Bills Digest no. 62 2005–06
Anti-Terrorism Bill 2005
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
Appendix
Contact Officer & Copyright Details
Passage History
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 terrorism:(2)
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 travelled abroad.
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 Communiqué.
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 terrorism
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 Communiqué 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 offences:
-
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 101.5(3))
-
other acts done in preparation for or planning terrorist act (item
5, clause 101.6 (3))
-
financing terrorism (item 22, clause 103.2).
In each case the scope of the offence is expanded by the amendments
which clarify that the offence is committed even if:
•
a terrorist act does not occur; or
•
the training (possession of a thing, making documents or financing terrorism
etc) is not connected with a specific terrorist act; or
•
is connected 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 act.
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 following
conduct:
(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).
Concluding Comments
The pressing issue that arises from this Bill is one of overlapping
review mechanisms.
The 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 2005.(5)
The Security Legislation Review Committee will be chaired by the Honourable
Simon Sheller AO QC, a recently retired NSW Supreme Court judge.
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 enacted.
Parliament may wish to consider whether it would be preferable for
the Independent Committee to review the provisions as a whole.
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 interpretation.
-
The Hon. J. Howard MP, Prime Minister, Anti-Terrorism
Bill, media release, Parliament House, Canberra, 2 November
2005.
-
ASIO, Report to Parliament
2004-2005, AGPS, Canberra, September 2005, at p. 17.
-
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.
-
op. cit.
Comparison
of Anti-terrorism Bill 2005 with the Draft Bill
| |
Anti-Terrorism
Bill 2005
(introduced 2 November 2005) |
Draft
Bill
(posted by ACT Chief Minister Jon Stanhope
on 14 October 2005) |
| Clause
4, Review of anti-terrorism laws |
|
Not in the Draft Bill |
| Schedule
1 |
Title:
Amendments to terrorism offences |
Title:
Definition of terrorist organisation etc. |
| Schedule
1 |
Commences
the day after Royal Assent. |
To
commence 28 days after Royal Assent. |
| 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 5 |
|
Item
22 of the Draft Bill. |
| |
|
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.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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