Bills Digest No. 6 2004-05
Bill (No. 2) 2004
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
Contact Officer & Copyright Details
Bill (No. 2)
Introduced: 17 June
House: House of Representatives
The Bill s formal
provisions commence on Royal Assent. The five Schedules have a
variety of commencement provisions. These are noted in the Main
Provisions section of the Digest.
proposed by the Bill:
provide that a person can be required to surrender their foreign
travel documents in certain circumstances for instance, if they are
the subject of an arrest warrant for an indictable offence or if
they are likely to prejudice Australia s security
create new offences relating to foreign travel documents. These
offences carry penalties of up to 10 years imprisonment or 1000
penalty units(1), or both
provide that a person can be required to surrender their
passport once the
Director-General of ASIO has asked the Attorney-General for consent
to apply for an ASIO warrant
create an offence of associating with terrorist organisations,
punishable by up to three years imprisonment
establish a scheme for the transfer of prisoners within
Australia if the Attorney-General believes that such transfers are
necessary on security grounds, and
enable the Minister to determine that Commonwealth, State and
Territory officials can access the national DNA database for
forensic purposes in the event of a mass casualty disaster
occurring in Australia.
Background information about each of the topics
mentioned above is supplied either in this section or in the Main
Provisions section of the Digest.
The Bill was referred to the Senate Legal and
Constitutional Legislation Committee for inquiry and report by 5
Under amendments made in 2003 to the
Australian Security Intelligence Organisation Act 1979
(the ASIO Act), ASIO can obtain a warrant from an issuing authority
(2) for the questioning of an adult when there are
reasonable grounds for believing that the warrant will
substantially assist the collection of intelligence that is
important in relation to a terrorist offence. This means that ASIO
questioning warrants for adults can be issued for both suspects and
non-suspects. ASIO warrants can also provide for a person s
detention if there are reasonable grounds for believing that the
person may alert someone involved in a terrorism offence, may not
appear before a prescribed authority (3) or may destroy
or damage evidence.
ASIO warrants for questioning and detention may
also be issued in relation to children aged between 16 and 18 years
but only if it is likely that the child will commit or has
committed a terrorism offence.
In general, the subject of an ASIO warrant cannot
be detained for more than 168 hours but once they have been
questioned for a total of 24 hours, they must be released.
Amendments made by the ASIO Legislation Amendment Act 2003
extend the total questioning period to 48 hours if an interpreter
is present at any time during a person s questioning.
Obtaining an ASIO warrant is a four-stage
the Director-General of Security first seeks the
Attorney-General s consent to request the issue of an ASIO warrant
from an issuing authority (4)
the Attorney-General may consent to the request being made if
satisfied that the statutory grounds are made out. These include
being satisfied that there are reasonable grounds for believing
that issuing the warrant will substantially assist the collection
of intelligence that is important in relation to a terrorist
if the Minister consents to the request being made, then
the Director-General can ask an issuing authority to issue a
the issuing authority may issue a warrant if the
Director-General s request is in accordance with the statutory
requirements and if the issuing authority is satisfied that there
are reasonable grounds for believing that issuing the warrant will
substantially assist the collection of intelligence that is
important in relation to a terrorist offence.(7)
The ASIO Legislation Amendment Act 2003
amended the ASIO Act so that, once an ASIO warrant has been issued,
the subject of the warrant must surrender their passport or
passports (Australian and/or foreign) to someone exercising
authority under the warrant.(8) Failure to do so is an
offence punishable by up to 5 years imprisonment.(9) In
contrast to these existing provisions, the amendments in
Schedule 2 of the Bill are designed to operate at
the beginning of the warrant application process. The proposed
amendments will mean that once the Director-General asks the
Attorney-General to consent to an application being made to an
issuing authority (ie before the Attorney-General consents
and before an application is made to an issuing authority or
a warrant is issued), a person can be required to surrender their
In March 2004, the Commonwealth Attorney-General said that the
Government would look at introducing consorting with terrorist
offences as a logical extension of State laws against consorting
with criminals.(10) The Attorney has said that the
offence proposed by the Bill:
is aimed at the fundamental unacceptability of
terrorist organisations as entities by making a wider range of
activity which supports the existence or expansion of such
The Bill introduces an offence of associating with terrorist
organisations, punishable by up to three years imprisonment.
As the Attorney-General indicated, associating or
consorting offences are not unknown in Australian law first
appearing in the Vagrancy Act 1835 (NSW).(12)
They are described in one criminal law text as one of Australia s
dubious contributions to the criminal law. (13)
Modern Australian consorting laws introduced from
the 1920s to the mid-1950s were designed to curb the activities of
criminal gangs.(14) They were and are the subject of
some controversy. One legal academic has described the activities
of the NSW Consorting Squad in the 1930s in the following way:
The role of the Consorting Squad was to coordinate
enforcement of the consorting law. There is evidence that in the
early years it was used quite aggressively. Police compiled
dossiers on people discharged from gaols and used the threat of a
consorting booking to extract information about others. The threat
of a charge became the major use of the offence in later years. It
allowed police to arrest most people they regularly dealt with if
those people proved to be uncooperative. It fitted easily into the
culture of discretion and power that produced systemic corruption.
However, it did very little to counter serious or organised crime
and would have required very high levels of police resources
particularly as the bookings all had to be achieved within a six
On the other hand, NSW consorting laws and the
early activities of the Consorting Squad have also been described
in these terms:
This legislation was imperative at the time to
combat the predatory activities of criminal gangs operating in the
inner city precincts. To enforce the provisions of the new
legislation, a Consorting Squad was formed within the Criminal
The activities of this new [sic] formed
squad were largely responsible for the suppression of these
organised criminal groups and the total extinction of the 'razor
The Consorting Squad was considered the best
training ground of all for aspiring young Detectives to acquire
knowledge of the 'under-world' and the criminal element
Most Australian jurisdictions continue to have
consorting offences on their statute books.(17) In
brief, the offences are generally found in summary offences, police
offences or vagrancy statutes and make it an offence to do things
habitually consort with reputed thieves
habitually consort with persons who have been convicted of
habitually consort with reputed thieves, prostitutes or persons
without lawful visible means of support
habitually consort with reputed criminals or known prostitutes
or persons who have been convicted of having no visible lawful
means of support
be in a place in the company of reputed thieves.
In some jurisdictions, the person has an excuse if they can give
a good account of their consorting. Custodial penalties range from
3 months imprisonment to 12 months imprisonment for a first offence
and 2 years imprisonment for a second offence.
Although traditional consorting offences remain on the statute
books of the States and the Northern Territory they appear to
generate few prosecutions and there have been some calls for their
repeal.(18) For instance, the Western Australian Law
Reform Commission commented in 1992 that it is:
inconsistent with the principles of the criminal
law to make it an offence to associate with particular people.
Offences should proscribe conduct thought deserving of punishment.
Merely associating with people, whether they are known to be in a
particular category or are merely reputed to be in a particular
category, should not be criminal.(19)
In 2001, the Scrutiny of Acts and Regulations Committee of the
Victorian Parliament commented on the Victorian consorting offence
in the following terms:
It seems unlikely that the consorting offence
would have great utility as a measure to prevent persons with
extensive criminal records from meeting to plan further crimes, in
part because such meetings must be habitual in nature and
documented by police on numerous occasions to constitute an
In addition, police evidence suggested that the
consorting provisions were generally used to respond to consorting
in public, and it appears likely to the Committee that groups of
persons planning criminal activities could avoid being observed
consorting by simply choosing to meet in private.
The Committee is concerned that consorting
provisions may be used to put pressure on individuals and groups
which the police want to move along , rather than as a tool for
preventing the planning of serious crimes.(20)
Support for the retention of State consorting laws has come from
the police. For instance, in evidence given to the Scrutiny of Acts
and Regulations Committee of the Victorian Parliament, the Victoria
Police and the Police Association strongly disagreed with the
Committee s view that consorting offences should be repealed and
argued that consorting offences were a useful strategic tool for
crime prevention.(21) And recently Australian Federal
Police Commissioner, Mick Keelty said:
We have seen the offence of consorting all but
disappear from our statutes.
But with terrorism, it is vital that we disrupt
and prevent the crime at the earliest intervention point.
This often requires action by law enforcement
agencies at the preparation or planning stage when there is limited
evidence of more substantive changes.
My view is "so be it".
We are not the only state grappling with this
problem. I have had discussions with our counterparts in the UK and
the US on this very point.
But you only have to have walked through the
devastating crime scenes of the Bali bombings to understand why
this is so important.
Consorting can - and is - being undertaken on the
internet and as a society we need to recognise this and look for
better ways to deal with it and I am pleased to say that the
government and the Parliament appear to understand the
A modern variation on traditional consorting laws is found in
section 17A of the Crimes (Sentencing Procedure) Act 1999
(NSW) which deals with non-association and place restriction
orders. One of the differences between the proposed association
offence and section 17A is that the latter operates where a person
has been convicted of an offence(23) and a court is
satisfied that it is reasonably necessary to make such an order to
ensure that the offender does not commit any further offences. In
addition, the exceptions for non-association or place restriction
orders(24) differ from the exceptions for the proposed
association offence. Under section 100A, a court cannot make a
non-association order or place restriction order in relation
the offender s place of residence or the place of residence of
any member of the offender s close family,(25) or
any place of work at which the offender is regularly employed,
any educational institution at which the offender is enrolled,
any place of worship where the offender regularly
The Explanatory Memorandum explains that:
Exceptions under the NSW law relating to
education, employment and residence are not included [in the Bill]
because of the potential for misuse of these kinds of exception by
those with links to a terrorist organisation.(27)
The Transfer of Prisoners Act 1983 (Cwlth) affects
prisoners serving sentences for offences against federal, ACT,
Norfolk Island, Christmas Island and Cocos (Keeling) Island laws.
State and Northern Territory laws deal with the transfer of
prisoners who are serving sentences for offences against State and
Northern Territory laws.
The Transfer of Prisoners Act is the result of an agreement by
the Standing Committee of Attorneys-General. It enables the
prisoners covered by it to be transferred between all Australian
jurisdictions for trial or for welfare purposes. The purpose of the
legislation is explained in the second reading speech for the
Transfer of Prisoners Bill 1983:
The transfer of prisoners for welfare purposes
will assist the rehabilitation of prisoners and minimise the
hardships caused to the families of prisoners.
The transfer of prisoners for the purposes of
trial will remedy a deficiency in Australian law which prevents a
prisoner being moved from one jurisdiction to another to stand
trial until he has served his prison term in the first
jurisdiction. If the prison term in the first jurisdiction is a
lengthy one there are obvious difficulties for the prosecution.
Such transfers will accordingy benefit the administration of
justice within Australia. It will also be of benefit to prisoners
who are anxious to have all outstanding charges in different
jurisdictions dealt with rather than serve a sentence in one
jurisdiction and thereafter be extradited to another
The amendments in Schedule 4 of
the Bill create an additional circumstance in which prisoners
can be transferred between jurisdictions where the Attorney-General
considers the transfer necessary on security grounds. This new
regime will apply not only to federal and territory prisoners but
also to State prisoners.(29)
Amendments of the Passports Act commence on the 28th
day after the day on which the Act receives Royal Assent
As things stand, subsection 9(1A) of the Passports Act enables
Customs officers, police officers and authorised persons to order a
person to deliver up their Australian or foreign passport in
certain circumstances for example, where the officer believes that
the passport has been falsely obtained.
As a result of the amendments, subsection 9(1A) will apply only
to Australian passports (see items 13 and 14). A
new regime will apply to the surrender of foreign travel documents
(new sections 13-17). A foreign travel document is
a foreign passport or an identity document issued by a foreign
government (item 7).
Under the new regime, if a competent authority believes
on reasonable grounds that a person is:
subject to an Australian arrest warrant for an indictable
offence or prevented from travelling internationally by an
Australian court order or Australian law, or
subject to a foreign arrest warrant for a serious foreign
offence or prevented from travelling internationally by a foreign
court order or foreign law
then the competent authority can ask the Minister to order the
person to surrender their foreign travel documents (new
sections 13 and 14). A competent authority includes a
person specified in a Ministerial determination.(30)
An application for a Ministerial surrender order can also be
made by a competent authority who suspects on reasonable
grounds that unless the person s foreign travel documents are
surrendered, the person is likely to engage in conduct that:
might prejudice the security of Australia or a foreign
might endanger physical health or safety in Australia or a
might interfere with the rights and freedoms of others set out
in the International Covenant on Civil and Political Rights
might constitute an indictable offence against the Passports
might constitute an indictable offence against a Commonwealth
law specified in a Ministerial determination [new paragraph
The competent authority must also suspect on reasonable grounds
that the person should be required to surrender their passport in
order to prevent them engaging in that conduct [new
The grounds set out in new paragraphs 15(1)(a) and
(b) generally replicate provisions in subsection 8(1B) of
the Passports Act,(32) which deals with the cancellation
of Australian passports. However, new paragraph
15(1)(a) contains two additional grounds. The first of
these is that the person s behaviour might constitute an indictable
offence against the Passports Act. The second is that the person s
behaviour might constitute an offence against a Commonwealth law
specified in a Ministerial determination.
If the Minister makes a surrender order, it is an offence for a
person not to surrender their foreign travel documents (new
section 16).(33) The maximum penalty is
imprisonment for 1 year or 20 penalty units, or both. Documents
that are not surrendered can be seized by an enforcement officer
(ie a Customs officer, a police officer or a person authorised to
act as an enforcement officer).(34)
Foreign travel documents that have been surrendered as a result
of a Ministerial order can be retained for so long as a competent
authority believes on reasonable grounds that the circumstances on
which the surrender application was based still exist. However, a
foreign travel document must be returned if so ordered by the
Administrative Appeals Tribunal (AAT) [new subsection
Rules governing the AAT s review of a Ministerial surrender
order are set out in new section 23. In brief,
they provide that:
only the person whose foreign travel documents are subject to a
surrender order has standing to challenge the Minister s order
if a Ministerial surrender order is made in response to a
section 15 request (the potential for harmful conduct provision),
then the Minister can certify that the decision involved matters of
international relations or criminal intelligence. If the Minister
issues such a certificate then the AAT can only affirm the Minister
s decision or remit it to the Minister for reconsideration. In
other words, it cannot quash the Minister s decision.
The amendments also provide that an enforcement officer can
demand that a person surrender a suspicious foreign travel
document(35) [new section 17(1)]. A
person who fails to surrender such a document commits an offence
punishable by up to one year s imprisonment or a fine of 20 penalty
units, or both [new subsection 17(2)].
As presently framed, section 9A of the Passports Act contains
offences relating to the improper possession of Australian and
foreign passports and section 9B contains offences relating to the
falsification of foreign passports within Australia.
The amendments to the Passports Act remove offences relating to
foreign passports from sections 9A and 9B (items 18 and
19) and create new Part 3 of the
Passports Act. New Part 3 will deal only with
offences relating to foreign travel documents. Offences relating to
Australian passports will be located in new Part
1A of the Passports Act.
New Part 3 provides that it will be an offence
make a false or misleading statement in an application for a
foreign travel document (new section 18)
give false or misleading information in an application for a
foreign travel document (new section 19)
produce a false or misleading document in relation to an
application for a foreign travel document (new section
improperly use or possess a foreign travel document (for
example, using or possessing a cancelled foreign travel document)
(new section 21), or
possess, make or provide a false foreign travel document
(new section 22).(36) The expression
false foreign travel document is defined to include a passport or
identity document that purports to be an official document but is
In each case, the maximum penalty is 10 years imprisonment or
1,000 penalty units (currently $110,000), or both. These penalties
represent a substantial increase on the penalties which currently
apply to similar offences under the Passports Act. For instance,
the existing offence of possessing a falsified foreign passport
attracts a maximum penalty of $5000 or 2 years
The amendments in Schedule 2 commence on the
28th day after the day on which the Act receives Royal
Assent (clause 2).
The effect of Schedule 2 will be that once the
Director-General of ASIO has asked for the Attorney-General s
consent to request an issuing authority to issue a questioning
warrant, the person who is the subject of that request may be
required to deliver their passport/s to an enforcement
officer(38) [new subsection 34JBA(1)].
Failure to do so is an offence punishable by up to 5 years
New subsection 34JBA(2) requires the passport
to be returned as soon as practicable if the issuing authority
refuses to issue the warrant, the Minister refuses to consent to an
application being made to the issuing authority or the warrant
Director-General may return the passport earlier than this.
Under new subsection 34JBB(1) it is an offence
for a person to leave Australia without permission once the
Director-General of ASIO has asked the Minister to request a
questioning warrant from an issuing authority and the person has
been informed of the effect of new subsection
34JBB(1). The maximum penalty is 5 years imprisonment.
Permission to leave Australia can be obtained from the
Director-General and can be made subject to conditions. The
permission can also be varied or revoked.
The amendments in Schedule 3 commence the day
after the Act receives Royal Assent (clause
Item 3 of Schedule
3 inserts new subsection 102.8(1)
into the Criminal Code. This is an offence of associating with a
member, promoter or director of a proscribed terrorist
organisation.(39) Associating means meeting or
communicating (item 1 of Schedule 3). In order to
commit an offence against new subsection 102.8(1),
a person must on two or more occasions:
intentionally associate with a member, promoter or director of
the person must know that the organisation is a terrorist
their association must support the organisation
hey must intend their support to assist the organisation to
expand or survive (in this context, a person has intention if he or
she means to bring about the result or is aware that it will occur
in the ordinary course of events),(40) and
they must know that the person with whom they are associating is
a member, promoter or director of the organisation.
The maximum penalty for this offence is imprisonment for 3
New subsection 102.8(2) provides that once a
person has a prior conviction of associating with a terrorist
organisation, any further association(41) with a
proscribed organisation (even on a single occasion and not
necessarily with the same organisation) will mean that they commit
an offence. Once again, the penalty is three years
In the case of each offence, strict liability applies to the
fact that the organisation is a proscribed organisation. This means
that the prosecution need not prove that the accused person was
aware that the organisation was a proscribed organisation
[new paragraphs 102.8(1)(b) and
(2)(g); new subsection 102.8(3)].
However, the accused person can raise a defence of mistake of fact
A number of defences are provided:
close family member association
[new paragraph 102.8(4)(a)]. This defence will
apply to people defined as close family members so long as the
association only relates to something that can be reasonably
regarded as a matter of family or domestic concern. The expression,
close family member , means the person s spouse, de facto spouse,
same sex spouse, parent, step-parent, grandparent, child,
step-child, grandchild, brother, sister, step-brother, step-sister,
guardian or carer(42)
religious practice [new
paragraph 102.8(4)(b)]. This defence applies if the
association is in a place used for public religious worship during
humanitarian aid [new paragraph
102.8(4)(c)]. This defence applies if the association is
only for the purpose of providing humanitarian aid
legal advice or legal representation
[new paragraph 102.8(4)(d)]. This defence applies
if the association is only for the purpose of providing legal
advice or legal representation connected with proceedings relating
to whether the organisation is a terrorist organisation or with
existing or possible criminal proceedings
implied freedom of political communication
[new subsection 102.8(6)]. Section 102.8 does not
apply to the extent that it would infringe any constitutional
doctrine of implied freedom of political communication
There are also defences that specifically relate to the element
in each offence that the organisation is a proscribed organisation.
These defences are:
mistake of fact [new subsection
102.8(3)].(43) A defendant can raise a mistake
of fact defence. This places an evidential burden on a defendant to
show, first, that he or she considered whether or not the
organisation was proscribed and was under a reasonable but mistaken
belief about the situation and, second, that if he or she had been
right, no offence would have been committed.(44) Once
the defendant raises evidence pointing to a reasonable possibility,
the onus shifts to the prosecution to rebut that evidence beyond
not reckless [new subsection 102.8(5)].
Here the defendant must raise evidence pointing to a reasonable
possibility that he or she was not reckless that the organisation
is a proscribed organisation.(45)
New subsection 102.8(7) provides that where a
person is convicted of an offence under new subsection
102.8(1), they cannot be punished for an offence under
that section for other conduct occurring at the same time as that
conduct or within 7 days before or after that conduct occurs.
Presumably, however, this will not stop a person being prosecuted
for a new section 108.1(2) offence.
New section 102.8 amends Part 5.3 of the
Commonwealth Criminal Code the part of the Criminal Code containing
terrorism offences. The Commonwealth has no head of constitutional
power over criminal law or terrorism. Thus, in 2002 and 2003 all
States made text referrals to the Commonwealth in the same terms as
Part 5.3.(46) The purpose of the text referrals is to
cover any potential legislative gaps in Commonwealth power for
instance, in the case of entirely state-based terrorist activity
which does not contain any Commonwealth or foreign
element.(47) To guard against any deficits in the
Commonwealth s constitutional power to enact an associating with
terrorist organisations offence, the States, the ACT and the
Northern Territory will need to agree to the proposed amendment to
Part 5.3. To be precise, an express amendment to Part 5.3 needs the
agreement of a majority of States, the ACT and the Northern
Territory and the agreement of at least four
The amendments in Schedule 4 commence on the day the Act
receives Royal Assent (clause 2).
The main purpose of Schedule 4 is to amend the
Transfer of Prisoners Act 1983 to deal with the transfer
of prisoners on security grounds (new Part IV).
The word security is defined in item 5 of
Schedule 4 and includes the protection of the
Commonwealth, the States and Territories and their people from
espionage, sabotage, politically motivated violence, promotion of
communal violence, attacks on Australia s defence system or acts of
foreign interference. It does not matter whether such activities
are directed from or committed within or outside Australia. The
definition of security replicates that in section 4 of the ASIO
New section 16B deals with transfers on
security grounds. It enables the Attorney-General to order that a
prisoner or remand prisoner be transferred from a prison in one
State or Territory to a prison in another State or Territory if he
or she believes on reasonable grounds that it is necessary in the
interests of security. Such an order can only be made with the
written consent of the appropriate Minister in the originating
State or Territory and the appropriate Minister in the destination
State or Territory. This order is called a security transfer order
New section 16C deals with the return of
prisoners who have been transferred on security grounds. It enables
the Attorney-General to order the return of such a prisoner if he
or she reviews an order and believes on reasonable grounds that
circumstances have changed. This order is called a return transfer
order . Once again the consent of the appropriate State or
Territory Ministers is required.
Security transfer orders and return transfer orders must be
reviewed by the
Attorney-General within three months of being made or last reviewed
[new subsection 16C(2)].
New section 16D deals with transfers so that a
prisoner can take part in court proceedings. With the consent of
the appropriate State and Territory Ministers, the Attorney-General
can make an order transferring a prisoner or remand prisoner who is
subject to a security transfer order or a return transfer order to
another State or Territory to appear in court proceedings (the
Attorney-General may then order the prisoner to be transferred back
once their appearance is concluded) [new subsection
16D(1)]. Written consents from the appropriate State and
Territory Ministers are required.
New section 16E deals with the transfer of a
remand prisoner for trial purposes. Where a remand prisoner who is
subject to a security transfer order or return transfer order is
required to stand trial, the Attorney-General must order that he or
she be transferred to the jurisdiction where the trial is being
conducted (and then transferred back as soon as practicable after
their appearance concluded). However, the Attorney-General need not
make such an order if he or she believes on reasonable grounds that
it is essential in the interests of security that the transfer not
occur and the court that ordered the person s remand in
custody orders that the remand can continue [new subsection
When considering whether to make a security transfer order, a
return transfer order, or a transfer order relating to legal
proceedings, the Attorney-General must consider all matters that he
or she considers relevant including the administration of justice
and the welfare of the prisoner or remand prisoner
[new subsections 16B(2), 16C(3) and
16D(3)]. However, these matters need not be considered by
the Attorney-General when he or she is making a decision about the
transfer of a remand prisoner for trial under new section
New section 16F deals with the interaction of
federal and State prisoner transfer laws. It provides that where a
security order or a return transfer order has been made by the
an application cannot be made under a State transfer law for
that person to be transferred to another State or Territory,
a court cannot order a transfer under a State transfer law.
Finally, Ministerial decisions under the Transfer of Prisoners
Act that are made on security grounds are not subject to judicial
review under the Administrative Decisions (Judicial Review) Act
1977 (item 1 of Schedule 4).
Such decisions include decisions made under new Part
IV and refusals to transfer Commonwealth prisoners under
Part II (transfers on welfare grounds) and Part III (transfers so a
person can stand trial for an offence against Commonwealth or
Items 1-5 of Schedule 5
commence on Royal Assent (clause 2). Item
6(50) commences either on the start of the day
on which the Act receives Royal Assent or on 22 December
2004(51) whichever occurs later (clause
Schedule 5 amends Division 11A of the
Crimes Act 1914. Amendments made to Division 11A in
2002(52) added to the circumstances in which
Commonwealth, State and Territory officials can access the national
DNA database. As a result of the 2002 amendments, access for
forensic purposes such as victim identification or criminal
investigation is allowed in relation to:
Before making a determination, the Minister must be satisfied
that one or more Australian citizens or residents have died as a
result of the incident and that it is appropriate for Division 11A
to apply to the incident.
The 2002 amendments also provided that the Minister must
establish an independent review of the operation of Division 11A.
The Explanatory Memorandum states:
The review is being undertaken at the time of
these amendments. The Chair of the review committee has written to
the Minister for Justice and Customs advising that existing
forensics legislation may be inadequate to facilitate effective
disaster victim identification if a mass casualty incident were to
occur within Australia.(54)
The amendments in Schedule 5 respond to these
The Bill amends Division 11A so that a Ministerial determination
can be made irrespective of whether an incident occurs inside or
outside Australia. However, the Minister will not be able to make a
determination in relation to an incident occurring wholly inside
Australia or Norfolk Island unless:
Minister suspects on reasonable grounds that the incident involves
the commission of a Commonwealth or Territory offence or a State
offence with a federal aspect(55)
the Minister suspects on reasonable grounds that victims of the
incident are persons who fall within the ambit of Commonwealth
constitutional power (for example, aliens or Australian Defence
Force members),(56) or
the Minister is satisfied that the incident is or has created a
national emergency [new subsection 23YUF(2A)].
Under the ASIO Act as it presently stands a person, including a
person who is not suspected of committing any criminal offence,
must surrender their passport/s once they are the subject of an
ASIO questioning warrant that has been issued by an issuing
Amendments proposed by the Bill will mean that a person can be
required to surrender their passport/s once authority to request a
warrant has been sought from the
Attorney-General by the Director-General of Security. Parliament
may wish to consider whether the proposed provisions strike an
appropriate balance between national security and the right of an
individual not to have their freedom of movement unreasonably
The proposed associating with terrorist organisations offences
are more sophisticated than the State consorting offences on which
they are based. For instance, unlike State consorting offences,
which generally contain few defences(57), the Bill
proposes a number of defences such as association because a person
is a close family member or because a person is providing certain
legal advice or assistance. Further, unlike State consorting
offences, which criminalise habitual association irrespective of
motive or purpose, the Bill stipulates that an accused person s
association must provide support to a proscribed organisation and
that their support must be intended to assist the organisation to
expand or survive.
These things aside, the association offences raise questions
whether it is appropriate to criminalise behaviour that is not
connected with a terrorist act
the close family member exception in new paragraph
102.8(4)(a). The definition of close family member does
not include relatives like uncles, aunts, cousins or relatives by
marriage (such as fathers or mothers-in-law; sons or
daughters-in-law) that is, people who in some cultures are part of
the immediate family . Nor is it clear how a close family member
will be able to avail themselves of a defence that requires their
association to relate only to a matter of family or domestic
the legal advice or legal representation exception in
new subparagraph 102.8(4)(d)(ii). One of the
exceptions in this category relates to the provision of legal
advice or legal representation in connection with proceedings
relating to whether the organisation in question is a terrorist
organisation. This would include proceedings under the
Administrative Decisions (Judicial Review) Act 1977
challenging the Minister s decision to proscribe an organisation
under subsection 102.1(2) of the Criminal Code. However, the
exceptions do not cover legal advice or representation provided in
connection with a delisting application to the
Attorney-General.(58) They do not cover legal advice or
representation that is provided in relation to civil proceedings.
Nor do they seem to cover possible future proceedings relating to
whether the organisation is a terrorist
the exceptions in new paragraphs 102.8(4)(a), (c)
and (d), which require the association to be only for the
excepted purpose for instance, only for the purpose of
providing aid of a humanitarian nature . How likely it is that a
defendant will be able to successfully rely on such defences is
unclear given that human contact is rarely for one purpose only.
Would a dominant purpose test be more appropriate?
the types of behaviour that may be caught by the offence. For
instance, should a person s conduct be criminalised if their
association with a proscribed organisation is for the purpose of
persuading the organisation to change its goals?(60)
What if their association with an organisation has occurred because
they do not believe that the organisation should be a proscribed
organisation? What if a person s association with a proscribed
organisation is designed to support its charitable activities
rather than its terrorist activities? The offence does not
recognise that proscribed organisations may have a range of
purposes. What if the association is for the purpose of supporting
a member of a proscribed organisation who has been charged with a
terrorism offence for instance, by accompanying a defendant to
court? Arguably, all these associations may be
intended(61) to support the organisation to expand or
survive and may amount to an offence(62)
the necessity for and effect of criminalising association with a
person who is a promoter of a proscribed organisation. What is a
promoter in this context? And it is important to note that it is
not an offence under Part 5.3 of the Criminal Code to be a promoter
of a terrorist organisation(63)
the requirement for an association to occur on two or more
occasions. The decided cases suggest that for consorting to occur
under State law two meetings can indicate habitual consorting,
depending on the circumstances.(64) However, in evidence
to the Scrutiny of Acts and Regulations Committee of the Victorian
Parliament, the Victoria Police said that people are only charged
with consorting if formally reported on numerous occasions within a
defined time-limit. (65) Should an offence be triggered
by associations on two occasions given that a person need not
associate with the same proscribed organisation for an association
offence to occur and given that there is no defined time-limit in
which the associations must occur(66)
in what circumstances will a person be able to rely on an
implied freedom of political communication defence?
does the offence raises issues about an implied constitutional
freedom of association?
New section 16E of the Transfer of Prisoners
Act provides that the Attorney-General is not obliged to make an
order returning a transferred prisoner to another jurisdiction for
trial if he or she believes on reasonable grounds that it is
essential on security grounds that the order not be made and the
court that remanded the person in custody orders that the detention
may continue. The Minister need not take account of other
considerations such as the welfare of the prisoner or the
administration of justice. Nor are there requirements for periodic
review of the Minister s decision and it is clear how long a person
might be remanded in custody without a trial and without being able
to test the prosecution case against them.
Under the Transfer of Prisoners Act as it presently stands, the
Minister s transfer powers relate to Commonwealth and Territory
prisoners and have clear constitutional bases. The Bill extends the
Minister s transfer powers to State prisoners. The constitutional
bases for these amendments are less clear-cut.(67)
A penalty unit is $110 see subsection 4AA(1), Crimes Act
Issuing authorities are Federal judges and magistrates who have
consented to the Minster appointing them as issuing authorities.
Other persons in a specified class can be prescribed by regulation
as issuing authorities. See section 34AB, ASIO Act.
The Minister may appoint former superior court judges as
prescribed authorities . If sufficient numbers of former superior
court judges cannot be found then the Minister can appoint serving
State or Territory Supreme Court or District Court judges. If there
are still insufficient numbers, the Minister can appoint certain
AAT Presidents and Deputy Presidents. See section 34B, ASIO
See subsections 34C(1) & (2), ASIO Act.
See subsection 34C(3)-(3D), ASIO Act.
See subsection 34C(4), ASIO Act.
See section 34D, ASIO Act. Additional considerations apply if a
person has already been detained under earlier warrants.
Section 34JC, ASIO Act.
Unless a confiscated passport has been cancelled, it must be
returned as soon as practicable after the warrant has expired but
can be returned earlier. A person s passport must be surrendered
again if they are subject to another ASIO warrant. Amendments made
by the ASIO Legislation Amendment Act 2003 also made it an
offence for a person to leave Australia without the
Attorney-General s permission while an ASIO warrant is in force
once they are told that a warrant has been issued and that they are
forbidden from leaving Australia. The maximum penalty for this
offence is 5 years imprisonment. See section 34JA, ASIO Act.
See Attorney-General, Opening and welcome address. Security in
Government Conference 2004 , 17 March 2004; New laws target
terrorist allies , Sunday Mail, 14 March 2004; Tighter
defence against terror , Sydney Morning Herald, 16 March
2004; New law to fight terror , Herald Sun, 18 March 2004.
And see the statistics for NSW in Alex Steel, Consorting offences
in New South Wales: Substantive offence or police power? , 26(3)
(2003) UNSWLJ 567-602, p. 581.
Attorney-General, Second Reading Speech, Anti-terrorism Bill
(No. 2) 2004, House of Representatives, Hansard, 17 June
2004, p. 30712.
The Act made it an offence for any person who was not a black
native or the child of any black native to be wandering in the
company of black natives . It was also an offence to be found in a
house in the company of reputed thieves or persons with no lawful
means of support unless the defendant could prove that they were
there on some lawful occasion .
David Brown et al, Brown, Farrier, Neal
and Weisbrot s Criminal Laws. Materials and Commentary on
Criminal Law and Process in New South Wales,
Federation Press, 2001, p. 997.
For a detailed account see Steel, op. cit.
ibid., pp. 590 1.
See section 546A, Crimes Act 1900 (NSW); section 6,
Vagrancy Act 1966 (Vic); section 13, Summary Offences
Act 1953 (SA); section 6, Police Offences Act 1935
(Tas); section 65, Police Act 1892; section 4,
Vagrants, Gaming and other Offences Act 1931; and sections
56 and 57, Summary Offences Act (NT).
Although from time to time there are reports that police are
considering using consorting laws see Criminals warned , Manly
Daily, 1 February 2002; Town angry after gang camps at hotel ,
The Australian, 30 May 2002. Recommendations for the
repeal of consorting laws have been made by the Law Reform
Commission of Western Australia, Report on Police Act
Offences, Project No. 85 (1992) and by the Scrutiny of Acts
and Regulations Committee of the Victorian Parliament, Final
Report. Inquiry into the Vagrancy Act 1966, September
Law Reform Commission of Western Australia, op. cit, pp. 41
Scrutiny of Acts and Regulations Committee, op. cit, p. 13.
Commissioner Mick Keelty AM, Address to the National Press
Club, The AFP - 25 years and beyond , 7 July 2004.
The offence must be punishable by at least six months
Under section 100A, Crimes (Sentencing Procedure) Act
The definition of close family member in the Bill replicates the
definition of close family in section 100A(3) of the Crimes
(Sentencing Procedure) Act 1999 (NSW).
Subsections 100A(1) and (2), Crimes (Sentencing Procedure)
Act 1999 (NSW).
Explanatory Memorandum, p. 31.
Lionel Bowen MP, Second Reading Speech, Transfer of Prisoners
Bill 1983, House of Representatives, Hansard, 19 October
1983, p. 1897.
Transfers of State offenders are contingent on the consent of
the relevant State.
The expression, competent authority , is defined in new sections
13, 14 and 15.
The Explanatory Memorandum foreshadows the type of offences that
may be specified many of the offences in the Criminal Code that
have extended geographical jurisdiction (such as terrorism and
people smuggling offences and crimes against humanity). See p.
Although there are no reasonable grounds requirement in existing
section 8 of the Passports Act.
The person must be notified of the surrender order and of the
matters contained in new subsection 16(5).
See the definition of enforcement officer in item 5 of Schedule
That is, where the officer suspects that the document has been
Standard geographical jurisdiction applies to these offences
(section 14.1, Criminal Code). This means, for example, that a
person will not commit an offence under new Part 3 unless the
conduct consisting of the alleged offence occurs wholly or partly
in Australia or wholly or partly on board an Australian ship or
Paragraph 9A(1)(f), Passports Act.
The term, enforcement officer , is defined to mean a
Commonwealth, State or Territory police officer or a Customs
officer new subsection 34JBA(5).
In other words, an organisation that is a terrorist organisation
because of paragraph (b), (c), (d) or (e) of the definition of
terrorist organisation in the Criminal Code.
See subsection 5.2(3), Criminal Code.
The association must satisfy the requirements of new section
Item 2 of Schedule 3.
The defence of mistake of fact is applied to elements of strict
liability by subsection 6.1(2) of the Criminal Code.
See section 9.2, Criminal Code.
That is, the defendant has an evidential burden.
A text referral contains the terms of a reference in the form of
a Bill. It can be contrasted with a reference of
Attorney-General, Doorstop, Fremantle , Transcript, 8
Section 100.8, Criminal Code.
However, the component parts of the definition (terms like
politically motivated violence and promotion of communal violence )
are not defined. They are defined in the ASIO Act.
Repealing subsection 23YUF(2C) of the Crimes Act.
Immediately after the commencement of Schedule 3 to the
Australian Federal Police and Other Legislation Amendment Act
2004. However, if this does not occur, item 6 of Schedule 5
does not come into effect.
Crimes Amendment Act 2002.
A Ministerial determination is a disallowable instrument under
section 46A of the Acts Interpretation Act 1901.
Explanatory Memorandum, p. 5. The review is expected to be
completed in July 2004.
The term State offence with a federal aspect is defined in new
Other examples are provided in new subsection 23YUF(2B).
In some jurisdictions, being able to give a good account of the
association is an excuse.
Section 102.1(17) of the Criminal Code enables an individual or
organisation to ask the Minister to de-list (de-proscribe) a listed
Unlike the exception in proposed subparagraph 102.8(4)(d)(i)
which provides an exception in relation to legal advice or
representation connected with criminal proceedings or proceedings
related to criminal proceedings (including possible criminal
proceedings in the future)
Arguably, changing an organisation s goals might lead to a
successful de-listing application and to the organisation surviving
As stated earlier, intention for these purposes involves meaning
to bring about the result or being aware that it will occur in the
ordinary course of events. Subsection 5.2(3), Criminal Code.
Assuming that the other physical and fault elements are made
It is an offence to direct, be a member of or recruit for a
terrorist organisation. It is an offence to receive from or give
training to a terrorist organisation. It is also an offence to give
funds to or receive funds from a terrorist organisation or to
provide support to a terrorist organisation. See sections
102.2-102.7, Criminal Code.
Steel, op. cit; Explanatory Memorandum, p. 29.
Scrutiny of Acts and Regulations Committee, op. cit, p. 11.
Steel, op. cit, comments, Despite the fact that the courts have
held that two or more instances of consorting could be sufficient,
the enforcement of the offence has been significantly restricted by
the need for police to make their bookings within the six month
period required by the relevant criminal procedure legislation.
Currently, the requirement is contained in s 179 of the
Criminal Procedure Act 1986 (NSW). p. 573.
Possible constitutional sources of power might include the
Commonwealth s executive power to protect the nation combined with
the express incidental power; the implied nationhood power; and the
27 July 2004
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