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2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Anti-Terroris m Laws Reform Bill 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator S Ludlam)
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ANTI-TERRORISM LAWS REFORM BILL 2009
Outline
The Anti-Terrorism Reform Bill 2009 (the Bill) purpose is to restore core democratic
principles into Australian laws dealing with terrorism offences.
The Bill amends the following Acts:
Criminal Code Act 1995 to amend the definitions relating to terrorism offences,
provisions relating to the proscription of `terrorist organisations', offences relating to
interaction with `terrorist organisations', offence relating to 'reckless possession of a
thing' and repealing the offence of sedition;
Crimes Act 1914 to amend provisions relating to detention of terrorism suspects
including changes to the periods of detention of persons suspected of terrorism
offences and bail conditions for such persons; and
Australian Security Information Organisation Act 1979 to amend provisions relating
to the questioning of terrorism suspects and the detention of terrorism suspects.
The Bill also repeals the National Security Information Act 2004.
NOTES ON CLAUSES
Clause 1 Short Title
1. This is a formal provision specifying the short title.
Clause 2 Comme ncement
2. The Bill's provisions are to commence the day after it receives Royal Assent
Clause 3 Schedules
3. This clause provides that an Act that is specified in a Schedule in amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
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Schedule 1 Amendme nts to the Criminal Code Act 1995
Criminal Code Act 1995
Items 1 and 2 Repeal of Sedition offences
4. Item 1 repeals section 80.2 of the Criminal Code Act 1995. Section 80.2 currently
provides for the offence of sedition. Item 2 is a consequential amendment deleting
references to section 80.2.
Items 3 and 4 Definition of terrorist act
5. This item repeals the current definition of terrorist act in section 100.1 of the Criminal
Code Act 1995 and inserts a new definition. The definition inserted by the Bill is based on
the definition used by the United Nations Security Council.
6. Item 3 removes references to "threat of action" and "advancing a political, religious or
ideological cause" in subsection 100.1(1).
7. Items 4 amends subsections 100 .1(2) and (3) to:
limit action that can be considered a terrorist act to action that causes a person's
death; endangers a person's life (other than the person taking the action) ; causes
serious physical harm to a person; involves taking a person hostage or creates or a
serious risk to the health or safety of the public;
remove references to the damage of property and interference, disruption or
destruction of information, telecommunication, financial, transport, or essential
public utility systems or the delivery of essential government services as action
that can be considered a terrorist act; and
includes that an action will not fall within the definition of a terrorist act if the
action is not intended either to cause a person's death, to cause serious physical
harm to a person, or to be a taking of a person hostage.
8. Item 4 also adds subsection (3A) to section 100.1 to provide that action will not be a
terrorist act if it takes place in the context of, and is associated with, an armed conflict.
The armed conflict need not be an international armed conflict. A new subsection (3B)
defines armed conflict as having the same meaning as in Division 268 of the Criminal
Code Act 1995. The new subsection (3B) also defines take a person hostage as to seize or
detail that person and to threaten to kill, injure to continue to detail that person.
Item 5 Possessing things connected with terrorist acts
9. This item repeals section 101.4 of the Criminal Code Act 1995. Section 101.4 provides
for the offence of possessing things connected with terrorist acts.
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Item 7 Definition of terrorist organisation
10. This item removes the reference to "fostering the doing of" a terrorist act in the definition
of terrorist organisation in section 102.1 of the Criminal Code Act 1995.
Items 6, 8 and 10 Terrorist organisation regulations
11. These items amend section 102.1 of the Criminal Code which provides for terrorist
organisations to be proscribed in regulations. The items amend section 102.1 to :
provide notification, if it is practicable, to a person, or organization affected,
when the proscription of an organization is proposed.
provide the means, and right, for persons and organizations, to be heard in
opposition, when proscription is considered.
provide for the establishment of an advisory committee, to be appointed to advice
the Attorney-General on cases that have been submitted for proscription of an
organization.
require the committee to consist of people who are independent of the process of
proscribing terrorist organizations, such as those with expertise in security
analysis, public affairs, public administration and legal practice.
require the role of the committee be publicised,
allow the committee to consult publicly and to receive submissions from
members of the public to assist in their role.
12. Item 8 repeals subsection 102.1(2) and inserts new subsections 102.1(1AA), (2), (2AA),
(2AB), (2AC), (2AD), and (2AE). The new subsection 102.1(1AA) provides that an
organisation that has been notified that it is proposed to be listed as a terrorist
organisation has the right to oppose the proposed listing. Subsection (2) provides that
before the Governor-General makes a regulation specifying an organisation as a terrorist
organisation, the Minister must ensure the organisation is notified, if it is practical to do
so, of the proposed listing and the organisation and its members are notified of their right
to oppose the proposed listing. If the proposed listing is at the request of a foreign
country the organisation, its members and the Advisory Committee must be advised of
that fact. The Minster must also be satisfied on reasonable grounds that the orga nisation is
directly or indirectly engaged in preparing, planning, assisting in the doing of a terrorist
act or advocates the doing of a terrorist act.
13. Subsection (2AA) requires the Minister to seek advice and take into account
recommendations of the Advisory Committee in making a decision whether the Minster is
satisfied on reasonable grounds that the organisation is directly or indirectly engaged in
preparing, planning, assisting in the doing of a terrorist act or advocates the doing of a
terrorist act.
14. Subsection (2AB) provides that if the Governor-General makes a regulation listing an
organisation, the Minister must ensure the organisation is notified of the listing and the
consequences of that listing for its member. The Minister must also cause to be published,
on the internet, in newspapers, in the Gazette and in any other way required by regulation,
a notice that the regulation has been made and the consequences of the listing for the
members of the organisation.
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15. Subsection (2AC) requires if the listing was requested by a foreign country, the notice
under (2AB) must include that information.
16. Subsection (2AD) provides that the making of a regulation listing an organisation
constitutes a decision to list an organisation for the purposes of subsection (2AE) and
section 102.1AA.
17. Subsection (2AE) provides that a notice under (2AB) must also state that the decision to
list an organisation may be reviewed by the Administrative Appeals Tribunal. The notice
must also state the time in which such an application can be made, who can apply for the
review and where the application for review can be made.
18. Item 9 inserts new sections 102.1AA, 102.1AB and 102.1AC.
19. Section 102.1AA provides that application can be made to the Administrative Appeals
Tribunal for a review of a decision to list an organisation. It also provides that regulations
must be made to provide for the procedures to be followed by the Tribunal in considering
such an application.
20. Section 102.1AB establishes a Listing Advisory Committee. The Advisory Committee is
to consist of at least 5 members appointed by the Minister. Members are to hold office on
a part-time basis for a specified period of no more than 3 years. The terms and conditions
of the appointment including remuneration are determined in the instrument of
appointment. The Minster must not appoint a person to the Advisory Committee unless
the Minister is satisfied the person is not otherwise connected to the process of listing an
organisation and if the Minster is satisfied that the person has knowledge of or experience
in human or civil rights, security analysis, public affairs, public administration, legal
practice or a field specified in regulations. One member of the Advisory Committee is to
be appointed by the Minister as the convenor. The Minister may terminate the
appointment of a member in writing. A member may also resign in writing.
21. Section 102.1AC provides for the functions of the Advisory Committee which include
advising the Minister on any proposed listing of an organisation and to consider and make
recommendations on any application made to the Minister opposing a propose listing.
The Advisory Committee may publicise its role, engage in public consultations or do
anything else it considers necessary in carrying out its function.
22. Item 6 inserts into subsection 102.1(1) a definition of Advisory Committee as the Listing
Advisory Committee established by section 102.1AB.
Item 10 Training a terrorist organisation or receiving training from a terrorist
organisation
23. This item repeals and replaces section 102.5 providing for the offence of training a
terrorist organisation or receiving training from a terrorist organisation. The new
subsection 102.5(1) provides a person commits an offence with a penalty of
imprisonment up to 25 years if the person intentionally provides training to a terrorist
organisation or receives training from a terrorist organization and the person knows the
organisation is a terrorist organisation. New subsection 102.5(2) provides for an offence
of training a terrorist organisation or receiving training from a terrorist organisation where
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the person is reckless as to whether the organisation is a terrorist organisation. This
offence carries a penalty of up to 15 years imprisonment. The amendment also removes
the strict liability for the offence of training a terrorist organisation or receiving training
from a terrorist organisation where the organisation is specified in the regulations made
under section 102.1(1).
Items 11 to 15 Providing support to a terrorist organisation
24. These items amend section 102.7 of the Criminal Code Act 1995 to replace the word
"support" with the term "material support" and define material support to exclude the
mere publication of views that appear to be favourable to an organisation or its objectives.
These items implement a recommendation by the Parliamentary Joint Committee on
Intelligence and Security made in their Review of Security and Counter-Terrorism
Legislation in December 2006.
25. The amendments also provide that for an offence under section 102.7 to be committed a
person must intend the material support or resources provided to be used by a terrorist
organisation to engage in certain activities.
Item 16 Associating with a terrorist organisation
26. This item repeals section 102.8 of the Criminal Code Act 1995. Section 102.8 currently
provides for the offence of associating with a terrorist organisation.
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Schedule 2 Amendme nts to the Crimes Act 1914
Crimes Act 1914
Item 1 Bail
27. This item repeals section 15AA of the Crimes Act 1914. Section 15AA currently provides
for a presumption against bail for certain offences.
Items 2 to 7 Powe rs of detention
28. These items amend provisions relating to the powers of detention for person suspected of
terrorism offences.
29. Item 2 inserts a new section 23BA requiring that a person detained under this Division 2
of Part IC of the Crimes Act 1914 shall be informed of their rights.
30. Items 4 and 5 repeal provisions specifying time during which suspension or delay of
questioning can be disregarded. This time is known as 'investigative dead time' and has
the effect of prolonging the period a person can be detained. Item 4 repeals paragraph
23CA(8)(l) and item 5 repeals section 23CB. Items 3 and 6 are a consequential
amendment to items 4 and 5.
31. Item 7 repeals and replaces subsection 23DA(2) to require an application for the
extension of an investigative period to be made to a judge of the federal court who is a
judicial officer.
Schedule 3 Amendme nts to the Australian Security Intelligence Organisation Act
1979 (ASIO Act)
Australian Security Intelligence Organisation Act 1979
Items 1 to 4 Questioning and detention warrants
32. These items amend provisions relating to the ability of the Minster to allow detention
without charge to continue beyond 168 hours if at the end of the 2168 hours new material
justified the issuing of a separate warrant.
33. Item 2 amends subsection 34F(6) to insert new paragraphs (c) and (d). New paragraph (c)
provides that the Minister may not consent to a request to issue a warrant under section
34G unless the Minister is satisfied that the offence in relation to which the warrant
sought was committed after the end of the person's first period of detention under
Division 3 of Part III of the ASIO Act and arose in different circumstances to those in the
offence to which the earlier warrant arose. New paragraph (d) provides that the
questioning of the person under the warrant sought under section 34G must not relate to
the offence to which any earlier warrant relates or the circumstances in which such an
offence was committed. Item 1 is a consequential amendment to Item 2.
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34. Item 4 amends subsection 34G(2) to insert new paragraphs (c) and (d). New paragraph (c)
provides that a warrant under section 34G may not be issued by the issuing authority
unless the issuing authority is satisfied that the offence in relation to which the warrant is
sought was committed after the end of the person's period of detention under Division 3
of Part III of the ASIO Act for the first arrest and arose in different circumstances to those
in the offence to which any earlier warrants arose. New paragraph (d) provides that the
questioning of the person under the warrant requested must not relate to the offence to
which any earlier warrant relates or the circumstances in which such an offence was
committed. Item 3 is a consequential amendment to Item 4.
Item 6 Directions by prescribed authority
35. Item 6 repeals subsection 34K(10) of the ASIO Act. This removes the prohibition on a
person who has been taken into custody or detained under Division 3 of Part III of the
ASIO Act from contacting anyone while in custody or detention.
Items 5 and 7 Persons not to be detained for more than 24 hours
36. Item 7 amends section 34S to replace "168 hours" with "24 hours". This item provides
that the maximum period a person may be detained under Division 3 of Part III of the
ASIO Act is 24 hours. Item 5 is a consequential amendment to item 7.
Items 8 to 11 Repeal of othe r provisions
37. Item 8 repeals section 34ZP of the ASIO Act. Section 34ZP currently provides that a
person may be questioned under a warrant issued under Division 3 of Part III of the ASIO
Act in the absence of their lawyer of choice.
38. Item 9 repeals section 34ZR of the ASIO Act. Section 34ZR currently provides for a
parent, guardian or other representative of a person being questioned under a warrant
issued under Division 3 of Part III of the ASIO Act to be removed if a prescribed
authority considers the parent or guardian or other representative's conduct is unduly
disrupting questioning of the person.
39. Item 10 repeals subsection 34ZS(2) of the ASIO Act. Subsection 34ZS(2) currently
provides for an offence with a penalty of imprisonment of 5 years if a person discloses
operational information and the person has the information as a direct or indirect result of
the issue of a warrant under Division 3 of Part III of the ASIO Act or the doing of
anything authorised by or in connection with the warrant within 2 years starting the end
of the period specified in the warrant as the period during which the warrant is to be in
force. The disclosure must not be a permitted disclosure. The terms operation information
and permitted disclosure are defined in subsection 34ZS(5).
40. Item 11 repeals section 34ZT of the ASIO Act. Section 34ZT currently provides that
regulations may be made to prohibit or regulate access to information by lawyers acting
for a person in connection with proceedings for a remedy relating to a warrant issued
under Division 3 of Part III of the ASIO Act in relation to the person or the treatment of
the person in connection with such a warrant.
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Schedule 4 Repeal of the National Security Information (Criminal and Civil
Proceedings) Act 2004
Item 1 - Repeal
41. Item 1 repeals the National Security Information (Criminal and Civil Proceedings) Act
2004.
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