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Bills Digest No. 120 2003-04
Anti-terrorism Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Anti-terrorism
Bill 2004
Date
Introduced: 31
March 2004
House: House of Representatives
Portfolio: Attorney-General
Commencement: The Act commences on the day after it receives Royal Assent.
The Bill seeks to amend the Crimes
Act 1914, the Crimes (Foreign Incursions and Recruitment) Act 1978,
the Criminal Code Act 1995 and the Proceeds of Crime Act 2002
to strengthen Australia’s
counter-terrorism measures.
The Bill seeks to redefine and extend the investigation
period set out in the Crimes Act for terrorism offences. Primarily, the
proposed amendment extends the period of arrest (or investigation period)
for a person arrested for a terrorism offence to enable law enforcement
agencies to investigate the offence. (See the Main provisions
section of this Digest for further detail and discussion of the individual
provisions of the Bill.)
Currently, section 23C of the Crimes Act provides
that if a person is arrested for a Commonwealth offence, the person ‘may
be detained for the purpose of investigating’ whether the person committed
the offence or another Commonwealth offence. Subsection 23C(2) provides
that the person may not be detained ‘after the end of the investigation
period’. Subsection 23C(4) provides that the ‘investigation period’ does
not extend beyond four hours unless, after the arrest, ‘the period is
extended under section 23D’. (Note that for indigenous persons and
minors, the initial investigation period is two hours not four hours.)
Section 23D of the Crimes Act deals with the extension
of the investigation period if a person is under arrest for a ‘serious
offence’. The term ‘serious offence’ is defined in subsection 23D(6)
to mean ‘a Commonwealth offence that is punishable by imprisonment for
a period exceeding 12 months’. The application to extend the investigation
period is usually made to a magistrate: subsection 23D(2). Subsection
23D(5) provides that the investigation period ‘may be extended for a period
not exceeding 8 hours, and must not be extended more than once’.
The proposal to increase the statutory time limit on
an investigation period seems to have come from Victorian Police Chief
Commissioner, Christine Nixon, who is reported to have said that ‘if a
Madrid-style attack were carried out in Australia, state police officers
would not have enough time to interrogate suspects because federal law
required them to be charged’.(1) On the issue of what extension
of time may be appropriate, the Commissioner said: ‘We think up to 24
hours is appropriate. We understand that 16 to 24 hours would be considered
reasonable by the federal Government’.(2) The Prime Minister
was reported to be ‘sympathetic’ to the proposal.(3) Opposition
Leader, Mark Latham MP, was reported
to support the proposal in principle.(4)
The Crimes (Foreign Incursions and Recruitment) Act currently
deals with incursions (hostile invasions) into foreign states by Australian
citizens or residents. A journalist recently described the Act as ‘anti-mercenary’.(5)
Among other things, the Crimes (Foreign Incursions and
Recruitment) Act creates the offences of entering a foreign state with
intent to engage in a hostile activity in that state, and engaging in
a hostile activity in a foreign state (paragraphs 6(1)(a) and (b)).
The objective of the activity must be to overthrow the government of the
foreign state; engage in armed hostilities; cause death or bodily injury
(or fear thereof) to the head of state or a person who holds or performs
the duties of public office; or unlawfully destroy or damage any real
or personal property belonging to the government of the foreign state:
subsection 6(3).
A person does not commit an offence under subsection
6(1) if he or she was serving ‘in any capacity in or with’ the armed forces
of the government of a foreign state or ‘any other armed force in respect
of which a declaration by the Minister under subsection 9(2) is in force’:
subsection 6(4). In the Second Reading Speech for the original
bill (1978), Senator Durack, the then
Attorney-General, explained the rationale for permitting Australians to
serve in foreign armies in the following way:
… the legislation will not prevent an Australian from
going overseas and enlisting in another country. The Government recognises
that occasions will arise where persons will wish to enlist and serve
in armed forces of another country because of a deeply-held belief.(6)
The Crimes (Foreign Incursions and Recruitment) Act also
creates offences of preparing for incursions into foreign states (section
7); recruiting persons to join organisations engaged in hostile activities
against foreign governments (section 8); and recruiting persons
in Australia
to serve in or with an armed force in a foreign state (section 9).
The Act also provides that the written consent of the Attorney-General
is required before instituting a prosecution for an offence under the
Act (section 10).
At the Security in Government conference in Canberra
on 17 March 2004,
the Attorney-General outlined his plan to amend the Crimes (Foreign Incursions
and Recruitment) Act ‘to make it an offence to fight with a rogue or terrorist
state’.(7) Mr Ruddock explained the rationale for the amendment
as follows:
The reason is quite clear. In looking at the matters
of Hicks and Habib where we sought to see whether there was a basis on
which they could be prosecuted in Australia for their behaviour abroad
… we found that enactment did not enable us to deal with a range of situations,
particularly where terrorist organisations are in fact instruments of
a state such as the Taliban.(8)
The Attorney-General said that the amendment would not
be retrospective, with the effect that the amended law ‘could not be used
to bring Hicks and Mahmoud Habib, the
two Australians detained in Guantanamo Bay,
Cuba, back to Australia
to be prosecuted’.(9) Shortly after the announcement, the
media reported that the Opposition ‘would consider the legislation on
its merits once the detail had been seen’ and that it would ‘wait to see
the detail of the proposals before commenting’.(10) Stephen
Hopper (Habib’s lawyer) is reported as saying that laws
which promote peace and good behaviour should not be used selectively.
He said that ‘Australians did military training in Israel,
the United States
and other countries, without being subjected to the same treatment as
Habib’.(11)
The Bill seeks to amend the Crimes (Foreign Incursions
and Recruitment) Act to broaden the scope of the offence contained in
section 6 of entering a foreign state with intent to engage in
a hostile activity (or actually engaging in such conduct). The Bill provides
that the defence in subsection 6(4) does not apply if the person enters
a foreign state ‘while in or with an organisation’ which has been prescribed
by the regulations as a ‘terrorist organisation’ at the time of entry.
The Bill also provides that the defence in subsection 6(4) does not
apply if the person engages in a hostile activity in a foreign state ‘while
in or with an organisation’ which is a prescribed organisation at the
time of the hostile activity. This amendment may create problems for
a person who leaves Australia
to join a foreign armed force (knowing that that army is not a prescribed
organisation), but the organisation is later prescribed. The person may
not be aware of the change of status of the organisation (that is, prescription)
but may commit an offence under section 6. The Explanatory Memorandum
states that the regulations prescribing organisations will not be retrospective.(12)
However, the knowledge deficit problem remains.
Further, the Explanatory Memorandum states that the amendment
to the Act enabling the making of regulations is designed to ‘outlaw participation
with new and emerging terrorist groups from the moment it becomes evident
that they pose a threat to Australia’s
security’.(13) However, this criterion is not included in
the amendments. Notably, the Bill also seeks to increase the penalty
for an offence under section 6.
The Bill seeks to amend the Criminal Code Act (‘the Criminal
Code’) by revising the offences of being a member of a terrorist organisation
in section 102.3 and of training a terrorist organisation (or receiving
training from a terrorist organisation) in section 102.5.
First, the Bill seeks to extend the operation of the
membership offence in section 102.3 to include membership of an
organisation which falls within paragraph (a) of the definition of ‘terrorist
organisation’ in subsection 102.1(1). At present, a person commits an
offence under section 102.3 if:
-
the
person intentionally is a member of an organisation
-
the
organisation is a specified terrorist organisation (being one which
falls within paragraphs (b)–(e) of the definition of ‘terrorist organisation’
in subsection 102.1(1)), and
-
the
person knows the organisation is a terrorist organisation.
The offence carries a penalty of a maximum of 10 years’
imprisonment. According to section 5.3 of the Criminal Code, a
person ‘has knowledge of a circumstance or a result if he or she is aware
that it exists or will exist in the ordinary course of events’.
The term ‘member [of an organisation]’ is defined
in subsection 102.1(1) of the Criminal Code to include ‘a person
who is an informal member of the organisation’, ‘a person who has taken
steps to become a member of the organisation’, and ‘in the case of an
organisation that is a body corporate—a director or an officer of the
body corporate’. The amendment may therefore lead to uncertainty about
the commission of an offence, particularly if a person is an informal
member of an organisation which may fall within paragraph (a) of the definition
of ‘terrorist organisation’ or if the person has taken steps to become
a member of the organisation.
It is arguable that the proposed amendment may have the
effect of curtailing freedom of association, particularly if the organisation
is not already a specified terrorist organisation or the organisation
does not have a formal organisational structure or membership processes.
Second, the Bill amends the offences in section 102.5.
Currently the Act provides two offences:
-
if a person intentionally provides training to, or receives training
from, an organisation and the organisation is a terrorist organisation
(as defined in subsection 102.1(1)) and the person knows the
organisation is a terrorist organisation—penalty: up to 25 years’
imprisonment, and
-
if
a person provides training to, or receives training from, an organisation
and the organisation is a terrorist organisation (as defined in subsection
102.1(1)) and the person is reckless as to whether the organisation
is a terrorist organisation—penalty: up to 15 years’ imprisonment.
The Bill now distinguishes between:
-
non-proscribed
organisations (or those which a court may find fall within paragraph (a)
of the definition of ‘terrorist organisation’ when a terrorist offence
is prosecuted) (proposed subsection 102.5(1)), and
-
those organisations specified as terrorist organisations (proposed
subsection 102.5(2)).
(This distinction is discussed further in relation to
items 19 and 20 of Schedule 1 in the Main Provisions section
of this Digest.)
Although the Prime Minister mentioned this aspect of
the Bill when speaking on the Sunday television program on 28
March 2004, there has been little press commentary directly
on this issue. Presumably, the justice spokesman for the Australian Democrats,
Senator Greig, was referring to the proposed
amendments to section 102.3 when he said that ‘the laws could
lead to uncertainty about what constituted a terrorist organisation’.(14)
Among other things, the Proceeds of Crime Act currently
empowers a court to control certain proceeds from publications that relate
to an indictable offence (being an indictable offence against Commonwealth
law) or a foreign indictable offence (defined below). In relation to
indictable offences, a court can control literary proceeds (defined largely
as any benefit a person derives from the commercial exploitation of notoriety
arising from the offence).(15) In relation to a foreign indictable
offence (defined below), the court can currently control only literary
proceeds that are derived in Australia.
The Bill amends the definition of ‘foreign indictable
offence’ in the Proceeds of Crime Act. Currently, ‘foreign indictable
offence’ is defined in section 338 of the Proceeds of Crime Act
as follows:
foreign indictable offence means an offence against
a law of a foreign country constituted by conduct that would have constituted
an offence against a law of the Commonwealth, a State or a Territory punishable
by at least 12 months imprisonment if it had occurred in Australia.
The amendment replaces that definition with a more complicated
definition. The revised definition extends the meaning of ‘foreign indictable
offence’ to provide that where a person commits an offence against a foreign
law at a time when the conduct was not an offence against Australian law,
but where the conduct is an offence against Australian law at the time
when an application is made for a restraining or confiscation order under
the Proceeds of Crime Act is first made, the conduct is treated as a ‘foreign
indictable offence’. In this way, the effect of the proposed amendment
is to provide for the retrospective application of future offence provisions,
not to charge or convict a person but to prevent a person deriving a commercial
benefit from the conduct.
The Bill also extends the operation of the legislation
to situations where literary proceeds are derived overseas but later
transferred to Australia.
According to the Second Reading Speech, the purpose of
the proceeds of crime legislation ‘is to discourage and deter crime by
diminishing the capacity of offenders to finance future criminal activities
and to remedy the unjust enrichment of criminals who profit at society’s
expense’.(16)
In submissions made to the review of the Proceeds
of Crime Act 1987 by the Australian Law Reform Commission in 1999,
various legal bodies suggested that the widest discretion should vest
in a court so that the legislation does not produce unjust results. They
also suggested that literary proceeds could be used to pay compensation
to victims of crime, and that where a person donates literary proceeds
to charity, a court should not confiscate the proceeds. They suggested
that literary proceeds should not be confiscated if there is no connection
between the literary work and the offence (that is, if the author writes
about matters unrelated to his or her criminal activities, even if the
author trades on notoriety gained from those activities). Finally, they
suggested that proceeds of crime legislation (and literary proceeds orders)
should not be seen as inhibiting free speech, because it targets the profit
rather than the speech itself.(17)
It is important to note that subsection 153(1)
of the Proceeds of Crime Act refers to the person ‘committing’ an indictable
offence or a foreign indictable offence; it is not necessary for the person
to be ‘convicted’ of the offence for the provision to take effect. It
remains, nonetheless, a question of proof.
Section 154 of the Proceeds of Crime Act sets
out the matters which a court must take into account in deciding whether
to make a ‘literary proceeds order’.(18) Those matters include:
(i) the nature and purpose of the product or activity
from which the literary proceeds were derived; and
(ii) whether supplying the product or carrying out the
activity was in the public interest; and
(iii) the social, cultural or educational value of the
product or activity; and
(iv) the seriousness of the offence to which the product
or activity relates; and
(v) how long ago the offence was committed.
Speaking on the Sunday television program on 28
March 2004, the Prime Minister said:
I think most people would regard it as pretty offensive
that somebody can be associated with a terrorist organisation which has
killed people, including associates, may have killed our people in Bali,
and then they go and write a book about it. I think that sticks in the
craw of most Australians …(19)
A spokesman for the Attorney-General has denied that
the amendment is aimed specifically at David Hicks.(20) On
behalf of the Democrats, Senator Greig
said: ‘We already have laws against profiting from crime which covers
films and books, as in the Mark ‘Chopper’ Read case, so these new laws
would be an unnecessary duplication’.(21)
The measures contained in the Bill (if not the Bill itself)
seem to have the support of the Opposition. Nonetheless, the Opposition
is cautious about the proposed amendments, as evidenced by the following
comments by its foreign affairs spokesman, Kevin Rudd
MP:
Our examination and our response to those draft laws
will be taken on the basis of our judgment of the Australian national
interest.
We place a high priority on the counter-terrorism fight
here at home and we will be looking carefully at the draft proposals put
to us by the Prime Minister.(22)
The Democrats are reported to have said that the proposed
amendments ‘would not stop terrorists and could harm the civil liberties
of Australians’ and that the laws are a ‘drastic over-reaction’.(23)
On 31
March 2004, the Greens issued a press release in which Senator
Bob Brown called for a Senate inquiry into the Bill ‘in
view of serious erosion of civil rights for Australians involved’. Senator
Brown drew attention to the possibility that ‘[i]nnocent
citizens, including range or pilot instructors, may be convicted of training
terrorists’.(24) However, on 30 March 2004, the Senate Standing Committee on the
Selection of Bills had already resolved to recommend that ‘the provisions
of the Anti-terrorism Bill 2004 be referred
immediately to the Legal and Constitutional Legislation Committee for
inquiry and report on 11 May
2004’.(25) On 31
March 2004, the Senate referred the provisions of the Bill
to the Committee. Submissions are called for before 19 April 2004.(26)
The principal matters for the Committee to consider are as follows:
The benefits of the bill for the investigation and prosecution
of Commonwealth terrorism offences.
The extent to which the amendment advances the objective
of the Proceeds of Crime Act 2002 to prevent individuals obtaining financial
benefit from criminal activity.(27)
Item 1 amends the definition of ‘investigation
period’ in subsection 23B(1) of the Crimes Act to add reference
to proposed section 23CA, which relates to the period of arrest
(or investigation period) if a person is arrested for a terrorism offence
(see commentary on item 5 below).
Item 2 inserts a definition of ‘terrorism offence’
into subsection 23B(1) of the Crimes Act. The term is defined
as ‘an offence against Division 72 of the Criminal Code’ or ‘an offence
against Part 5.3 of the Criminal Code’. Division 72 (being sections
72.1–72.10) deals with international terrorist activities using explosive
or lethal devices. Part 5.3 (being Divisions 100–106) deals
with terrorism. Among other things, it contains the definitions of ‘terrorist
act’ and ‘terrorist organisation’. As a result of the application of
the Criminal Code, ‘terrorism offences’ will also include ancillary offences
such as attempt, inciting, conspiracy and complicity.
Item 3 excludes terrorism offences from the application
of section 23C of the Act. As noted earlier, section 23C currently
deals with the period of arrest for a Commonwealth offence. The Bill
seeks to replace the heading to section 23C to make it clear that section 23C
applies only to arrests for non-terrorism offences. Consequently, the
Bill also seeks to insert proposed section 23CA to deal with the
period of arrest if a person is arrested for a terrorism offence (see
below). The Bill does not amend the period of arrest for a person arrested
for a non-terrorism offence—the initial period of arrest remains at four
hours unless the period is extended once (for up to eight hours) under
section 23D. (Note that if ‘the person is or appears to be under 18, an
Aboriginal person or a Torres Strait Islander’, the initial period is
two hours).
Item 4 amends subsection 23C(6) to provide
for the calculation of the arrest period under section 23C if the person
has already been arrested more than once in a period of 48 hours for either
a non-terrorism offence or a terrorism offence.
Item 5 inserts proposed section 23CA to
deal with the period of arrest if a person is arrested for a terrorism
offence. In large measure, it replicates section 23C (as amended by items
3 and 4 of Schedule 1). The initial period of arrest (or investigation
period) is four hours (or two hours for minors or indigenous persons to
whom paragraph 23CA(4)(a) applies). Time does not run when the questioning
of the person has been suspended, among other things, ‘to allow the person
to rest or recuperate’ (proposed paragraph 23CA(8)(j)), or
to allow ‘the investigating official to obtain information relevant to
the investigation from a place outside Australia that is in a different
time zone, being a period that does not exceed the amount of the time
zone difference’ (proposed paragraph 23CA(8)(m)). (It should
be noted that proposed paragraph 23CA(8)(m) is not replicated in
section 23C for non-terrorism offences.)
Item 6 amends subsection 23D(1) to exclude
terrorism offences from the operation of that provision (which deals with
the extension of the investigation period where a person is under arrest
for a serious offence). Consequently, item 7 inserts proposed
section 23DA to deal with the extension of the investigation period
if a person is arrested for a terrorism offence. Proposed section 23DA
largely replicates section 23D (as amended by item 6). The main
difference between the provisions is found in proposed 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’. (Compare 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’.)
Items 8–12 make consequential amendments to other
provisions of the Crimes Act to give effect to the proposed amendments
to the Crimes Act mentioned above.
Item 13 increases the penalty for the offence
of entering a foreign state with intent to engage in a hostile activity
(or actually engaging in a hostile activity in a foreign state) in subsection
6(1) of the Crimes (Foreign Incursions and Recruitment) Act from a
maximum of 14 years’ imprisonment to a maximum of 20 years’ imprisonment.
Item 14 increases the scope for the commission
of the offence in subsection 6(1) by amending section 6(2).
The effect of the amendment is that if the person alleged to have committed
the offence is not an Australian citizen or ordinarily resident in Australia
but the person was ‘present in Australia at any time before’ the act said
to constitute the offence and the person’s presence in Australia was connected
with that act, then the person can be prosecuted for an offence against
section 6. Currently the person must have been an Australian citizen,
ordinarily resident in Australia,
or in Australia
within a year of the act said to constitute the offence to be liable for
prosecution for an offence against section 6.
Item 15 inserts proposed subsections 6(5),
(6) and (7), which are designed to limit the operation of the defence
in paragraph 6(4)(a). Currently paragraph 6(4)(a) provides
that section 6 does not apply to ‘an act done by a person in the course
of, and as part of, the person’s service in any capacity in or with …
the armed forces of the government of a foreign state’. In other words,
service in the armed forces of a foreign government excuses a person from
liability for the offence.
Proposed subsection 6(5) provides that the defence
in paragraph 6(4)(a) will not apply if a person ‘enters a foreign State
with intent to engage in a hostile activity in that foreign State while
in or with an organisation; and … the organisation is a prescribed organisation
at the time of entry’. In other words, if the person is serving in or
with ‘the armed forces of the government of a foreign state’ but those
forces are a prescribed organisation, then the defence in paragraph 6(4)(a)
will not apply. Proposed subsection 6(5) may create problems for a defendant
who is abroad when the organisation is prescribed in Australia
and may not be aware of the prescription (or have the ability to find
out).
Proposed subsection 6(6) provides that the defence
in paragraph 6(4)(a) does not apply if a person ‘engages in a hostile
activity in a foreign State while in or with an organisation; and … the
organisation is a prescribed organisation at the time when the person
engages in that hostile activity’. Again, this provision may cause problems
for a defendant who is abroad when the organisation is prescribed in Australia
and may not be aware of the prescription.
Proposed subsection 6(7) defines ‘prescribed organisation’
for the purposes of proposed subsections (5) and (6). The term means
an organisation prescribed by the regulations for the purposes of paragraph
6(7)(a) or an organisation specified by the regulations for the purposes
of paragraph (b) of the definition of ‘terrorist organisation’ in subsection
102.1(1) of the Criminal Code (in other words, a specified terrorist organisation).
This provision thus contemplates the prescription of organisations other
than those specified as terrorist organisations. The regulations will
be subject to disallowance by either House of Parliament.
Item 16 amends paragraph 7(2)(b) of the
Crimes (Foreign Incursions and Recruitment) Act to increase the scope
of the operation of section 7 (being offences of preparing for
incursions into foreign states for the purpose of engaging in hostile
activities). Presently, the Act provides that for a person to commit
an offence against section 7, the person must be an Australian citizen
or an Australian resident or present in Australia
during one year before the offence. The effect of the amendment will
be to remove the ‘one year’ time limit on a person’s presence in Australia
prior to the offence and to replace it with reference to the person being
in Australia
at any time ‘before’ the offence. Accordingly, a person who is an Australian
citizen, an Australian resident or who has been in Australia at any time
before the doing of the act giving rise to the offence (if the person’s
presence was connected with the offence) may be taken to have committed
the offence.
Item 17 inserts proposed subsection 11(3A).
Section 11 deals with evidentiary certificates of Ministers that
can be used in proceedings for offences against the Act. Proposed subsection
11(3A) provides that a certificate by a Minister stating that an organisation
named in the certificate was not on a specified day or period ‘an armed
force, or part of an armed force, of the government of a foreign State
specified in the certificate’ is prima facie evidence of the matters
stated in the certificate. One of the reasons for relying on ministerial
certificates is that a matter is difficult to prove. However, it may
also be difficult in practice for a defendant to rebut the facts contained
in the certificate.(28) Clause 4 of the Bill provides
that the amendment made by item 17 ‘does not apply to proceedings
for offences alleged to have been committed before the commencement of
this Act’.
Item 18 inserts proposed section 12 to
provide that the Governor-General may make regulations prescribing matters
for the purposes of the Crimes (Foreign Incursions and Recruitment) Act.
As mentioned earlier, the regulations would be subject to disallowance.
Item 19 amends the offence of being a member of
a terrorist organisation in section 102.3 of the Criminal Code.
It replaces the requirement that the organisation must be a ‘terrorist
organisation’ within paragraph (b), (c), (d) or (e) of the definition
of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code
(that is, an organisation specified by the regulations as a ‘terrorist
organisation’) with the requirement that the organisation ‘is a terrorist
organisation’ (that is, including paragraph (a) of the definition of ‘terrorist
organisation’).(29)
It is arguable that the proposed amendment may have the
effect of curtailing freedom of association, particularly if the organisation
is not already a specified terrorist organisation and a person is unsure
about whether an organisation’s activities would cause a court to determine
that it is a ‘terrorist organisation’ under paragraph (a) of the definition
of a ‘terrorist organisation’ when an offence is prosecuted. Nonetheless,
given that paragraph (a) of the definition of ‘terrorist organisation’
may already introduce some uncertainty to the definition of ‘terrorist
organisation’, it is also arguable that the amendment does no more than
ensure that the whole of the existing definition of ‘terrorist organisation’
(contained in subsection 102.1(1) of the Criminal Code) applies to the
offence contained in section 102.3.
Proposed subsection 102.5(1) provides that a person
commits an offence if the person intentionally provides training to, or
intentionally receives training from, an organisation, and the organisation
is a terrorist organisation (including an organisation which is not currently
specified as a terrorist organisation), and the person is reckless
as to whether the organisation is a terrorist organisation. The penalty
is up to 25 years’ imprisonment.
Proposed subsection 102.5(2) provides that a person
commits an offence if the person intentionally provides training to, or
receives training from, an organisation, and the organisation is a specified
terrorist organisation. Proposed subsection 102.5(3) introduces
strict liability into the offence contained in subsection 102.5(2).
This means that the prosecution need not prove that the person considered
whether the organisation was a specified terrorist organisation, but the
person may raise a defence of mistake of fact (see sections 6.1 and
9.2 of the Criminal Code).
Further, proposed subsection 102.5(4) provides
a defence of recklessness. This means that the person bears the evidential
burden of proving either that he or she was not ‘aware of a substantial
risk that the circumstance [being proscription] exists or will exist’
or that ‘having regard to the circumstances known to him or her,
it was not unjustifiable to take the risk’. (See subsection 5.4(1)
of the Criminal Code.) It is not, however, clear how the defendant would
prove that he or she was not reckless as to whether an organisation was
a specified terrorist organisation. The penalty for the offence is 25
years’ imprisonment.
In relation to proposed subsection 102.5(3), it
should be noted that it is unusual for serious Commonwealth offences to
contain elements of strict (or absolute) liability.(30) The
rationale for the introduction of strict liability (and the reversal of
the onus of proof) is explained in the Second Reading Speech:
The effect of the proposed strict liability provision
is that the prosecution still has to prove that the person intentionally
provided training to or intentionally received training from an organisation,
and that the organisation is a terrorist organisation specified by regulations.
However, the prosecution would not have to prove that
the person was aware that it was a specified terrorist organisation.
A person will have available a defence of mistake of
fact.
In addition, the offence will not apply if the person
is not reckless as to the organisation being a specified terrorist organisation.
The effect of this amendment is to place an onus on persons
to ensure that they are not involved in training activities with a terrorist
organisation.
This amendment will send a clear message to those who
would engage in the training activities of terrorist activities, which
could result in an attack of the kind seen in New
York or in Bali, that they
can expect to be dealt with harshly.(31)
In this context, it should be noted that ‘training’ is
not defined in the Criminal Code or in the Bill. There is potential for
the term to be construed broadly (for example, it could include receiving
a training manual).
Clause 4 of the Bill provides that the amendments
to the Proceeds of Crime Act contained in items 21–27 have retrospective
operation. The amendments are said to apply to applications in relation
to ‘conduct that occurred … proceeds derived or realised … or … literary
proceeds derived or transferred to Australia
before the commencement of this Act’.
Item 21 of Schedule 1 amends paragraph 20(1)(d)
of the Proceeds of Crime Act. The main distinction between the current
provision and item 21 is that the amendment will enable a court
to make a restraining order in relation to literary proceeds which are
not derived in Australia
but which are transferred to Australia.
Likewise, item 22 amends paragraphs 20(3)(b) and (c) to
extend the operation of section 20 to literary proceeds derived outside
Australia.
Item 23 amends subsection 152(2) to provide
that a court with ‘proceeds jurisdiction’ may make a literary proceeds
order if it is satisfied that a person has committed a foreign indictable
offence and the person has derived literary proceeds in relation to the
offence. Currently paragraph 152(2)(c) provides that the person has derived
the literary proceeds in Australia,
but item 23 seeks to remove the reference to Australia.
As noted earlier, subsection 153(1) refers to the person ‘committing’
an indictable offence or a foreign indictable offence; it is not necessary
for the person to be ‘convicted’ of the offence for the provision to take
effect.
Item 24 amends the definition of ‘literary proceeds’
in section 153 to provide that they are a benefit a person derives
from the commercial exploitation of (among other things) ‘the person’s
notoriety resulting directly or indirectly from the person committing
an indictable offence or a foreign indictable offence’ (proposed amendment
emphasised). It is arguable that these words could have been inferred
in the provision as it currently stands, but the proposed amendment may
clarify the situation.
Item 25 also amends the definition of ‘literary
proceeds’ in section 153 by inserting proposed subsection 153(3A).
That provision states that if the offence is a foreign indictable offence,
then a benefit is not treated as ‘literary proceeds’ unless the benefit
is derived in Australia or transferred to Australia. In other words,
a court having ‘proceeds jurisdiction’ could not make an order for payment
to the Commonwealth under Part 2–5 of the Proceeds of Crime Act if the
person committed a foreign indictable offence but did not derive any benefit
in Australia and maintained the proceeds in a foreign bank (so long as
no benefits are transferred to Australia).
Item 26 inserts proposed section 337A defining
‘foreign indictable offence’. The term is currently defined in section
338, but the proposed definition is wider. As mentioned earlier, the
revised definition extends the meaning of ‘foreign indictable offence’
to provide that where a person commits an offence against a foreign law
at a time when the conduct was not an offence against Australian law,
but where the conduct is an offence against Australian law at the time
an application is first made for a restraining or confiscation order under
the Proceeds of Crime Act is made, the conduct is treated as a ‘foreign
indictable offence’. This provision (referred to in the Second Reading
Speech as ‘the double criminality test’) has retrospective operation,
which may be unfair if a person commits a crime overseas which is not
a crime in Australia at the time the conduct giving rise to the offence
occurs. In some circumstances, however, it is arguable that a crime may
be so morally reprehensible that the perpetrator should not go unpunished,
particularly if the perpetrator has derived a benefit from the commission
of the offence.
The term ‘offence against a law of a foreign country’
includes an offence triable by a military commission of the United
States under a specific military order:
‘Detention, Treatment, and Trial of certain Non-Citizens in the War Against
Terrorism’, issued by President George W Bush
on 13 November 2001.(32) Offences
triable by a military commission include, for example, certain war crimes,
attacking civilians or civilian property, terrorism, aiding the enemy
and ancillary offences.(33)
Item 27 repeals the current definition of ‘foreign
indictable offence’ in section 338 and replaces it with a cross-reference
to the definition of the term in proposed section 337A (see
item 26 above).
Tensions exist between the right to personal
liberty and the need to detain a person to enable law enforcement officers
to investigate crime. These tensions have been the subject of numerous
reports and legal decisions. See, for example, the decision of the High
Court of Australia in Williams
v The Queen (1986) 161 CLR 278 where Mason
and Brennan JJ said (at 299):
The jealous protection of personal liberty
accorded by the common law of Australia requires police so to conduct
their investigation as not to infringe the arrested person's right to
seek to regain his personal liberty as soon as practicable. Practicability
is not assessed by reference to the exigencies of criminal investigation;
the right to personal liberty is not what is left over after the police
investigation is finished.
By contrast, it has been argued that the
common law protection afforded to personal liberty is too great:
The criminal law must strike a balance between
the protection of personal liberty and the exigencies of criminal investigation.
There is a strong argument in favour of the view that the common law and
its statutory equivalents as now interpreted by the courts unrealistically
fail to give due weight to the latter consideration, with the consequence
that if the law were strictly enforced the proper investigation of crime
would be likely to be seriously hampered and offenders would be likely
to escape justice.(34)
In the case of the present Bill,
Parliament may want to consider whether the balance is right between the
need for law enforcement officers to investigate crime and the rights
of the suspect not to be detained for an unreasonable period of time.
It may also want to consider whether the extended period of involuntary
detention to enable investigations to occur sits comfortably with the
potential of the extended period of detention to erode the suspect’s right
to remain silent.
A doctoral candidate at the Australian
National
University
recently described the proposed amendments to the Crimes Act and the Crimes
(Foreign Incursions and Recruitment) Act (as contained in the present
Bill) as ‘certainly
sensible’. However, the same candidate referred to the other proposed
amendments as ‘deeply worrisome’. He referred specifically to the proposed
amendments to the Proceeds of Crime Act as follows:
While effectively curtailing the freedom
of speech, a fundamental principle in any liberal democracy, provisions
like these are also counterproductive. History provides numerous examples
for defectors of terrorist groups publishing books or memoirs and thus
providing rare insights into the respective group’s organisational structures
and motivations.(35)
Questions might be raised about whether the
proposed amendments to the Proceeds of Crime Act infringe the implied
constitutional freedom of communication concerning political and governmental
matters. Freedom of communication is considered to be central to the
system of representative government. However, as the High Court of Australia
explained in Lange
v Australian Broadcasting Corporation (1997) 189
CLR 520, the freedom is not absolute. A
law which might otherwise breach the freedom is valid if it satisfies
two conditions (at 567-568) (footnotes omitted):
When a law of a State or federal Parliament
or a Territory legislature is alleged to infringe the requirement of freedom
of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two
questions must be answered before the validity of the law can be determined.
First, does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or effect?
Second, if the law effectively burdens that freedom, is the law reasonably
appropriate and adapted to serve a legitimate end the fulfilment of which
is compatible with the maintenance of the constitutionally prescribed
system of representative and responsible government and the procedure
prescribed by s 128 for submitting a proposed amendment of the Constitution
to the informed decision of the people (hereafter collectively ‘the system
of government prescribed by the Constitution’). If the first question
is answered ‘yes’ and the second is answered ‘no’, the law is invalid.
In deciding whether a law impermissibly infringes
the implied freedom, a court might look at whether ‘political communication’
was involved, and if so, whether a law preventing a person profiting from
their work effectively burdens political communication. If the answer
to these questions is ‘yes’, the court would need to consider whether
the law is ‘reasonably appropriate and adapted’. As mentioned in the
Background section to this Digest, the Australian Law Reform Commission
considers that proceeds of crime legislation does not inhibit free speech,
because it targets profit rather than speech.
It should be noted that the High Court of
Australia has never found a right to freedom of association implied in
the Constitution.
The proposed revision of the term ‘foreign
indictable offence’ in the Proceeds of Crime Act has two components: the
offence must be an offence against the law of a foreign country (which
includes an offence triable by a military commission), and the activity
must be an offence against Australian law at the ‘testing time’ (that
is, when an application is first made for a restraining order or a confiscation
order under the Proceeds of Crime Act). While Hicks and Habib may not
have committed an offence against Australian law at the time they were
apprehended, it is possible (depending on the evidence) that their activities
may constitute an offence at a future ‘testing time’. For instance, there
is now a range of terrorist act and terrorist organisation offences, war
crimes and other offences under the Criminal Code (including ancillary
offences). If passed, the Bill
will add modified offences under the Crimes (Foreign Incursions and Recruitment)
Act relating to preparation for foreign incursions to this list, as well
as new terrorism offences.
If this is the case, then the Proceeds of
Crime Act (as amended by the Bill)
could apply to Hicks and/or Habib. By virtue of proposed section 337A
of the Proceeds of Crime Act (being the definition of ‘foreign indictable
offence’), if the conduct of Hicks (and/or Habib) constituted an offence
against a law of a foreign country and if the conduct had occurred
in Australia at the testing time, the conduct would have constituted
an offence under Australian law punishable by at least 12 months’ imprisonment
at the testing time, then the conduct would constitute a ‘foreign
indictable offence’. The Commonwealth could then seek a restraining order
or a confiscation order in relation to any literary proceeds which Hicks
may derive from publishing a book (provided the benefit was derived in
Australia
or transferred to Australia).
Neither Hicks nor Habib need be charged or convicted of an offence for
the Proceeds of Crime legislation to take effect; section 152 of
the Proceeds of Crime Act refers to a court being satisfied that the person
has committed an indictable offence or a foreign indictable offence (whether
or not the person has been convicted of the offence) and ‘that the person
has derived literary proceeds in relation to the offence’.
-
Brendan Nicholson, ‘Police may get
more time to hold terror suspects’, The Age, 20 March 2004, p. 7.
-
Martin Chulow, ‘PM backs new power
to detain’, The Weekend Australian, 20 March 2004, p.4.
-
Martin Chulow, ‘PM backs new power
to detain’, The Weekend Australian, 20 March 2004, p.4, and [unidentified author], ‘Longer
detention for terror suspects’, Daily Telegraph, 20 March 2004, p. 5
-
Martin Chulow, ‘PM backs new power
to detain’, The Weekend Australian, 20 March 2004, p. 4, and Brendan Nicholson,
‘Police may get more time to hold terror suspects’, The Age,
20 March 2004, p. 7.
-
Mark Phillips, ‘New law to fight
terrorism’, Herald Sun (Melbourne), 18
March 2004, p. 5.
-
Senator Durack, Attorney-General,
‘Second reading speech: Crimes (Foreign Incursions and Recruitment)
Bill 1978’, Senate, Debates, 7 March 1978, p. 364.
-
Sophie Morris, ‘Ruddock in grab
for terror powers’, The Australian, 18
March 2004, p. 2.
-
Mark Phillips, ‘Terrorists face our courts; Legislation to toughen
security’, Daily Telegraph, 18 March 2004, p. 5, and Verona
Burgess, ‘Ruddock bid for secret trials’, The Canberra Times,
18 March 2004, p. 2.
-
Brendan Nicholson, ‘Legal push to
tackle terrorism’, The Age, 18 March 2004, p. 2.
-
Sophie Morris, ‘Ruddock in grab for terror powers’, The Australian,
18 March 2004, p. 2, and Mark Phillips, ‘New law to fight terrorism’,
Herald Sun (Melbourne), 18 March 2004, p. 5.
-
Brendan Nicholson, ‘Legal push to
tackle terrorism’, The Age, 18 March 2004, p. 2.
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 19 (item
15).
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 18 (item
15).
-
‘Bid to outlaw profits from terror memoirs’, The Canberra Times,
29 March 2004, p. 2.
-
Currently, Part 2–5 of the Proceeds of Crime Act deals with
literary proceeds orders. It forms part of Chapter 2 of the
Act, which deals with the confiscation scheme. The term ‘literary
proceeds’ is defined in subsection 153(1) of the Proceeds of
Crime Act as follows:
Literary proceeds are any benefit that a
person derives from the commercial exploitation of:
the person's notoriety resulting from the person
committing an indictable offence or a foreign indictable offence;
or
(a)
the notoriety of another person, involved in the commission
of that offence, resulting from the first-mentioned person committing
that offence.
(The term ‘commercial exploitation’ is defined
in subsection 153(2) as including ‘(a) publishing any material
in written or electronic form; or (b) any use of media from which
visual images, words or sounds can be produced; or (c) any live entertainment,
representation or interview’. The term ‘benefit’ is defined in section
338 as including ‘service or advantage’.)
-
The Hon Philip Ruddock, Attorney-General, ‘Second reading speech:
Anti-terrorism Bill 2004’, House of Representatives, Debates,
31 March 2004, p. 26 476.
-
Australian Law Reform Commission, Confiscation that counts: A
review of the Proceeds of Crime Act 1987, Report No 87, 1999.
The report is available electronically at: http://www.austlii.edu.au/au/other/alrc/publications/reports/87/
(at 13 April 2004).
See particularly Chapter 18 ‘Literary proceeds’ at paragraphs 18.37–18.43.
-
A ‘literary proceeds order’ is an order under section 152 requiring
a person to pay an amount to the Commonwealth where the person has
derived literary proceeds from the commission of an indictable offence.
-
John Howard, Prime Minister, Transcript of interview with Laurie
Oakes, Sunday, Channel 9, 28 March 2004; also quoted in Jason
Frenkel, ‘Crackdown on suspects cashing in; PM toughens detention
laws’, Herald Sun (Melbourne), 29 March 2004, p. 2.
-
‘Bid to outlaw profits from terror memoirs’, The Canberra Times,
29 March 2004, p. 2.
-
‘Bid to outlaw profits from terror memoirs’, The Canberra Times,
29 March 2004, p. 2.
-
Brendan Nicholson, ‘Coalition reviews anti-terror laws’, The Age,
29 March 2004, p. 5, and Tony Maguire, ‘PM flags new laws to fight
terror’, Daily Telegraph, 29 March 2004, p. 2.
-
‘Bid to outlaw profits from terror memoirs’, The Canberra Times,
29 March 2004, p. 2, and Tony Maguire, ‘PM flags new laws to fight
terror’, Daily Telegraph, 29 March 2004, p. 2.
-
Senator Bob Brown, ‘Anti-terrorism
bill's provisions require scrutiny: Greens’, Press release, 31 March 2004, available at http://www.greens.org.au
(at 1 April 2004).
-
Senate Standing Committee on the Selection Of Bills, Report
No. 6 of 2004, Senate Journals, Volume 142, 31
March 2004, p. 3301.
-
See http://www.aph.gov.au/senate/committee/legcon_ctte/anti_terrorism04/index.htm
(at 13 April 2004)
-
Senator Jeannie Ferris, ‘Committees:
Selection of Bills Committee: Report’, Senate, Hansard, 31 March 2004, p. 22 125.
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 19 (item
17).
-
Paragraph (a) of the definition of ‘terrorist organisation’ provides:
‘(a) an organisation that is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act (whether
or not the terrorist act occurs)’.
-
See, for example, Attorney-General’s Department, Submission
to the inquiry by the Senate Legal and Constitutional Legislation
Committee into the Security Legislation Amendment (Terrorism) Bill
2002 (No. 2) and related Bills, Submission 383A, 26 April 2002,
p. 6 (which refers to other terrorism offences, sexual offences outside
Australia involving minors, and offences involving UN personnel).
-
The Hon Philip Ruddock, Attorney-General, ‘Second reading speech:
Anti-terrorism Bill 2004’, House of Representatives, Debates,
31 March 2004, p. 26 475 (available
electronically at: http://www.aph.gov.au/hansard/reps/dailys/dr310304.pdf).
-
See http://www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html
(at 1 April 2004).
-
Department of Defense (USA),
Military Commission Instruction No. 2 (Subject: Crimes and
Elements for Trials by Military Commission), 30
April 2003.
-
Review of Commonwealth Criminal Law, (chaired by Sir
Harry Gibbs), Discussion Paper No. 3, ‘Arrest
and related matters’, September 1987, p. 20 at paragraph 5.5.
-
Christopher Michaelsen, ‘Little
basis for tougher terrorism laws’, The Canberra Times, 6 April 2004, p. 11.
Morag Donaldson
19 April 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
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IRS staff are available to discuss the paper's contents
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ISSN 1328-8091
© Commonwealth of Australia 2004
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