House of Representatives Committees

Contents


Foreword
Membership of the Committee
Terms of reference
List of abbreviations
List of recommendations
Chapter 1 Background
Chapter 2 Rationale and Accountability
Chapter 3 Effectiveness and Implications: Impact on Arab and Muslim Australians
Chapter 4 Treason
Chapter 5 International Terrorism
Chapter 6 Suppression of the Financing of Terrorism
Chapter 7 Border Security
Appendix A – COUNTER TERRORISM TREATIES
Appendix B - List of Submissions
Appendix C – List of Witnesses appearing at Public Hearings

Foreword

I present the report of the Committee’s review of the first package of anti-terrorism and security legislation passed by the Commonwealth Parliament in 2002.
On behalf of the Committee, I would like to express our particular gratitude to Mr Simon Sheller AO QC and the Sheller Committee, which reported on the legislation under review in April this year. The Sheller Report reflected the views of major stakeholders and has provided a valuable contribution to our own deliberations.
Since 2001, a series of terrorist events have served as a reminder of the risk and consequences of terrorist violence. Australia is not immune from these influences. Like the Sheller Committee, we have concluded that a special terrorism law regime is justifiable and forms an important, although not exclusive, tool in Australia’s counter-terrorism strategy. Much of the report deals with the detail of legislative provisions. It proposes a series of modest refinements to improve specificity, clarity and fairness in a way that we believe is consistent with Australia’s anti-terrorism objectives.
It is clear that Australia now has a highly developed legal framework and stronger institutional capacities to deal with the threat of terrorism. The terrorism law regime is, essentially, a preventive model, which differs in many respects from our earlier legal traditions. Bearing in mind the significance of these changes and the importance of terrorism policy into the future, we have recommended the appointment of an Independent Reviewer to provide comprehensive and ongoing oversight. The Independent Reviewer, if adopted, will provide valuable reporting to the Parliament and help to maintain public confidence in Australia’s specialist terrorism laws.
I commend the report to the Government and the Parliament and thank my fellow Committee members and the Secretariat for their contributions, which have made the review possible.

The Hon David Jull MP

Chair

Membership of the Committee

Chair

The Hon David Jull MP

 

Deputy Chair

Mr Anthony Byrne MP

 

Members

The Hon Duncan Kerr SC MP

Senator Alan Ferguson

 

Mr Stewart McArthur MP

Senator the Hon Robert Ray

 

Mr Steven Ciobo MP

Senator the Hon John Faulkner

 

 

Senator Fiona Nash

Committee Secretariat

Secretary

Ms Margaret Swieringa

Inquiry Secretary

Ms Jane Hearn

Administration Officer

Mrs Donna Quintus-Bosz

Terms of reference

29 Functions of the Committee

(1) The functions of the Committee are:

(ba)     to review, as soon as possible after the third anniversary of the day
on which the Security Legislation Amendment (Terrorism)Act 2002 receives the Royal Assent, the operation, effectiveness and implications of amendments made by that Act and the following Acts:

(i) the Border Security Legislation Amendment Act 2002;

(ii) the Criminal Code Amendment (Suppression of Terrorist

Bombings) Act 2002;

(iii) the Suppression of the Financing of Terrorism Act 2002.

List of abbreviations

ADF

Australian Defence Forces

ADJR

Administrative Decision Judicial Review Act 1975

AFP

Australian Federal Police

AGD

Attorney-General’s Department

ALRC

Australian Law Reform Commission

AMCRAN

Australian Muslim Civil Rights Network

ASIO

Australian Security Intelligence Organisation

ATA

Anti-Terrorism Act 2005 (No. 2) (Cth)

AUSTRAC

Australian Transaction Reports and Analysis Centre

BSLA

Border Security Legislation Amendment Act 2002

CDPP

Commonwealth Director of Public Prosecutions

COAG

Council of Australian Governments

COUNA

Charter of the United Nations Act 1945

DFAT

Department of Foreign Affairs and Trade

DIMA

Department of Immigration and Multicultural Affairs

EC

European Community

ECJ

European Court of Justice

EU

European Union

FATF

United Nations Financial Transaction Task Force

FBI

Federal Bureau of Investigation ( United States of America)

GSMG

FN Herstal General Support Machine Gun

HREOC

Human Rights and Equal Opportunity Commission

ICRC

International Committee of the Red Cross

IGIS

Inspector-General of Intelligence and Security

IISCA

Islamic Information and Support Centre of Australia

ISYS

International Sikh Youth Federation

MCRG

Muslim Community Reference Group

MOU

Memorandum of Understanding

MRG

Muslim Reference Group

PAU

Passenger Analysis Unit

PJCIS

Parliamentary Joint Committee on Intelligence and Security

PNR

Passenger Name Record

POAC

Proscription of Organisations Appeals Commission

SFTA

Suppression of the Financing of Terrorism Act 2002

SLCLC

Senate Legal and Constitutional Legislation Committee

SLR

Security Legislation Review (the Sheller Report)

UK

United Kingdom

UN

United Nations

UNSC

United Nations Security Council

UNSCR

United Nations Security Council Resolution

List of recommendations

2 Rationale and Accountability

Recommendation 1

The Committee recommends that the Government support/sponsor a study into the causes of violent radicalisation in Australia to inform Australia’s counter terrorism strategy.

Recommendation 2

The Committee recommends that:

3 Effectiveness and Implications: Impact on Arab and Muslim Australians

Recommendation 3

The Committee recommends that Australian police forces review their media policies to ensure that official statements do not prejudice the right to fair trial and are sensitive to the wider implications for the community.

Recommendation 4

The Committee recommends that AGD increase its effort to ensure that comprehensive information about the terrorism law regime is available to the public in appropriate community languages.

Recommendation 5

The Committee recommends that Australia’s counter terrorism strategy encompass:

4 Treason

Recommendation 6

The Committee recommends that:

5 International Terrorism

Recommendation 7

The Committee recommends that the requirement that the person intends to advance a political, religious or ideological cause be retained as part of the definition of terrorism.

Recommendation 8

The Committee recommends that the current exemption for advocacy, protest, dissent and industrial action be retained as part of the definition of terrorism.

Recommendation 9

The Committee recommends that psychological harm not be included in the definition of a terrorist act. Alternatively, that the Government consult with the States and Territories on this issue and give consideration to the question in light of other amendments to the definition.

Recommendation 10

The Committee recommends that ‘threat’ of terrorist acts be removed from the definition of terrorism and be dealt with as a separate offence.

Recommendation 11

The Committee recommends that the definition of terrorism recognise that international organisations may be the target of terrorist violence.

Recommendation 12

The Committee recommends that to remove doubt the definition of terrorism be amended to include a provision or a note that expressly excludes conduct regulated by the law of armed conflict.

Recommendation 13

The Committee recommends that a separate hoax offence be adopted but that penalties reflect the less serious nature of a hoax as compared to a threat of terrorism.

Recommendation 14

The Committee does not recommend the repeal of ‘advocacy’ as a basis for listing an organisation as a terrorist organisation but recommends that this issue be subject to further review.

The Committee recommends that ‘risk’ be amended to ‘substantial risk’.

Recommendation 15

The Committee recommends that the Government consider:

Recommendation 16

The Committee recommends that the training offence be redrafted to define more carefully the type of training targeted by the offence. Alternatively, that the offence be amended to require that the training could reasonably prepare the individual or the organisation to engage in, or assist with, a terrorist act.

Recommendation 17

The Committee recommends that:

Recommendation 18

The Committee recommends that the offence of providing support to a terrorist organisation be amended to ‘material support’ to remove ambiguity.

Recommendation 19

The Committee recommends that the offence of ‘associating with a terrorist organisation’ be re-examined taking into account the recommendations of the Sheller Committee.

Recommendation 20

The Committee recommends that strict liability provisions applied to serious criminal offences that attract the penalty of imprisonment be reduced to an evidential burden.

6 Suppression of the Financing of Terrorism

Recommendation 21

The Committee recommends that:

The Committee recommends that paragraph 103.2(1)(b) be redrafted to make clear that the intended recipient of the funds be a terrorist.

Recommendation 22

The Committee recommends that:

7 Border Security

Recommendation 23

That the Customs Act be amended to specify that access to passenger information for the purpose of another law of the Commonwealth is limited to the investigation of serious crimes prescribed by regulation.

Recommendation 24

The Committee recommends that:

Recommendation 25

The Committee recommends that the Privacy Commissioner retain an ongoing oversight role in relation to passenger name records, which includes biannual monitoring of the Passenger Analysis Unit.

Recommendation 26

The Committee recommends that:

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