Bills Digest no. 62 2005–06
Anti-Terrorism Bill 2005
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
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Today the Government will introduce into the
House of Representatives an urgent amendment to Australia s
counter-terrorism legislation and seek the passage of the amendment
through all stages tonight. The President of the Senate will recall
the Senate for 2pm tomorrow. It is the Government s wish that the
amendment be law as soon as possible.
The Government has received specific intelligence and police
information this week which gives cause for serious concern about a
potential terrorist threat. The detail of this intelligence has
been provided to the Leader of the Opposition and the Shadow
Minister for Homeland Security.
The Government is satisfied on the advice
provided to it that the immediate passage of this bill would
strengthen the capacity of law enforcement agencies to effectively
respond to this threat.
The Government is acting against the background of the
assessment of intelligence agencies that a terrorist attack in
Australia is feasible and could well occur. In ASIO s recently
released annual report a warning is contained that specifically
cites the threat of home-grown terrorism. ASIO also warned that
attacks without warning are feasible.
The Prime Minister also announced:
item 10 clarifies that, when determining whether
an organisation satisfies the definition of a terrorist
organisation, it is not necessary to prove the organisation is
preparing, planning, assisting in or fostering the particular
terrorist act. It will be sufficient if the prosecution can show
the organisation is preparing, planning, assisting in or fostering
a terrorist act.
This amendment was item 7 in the Draft Bill. It does not appear
in the current Bill.
The Australian Security and Intelligence Organisation Report to
Parliament 2004-5(ASIO Report)
referred to in the Prime Minister s announcement of 2 November
makes the following assessment of a domestic risk of
Most extremists are influenced by foreign events
some in Australia view the Coalition action in Iraq as an attack on
all Muslims. Others believe they do not fit into Australian society
or into the society of their parents. Despite a strong cultural
sense of the importance of community and family, some individuals
choose to lean heavily on their perceptions of conflict as a battle
between Muslims and infidels. This perception engenders a sense of
isolation and rejection which is difficult for moderate elements in
the Australian Muslim community to counteract and the moderates are
perceived to be part of the problem by the extremists.
Extremists in Australia come from a variety of
ethnic backgrounds. Some of the more extreme individuals ASIO has
identified and investigated are Australian-born. Some have
participated in terrorist training overseas while others have never
On 8 September 2005, Prime Minister John Howard announced
a number of proposed changes to Australia s counter-terrorism laws
with the aim of enabling Australia to better deter, prevent, detect
and prosecute acts of terrorism .
At a special meeting of the Council of Australian Governments
(COAG) on 27 September 2005, State and Territory leaders
unanimously agreed to a series of counter-terrorism measures. Those
measures are set out in the COAG
The Parliamentary Library regularly updates an E-Brief Proposals
to further strengthen Australia s counter-terrorism laws 2005
which compiles commentary on the Draft Bill. The Parliamentary
Library also regularly updates a Law
Internet Resource Guide, which features the key existing
legislation, a chronology and commentary.
The Parliamentary Library has prepared a
comparative table comparing measures contained in the Prime
Minister s media release on 8 September, the COAG Communiqu and the
Draft Bill. A table contrasting this Bill with Schedule 1 of the
Draft Bill is attached as an Appendix.
Subclause 4(1) refers to an agreement by the
Council of Australian Governments made on 27 September to review
the amendments in Schedule 1.
Subclause 4(2) provides that
if a copy of the report in
relation to the review is given to the Attorney-General, the
Attorney-General must cause a copy of the report to be laid before
each House of Parliament within 15 sitting days after the
Attorney-General receives the copy of the report.
Schedule 1 items 1 to 5 amend the Criminal
Code Act 1995 to widen the scope of the following
providing or receiving training connected with
terrorist act (item 2, clause 101.2(3))
possessing a 'thing' connected with
terrorist act (item 3, clause 101.4 (3)).
collecting or making documents likely to
facilitate terrorist acts (item 4, clause
other acts done in preparation for or planning terrorist act
(item 5, clause 101.6 (3))
financing terrorism (item 22,
In each case the scope of the offence is
expanded by the amendments which clarify that the
offence is committed even if:
act does not occur; or
(possession of a thing, making documents or financing terrorism
etc) is not connected with a specific terrorist act; or
with more that one terrorist act.
A terrorist act does not include advocacy, protest, dissent or
industrial action; which is not intended:
to cause serious harm that is physical harm to a person; or
to cause a person's death; or
to endanger the life of a person, other than the person
taking the action; or
to create a serious risk to the health or safety of the public
or a section of the public. (section 100.1)
The effect of the amendments is to widen the scope of each
offence and ensure existing provisions are not read down to require
a more specific connection to an identifiable act of terrorism. The
Prime Minister s media release of 2 Nov states: (3)
Items 2 to 5 clarify that, in a prosecution for
a terrorism offence, it is not necessary to identify a particular
terrorist act. The existing offences contain a subsection that
provides that a person commits the offence even if the terrorist
act does not occur. When the offences were originally drafted, it
was not the intention that the prosecution would be required to
identify a particular terrorist act.
The amendments will clarify that it is not necessary for the
prosecution to identify a specific terrorist act. It will be
sufficient for the prosecution to prove that the particular conduct
was related to a terrorist act.
The amendments will ensure the relevant offences
will be available where a person is considering a range of
activities that are still in formative stages and not advanced to
the point of the details being decided upon. For example, a person
or group of persons may be considering a range of activities such
as killing persons or detonating a bomb. However, that person or
group may not have decided which of the activities will be carried
out, nor the time, date or method of such activities. In other
words, in proving one of the amended offences it will not be
necessary to establish that the person has settled on a particular
target, time or date or other specific particulars of the action or
threat of action said to constitute the terrorist act. For example,
where the person has settled on an action such as destroying a
Government building but has not decided on a particular building,
time or date this would fall within the concept of a terrorist
Section 100.4 of the Criminal Code already states that an
extremely wide range of antecedent conduct:
(1) Subject to subsection (4), this Part applies to the
(a) all actions or threats of action that constitute terrorist
acts (no matter where the action occurs, the threat is made or the
action, if carried out, would occur);
(b) all actions (preliminary acts) that relate to
terrorist acts but do not themselves constitute terrorist acts (no
matter where the preliminary acts occur and no matter where the
terrorist acts to which they relate occur or would occur).
The pressing issue that arises from this Bill is one of
overlapping review mechanisms.
Explanatory Memorandum states:
This clause ensures that the COAG agreement to a
five-year review of these new laws is enshrined in the legislation.
It also ensures that any report on the review of these new laws
will be made public.(4)
It is not self-evident upon reading clause 4 that a review must
take place. The provision itself does not set up the review
process. Similarly, subclause 4(2) is qualified that
if the Attorney-General is given a report, he or
she must table it. It is not clear whether the Attorney-General
must be given any report.
Divisions 101 and 103 were introduced by the Security
Legislation Amendment (Terrorism) Act 2002 which included a
statutory review provision. An Independent Committee to
assess the operation and effectiveness of these provisions (amongst
others) was announced by the Attorney-General on 12 October
The Security Legislation Review Committee will be chaired by the
Honourable Simon Sheller AO QC, a recently retired NSW Supreme
The committee comprises former ACT Chief Police Officer John
Davies APM OAM; Inspector General of Intelligence and Security Ian
Carnell; Privacy Commissioner Karen Curtis; Human Rights
Commissioner Dr Sev Ozdowski OAM; Commonwealth Ombudsman Professor
John McMillan; and representatives of the Law Council of Australia,
Gillian Braddock SC and Dan O Gorman.
In announcing the composition of the Security Legislation Review
Committee, the Attorney-General stated: (6)
The review will focus on existing legislation
and will not cover the Government s new counter-terrorism
initiatives, which will be reviewed by the Federal Parliament as
well as State and Territory Governments as part of the process
agree to by the Council of Australian Governments before they are
Parliament may wish to consider whether it would be preferable
for the Independent Committee to review the provisions as a
The Parliamentary Joint Committee on ASIO, ASIS and DSD will
also review these Divisions of the Criminal Code in 2007. If the
Bill is passed, Parliament may wish to consider whether the amended
legislation should also be subject to that review.
Provisions which impose criminal liability are narrowly
construed by courts. Parliament may wish to consider in this light
item 2 which deals with possession of a thing . This provision
might benefit from the insertion of a non-exhaustive list of
possible items that would constitute a thing . This would clarify
the intent of the legislature and serve as an aid to
The Hon. J. Howard MP, Prime Minister, Anti-Terrorism
Bill, media release, Parliament House, Canberra, 2
ASIO, Report to
Parliament 2004-2005, AGPS, Canberra, September 2005, at
Explanatory memorandum, at p. 3.
Explanatory memorandum, at p. 2.
The Hon Phillip Ruddock (Attorney-General),
Independent Committee to review security legislation , media
release, 12 October 2005.
Comparison of Anti-terrorism
Bill 2005 with the Draft Bill
(introduced 2 November
(posted by ACT Chief Minister
Jon Stanhope on
14 October 2005)
Clause 4, Review of
Not in the Draft Bill
Title: Amendments to
Title: Definition of
terrorist organisation etc.
Commences the day after
To commence 28 days after
Items 1 4
Item 1, amending the
Crimes (Foreign Incursions and Recruitment) Act 1978, has
been deleted from the Bill introduced, and items 2 5 have been
accordingly renumbered as 1 4.
Items 6 21 of the Draft
Bill are not in the Bill as introduced: all of these dealt with
amendments to section 102.1 of the Criminal Code,
Definitions of terrorist organisations
Item 22 of the Draft
Items 23 24 of the Draft
Bill do not appear.
Sue Harris Rimmer
2 November 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
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© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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