NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2010 Explanatory Memorandum
NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2010
2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
national security legislation amendment bill 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
ADJR Act Administrative Decision (Judicial Review) Act 1977
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
AIC Australian Intelligence Community
ALRC Australian Law Reform Commission
ASIO Australian Security Intelligence Organisation
ASIS Australian Secret Intelligence Service
AUSTRAC Australian Transaction Reports and Analysis Centre
CEO Chief Executive Officer
Charter Act Charter of the United Nations Act 1945
DIGO Defence Imagery and Geospatial Organisation
DIO Defence Intelligence Organisation
DSD Defence Signals Directorate
IGIS Inspector-General of Intelligence and Security
IGIS Act Inspector-General of Intelligence and Security Act 1986
NSI Act National Security Information (Criminal and Civil Proceedings)
Act 2004
ONA Office of National Assessments
PJC-ACC Parliamentary Joint Committee on the Australian Crime
Commission
PJCIS Parliamentary Joint Committee on Intelligence and Security
PJC-LE Parliamentary Joint Committee on Law Enforcement
PJC-LE Bill Parliamentary Joint Committee on Law Enforcement Bill 2010
Sheller Committee Security Legislation Review Committee
NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2010
OUTLINE
This Bill implements a package of reforms to Australia's national security
legislation, announced by the Government in August 2009. The package of
reforms was subject to extensive public consultation through a Discussion
Paper on the proposed amendments. Public consultation on the proposed
reforms concluded in October 2009.
Many of the proposed reforms in this Bill will implement the Government's
response to several independent and bipartisan parliamentary committee
reviews of Australian national security and counter-terrorism legislation,
which was tabled in Parliament on 23 December 2008. These reviews are:
. Inquiry by the Hon John Clarke QC into the case of Dr Mohamed Haneef
(November 2008)
. Inquiry into the proscription of 'terrorist organisations' under the
Australian Criminal Code by the Parliamentary Joint Committee on
Intelligence and Security (September 2007)
. Review of Security and Counter-Terrorism Legislation by the
Parliamentary Joint Committee on Intelligence and Security (December
2006), and
. Review of Sedition Laws in Australia by the Australian Law Reform
Commission (July 2006).
The Bill will primarily amend the Criminal Code Act 1995 (the Criminal
Code), the Crimes Act 1914 (the Crimes Act), the Charter of the United
Nations Act 1945 (the Charter Act), the National Security Information
(Criminal and Civil Proceedings) Act 2004 (the NSI Act), and the Inspector-
General of Intelligence and Security Act 1986 (the IGIS Act).
Schedule 1 contains proposed amendments to the treason and sedition
offences in Division 80 of the Criminal Code in response to recommendations
from various reviews.
Schedule 2 includes proposed amendments to Division 102 of the Criminal
Code that will:
. amend the definition of 'advocates' in paragraph 102.1(1A)(c) to clarify
that an organisation advocates the doing of a terrorist act if the
organisation directly praises the doing of a terrorist act in
circumstances where there is a substantial risk that such praise might
have the effect of leading a person to engage in a terrorist act
. amend subsection 102.1(3) to extend the period of a regulation that lists
a terrorist organisation from 2 to 3 years
. amend the terrorist organisation listing review provision in section
102.1A to reflect the current name of the Parliamentary Joint Committee
on Intelligence and Security, and
. make miscellaneous amendments to definitional provisions within Part 5.3
to implement the Government's policy of ensuring equality of same sex
partnerships in Commonwealth legislation.
Schedule 3 will amend Part 1C of the Crimes Act which sets out the
investigation powers of law enforcement officers when a person has been
arrested for a Commonwealth offence. The amendments will clarify and
improve the practical operation of Part 1C, including addressing
issues raised by the findings of the Clarke Inquiry into the Case of Dr
Mohamed Haneef (November 2008).
Schedule 4 contains proposed amendments that will amend Part 1AA of the
Crimes Act to provide police with a power to enter premises without a
warrant in emergency circumstances relating to a terrorism offence where
there is material that may pose a risk to the health or safety of the
public.
Schedule 5 contains proposed amendments that will modify the search warrant
provisions in Part 1AA of the Crimes Act so that, in emergency situations,
the time available for law enforcement officers to re-enter premises under
a search warrant can be extended to 12 hours, or, where authorised by an
issuing authority in exceptional circumstances, a longer time not exceeding
the life of the warrant.
Schedule 6 will amend the Crimes Act to include a specific right of appeal
for both the prosecution and the defendant against a decision to grant or
refuse bail for a person charged with terrorism or other national security
offences.
Schedule 7 will amend the Charter Act to implement the Australian
Government's response to recommendation 22 of the Parliamentary Joint
Committee on Intelligence and Security's Report Review of Security and
Counter-Terrorism Legislation, tabled in Parliament in December 2006, to
improve the standard for listing a person, entity, asset or class of
assets. The Schedule will also amend the Charter Act to provide for the
regular review of listings under the Charter Act.
Schedule 8 contains amendments to the NSI Act to improve its practical
operation and ensure the appropriate protection and disclosure of national
security information in criminal and civil proceedings.
Schedule 9 contains proposed amendments to enable the Prime Minister to
request the Inspector-General of Intelligence and Security (IGIS) to
inquire into an intelligence or security matter relating to any
Commonwealth department or agency. This reflects the increasing
interaction between a range of Commonwealth departments and agencies and
the Australian Intelligence Community on intelligence and security matters.
To fully consider an intelligence or security matter, it may sometimes be
necessary for the IGIS to consider the role played by a non-AIC department
or agency in relation to that matter.
Schedule 10 contains consequential amendments that arise as a consequence
of the Parliamentary Joint Committee on Law Enforcement Bill 2010, which
will establish the Parliamentary Joint Committee on Law Enforcement. This
new committee will replace the current Parliamentary Joint Committee on the
Australian Crime Commission, and will be responsible for oversight of the
Australian Crime Commission and the Australian Federal Police.
FINANCIAL IMPACT STATEMENT
There is no direct financial impact on Government revenue from this Bill.
NOTES ON CLAUSES
Clause 1: Short title
This clause provides that the Bill, when passed, may be cited as the
National Security Legislation Amendment Act 2010.
Clause 2: Commencement
This clause sets out when the various parts of the Bill commence.
Sections 1 to 3 of the Bill (the short title, the commencement and the
schedules provision) and anything in the Bill not covered elsewhere in the
table in clause 2 will commence on the day the Act receives Royal Assent.
Part 1 of Schedule 1 to the Bill will repeal existing offences in the
Crimes Act 1914 (the Crimes Act) and will amend existing treason and
sedition offences in the Criminal Code Act 1995 (the Criminal Code). This
part will commence the day after the Act receives Royal Assent. Part 2 of
Schedule 1 to the Bill, which will insert new offences of urging violence
against groups and members of groups into the Criminal Code, will commence
on the twenty eighth day after the Act receives Royal Assent. This is to
ensure that there is some prior notice before these new offence provisions
commence.
Parts 1 and 2 of Schedule 2 to the Bill, which will amend Part 5.3 of the
Criminal Code, will commence the day after the Act receives Royal Assent.
Part 2 will insert definitions into the Dictionary of the Criminal Code
that will overlap with amendments proposed in Item 4 of Schedule 1 to the
Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010
(Sexual Offences Against Children Bill), which was introduced into
Parliament on 4 February 2010. Accordingly, Part 3 of Schedule 3 of this
Bill will delete the overlapping references to these definitions in the
Sexual Offences Against Children Bill. However, Part 3 of Schedule 2 will
only commence after item 4 of Schedule 1 to the Crimes Legislation
Amendment (Sexual Offences Against Children) Act 2010 commences.
Schedules 3 to 7 to the Bill will commence the day after the Act receives
Royal Assent. These schedules will amend the investigation powers under
Part 1C of the Crimes Act, insert a new emergency entry power and provide
greater flexibility for re-entry under a search warrant under Part 1AA of
the Crimes Act, amend section 15AA of the Crimes Act to provide for a right
of appeal in bail cases, and amend the listing provisions in the Charter of
the United Nations Act 1945.
Schedule 8 to the Bill will amend the National Security Information
(Criminal and Civil Proceedings) Act 2004 (NSI Act). Schedule 8, except
for items 17, 103 and 107, will commence on the twenty-eighth day after the
Act receives Royal Assent. This is to ensure that there is some prior
notice before these new provisions, which include offence provisions,
commence. Items 103 and 107 will commence on Proclamation, or 6 months
from Royal Assent. These items insert two new offences, which provide that
a person commits an offence where they engage in conduct which results in
contravention of the requirements relating to storage, handling or
destruction of national security information, currently outlined in the
National Security Act (Criminal and Civil Proceedings) Regulations 2005.
The substance of these requirements, set out in the Requirements for the
Protection of National Security Information in Federal Criminal Proceedings
and Civil Proceedings document, is currently being revised to ensure that
they establish clear standards, which are necessary for the imposition of
an offence for non-compliance. Accordingly, it is appropriate that these
items, and item 17 which is consequential to these items, commence on
Proclamation, after these revisions have been completed.
Schedule 9 to the Bill will amend the Inspector-General of Intelligence and
Security Act 1986 and will commence the day after this Act receives Royal
Assent.
Schedule 10 to the Bill includes consequential amendments relating to the
establishment of the Parliamentary Joint Committee on Law Enforcement by
the Parliamentary Joint Committee on Law Enforcement Bill 2010. If the
Parliamentary Joint Committee on Law Enforcement Act 2010 has commenced
when this Bill receives the Royal Assent, Schedule 10 will commence the day
after Royal Assent. If the Parliamentary Joint Committee on Law
Enforcement Act 2010 has not received Royal Assent, Schedule 10 will
commence on the same day as the commencement of the Parliamentary Joint
Committee on Law Enforcement Act 2010.
Clause 3: Schedule(s)
This clause makes it clear that the Schedules to the Bill will amend the
Acts set out in those Schedules in accordance with the provisions set out
in each Schedule.
Schedule 1 - Treason and urging violence
Overview
Schedule 1 contains amendments to the treason and sedition (urging
violence) offences in response to recommendations from various reviews.
The proposed amendments take into account the recommendations of these
reviews and also the input received as a result of public consultation on
this Bill.
The treason offences in section 80.1 of the Criminal Code were reviewed by
the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in
2006 following the review undertaken by the Security Legislation Review
Committee (Sheller Committee). The Sheller Committee tabled its report,
Report of the Security Legislation Review Committee (Sheller Committee
Report), in Parliament in June 2006. The PJCIS tabled its report, Review of
Security and Counter-Terrorism Legislation (2006 PJCIS Report) in
Parliament in December 2006.
The sedition offences in section 80.2 of the Criminal Code were reviewed by
the Australian Law Reform Commission (ALRC) in 2006 as part of its review
of sedition and related laws in Australia (the treason offences were also
considered as part of this review). The ALRC report, Fighting Words: A
Review of Sedition Laws in Australia (ALRC Report), was tabled in
Parliament in September 2006.
The ALRC made numerous recommendations to improve and clarify the offences
to ensure greater understanding of their operation. The Government accepted
the recommendations of the ALRC report, which included removing the term
'sedition' and replacing it with the phrase 'urging violence' and
clarifying and modernising elements of the offences.
Schedule 1 of this Bill will also extend the offence to cover urging
violence against a group or individual on the basis of national and ethnic
origin in addition to race, religion, nationality or political opinion.
Part 1 - Amendments commencing day after Royal Assent
Crimes Act 1914
Item 1: Subparagraph 24F(2)(b)(ii)
Item 1 is a consequential amendment to the Crimes Act 1914 (Crimes Act),
required as a result of the amendment to the treason offence and the
creation of the new treason offence at section 80.1AA. Subparagraph
24F(2)(b)(ii) of the Crimes Act provides that assisting an enemy at war
with the Commonwealth is not an act done in good faith. As the
proclamation of an enemy will now form part of the treason offence in
paragraph 80.1AA(1)(b) and not the treason offence at paragraph 80.1(1)(e),
this item will remove the reference to paragraph 80.1(1)(e) and substitute
paragraph 80.1AA(1)(b) in subparagraph 24F(2)(b)(ii) of the Crimes Act.
Item 2: Part IIA (heading)
This item will repeal the current heading of Part IIA of the Crimes Act
(which includes a reference to protection of the Constitution) and insert a
new heading 'Protection of public and other services'. This will more
accurately reflect the content of the Part following the repeal of a number
of offences (see item 3).
Item 3: Sections 30A to 30H and 30R
This item will repeal sections 30A to 30H and 30R of Part IIA of the Crimes
Act, most of which relate to unlawful associations. These provisions are
no longer relevant in the current security environment, and offences within
the Criminal Code relating to terrorist organisations adequately address
associating with a terrorist organisation. This implements recommendations
of both the ALRC and the 1991 Committee of Review of Commonwealth Criminal
Law (Gibbs Committee). Section 30C, which contains the offence of
advocating or inciting to crime, is also proposed to be repealed as it is
effectively redundant in light of the offence in subsection 80.2(1).
Criminal Code Act 1995
Item 4: Part 5.1 (heading)
This item will amend the heading for Part 5.1 of the Criminal Code to
reflect other proposed amendments to the titles of particular offences,
namely substituting "sedition" offences to become "urging violence"
offences.
Item 5: Division 80 (heading)
This item will amend the heading for Division 80 of the Criminal Code to
reflect other proposed amendments to the titles of particular offences,
namely substituting "sedition" offences to become "urging violence"
offences.
Item 6: Before section 80.1A
This item will insert a new Subdivision A and clarify that section 80.1A
makes provision for preliminary matters.
Item 7: Before section 80.1
This item will create a new Subdivision B dealing with the offence of
treason.
Item 8: Subsection 80.1(1)
This item will delete "called treason" from subsection 80.1(1) of the
Criminal Code as it is not needed.
Item 9: Paragraphs 80.1(1)(e) and (f)
This item will repeal paragraphs 80.1(1)(e) and (f) of the Criminal Code.
The offences contained within these paragraphs have been revised and are
proposed to be included in new section 80.1AA (see item 15).
Item 10: Paragraph 80.1(1)(g)
This item is a technical provision to give effect to the amendment made by
item 11.
Item 11: Paragraph 80.1(1)(h)
This item will repeal the redundant offence at paragraph 80.1(1)(h) of the
Criminal Code of forming an intention to do any act referred to in section
80.1 and manifesting that intention by an overt act, as ancillary offences
set out under Part 2.4, Division 11 of the Criminal Code (attempt,
complicity and common purpose, incitement and conspiracy) provide
equivalent coverage.
Item 12: Subsections 80.1(1A) and (1B)
This item will repeal subsections 80.1(1A) and 80.1(1B) of the Criminal
Code as they relate to offences which are proposed to be repealed under
items 9 and 11 respectively and are therefore redundant.
Item 13: Paragraphs 80.1(2)(a) and (b)
This item is a technical provision to reflect that treason offences are
proposed to be included in a new Subdivision B.
Item 14: Subsection 80.1(5)
This item will repeal subsection 80.1(5) of the Criminal Code as it relates
exclusively to an offence that is proposed by item 11 to be repealed and is
therefore redundant.
Item 15: After section 80.1
This item will insert a new section 80.1AA into the Criminal Code. It will
replace paragraphs 80.1(1)(e) and (f) of the Criminal Code (repealed by
item 9) with new offences and implement a number of recommendations made by
the PJCIS and ALRC.
Requiring an allegiance element
The traditional underpinning of the concept of treason is a breach of a
person's obligation to the Crown and loyalty to Australia. Currently, the
treason offences under paragraphs 80.1(1)(e) and (f) of the Criminal Code
can be committed by anyone acting anywhere in the world. The 2006 PJCIS
Report noted that these offences apply to people who have no allegiance and
do not benefit from the protection of the Australian State.
The proposed new paragraphs 80.1AA(1)(f) and (4)(e) of the Criminal Code
provide for an allegiance or duty requirement within the treason offence.
In order for a person to commit the offences in proposed new section 80.1AA
of the Criminal Code, the person must be a citizen of Australia or a
resident of Australia, or must have voluntarily placed himself or herself
under the protection of the Commonwealth, or must be a body corporate
incorporated under a law of a State or Territory or the Commonwealth.
Proposed subsections 80.1AA(3) and 80.1AA(5) will make it clear that the
fault element for paragraphs 80.1AA(1)(f) and 80.1AA(4)(e) of the Criminal
Code is 'intention', as defined in subsection 5.2(2). In order to make out
the offence, it would therefore be necessary to prove that, at the time of
committing the offence, the person intended to, rather than simply being
reckless as to the fact: be an Australian citizen or resident; voluntarily
place himself or herself under the protection of the Commonwealth; or to be
a body corporate incorporated under a law of a State or Territory or the
Commonwealth.
Clarifying providing assistance to the enemy
Both the PJCIS and ALRC noted it was possible that the term 'assist' in the
treason offence could be given a broad interpretation and that this was not
appropriate, given the seriousness of the offence. This item will qualify
the treason offences at proposed new paragraphs 80.1AA(1)(d) and (e) and
80.1AA(4)(c) and (d) of the Criminal Code, to the effect that the offences
will only apply when a person provides material assistance to the enemy.
This will clarify that the conduct standard in the proposed new offences in
section 80.1AA of the Criminal Code must be conduct that will materially
assist the enemy. It reflects the intended operation of the offence by
making it clear that, in order to commit the offence, a person must provide
assistance to the enemy that is real or concrete.
Ensuring a Proclamation of an enemy is not retrospective
Proposed new subsection 80.1AA(2) of the Criminal Code will clarify that a
Proclamation, made for the purposes of paragraph 80.1AA(1)(b) of the
Criminal Code, declaring an enemy to be an enemy at war with the
Commonwealth, may not be expressed to take effect before the day on which
it is made. Proposed subsection 80.1AA(2) of the Criminal Code also
provides that a Proclamation may take effect from a day before the day on
which it is registered under the Legislative Instruments Act 2003, but not
before the day on which it is made.
In a national security emergency situation, where a decision is made to
declare an enemy to be an enemy at war with the Commonwealth by a
Proclamation under paragraph 80.1AA(1)(b) of the Criminal Code, it may be
desirable for the Proclamation to take effect immediately. This means that
the act of assisting an enemy specified in a Proclamation could become an
offence under subsection 80.1AA(1) of the Criminal Code from the time that
the Proclamation is made, rather than the time that the Proclamation is
registered, which can be several days after the Proclamation has been made.
Proposed subsection 80.1AA(6) replicates current subsection 80.2(9) by
providing that the offences in proposed subsections 80.1AA(1) and (4) of
proposed section 80.1AA do not apply to engagement in conduct by way of, or
for the purposes of, the provision of aid of a humanitarian nature.
However, a defendant bears an evidential burden to establish that his or
her conduct was engaged in for the purposes of the providing aid of a
humanitarian nature.
Item 16: Saving - Proclamations
This item is a technical transition provision that will ensure there is no
interruption to the operation of a Proclamation that is in force for the
purposes of paragraph 80.1(1)(e) of the Criminal Code, and provides the
Proclamation will have the same effect as if it had been made for the
purposes of paragraph 80.1AA(1)(b) of the Criminal Code.
Item 17: Before section 80.2
This item inserts a new Subdivision C entitled 'Urging Violence' to replace
the subsection previously titled 'Sedition'.
Item 18: Subsection 80.2(1)
Item 18 repeals the existing sedition offence in subsection 80.2(1) and
replaces it with a new offence called 'Urging the overthrow of the
Constitution or Government by force or violence'. This new offence will be
committed if a person intentionally urges another person to overthrow by
force or violence the Constitution, the Government of the Commonwealth, of
a State or of a Territory, or the lawful authority of the Government of the
Commonwealth, with the intention that force or violence will occur. While
section 5.6 of the Criminal Code makes it clear that this offence would
include the fault element of intention contained in section 5.2 of the
Code, the proposed new offence specifically includes the fault element of
intention within the offence to ensure clarity and understanding of the
operation of the offence.
The amendment would also add an additional element at paragraph 80.2(1)(b)
by requiring that the person intend that the force or violence will occur
as a result of the urging.
Item 19: Subsection 80.2(2)
Item 19 will amend subsection 80.2(2) to delete 'first-mentioned' person
and replace with 'first' person to ensure clarity and consistency within
the section.
Item 20: Subsection 80.2(3)
Item 20 will repeal the existing sedition offence at subsection 80.2(3) and
replace it with a new offence called 'Urging interference in Parliamentary
elections or constitutional referenda by force or violence'. The amendment
will extend the offence to include urging interference by force or violence
with lawful processes for referenda, and will include an additional fault
element that the person intends that force or violence occur. While
section 5.6 of the Criminal Code makes it clear that this offence would
include the fault element of intention contained in section 5.2 of the
Code, the proposed new offence specifically includes the fault element of
intention within the offence to ensure clarity and understanding of the
operation of the offence.
Item 21: Subsection 80.2(4)
Item 21 contains technical amendments required as a result of amendments to
the sedition offences.
Item 22: Subsection 80.2(6)
Item 22 will amend subsection 80.2(6) to delete 'first-mentioned' person
and replace with 'first' person to ensure clarity and consistency within
the section.
Item 23: At the end of subsection 80.2(6)
Item 23 will add a note to ensure readers are aware that section 80.3
contains a defence for acts done in good faith.
Item 24: Subsections 80.2(7) to (9)
Item 24 will repeal subsections 80.2(7) to (9) which contain the offences
relating to the urging of a person to assist an organisation or country
engaged in armed hostilities with the Commonwealth or Australian Defence
Force (ADF). These sections will be repealed because the treason offences
in proposed sections 80.1 and 80.1AA will adequately criminalise action
taken by a person to assist an enemy engaged in hostilities against
Australia and the ADF.
Item 25: Before section 80.3
Item 25 will create a new Subdivision D containing common provisions for
both the treason and sedition subdivisions.
Items 26 to 27: Section 80.3
Items 26 and 27 are technical amendments necessary as a result of other
amendments to Part 5.1 of the Criminal Code outlined in this Explanatory
Memorandum.
Item 28: At the end of section 80.3
Item 28 will provide additional matters to which a court may have regard
when considering a defence under subsection 80.3(1) to the urging violence
offences in Subdivision C of Division 80. Section 80.3 contains a defence
for acts done in good faith. It lists a number of matters the court may
have regard to when considering the defence. The ALRC recommended that, in
relation to the urging violence offences (in Subdivision C), the trier of
fact should have regard to the context in which the conduct occurred. The
proposed new subsection 80.3(3) will provide that, in considering a defence
for the urging violence offences, the court may have regard to any matter,
including whether the acts were done in relation to artistic work, for
genuine academic or scientific purposes, or in the dissemination of news or
current affairs.
Item 29: Application
Item 29 is a technical amendment to clarify the operation of proposed new
subsection 80.3(3).
Item 30: Section 80.5
Item 30 will repeal section 80.5, which requires that the Attorney-General
must give consent before proceedings for an offence against Division 80 may
commence. This is consistent with a recommendation by the ALRC.
Item 31: Application
Item 31 will clarify how the proposed amendment repealing section 80.5 will
apply. This amendment will only apply to offences committed after the
commencement of the new provision. Proceedings for offences against
Division 80 committed before the commencement of the new provisions will
still require the Attorney-General's consent.
Item 32: Dictionary
Item 32 will inset a definition of 'referendum' in the Criminal Code
Dictionary and provide that it has the same meaning as in the Referendum
(Machinery Provisions) Act 1984.
Part 2 - Amendments commencing 28 days after Royal Assent
Criminal Code Act 1995
Items 33 and 34: Subsections 80.2(5) and (6)
These items will repeal sections 80.2(5) and 80.2(6) which contain the
offence of urging violence within the community. These subsections are
proposed to be replaced by new sections 80.2A (urging violence against
groups) and 80.2B (urging violence against members of groups).
Item 35: At the end of Subdivision C of Division 80
Item 35 will insert new offences of 'urging violence against groups' and
'urging violence against members of groups'. The amendments will extend
the urging community violence offence to cover circumstances in which a
person urges a group to use force or violence against a group distinguished
by national origin or ethnic origin (in addition to existing race,
religion, nationality or political opinion).
Under proposed section 80.2A, a person will commit an offence if the person
intentionally urges another person or a group to use force or violence
against the targeted group, intends that force or violence will occur and
is reckless as to whether the targeted group is distinguished by race,
religion, nationality, national origin, ethnic origin or political opinion.
In addition, under proposed subsection 80.2A(1), the use of force or
violence must threaten the peace, order and good government of the
Commonwealth. Proposed subsection 80.2A(2) replicates the offence in
subsection 80.2A(1), but does not require that the force or violence would
threaten the peace, order and good government of the Commonwealth.
Accordingly, it carries a lower penalty of 5 years' imprisonment, compared
to the penalty of 7 years for subsection 80.2A(1).
Proposed new section 80.2B contains the offence of urging violence against
individual members of groups as opposed to groups as a whole. This offence
complements the offence of urging violence against groups contained in
proposed section 80.2A. Under proposed section 80.2B, a person will commit
an offence if they intentionally urge another person or group to use force
or violence against a person, they intend that the force or violence occur
and they urge such force or violence by reason of their belief that the
person is a member of a group distinguished by race, religion, nationality,
national origin, ethnic origin or political opinion.
Similarly to proposed section 80.2A, subsection 80.2B(1) requires that the
force of violence threaten the peace, order and good government of the
Commonwealth, while subsection 80.2B(2) replicates the offence in
subsection 80.2B(1) but does not include this requirement. Accordingly,
subsection 80.2B(2) has a lower maximum penalty of 5 years compared to the
maximum penalty under subsection 80.2B(1) of 7 years imprisonment.
Proposed subsection 80.2B(3) also clarifies that, for the purposes of the
offences in proposed subsections 80.2B(1) and 80.2B(2), it is immaterial
whether the targeted person is actually a member of the targeted group.
The relevant factor is that the person urging the force or violence
believes they are.
Both proposed sections 80.2A and 80.2B contain provisions for alternative
verdicts. Subsections 80.2A(4) and (5) and 80.2B(5) and (6) provide for the
option of an alternative verdict against subsections 80.2A(2) and 80.2B(2)
respectively. Subsections 80.2A(2) and 80.2B(2) do not contain the
requirement that the force or violence must threaten the peace, order, and
good government of the Commonwealth. This means that in both sections 80.2A
and 80.2B, where the prosecution is unable to prove this final element of
the offence under subsection (1) - which carries a maximum penalty of seven
years imprisonment - the defendant may still be found guilty of an offence
against subsection (2).
Items 36 and 37: Section 80.4
Item 36 will amend section 80.4 to apply section 15.2 of the Criminal Code
(extended geographical jurisdiction - Category B) to offences against
subsections 80.2A(2) and 80.2B(2) (Category D is applied to the other
offences). This amendment to apply Category B geographical jurisdiction to
these offences reflects the fact that these offences are aimed at conduct
occurring primarily in Australia. On the other hand, Category D
geographical jurisdiction applies whether or not the offence is committed
in Australia and wherever the result of the conduct occurs.
Schedule 2 - Terrorism
Overview
Schedule 2 includes amendments to Division 102 of the Criminal Code Act
1995 (Criminal Code). Division 102 of the Criminal Code contains the
definition of a 'terrorist organisation', the process for proscribing
terrorist organisations and the terrorist organisation offences.
Part 1 of Schedule 2 will:
. amend the definition of 'advocates' in paragraph 102.1(1A)(c) to clarify
that an organisation advocates the doing of a terrorist act if the
organisation directly praises the doing of a terrorist act in
circumstances where there is a substantial risk that such praise might
have the effect of leading a person to engage in a terrorist act
. amend subsection 102.1(3) to extend the period of a regulation that lists
a terrorist organisation from 2 to 3 years
. amend the terrorist organisation listing review provision in section
102.1A to reflect the current name of the Parliamentary Joint Committee
on Intelligence and Security, and
Part 2 of Schedule 2 contains amendments to definitional provisions within
Part 5.3 of the Criminal Code to implement the Government's policy of
ensuring equality of same sex partnerships in Commonwealth legislation.
The majority of this policy was implemented through the enactment of the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law
Reform) Act 2008. The proposed amendments ensure that the definitions in
the Acts Interpretation Act 1901 of de facto partner, child, step-parent
and step-child apply or are replicated in the Criminal Code. These
definitions are important in the Criminal Code as they apply to the
terrorist organisation association offence in section 102.8 and to the
preventative detention regime in Division 105 of Part 5.3 of the Criminal
Code. These definitions form part of important safeguards within the
terrorist organisation association offence and preventative detention
regime. Part 3 of Schedule 2 contains a related amendment that is
contingent upon another Bill that is before the Parliament.
Part 1 - Terrorism
Classification (Publications, Films and Computer Games) Act 1995
Item 1: paragraph 9A(2)(c)
This is a consequential amendment to mirror the change to the definition of
'advocates' in Division 102 of the Criminal Code in item 2.
Section 9A of the Classification (Publications, Films and Computer Games)
Act provides that publications, films or computer games that advocate the
doing of a terrorist act must be classified 'Refused Classification'. For
the purpose of 'advocating the doing of a terrorist act', it uses the same
terminology as in subsection 102.1(1A) of the Criminal Code.
Criminal Code Act 1995
Item 2: paragraph 102.1(1A)(c)
This item inserts the word 'substantial' before 'risk' in paragraph
102.1(1A)(c).
Paragraph 102.1(2)(b) of the Criminal Code provides that the Governor-
General may make a regulation proscribing an organisation as a terrorist
organisation if the Attorney-General is satisfied that the organisation
advocates the doing of a terrorist act (whether or not a terrorist act has
occurred or will occur).
Currently, paragraph 102.1(1A)(c) of the Criminal Code provides that an
organisation advocates the doing of a terrorist act if the organisation
directly praises the doing of a terrorist act in circumstances where there
is a risk that such praise might have the effect of leading a person
(regardless of his or her age or any mental impairment (within the meaning
of section 7.3) that the person might suffer) to engage in a terrorist act.
It has always been intended that the risk threshold within the definition
of 'advocates' must be substantial. Accordingly, the inclusion of the word
'substantial' clarifies that the risk must be real and apparent on the
evidence presented. This amendment is consistent with the language of the
Criminal Code in relation to the concept of risk; for example, 'substantial
risk' is used in the definition of 'recklessness' in section 5.4 of the
Criminal Code.
Item 3: Subsection 102.1(3)
This item will replace the phrase 'second anniversary' with 'third
anniversary' in subsection 102.1(3).
Currently under subsection 102.1(3) of the Criminal Code, the listing of an
organisation ceases to have effect two years after its commencement, or if
the Attorney-General ceases to be satisfied that the organisation is
directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act, whichever occurs first.
The purpose of the automatic expiration is to ensure that if the Government
wishes to continue the proscription, the Attorney-General has considered
afresh all the relevant information and is satisfied that there is a
sufficient factual basis to justify the proscription for a further period.
The proposed amendments to subsection 102.1(3) will provide that a
regulation proscribing an entity as a terrorist organisation under the
Criminal Code will automatically expire on the third anniversary of the day
on which it took effect. This is consistent with a recommendation of the
Parliamentary Joint Committee on Intelligence and Security (PJCIS) in its
Inquiry into the Proscription of 'terrorist organisations' under the
Australian Criminal Code (September 2007). The Committee, which is
responsible for reviewing all listings of terrorist organisations (pursuant
to section 102.1A of the Criminal Code), concluded that extending the
period of a listing regulation from two to three years would offer an
adequate level of oversight.
Item 4: Transitional - existing regulations specifying organisations
Item 3 will amend subsection 102.1(3) to extend the period of a regulation
that lists a terrorist organisation from 2 to 3 years.
Item 4 will insert transitional provisions so that the proposed amendments
to subsection 102.1(3) will apply to listing regulations which are in force
at the time the amendment commences. However, the amendment will not apply
to such a regulation that has ceased to have effect before the commencement
of the section.
Item 5: Subsection 102.1A(1)
This item will update the name of the Parliamentary Joint Committee on
Intelligence and Security (PJCIS) in subsection 102.1A(1).
In accordance with section 102.1A of the Criminal Code, when the Government
decides to list an organisation as a terrorist organisation, that decision
may be publicly reviewed by the PJCIS. Any person who wishes to raise any
issues with the decision to list an organisation may submit their
objections or concerns to the PJCIS.
At the time of enacting section 102.1A of the Criminal Code, the PJCIS was
referred to as the Parliamentary Joint Committee on ASIO, ASIS and DSD.
The proposed amendment will update subsection 102.1A(1) to reflect the
current name of the PJCIS.
Item 6: Subsection 102.1A(2)
This item will repeal subsection 102.1A(2).
Subsection 102.1A(2) of the Criminal Code required the PJCIS to conduct a
review into the operation, effectiveness and implications of the terrorist
organisation proscription provisions in Division 102 of the Criminal Code
as soon as possible after the third anniversary of the commencement of the
section. The PJCIS conducted this review in 2007 and tabled its report in
September 2007. As the statutory review process provided for in subsection
102.1A(2) of the Criminal Code is now complete, the proposed amendment will
repeal this provision.
Part 2 - Miscellaneous
Criminal Code Act 1995
Item 7: At the end of section 100.5
Currently, section 100.5 of the Criminal Code provides that the Acts
Interpretation Act, as it was in force on the day Schedule 1 to the
Criminal Code Amendment (Terrorism) Act 2003 commenced, applies to this
part. As a result, no amendments to the Acts Interpretation Act made after
that day apply to this Part.
Item 7 will add subsection 100.5(3) to recognise the new definition of 'de
facto partner' which was inserted into the Acts Interpretation Act by the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws -
Superannuation) Act 2008. The new definition of 'de facto partner'
encompasses members of both same-sex and opposite-sex de facto
relationships. This amendment will implement the Commonwealth Government's
policy to remove all discrimination against same-sex couples while the
remainder of the Acts Interpretation Act as it was in force at that time
will continue to apply.
Items 8 to 10: Definition of 'close family member'
Item 8: Subsection 102.1(1) (paragraph (a) of the definition of 'close
family member')
Subsection 102.1(1) of the Criminal Code currently contains the definition
of 'close family member'. This definition is important in the context of
the terrorist organisation association offence in section 102.8 of the
Criminal Code. Subsection 102.8(4) of the Criminal Code provides that the
terrorist organisation association offence does not apply if the
association is with a 'close family member' and relates only to a matter
that could reasonably be regarded (taking into account the person's
cultural background) as a matter of family or domestic concern (section
102.8).
Currently paragraph 102.1(1)(a) provides that a close family member
consists of the 'person's spouse, de facto spouse or same-sex partner'.
Item 8 will remove the words 'de facto spouse or same sex partner' and
replace them with an updated definition of 'de facto partner'. This
amendment will align the Criminal Code with the Acts Interpretation Act.
The definition of 'de facto partner' in the Acts Interpretation Act applies
to de facto relationships whether the parties to the relationship are of
the same-sex or opposite-sex.
Items 9 and 10: Subsection 102.1(1)
To avoid doubt, item 10 will insert subsection 102.1(19) to emphasise the
definition of 'close family member' located in subsection 102.1(1).
The current definition of 'close family member' could be discriminatory as
it may not extend to relationships between a child and their co-mother or
co-father's relatives. The policy intention is to ensure same-sex parents
and their families are recognised as part of the child's family
consistently across Commonwealth legislation. This provision will ensure
that the definition of 'close family member' includes relationships traced
through the child-parent relationship and will thus ensure that same-sex
parents and their families are recognised as 'relatives' of the child.
Item 9 will insert a note at the end of the definition of 'close family
member' in subsection 102.1(1) to refer to proposed subsection 102.1(19).
Items 11 and 12: Definition of 'family member'
Item 11: Subsection 105.35(3) (paragraph (a) of the definition of 'family
member')
Currently, subsection 105.35(3) of the Criminal Code contains the
definition of 'family member'. This definition is important in the context
of the preventative detention regime as section 105.35 contains an
essential safeguard by ensuring that a person being preventatively detained
has the right to contact family members.
Currently, paragraph 105.35(3)(a) provides that a family member consists of
the 'person's spouse, de facto spouse or same-sex partner'.
This item will remove the words 'de facto spouse or same-sex partner' and
replace them with an updated definition of 'de facto partner'. This
amendment will align the Criminal Code with the Acts Interpretation Act.
The definition of 'de facto partner' in the Acts Interpretation Act applies
to de facto relationships whether the parties to the relationship are of
the same sex or opposite sexes. This amendment will ensure that the
Commonwealth Government's policy of ensuring equality of same-sex
partnerships is replicated in the Criminal Code.
Item 12: At the end of section 105.35
This item will insert subsection 105.35(4) to ensure that the definition of
'family member' in subsection 105.35(3) includes relationships that are
traced through the child-parent relationship.
The current definition of 'family member' could be discriminatory as it may
not extend to relationships between a child and the child's co-mother or co-
father's relatives. The policy intention is to ensure same-sex parents and
their families are recognised as part of the child's family consistently
across Commonwealth legislation.
Items 13 to 18: Subsection 390.1(1) (definitions of 'child', 'close family
member', 'de facto partner', 'parent', 'stepchild' and 'step-parent')
Subsection 390.1(1) currently contains the definitions of 'child', 'de
facto partner', 'parent,' 'stepchild' and 'step-parent'.
Items 19 to 23 will insert the definitions of 'child', 'de facto partner',
'parent', 'step-child' and 'step-parent' into the Dictionary of the
Criminal Code. Given these definitions will apply more generally to the
Criminal Code, items 13 and 15 to 18 will repeal these definitions in
subsection 390.1(1) as they will no longer be necessary.
Subsection 390.1(1) also currently has a definition of 'close family
member.' Item 14 will amend paragraph (c) of this definition to substitute
the word 'stepchild' for 'step-child.' This is consequential to item 22
which will insert the definition of 'step-child' into the Dictionary of the
Criminal Code.
Items 19 to 23: Dictionary in the Criminal Code
Item 19: New definition of 'child'
This item will insert the definition of 'child' in the Criminal Code
dictionary. The effect of this definition will be that in addition to
children within the ordinary meaning of the term, the provision will
include a new class of children within the meaning of the Family Law Act
1975 as amended by the Family Law Act Amendment (De Facto Financial Matters
and Other Measures) Act 2008. The Family Law Act 1975 has rules about the
parentage of children, including those born following artificial conception
procedures. The meaning of 'child' in the Family Law Act 1975 includes
children:
. born to a woman as the result of an artificial conception procedure
while that woman was married to, or was a de facto partner of another
person (whether of the same or opposite sex), and
. who are children of a person because of an order of a State or
Territory court made under a State or Territory law prescribed for the
purposes of section 60HB of the Family Law Act 1975, giving effect to
a surrogacy agreement.
This will ensure that the children of same-sex couples are recognised
consistently across Commonwealth laws.
Item 20: New definition of 'de facto partner'
This item will insert the definition of 'de facto partner' in the Criminal
Code. The definition will have the meaning given by the Acts
Interpretation Act.
Item 21: New definition of 'parent'
This item will insert a definition of 'parent' into the Criminal Code
Dictionary.
Item 22: New definition of 'step-child'
This item will insert a definition of 'step-child' into the Criminal Code
Dictionary. The ordinary meaning of 'step-child' is a 'child of a husband
or wife by a former union'. As same-sex couples cannot marry, the child of
one member of the couple by a former relationship cannot be considered to
be the other member of the couple's step-child. This is also the case for
children of opposite-sex de facto partners by a former relationship.
The proposed amendment will expand the definition of 'step-child' to
include a child of an opposite-sex or same-sex de facto partner by a former
relationship. This is achieved by providing that a 'step-child' includes a
child who would be the step-child of a person who is the de facto partner
of a parent of the child, except that the person and the parent are not
legally married. It is not necessary to establish that the person and the
parent are capable of being legally married. The definition is inclusive
and does not limit who is a step-child for the purposes of the Criminal
Code. The insertion of this definition ensures that step-children of both
opposite-sex and same-sex de facto relationships are recognised for the
purposes of the Criminal Code.
Item 23: New definition of 'step-parent'
This item will insert the definition of 'step-parent' into the Criminal
Code dictionary. The ordinary meaning of 'step-parent' is a 'spouse of a
parent of a child by a former union'. As same-sex couples cannot marry, a
same-sex de facto partner of a parent cannot be considered to be a step-
parent of a child born into a former relationship of the parent, de facto
or otherwise. This also applies to opposite-sex de facto partners of
parents of children who are born into a former relationship of the birth
parent, de facto or otherwise.
The proposed amendment will expand the definition of 'step-parent' (where
relevant) to include a same-sex or opposite-sex de facto partner of a
parent of a child by a former relationship. This is achieved by providing
that the partner is a 'step-parent' where that partner would be the child's
step-parent, except that the partner and the parent are not legally
married. It is not necessary to establish that the partner and the parent
are capable of being legally married.
The definition is inclusive and does not limit who is a step-parent for the
purposes of the Criminal Code. The insertion of this definition ensures
that step-parents of children of both opposite-sex and same-sex de facto
relationships are recognised for the purposes of the Criminal Code.
Part 3 - Contingent
Criminal Code Act 1995
Item 24: Subsections 272.3(2) and (3)
Items 20, 21 and 23 in Part 2 of Schedule 2 will insert the definitions of
'de facto partner', 'parent' and 'step-parent' into the Dictionary in the
Criminal Code. Item 4 of Schedule 1 to the Crimes Legislation Amendment
(Sexual Offences Against Children) Bill 2010 was introduced into Parliament
on 4 February 2010 and proposes to define 'parent', 'step-parent' and 'de
facto partner' but only for the purposes of proposed section 272.3. Given
the definition of 'de facto partner', 'parent' and 'step-parent' in this
Bill will apply more generally to the Criminal Code, the definition of 'de
facto partner,' 'parent' and 'step-parent' in proposed section 272.3 will
no longer be necessary. Accordingly, item 24 will delete the definitions
of 'de facto partner', 'parent' and 'step-parent' in proposed section
272.3. However, this amendment is contingent upon passage and commencement
of item 4 of Schedule 1 to the Crimes Legislation Amendment (Sexual
Offences Against Children) Act 2010.
Schedule 3 - Investigation of Commonwealth offences
Overview
At common law, a person must be brought before a judicial officer following
arrest as soon as reasonably practicable. A person who is arrested may be
detained only for the purpose of bringing the person before a judicial
officer to be dealt with according to law. This common law principle was
restated in Williams v R [1987] HCA 36; (1986) 161 CLR 278.
In Williams, the High Court looked at the issue of whether a suspect, after
his arrest, was detained longer than was reasonably necessary to enable him
to be brought before a magistrate. The relevant State law had provided
that the suspect should be taken before a justice as soon as practicable.
The High Court held that 'as soon as practicable' gave no power to question
an arrested person about the offence for which they had been arrested or
other offences and did not make justifiable a delay which resulted only
from the fact that the arresting officers wished to question them.
Following the High Court decision in Williams, Part 1C was inserted into
the Crimes Act 1914 (Crimes Act) to make it clear that an arrested person
may be detained, prior to being brought before a magistrate or other
judicial officer, for the purpose of:
. investigating whether that person committed the offence for which they
were arrested, and/or
. investigating whether the person committed another Commonwealth offence
that an investigating official suspects them of committing.
Part 1C provides a framework for how a person can be detained and
questioned once they have been arrested for a Commonwealth offence. It
also contains important investigatory safeguards to balance the practical
consideration that police should be able to question a suspect about an
offence before they are brought before a judicial officer.
Part 1C was amended in 2004 by the Anti-Terrorism Act 2004. The purpose of
the amendments was to provide for a longer investigation period for
investigations of terrorism offences and provide for additional types of
time which were excluded from the investigation period. Rather than
creating a separate regime for the investigation of terrorism offences, the
terrorism provisions were built into the existing Part 1C structure with
many of the provisions being based on the existing provisions in Part 1C.
The provisions in Part 1C were considered by the Hon John Clarke QC, who
was appointed by the Commonwealth Attorney-General to conduct an
independent inquiry into the case of Dr Mohamed Haneef. Mr Clarke produced
a Report (the Clarke Report) on his inquiry, which was tabled in Parliament
on 23 December 2008. One aspect of the Report looked at deficiencies in
the relevant laws of the Commonwealth that were connected to Dr Haneef's
case, including Part 1C of the Crimes Act.
Schedule 3 will amend Part 1C in response to the findings in the Clarke
Report. The proposed amendments will clarify the original policy intent of
the terrorism investigation powers and improve the practical operation of
Part 1C. The proposed amendments are designed to achieve the following
general objectives:
. clarify the interaction between the power of arrest without warrant
under section 3W with the powers of investigation under Part 1C
. set a maximum 7 day limit on the amount of time that can be
specified by a magistrate and disregarded from the investigation
period when a person has been arrested for a terrorism offence
('specified disregarded time')
. clarify how the investigation period and time that is disregarded
from the investigation period are calculated, and
. clarify the procedures that apply when making an application to
extend the period of investigation or apply for a period of
specified disregarded time, including the enhancement of safeguards.
Crimes Act 1914
Item 1: Subsection 23B(1) - definition of 'arrested'
This item will repeal the definition of 'arrested' in existing section
23B(1) and substitute a revised definition.
The powers of detention under Part 1C only apply where the person is under
a valid state of arrest. Currently, subsection 23B(1) provides that a
person is 'arrested' if the person is arrested for a Commonwealth offence
and the person's arrest has not ceased under subsection (3) or (4).
Subsection 23B(3) provides that the person ceases to be arrested if the
person is remanded in respect of that offence. Subsection 23B(4) provides
that the person ceases to be arrested when an investigating official
believes that the person is taking part in covert investigations and those
investigations are being conducted by the official for the purpose of
investigating whether another person has been involved in the commission of
an offence or suspected offence.
The proposed revised definition will also provide that a person is arrested
if 'the person has not been released' to make it clear that a person could
cease to be arrested in other circumstances. For example, the person could
be released under subsection 3W(2) which provides for the release of an
arrested person if the constable in charge of the investigation no longer
believes on reasonable grounds that the person committed the offence.
These proposed amendments will, in conjunction with the more substantial
amendments to existing sections 23C and 23CA (see items 9, 10 and 16),
clarify that a person is not arrested for a Commonwealth offence if the
person has been released under subsection 3W(2).
Item 2: Subsection 23B(1) - new definition of 'authorising officer'
This item will insert a new definition of 'authorising officer'.
Currently, if a person is arrested for a terrorism offence, an
investigating official may apply for an extension of the investigation
period under section 23DA or for a specified period of time to be
disregarded from the investigation period under section 23CB.
Item 16 will include an additional safeguard so that before an
investigating official may make one of these applications, the application
must be approved by an authorising officer.
Item 2 will define an authorising officer as the Commissioner, the Deputy
Commissioner or a member or special member of the Australian Federal Police
(AFP) of or above the rank of superintendent, where the investigating
official is from the AFP. An authorising officer could also be a member of
a State or Territory police force holding an equivalent rank (State police
as well as the AFP utilise the terrorism provisions under Part 1C).
Item 3: Subsection 23B(1) - definition of 'investigation period'
This item contains a consequential amendment that will amend the definition
of 'investigation period' by omitting reference to section '23CA' and
substituting it with section '23DB'. This is because section 23CA will be
replaced by proposed section 23DB in item 16.
Item 4: Subsection 23B(1) - definition of 'judicial officer'
This item will relocate the definition of 'judicial officer' at the
beginning of Part 1C so that the term is located with the other definitions
that apply to Part 1C.
'Judicial officer' is currently defined within subsections 23C(9) and
23CA(10) to mean a magistrate, justice of the peace or a person authorised
to grant bail under the law of the State or Territory in which the person
was arrested.
The definition of 'judicial officer' in item 4 will replicate this current
definition.
Item 5: Subsection 23B(1) - definition of 'serious Commonwealth offence'
This item will re-locate the definition of 'serious Commonwealth offence'
so that it is located with other relevant definitions at the beginning of
Part 1C.
It reflects the current definition of 'serious Commonwealth offence'
contained in existing subsection 23D(6).
Item 6: Subsection 23B(1) - definition of 'under arrest'
This item will repeal and substitute the definition of 'under arrest' so
that it is consistent with the revised definition of 'arrested' in item 1.
Item 7: Subsection 23B(3)
This item is a consequential amendment because the definition of 'judicial
officer' will be centrally relocated to the beginning of Part 1C (see item
4).
Item 8: Before Section 23C
This item will insert a new Subdivision A - Non-terrorism offences into
Division 2 of Part 1C.
Currently, Division 2 of Part 1C (Powers of detention) includes provisions
relating to the investigation of both terrorism and non-terrorism offences.
This is because the terrorism provisions were built into the existing Part
1C provisions. To facilitate a clearer understanding of the provisions,
the terrorism and non-terrorism provisions in Division 2 of Part 1C will be
separated into two separate subdivisions. Subdivision A will deal with the
investigation of non-terrorism offences and Subdivision B will deal with
the investigation of terrorism offences.
This item will also change the current heading to existing section 23C to
reflect that this provision deals with the period of investigation if a
person has been arrested for a non-terrorism offence. This title more
accurately reflects the nature of the section.
Item 9: At the end of subsection 23C(1)
This item will add a note at the end of subsection 23C(1).
Existing subsection 23C(1) provides that the provisions in section 23C,
which allow a person to be detained, only apply if a person is arrested for
a Commonwealth offence (other than a terrorism offence).
There has been some uncertainty as to how the power of arrest under
existing section 3W interacts with section 23C. Subsection 3W(1) provides
that a constable may, without warrant, arrest a person for an offence if
the constable believes on reasonable grounds that the person has committed
or is committing a Commonwealth offence and that proceedings by summons
against the person would not achieve one or more specified purposes,
including ensuring the appearance of the person before a court in respect
of the offence. Subsection 3W(2) provides that if the constable in charge
of the investigation ceases to hold this belief, then the person must be
released.
The proposed new note under subsection 23C(1) will reinforce that a person
is not arrested for a Commonwealth offence if the person has been released
under subsection 3W(2). This will make it clear that a person cannot be
detained under section 23C if the person has been released under subsection
3W(2). This proposed amendment is part of a broader set of amendments that
will clarify the relationship between section 3W and Part 1C (see item 10).
Item 10: Subsections 23C(2) and (3)
This item will repeal subsections 23C(2) and 23C(3) and replace them with
new subsections 23C(2), (2A) and (3).
Currently, subsection 23C(2) provides that a person may be detained for the
purpose of investigating:
. whether the person committed the offence for which they were arrested
and/or
. whether the person committed another offence that an investigating
official reasonably suspects the person to have committed.
If a person has been arrested under subsection 3W(1) for a Commonwealth
offence, section 3W(2) provides that if the constable in charge of the
investigation ceases to hold a reasonable belief that the person has
committed the offence then the person must be released.
The Clarke Report suggested it is possible for some to misinterpret the
second limb in subsection 23C(2) to mean that once a person is arrested,
the person can be detained under the second limb regardless of whether the
requisite belief under section 3W is maintained.
Proposed new subsection 23C(2) is based on the existing subsection but is
designed to make it clear that a person may only be detained under that
subsection while arrested for the Commonwealth offence. If a person is
released under subsection 3W(2) the person may not be detained under
subsection 23C(2) because they will no longer be arrested (see the revised
definition of 'arrested' at item 1).
Proposed paragraph 23C(2)(a) will provide that the person may, while
arrested for the Commonwealth offence, be detained for the purpose of
investigating whether the person committed the offence.
Proposed paragraph 23C(2)(b) will provide that the person may, while
arrested for the Commonwealth offence, be detained for the purpose of
investigating whether the person committed another Commonwealth offence
that an investigating official reasonably suspects the person has
committed. The 'reasonable suspicion' requirement in paragraph 23C(2)(b)
is a safeguard to ensure that a person could not be questioned about any
other kind of offence if there was no basis or suspicion that the person
committed that offence.
Proposed subsection 23C(2A) provides that the person must not be detained
under subsection 23C(2) once the investigation period has ceased. To avoid
doubt, it will also specify that this provision will not affect any other
power to detain the person under other legislative regimes. This may
include, for example, provisions which allow a person to be detained under
State or Territory legislation or the Commonwealth preventative detention
regime in Part 5.3 of the Criminal Code.
Proposed subsection 23C(3) reformulates the existing subsection 23C(3) so
that if a person is not released within the investigation period, the
person must be brought before a judicial officer within the investigation
period or, if it is not practicable to do so within the investigation
period, as soon as practicable after the end of the investigation period.
Item 11: Subsection 23C(4)
This item will omit reference to 'section 23D' and substitute 'section
23DA'. This amendment is consequential to the proposed repeal of existing
section 23D and insertion of new proposed section 23DA (item 15).
Item 12: Paragraph 23C(6)(b)
This item will omit reference to 'section 23CA' and substitute 'section
23DB'. This amendment is consequential to the proposed repeal of existing
section 23CA and insertion of new section 23DB (item 16).
Item 13: Subsection 23C(7)
This item will repeal subsection 23C(7) and substitute a reformulated
version of subsection 23C(7).
Existing and proposed new section 23C sets out the period of time that a
person, who has been arrested for a Commonwealth non-terrorism offence, can
be detained for investigation purposes. The investigation period begins
when the person is arrested and can last for a reasonable time, up to a
maximum of four hours. If the person has been arrested for a serious
Commonwealth non-terrorism offence, the investigation period may be
extended for a period not exceeding 8 hours and must not be extended more
than once. This amounts to a total maximum investigation period of 12
hours.
However, subsection 23C(7) currently provides for periods of time (often
referred to as 'dead time' or 'disregarded time') that are disregarded in
the calculation of the investigation period. Generally, the purpose of
disregarded time is to suspend or delay questioning to ensure that a proper
pre-charge interview can take place. The provisions recognise that there
needs to be some flexibility in the maximum time limit for the
investigation period to balance two competing considerations - the
reasonable requirements of law enforcement and the protection of civil
liberties of people who have been arrested for, but not yet charged with, a
criminal offence. The types of time that can be disregarded from the
investigation period fall into two general categories.
The first category is where questioning of the person is suspended or
delayed because it cannot occur, or should not occur, for the benefit of
the suspect. For example, a person must not be questioned during a
forensic procedure. This time is excluded from the investigation period to
prevent a situation where a forensic procedure is conducted early in the
investigation period and the investigators lose all of their remaining
questioning time. Questioning also cannot occur for a reasonable time if
the arrested person has requested and arranged for a legal practitioner to
attend, but the legal practitioner has not yet arrived at the place of
questioning. Questioning of a suspect may also be suspended or delayed to
allow for the suspect to rest, recuperate or receive medical attention.
This takes away any incentive for investigating officials to rush the
suspect in exercising these rights if they were not excluded from the
investigation period.
The second category relates to complying with requirements of the
legislation or procedural aspects of the investigation. For example, the
time taken to make an application to extend the investigation period can be
excluded from the investigation period. This is intended to prevent a
situation where the investigation period runs out while a judicial officer
is considering whether to grant an extension of the investigation period.
There may also be situations where it is impractical to question a person
when dealing with the logistical or procedural aspects of the
investigation. For example, the time that is spent arranging and
conducting an identification parade, or the time that is reasonably
required to transport the suspect from the place they are arrested to the
place where they are questioned. If these events affect the ability to
properly question a person, it would be unfair if the investigation period
were to include the time it took for these events to occur.
Overall, the fixed investigation period, coupled with the time that can be
excluded from that period, provides a statutory framework for what is
reasonable conduct in the course of investigating a person for a
Commonwealth offence.
Proposed new subsection 23C(7) will replicate all the existing categories
of time that may be disregarded from the investigation period and reinforce
that the time may only be disregarded if it is a reasonable period during
which questioning of the person is suspended or delayed. However, the
amendments will clarify two issues identified in the Clarke Report about
how disregarded time may be calculated.
First, there is some uncertainty about how disregarded time should be
calculated if more than one event under subsection 23C(7) occurs at the
same time. Proposed new subsection 23C(7) will clarify that questioning of
the person may be suspended or delayed for one or more of the reasons
outlined in paragraphs (a) through (l). This will put beyond doubt that
the events outlined in paragraphs (a) through (l) may occur at the same
time. However, if periods of disregarded time occur simultaneously, any
overlapping time can only be disregarded once from the investigation
period.
Second, there is some uncertainty about whether it is possible for
investigating officials to resume questioning during a period of
disregarded time. Many of the events listed in existing and proposed
subsection 23C(7) are circumstances when it would simply not be possible to
question a person. For example, it is not possible to question a person
while a forensic procedure is taking place. However, there may be times
when an event under subsection 23C(7) occurs, but there is no reason to
suspend or delay the questioning of the person. For example, a magistrate
may decide to take several hours before making a determination as to
whether to extend a period of investigation. Under proposed paragraph
23C(7)(h) this time could be disregarded. However, there may be no reason
why questioning could not occur during this time. Proposed subsection
23C(7A) will clarify that it is only when the questioning of the person is
suspended or delayed that the time can be disregarded from the
investigation period. Proposed subsection 23C(7A) will provide that
subsection 23C(7) does not prevent the person being questioned during a
time covered by the events listed in subsection 23C(7). However, if the
person is questioned during such an event, the time must count as part of
the investigation period. The proposed amendment could not be used as a
way to extend the period of investigation time. For example, if
investigators question a suspect during a time that falls under paragraph
23C(7)(h), then that questioning time counts towards the four hour
investigation time allowed under section 23C or as extended.
However, proposed subsection 23C(7A) is not intended to affect the rights
of individuals or obligations of investigating officials. Proposed section
23C(7A) does not suggest, for example, that the prohibition against
questioning a person during a forensic procedure should be overridden. Nor
does it override the requirement to delay questioning until a person's
legal representative arrives. It simply clarifies that when questioning is
able to occur, the investigation period should continue to run.
Item 14: Subsection 23C(9)
This item will repeal subsection 23C(9) which currently defines 'judicial
officer' for the purpose of section 23C. Item 4 will relocate the
definition of a 'judicial officer' to the beginning of Part 1C so that the
term is centrally located with other definitions specific to Part 1C.
Item 15: Sections 23CA to 23E
This item will repeal sections 23CA, 23CB, 23D, 23DA and 23E.
Existing sections 23CA, 23CB and 23DA relate to the investigation of
terrorism offences and will be reformulated into new Subdivision B (see
item 16).
Existing section 23E is an evidentiary provision that will be reformulated
into Subdivision C (see item 16).
Existing section 23D sets out the process for how the investigation period
may be extended if the person has been arrested for a non-terrorism
offence. Item 15 will repeal this section and replace it with new
subsections 23D and 23DA. There will be two key differences between the
existing and new process. The first is that only a magistrate will be able
to grant an extension of the investigation period. The second is several
amendments to ensure that sufficient procedural safeguards are in place
when an investigating official makes an application to extend the
investigation period.
Subsection 23D - Application to extend the investigation period
Proposed subsection 23D(1)
Currently, an application for an extension of the investigation period for
non-terrorism offences must be made to and granted by a magistrate, any
justice of the peace or a bail justice.
Historically, justices of the peace and bail justices were included in the
category of persons who could perform this function on the basis that it
may be difficult to secure the services of a magistrate in urgent
circumstances. This is less of a concern in today's society. Whilst
magistrates have expertise in dealing with a large portion of criminal
issues and are therefore well suited to this role, the arguments for a
justice of the peace or bail justice to perform this role are less
compelling.
Proposed subsection 23D(1) will provide that an application for an
extension of the investigation period can only be made to, and granted by,
a magistrate. Although magistrates are the only category of persons who
will be able to perform this role, this function is not judicial or
incidental to a judicial function. Magistrates perform this role in their
personal capacity.
Proposed subsection 23D(2)
Proposed subsection 23D(2) reflects existing subsection 23D(3) which
provides for the application to extend the investigation period to be made
before the magistrate, by telephone or in writing.
Proposed subsection 23D(3)
Currently, there is no requirement for an application to extend the
investigation period to include any particular statements or information.
Proposed new subsection 23D(3) will require the application to include
certain information to ensure the magistrate is able to appropriately
consider whether to grant the extension or not. For example, the
application will need to include the reasons why the investigating official
believes the investigation period should be extended.
Proposed subsection 23D(4)
Proposed subsection 23D(4) is an avoidance of doubt provision that will
clarify that proposed subsection 23D(3) does not require information to be
included in the application if disclosure of that information would be
likely to prejudice national security (within the meaning of the National
Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act)),
be protected by public interest immunity, put at risk ongoing operations by
law enforcement or intelligence agencies or put at risk the safety of the
community, law enforcement or intelligence officers.
Proposed subsections 23D(5) and 23D(6)
Currently, there is no requirement for an investigating official to provide
a copy of the application, or information pertaining to it, to the arrested
person or their legal representative. Proposed subsection 23D(5) will
require that before an application for an extension of the investigation
period is considered by a magistrate, the investigating official must, if
the application is made in writing, provide a copy of the application to
the person or their legal representative. If the application is not made
in writing (i.e. by telephone or in person before the magistrate), then the
investigating official must inform the person or their legal representative
of all matters or information in the application (other than information of
a kind mentioned in subsection 23D(4)).
Proposed subsection 23D(6) will also provide that if the application
contains any information of the kind listed in subsection 23D(4), the
investigating official may remove it from any copy of the application that
is provided to the person or to their legal representative. This is
consistent with provisions contained within subsections 104.12A(3) and
104.23(3A) of the Criminal Code which relate to information that must be
given to a person in relation to a control order.
Proposed subsection 23D(7)
Proposed subsection 23D(7) will provide that the arrested person or their
legal representative may make representations to the magistrate about the
application (and proposed paragraph 23D(5)(b) requires the investigating
official to so inform the person).
Collectively, the purpose of these amendments is to ensure that the
arrested person and or their legal representative are able to make
appropriate representations to the magistrate about the application, should
they wish to do so.
Proposed section 23DA - Extension of the investigation period
Proposed section 23DA will set out how a magistrate may extend the
investigation period. It is based on the process set out in existing
section 23D.
Proposed subsection 23DA(1)
Proposed subsection 23DA will apply if a person is arrested for a serious
Commonwealth offence (other than a terrorism offence) and an application to
extend the investigation period has been made to a magistrate in respect of
the person.
Proposed subsection 23DA(2)
Proposed subsection 23DA(2) will replicate existing subsection 23D(4) to
make it clear that an application for the extension of the investigation
period in relation to non-terrorism offences can only be granted by a
magistrate by signed written instrument if the magistrate is satisfied that
the factors listed in paragraphs (a) through (d) have been met.
Proposed subsection 23DA(3)
Proposed subsection 23DA(3) is based on existing subsection 23D(4A). The
subsection will, subject to proposed new subsection 23DA(4), continue to
provide for what the instrument must set out.
Proposed subsection 23DA(4)
Proposed subsection 23DA(4) will clarify that proposed subsection 23DA(3)
does not require information to be included in the instrument if disclosure
of that information would be likely to prejudice national security (within
the meaning of the NSI Act), be protected by public interest immunity, put
at risk ongoing operations by law enforcement or intelligence agencies or
put at risk the safety of the community, law enforcement or intelligence
officers.
Proposed subsection 23DA(5)
Proposed paragraph 23DA(5)(a) is based on existing subsection 23D(4B) and
will continue to require the magistrate to provide the investigating
official with a copy of the written instrument as soon as practicable after
signing it. Proposed paragraph 23DA(5)(b) will provide that if the
instrument was made as a result of an application made by telephone, telex,
fax or other electronic means, the magistrate must inform the investigating
official of the matters included in the instrument. The proposed note at
the end of subsection 23DA(5) will note that the provisions in proposed
section 23E will apply if the magistrate informs the investigating official
under paragraph 23DA(5)(b) (see item 16).
Proposed subsection 23DA(6)
Currently, there is no specific requirement for an investigating official
to provide a copy of the instrument granting the extension of the
investigation period for a non-terrorism offence to an arrested person or
their legal representative. Proposed paragraph 23DA(6)(a) will provide
that an investigating official must provide the detained person or their
legal representative with a copy of the instrument under proposed paragraph
(5)(a) as soon as practicable after receiving it from the magistrate.
Proposed paragraph 23DA(6)(b) will provide that if the instrument was made
as a result of an application made by telephone, telex, fax or other
electronic means, the investigating official must inform the detained
person or their legal representative of the matters included in the
instrument as soon as practicable after being informed of them under
proposed paragraph 23DA(5)(b).
Proposed subsection 23DA(7)
Proposed subsection 23DA(7) will replicate existing subsection 23D(5),
which provides that the investigation period may be extended for a period
not exceeding 8 hours and must not be extended more than once.
Item 16: At the end of Division 2 of Part 1C
This item will insert a new Subdivision B (Terrorism offences) into
Division 2 of Part 1C.
Currently, Division 2 of Part 1C (Powers of detention) includes provisions
relating to the investigation of both terrorism and non-terrorism offences.
This is because the terrorism provisions were built into the existing Part
1C provisions. To facilitate a clearer understanding of the provisions,
the terrorism and non-terrorism provisions in Division 2 of Part 1C will be
separated into two separate subdivisions. Subdivision A will deal with the
investigation of non-terrorism offences and Subdivision B will deal with
the investigation of terrorism offences.
Item 15 will repeal existing sections 23CA, 23CB and 23DA. They relate to
the investigation of terrorism offences and will be reformulated and
inserted into new Subdivision B.
Proposed subsection 23DB - period of investigation
Item 16 will insert proposed new section 23DB. It is based on existing
section 23CA with some modifications.
Proposed subsection 23DB(1)
The note at the end of proposed subsection 23DB(1) is designed to clarify
that a person must be under a valid state of arrest for a terrorism offence
for the section to apply. Existing subsection 23CA(1) provides that the
provisions in section 23CA, which allow a person to be detained, only apply
if a person is arrested for a terrorism offence. There has been some
uncertainty as to how the power of arrest under existing section 3W
interacts with section 23C.
Subsection 3W(1) provides that a constable may, without warrant, arrest a
person for an offence if the constable believes on reasonable grounds that
the person has committed or is committing a Commonwealth offence and that
proceedings by summons against the person would not achieve one or more
specified purposes, including ensuring the appearance of the person before
a court in respect of the offence. Subsection 3W(2) provides that if the
constable in charge of the investigation ceases to hold this belief, then
the person must be released.
The note under proposed subsection 23DB(1) will reinforce that a person is
not arrested for a terrorism offence if the person has been released under
subsection 3W(2). This will make it clear that a person cannot be detained
under section 23DB if the person has been released under subsection 3W(2).
This proposed amendment is part of a broader set of amendments that will
clarify the relationship between section 3W and Part 1C (see items 9 and
10).
Proposed subsection 23DB(2)
Currently, subsection 23CA(2) provides that if a person is arrested for a
terrorism offence, the person may be detained for the purpose of
investigating:
. whether the person committed the terrorism offence for which they were
arrested, and/or
. whether the person committed another terrorism offence that an
investigating official reasonably suspects the person to have
committed.
If a person has been arrested under subsection 3W(1) for a Commonwealth
offence, subsection 3W(2) provides that if the constable in charge of the
investigation ceases to hold a reasonable belief that the person has
committed the offence then the person must be released.
The Clarke Report suggested it is possible for some to misinterpret the
second limb in subsection 23CA(2) to mean that once a person is arrested,
the person can be detained under the second limb regardless of whether the
requisite belief under section 3W is maintained.
Proposed new subsection 23DB(2) is modelled on existing subsection 23CA(2)
but is designed to make it clear that a person may only be detained under
that subsection while arrested for the terrorism offence. If a person is
released under subsection 3W(2) the person may not be detained under
subsection 23DB(2) because they will no longer be arrested (see the revised
definition of 'arrested' at item 1).
Proposed paragraph 23DB(2)(a) will provide that the person may, while
arrested for the Commonwealth offence, be detained for the purpose of
investigating whether the person committed the offence.
Proposed paragraph 23DB(2)(b) will provide that the person may, while
arrested for the terrorism offence, be detained for the purpose of
investigating whether the person committed another Commonwealth offence
that an investigating official reasonably suspects the person has
committed. This differs from the existing paragraph 23CA(2)(b), which is
limited to terrorism offences. Terrorist activity can often be linked to
or overlap with other criminal activity including, for example, identity
and credit card fraud offences. It is likely that future counter-terrorism
investigations will involve an overlap of both terrorism and non-terrorism
offences. Proposed paragraph 23DB(2)(b) will enable investigators to
pursue the investigation of both the terrorism and non-terrorism offences
together under the one regime. However, the person will only be able to be
investigated for a non-terrorism offence under the terrorism offence regime
if the person is under a valid state of arrest for a terrorism offence.
The proposed amendment will not enable the suspect to be detained, or an
extension of the investigation period sought, only on the basis of
investigating the non-terrorism offence. The amendment is simply designed
to remove an arbitrary distinction that prevents the simultaneous
investigation of terrorism and related non-terrorism offences while a
person is arrested for a terrorism offence.
Proposed subsection 23DB(3)
Proposed subsection 23DB(3) provides that the person must not be detained
under subsection 23DB(2) once the investigation period has ceased. To
avoid doubt, it will also specify that this provision will not affect any
other power to detain the person under other legislative regimes. This may
include, for example, provisions which allow a person to be detained under
State or Territory legislation.
Proposed subsections 23DB(4) to (8)
Proposed subsections 23DB(4) to (8) are based on the existing subsections
23CA(3) to (7). They will set out how the investigation period is
calculated. The investigation period begins when the person is arrested
and can last for a reasonable time, up to a maximum of four hours. The
investigation period may be extended any number of times, but the total
length of the periods of extension cannot be more than 20 hours. This
amounts to a total maximum investigation period of 24 hours if a person is
arrested for a terrorism offence.
Proposed subsection 23DB(9)
Proposed subsection 23DB(9) will reformulate what is currently contained in
existing subsection 23CA(8). Proposed subsection 23DB(9) will set out the
periods of time that may be disregarded from the calculation of the
investigation period.
Generally, the purpose of disregarded time is to suspend or delay
questioning to ensure that a proper pre-charge interview can take place.
The provisions recognise that there needs to be some flexibility in the
maximum time limit for the investigation period to balance two competing
considerations - the reasonable requirements of law enforcement and the
protection of civil liberties of people who have been arrested for, but not
yet charged with, a criminal offence. The types of time that can be
disregarded from the investigation period when a person is arrested for a
terrorism offence fall into three general categories. The first two
categories are the same as those that apply when a person has been arrested
for a non-terrorism Commonwealth offence. An explanation of these
categories is set out at item 13 in relation to proposed subsection 23C(7).
The third category of disregarded time that applies specifically to the
terrorism provisions in Part 1C enables an investigating official to apply
to a magistrate to specify an amount of time that should be disregarded
from the investigation period. The rationale for this category of
disregarded time is that it is not always possible to predict the
circumstances where time should be disregarded from the investigation
period to enable a proper pre-charge interview to take place. Currently,
paragraph 23CA(8)(m) provides that any reasonable time that is within a
period specified under existing section 23CB may be disregarded from the
investigation period. This includes, for example, the time needed to
collate information from an overseas country before presenting it to a
suspect during questioning, or waiting for overseas jurisdictions to
respond to requests for critical information from the AFP. While it would
be impossible to accurately predict every event that may arise in a complex
investigation, paragraph 23CB(5)(c) includes an indicative list of events
that may come up in complex terrorism investigations giving rise to a
legitimate need for time taken for these events to occur to be disregarded
from the investigation period.
Proposed new subsection 23DB(9) will replicate all the existing categories
of time that may be disregarded from the investigation period under
existing subsection 23CA(8) and reinforce that the time may only be
disregarded if it is a reasonable period during which questioning of the
person is suspended or delayed. The amendments will also clarify two
issues identified in the Clarke Report about how disregarded time may be
calculated.
First, there is currently uncertainty about how disregarded time should be
calculated if more than one event under proposed subsection 23DB(9) occurs
at the same time. Proposed new subsection 23C(9) will clarify that
questioning of the person may be suspended or delayed for one or more of
the reasons outlined in paragraphs (a) through (m). This will put beyond
doubt that the events outlined in paragraphs (a) through (m) may occur at
the same time. However, if periods of disregarded time occur
simultaneously, any overlapping time can only be disregarded once from the
investigation period.
Second, there is currently uncertainty about whether it is possible for
investigating officials to resume questioning during a period of
disregarded time. Many of the events listed in proposed subsection 23DB(9)
are circumstances when it would simply not be possible to question a
person. For example, it is not possible to question a person while a
forensic procedure is taking place.
However, there may be times when an event under subsection 23DB(9) occurs,
but it becomes apparent that suspending or delaying the questioning of the
person is not necessary during the entirety of that event. For example,
proposed paragraph 23DB(9)(m) (which will replace current paragraph
23CA(8)(m)) provides that any reasonable time that is a time during which
the questioning of the person is reasonably suspended or delayed and is
within a period specified under proposed section 23DD should be
disregarded. A period of time specified under proposed section 23DD could
be used by investigators to, for example, collate information from an
overseas country that has a time zone difference. However, it could still
be useful for investigators to question the suspect at certain times while
they are waiting for this information from the overseas country.
Proposed subsection 23DB(10)
Proposed paragraph 23DB(10)(a) will clarify that, to avoid doubt, proposed
subsection 23DB(9) does not prevent the person being questioned during a
time covered by a paragraph of that subsection. In the above example,
proposed paragraph 23DB(9)(m) would not prevent police from resuming
questioning during a period of time specified under proposed section 23DD.
However, proposed paragraph 23DB(10)(b) will ensure that this amendment
should not be used as a way to extend a period of disregarded time
specified under proposed section 23DD. For example, if an investigator has
four hours of time available in the investigation period and a magistrate
specified a period of two days under proposed section 23DD, the
investigator could conduct a three hour questioning session during those
two days. The three hours of questioning would be deducted from the four
hours of investigation time, leaving one hour of investigation time
remaining. The three hours would also be deducted from the specified two
days, leaving 45 hours in the specified period for other activities.
However, proposed paragraph 23DB(10)(a) is not intended to affect the
rights of individuals or obligations of investigating officials. Proposed
paragraph 23DB(10)(a) does not suggest, for example, that the prohibition
against questioning a person during a forensic procedure should be
overridden. It will simply clarify that when questioning is able to occur,
the investigation period should continue to run.
Proposed subsection 23DB(11) - Limit on time that may be disregarded under
paragraph 23DB(9)(m)
Proposed subsection 23DB(11) will set a cap of seven days on the amount of
time that can be disregarded from the investigation period under proposed
paragraph 23DB(9)(m). Currently, there is no such limit, and unlike other
categories of disregarded time which may be naturally capped because of the
nature of the event, the length of time that could be disregarded under
proposed paragraph 23DB(9)(m) is not as naturally confined. The proposed
cap of 7 days will provide certainty as to the amount of time that can be
disregarded under proposed paragraph 23DB(9)(m) and accordingly, greater
certainty about the length of time a person may be detained under Part 1C
when a person is arrested for a terrorism offence.
Proposed subsection 23DB(11) also has a safeguard so that if a suspect is
arrested within 48 hours of a previous arrest relating to the same
circumstances, the maximum 7 day cap on any time disregarded under proposed
paragraph 23DB(9)(m) is reduced by any amount of time that was specified
under proposed section 23DD and disregarded under paragraph 23DB(9)(m) in
relation to the investigation period while the person was previously
arrested.
Proposed subsection 23DB(12) - Evidentiary provision
Proposed subsection 23DB(12) provides that in any proceeding, the burden
lies on the prosecution to prove that the person was brought before a
judicial officer as soon as practicable and that any time that was
disregarded from the investigation period was covered by one of the
provisions in proposed subsection 23DB(9). This subsection replicates the
evidentiary provisions contained in existing subsection 23CA(9).
Proposed sections 23DC and 23DD - application to and time specified by a
magistrate
Item 16 will also insert proposed sections 23DC and 23DD. These proposed
sections are based on existing section 23CB with some modifications.
Proposed section 23DC will set out the process for making an application
for a specified period of time that could then be disregarded under
proposed paragraph 23DB(9)(m). Proposed section 23DD will set out the
process by which a magistrate could specify a period of time that could
then be disregarded under proposed paragraph 23DB(9)(m).
Proposed subsection 23DC(1)
Proposed subsection 23DC(1) will provide that proposed section 23DC will
apply if a person is arrested for a terrorism offence and an investigation
is being conducted into whether the person committed that terrorism offence
or another terrorism offence. This subsection is based on existing
subsection 23CB(1) and makes it clear that this kind of disregarded time
can only apply if a person is arrested and being investigated for a
terrorism offence. If a person who is arrested for a terrorism offence is
also being investigated for a non-terrorism Commonwealth offence under
proposed paragraph 23DB(2)(b), then the investigating official would not be
prevented from applying for a specified period of time under proposed
section 23DC, so long as an investigation is being conducted into whether
the person committed the terrorism offence for which they were arrested or
another terrorism offence.
Proposed subsection 23DC(2)
Proposed subsection 23DC(2) will provide that at or before the end of the
investigation period an investigating official may apply, in writing, to a
magistrate for a period of specified time that could be disregarded from
the investigation period under proposed paragraph 23DB(9)(m).
This will differ from existing subsection 23CB(4) as proposed subsection
23DC(2) will require the application to be made in writing. Currently
subsection 23CB(4) provides that an application for specified disregarded
time may be made in person or in writing or by telephone, telex, fax or
other electronic means.
An application under proposed section 23DC will also only be able to be
made to and granted by a magistrate. Currently, subsection 23CB(4) enables
an application to be made to and granted by a magistrate, a justice of the
peace or a bail justice.
Proposed subsection 23DC(3)
Proposed subsection 23DC(3) will provide that an application for a
specified period of disregarded time must not be made unless it is
authorised, in writing, by an authorising officer. The proposed new
definition of 'authorising officer' is set out at item 2.
Currently, an investigating official may apply for a specified period of
time to be disregarded from the investigation period. There is no
additional requirement for the investigating official to obtain the
approval of a more senior officer prior to making the application.
Proposed subsection 23DC(3) recognises that the task of settling the
documents and making applications for this purpose should be overseen by a
senior officer who is trained in the process and familiar with all the
facts. It is an additional safeguard that will ensure that an application
will be approved by a senior member of the AFP or senior member of a State
or Territory police force before it can be made to a magistrate.
Proposed subsection 23DC(4)
Proposed subsection 23DC(4) will replicate existing subsection 23CB(5) and
will continue to require applications for specified disregarded time to
include all the statements that are listed in current subsection 23CB(5),
including the reasons why the investigating official believes the period of
time should be specified. However, given there will be a seven day cap on
the amount of specified time that can be disregarded from the investigation
period under proposed paragraph 23DB(9)(m), it will be important for the
magistrate to have additional information before him or her. Accordingly,
proposed subsection 23DC(4) will also require the application to include
information on the outcome of any previous application under proposed
section 23DC so that the magistrate can determine the amount of time that,
at a maximum, could be specified. Proposed subsection 23DC(4) will also
require the application to include the total amount of time that has
already been disregarded from the investigation period under proposed
subsection 23DB(9).
Proposed subsection 23DC(5)
Proposed subsection 23DC(5) is an avoidance of doubt provision that will
clarify that proposed subsection 23DC(4) does not require information to be
included in the application for disregarded time if disclosure of that
information would be likely to prejudice national security (within the
meaning of the NSI Act), be protected by public interest immunity, put at
risk ongoing operations by law enforcement or intelligence agencies or put
at risk the safety of the community, law enforcement or intelligence
officers.
Proposed subsection 23D(6)
Proposed subsection 23D(6) will require an investigating official to inform
the person or their legal representative that they may make representations
to the magistrate about the application. This is consistent with existing
paragraph 23CB(4)(c). Proposed subsection 23D(6) will also require the
investigating official to provide a copy of the application for specified
disregarded time to the person or to his or her legal representative, prior
to when the magistrate considers the application. This will be a new
requirement to facilitate an arrested person and or their legal
representative to make appropriate representations to the magistrate about
the application, should they wish to do so.
Proposed subsection 23DC(7)
Proposed subsection 23DC(7) will provide that if the application for
specified disregarded time contains information of a kind mentioned in
proposed subsection 23DC(5), the investigating official may remove it from
the copy of the application that is provided to the person and/or their
legal representative.
Proposed subsection 23DC(8)
Proposed subsection 23DC(8) will replicate existing subsection 23CB(6) and
provide that the arrested person, or his or her legal representative, may
make representations to the magistrate about the application.
Proposed subsection 23DD(1)
Proposed section 23DD will apply if a person has been arrested for a
terrorism offence and an application for specified disregarded time has
been made under proposed subsection 23DC(2) to a magistrate in respect of
the person.
Proposed subsection 23DD(2)
Proposed subsection 23DD(2) will replicate existing subsection 23CB(7). It
will provide that a magistrate may, by signed instrument, specify a period
of time for the purpose of proposed paragraph 23DB(9)(m) if it is
appropriate to do so, the offence is a terrorism offence, detention of the
person is necessary to preserve or obtain evidence or to complete the
investigation into the offence or into another terrorism offence, the
investigation into the offence is being conducted properly and without
delay and the person or their legal representative has been given the
opportunity to make representations about the application. It will also
require the magistrate to be satisfied that the application has been
authorised by an authorising officer (see proposed subsection 23DC(3)).
Proposed subsection 23DD(2) will only enable a magistrate to specify a
period of time. Justices of the peace and bail justices will no longer be
able to perform this function. Historically, justices of the peace and
bail justices were included in the category of persons who could perform
this function on the basis that it may be difficult to secure the services
of a magistrate in urgent circumstances. This is less of a concern in
today's society. Whilst magistrates have expertise in dealing with a large
portion of criminal issues and are therefore well suited to this role, the
arguments for a justice of the peace or bail justice to perform this role
are less compelling. Although magistrates are the only category of persons
who will be able to perform this role, this function is not judicial or
incidental to a judicial function. Magistrates perform this role in their
personal capacity.
Proposed subsection 23DD(3)
Proposed subsection 23DD(3) will replicate existing subsection 23CB(8)
which provides that the instrument must specify the period of time, set out
the day and time when it was signed and set out the reasons for specifying
the period.
Proposed subsection 23DD(4)
Proposed subsection 23DD(4) will provide that proposed subsection 23DD(3)
does not require information to be included in the instrument if disclosure
of that information would be likely to prejudice national security (within
the meaning of the NSI Act), be protected by public interest immunity, put
at risk ongoing operations by law enforcement or intelligence agencies or
put at risk the safety of the community, law enforcement or intelligence
officers.
Proposed subsection 23DD(5)
Proposed subsection 23DD(5) mirrors existing subsection 23CB(9). It will
require the magistrate to give the investigating official a copy of the
instrument as soon as practicable after signing it. If the instrument was
made as a result of an application made by electronic means, the magistrate
will be required to inform the investigating official of the matters
included in the instrument.
The proposed note at the end of subsection 23DD(5) will note that the
provisions in proposed section 23E will apply if the magistrate informs the
investigating official under proposed paragraph 23DD(5)(b).
Proposed subsection 23DD(6)
Currently, there is no requirement for an investigating official to provide
a copy of the instrument specifying the period of disregarded time to the
detained person or their legal representative.
Proposed paragraph 23DD(6)(a) will insert a provision that will require an
investigating official to provide the person or their legal representative
with a copy of the instrument under proposed paragraph (5)(a) as soon as
practicable after receiving it from the magistrate.
Proposed paragraph 23DD(6)(b) will provide that if the instrument was made
as a result of an application made by electronic means, the investigating
official must inform the detained person or their legal representative of
the matters included in the instrument as soon as practicable after being
informed of them by the magistrate.
Proposed sections 23DE and 23DF - application and extension of the
investigation period
Item 16 will also insert sections 23DE and 23DF to replace existing section
23DA. It will set out the process for making an application to extend the
investigation period and the granting of an extension where a person is
arrested for a terrorism offence. The process for making an application to
extend the investigation period for a terrorism offence will be similar to
the process for applying for an extension of the investigation period for a
non-terrorism offence under proposed section 23D. However, there will be
an additional requirement that an application to extend the investigation
period must be approved by an authorising officer and that the application
must be in writing. These requirements will provide additional safeguards,
given the investigation period where a person is arrested for a terrorism
offence may be longer than if the person is arrested for a non-terrorism
offence.
Proposed subsection 23DE(1)
Proposed subsection 23DE(1) will provide that if a person is arrested for a
terrorism offence, an investigating official may, at or before the end of
the investigation period, apply, in writing, to a magistrate for an
extension of the investigation period. Only an investigating official that
falls within paragraphs (a) and (b) of the definition in subsection 23B(1)
will be able to make the application. This includes a member or special
member of the AFP or a member of the police force of a State or Territory.
A person that falls within paragraph (c) of the definition will not be able
to make the application. This includes a person who holds an office the
functions of which include the investigation of Commonwealth offences and
who is empowered by a law of the Commonwealth because of the holding of
that office to make arrests in respect of such offences.
Currently, an application for an extension of the investigation period when
a person is arrested for a terrorism offence must be made to and granted by
a magistrate, a justice of the peace or a bail justice. Historically,
justices of the peace and bail justices were included in the category of
persons who could perform this function on the basis that it may be
difficult to secure the services of a magistrate in urgent circumstances.
This is less of a concern in today's society. Whilst magistrates have
expertise in dealing with a large portion of criminal issues and are
therefore well suited to this role, the arguments for a justice of the
peace or bail justice to perform this role are less compelling.
Proposed subsection 23DE(1) will provide that an application for an
extension of the investigation period can only be made to a magistrate.
Although magistrates are the only category of persons who will be able to
perform this role, this function is not judicial or incidental to a
judicial function. Magistrates perform this role in their personal
capacity.
Currently under subsection 23DA(3), an application to extend the
investigation period may be made in a number of ways, either before a
judicial officer, in writing, by telephone or other electronic means.
Proposed subsection 23DE(1) will require the application to be made in
writing.
Proposed subsection 23DE(2)
Proposed subsection 23DE(2) will insert a new requirement that an
application for an extension of the investigation period for a terrorism
offence must not be made unless it is authorised, in writing, by an
authorising officer. The proposed new definition of 'authorising officer'
is set out at item 2. Proposed subsection 23DE(2) recognises that the task
of settling the documents and making applications for this purpose should
be overseen by a senior officer who is trained in the process and familiar
with all the facts. It is an additional safeguard that will ensure that an
application will be approved by a senior member of the AFP or senior member
of a State or Territory police force before it can be made to a magistrate.
Proposed subsection 23DE(3)
Currently, there is no requirement for an application to extend the
investigation period to include any particular statements or information.
Proposed new subsection 23DE(3) will require the application to include
certain information to ensure the magistrate is able to appropriately
consider whether to grant the extension or not. For example, the
application will need to include the reasons why the investigating official
believes the investigation period should be extended.
Proposed subsection 23DE(4)
Proposed subsection 23D(4) is an avoidance of doubt provision that will
clarify that proposed subsection 23DE(3) does not require information to be
included in the application if disclosure of that information would be
likely to prejudice national security (within the meaning of the NSI Act),
be protected by public interest immunity, put at risk ongoing operations by
law enforcement or intelligence agencies or put at risk the safety of the
community, law enforcement or intelligence officers.
Proposed sections 23DE(5) and (6)
Currently, there is no requirement for an investigating official to provide
a copy of the application to the arrested person or their legal
representative. Proposed paragraph 23DE(5)(a) will require that before an
application for an extension of the investigation period is considered by a
magistrate, the investigating official must provide a copy of the
application to the person or their legal representative. Proposed
subsection 23DE(6) will also provide that if the application contains any
information of the kind listed in subsection 23DE(4), the investigating
official may remove it from any copy of the application that is provided to
the person or to their legal representative. This is consistent with
provisions contained within subsections 104.12A(3) and 104.23(3A) of the
Criminal Code which relate to information that must be given to a person in
relation to a control order.
In addition, proposed paragraph 23DE(5)(b) will provide that the
investigating official must inform the person that they or their legal
representative may make representations to the magistrate about the
application.
Proposed subsection 23DE(7)
Proposed subsection 23DE(7) replicates existing subsection 23DA(3) and
provides that the arrested person, or his or her legal representative, may
make representations to the magistrate about the application.
Proposed subsection 23DF(1)
Proposed section 23DF will set out how a magistrate may extend the
investigation period and is based on the process set out in existing
section 23DA.
Proposed subsection 23DF will apply if a person has been arrested for a
terrorism offence and an application to extend the investigation period has
been made to a magistrate in respect of the person.
Proposed subsection 23DF(2)
Proposed subsection 23DF(2) is modelled on existing subsection 23DA(4).
The proposed subsection will provide that the magistrate may extend the
investigation period, by signed written instrument, if satisfied of the
factors listed in paragraphs (a) through (e). The magistrate will need to
be satisfied that the offence is a terrorism offence and that further
detention of the person is necessary to either:
. preserve or obtain evidence related to the offence or to another
terrorism, or
. complete the investigation into the offence or into another terrorism
offence.
The magistrate will also need to be satisfied the investigation is being
conducted properly and without delay, the application has been authorised
by an authorising officer and the person or his or her legal representative
has been given the opportunity to make representations about the
application.
If a person who is arrested for a terrorism offence is also being
investigated for a non-terrorism Commonwealth offence under proposed
paragraph 23DB(2)(b), then the investigating official will not be able to
use the investigation of the non-terrorism offence as a means to extend the
investigation period under proposed subsection 23DF(2). This is because
all of the factors that the magistrate must be satisfied of to grant an
extension are linked to the investigation of a terrorism offence. However,
if an extension is granted, it will not prevent the investigation of non-
terrorism offences during this extended period under proposed paragraph
23DB(2)(b).
Proposed subsection 23DF(3)
Proposed subsection 23DF(3) replicates existing subsection 23DA(5). This
subsection will, subject to proposed new subsection 23DF(4), continue to
provide for what must be included in the instrument.
Proposed subsection 23DF(4)
Proposed subsection 23DF(4) will provide that proposed subsection 23DF(3)
does not require information to be included in the instrument extending the
investigation period if disclosure of that information would be likely to
prejudice national security (within the meaning of the NSI Act), be
protected by public interest immunity, put at risk ongoing operations by
law enforcement or intelligence agencies or put at risk the safety of the
community, law enforcement or intelligence officers.
Proposed subsection 23DF(5)
Proposed paragraph 23DF(5)(a) is based on existing subsection 23DA(6) and
will continue to require the magistrate to provide the investigating
official with a copy of the written instrument as soon as practicable after
signing it. Proposed paragraph 23DF(5)(b) will provide that if the
instrument was made as a result of an application made by electronic means,
the magistrate must inform the investigating official of the matters
included in the instrument. The proposed note at the end of subsection
23DF(5) will note that the provisions in proposed section 23E will apply if
the magistrate informs the investigating official under proposed paragraph
23DF(5)(b).
Proposed subsection 23DF(6)
Currently, there is no specific requirement for an investigating official
to provide a copy of the instrument extending the investigation period for
a terrorism offence to a detained person or their legal representative.
Proposed paragraph 23DF(6)(a) will provide that an investigating official
must provide the detained person or their legal representative with a copy
of the instrument under proposed paragraph (5)(a) as soon as practicable
after receiving it from the magistrate. Proposed paragraph 23DF(6)(b) will
provide that if the instrument was made as a result of an application made
by electronic means, the investigating official must inform the detained
person or their legal representative of the matters included in the
instrument as soon as practicable after being informed of them under
proposed paragraph 23DF(5)(b).
Proposed subsection 23DF(7)
Proposed subsection 23DF(7) will replicate existing subsection 23DA(7),
which provides that the investigation period may be extended any number of
times, but the total of the periods of extension cannot be more than 20
hours.
Subdivision C - Miscellaneous
Item 16 will also insert Subdivision C into Division 2 of Part 1C. It will
contain proposed section 23E which is modelled on existing section 23E. It
will apply in situations where a magistrate has, under proposed paragraphs
23DA(5)(b), 23DD(5)(b) or 23DF(5)(b), informed an investigating official of
matters included in an instrument.
Proposed subsection 23E(2) will require the investigating official to, as
soon as practicable after being informed of those matters, complete a form
of the instrument and forward it to the magistrate. If the form of the
instrument completed by the investigating official does not accord with the
terms of the instrument signed by the magistrate, the instrument is taken
to have had no effect.
Item 17: Paragraph 23XGD(2)(h)
This item is a consequential amendment so that the reference at paragraph
23XGD(2)(h) to existing subsection 23CA(8) corresponds with the appropriate
reference to proposed new subsection 23DB(9).
Item 18: Application
Subitem 18(1) will provide that the proposed amendments to Part 1C will,
subject to proposed subitem (2), apply in relation to a person who is
arrested after the commencement of these provisions.
Subitem 18(2) will clarify that if a person has been arrested more than
once within 48 hours and the first of those arrests was made before the
commencement of these provisions, then the proposed amendments to Part 1C
will not apply in relation to the person for any later arrest that is made
within that 48 hour period. However, this subitem will not apply if a
person is arrested a second time within 48 hours for conduct completely
separate from their conduct which led to the original arrest, or where the
later arrest is for a Commonwealth offence that arose in different
circumstances to those to which the original arrest applies for which new
evidence has been obtained since that earlier arrest.
Schedule 4 - Powers to search premises in relation to terrorism offences
Overview
Division 3A of the Crimes Act 1914 (Crimes Act) provides police with powers
to stop, search and question in relation to terrorist acts. This Division
was first inserted into the Crimes Act by the Anti-Terrorism Act (No 2)
2005 to provide police with specific powers in relation to terrorist acts
in addition to existing police powers. However, Division 3A does not
provide police with a power to enter premises without a warrant in
emergency circumstances relating to a terrorism offence where there is
material that may pose a risk to the health or safety of the public.
Schedule 4 will amend Division 3A of the Crimes Act to include a new power
for police to enter premises without a warrant in emergency circumstances.
Crimes Act 1914
Item 1: Division 3A of Part IAA (heading)
This item will substitute the heading 'Powers in relation to terrorist acts
and terrorism offences' in place of the current Division 3A heading 'Powers
to stop, question and search persons in relation to terrorist acts'.
Item 2: Section 3UB
This item is a minor amendment to the numbering of section 3UB. The number
(1) will be inserted before the words 'A police officer'.
Item 3: at the end of section 3UB
Currently, Division 3A provides police with various powers in relation to
terrorist acts, but only in a Commonwealth place and prescribed security
zone. Item 3 will provide that this limitation will not apply to proposed
new section 3UEA.
Item 4: Subsection 3UEA(1) - Emergency entry to premises without warrant
This item will insert new section 3UEA.
Proposed subsection 3UEA(1) - emergency entry to premises without warrant
Proposed section 3UEA will enable a police officer to enter premises
without a warrant, but only if strict criteria are met. The police officer
must suspect on reasonable grounds that it is necessary to use a power
under subsection (2) to prevent a thing that is on the premises from being
used in connection with a terrorism offence and it is necessary to exercise
this power without the authority of a warrant because there is a serious
and imminent threat to a person's life, health or safety.
Proposed subsection 3UEA(2) - powers of search and seizure
The powers available under proposed section 3UEA will be limited to
searching the premises for the particular thing and seizing the particular
thing in circumstances outlined in subsection (1). Subsections (3) to (5)
will provide for some additional limited powers if certain criteria are
met.
Proposed subsections 3UEA(3) and (4) - power to secure premises
If, in the course of searching for the thing, the police officer finds
another thing that they reasonably suspect is relevant to an indictable
offence or a summary offence, the police officer will be able to secure the
premises for a period that is reasonably necessary so that they can make an
application for a search warrant over the premises. This will ensure that
evidence of criminal activity is preserved. The premises will not be able
to be secured under proposed subsection (3) for longer than is reasonably
necessary to obtain the warrant. If a warrant is not authorised the
premises could then be handed over to the occupier.
Proposed subsection 3UEA(5) - power to seize any other thing or make
premises safe in emergency circumstances
In the course of searching for the thing, the police officer may seize
another thing, or do anything to make the premises safe, if the police
officer suspects on reasonable grounds that it is necessary to do so:
. to protect a person's life, health or safety and
. without the authority of a search warrant because the circumstances
are serious and urgent.
In certain circumstances, it may not be possible to seize the thing under
proposed paragraph 3UEA(2)(b) without taking actions necessary to make it
safe for removal. For example, where a live explosive device is on the
premises, the device may need to be neutralised before it can be seized and
removed from the premises. Proposed subsection 3UEA(5) will enable police
to render the premises safe before removing the thing.
Proposed subsection 3UEA(6) - assistance and use of reasonable force
Proposed subsection 3UEA(6) will provide that the police officer may use
assistance in exercising a power under this section. The police officer
will be able to use force against persons and things. If another person,
who is not a police officer, is assisting the police officer, that person
will not be able to use force against persons and will only be able to use
force against things if authorised by the police officer.
Proposed subsection 3UEA(7) - notification to occupier of premises
Proposed subsection 3UEA(7) will ensure that, if the occupier of the
premises is not present at the time the police officer enters the premises,
then a police officer must, within 24 hours of entering the premises,
notify the occupier that the entry has taken place. However, if it is not
practicable to notify the occupier, the police officer must leave a written
notice of entry at the premises.
Item 4: Subsections 3UF(1), (4) and (5)
Currently, section 3UF sets out how things seized under section 3UE must be
dealt with. Subsection 3UF(1) requires a seizure notice to be served
within 7 days after the day on which the thing was seized. Subsection
3UF(4) provides that the owner of a thing seized may request the return of
the thing. Subsection 3UF(5) provides that the thing must be returned to
the owner in certain circumstances.
Item 4 will insert references to proposed new section 3UEA in section 3UF
so that these requirements will apply to things seized under the proposed
new section.
Schedule 5 - Re-entry of premises in emergency situation
Overview
Currently, section 3J of the Crimes Act 1914 (Crimes Act) allows the police
to re-enter a premises under a search warrant within one hour of leaving
the premises. This time limitation does not provide sufficient scope for
police to re-enter premises if they need to evacuate the premises because
they have discovered a threat which could endanger the safety of police
officers or the public. For example, under the current section 3J, if a
police officer, upon executing a search warrant in the investigation of a
Commonwealth offence, discovered a large stockpile of volatile chemicals on
the premises requiring the immediate evacuation of all persons from the
premises, the police officer would not have enough time to secure the
premises and render the chemicals safe before re-entering to commence a
search in accordance with the search warrant.
Schedule 5 contains proposed amendments that will modify the search warrant
provisions in Part 1AA of the Crimes Act so that, in emergency situations,
the time available for law enforcement officers to re-enter premises under
a search warrant can be extended to 12 hours, or, where authorised by an
issuing authority in exceptional circumstances, a longer time not exceeding
the life of the warrant.
Crimes Act 1914
Item 1: Subsection 3C(1)
This item will insert a new definition of 'emergency situation' into
subsection 3C(1).
'Emergency situation' will be defined to mean a situation where there are
reasonable grounds to believe that there is a serious and imminent threat
to a person's life, health or safety that requires officers to leave the
premises. For example, upon executing a search warrant, officers may
discover explosive material that requires the emergency exit of all
personnel.
Item 2: Subsections 3E(1) and (2)
Existing subsections 3E(1) and (2) provide for an issuing officer to issue
a warrant to search premises, or to issue a warrant authorising an ordinary
search or frisk search of a person, if satisfied by information on oath of
certain criteria.
This item will update subsections 3E(1) and (2) to include an option for a
person to 'affirm' information or give it on oath when applying for these
warrants. Currently, there is not an option for a person to 'affirm'
information when giving it to an issuing officer. These proposed
amendments will update the provisions to conform to the standardised
drafting convention.
Item 3: After paragraph 3J(2)(a)
This item will add a new paragraph to the list of situations for when
officers are permitted to re-enter premises while a warrant is being
executed.
Proposed paragraph 3J(2)(aa) will provide that, if there is an emergency
situation, the executing officer and the constables assisting may resume
executing the warrant after they have temporarily ceased its execution and
left the premises for no more than 12 hours or, where authorised by an
issuing officer, a longer time not exceeding the life of the warrant. An
issuing officer is defined in section 3C as a magistrate or a justice of
the peace or other person employed in a court of a State or Territory who
is authorised to issue search warrants. 'Emergency situation' will be
defined in section 3C (see item 1).
Item 4: proposed new section 3JA - Extension of time to re-enter premises
in emergency situations
This item will insert proposed new section 3JA.
If the executing officer or constable assisting requires longer than 12
hours to re-enter the premises and there is an emergency situation,
proposed section 3JA will set out the process for how they may apply to an
issuing officer for an extension of that period.
An issuing officer will only be able to extend the period during which the
executing officer and constables assisting may be away from the premises if
the issuing officer is satisfied that there are exceptional circumstances
that justify the extension and the extension would not result in the period
ending after the expiry of the warrant.
Item 5: Subsection 3L(7)
Current subsections 3L(4) to (9) deal with the lock down of electronic
equipment at premises when executing a search warrant. Under subsection
3L(4), the executing officer or constable assisting can secure equipment
for 24 hours in order to get expert assistance. Subsection 3L(7) provides
for an executing officer or constable assisting to go to the original
issuing officer to get an extension of that 24 hour period.
The current situation is too restrictive if, for example, the original
issuing officer is not available when the extension of time is required.
For example, it is problematic in circumstances where the issuing officer
who issued the warrant is on leave, ill or otherwise unavailable. The
proposed amendment in this item will allow the executing officer or
constable assisting to go to any issuing officer, rather than the issuing
officer that issued the search warrant.
Schedule 6 - Amendments relating to bail
Overview
Section 15AA was first inserted into the Crimes Act 1914 (Crimes Act) as
part of the Anti-Terrorism Act 2004 to ensure a consistent approach to bail
proceedings for serious national security offences. The purpose of this
section is to ensure public safety in the case of people charged with these
serious offences and to provide the bail authority with the discretion to
consider whether there are exceptional circumstances to justify granting
bail. The proposed amendments in Schedule 6 will ensure that both the
prosecution and the defendant have a right to appeal the decision to grant
or refuse bail.
Crimes Act 1914
Item 1: After subsection 15AA(3)
Section 15AA of the Crimes Act contains specific provisions relating to
granting bail for persons charged with terrorism and national security
offences. It provides that a person charged or convicted of a serious
security or violent offence (including terrorism) must not be granted bail
except in exceptional circumstances.
Usually with Commonwealth offences, through the application of the
Judiciary Act 1903, the relevant State and Territory law governing bail
proceedings applies in Commonwealth criminal matters. As section 15AA of
the Crimes Act does not currently include an appeal right, the State and
Territory legislation is relied upon to provide appeal rights to the
prosecution or defendant. This can result in confusion and in some cases
there may be no scope to appeal decisions made under section 15AA.
This item will insert a specific right of appeal for both the prosecution
and defendant in section 15AA of the Crimes Act.
Proposed subsection 15AA(3A)
Proposed subsection 15AA(3A) will provide that the prosecution or defendant
may appeal against a decision of a bail authority to either grant, or
refuse to grant, bail to a person charged with or convicted of an offence
covered by existing subsection 15AA(2). This will establish a nationally
consistent right of appeal against bail decisions in relation to the
specified Commonwealth offences, overcoming limitations and inconsistencies
under State and Territory bail laws.
Proposed subsection 15AA(3B)
The proposed appeal right is intended to operate alongside relevant State
and Territory laws, unless these laws are inconsistent. An appeal will be
able to be heard by a court which has jurisdiction to hear appeals or
reviews of decisions or orders generally made by the decision maker in
question, and follow the same procedures that generally apply in relation
to the exercise of that appellate jurisdiction.
Proposed subsection 15AA(3B) will provide that an appeal under subsection
(3A) may be made to a court that would ordinarily have jurisdiction to hear
and determine appeals from directions, orders or judgments of the bail
authority referred to in subsection (3A).
Proposed subsection 15AA(3B) will specify that an appeal under subsection
(3A) is to be made in accordance with the rules and procedures (if any)
applicable under a law of the Commonwealth, a State or a Territory in
relation to the exercise of such jurisdiction.
Proposed subsections 15AA(3C) and (3D)
If a bail authority decides to grant bail, proposed subsection 15AA(3C)
will provide for a stay of the court order. The stay is not automatic. It
will depend on the prosecution formally indicating an intention to appeal
the bail decision immediately after the decision is made.
Proposed subsection 15AA(3D) will provide that the stay will only last
until a decision on the appeal is made, or the prosecution notifies the
court they do not intend to pursue an appeal, or until 72 hours has passed
- whichever is the least period of time.
These proposed provisions are similar to existing State provisions, for
example section 25A of the Bail Act 1978 (NSW) and section 16 of the Bail
Act 1985 (SA). However, not all States and Territories have such
provisions and it is desirable to have a consistent approach, particularly
given that some investigations concern activity that spans state borders.
Items 2 and 3: Subsection 15AA(4) and (note)
These items will amend existing subsection 15AA(4) to make it clear that
proposed new subsections 15AA(3A), (3B), (3C) and (3D) are not intended to
affect state and territory laws, except indirectly through the Judiciary
Act 1903.
Item 4: Application
This item sets out the intended application of the proposed amendments in
this schedule. The amendments will commence the day after the Act receives
Royal Assent, and will apply to any bail proceedings initiated on or after
that commencement day. The amendments will also apply to bail proceedings
which were initiated prior to their commencement, but only to those parts
of the proceeding which occur after that commencement.
Schedule 7 - Listings under the Charter of the United Nations Act 1945
Overview
Part 4 of the Charter of the United Nations Act 1945 (the Charter Act)
gives effect to Australia's obligations under paragraphs 1(c) and (d) of
the United Nations Security Council Resolution 1373 of 28 September 2001.
These paragraphs oblige Australia to:
. freeze, without delay, funds and other financial assets or economic
resources of: persons who commit, or attempt to commit, terrorist acts
or participate in or facilitate the commission of terrorist acts;
entities owned or controlled directly or indirectly by such persons;
and of persons acting on behalf of, or at the direction of, such
persons and entities, including funds derived or generated from
property owned or controlled directly or indirectly by such persons
and associated persons and entities, and
. prohibit its nationals or any persons and entities within its
territory from making any funds, financial assets or economic
resources or financial or other related services available, directly
or indirectly, for the benefit of such persons or entities.
Schedule 7 will amend the Charter Act to implement the Australian
Government's response to recommendation 22(b) of the Parliamentary Joint
Committee on Intelligence and Security Report Review of Security and
Counter-Terrorism Legislation, tabled in Parliament in December 2006 (2006
PJCIS Report) to improve the standard for listing a person, entity, asset
or class of assets. The Schedule will also amend the Charter Act to
provide for the regular review of listings under the Charter Act.
Charter of the United Nations Act 1945
Item 1: Subsections 15(1) and (3) - Improving the standard for listing
under the Charter Act
Under Part 4 of the Charter Act the Minister for Foreign Affairs must list,
by notice in the Gazette, a person or an entity (subsection 15(1)), or may
list an asset or class of assets (subsection 15(3)), if he or she is
satisfied of the 'prescribed matters'. It is an offence for an individual
(subsection 20(1)) or a body corporate (subsection 20(3C)) to use or deal
with a listed asset or with an asset that is owned or controlled by a
listed person or entity, or to allow or facilitate such using or dealing,
without the written authorisation of the Minister for Foreign Affairs. It
is also an offence for an individual (subsection 21(1)) or a body corporate
(subsection 21(2C)) to make an asset available to a listed person or
entity, without the written authorisation of the Minister for Foreign
Affairs.
Item 1 will amend subsections 15(1) and (3) to require that the Minister
for Foreign Affairs list a person, entity, asset or class of assets if he
or she is satisfied 'on reasonable grounds' of the prescribed matters.
This will implement recommendation 22(b) of the 2006 PJCIS Report. It will
also bring Australia into line with the international standard for
terrorist asset freezing established by the Financial Action Task Force
(FATF) in its Special Recommendation III and detailed in the FATF Guidance
Document "International Best Practices - Freezing of Terrorist Assets"
released on 23 June 2009.
Item 2: Proposed new subsection 15A - Duration of listing
This item will insert proposed new section 15A to provide that a listing
under section 15 ceases to have effect on the third anniversary of the day
on which the listing took effect, unless the Minister for Foreign Affairs
has, prior to this date, declared, in writing, that the listing continues
to have effect under proposed subsection 15A(2). A listing that continues
to have effect because the Minister for Foreign Affairs has made a
declaration under proposed subsection 15A(2), will in turn cease to have
effect on the third anniversary of the day of the making of the
declaration, unless the Minister for Foreign Affairs makes a further
declaration, in writing, that the listing continues to have effect.
The Minister for Foreign Affairs will not be able to make a declaration
unless satisfied on reasonable grounds of the prescribed matters for the
original listing. Proposed subsection 15A(5) will provide that a
declaration will not constitute a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act 2003. This provision is
merely declaratory and is included for the avoidance of doubt.
Item 3: Before paragraph 19(3)(a)
This item is a consequential amendment to clarify that nothing in existing
section 19 prevents a listing ceasing to have effect under proposed section
15A.
Item 4: Transitional - listings under section 15 of the Charter Act
This item will provide that, for the purposes only of section 15A, listings
made under subsection 15(1) or (3) and in effect before the commencement of
the amendments will be treated as if they had been made immediately after
that commencement.
Schedule 8 - Amendments relating to the disclosure of national security
information in criminal and civil proceedings
Overview
Schedule 8 will amend the National Security Information (Criminal and Civil
Proceedings) Act 2004 (NSI Act) to improve its practical application and
ensure the appropriate protection and disclosure of national security
information in criminal and civil proceedings.
The proposed amendments fall within the following five general categories:
1. Application of the NSI Act to legal representatives
Several of the proposed amendments seek to clarify the application of the
Act to the defendant's legal representative in criminal proceedings and a
party's legal representative in civil proceedings, including:
. amendments to ensure that the requirement to give notice to the Attorney-
General about the possible disclosure of national security information in
a proceeding applies to a defendant's or party's legal representative,
and
. amendments to clarify the application of the Act to a defendant's or
party's legal representative.
These amendments are necessary to ensure that there is no confusion about
when the defendant's or party's legal representative is subject to the
obligations under the Act. These proposed amendments do not impose further
obligations on defence representatives. The sole purpose of the proposed
amendments is to clarify when certain obligations or requirements apply to
legal representatives.
2. Role of the Attorney-General under the Act
The Attorney-General has a responsibility to protect national security
information during court, tribunal and other proceedings. The proposed
amendments make it clear that the Attorney-General, or representative of
the Attorney-General, has the ability to attend and be heard during federal
criminal or civil proceedings. It is also proposed that the Attorney-
General be able to be a party to consent arrangements made in relation to
the protection of national security material. Permitting the Attorney-
General to be a party to these arrangements ensures the Attorney-General is
involved in the formation of such arrangements and can effectively
represent the interests of the Government in protecting national security.
3. Flexibility and efficiency in the conduct of court proceedings
A number of the proposed amendments seek to clarify court procedures to
ensure processes are flexible and efficient. Some of the proposed
amendments include:
. clarifying that the NSI Act does not exclude or modify the general power
of a court to uphold a claim of public interest immunity, to make an
order under section 93.2 of the Criminal Code Act 1995 (Cth) or to make
other protective orders such as closed hearings and non-publication
orders
. clarifying that pre-trial hearings may be held at any stage of a
proceeding, and that pre-trial hearings may be used to consider issues
relating to the disclosure, protection, storage, handling or destruction
of national security information
. clarifying the application of the NSI Act to proceedings once the NSI Act
has been invoked, and
. defining 'court official' to clarify who can be present as a court
official in closed hearings under sections 29 and 38I of the NSI Act.
4. Facilitate agreements under sections 22 and 38B
Agreements under section 22 and section 38B of the NSI Act as to
arrangements about the disclosure of national security information in the
proceedings assist with progressing court cases efficiently. The proposed
amendments will facilitate better agreement-making by:
. clarifying that the policy intention behind the NSI Act is that, if
possible, it is preferable that parties enter into a section 22
arrangement, compared to the court issuing a certificate
. clarifying who is permitted to enter into a section 22 arrangement,
and
. clarifying that section 22 arrangements not only cover the disclosure
of national security information, but may also cover the protection,
storage, handling and destruction of national security information.
5. Avoid unnecessary procedures
A number of amendments are designed to streamline procedures and minimise
unnecessary processes. Some of the amendments include:
. clarifying that, for the purposes of the NSI Act, re-trials should be
considered to be part of the same proceeding as the trial
. clarifying that once the Attorney-General is aware of a potential
disclosure of national security information, it is not necessary to
provide notice again through other processes, and
. clarifying that it is only necessary to adjourn those parts of the
proceedings which may involve a disclosure of national security
information.
Part 1 - Amendments
National Security Information (Criminal and Civil Proceedings) Act 2004
Item 1: Subsection 6(1)
Item 1 will insert a reference to a defendant's legal representative in
subsection 6(1) to clarify that when a prosecutor gives notice of the
application of the NSI Act to a federal criminal proceeding under
subsection 6(1), the prosecutor must notify the defendant's legal
representative, as well as the defendant themselves and the court.
Currently, subsection 6(1) requires the prosecutor to notify the defendant
and the court that the NSI Act applies to the federal criminal proceeding.
There is no express obligation on the prosecutor to notify the defendant's
legal representative. It is unclear whether the term 'defendant'
implicitly includes the defendant's legal representative. The amendment
will clarify that when a prosecutor gives notice of the application of the
NSI Act to a federal criminal proceeding, the prosecutor must also notify
the defendant's legal representative. Although such notification occurs in
practice, including an express reference to 'legal representative' ensures
that there is no technical impediment to the defendant being adequately put
on notice that the NSI Act applies.
Item 2: Subsection 6(2)
Item 2 will amend subsection 6(2) to provide that the NSI Act applies to
parts of a federal criminal proceeding that occur after notice is given
'whether or not those parts [of the proceeding] began before that time'.
Currently, subsection 6(2) provides that if a prosecutor gives notice that
the NSI Act applies to the proceeding after a proceeding has commenced, the
Act applies only to those parts of the proceeding that occur after the
notice is given. As currently drafted, it is unclear whether the NSI Act
applies to parts of the proceeding which start prior to the notice but
continue after the notice is given.
This item will clarify that where the prosecutor has given notice of the
application of the NSI Act to the proceeding after the proceeding has
begun, the Act applies to parts of the proceeding that occur after the
notice is given, notwithstanding that these parts may have commenced before
the notice was given. For example, if the prosecutor gives notice that the
NSI Act applies to a federal criminal proceeding and that notice is given
when the committal process is underway, the NSI Act will apply to the
remainder of the committal process as well as all other parts of the
federal criminal proceeding which take place after the committal process.
This will ensure that information is protected from disclosure where a
committal may be part-heard.
Item 3: Paragraphs 6A(1)(b) and (2)(b)
This item will amend subsections 6A(1) and (2) by inserting a reference to
'the legal representatives of the parties to the proceeding'. The proposed
amendment mirrors that made to subsection 6(1) (item 1), but will apply in
the context of civil proceedings.
The procedure for invoking the NSI Act in the civil regime requires the
Attorney-General (or, where the Attorney-General is a party to the
proceedings, another appointed Minister) to notify the parties and the
court that the Act applies. The amendment will ensure that the Attorney-
General or his/her appointed Minister is required to give notice to
parties' legal representatives as well as the parties themselves and the
court that the NSI Act applies to the proceeding.
Items 4 and 5: Paragraph 6A(2)(d) and subparagraph 6A(2)(e)(ii)
These items are consequential amendments arising out of the amendments
contained in item 20. These consequential amendments are necessary to
ensure that the powers provided in proposed new Division 1A (inserted by
item 20) and Division 1 of Part 3A of the Act can be exercised, in
accordance with section 6A, by the Minister appointed by the Attorney-
General under subsection 6A(3) where the Attorney-General is a party to a
civil proceeding.
Item 6: Subsection 6A(5)
This item will amend subsection 6A(5) by omitting the words 'take place
after the notice is given' and substituting the words 'occur after the
notice is given (whether or not those parts began before that time)'. The
proposed amendment mirrors that made to subsection 6(2) (item 2), but will
apply in the context of civil proceedings.
As subsection 6A(5) is currently drafted, it is unclear whether the NSI Act
can apply to parts of a civil proceeding which start prior to the notice
but continue after the notice is given.
This item will clarify that where the Attorney-General, or the Minister
appointed by the Attorney-General under subsection 6A(3), gives notice of
the application of the NSI Act to the civil proceeding under subsection
6A(1), the NSI Act applies to those parts of the proceeding that occur
after the notice is given, whether or not those parts began before the
notice was given. For example, if the Attorney-General gives notice that
the NSI Act applies to a civil proceeding and that notice is given during
the discovery phase of the proceeding, the NSI Act will apply to the
remainder of that discovery phase as well as all other parts of the civil
proceeding which take place after the discovery phase.
Item 7: Section 7 (definition of 'court official')
Item 7 will insert a definition of court official into section 7.
The NSI Act does not presently contain a definition of 'court official'.
This has created uncertainty as to which court staff are able to be present
during closed hearings under sections 29 and 38I of the Act.
Paragraph (a) of the proposed definition will apply to individuals employed
or engaged by the court to perform services in the court in relation to a
proceeding, such as a judge's associate, court reporter or an interpreter.
Paragraph (b) of the definition will apply in relation to a federal
criminal proceeding, to an individual who supervises the defendant in
court. This will include, for example, a correction officer who is
required to be present in the court room to supervise and accompany the
defendant. It will also include a medical officer, such as a doctor, who
is required to be in the court room to attend to the medical needs of the
defendant if necessary. Such individuals may not be employed directly by
the court, but their presence is in an official capacity for the purpose of
facilitating federal criminal proceedings.
Persons captured by this definition will be permitted to remain in the
court room during closed court hearings under sections 29 and 38I of the
NSI Act.
Item 8: Section 7 (definition of 'national security information')
Item 8 will insert a new definition of 'national security information' into
section 7 of the NSI Act. There is presently no definition of 'national
security information' in the Act.
Under sections 24, 25, 38D and 38E the prosecutor, defendants and parties
must notify the Attorney-General of any expected disclosure of information
that relates to national security or information the disclosure of which
may affect national security. These sections are proposed to be amended so
that notification will need to be given of an expected disclosure of
'national security information.'
'National security information' will be defined as information that relates
to national security or the disclosure of which may affect national
security. 'National security' is already further defined in section 8 of
the NSI Act to include 'Australia's defence, security, international
relations or law enforcement interests'. 'Security' is defined in section
9 to have the same meaning as in the Australian Security Intelligence
Organisation Act 1979.
The inclusion of the definition will simply provide greater clarity and
streamline the provisions, rather than change the substance of the
notification requirements.
Item 9: Paragraph 13(2)(c)
Item 9 will omit the phrase 'documents and reports of persons intended to
be called by a party to give evidence' from paragraph 13(2)(c) and
substitute it with the phrase 'documents or reports'.
Paragraph 13(2)(c) currently defines a criminal proceeding to include the
discovery, exchange, production, inspection or disclosure of intended
evidence, documents and reports of persons intended to be called by a party
to give evidence. This specific qualification could result in the
definition being interpreted narrowly to only cover discovery procedures
that relate to persons intended to be called by a party to give evidence,
rather than documents, evidence and reports in general. This limits the
breadth of the definition of criminal proceedings.
The proposed amendment will clarify this uncertainty by omitting the phrase
'of persons intended to be called by a party to give evidence' to clarify
that when the NSI Act has been invoked in a federal criminal proceeding,
discovery procedures relate to documents as well as to persons who are
intended to be called by a party to give evidence. The term 'intended
evidence' will continue to cover the disclosure of evidence of an
individual who could be called to give evidence. For example, the
amendment will ensure that subpoenas requesting the production of documents
or appearance of persons to give evidence are captured by the revised
definition under paragraph 13(2)(c).
As currently drafted, it is unclear whether 'documents and reports' forming
part of a federal criminal proceeding are mutually exclusive. Substituting
the phrase 'documents or reports' in proposed paragraph 13(2)(c) will
confirm that documents and reports each constitute separate categories
within the definition of federal criminal proceedings.
Item 10: Section 13
Item 10 will insert subsection 13(3) to clarify that the NSI Act applies to
re-trials and proceedings relating to the re-trial.
Under existing section 13, it is unclear whether a re-trial is considered a
separate federal criminal proceeding from the trial. If the prosecution
gives notice under section 24 that the Act will apply to a trial, there is
uncertainty about whether the prosecution needs to give another notice if
there is a re-trial. Proposed subsection 13(3) will clarify that a re-
trial and proceedings relating to a re-trial are considered, for the
purposes of the Act, to be part of the same federal criminal proceeding as
the trial. Accordingly, where the prosecution gives notice that the NSI
Act will apply to the trial, there will be no requirement for the NSI Act
to be invoked again for the purposes of a re-trial or proceedings relating
to the re-trial.
Item 11: Section 14 (definition of 'federal criminal proceeding')
Item 11 will repeal and replace the definition of 'federal criminal
proceeding' with a definition which excludes reference to 'proceedings
under the Extradition Act 1988.'
Paragraph 14(b) of the current definition includes a reference to 'court
proceedings arising under the Extradition Act 1988'. The terminology which
applies to federal criminal proceedings in the NSI Act can be difficult to
apply to extradition proceedings. For example, the terms 'prosecutor' and
'defendant' are not terms used in proceedings under the Extradition Act
1988.
Any future proceeding under, or in relation to, a matter arising under the
Extradition Act 1988 that involves national security information will be
treated as a civil proceeding for the purposes of the NSI Act.
Item 12: Subsection 15(1)
This item is a consequential amendment arising from item 11. This item
amends the definition of 'defendant' to remove the reference to a 'federal
criminal proceeding mentioned in paragraph 14(b)' - that is, a proceeding
under the Extradition Act 1988 - as a consequence of the proposed repeal of
paragraph 14(b).
Item 13: Paragraph 15A(2)(b)
This item will amend paragraph 15A(2)(b) to omit the phrase 'of persons
intended to be called by a party to give evidence' and substitutes the
phrase 'documents or reports'.
Similar to the proposed amendment to the definition of federal criminal
proceedings under paragraph 13(2)(c) (item 9), paragraph 15A(2)(b)
currently defines a civil proceeding to include the discovery, exchange,
production, inspection or disclosure of intended evidence, documents and
reports of persons intended to be called by a party to give evidence. This
definition could be interpreted narrowly to only cover discovery procedures
that relate to persons intended to be called by a party to give evidence,
rather than documents, evidence and reports in general. This amendment
will ensure that subpoenas or other mechanisms requesting the production of
documents or appearance of persons to give evidence (unaffiliated with
persons intended to be called to give evidence) are captured by the
definition of civil proceeding under paragraph 15A(2)(b). Further, as the
subsection is currently drafted, it is unclear whether 'documents and
reports' forming part of a civil proceeding are mutually exclusive. The
proposed amendments will replace 'and' with 'or' in paragraph 15A(2)(b) to
confirm that documents and reports each constitute separate categories
within the definition of civil proceedings.
These amendments mirror proposed changes to the definition of federal
criminal proceeding (item 9).
Item 14: Subsection 15A(3)
This item will insert a new subsection 15A(3) to clarify the application of
the NSI Act to re-hearings and proceedings relating to the re-hearing.
Proposed subsection 15A(3) will provide that a re-hearing, and proceedings
relating to a re-hearing are considered, for the purposes of the Act, part
of the same civil proceeding as the hearing.
Currently under section 15A, it is unclear whether a re-hearing and
proceedings relating to a re-hearing are considered part of the original
civil proceeding. The proposed addition of subsection 15A(3) will confirm
that, where the Attorney-General gives notice under subsection 6A(1) that
the NSI Act will apply to the proceeding and the proceeding eventuates in a
court ordering the matter be re-heard, the re-hearing and any proceeding
relating to a re-hearing will be considered for the purposes of the NSI Act
to be part of the same proceeding. There will be no requirement for the
NSI Act to be invoked again for the purposes of that re-hearing.
These amendments mirror proposed changes in relation to criminal
proceedings (item 10).
Item 15: Paragraphs 16(aa), (ab), (ac), (ad) and (b)
This item will amend section 16 by repealing paragraphs 16(aa), (ab), (ac),
(ad) and (b) and substituting a new paragraph 16(b).
Section 16 currently provides a list of permitted circumstances when
information can be disclosed. For civil proceedings, the permitted
circumstances differ depending on the category of person. A point of
concern with the current section is that, in relation to civil proceedings,
the definition of permitted circumstances is so wide that it potentially
undermines the protection accorded to national security information by
other provisions of the Act. For example, under existing paragraph 16(ab),
an individual will be permitted to disclose information 'in the course of
their duties'. This may result in an individual being permitted to
disclose information in order to comply with an order for discovery or a
notice to produce.
Proposed subsection 16(b) will give the Attorney-General greater
flexibility to prescribe the circumstances in which national security
information could be disclosed. Proposed subsection 16(b) will clarify
that disclosure of national security information is only permitted as
specified in a certificate or advice issued by the Attorney-General under
sections 26, 28, 38F or 38H.
Item 16: Section 17
This item will amend the definition of 'likely to prejudice national
security' in section 17 by removing the term 'national security
information' and substituting it with the generic term 'information'. This
item is a consequential amendment necessary because of the proposal to
insert a definition of 'national security information' into the NSI Act
under section 7 (item 8).
The amendment will ensure that there is no confusion between information
which is 'likely to prejudice national security' and 'national security
information' as defined in section 7.
Item 17: Subsection 17(2)
This item will insert a new subsection 17(2), which provides for the
definition of 'likely to prejudice national security' to apply to
contravention of requirements under the NSI Act. This amendment is a
consequence of the insertion of proposed new paragraphs 45A(1)(d) and
46FA(1)(d) which make it an offence to contravene the National Security
Information (Criminal and Civil Proceedings) Regulations 2005 (NSI
Regulations) where the contravention is likely to prejudice national
security (items 103 and 107).
As currently drafted, the definition of 'likely to prejudice national
security' in section 17 applies only to disclosures of information and not
to contraventions of the NSI Regulations. This amendment is consequential
to the inclusion of the offence provisions which necessitate application of
the definition of 'likely to prejudice national security'.
The definition of this expression as it applies to contraventions under
sections 45A and 46FA is identical to that which currently applies to
disclosures of national security information, namely, there needs to a real
and not merely a remote possibility that the contravention will prejudice
national security.
Item 18: New subsection 19(1A)
This item will insert a new subsection 19(1A) after subsection 19(1) to
clarify that the court may make any orders as the court considers
appropriate in relation to the disclosure, protection, storage, handling or
destruction of national security information in a federal criminal
proceeding provided such orders are in the interests of national security
and not inconsistent with the provisions of the Act or the Regulations
under the Act.
Section 19 of the Act currently provides that a court retains the power to
control the conduct of a court proceeding. For example, a court retains
the power to stay or dismiss a proceeding and to exclude persons from the
court. The purpose of this provision is to ensure that the court's
discretion is not unduly fettered. As presently drafted, section 19 may be
interpreted to unduly restrain a court from making orders that relate to
national security information that are not specifically provided for in the
Act. Furthermore, lower level courts, such as the Magistrates Court, do
not have inherent powers which allow them to make general orders relating
to the protection of national security information. The proposed amendment
will clarify that the powers of the court are not limited to those provided
for by the Act.
Proposed subsection 19(1A) will provide that where a court is satisfied
that it is in the interest of national security to make additional orders
and those orders will not be inconsistent with the provisions of the NSI
Act or Regulations made under the NSI Act, the court may make such orders
as the court considers appropriate in relation to the disclosure,
protection, storage, handling or destruction of national security
information in a federal criminal proceeding. The proposed amendment will
also enable such orders to be made by the lower courts. For example,
during a committal hearing in a Magistrates Court, a magistrate may order
that, in order to protect the identity of a witness because the identity of
the witness is national security information, the witness may appear behind
a screen.
This proposed amendment will reinforce a court's ability to control the
conduct of a federal criminal proceeding under subsection 19(1) of the NSI
Act.
Item 19: New subsection 19(3A)
Similarly to proposed subsection 19(1A) (item 18), this item will insert a
new subsection 19(3A) after subsection 19(3). The proposed new subsection
will ensure that where a court is satisfied that it is in the interest of
national security to make additional orders and those orders will not be
inconsistent with the provisions of the NSI Act or Regulations made under
the NSI Act, the court may make such orders as the court considers
appropriate in relation to the disclosure, protection, storage, handling or
destruction of national security information in a civil proceeding.
The ability of the court to make these orders is in addition to any other
power provided to the court under other provisions of the NSI Act. This
amendment will confirm a court's ability to control the conduct of the
civil proceeding under subsection 19(3) of the Act.
Item 20: Divisions 1A and 1B
This item will insert Divisions 1A and 1B into Part 3 of the NSI Act.
Proposed new sections 20A and 20B will be inserted by this item under new
Divisions 1A and 1B respectively.
Proposed section 20A
Currently, there is limited scope for intervention by the Attorney-General
in federal criminal proceedings. Under section 30 of the NSI Act, the
Attorney-General may only intervene in federal criminal proceedings when
closed hearing requirements apply. Furthermore, a representative of the
Attorney-General is not permitted to intervene.
Proposed section 20A will provide for the Attorney-General, the Attorney-
General's legal representative and any other representative of the Attorney-
General (such as an officer from the Department or a law enforcement or
intelligence and security agency who is responsible for the information) to
attend and be heard at any stage of a federal criminal proceeding where an
issue relating to disclosure, protection, storage, handling or destruction
of national security information in the proceeding arises.
Section 20A will replace the existing, more limited scope for intervention
by the Attorney-General in closed court hearings under section 30 which
will be repealed by item 50.
Proposed section 20B
Currently under the NSI Act, if an issue relating to the disclosure,
protection, storage, handling or destruction of national security
information is raised, the only mechanism
to protect the information, while dealing with the issue, is through a
closed hearing under section 30. The requirement to hold a closed hearing
whenever there is an issue relating to the treatment of national security
information arises, can result in unnecessary delays in the proceeding.
The higher courts have inherent powers to make general orders relating to
national security information and are therefore not required to utilise the
closed hearing provisions of the Act. However, the lower courts, operating
without such inherent powers, are required to use the closed hearing
requirements without the ability to moderate these requirements using their
inherent jurisdiction.
Proposed section 20B will require the court in a federal criminal
proceeding to consider, before hearing an issue relating to the disclosure,
protection, storage, handling or destruction of national security
information in the proceeding, making an order under section 93.2 of the
Criminal Code for the hearing to be heard in camera or another appropriate
order to protect national security information under proposed new
subsection 19(1A) (item 18). Under section 93.2 of the Criminal Code, a
person presiding over the court may make orders, if satisfied they are in
the interest of the security or defence of the Commonwealth, to do any or
all of the following: exclude members of the public, place restrictions on
reporting of proceedings and place restrictions on access to physical
evidence.
This requirement will not apply if the issue is the subject of an order
that is in force under section 22. In those circumstances, protections
agreed as sufficient by the parties and the court will already be in place.
Item 21: Subsection 21(1)
This item will repeal existing subsection 21(1), substitute a new
subsection 21(1) and insert a new subsection 21(1A) after subsection 21(1).
Section 21 of the NSI Act currently gives parties the option to engage in a
pre-trial conference to consider issues relating to national security
information. Conferences can only occur before the trial in a federal
criminal proceeding commences. However, at any time during a federal
criminal proceeding, the prosecutor and defendant may agree to an
arrangement about the disclosure of national security information in the
proceeding. Accordingly, it makes sense to be able to hold a hearing to
consider issues relating to the making of these arrangements at any point
of the proceeding.
Proposed subsection 21(1) will clarify that at any stage of a federal
criminal proceeding a hearing may be held to consider issues relating to
disclosure, protection, storage, handling and destruction of national
security information. For example, a hearing may be held to consider
disclosure which is expected to occur during discovery, interrogatories,
committal hearing or during the trial. Such hearings will be conducted in
a way which is similar to a directions hearing in a proceeding. Proposed
paragraph 21(1)(b) will acknowledge that these hearings can be held in
closed court if it is likely that national security information will be
disclosed.
The use of the term 'pre-trial conference' in existing section 21 implies
that such discussions are restricted to the pre-trial phase of the
proceedings. Consistent with the intent of proposed subsection 21(1), this
phrase will be replaced with the phrase 'national security hearing' for the
purposes of section 21 to clarify that such hearings will no longer be
limited to being held at the pre-trial phase.
Another limitation with existing section 21 is that the Attorney-General is
unable to apply to the court to hold a hearing. He or she also is not
required to be notified when either the prosecutor or defendant applies to
the court to hold a hearing. This fails to recognise the Attorney-
General's role in protecting national security information in accordance
with the Act.
Proposed subsection 21(1A) will clarify the obligation imposed on an
applicant for a hearing under this section to notify all other relevant
parties. The Attorney-General, the Attorney-General's legal
representative, the prosecutor, the defendant or the defendant's legal
representative will be able to apply to the court to hold a hearing.
Proposed subsection 21(1A) will also outline that the applicant must give
notice to all parties involved (including the Attorney-General where the
applicant is the prosecutor or the defendant) in the proceeding that such
an application has been made.
Furthermore, conferences are presently limited to a consideration of issues
associated with the disclosure of national security information. Confining
the subject matter of the conference to issues relating to disclosure does
not aptly recognise the broader range of issues that may arise in relation
to national security information during a proceeding.
Proposed subsection 21(1A) will also clarify that a hearing may be held not
only to consider disclosure, in the proceeding, of national security
information, but also its protection, storage, handling or destruction.
Item 22: Subsection 21(2)
This item is a consequential amendment which is necessary because of the
amendments made in item 21. This item will ensure consistency of language
between all subsections of section 21.
Item 23: Subsection 22(1)
This item will repeal subsection 22(1) and substitute a new subsection
22(1).
Section 22 currently allows parties, during a federal criminal proceeding,
to enter into an arrangement about any disclosure of information that
relates to national security or that may affect national security.
Presently, neither a defendant's legal representative nor the Attorney-
General are specified as being able to enter a section 22 arrangement. The
proposed amendment will provide that the Attorney-General may be a party to
a section 22 arrangement in a federal criminal proceeding, thereby ensuring
that the Attorney-General will be able to fulfil his or her responsibility
for the protection of national security information in accordance with the
Act. The substituted provision will also clarify that a defendant's legal
representative, on behalf of a defendant, can also be a party to such
consensual arrangements.
Scope of arrangements
The proposed amendment will also ensure that an arrangement under section
22 may cover not only the disclosure of national security information, but
also the protection, storage, handling and destruction of national security
information. This proposed amendment will recognise the broader range of
issues that may arise in relation to national security information during a
proceeding. The heading to section 22 will also be altered to reflect this
expansion.
Item 24: Paragraph 23(1)(a)
This item will amend paragraph 23(1)(a) to ensure that the regulations made
under subsection 23(1) of the NSI Act can be made in relation to the
storage, handling or destruction of national security information which is
disclosed, not only in the court, but also to relevant parties outside the
court.
Paragraph 23(1)(a) of the NSI Act currently enables the Regulations to
prescribe how to access, prepare, store, handle or destroy 'information'
that is disclosed during proceedings. The regulation-making power is
currently too broad, covering all information. The proposed amendment will
appropriately limit the regulation-making power to 'national security
information'.
The regulation-making power currently only covers information which is to
be disclosed to the court. Accordingly, it does not account for
information that may be disclosed outside the court. The proposed
amendment will extend the regulation-making power to allow for the
protection of all national security information arising in a proceeding,
not just that which is to be disclosed to the court. This will ensure that
where disclosure is or will be made to the defendant's legal representative
or relevant parties out of court, the Regulations can prescribe ways in
which that national security information should be handled, stored and
destroyed by the defendant's legal representative. In this way, national
security information is afforded consistent protection notwithstanding the
forum in which it is disclosed.
The heading to section 23 will be altered to reflect the extension of the
regulation power to all national security information and not just certain
information which is or is to be disclosed to the court.
Item 25: Subsections 23(2) and 23(3)
This item will repeal subsections 23(2) and (3) and substitute a new
subsection 23(2). Existing subsection (2) will be repealed in light of
proposed new subsection 19(1A) (item 18) which will make it clear that the
court retains discretion during a federal criminal proceeding to make
appropriate orders in the interests of national security relating to the
disclosure, protection, storage, handling and destruction of national
security information. Existing subsection (3) will be repealed as a
consequence of the insertion of proposed paragraph 19(1A)(b) (item 18).
Proposed subsection 23(2) will clarify that the Regulations made pursuant
to section 23 do not apply to information that is subject to an order that
is in force under a section 22 arrangement. The policy intention behind the
Act is that, if possible, it is preferable that the parties agree to an
arrangement under section 22. Arriving at an arrangement assists with
ensuring court cases progress efficiently. Therefore, throughout the Act
it is the aim that the provisions support the formation of section 22
arrangements.
Item 26: Subsection 24(1)
This item will amend section 24 by repealing subsection 24(1) (including
the note), substituting a new subsection 24(1), and inserting a new
subsection 24(1A).
Currently under the NSI Act, if the prosecutor or defendant knows or
believes that national security information will be disclosed during a
proceeding, he or she must notify the Attorney-General and advise the
court, the other party and any relevant witness that the Attorney-General
has been notified. Notice must also be given if the prosecutor or
defendant knows or believes that a person whom he or she intends to call as
a witness in a federal criminal proceeding will disclose national security
information in giving evidence or by that person's mere presence national
security information will be disclosed. For example, notice must be given
where an officer of an intelligence or security agency is to be called as a
witness in a proceeding and not only will that officer be giving evidence
about that agency's operations but the officer's identity itself is
national security information. These notice requirements are important as
they trigger the Attorney-General's consideration of whether to issue a
criminal non-disclosure or witness exclusion certification under sections
26 and 28 of the Act.
Proposed subsection 24(1) will clarify that the obligation to notify the
Attorney-General of a prospective disclosure of national security
information is imposed not only on the prosecutor and defendant in federal
criminal proceedings, but also on the defendant's legal representative.
Further, existing subsection 24(1) does not impose notice obligations in
respect of subpoenas which may cause national security information to be
disclosed. Proposed paragraph 24(1)(c) will provide that notification
obligations placed on the prosecutor, defendant or defendant's legal
representative in federal criminal proceedings include where that person
has applied to the court for a subpoena and the issuing of that subpoena
will require a third party to disclose national security information in a
criminal proceeding. For example, if a security or intelligence agency is
subpoenaed for documents by the defendant's legal representative, where
that defendant's legal representative knows or believes that those
documents contain national security information, the legal representative
must notify the Attorney-General of that knowledge or belief in accordance
with subsection 24(1).
Proposed subsection 24(1) will also clarify that the type of information to
which the disclosure obligations relate is 'national security information'
as defined in section 7 (item 8). The revised section title will confirm
that the notification obligations are not restricted to the prosecutor and
defendant, but rather also extend to the defendant's legal representative.
Note 1 to proposed subsection 24(1) will provide that a failure to give
notice as required under subsection 24(1) is an offence under section 42 of
the Act. The offence is punishable by up to 2 years imprisonment.
Proposed subsection 24(1A)
Existing subsection 24(1) specifies when notice of a prospective disclosure
of national security information is necessary, but does not specify when
such notification is unnecessary.
Proposed subsection 24(1A) will set out the circumstances when it is not
necessary to give notice to the Attorney-General. Generally, these
circumstances are where the Attorney-General has become aware of any
potential disclosure of national security information through other
mechanisms in the Act. For example, where particular national security
information is the subject of court orders made under section 22, it will
not be necessary to comply with the notification requirements under
subsection 24(1) in relation to that information. Notification is not
required because, once section 22 orders are created, it is not necessary
for the Attorney-General to issue a criminal non-disclosure or witness
exclusion certification. However, if the orders under section 22 were
varied or terminated or if a legal representative wishes to ask a question
of a witness, knowing that the answer will disclose national security
information not covered by the section 22 orders, notice would need to be
given in compliance with section 24.
This proposed amendment will ensure that parties in a proceeding are not
unnecessarily required to comply with multiple disclosure procedures that
may delay the proceedings, while still guaranteeing adequate protection for
national security information.
Item 27: Subsections 24(3) and (4)
This item will repeal existing subsections 24(3) and (4) of the Act and
substitute new subsections 24(3), (4) and (5).
Proposed new subsection 24(3) will require the person who gives notice of a
potential disclosure under subsection 24(1) to advise all other relevant
parties that notice has been given to the Attorney-General. In cases where
the defendant's legal representative or the defendant gives notice, there
is no legislative requirement to advise each other of the notice. It is
assumed that this will occur in the normal course of lawyer/client
communications.
Existing subsection 24(3) currently requires that this advice must be
provided in writing and must include a description of the information. This
provision may potentially compel the defence to disclose aspects of their
defence. Proposed subsection 24(4) will exclude a defendant or the
defendant's legal representative from the requirement to include a
description of the information in the advice to the prosecutor. This will
ensure that, to the extent possible, the defendant and the defendant's
legal representative are not unnecessarily required to disclose aspects of
their defence contrary to normal practice in the conduct of criminal
prosecutions.
Once notice has been given to the Attorney-General, subsection 24(4)
currently requires the court to adjourn the proceeding. Having to adjourn
the whole proceeding can cause unnecessary delays. Proposed subsection
24(5) will ensure that the court must only adjourn so much of the
proceeding as is necessary to ensure that the information is not disclosed,
i.e. that part of the proceeding which relates to the national security
information which is the subject of the notice to the Attorney-General.
This will ensure that there is no unnecessary delay in a federal criminal
proceeding as a result of the protection of national security information
through the procedures of the Act.
Item 28: Paragraph 25(1)(b)
This item will amend subsection 25(1) by repealing and substituting
paragraph 25(1)(b). This proposed amendment will clarify that the
obligation set out in section 25 is borne not only by the prosecutor and
defendant, but also the defendant's legal representative.
Paragraph 25(1)(b) will also be amended by this item as a consequence of
the proposal to define national security information in item 8.
Item 29: Subsection 25(2)
This item will clarify that the obligation to notify the court of the
knowledge or belief that a witness will disclose national security
information set out in subsection 25(2) is borne not only by the prosecutor
and the defendant, but also by the defendant's legal representative.
Item 30: New subsection 25(2A)
This item will amend section 25 by inserting a new subsection 25(2A).
Section 25 currently requires that, if a witness is asked a question in the
course of giving evidence and the prosecutor or the defendant knows or
believes that the witness's answer may disclose national security
information, the prosecutor or the defendant must advise the court.
In the interests of minimising delays associated with multiple disclosure
procedures, proposed subsection 25(2A) will set out circumstances where the
requirement to provide notice of the knowledge or belief of the disclosure
of national security information under subsections 25(1) and (2) does not
apply.
This amendment will confirm that the intention of the notification
provisions under the Act is to ensure the Attorney-General is aware of any
potential disclosure of national security information. Where the Attorney-
General has become aware of any potential disclosure of national security
information under other mechanisms in the Act, notice is not required to be
given. This amendment will clarify that parties in a proceeding do not
need to comply with multiple procedures unnecessarily and proceedings are
not unduly delayed through the operation of the Act.
Item 31: Subsections 25(3) to (7)
This item will amend section 25 by repealing subsections 25(3) to (7) and
substituting new subsections.
Subsections 25(3) to (7) currently set out stringent procedures for
protecting national security information in cases where a witness is
expected to disclose such information. After the court has been advised of
a prospective disclosure, the proceedings must be adjourned and a closed
court hearing held. During the course of the closed hearing, the witness
must provide a written answer to the court which must, in turn, show the
answer to the prosecutor. If the prosecutor knows or believes that the
answer discloses national security information, the court must be advised
and the Attorney-General notified, at which point the Court must again
adjourn the proceedings until the Attorney-General determines whether a
certificate should be issued. This process has the propensity to result in
unnecessary delays associated with compounded adjournments.
Proposed subsections 25(3), (4) and (5) are designed to streamline the
procedure which is required to be followed where a witness's testimony may
disclose national security information. The automatic requirement for a
closed hearing to be held will be removed, thereby limiting delays
associated with invoking closed hearing requirements. Instead, the witness
will be required to provide a written answer to the court, which the court
in turn shows to the prosecutor and, if present, the Attorney-General or
the Attorney-General's representative. An obligation will then be placed
on the Attorney-General's representative, if present, to advise the
prosecutor if they believe the answer would disclose national security
information should it be given in evidence. If the Attorney-General's
representative is not present, the prosecutor would make the assessment in
relation to national security information in the witness's answer.
Proposed subsection 25(6) will mirror the disclosure requirements contained
in existing subsection 25(6) but reflect the insertion of the new
definition of 'national security information' by item 8.
Proposed subsection 25(7) will clarify that the obligations imposed on the
prosecutor by subsection 25(6) do not apply where the national security
information is:
. already the subject of a criminal non-disclosure certificate issued by
the Attorney-General,
. the subject of court orders (and an arrangement between the parties)
under section 22, or
. the subject of court orders under section 31.
This amendment will ensure that parties in a proceeding do not need to
comply with multiple procedures unnecessarily and proceedings are not
unduly delayed through the operation of the Act.
While it may still be necessary to adjourn proceedings following advice
from the prosecutor and notification to the Attorney-General of a potential
disclosure of national security information, proposed subsection 25(8) will
provide that a court will only be required to adjourn as much of the
proceeding as may involve a disclosure of national security information.
Those parts of the proceeding unaffected by the disclosure may continue in
the normal course. The ability to limit the scope of the adjournment will
assist in countering undue delays.
Items 32 and 33: Subparagraphs 26(1)(a)(i) and (ii)
These items are consequential amendments resulting from item 26 which
clarifies that the obligation under section 24 to notify the Attorney-
General of the potential disclosure of national security information is
also borne by the defendant's legal representative.
Item 34: Subparagraph 26(1)(a)(iii)
This item is a consequential amendment resulting from item 31 which
reflects the process whereby the prosecutor notifies the Attorney-General
of the potential disclosure of national security information under proposed
subsection 25(6) after making an assessment of the witness's answer or
being advised by the Attorney-General's representative under proposed
subsections 25(4) and (5).
Item 35: Subsection 26(8)
This item will amend section 26 by repealing subsection 26(8) and
substituting a new subsection 26(8).
Subsection 26(8) currently specifies persons who may be 'potential
disclosers' of information in a proceeding. However, it does not account
for the possibility of the defendant's legal representative being a
potential discloser.
Proposed subsection 26(8) will clarify that the defendant's legal
representative, along with the defendant and prosecutor will, in all
instances, be classified as a potential discloser of the information.
Items 36 and 37: Subsections 27(1), (2) and (3)
These items will repeal and replace subsections 27(1) and (2) and partially
repeal and replace subsection 27(3).
These amendments are consequential to the proposed repeal and replacement
of the definition of 'federal criminal proceedings' within section 14 (Item
11).
Item 38: Paragraph 27(3)(b)
This item is a consequential amendment to paragraph 27(3)(b) as a result of
the renumbering of the subsections in section 24 (item 27) and section 25
(item 31).
Items 39 and 40: Subparagraphs 28(1)(a)(i) and (ii)
These items are consequential amendments arising out of item 26, which
clarifies that the notification obligations under section 24 are also borne
by the defendant's legal representative.
Items 41 and 44: Subsections 28(2), 28(9) and 28(10)
These items will insert amendments to cover the defendant's legal
representative, consistent with other proposed amendments.
Items 42 and 43: Subsections 28(5) and 28(6)
These items make consequential amendments to subsection 28(5) and repeal
subsection 28(6) as a result of removing extradition proceedings from the
definition of a federal criminal proceeding (item 11).
Item 45: Subsection 29(1)
This is a consequential amendment to subsection 29(1) reflecting that a
closed court hearing will no longer be provided for under subsection 25(3)
(item 31).
Item 46: Paragraph 29(2)(f)
This item will amend subsection 29(2) by repealing paragraph 29(2)(f) and
substituting a new paragraph 29(2)(f).
Currently, the Attorney-General and his or her legal representative may be
present at a closed hearing in a federal criminal proceeding if the
Attorney-General has intervened in the proceedings under section 30.
Proposed substituted paragraph 29(2)(f) will clarify that any other
representative of the Attorney-General, in addition to the Attorney-General
and the Attorney-General's legal representative, may also be present. This
will allow, for example, officers of the relevant law enforcement, security
or intelligence agencies or Attorney-General's Department to be present in
order to assist the Attorney-General fulfil his or her role of protecting
national security information. This amendment will complement the proposed
section 20A (item 20), which will create a broader power for the Attorney-
General, the Attorney-General's legal representative and any other
representative to attend and be heard at any stage of a federal criminal
proceeding.
Items 47 and 48: Subparagraph 29(5)(c)(iii) and subsection 29(6)
These items are consequential amendments to subparagraph 29(5)(c)(iii) and
subsection 29(6) to remove the reference to section 30. These
consequential amendments are necessary as item 50 proposes to repeal
section 30.
Item 49: Subsection 29(7)
This item is a consequential amendment resulting from the insertion of the
definition of 'national security information' (item 8).
Item 50: Section 30
This item will repeal section 30 of the NSI Act.
Section 30 currently allows the Attorney-General to intervene in a federal
criminal proceeding where closed court hearing requirements apply.
Section 30 is no longer necessary as proposed section 20A, inserted by item
20, will provide for the Attorney-General, the Attorney-General's legal
representative and any other representative of the Attorney-General, to be
present and to be heard at a federal criminal proceeding in relation to the
disclosure, protection, storage, handling and destruction of national
security information.
Item 51: Paragraphs 31(6)(a) and (b)
This item will amend paragraphs 31(6)(a) and (b) in order to clarify that a
court may make orders under subsection 31(6) that apply to a defendant's
legal representative as well as to the defendant.
Subsection 31(6) currently gives the court the power to order, after
holding a witness exclusion certificate hearing, that the prosecutor or
defendant may or must not call the person as a witness. However, it is
unclear whether the court is empowered to extend such orders to the
defendant's legal representative. The proposed amendment will clarify that
the court can do so.
Items 52 and 53: Paragraph 32(1)(e) and subsection 32(2)
These items are consequential amendments to paragraph 32(1)(e) and
subsection 32(2) to remove the reference to section 30. These
consequential amendments are necessary as item 50 proposes to repeal
section 30.
Item 54: Subsection 32(2)
This item is a consequential amendment which is necessary because of the
insertion of the proposed definition of 'national security information'
(item 8).
Item 55: Subsection 37(1)
This item is a consequential amendment to subsection 37(1) to remove the
reference to 'intervention' under section 30 which is proposed to be
repealed by item 50.
Item 56: Divisions 1A and 1B
This item will insert new Divisions 1A and 1B into Part 3A of the NSI Act.
Proposed sections 38AA and 38AB will be inserted by this item under new
Divisions 1A and 1B respectively.
Part 3A of the NSI Act, which will incorporate the proposed Divisions 1A
and 1B, currently sets out a regime for civil proceedings similar to that
which applies to federal criminal proceedings. The proposed amendments
under this item are similar to those in item 20 for the criminal regime.
Proposed section 38AA
Proposed section 38AA will provide for the Attorney-General, the Attorney-
General's legal representative and any other representative of the Attorney-
General (such as an officer from the Department or a law enforcement or
intelligence and security agency who is responsible for the information) to
attend and be heard at any stage of a civil proceeding where an issue
relating to disclosure, protection, storage, handling or destruction of
national security information in the proceeding arises.
Proposed subsection 38AA will replace the existing, more limited scope for
intervention by the Attorney-General in closed court hearings under section
38K (proposed to be repealed by item 83).
Proposed section 38AB
Consistent with proposed section 20B for criminal proceedings (item 20),
proposed section 38AB will require the court in a civil proceeding to
consider, before hearing an issue relating to the disclosure, protection,
storage, handling or destruction of national security information in the
proceeding, making an order under section 93.2 of the Criminal Code for the
hearing to be held in camera or another appropriate order to protect
national security information under proposed new subsection 19(3A)
(proposed to be inserted by item 19). Under section 93.2 of the Criminal
Code, a person presiding over the court may make orders, if satisfied they
are in the interest of the security or defence of the Commonwealth, to do
any or all of the following: exclude members of the public, place
restrictions on reporting of proceedings and place restrictions on access
to physical evidence.
This requirement will not apply if the issue is the subject of an order
that is in force under section 38B (that is, a consensual disclosure
arrangement akin to a section 22 order in federal criminal proceedings).
In those circumstances, protections agreed as sufficient by the parties and
the court will already be in place.
Item 57: Subsections 38A(1), (2) and (3)
This item will repeal existing subsections 38A(1), (2) and (3) and insert
new subsections 38A(1) and (2). It will make amendments similar to those
for criminal proceedings in section 21 (item 21).
Section 38A currently provides for parties in civil proceedings to hold
conferences before the substantive hearing to consider issues relating to
the disclosure of national security information. These conferences are
designed to facilitate the formation of section 38B agreements between the
parties regarding the protection of national security information during
the course of the proceeding.
Proposed subsection 38A(1) will clarify the availability of section 38A
hearings at any stage of a civil proceeding, not only prior to the
substantive proceeding. It will also provide that hearings may be
conducted to consider issues relating not only to disclosure of national
security information but also to the protection, storage, handling and
destruction of such information.
Proposed subsection 38A(1) will also provide that the Attorney-General or
the Attorney-General's legal representative may apply to the court to hold
a section 38A hearing. The proposed subsection will also clarify that the
parties' legal representatives, as well as the parties themselves, may
apply to the court for a section 38A hearing.
Subsection 38A(2) currently specifies that if the Attorney-General is not
party to the proceeding, there is an obligation on the party who applies
for the conference to notify the Attorney-General of the conference.
Proposed new subsection 38A(2) will extend this obligation by requiring an
applicant to notify all relevant parties that an application has been made.
Subsection 38A(3) will be repealed by this item as items 4 and 5 propose to
amend section 6A of the NSI Act to make it clear that references to the
Attorney-General are to be read as references to the Minister appointed by
the Attorney-General under subsection 6A(3), where the Attorney-General is
a party to a civil proceeding and where the NSI Act has been invoked.
Item 58: Subsection 38A(4)
This item is an amendment consequential to the amendments made by item 57
and will ensure consistency of language between all subsections of section
38A.
This amendment reflects similar changes in terminology in the federal
criminal proceeding context in proposed subsections 21(1) and (2) inserted
by items 21 and 22.
Item 59: Subsection 38B(1)
This item will repeal and replace existing subsection 38B(1). It is
consistent with the proposed amendment to section 22 in the criminal
context (item 23). Proposed subsection 38B(1) will include a reference to
legal representatives and clarify that they can also be part of a
consensual section 38B arrangement. It will also clarify that arrangements
between the parties and the subsequent court orders giving effect to those
arrangements may cover not only the disclosure of national security
information, but also the protection, storage, handling and destruction of
that information. This item will also revise the heading to subsection 38B
to reflect the insertion of a new definition of 'national security
information' (item 8).
Item 60: Paragraph 38C(1)(a)
This item will amend paragraph 38C(1)(a) by omitting reference to
'information that is disclosed, or to be disclosed, to the court' and
substituting it with 'national security information that is disclosed, or
to be disclosed'. The proposed amendment is consistent with that proposed
for section 23 in the criminal context (item 24).
Paragraph 38C(1)(a) currently enables the regulations to prescribe how to
protect, store, handle and destroy 'information'. This could extend to all
information that may be disclosed (without reference to its national
security status). It is also limited to information which is to be
disclosed to the court.
The proposed amendments will extend this regulation-making power to allow
for the protection of all national security information arising in a
proceeding, not just that which is to be disclosed to the court.
Item 61: Subsections 38C(2) and (3)
This item will amend section 38C by repealing subsections 38C(2) and (3)
and substituting a proposed new subsection 38C(2).
Existing subsection 38C(2) will be repealed in light of proposed new
subsection 19(3A) (item 19) which will make it clear that the court retains
discretion during a civil proceeding to make appropriate orders in the
interests of national security relating to the disclosure, protection,
storage, handling and destruction of national security information.
Proposed subsection 38C(2) will clarify that the Regulations do not apply
to information that is subject to an order that is in force under a section
38B arrangement. This is consistent with the policy intention of the NSI
Act that, if possible, it is preferable that the parties agree to an
arrangement under section 38B. Entry into consensual arrangements for the
handling of national security information assists in ensuring proceedings
are progressed efficiently.
Item 62: Subsection 38D(1)
This item will repeal subsection 38D(1) and substitute a new proposed
subsection 38D(1). The proposed new provision will clarify the notice
obligations under section 38D in a similar way to the proposed amendments
to section 24 in the criminal context (item 26).
Proposed subsection 38D(1) will clarify that the obligation to notify the
Attorney-General of a prospective disclosure of national security
information is imposed not only on parties to a civil proceeding, but also
on their legal representatives. It will also clarify that the information,
the subject of the notification obligation, is national security
information.
In a similar way to the proposed amendments to section 24 (item 26),
proposed paragraph 38D(1)(c) will provide that the notification obligations
placed on parties and parties' legal representatives in a civil proceeding
extend to any potential disclosure of national security information
resulting from their application to a court of a subpoena or other order
which requires a person to produce a document or disclose national security
information in the proceeding. For example, if a security or intelligence
agency is subpoenaed for documents by the party's legal representative,
where that party's legal representative knows or believes that those
documents contain national security information, the party's legal
representative must notify the Attorney-General of that knowledge or belief
in accordance with subsection 38D(1).
Note 1 to proposed subsection 38D(1) will provide that a failure to give
notice as required under subsection 38D(1) is an offence under section 46C
of the Act. The offence is punishable by up to 2 years imprisonment.
Item 63: Subsection 38D(2)
This item is a consequential amendment to subsection 38D(2) arising out of
the proposed amendment to subsection 38D(1) to provide that the obligations
under that subsection are imposed not only on parties to a civil
proceeding, but also on their legal representatives (item 62). This
substitution will clarify that neither a party nor their legal
representative would need to give notice under subsection 38D(1) in the
circumstances listed in subsection 38D(2).
Items 64 to 66: Subsection 38D(2)
These items will make amendments to clarify the circumstances where a party
or a party's legal representative is not required to give notice under
subsection 38D(1). Generally, these circumstances are where the Attorney-
General has become aware of any potential disclosure of national security
information through other mechanisms in the Act.
Following the proposed amendments to subsection 38D(2) as provided by these
items, a party or a party's legal representative will not be required to
give notice about the information to be disclosed if:
. another person has already given notice about the information,
. the information is the subject of a certificate given to the parties
or their legal representatives under section 38F or 38H,
. the information is the subject of arrangements between the parties and
court orders under section 38B or 38L, or
. the Attorney-General has provided advice about the information under
subsection 38F(7) or 38H(9).
These proposed amendments will ensure that parties in a proceeding are not
unnecessarily required to comply with multiple disclosure procedures that
may delay the proceedings.
Item 67: Subsections 38D(4) and (5)
This item will repeal existing subsections 38D(4) and (5) and insert new
subsections 38D(4) and (5).
Proposed new subsection 38D(4) will require the person who gives notice of
a potential disclosure under subsection 38D(1) to advise all other relevant
parties, and their legal representatives, that notice has been given to the
Attorney-General.
Once notice has been given to the Attorney-General, subsection 38D(5)
currently requires the court to adjourn the whole proceeding (as opposed to
the relevant part). Proposed new subsection 38D(5) will ensure that the
court must only adjourn so much of the proceeding as is necessary to ensure
that the information is not disclosed; i.e. that part of the proceeding
which relates to the national security information which is the subject of
the notice to the Attorney-General. This will ensure that those parts of
the proceeding that do not relate to the national security information in
question can continue, thereby avoiding any unnecessary delay.
Proposed new subsection 38D(5) will also clarify that the adjournment of
proceedings continues until the Attorney-General issues a civil non-
disclosure certificate in accordance with subsection 38F(5), issues a civil
witness exclusion certificate in accordance with subsection 38H(4) or
provides advice to the court in accordance with subsections 38F(7) or
38H(9).
Items 68 and 69: Subparagraph 38E(1)(b) and subsection 38E(2)
These items repeal and replace paragraph 38E(1)(b) and amend subsection
38E(2).
The proposed amendments will clarify that the obligation to notify the
court of the knowledge or belief that a witness will disclose national
security information is borne not only by the party but also by the party's
legal representative.
Item 70: Subsection 38E(2A)
This item will insert a proposed new subsection 38E(2A). The proposed
subsection will provide that a person need not advise the court that a
witness's answer may involve potential disclosure of national security
information, in accordance with subsection 38E(2), when:
. another person has already notified the court,
. the Attorney-General has been notified subsection 38D(1),
. the information is the subject of a civil non-disclosure certificate
under section 38F or the subject of an arrangement given effect by
order of the court under section 38B,
. the information is the subject of other court orders under section
38L, or
. the information has been the subject of advice from the Attorney-
General under subsection 38F(7).
The proposed amendments will clarify that the intention of notification
provisions is to ensure the Attorney-General is aware of any potential
disclosure of national security information. Where the Attorney-General
has become aware of any potential disclosure of national security
information under other mechanisms in the Act, notice is not required to be
given. This ensures that parties in a proceeding do not need to comply
with multiple disclosure procedures unnecessarily and proceedings are not
unduly delayed through the operation of the Act.
Items 71 to 73: Subsection 38E(4), 38E(5) and 38E(6)
These items will make amendments to clarify that although the court is
required to adjourn the proceedings under subsections 38E(4), (5) and (6)
to allow the Attorney-General to consider the written answer of a witness,
a court is to adjourn only so much of the proceeding that may involve the
disclosure of national security information which is the subject of the
notice under section 38E. These proposed amendments will ensure that even
if the court considers that an adjournment is required, those parts of the
proceeding that do not relate to the written answer in question can
continue, thereby avoiding any undue delays.
Items 74 and 75: Subparagraphs 38F(1)(a)(i) and (ii)
These items are consequential amendments to subparagraphs 38F(1)(a)(i) and
(ii) as a result of proposed amendments to section 38D which will extend
the notification obligations to parties' legal representatives as well as
to the parties themselves (item 67).
Item 76: Subsection 38F(9) (new definition of 'potential discloser')
This item will amend section 38F by repealing subsection 38F(9) and
substituting proposed new subsection 38F(9).
The definition of 'potential discloser' in existing subsection 38F(9) does
not cover parties' legal representatives being potential disclosers.
The proposed amendment will ensure that parties' legal representatives are
included in the definition.
Items 77 and 78: Subparagraphs 38H(1)(a)(i) and 38H(1)(a)(ii)
These items are consequential amendments to subparagraphs 38H(1)(a)(i) and
(ii) as a result of the proposed amendments to section 38D(1) to include
legal representatives (item 62).
Items 79 and 80: Subsections 38H(2) and 38H(9)
These items will repeal existing subsections 38H(2) and 38H(9) and replace
them with new subsections 38H(2) and 38H(9).
The items are consistent with other amendments that extend coverage to
legal representatives. They will make it clear that the obligation not to
call a witness extends to legal representatives in addition to relevant
parties and that the Attorney-General must advise the relevant legal
representative, as well as the parties, of a decision not to issue a
certificate under subsection 38H(2).
Item 81: Subparagraph 38I(2)(e)
This item will amend subsection 38I(2) by repealing subparagraph 38I(2)(e)
and substituting proposed new subparagraph 38I(2)(e).
Under existing section 38I, only the Attorney-General or his or her legal
representative may be present at a closed hearing in a civil proceeding.
This precludes other representatives (for example, from law enforcement or
security agencies) from being present and assisting the Attorney-General to
fulfil his or her role of appropriately protecting national security
information.
The proposed new subparagraph will clarify that other representatives of
the Attorney-General are allowed to be present during closed court civil
hearings. The proposed amendment will complement the proposed new section
38AA (item 56) which will create a broader power for the Attorney-General
and representatives to be present and be heard at civil proceedings.
Items 82 and 87: Subsections 38I(7) and 38M(3)
These items are consequential amendments to subsections 38I(7) and 38M(3)
which are necessary because of the insertion of the definition of 'national
security information' at item 8.
Item 83: Section 38K
This item will repeal section 38K. Section 38K currently allows the
Attorney-General to intervene in a civil proceeding where closed court
hearing requirements apply. Section 38K will no longer be necessary as
proposed section 38AA (proposed to be inserted by item 56) will provide for
a wider ability for the Attorney-General's interests to be represented and
heard at civil proceedings.
Item 84: Paragraphs 38L(6)(a) and (b)
This item will insert the term 'legal representative' in paragraphs
38L(6)(a) and (b). These proposed amendments will clarify that the court
can order the parties, as well as the parties' legal representatives, not
to call (or may call) a witness in a civil proceeding in accordance with
subsection 38L(6).
Items 85, 86 and 88: Paragraph 38M(1)(d), subsection 38M(2) and subsection
38R(1)
These items make consequential amendments to subsections 38M(1), 38M(2) and
38R(1) to remove references to section 38K (which is proposed to be
repealed by item 83).
Item 89: Subsection 39(1A)
This item will insert proposed new subsection 39(1A). This item will
clarify that when the Secretary of the Attorney-General's Department is
considering whether to give notice to a legal representative that it would
be appropriate for the legal representative or a person assisting the legal
representative to seek an appropriate security clearance, the Secretary
should consider the nature of the information likely to be disclosed and
not the character of the legal representative in question. This reflects
the protective objects of the NSI Act, which are directed towards the
characteristics of the information itself.
Items 90, 92, and 93: Subsection 39(2), paragraph 39(3)(a), subparagraph
39(5)(b)(i)
These items will amend various parts of section 39 to omit the phrase 'by
the Department'. These amendments will clarify that while persons must
apply to the Secretary of the Attorney-General's Department for a security
clearance if national security information is likely to be disclosed in a
federal criminal proceeding, the source from which such clearances are
obtained does not need to be the Attorney-General's Department.
Item 91: Subsection 39(3)
This item will insert the words 'or the defendant's legal representative
(on the defendant's behalf)' after the word 'defendant' in subsection
39(3).
Under existing subsection 39(3), it is unclear whether a legal
representative could apply, on the defendant's behalf, for a deferral or
adjournment of the proceedings pending receipt of their security clearance.
The proposed amendment will clarify that a defendant's legal
representative, on behalf of the defendant, may apply for a deferral or
adjournment.
Item 94: Subsection 39A(1A)
This item will insert a new subsection 39A(1A) to clarify that the
Secretary should consider the nature of the information likely to be
disclosed and not the character of the legal representative in question
when deciding on the need for a security clearance.
This proposed amendment serves the same purpose as proposed new subsection
39(1A) (item 89).
Items 95, 97 98: Subsection 39A(2), paragraphs 39A(3)(a) and (5)(d) and
subparagraph 39A(6)(d)(i)
These items reflect amendments made by items 90, 92 and 93 but are
applicable to civil proceedings. These items will amend various parts of
subsection 39A to omit the phrase 'by the Department'. These amendments
will clarify that while persons must apply to the Secretary of the Attorney-
General's Department for a security clearance if national security
information is likely to be disclosed in a civil proceeding, the source
from which such clearances are obtained does not need to be the Attorney-
General's Department.
Item 96: Subsection 39A(3)
This item will amend subsection 39A(3) to clarify that a party's legal
representative, on behalf of the party, may apply for a deferral or
adjournment under subsection 39A(3) to allow security clearances to be
issued.
Item 99: Subsections 40(1) and 40(1A)
This item will amend section 40 by repealing subsection 40(1) and
substituting new subsections 40(1) and 40(1A).
Under existing section 40, it is an offence for the prosecutor, the
defendant or another person to disclose information after notice is given
to the Attorney-General under subsection 24(1) but before the Attorney-
General gives a certificate or advice under section 26. The proposed
amendments will divide this offence into two separate offences contained
within proposed new subsections 40(1) and 40(1A). The proposed changes
will reflect that the notification obligations provided by section 24 are
imposed not only on a defendant in a federal criminal proceeding, but also
on a defendant's legal representative (item 26).
The offence in proposed new subsection 40(1) will be limited to the
prosecutor, defendant and the defendant's legal representative, omitting
the previous reference to other persons making a disclosure. This will
ensure that only persons who have given notification of expected
disclosure, and can therefore be assumed to be aware of their obligations
under the Act, satisfy the elements of the offence contained in this
subsection.
Proposed new subsection 40(1A) will provide for an offence where a person
other than the prosecutor, defendant and the defendant's legal
representative makes a disclosure, where they have been advised under
subsection 24(3) that the Attorney-General has been notified that the
evidence they are to provide may involve disclosure of national security
information. This similarly ensures that only persons who have been
advised of the notification, and can therefore be assumed to be aware of
their obligations under the Act, satisfy the elements of the offence
contained in this subsection.
A maximum penalty of imprisonment for two years will apply for both
offences.
Item 100: Paragraph 40(2)(a)
This item will amend paragraph 40(2)(a) by omitting reference to 'or
believes' and substituting 'believes or is advised'.
This amendment is a consequential amendment to the insertion of a new
subsection 25(6) by item 31. Proposed new subsection 25(6) will provide
that if the prosecutor knows, believes, or is advised that the written
answer provided by the witness will disclose national security information
in a proceeding, the prosecutor must advise the court and the Attorney-
General of that knowledge, belief or advice as soon as practicable. This
proposed amendment will ensure that it is an offence to disclose
information from a witness's answer prior to a certificate being issued if
the prosecutor has been advised that a witness's answer involves national
security information, and he or she has notified the Attorney-General.
Item 101: Section 41
This item will repeal existing section 41 and replace it with a proposed
new section 41.
Existing section 41 provides that it is an offence to disclose information
after the prosecutor or defendant notifies the Attorney-General that a
witness may be called who will disclose information that may affect
national security but before the Attorney-General has given a certificate.
The proposed amendments to section 24 (item 26) will place an obligation on
a defendant's legal representative to notify the Attorney-General of any
potential disclosure of national security information by a witness.
Proposed new section 41 will clarify that it is an offence for a
defendant's legal representative, in addition to the defendant themselves
and the prosecutor, to call a witness after they have notified the Attorney-
General that they may disclose national security information.
A maximum penalty of imprisonment for two years will apply.
Item 102: Paragraph 42(a)
This item is a consequential amendment arising out of the inclusion of new
subsections 24(3) and (4) inserted by item 27.
Items 103 and 107: Sections 45A and 46FA
These items will insert two new offences into Part 5 of the NSI Act, in
proposed new sections 45A and 46FA.
The proposed new sections will create a new offence relating to federal
criminal proceedings (proposed section 45A) and a similar new offence
relating to civil proceedings (proposed section 46FA).
These new offences will make it an offence to contravene the NSI
Regulations made under sections 23 and 38C.
The proposed new offences will attract a maximum penalty of 6 months
imprisonment. Although the substantial components of the offences are
contained within the Regulations, a penalty of imprisonment is reasonable,
given the type of classified and sensitive information in question and the
serious consequences of failing to comply with the requirements relating to
the storage, handling or destruction of national security information.
Furthermore, without a sufficient penalty the offence will not act as a
sufficient deterrent against failing to comply with the requirements in the
Regulations.
Item 105 - Subsections 46A(1) and 46A(1A)
This item will amend section 46A by repealing subsection 46A(1) and
substituting proposed new subsections 46A(1) and (1A).
Existing section 46A provides that it is an offence if a party to a civil
proceeding or a person other than the party discloses information after the
party notifies the Attorney-General about the potential disclosure of
national security information but before the Attorney-General has given a
certificate.
The proposed amendments to section 38D (item 62) will place an obligation
on the legal representatives of parties to notify the Attorney-General of
any potential disclosure of national security information. Proposed new
subsection 46A(1) will clarify that it is an offence for a legal
representative of a party, in addition to the party themselves, to disclose
the information.
Proposed new subsection 46(1A) will provide for an offence where a person
other than the parties and their legal representatives makes a disclosure,
where they have been advised under subsection 38D(4) that the Attorney-
General has been notified that the evidence they are to provide may involve
disclosure of national security information.
A maximum penalty of imprisonment for two years will apply.
Item 106: Sections 46B and 46C
This item will amend Part 5 of the NSI Act by repealing sections 46B and
46C and substituting proposed new sections 46B and 46C.
Under existing section 46B a party to a civil proceeding commits an offence
if they call a witness, after they have notified the Attorney-General that
the witness may disclose national security information, but before the
Attorney-General has given a civil witness exclusion certificate or advice.
Proposed new section 46B will reflect that the notification obligations
provided by section 38D are imposed not only on parties to civil
proceedings, but also on their legal representatives (item 62).
The offence contained in proposed section 46B will be committed where a
party or a party's legal representative notifies the Attorney-General under
section 38D and that party calls the relevant person as a witness before
the Attorney-General gives a certificate or advice under section 38H, and
the disclosure of information by the mere presence of that person is likely
to prejudice national security. A maximum penalty of imprisonment for two
years will apply.
Proposed section 46C similarly reflects that notification obligations
provided by sections 38D and 38E will be imposed not only on parties to
civil proceedings but also their legal representatives. The offence
contained in proposed section 46C will be committed where a party or a
party's legal representative contravenes subsections 38D(1), 38D(3), 38D(4)
or 38E(2), all of which contain notification requirements, and the
disclosure of information referred to in the applicable subsection is
likely to prejudice national security. A maximum penalty of imprisonment
for two years will apply.
Part 2 - Application of amendments and saving
Part 2 to Schedule 8 of the Bill outlines the application of the proposed
amendments contained in Part 1 to Schedule 8 of the Bill.
Item 109: Application of amendments
This item sets out the how the amendments contained in Part 1 to Schedule 1
of the Bill will apply to proceedings.
The amendments will apply to federal criminal proceedings and civil
proceedings where notice under sections 6 and 6A respectively have been
given on or after the commencement of the amendments. For proceedings
where notice has been given before commencement, the amendments will apply
only to those parts of the proceedings that take place on or after
commencement. Further, any certificates, orders, notices or advices which
were given before commencement will continue to have effect. This will
ensure that proceedings currently taking place or starting prior to
commencement can still move forward in compliance with the Act.
Item 110: Savings provision
This item will insert a savings provision which provides that Regulations
made under sections 23 and 38C of the Act will remain in force and continue
as such, notwithstanding that sections 23 and 38C will be amended. The
amendments to these sections will not affect the substantive content or
operation of the Regulations. By allowing them to continue, the ongoing
effectiveness of the protective regime under the NSI Act will be ensured.
Schedule 9 - Functions of Inspector-General of Intelligence and Security
Overview
Schedule 9 will amend the Inspector-General of Intelligence and Security
Act 1986 (IGIS Act) to allow the Prime Minister to request the Inspector-
General of Intelligence and Security (IGIS) to inquire into an intelligence
or security matter relating to any Commonwealth department or agency.
Currently, the IGIS may only inquire into matters relating to the six
Australian Intelligence Community (AIC) agencies: the Australian Security
Intelligence Organisation (ASIO), the Australian Secret Intelligence
Service (ASIS), the Defence Imagery and Geospatial Organisation (DIGO), the
Defence Intelligence Organisation (DIO), the Defence Signals Directorate
(DSD) and the Office of National Assessments (ONA).
Increasingly, a range of Commonwealth departments and agencies work with
the AIC agencies on intelligence and security matters. To fully consider
an intelligence or security matter, it may sometimes be necessary for the
IGIS to consider the role played by a non-AIC department or agency in
relation to that matter.
The proposed amendments to the IGIS Act will provide legislative
flexibility for the IGIS to inquire into an intelligence or security matter
relating to any Commonwealth department or agency at the request of the
Prime Minister. This will ensure such enquiries are conducted only where
the Prime Minister considers that this is necessary to enable the IGIS to
fully consider an intelligence or security matter. It will also ensure the
IGIS is not unnecessarily diverted from his or her core role of oversight
of the AIC agencies.
Item 1: Subsection 3(1) (definition of 'agency')
This item will repeal the definition of 'agency'.
The IGIS Act currently defines agency to mean an AIC agency. As the
proposed amendments will enable the IGIS to consider, on request of the
Prime Minister, not just AIC agencies but any Commonwealth agency, this
definition of agency is no longer appropriate for the purposes of the IGIS
Act.
Instead of using the term agency, the Act will refer to either an
'intelligence agency' when referring to the AIC agencies, or 'Commonwealth
agency' when referring to both AIC agencies and other Commonwealth agencies
(see items 2 and 5).
Item 2: Subsection 3(1) (definition of 'Commonwealth agency')
This item will repeal the existing definition of 'Commonwealth agency' and
substitute a new definition.
The current definition provides that 'Commonwealth agency' has the same
meaning as in Part IV of the Australian Security Intelligence Organisation
Act 1979 (ASIO Act), which defines 'Commonwealth agency' as 'a Minister or
an authority of the Commonwealth'. As the proposed amendments will enable
the IGIS to consider, on request of the Prime Minister, non-AIC
Commonwealth agencies, but not Ministers, this definition of 'Commonwealth
agency' is no longer appropriate for the purposes of the IGIS Act.
Item 2 will replace the current definition of 'Commonwealth agency' with a
new definition that will include both AIC agencies and non-AIC Commonwealth
agencies, but does not include Ministers of the Commonwealth. The
definition is intended to cover a wide range of Commonwealth agencies to
ensure that if a non-AIC Commonwealth agency is involved in a security or
intelligence issue, the IGIS will be able to inquire into that agency. The
new definition will cover:
. Commonwealth Departments, such as the Attorney-General's Department;
. Commonwealth agencies (which will generally be established by an
Act), such as the Australian Federal Police and the Australian
Customs and Border Protection Service;
. the Australian Defence Force;
. Commonwealth statutory bodies and office holders; and
. other bodies declared by legislative instrument to be a Commonwealth
agency (see item 9).
Item 3: Subsection 3(1) (definition of 'employee')
This item will amend the definition of 'employee' to refer to a
'Commonwealth agency' rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that the definition of employee applies in relation to
any Commonwealth agency.
Item 4: Subsection 3(1) (definition of 'head')
This item will repeal the definition of 'head' and substitute a new
definition.
The current definition of 'head' only covers the heads of AIC agencies.
The new definition of 'head' will also cover heads of non-AIC Commonwealth
agencies. For AIC agencies, the head is the Director or Director-General
of that agency. For departments, the head is the Secretary of the
department. For other Commonwealth agencies, the head is the principal
officer of that agency, however this is described.
Item 5: Subsection 3(1)
This item will insert a definition of 'intelligence agency', which is
defined as the six AIC agencies: ASIO, ASIS, DIGO, DIO, DSD or ONA.
Item 6: Subsection 3(1) (definition of 'member')
This item will amend the definition of 'member' to refer to a 'Commonwealth
agency' rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that the definition of member applies in relation to
any Commonwealth agency.
Item 7: Subsection 3(1) (definition of 'responsible Minister')
This item will amend the definition of 'responsible Minister' to refer to a
'Commonwealth agency' rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that the definition of responsible Minister applies in
relation to any Commonwealth agency.
Item 8: Subsection 3(3)
This item will amend subsection 3(3) to refer to a 'Commonwealth agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that subsection 3(3) applies in relation to any
Commonwealth agency.
Item 9: At the end of section 3
This item will insert a new subsection (4) at the end of section 3 to
enable the Minister to declare, by legislative instrument, that a body is a
Commonwealth agency for the purposes of the new definition of 'Commonwealth
agency' (see item 2).
Item 10: Subparagraph 4(a)(i)
This item will amend the objects clause in subparagraph 4(a)(i) by removing
the words 'or security' from 'Australian intelligence or security
agencies'.
This is a consequential amendment to make the wording of subparagraph
4(a)(i) consistent with the new definition of 'intelligence agency'. It is
not intended to change the meaning of this provision.
Item 11: At the end of subparagraphs 4(a)(i) and (iii)
This item will insert the word 'and' at the end of subparagraphs 4(a)(i)
and (iii).
This amendment reflects modern drafting practice. It is not intended to
change the meaning of these provisions.
Item 12: After paragraph 4(b)
This item will insert a new paragraph (ba) in the objects clause in section
4.
Paragraph (ba) will provide that it is also an object of the IGIS Act to
assist Ministers in investigating intelligence or security matters relating
to Commonwealth agencies, including agencies other than intelligence
agencies. This amendment will ensure that the objects of the IGIS Act also
reflect the extended mandate of the IGIS to investigate intelligence or
security matters relating to Commonwealth agencies at the request of the
Prime Minister.
Item 13: Subparagraph 8(1)(c)(i)
This item will amend subparagraph 8(1)(c)(i) to clarify that the reference
to 'Commonwealth agency' in this subparagraph has a different meaning to
Commonwealth agency as defined in section 3.
Paragraph 8(1)(c)(i) refers to the situation where ASIO has furnished a
report to a Commonwealth agency that may result in the taking of action
that is adverse to the interests of the person. Item 13 will clarify that,
in this context, 'Commonwealth agency' has the same meaning as in Part IV
of the ASIO Act.
This item will also amend the heading to section 8 by omitting 'Inquiry'
and substituting 'Intelligence agency inquiry'. This amendment will
clarify that section 8 applies only to inquiries relating to intelligence
agencies.
Item 14: Subparagraph 8(1)(c)(ii)
This item will amend subparagraph 8(1)(c)(ii) to replace the reference to
'the Security Appeals Tribunal' with the 'Security Appeals Division of the
Administrative Appeals Tribunal'.
This amendment will correct a technical error in the IGIS Act.
Item 15: Subsection 8(5)
This item will amend subsection 8(5) to refer to an 'intelligence agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that subsection 8(5) applies only in relation to
intelligence agencies.
Item 16: Subsection 8(8)
This item will repeal subsection 8(8).
Subsection 8(8) contains limitations on the IGIS's inquiry functions. As
these limitations are proposed to also apply to the IGIS's new inquiry
function, subsection 8(8) will be replaced by subsection 9AA. Subsection
9AA will largely replicate subsection 8(8) but will apply to IGIS inquiries
under both section 8 and proposed section 9 (see item 17).
Item 17: Section 9
This item will repeal section 9 and replace it with a new section. It will
also insert a new section 9AA to replace repealed subsection 8(8).
Section 9
Section 9 currently provides that the Prime Minister may request the IGIS
to inquire into a matter relating to an intelligence agency. Where such a
request is made, the IGIS must inquire into that matter if it is within the
IGIS's functions, as set out in section 8.
Section 9 will be repealed and replaced with an expanded provision. The
new subsections 9(1) and (2) will mirror the existing section 9, but will
reflect modern drafting style.
Subsections 9(3) and (4) will provide that the Prime Minister may also
request the IGIS to inquire into an intelligence or security matter
relating to a Commonwealth agency and the IGIS must comply with such a
request. These amendments will extend the IGIS's mandate to enable the
IGIS to fully investigate an intelligence or security matter relating to
any Commonwealth agency, which includes, but is not limited to, an
intelligence agency. The IGIS will only be able to carry out this extended
mandate on the request of the Prime Minister.
It is intended that the Prime Minister could request the IGIS to consider
an entirely new security or intelligence matter that relates to
Commonwealth agencies under subsection 9(3), and could also rely on
subsection 9(3) to request that the IGIS extend a current inquiry into a
security or intelligence matter to cover Commonwealth agencies outside the
AIC. For example, if the IGIS were conducting an inquiry of his or her own
motion under section 8, the Prime Minister could request, under subsection
9(3), that the IGIS extend that inquiry to cover other Commonwealth
agencies.
Section 9AA
Item 17 will also insert a new section 9AA to replace subsection 8(8),
which will be repealed by item 16.
Subsection 8(8) contains a number of limitations on the IGIS's existing
inquiry functions under section 8. The limitations in subsection 8(8) are
limitations that would be appropriate for an inquiry into Commonwealth
agencies under section 9, so section 9AA will largely mirror the existing
limitations in subsection 8(8) and ensure those limitations apply to
inquiries under both section 8 and 9.
Paragraph 8(8)(a) currently provides that the IGIS must not inquire into a
matter relating to an agency that occurred outside Australia, or before the
commencement of the IGIS Act, without the approval of the responsible
Minister. Proposed subparagraph 9AA(a)(ii) will mirror this requirement
for all IGIS inquiries which do not start as a result of a request by the
Prime Minister under section 9. Proposed subparagraph 9AA(a)(i) will
provide that, where an inquiry starts or is extended as a result of a
request by the Prime Minister under section 9, the IGIS must not inquire
into a matter relating to an agency that occurred outside Australia, or
before the commencement of the IGIS Act, without the approval of the Prime
Minister.
Proposed paragraphs 9AA(b) and (c) will mirror existing paragraphs 8(8)(b)
and (c) respectively.
Item 18: Section 9A
This item will amend section 9A to clarify that the IGIS's inspection
function under section 9A only applies to intelligence agencies.
Item 19: Section 9A
This item will delete the word 'relevant' from section 9A, as the meaning
of the provision is clear without needing to refer to 'relevant agency'.
Item 20: Paragraph 11(1)(a)
This item amends paragraph 11(1)(a) to refer to an 'intelligence agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that this paragraph only applies to an intelligence
agency.
Item 21: Subsections 11(2) and (5)
This item amends subsections 11(2) and (5) to refer to an 'intelligence
agency' rather than an 'agency'.
These amendments are necessary as a consequence of other amendments in this
Schedule, to clarify that these subsections only apply to an intelligence
agency.
Item 22: Sections 12 and 14
This item amends sections 12 and 14 to refer to an 'intelligence agency'
rather than an 'agency'.
These amendments are necessary as a consequence of other amendments in this
Schedule, to clarify that these sections only apply to an intelligence
agency.
Item 23: Subsections 15(1), (2) and (3)
This item will amend subsections 15 (1), (2) and (3) to refer to a
'Commonwealth agency' rather than an 'agency'.
These amendments are necessary as a consequence of other amendments in this
Schedule, to clarify that the requirements to inform certain persons before
commencing an inquiry apply to all IGIS inquiries.
Item 24: At the end of subsection 15(3)
This item will amend subsection 15(3) to insert a new paragraph (c).
The new paragraph will provide that if the IGIS inquires into a matter
relating to a Commonwealth agency and does not advise the head of that
agency, the IGIS must advise the responsible Minister for that agency.
This is consistent with the requirements for other inquiries under the IGIS
Act.
Item 25: Section 16
This item will amend section 16 to refer to a 'Commonwealth agency' rather
than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that the requirement to have regard to the functions
of the Auditor-General and the Ombudsman, and the discretion to consult
with these offices, applies to all IGIS inquiries.
Item 26: Subsections 17 (4), (6), (7), (8), (9) and (10)
This item will make a number of amendments to section 17 to refer to a
'Commonwealth agency' rather than an 'agency'.
These amendments are necessary as a consequence of other amendments in this
Schedule, to clarify that the provisions relating to the conduct of
inquiries apply to all IGIS inquiries.
Item 27: Paragraph 18(6)(b)
This item will amend paragraph 18(6)(b) to refer to a 'Commonwealth agency'
rather than an Agency within the meaning of the Public Service Act 1999 or
an authority of the Commonwealth. The proposed definition of 'Commonwealth
agency' will cover the same range of agencies as covered by the current
reference to Agency within the meaning of the Public Service Act or
authority of the Commonwealth. Therefore, this change will mean that
consistent terminology is used throughout the IGIS Act.
Item 28: Section 19
This item will amend section 19 to refer to a 'Commonwealth agency' rather
than an 'agency'. This amendment is necessary as a consequence of other
amendments in this Schedule, to clarify that section 19 applies to all
Commonwealth agencies. Section 19 provides that the IGIS may, after
notifying the head of an agency, at any reasonable time, enter any place
occupied by the agency for the purposes of an inquiry under the IGIS Act.
Item 29: Paragraph 20(a)
This item will amend paragraph 20(a) to refer to a 'Commonwealth agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that provisions relating to the protection of national
security classified documents during the course of an inquiry by the IGIS
applies in relation to an inquiry by the IGIS into any Commonwealth agency.
Item 30: Paragraph 20(b)
This item will amend paragraph 20(b).
Section 20 currently provides for the protection of documents that have a
national security classification, where these documents are in the
possession of an agency and the IGIS requires access to these documents
during the course of an inquiry by the IGIS under the IGIS Act. Item 30
will apply this requirement to documents that have a national security
classification (Top Secret, Secret, Confidential or Restricted) as well as
documents that have a non-national security classification (such as Highly
Protected or Protected). Some non-AIC Commonwealth agencies may possess
documents that do not have a national security classification but have
another protective security classification and contain sensitive
information. For example, documents relating to sensitive law enforcement
operations or containing criminal intelligence may be classified Protected
or Highly Protected. This item will ensure that other sensitive classified
documents are given the same protection as national security classified
documents.
Item 31: Subsection 21(1)
This item will repeal subsection 21(1) and substitute a new subsection
21(1). It will also insert a new subsection 21(1AA).
Subsection 21(1)
Subsection 21(1) currently provides that, where the IGIS completes an
inquiry into a matter relating to an agency, the IGIS must prepare a draft
report setting out the IGIS's conclusions and recommendations as a result
of the inquiry. Subject to subsections (1A) and (1B), the IGIS must give a
copy of the draft report to the head of the relevant agency.
The proposed new subsection 21(1) will essentially mirror the existing
subsection 21(1) but will clarify that this provision applies in relation
to an inquiry by the IGIS into any Commonwealth agency. It also updates
the wording of the existing provision to reflect modern drafting practice.
Subsection 21(1AA)
The proposed new subsection 21(1AA) will clarify that, before giving the
head of a Commonwealth agency a copy of the draft report, the IGIS may
remove from the draft report any matters that do not relate to that
Commonwealth agency. For example, if a Commonwealth agency has only a
marginal involvement in an intelligence or security matter, the IGIS may
decide that it would not be appropriate for that agency to receive a copy
of the entire draft report. In those circumstances, the IGIS could decide
to give to that agency only the parts of the draft report that are relevant
to that agency.
Item 32: Subsections 21(1A) and (1B)
This item will make amendments to subsections 21(1A) and (1B).
These amendments will omit the words 'an agency a copy of a draft report'
and substitute 'a Commonwealth agency a draft agency copy'. These
amendments are necessary as a consequence of other amendments in this
Schedule, which will repeal the definition of 'agency' and substitute new
definitions of 'Commonwealth agency' and 'intelligence agency'. The
amendments will clarify that subsections 21(1A) and (1B) apply in relation
to any Commonwealth agency. These amendments will also ensure that the
wording of subsections 21(1A) and (1B) is consistent with the wording of
the proposed new subsection 21(1), which also refers to 'a draft agency
copy'.
Item 33: Subsection 21(1B)
This item will amend subsection 21(1B) to omit the words 'copy of that
report' and substitute 'the draft agency copy'.
This amendment will make the wording of subsection 21(1B) is consistent
with the wording of the proposed new subsection 21(1), which also refers to
'draft agency copy'.
Item 34: At the end of subsection 21(1B)
This item will amend subsection 21(1B) to include a new paragraph (c).
Subsection 21(1B) currently provides that, if the IGIS does not give to the
head of an agency a copy of the draft report in respect of a matter that
relates directly to the head of that agency, the IGIS must give a copy of
the report to the Minister in relation to ASIO, ASIS or ONA (if the matter
relates to the head of one of those agencies) or to the Secretary of the
Department of Defence (if the matter relates to the head of DIGO, DIO or
DSD).
Paragraph (c) will provide that, if the matter relates to the head of any
other Commonwealth agency, the IGIS must give a copy of the report to the
responsible Minister for that agency. This amendment is necessary to
reflect the extended mandate of the IGIS to inquire into an intelligence or
security matter relating to any Commonwealth agency on the request of the
Prime Minister.
Item 35: Paragraph 21(2)(a)
This item will amend paragraph 21(2)(a) to omit the words 'a copy of a
draft report to the head of an agency' and substitute 'a draft agency copy
to the head of a Commonwealth agency'.
This amendment will ensure that the wording of paragraph 21(2)(a) is
consistent with the wording of the proposed new subsection 21(1), which
also refers to 'a draft agency copy'. This amendment will also replace the
words 'an agency' with 'a Commonwealth agency'. This amendment is
necessary as a consequence of other amendments in this Schedule, which will
repeal the definition of agency and substitute new definitions of
Commonwealth agency and intelligence agency. This amendment will clarify
that paragraph 21(2)(a) will apply in relation to any Commonwealth agency.
Item 36: Paragraph 21(2)(b)
This item will amend paragraph 21(2)(b) to omit the words 'a copy of a
draft report' and substitute 'the draft agency copy'.
This amendment will ensure that the wording of paragraph 21(2)(b) is
consistent with the wording of the proposed new subsection 21(1), which
also refers to 'a draft agency copy'.
Item 37: Subsection 22(1)
This item will repeal the existing subsection 22(1) and substitute new
subsections 22(1) and (1A).
Subsection 22(1) currently provides that, where the IGIS completes an
inquiry into a matter relating to an agency, the IGIS must prepare a report
setting out the IGIS's conclusions and recommendations as a result of the
inquiry. If a copy of the draft report was given to the head of the
relevant agency under subsection 21(1), the IGIS must give a copy of the
final report to the head of that agency. If a copy of the draft report was
not given to the head of the relevant agency, then the IGIS must give a
copy of the report to the person to whom a copy of the draft report was
given under subsection 21(1B) (that is, the responsible Minister in
relation to ASIO, ASIS or ONA or the Secretary of the Department of
Defence).
The proposed new subsection 22(1) will essentially mirror the existing
subsection 22(1) but will reflect modern drafting practice. It will also
clarify that this provision applies in relation to the head of any
Commonwealth agency. This amendment is necessary to reflect the extended
mandate of the IGIS to inquire into an intelligence or security matter
relating to any Commonwealth agency.
The proposed new subsection 22(1A) will clarify that the IGIS may remove
from a final agency copy of the report any matters that do not relate to
the Commonwealth agency concerned. For example, if a Commonwealth agency
has only a marginal involvement in an intelligence or security matter, the
IGIS may decide that it would not be appropriate for that agency to receive
a copy of the entire report. In those circumstances, the IGIS could decide
to give to that agency only the parts of the report that are relevant to
that agency.
Item 38: Paragraph 22(2)(b)
This item will amend paragraph 22(2)(b) to refer to a 'Commonwealth agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that paragraph 22(2)(b) will apply in relation to any
Commonwealth agency.
Item 39: Subsection 22(3)
This item will amend subsection 22(3) to omit the words 'If the report' and
substitute 'If the report, or a final agency copy of the report'.
This is a consequential amendment to ensure the wording of subsection 22(3)
is consistent with other amendments in this Schedule, which also refer to a
'final agency copy'.
Item 40: Subsection 22(3)
This item will amend subsection 22(3) to insert, after the words 'of the
report', 'or the final agency copy'.
This is a consequential amendment to ensure the wording of subsection 22(3)
is consistent with other amendments in this Schedule, which also refer to a
'final agency copy'.
Item 41: Subsection 22(4)
This item will repeal subsection 22(4) and substitute new subsections 22(4)
and (5).
New subsections 22(4) and 22(5) will largely mirror the existing subsection
22(4) but will reflect modern drafting practice. Subsection 22(4) will
provide that the IGIS must give the responsible Minister a copy of the
final agency copy or, if subsection (3) applies and the report contains tax
information, a copy of the version of the report that does not disclose the
tax information. Subsection 22(5) will provide that, in addition, if the
inquiry was conducted as a result of a request by the Prime Minister under
section 9, the IGIS must also give the Prime Minister a copy of the final
agency copy or a copy with tax information deleted if subsection (3)
applies.
Item 42: Subsection 23(1)
This item will amend subsection 23(1).
Subsection 23(1) currently provides that, where the IGIS has conducted an
inquiry under the Act following a complaint, the IGIS must give the
complainant a written response relating to the inquiry.
This item will amend subsection 23(1) to clarify that this provision only
applies to intelligence agencies, as there is no capacity for the IGIS to
conduct an inquiry into non-intelligence agencies of his or her own motion.
Item 43: Subsection 24(1)
This item will amend subsection 24(1) to omit the words 'an agency and has
given a copy' and substitute 'a Commonwealth agency and has, under section
22, given a final agency copy'.
This amendment is necessary as a consequence of other amendments in this
Schedule, which will repeal the definition of 'agency' and substitute new
definitions of 'Commonwealth agency' and 'intelligence agency'. This
amendment will clarify that subsection 24(1) will apply in relation to any
Commonwealth agency. It will also update the wording of subsection 24(1)
to ensure consistency with other amendments in this Schedule, which also
refer to a 'final agency copy'.
Item 44: Subsection 24(2)
This item will amend subsection 24(2) to refer to a 'Commonwealth agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that subsection 24(2) will apply in relation to any
Commonwealth agency.
Item 45: Paragraph 24A(1)(a)
This item will amend paragraph 24A(1)(a) to refer to a 'Commonwealth
agency' rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that paragraph 24A(1)(a) will apply in relation to any
Commonwealth agency.
Item 46: Paragraph 24A(1)(b)
This item will repeal paragraph 24A(1)(b) and substitute a new paragraph.
The new paragraph 24A(1)(b) mirrors the existing paragraph 24A(1)(b) but
makes a number of consequential amendments to ensure that the wording is
consistent with other amendments contained in this Schedule.
Item 47: Section 25A
This item will amend section 25A to refer to an 'intelligence agency'
rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule. As section 9A will continue to apply only in relation to
inspections of intelligence agencies, this amendment will clarify that
section 25A will also continue to apply only in relation to intelligence
agencies.
Item 48: Subsection 32A(2)
This item will amend subsection 32A(2) to refer to an 'intelligence
agency' rather than an 'agency'.
This amendment is necessary as a consequence of other amendments in this
Schedule, to clarify that subsection 32A(2) will continue to apply only in
relation to intelligence agencies.
Item 49: Subsection 32B(2)
This item will amend subsection 32B(2) to omit the words 'the agency' and
substitute 'that agency'.
This amendment will clarify that subsection 32B(2) refers to a particular
agency mentioned in subsection 32B(1), rather than any agency.
Item 50: Subsection 35(5)
This item will amend subsection 35(5).
Section 35 requires the IGIS to provide an annual report to the Prime
Minister. The Prime Minister is required to table that report, subject to
subsection 35(5). Subsection 35(5) provides that the Prime Minister may
make such deletions from an annual report that the Prime Minister considers
necessary in order to avoid prejudice to security, the defence of
Australia, Australia's relations with other countries or the privacy of
individuals.
The proposed amendment will provide that the Prime Minister may also make
deletions from a report if the Prime Minister considers it necessary to
avoid prejudice to law enforcement operations. Under the IGIS's extended
mandate, the IGIS could potentially consider the involvement of a
Commonwealth law enforcement agency in an intelligence or security matter.
It is therefore appropriate that subsection 35(5) be amended to allow the
Prime Minister to also take into account potential prejudice to law
enforcement operations when deciding whether to make deletions from a
report of the IGIS. This could include details of a particular operation,
or general information about law enforcement capabilities, sources and
methods that could, if disclosed, prejudice current and future law
enforcement operations.
Schedule 10: Consequential amendments relating to the establishment of the
Parliamentary Joint Committee on law Enforcement
Overview
Schedule 10 sets out consequential amendments that arise as a consequence
of the Parliamentary Joint Committee on Law Enforcement Bill 2010 (PJC-LE
Bill). The PJC-LE Bill will establish the Parliamentary Joint Committee on
Law Enforcement (PJC-LE). The PJC-LE will replace the current
Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC).
It will have the same functions as the PJC-ACC in relation to the
Australian Crime Commission (ACC), but will also have additional functions
relating to review of the Australian Federal Police (AFP).
The consequential amendments will repeal the provisions in the Australian
Crime Commission Act 2002 (ACC Act) that relate to the current PJC-ACC, and
update any references to the PJC-ACC in other legislation to refer to the
PJC-LE.
Schedule 10 also includes transitional provisions that will detail
arrangements relating to the transition of the PJC-ACC to the PJC-LE.
Administrative Decisions (Judicial Review) Act 1977
Item 1: After paragraph (db) of Schedule 2
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR
Act) provides that reasons for a decision may be obtained in certain
circumstances, upon application to the Federal Court or the Federal
Magistrates Court. Schedule 2 of the ADJR Act outlines the classes of
decisions that are not decisions to which section 13 applies.
This item will insert a new paragraph (dc) of Schedule 2 to the ADJR Act,
which will provide that decisions under subsection 8(4) or 9(4) of the
Parliamentary Joint Committee on Law Enforcement Act 2010 (PJC-LE Act) are
not decisions to which section 13 applies. The effect of this item is that
the Minister will not be required to provide reasons for decisions in
relation to a determination under subsections 8(4) or 9(4) of the PJC-
LE Act.
Anti Money-Laundering and Counter-Terrorism Financing Act 2006
Item 2: Paragraph 128(14)(c)
Section 128 of the Anti-Money Laundering and Counter-Terrorism Financing
Act 2006 (Anti-Money Laundering Act) outlines the circumstances when
AUSTRAC information can be passed on by an official of a designated agency.
Under section 5 of the Anti-Money Laundering Act, the ACC is included in
the definition of a 'designated agency'.
This item will amend paragraph 128(14)(c) of the Anti-Money Laundering Act
by substituting the reference in this paragraph to 'the Chair of the Board'
with 'the Chief Executive Officer' (CEO). This change is necessary as the
PJC-LE Bill places the obligation to comply with a request for information
on the CEO of the ACC rather than the Chair of the Board of the ACC.
Item 3: Paragraph 128(14)(c)
This item will replace the reference to the PJC-ACC and subsection 59(6A)
of the ACC Act with reference to the PJC-LE and subsection 8(1) of the PJC-
LE Act. The effect of items 2 and 3 will be that under paragraph
128(14)(c), the CEO of the ACC may communicate AUSTRAC information to the
PJC-LE, providing it is in a manner that does not enable the person to whom
the AUSTRAC information relates to be identified.
Australian Crime Commission Act 2002
Item 4: Subsection 51(4) (at the end of the definition of 'relevant Act')
This item will amend the definition of 'relevant Act' in subsection 51(4)
by adding the PJC-LE Act for the purpose of the secrecy provision in
section 51 of the ACC Act. The effect of this new paragraph will be to
ensure that the secrecy offence will not prevent the CEO of the ACC, the
Chair of the ACC, a staff member of the ACC or an ACC examiner from
providing information to the PJC-LE.
Item 5: Part III
This item will repeal Part III of the ACC Act, which sets out the
legislative basis for the PJCACC. As the PJC-LE will replace the PJC-ACC,
Part III of the ACC Act will no longer be necessary.
Item 6: Subsections 59(6A), (6B), (6C) and (6D)
Subsections 59(6A) to (6D) of the ACC Act provide for the furnishing of
reports and information to the PJC-ACC. This item will repeal subsections
59(6A) to (6D), as similar provisions in relation to providing information
to the PJC-LE are included in the PJC-LE Bill.
Item 7: Transitional - Committee on the Australian Crime Commission
This item will provide that the current PJC-ACC will continue in existence
but be known, after the commencement of this item, as the PJC-LE. Members
of Parliament who were elected to the PJC-ACC before the commencement of
this item continue to be members of the PJC-LE. Similarly, any reviews
being conducted by the PJC-ACC may continue to be conducted by the PJC-LE.
The transitional provisions will also provide that the Ombudsman is not
required to give the PJC-LE a briefing about the AFP or the ACC's
involvement in controlled operations under Part IAB of the Crimes Act 1914
before 31 December 2010, if the Ombudsman has already provided a briefing
immediately before the commencement of the item. However, this will not
preclude the Ombudsman from delivering such a briefing. This is intended
to ensure the Ombudsman is not required to duplicate briefings to the
Committee if the Ombudsman has already provided a briefing to the PJC-ACC
on the ACC's involvement in controlled operations in the current calendar
year. However, there remains flexibility for the Ombudsman and the PJC-LE
to make arrangements for the Ombudsman to provide such a briefing if this
would be appropriate.
Australian Federal Police Act 1979
Item 8: After paragraph 60A(2)(e)
Section 60A of the Australian Federal Police Act 1979 (AFP Act) provides
that certain persons must not directly or indirectly make a record of or
divulge or communicate any prescribed information to any other person
except for certain persons provided for in subsection 60A(2).
This item will amend subsection 60A(2) of the AFP Act by adding a reference
to the PJC-LE Act or regulations under that Act. This will ensure that
the secrecy offence will not prevent AFP officers and others to whom the
secrecy offence applies from providing information to the PJC-LE in
accordance with its functions.
Item 9: Paragraph 60A(2)(f)
This item will amend subsection 60A(2) of the AFP Act to ensure that
paragraph 60A(2)(f) covers the PJC-LE Act. This will ensure that the
secrecy offence in section 60A of the AFP Act does not cover acts that are
permitted or required by the PJC-LE Act or Regulations under the Act.
Proceeds of Crime Act 2002
Item 10: Subsection 179U(1)
This item will replace the reference to the PJC-ACC with a reference to the
PJC-LE.
