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Bills Digest No. 89 2002-03
Criminal Code Amendment (Terrorism) Bill 2002
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
Criminal
Code Amendment (Terrorism) Bill 2002
Date Introduced:
12 December 2002
House:
House of Representatives
Portfolio:
Attorney-General
Commencement:
The substantive provisions commence on proclamation.
Purpose
To remedy any constitutional deficiencies in the coverage
of Part 5.3 (Terrorism) of the Criminal Code by re-enacting it in accordance
with State references of power under section 51(xxxvii) of the Commonwealth
Constitution.
Background
The Commonwealth Constitution divides power between the
Commonwealth and the States. Section 51(xxxvii) provides one means of
redistributing that power. It empowers the Commonwealth Parliament to
make laws with respect to:
Matters referred to the Parliament of the Commonwealth
by the Parliament or Parliaments of any State or States, but so that
the law shall extend only to States by whose Parliaments the matter
is referred, or which afterwards adopt the law.
Section 51(xxxvii) thus contains two powers—a reference
power and an adoption power. The reference power enables a State or States
to refer matters to the Commonwealth Parliament and the Commonwealth Parliament
to make laws on those matters. The adoption power enables a non-referring
State to subsequently adopt the Commonwealth law.(1)
The Territories are not mentioned in section 51(xxxvii).
The Commonwealth can make laws about the Territories, including the self-governing
territories, by virtue of its plenary power in section 122 of the Constitution.
It can also use its section 51 powers to pass laws applying to the Territories.
Section 51(xxxviii) has received little judicial attention
and had comparatively little use. It provides a way of achieving statutory
uniformity (at least in referring or adopting jurisdictions) while avoiding
the difficulties experienced with constitutional referendums under section
128 or the potential constitutional hazards of cooperative legislative
schemes. This does not mean that other ways of harmonising the law do
not exist. The Commonwealth, the States and the Territories could if they
wished, agree to model laws and enact them in each jurisdiction.(2)
Nor does it mean there are no unanswered questions or different views
about the use of section 51(xxxvii). For instance, it has been said that
at least three questions arise about section 51(xxxvii):
- whether or not a State retains power to legislate on a matter which
it has referred to the Commonwealth;
- whether or not a reference of power can be made subject to conditions
as to its exercise, or its duration; and
- whether or not the referral of power can be revoked.(3)
And, according to Professor Cheryl Saunders:
In earlier times, the difficulty was thought to lie
in uncertainty about whether a referring State retained the power
to legislate in relation to the matter; whether a reference could
be limited in time, or terminable; whether an apparently absolute
reference could be revoked. For the most part, these questions have
been resolved in a manner that is satisfactory to the States. In Board
of Examiners under the Mines Safety and Inspection Act 1994 (WA) v
Lawrence, French J described the question as to whether an unlimited
reference can be revoked as "open". Several other lines
of authority suggest that revocation should be possible in principle
…
In the wake of the negotiations over the corporations
reference, however, it is possible to see that the real problem from
the standpoint of the States lies deeper — in the very qualities that
make the reference power a relatively simple and transparent co-operative
technique. A Commonwealth law pursuant to a reference has all the
usual qualities of a head of a Commonwealth law. … A State law that
is inconsistent with a Commonwealth law enacted pursuant to a reference
will be invalid to the extent of the inconsistency, pursuant to the
usual operation of s 109. There is some chance that the principle
of paramountcy might preclude revocation of an otherwise unlimited
reference; in any event there is a question about the effect of lapse
or revocation on a previously valid Commonwealth law. Genuine consultation
and co-operation in relation to a regulatory scheme may be even more
difficult to achieve where the Commonwealth is exercising its own
power …(4)
Different approaches have been used in the legislation
that refers power to the Commonwealth. In some cases, a general reference
of a subject matter or matters is used. For instance, the Commonwealth
Powers (Family Law—Children) Acts enacted by all States, except Western
Australia, in the late 1980s and early 1990s, referred enumerated matters
to the Commonwealth—child maintenance, child bearing expenses, custody,
guardianship and access to children, and determination of parentage.(5)
They also effectively excluded some matters from the references—for example,
adoption(6) and child protection.
Text reference, containing the terms of the reference
in the form of a Bill, is another approach, one that has been taken in
mutual recognition and corporations legislation. It is also the referral
method in relation to terrorism. Such references may also include provisions
enabling the text to be amended and specifying pre-conditions that must
be met before an amendment can occur.
More detailed information about referrals of power can
be found at in Bills
Digest No. 140 of 2000-01 (Corporations Bill 2001). As that Bills
Digest points out, a list of State referral legislation is reproduced
as a note
to the Commonwealth of Australia Constitution Act. Since Federation, 45
State referral Acts have been passed: NSW has passed nine referral Acts,
Victoria has passed eight such Acts, Queensland, seven; South Australia
six; Western Australia, eight; and Tasmania, seven.
While, as stated earlier, there is no express mention
in section 51(xxxvii) of whether a State can terminate a reference of
power or whether referrals can be time-limited, the States have clearly
acted on the assumption that they can do—with State referral Acts including
provisions that enable references to be terminated or which state that
they will expire on a certain date, or both.(7) At present,
there are 26 State referral Acts in force. The earliest of these date
from 1931(8) and the most recent from 2001.(9) More
referrals are likely.(10) On 8 November 2002, the Standing
Committee of Attorneys-General agreed to refer powers over de facto relationship
property matters to the Commonwealth.(11)
The Coalition Government’s policy for the 2001 General
Election, A Safer and More Secure Australia said that, if
re-elected, the Coalition would convene a Leaders Summit to seek outcomes
on:
Ways to improve Australia’s ability to combat transnational
crime and terrorism;
Options for reforming or replacing the National Crime
Authority to ensure we have a national body fully equipped to deal
with future transnational criminal activities;
A reference of constitutional power to the Commonwealth
to support an effective national response to threats of transnational
crime and terrorism.
At the Leader’s Summit on 5 April 2002, the Commonwealth,
the States and the Territories negotiated an Agreement on Terrorism and
Multi-Jurisdictional Crime. In relation to terrorism, this included a
decision to:
… take whatever action is necessary to ensure that
terrorists can be prosecuted under the criminal law, including a reference
of power of specific, jointly agreed legislation, including roll back
provisions to ensure that the new Commonwealth law does not override
State law where that is not intended and to come into effect by 31
October 2002. The Commonwealth will have power to amend the new Commonwealth
legislation in accordance with provisions similar to those which apply
under Corporations arrangements. Any amendment based on the referred
power will require consultation with and agreement of States and Territories,
and this requirement to be contained in legislation.(12)
In 2002, the Commonwealth Parliament passed a number
of counter-terrorism laws. The most important of those laws were the Security
Legislation (Terrorism) Act 2002, the Suppression of Terrorist
Bombings Act 2002 and the Suppression of the Financing of Terrorism
Act 2002.(13)
The Commonwealth Parliament is endowed with powers that,
for the most part, are enumerated in the Constitution. It does not have
any express powers over matters like terrorism or criminal law. Instead,
it relied on a raft of legislative powers to enact its counter-terrorism
statutes. Some laws, like the Suppression of Terrorist Bombings Act
2002 appear to have a secure foundation in the external affairs power.
With others, like the Security Legislation (Terrorism) Act 2002,
there are concerns that available Commonwealth powers do not supply a
constitutionally comprehensive and secure base for the legislation. For
instance, the Attorney-General has suggested that there might be gaps
in Commonwealth legislative power where ‘terrorist activity was entirely
state-based and did not have any Commonwealth element in it or foreign
element in it.’(14)
On 8 November 2002, the Standing Committee of Attorneys-General
finalised the details of legislation to refer State constitutional power
over terrorism to the Commonwealth in order to strengthen the Commonwealth’s
counter-terrorism laws by plugging any constitutional gaps that might
exist in those laws and thus creating uniform coverage throughout Australia.(15)
At the time of writing, referral statutes had been enacted
in New South Wales(16), South Australia(17), Tasmania(18),
and Western Australia.(19) Neither Queensland nor Victoria
has, as yet, introduced referral bills.
In each case, the State referral legislation contains
a Schedule in the same terms as new Part 5.3 of the Criminal Code
(Terrorism). State referral legislation also contains common provisions
that:
- describe the matters being referred to the Commonwealth (in similar
terms to the Commonwealth Bill).(20) These matters are the
text of Part 5.3 and an amendment reference.
- contain termination provisions. For instance, the NSW Act enables
the Governor to fix a day as the day on which the references will terminate
(this date must allow for a three month notice period). The Governor
will be able to revoke a termination proclamation (so long as this is
done before the termination date takes effect).(21) The South
Australian and Tasmanian Acts are along similar lines.(22)
Western Australian legislation is different in one regard. During debate
in the Legislative Assembly, it was amended so that the Governor’s proclamation
can only be made if recommended by resolution passed by both Houses
of Parliament.(23)
Additionally, State referral legislation passed in South
Australia, differs from that passed in NSW, Tasmania and Western Australia
in one important aspect. During debate in the South Australian Parliament,
the South Australian legislation was amended to insert a specific reference
to the amendment mechanism agreed upon by all Governments. Thus:
- subsection 4(6) of the South Australian legislation states that amendments
to terrorism and criminal responsibility legislation will not come within
the scope of the referral unless made in terms approved by a majority
of States, the ACT and the Northern Territory and at least four
States. A similar provision is found in the Commonwealth Bill.
- subsection 4(7) of the South Australian legislation provides that
a Gazette notice published by a designated person(24) for
a State or Territory, stating that the State or Territory has approved
the terms of the amendment, is conclusive evidence of that approval.
In moving the amendment, the South Australian Attorney-General,
Michael Atkinson MP, said that it was designed to protect the position
of the State and referred to differences between the State’s legal advice
and the Commonwealth’s legal advice about how constitutional certainty
could best be achieved in this regard.(25) More detail is provided
in the Main Provisions section of this Digest (see new section 100.8).
Clause 2 provides that the substantive parts of
the legislation will commence on a day to be fixed by Proclamation. Commencement
provisions in Commonwealth legislation often have a default commencement
mechanism—for example, six months after Royal Assent, if not commenced
earlier by Proclamation. This ensures that the will of the Parliament
is not frustrated by Executive inaction. However, the Bill’s Explanatory
Memorandum explains:
Due to the uncertain timing of the passage of State
reference legislation, this may not be within six months after the
Bill receives Royal Assent. The Bill therefore does not provide for
commencement on the earlier of proclamation or six months after Royal
Assent.(26)
While States whose referral statutes are delayed could
later adopt the Commonwealth law under section 51(xxxvii) of the Constitution,
it may be that this is seen as a less than optimal course. For instance,
an adopting State might have to enact its own legislation to reflect any
changes to the Commonwealth law whereas amendments approved by referring
States will automatically apply in those jurisdictions.
Schedule 1—Amendment of the Criminal Code
Act 1995
Item 1 of Schedule 1 repeals existing Part 5.3
(Terrorism) of the Criminal Code and substitutes a new Part 5.3,
in the following terms.
Existing section 100.1 of the Commonwealth Criminal Code
was inserted by the Suppression of the Financing of Terrorism Act 2002
and contains definitions that apply to Part 5.3 of the Code.
New section 100.1 reproduces those definitions
and adds two new definitions required because the Bill deals with a referral
of powers from the States to the Commonwealth. The first is a definition
of the term, ‘express amendment’ (see below), the second is a definition
of the term, ‘referring State’. The latter ‘has the meaning given by new
section 100.2.’
According to new section 100.2, a State will be
a ‘referring State’ if its Parliament has referred to the Commonwealth
Parliament:
- matters that enable the Commonwealth Parliament to enact new Part
5.3, as it relates to matters within State legislative competence.
This is the text reference, and
- the ‘matter of terrorist acts, and of actions relating to terrorist
acts’ to the extent of making ‘express amendments’ to new Part 5.3
and to Chapter 2 of the Commonwealth Criminal Code (as it specifically
relates to Part 5.3). (Chapter 2 of the Criminal Code deals with principles
of criminal responsibility and is integral to matters of proof in relation
to offences.) This is the amendment reference.
A State may terminate either the text reference or the
amendment reference, or both [new subsection 100.2(5)]. New
subsection 100.2(4) provides, however, that:
A State is a referring State even if a law of the
State provides that the reference to the Commonwealth Parliament of
either or both of the matters covered by subsections (2) and (3) is
to terminate in particular circumstances.
New section 100.3 sets out the constitutional
bases relied on for the operation of new Part 5.3 (Terrorism).
In a ‘referring State’, the operation of new Part
5.3 will be based on both the Commonwealth’s legislative powers and
the supplementary powers conferred on the Commonwealth as a result of
the references of power under section 51(xxxvii).
In a ‘non-referring State’, the operation of new Part
5.3 will be based on Commonwealth legislative powers contained in
section 51 of the Constitution. The particular powers relied on are set
out in new subsection 100.4(5). They are said to include, without
being limited to, such things as actions or threats affecting the Commonwealth,
its authorities or constitutional corporations; actions or threats made
by constitutional corporations; threats or actions involving the use of
postal services or electronic communications; or actions disrupting constitutional
trade or commerce, constitutional banking or insurance etc. With the exception
of references to matters physically external to Australia(27),
this is the same list that appears in existing subsection 100.2(2) of
the Criminal Code.(28)
In the ACT, the Northern Territory or an external territory,
the operation of the law will be based on the Commonwealth’s constitutional
power over territories (section 122) and on its section 51 powers.
Outside Australia and its external territories, the operation
of the law will be based on the external affairs power [section 51(xxix)]
and any other relevant legislative power found in section 51 of the Constitution.
New subsection 100.4(1) provides that new Part
5.3 applies to:
- actions or threats of action that involve terrorist acts, and
- ‘preliminary acts’ that ‘relate to terrorist acts but do not themselves
constitute terrorist acts’.
New section 100.5 provides that in interpreting
the referred text, the Acts Interpretation Act 1901 (Cwlth) is
to be used as in force on the day that Schedule 1 of the Bill commences.
This provisions gives certainty to the application of the Acts Interpretation
Act to new Part 5.3 because State referral Acts will commence on
a variety of dates. In terms of any amendments that might be made in the
future to the Acts Interpretation Act, the Explanatory Memorandum remarks:
… it is envisaged that changes to that Act could
be applied to the interpretation of the legislation by an appropriate
amendment of section 100.5 in reliance on the amendment reference.(29)
In part, new section 100.6 is designed to take
account of section 109 of the Commonwealth Constitution, which states:
When the law of a State is inconsistent with a law
of the Commonwealth, the latter shall prevail, and the former shall,
to the extent of the inconsistency, be invalid.
Section 109 operates to invalidate State laws that are
directly inconsistent with a valid Commonwealth law or which are indirectly
inconsistent because the Commonwealth law ‘covers the field.’ New section
100.6 takes account of the fact that new Part 5.3 might ‘inadvertently
cover an unsought State field’(30) and so it expressly preserves
the concurrent operation of State laws.
Section 109 does not apply to the Territories. However,
by reason of its position as a paramount legislature, Commonwealth laws
will override inconsistent Territory laws. So new section 100.6
also preserves the concurrent operation of Territory laws.
New section 100.6 also ensures that, if a person
has been punished under State or Territory law for an act or omission
that is also a Commonwealth terrorism offence, the person cannot be punished
again under Commonwealth terrorism laws. Such a person is thus protected
against double jeopardy.
New section 100.7 addresses the possibility that
unintended direct inconsistency may arise between the Commonwealth law
and State and Territory laws. Its aim is to ensure that regulations can
be made modifying (rolling back) the operation of new Part 5.3—to
provide that Part 5.3 does not apply to a matter dealt with by a State
or Territory law or so that no inconsistency arises between the operation
of new Part 5.3 and State and Territory law. This is contemplated
in State referral legislation which provides that terrorism legislation
or criminal responsibility legislation can have its operation affected,
otherwise than by express amendment, ‘by provisions of instruments authorised
by that legislation.’(31)
New section 100.7 is a Henry VIII clause—that
is, it enables primary legislation to be amended by an Executive instrument.
Henry VIII clauses are often, but not universally, frowned upon. In 1992,
the Administrative Review Council commented:
… it is clearly inappropriate for a body subordinate
to Parliament to amend or alter an Act made by Parliament. This is
particularly so when changes affect the essential elements of a scheme,
alter the ambit of legislation, place restrictions on rights, or alter
obligations.(32)
One of functions of the Senate Scrutiny of Bills Committee
is to look at whether legislative power has been inappropriately delegated
in proposed Commonwealth legislation. In relation to the Corporations
Bill 2001, which contained a similar clause, the Committee remarked:
By virtue of clause 5I, regulations may be made which
would modify the operation both of this bill, and other related bills.
Specifically, regulations may modify the operation of the Corporations
legislation so that its provisions do not apply to a matter that is
dealt with by a State or Territory law, or so that no inconsistency
arises between its operation and the operation of a provision of a
State or Territory law.
The Explanatory Memorandum observes that this provision
is necessary to ensure the constitutional validity of the legislation.
In these circumstances, the Committee makes no
further comment on this provision.(33)
New section 100.8 provides that ‘express amendments’:
- to new Part 5.3, or
- to Chapter 2 that apply only to Part 5.3 (whether or not expressed
to apply only to Part 5.3)
cannot be made unless a majority of States, the ACT and
the Northern Territory agree and at least 4 States agree.
The term, ‘express amendments’, means ‘direct amendments’
by insertions, omissions, repeals, substitutions or relocation of words
or matter (see the definition in new section 100.1). New section
100.8 does not apply to the making of regulations under new section
100.7 (a process reserved for the Commonwealth alone).
Chapter 2 of the Criminal Code is important because it
deals with matters such as the burden of proof that is placed on a defendant,
the criminal responsibility of minors, whether fault elements apply to
offences and defences. The constitutional and policy reasons for strictly
limiting the role of the States and Territories in amending Chapter 2
of the Commonwealth Criminal Code are clear. However, the wording of new
paragraph 100.8(1)(b) may have unintended, albeit unlikely consequences.
Would it stop the Commonwealth Parliament from substantially
amending the application of Chapter 2 to new Part 5.3, even if
the amendments primarily affected new Part 5.3 and little else?
Other Commonwealth terrorism offences, apart from those in Part 5.3, exist.
Part 5.3 appears in Chapter 5 of the Criminal Code.(34) Chapter
4 of the Criminal Code(35) contains two terrorist bombing offences.(36)
Would new paragraph 100.8(1)(b) enable the Commonwealth to use
the amendment reference to unilaterally amend the application of Chapter
2 to new Part 5.3 offences if, for instance, it amended Chapter
2 to change the rules about the culpability of minors(37) for
terrorist bombing and Part 5.3 offences or to provide that a person
accused of one of those offences bore a legal burden of proof?(38)
Of course if a State objected it could terminate its reference, but it
would need to give three months’ notice.
Another matter which has been raised is the effectiveness
of new section 100.8 in a constitutional sense. During debates
on the Commonwealth Powers (Terrorism) Bill 2002 in the South Australian
Parliament, the State Attorney-General said:
… there is a question as to whether the Commonwealth
can fetter its legislative power in this way. Therefore, there is
still debate between the Commonwealth and the States about whether
the States should enact a further provision in referral legislation.
If the Commonwealth and other States agree that a provision should
be included in the referral Bill, we will amend this Bill at a later
stage. The alternative is to record this agreement in an intergovernmental
agreement. The inter-governmental agreement would have political value
only. It would not be enforceable in the Courts or any tribunal. There
would be no legal sanctions for contravention of the agreement.(39)
The South Australian legislation was amended, as foreshadowed
by Attorney-General Atkinson and described in the Background section of
this Digest, to include details of the amendment mechanism in the State
referral Act. In moving the amendment the South Australian Attorney-General
said:
Our advice is that section 100.8 is ineffective,
but that the same rule in the referral bill would be effective.
I will not hide from the house that the commonwealth
does not think the same rule in the referral bill is desirable or
effective. I am of the opinion that the question of desirability is
for the state and not the commonwealth. So far, the commonwealth has
not given me access to its legal advice that the amendment I now propose
is ineffective. If it does so, I will have that advice examined. I
want to preserve the position of the state, so I seek to insert it
now.(40)
In his Second Reading Speech for the Terrorism (Commonwealth
Powers) Bill 2002, NSW Premier, Bob Carr MP, said:
I note that there is still debate between the Commonwealth
and other States as to whether this amendment provision should be
enacted by legislation or by an intergovernmental agreement. New South
Wales has decided to go ahead with this bill on the assumption that
it will be done by way of an intergovernmental agreement. However,
if the Commonwealth and other States agree that it must be done by
legislation, we will amend this bill at a later stage.
I am introducing the bill today because I do not
want to delay this important legislation over one technicality.(41)
South Australia’s concerns relate to the suggestion that
new section 100.8 might be constitutionally invalid and, if found
to be so by the High Court and severed from the rest of the Commonwealth’s
legislation, the States might be in a position where the Commonwealth
law could be amended without their approval.(42)
Terrorism offences are found in existing Division 101
of the Criminal Code. These provisions were inserted by the Security
Legislation Amendment (Terrorism) Act 2002, which created the following
terrorist offences:
- engaging in terrorist acts (section 101.1)
- providing or receiving training connected with a terrorist act (section
101.2)
- possessing a thing connected with a terrorist act (section 101.4)
- collecting or making documents connected with a terrorist act (section
101.5)
- doing anything in preparation for, or planning, a terrorist act (section
101.6).
New sections 101.1, 101.2, 101.4, 101.5 and 101.6,
respectively, replicate these provisions.
Provisions relating to terrorist organisations are found
in Division 102 of the Criminal Code and were inserted by the Security
Legislation Amendment (Terrorism) Act 2002 and amended by the Criminal
Code Amendment (Terrorist Organisations) Act 2002.
Section 102.1 of the Criminal Code provides that a ‘terrorist
organisation’ is an organisation that:
- is directly or indirectly engaged in preparing, planning for, assisting
in or fostering terrorist acts, or
- has been declared to be a terrorist organisation by way of a regulation
made by the Governor-General. Before the Governor-General can make such
a regulation the Attorney-General must be satisfied of a number of things.
These are that the UN Security Council has made a decision relating
to terrorism and has identified the organisation in that decision. The
Attorney-General must also be satisfied that the organisation is directly
or indirectly engaged in preparing, planning for, assisting in or fostering
terrorist acts.
If not repealed earlier, regulations identifying an organisation
as a terrorist organisation cease to have effect on the second anniversary
after they are made.
New section 102.1 replicates existing section
102.1, apart from two minor changes. The first is some re-numbering.(43)
The second is an additional subsection, new subsection 102.1(6).
The new subsection provides that, for the purpose of making regulations
declaring an organisation to be a terrorist organisation, it does not
matter whether the UN Security Council decision was made prior to or after
6 July 2002. The date, 6 July 2002, is the commencement date of item 5
of Schedule 1 of the Security Legislation Amendment (Terrorism) Act
2002. Item 5 states that, for the purposes of declaring an organisation
to be a terrorist organisation, it does not matter whether a UN Security
Council decision on which the regulation was based occurred before or
after the commencement of item 5. New subsection 102.6(6) will
ensure that there is no gap in legislative coverage.
Division 102 of the Criminal Code also creates offences
relating to terrorist organisations. These offences are:
- directing the activities of a terrorist organisation (section 102.2)
- being a member of a terrorist organisation which is the subject of
a regulation made by the Governor-General (section 102.3)
- recruiting a person to join a terrorist organisation (section 102.4)
- giving training to or receiving training from a terrorist organisation
(section 102.5)
- receiving funds from or giving funds to a terrorist organisation (section
102.6)
- providing support or resources that would assist a terrorist organisation
engage in terrorist activity (section 102.7).
These provisions are reproduced in new sections 102.2-102.7,
respectively.
Division 103 of the Criminal Code creates a financing
of terrorism offence and was inserted by the Suppression of the Financing
of Terrorism Act 2002. This provision is replicated by new section
103.1.
New section 106.1 preserves the effect of regulations
made by the Governor-General declaring certain organisations to be terrorist
organisations. These organisations are:
- Al Qa'ida/ Islamic Army
- Jemaah Islamiyah, the network in southeast Asia, founded by the late
Abdullah Sungkar
- Abu Sayyaf Group
- Harakat Ul- Mujahideen
- Armed Islamic Group
- Salafist Group for Call and Combat/ GSPC.(44)
Schedule 2—Amendment of the Security Legislation
Amendment (Terrorism) Act 2002
Section 4 of the Security Legislation Amendment (Terrorism)
Act 2002 requires a review of specified counter-terrorism statutes(45)
to take place as soon as practicable after the third anniversary of its
commencement. It establishes a committee to review the operation, effectiveness
and implications of the legislation. Public submissions and public hearings
are mandated. The review will report to the Attorney-General and the Parliamentary
Joint Committee on ASIO, ASIS and DSD and must be tabled in Parliament
(subject to any deletions on safety, criminal justice or security grounds).
Item 1 of Schedule 2 adds the Criminal Code
Amendment (Terrorism) Act 2002 to the list that will be reviewed.
- It might then be necessary for that State to enact legislation adopting
any Commonwealth amendments before those amendments apply in the State.
James A Thomson, ‘Adopting Commonwealth laws: Section 51(xxxvii) of
the Australian Constitution’, Public Law Review, 4(3), September
1993, pp. 153-7. An example of an adoption statute is the Child Support
(Adoption of Laws Act 1990 (WA)—a law that adopts two Commonwealth
statutes, the Child Support (Registration and Collection) Act 1988
and the Child Support (Assessment) Act 1989, dealing with child
maintenance, to the extent that they do not already apply to Western
Australia.
- This was the purpose of the Model Criminal Code project.
- Constitutional Commission, Final Report of the Constitutional Commission,
Volume Two, 1988, p. 754.
- Cheryl Saunders, ‘A new direction for intergovernmental arrangements’,
Public Law Review, 12(4), December 2001, p. 282.
- See, for example, section 3, Commonwealth Powers (Family-Law Children)
Act 1986 (NSW). The South Australian and Tasmanian Acts were entitled,
Commonwealth Powers (Family Law) Act 1986 (SA) and Commonwealth
Powers (Family Law) Act 1987 (Tas).
- ‘Adoption’ is not explicitly excluded by the Victorian reference.
Stephen Parker, Patrick Parkinson & Juliet Behrens, Australian
Family Law in Context. Commentary and Materials, 2nd
ed, LBC Information Services, 1999.
- For example, the Commonwealth Powers (War) Act 1915 (NSW) provided
that the State Act and the reference it made would only apply for the
duration of World War I and for 12 months thereafter. The Corporations
(Commonwealth Powers) Act 2001 (NSW) states that the two references
made by that Act can terminate in a number of ways. Thus both references
terminate five years after the commencement of the Corporations legislation
or on a later day proclaimed by the State Governor. The amendment reference
alone can be terminated on an earlier day proclaimed by the State Governor.
- Debt Conversion Agreement Act 1931 (No.2) (Vic) and Commonwealth
Legislative Power Act 1931 (SA).
- In 2001, each State passed legislation referring certain powers over
corporations to the Commonwealth.
- They may become increasingly attractive given concerns about cooperative
legislative schemes that have arisen since the High Court’s decisions
in Re Wakim; Ex parte McNally (1999) 198 CLR 511 and R v.
Hughes (2000) 202 CLR 535.
- Attorney-General, ‘Commonwealth wins de facto property powers’, Media
Release, 8 November 2002. Some jurisdictions also wanted to refer
powers over same sex relationships but the Commonwealth refused to agree.
See Attorney-General, ‘Doorstop, Fremantle’, Transcript, 8 November
2002.
- Attorney-General, Media Release, ‘National
Move to Combat Terror’, 7 April 2002 (accessed 20 January 2003).
- Another counter-terrorism statute passed in 2002 was the Telecommunications
Interception Legislation Amendment Act 2002. Information about the
major Commonwealth counter-terrorism statutes (prior to amendment and
passage) can be found in Bills Digests for the Criminal
Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Security
Legislation Amendment (Terrorism) Bill 2002, Suppression
of the Financing of Terrorism Bill 2002, and Telecommunications
Interception Legislation Amendment Bill 2002. The report of the
Senate Legal and Constitutional Legislation Committee on 8
May 2002 is also relevant. Background information about terrorism
and the law can be found in two Parliamentary Library Research Papers:
Terrorism
and the Law in Australia: Legislation, Commentary and Constraints
and Terrorism
and the Law in Australia: Supporting Materials (accessed 20 January
2003).
- Attorney-General, ‘Doorstop, Fremantle’, Transcript, 8 November
2002.
- Attorney-General, ‘Reference of terrorism power’, Media Release,
8 November 2002.
- Terrorism (Commonwealth Powers) Act 2002 (NSW). The Act commenced
on 13 December 2002.
- Terrorism (Commonwealth Powers) Act 2002 (SA). At the time
of writing the Bill had received Royal Assent but not been proclaimed
to commence.
- Terrorism (Commonwealth) Powers Act 2002 (Tas). The Act commenced
on 1 January 2003.
- Terrorism (Commonwealth Powers) Act 2002 (WA). The legislation
received Royal Assent on 14 January 2003 but at the time of writing
had not been proclaimed to commence.
- See, for example, section 4, Terrorism (Commonwealth Powers) Act
2002 (NSW). See also section 4 of the South Australian and Western
Australian Acts and section 5 of the Tasmanian Act.
- See, for example, section 5, Terrorism (Commonwealth Powers) Act
2002 (NSW).
- See section 5 of the South Australian Act and section 6 of the Tasmanian
Act.
- See subsection 5(6), Terrorism (Commonwealth Powers) Act 2002
(WA).
- The expression, ‘designated person’, is defined as the Governor or
Premier of a State, the Chief Minister of the ACT and the Administrator
or Chief Minister of the Northern Territory. Subsection 4(8).
- South Australia, Legislative Assembly, Hansard, 27 November
2002, p. 2049.
- Explanatory Memorandum, p. 3.
- Paragraphs 100.2(2)(n)-(o) of the Criminal Code (inserted by the Security
Legislation Amendment (Terrorism) Act 2002).
- Inserted by the Security Legislation Amendment (Terrorism) Act
2002.
- Explanatory Memorandum, p. 5.
- Saunders, op.cit., p. 284.
- See, for example, paragraph 4(4)(b), Terrorism (Commonwealth Powers)
Act 2002 (NSW). Also paragraph 4(4)(b) of the South Australian Act,
paragraph 5(4)(b) of the Tasmanian Act and paragraph 4(4)(b) of the
Western Australian Act.
- Administrative Review Council, Rule Making by Commonwealth Agencies,
Report No.35, AGPS, Canberra, 1992, p. 18.
- Alert Digest No. 6, 23 May 2002, p. 16.
- Chapter 5 is entitled ‘The security of the Commonwealth.’
- Chapter 4 is entitled ‘The integrity and security of the international
community and foreign governments.’
- Subsections 72.3(1) and 72.3(2).
- Chapter 2 provides that children under 10 years cannot be criminally
responsible for an offence. Children over the age of 10 but under the
age of 14 years can only be criminally responsible for an offence when
they know that their conduct is wrong. The burden of proving this lies
with the prosecution.
- Section 13.4 of the Criminal Code provides that a legal burden of
proof is only imposed on a defendant if the law does so expressly.
- Second Reading Speech, Terrorism (Commonwealth Powers) Bill, South
Australia, Legislative Assembly, Hansard, 21 November 2002, p.
1955. (It may be noted that there is no equivalent to proposed section
100.8 in the Corporations Act 2001 which was also largely based on the
a referral of power from the States. In that case, the requirements
for amendment are set forth in an intergovernmental
agreement.)
- South Australia, Legislative Assembly, Hansard, 27 November
2002, p. 2049. No capitalisation in original.
- NSW, Legislative Assembly, Hansard, 13 November 2002, p. 6696.
- See also Western Australia, Legislative Council, Standing Committee
on Uniform Legislation and General Purposes, Report of the Standing
Committee on Uniform Legislation and General Purposes in relation to
the Terrorism (Commonwealth Powers) Bill 2002, Report 6,
December 2002.
- And, it appears, the correction of a drafting error in existing paragraph
102.1(6)(a).
- Schedule 1, Criminal Code Regulations 2002.
- These statutes are the Security Legislation Amendment (Terrorism)
Act 2002, Border Security Legislation Amendment Act 2002,
Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002,
Suppression of the Financing of Terrorism Act 2002 and the Telecommunications
Interception Legislation Amendment Act 2002.
Jennifer Norberry
21 January 2003
Bills Digest Service
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