A
Bill for an Act to amend the law relating to foreign incursions and recruitment,
terrorism offences and proceeds of crime, and for related
purposes
Contents
Crimes Act
1914 3
Crimes (Foreign Incursions and Recruitment) Act
1978 8
Criminal Code Act
1995 10
Proceeds of Crime Act
2002 11
A Bill for an Act to amend the law relating to foreign
incursions and recruitment, terrorism offences and proceeds of crime, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Anti-terrorism Act 2004.
This Act commences on the day after the day on which it receives the
Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
(1) The amendments of the Proceeds of Crime Act 2002 apply to any
application made under that Act after the commencement of this Act, including an
application in relation to:
(a) conduct that occurred before the commencement of this Act;
or
(b) proceeds derived or realised before the commencement of this Act;
or
(c) literary proceeds derived or transferred to Australia before the
commencement of this Act.
(2) The amendment made by item 17 of Schedule 1 does not apply
to proceedings for offences alleged to have been committed before the
commencement of this Act.
1 Subsection 23B(1) (definition of investigation
period)
Repeal the definition, substitute:
investigation period means the investigation period
prescribed by section 23C or 23CA, as the case requires.
2 Subsection 23B(1)
Insert:
terrorism offence means:
(a) an offence against Division 72 of the Criminal Code; or
(b) an offence against Part 5.3 of the Criminal Code.
3 Subsection 23C(1)
After “Commonwealth offence”, insert “(other than a
terrorism offence)”.
Note: The heading to section 23C is replaced by the
heading “Period of arrest if arrested for non-terrorism
offence”.
4 Subsection 23C(6)
Repeal the subsection, substitute:
(6) If the person has been arrested more than once within any period of 48
hours, the investigation period for each arrest other than the first is reduced
by so much of any of the following periods as occurred within that 48
hours:
(a) any earlier investigation period or periods under this
section;
(b) any earlier investigation period or periods under
section 23CA.
5 After section 23C
Insert:
(1) If a person is arrested for a terrorism offence, the following
provisions apply.
(2) The person may be detained for the purpose of investigating either or
both of the following:
(a) whether the person committed the offence;
(b) whether the person committed another terrorism offence that an
investigating official reasonably suspects the person to have
committed;
but must not be detained for that purpose, or for purposes that include
that purpose, after the end of the investigation period prescribed by this
section.
(3) The person must be:
(a) released (whether unconditionally or on bail) within the investigation
period; or
(b) brought before a judicial officer within that period or, if it is not
practicable to do so within that period, as soon as practicable after the end of
that period.
Note: For judicial officer, see
subsection (10).
(4) For the purposes of this section, but subject to subsections (6)
and (8), the investigation period begins when the person is arrested, and ends
at a time thereafter that is reasonable, having regard to all the circumstances,
but does not extend beyond:
(a) if the person is or appears to be under 18, an Aboriginal person or a
Torres Strait Islander—2 hours; or
(b) in any other case—4 hours;
after the arrest, unless the period is extended under
section 23DA.
(5) In ascertaining any period of time for the purposes of this section,
regard shall be had to the number and complexity of matters being
investigated.
(6) If the person has been arrested more than once within any period of 48
hours, the investigation period for each arrest other than the first is reduced
by so much of any of the following periods as occurred within that 48
hours:
(a) any earlier investigation period or periods under this
section;
(b) any earlier investigation period or periods under
section 23C.
(7) However, in relation to each first arrest, disregard
subsection (6) for any later arrest if:
(a) the later arrest is for a Commonwealth offence:
(i) that was committed after the end of the person’s period of
detention under this Part for the first arrest; or
(ii) that arose in different circumstances to those in which any
Commonwealth offence to which the first arrest relates arose, and for which new
evidence has been found since the first arrest; and
(b) the person’s questioning associated with the later arrest does
not relate to:
(i) a Commonwealth offence to which the first arrest relates; or
(ii) the circumstances in which such an offence was committed.
(8) In ascertaining any period of time for the purposes of
subsection (4) or (6), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the person
from the place at which the person is arrested to the nearest premises at which
the investigating official has access to facilities for complying with this
Part;
(b) any time during which the questioning of the person is suspended or
delayed to allow the person, or someone else on the person’s behalf, to
communicate with a legal practitioner, friend, relative, parent, guardian,
interpreter or other person as provided by this Part;
(c) any time during which the questioning of the person is suspended or
delayed to allow such a legal practitioner, friend, relative, parent, guardian,
interpreter or other person to arrive at the place where the questioning is to
take place;
(d) any time during which the questioning of the person is suspended or
delayed to allow the person to receive medical attention;
(e) any time during which the questioning of the person is suspended or
delayed because of the person’s intoxication;
(f) any time during which the questioning of the person is suspended or
delayed to allow for an identification parade to be arranged and
conducted;
(g) any time during which the questioning of the person is suspended or
delayed in order to allow the making of an application under section 3ZQB
or the carrying out of a prescribed procedure within the meaning of
Division 4A of Part IAA;
(h) the time (if any) that is reasonably required in connection with
making and disposing of an application under section 23DA, 23WU or
23XB;
(i) any time during which the constable is informing the person of matters
specified in section 23WJ;
(j) any reasonable time during which the questioning of the person is
suspended or delayed to allow the person to rest or recuperate;
(k) any time during which a forensic procedure is being carried out on the
person by order of a magistrate under Division 5 of Part ID;
(l) any time during which the questioning of the person is suspended or
delayed, if section 23XGD applies and that time is to be disregarded in
working out a period of time for the purposes of that section;
(m) any reasonable period during which the questioning of the person is
reasonably suspended or delayed in order to allow the investigating official to
obtain information relevant to the investigation from a place outside Australia
that is in a different time zone, being a period that does not exceed the amount
of the time zone difference.
(9) In any proceedings, the burden lies on the prosecution to prove
that:
(a) the person was brought before a judicial officer as soon as
practicable; or
(b) any particular time was covered by a provision of
subsection (8).
(10) In this section:
judicial officer means any of the following:
(a) a magistrate;
(b) a justice of the peace;
(c) a person authorised to grant bail under the law of the State or
Territory in which the person was arrested.
6 Subsection 23D(1)
After “serious offence”, insert “(other than a terrorism
offence)”.
Note: The heading to section 23D is replaced by the
heading “Extension of investigation period if arrested for
non-terrorism offence”.
7 After section 23D
Insert:
(1) If a person is under arrest for a terrorism offence, an investigating
official may, at or before the end of the investigation period, apply for an
extension of the investigation period.
(2) The application must be made to:
(a) a magistrate; or
(b) if it cannot be made at a time when a magistrate is available—a
justice of the peace employed in a court of a State or Territory or a bail
justice; or
(c) if it cannot be made when any of the foregoing is available—any
justice of the peace.
The magistrate, justice of the peace or bail justice to whom the
application is made is the judicial officer for the purposes of
this section and section 23E.
(3) The application may be made before the judicial officer, or in
writing, or as prescribed by section 23E, and the person or his or her
legal representative may make representations to the judicial officer about the
application.
(4) Subject to subsection (7), the judicial officer may extend the
investigation period, by signed written authority, if satisfied that:
(a) the offence is a terrorism offence; and
(b) further detention of the person is necessary to preserve or obtain
evidence or to complete the investigation into the offence or into another
terrorism offence; and
(c) the investigation into the offence is being conducted properly and
without delay; and
(d) the person, or his or her legal representative, has been given the
opportunity to make representations about the application.
(5) The authority must set out:
(a) the day and time when the extension was granted; and
(b) the reasons for granting the extension; and
(c) the terms of the extension.
(6) The judicial officer must give the investigating official a copy of
the authority as soon as practicable after signing the authority.
(7) The investigation period may be extended any number of times, but the
total of the periods of extension cannot be more than 20 hours.
8 Subsection 23E(1)
After “23D”, insert “or 23DA”.
9 At the end of subsection
23E(3)
Add “or 23DA(5) (as the case requires)”.
10 Subsection 23WD(4) (note)
Omit “(see subsection 23C(7))”.
11 Subsection 23WM(4) (note)
Omit “(see subsection 23C(7))”.
12 Paragraph 23XGD(2)(h)
Repeal the paragraph, substitute:
(h) any time that is to be disregarded under subsection 23C(7) or
23CA(8).
Crimes (Foreign Incursions
and Recruitment) Act 1978
13 Subsection 6(1) (penalty)
Omit “14 years”, substitute “20 years”.
14 Paragraph 6(2)(b)
Omit “during the period of one year immediately preceding”,
substitute “before”.
15 At the end of section 6
Add:
(5) Paragraph (4)(a) does not apply if:
(a) a person enters a foreign State with intent to engage in a hostile
activity in that foreign State while in or with an organisation; and
(b) the organisation is a prescribed organisation at the time of
entry.
(6) Paragraph (4)(a) does not apply if:
(a) a person engages in a hostile activity in a foreign State while in or
with an organisation; and
(b) the organisation is a prescribed organisation at the time when the
person engages in that hostile activity.
(7) For the purposes of subsections (5) and (6), prescribed
organisation means:
(a) an organisation that is prescribed by the regulations for the purposes
of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition of
terrorist organisation in subsection 102.1(1) of the Criminal
Code.
16 Paragraph 7(2)(b)
Omit “during the period of one year immediately preceding”,
substitute “before”.
17 After subsection 11(3)
Insert:
(3A) In a proceeding against a person for an offence against this Act, a
certificate by a Minister, stating that an organisation specified in the
certificate was not, on a specified day or during a specified period, an armed
force, or part of an armed force, of the government of a foreign State specified
in the certificate is prima facie evidence of the matters stated in the
certificate.
18 At the end of the Act
Add:
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
19 Paragraph 102.3(1)(b) of the Criminal
Code
Repeal the paragraph, substitute:
(b) the organisation is a terrorist organisation; and
20 Section 102.5 of the Criminal
Code
Repeal the section, substitute:
(1) A person commits an offence if:
(a) the person intentionally provides training to, or intentionally
receives training from, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist
organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally provides training to, or intentionally
receives training from, an organisation; and
(b) the organisation is a terrorist organisation that is covered by
paragraph (b), (c), (d) or (e) of the definition of terrorist
organisation in subsection 102.1(1).
Penalty: Imprisonment for 25 years.
(3) Subject to subsection (4), strict liability applies to
paragraph (2)(b).
(4) Subsection (2) does not apply unless the person is reckless as to
the circumstance mentioned in paragraph (2)(b).
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4) (see subsection 13.3(3)).
21 Paragraph 20(1)(d)
Repeal the paragraph, substitute:
(d) there are reasonable grounds to suspect that a person has committed an
*indictable offence or a
*foreign indictable offence, and that the
person has derived *literary proceeds in
relation to the offence; and
22 Paragraphs 20(3)(b) and (c)
Repeal the paragraphs, substitute:
(c) that the authorised officer suspects that the suspect derived
*literary proceeds in relation to the offence;
and
23 Paragraph 152(2)(c)
Omit “in
*Australia”.
24 Paragraph 153(1)(a)
After “resulting”, insert “, directly or
indirectly,”.
25 After subsection 153(3)
Insert:
(3A) If the offence is a *foreign
indictable offence, then a *benefit is not
treated as *literary proceeds unless the
benefit is derived in *Australia or transferred
to Australia.
26 After section 337
Insert:
(1) If:
(a) an application (the current application) is made for a
*restraining order or
*confiscation order in relation to conduct that
constituted an offence against a law of a foreign country; and
(b) if the conduct had occurred in Australia at the testing time referred
to in subsection (2), the conduct would have constituted an offence against
a law of the Commonwealth, a State or a Territory punishable by at least 12
months imprisonment;
then, for the purposes of the current application, the conduct is treated
as having constituted a foreign indictable offence at all relevant
times.
Example: X commits an offence against a law of a foreign
country at a time when the conduct is not an offence against Australian law. X
then derives literary proceeds in relation to the offence and transfers the
proceeds to Australia. After the proceeds are transferred, a new Commonwealth
offence is created that applies to the type of conduct concerned. An application
is then made for a literary proceeds order. For the purposes of the proceedings
for that order, the original conduct is treated as having constituted a foreign
indictable offence at all relevant times and accordingly an order can be made in
respect of those proceeds.
(2) The testing time for the current application
is:
(a) if the current application is an application for a
*restraining order—the time when the
current application was made; or
(b) if the current application is an application for a
*confiscation order (other than a
*literary proceeds order) in relation to a
restraining order—the time when the application for the restraining order
was made; or
(c) if:
(i) the current application is an application for a literary proceeds
order; and
(ii) an earlier restraining order has been made in respect of the same
offence;
the time when the application was made for that earlier restraining
order; or
(d) if the current application is an application for a literary proceeds
order but paragraph (c) does not apply—the time when the current
application was made.
(3) In this section:
offence against a law of a foreign country includes an
offence triable by a military commission of the United States of America
established under a Military Order of 13 November 2001 made by the
President of the United States of America and entitled “Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism”.
27 Section 338 (definition of foreign
indictable offence)
Repeal the definition, substitute:
foreign indictable offence has the meaning given by
section 337A.