Bills Digest No. 120 2003-04
Anti-terrorism Bill 2004
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
Anti-terrorism Bill
2004
Date Introduced: 31 March
2004
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
Act commences on the day after it receives Royal
Assent.
The Bill seeks
to amend the Crimes Act 1914, the Crimes (Foreign
Incursions and Recruitment) Act 1978, the Criminal Code
Act 1995 and the Proceeds of Crime Act 2002 to
strengthen Australia s counter-terrorism measures.
The Bill seeks to redefine and extend the
investigation period set out in the Crimes Act for terrorism
offences. Primarily, the proposed amendment extends the period of
arrest (or investigation period) for a person arrested for a
terrorism offence to enable law enforcement agencies to investigate
the offence. (See the Main provisions section of
this Digest for further detail and discussion of the individual
provisions of the Bill.)
Currently, section 23C of the
Crimes Act provides that if a person is arrested for a Commonwealth
offence, the person may be detained for the purpose of
investigating whether the person committed the offence or another
Commonwealth offence. Subsection 23C(2) provides that the
person may not be detained after the end of the investigation
period . Subsection 23C(4) provides that the investigation period
does not extend beyond four hours unless, after the arrest, the
period is extended under section 23D . (Note that for
indigenous persons and minors, the initial investigation period is
two hours not four hours.)
Section 23D of the Crimes Act
deals with the extension of the investigation period if a person is
under arrest for a serious offence . The term serious offence is
defined in subsection 23D(6) to mean a Commonwealth offence that is
punishable by imprisonment for a period exceeding 12 months . The
application to extend the investigation period is usually made to a
magistrate: subsection 23D(2). Subsection 23D(5) provides that the
investigation period may be extended for a period not exceeding 8
hours, and must not be extended more than once .
The proposal to increase the statutory time
limit on an investigation period seems to have come from Victorian
Police Chief Commissioner, Christine Nixon, who is reported to have
said that if a Madrid-style attack were carried out in Australia,
state police officers would not have enough time to interrogate
suspects because federal law required them to be charged
.(1) On the issue of what extension of time may be
appropriate, the Commissioner said: We think up to 24 hours is
appropriate. We understand that 16 to 24 hours would be considered
reasonable by the federal Government .(2) The Prime
Minister was reported to be sympathetic to the
proposal.(3) Opposition Leader, Mark Latham MP, was
reported to support the proposal in principle.(4)
The Crimes (Foreign Incursions and
Recruitment) Act currently deals with incursions (hostile
invasions) into foreign states by Australian citizens or residents.
A journalist recently described the Act as anti-mercenary
.(5)
Among other things, the Crimes (Foreign
Incursions and Recruitment) Act creates the offences of entering a
foreign state with intent to engage in a hostile activity in that
state, and engaging in a hostile activity in a foreign state
(paragraphs 6(1)(a) and (b)). The objective of the
activity must be to overthrow the government of the foreign state;
engage in armed hostilities; cause death or bodily injury (or fear
thereof) to the head of state or a person who holds or performs the
duties of public office; or unlawfully destroy or damage any real
or personal property belonging to the government of the foreign
state: subsection 6(3).
A person does not commit an offence under
subsection 6(1) if he or she was serving in any capacity in or with
the armed forces of the government of a foreign state or any other
armed force in respect of which a declaration by the Minister under
subsection 9(2) is in force : subsection 6(4). In
the Second Reading Speech for the original bill (1978), Senator
Durack, the then Attorney-General, explained the rationale for
permitting Australians to serve in foreign armies in the following
way:
the legislation will not prevent an Australian
from going overseas and enlisting in another country. The
Government recognises that occasions will arise where persons will
wish to enlist and serve in armed forces of another country because
of a deeply-held belief.(6)
The Crimes (Foreign Incursions and
Recruitment) Act also creates offences of preparing for incursions
into foreign states (section 7); recruiting
persons to join organisations engaged in hostile activities against
foreign governments (section 8); and recruiting
persons in Australia to serve in or with an armed force in a
foreign state (section 9). The Act also provides
that the written consent of the Attorney-General is required before
instituting a prosecution for an offence under the Act
(section 10).
At the Security in Government conference in
Canberra on 17 March 2004, the Attorney-General outlined his plan
to amend the Crimes (Foreign Incursions and Recruitment) Act to
make it an offence to fight with a rogue or terrorist state
.(7) Mr Ruddock explained the rationale for the
amendment as follows:
The reason is quite clear. In looking at the
matters of Hicks and Habib where we sought to see whether there was
a basis on which they could be prosecuted in Australia for their
behaviour abroad we found that enactment did not enable us to deal
with a range of situations, particularly where terrorist
organisations are in fact instruments of a state such as the
Taliban.(8)
The Attorney-General said that the amendment
would not be retrospective, with the effect that the amended law
could not be used to bring Hicks and Mahmoud Habib, the two
Australians detained in Guantanamo Bay, Cuba, back to Australia to
be prosecuted .(9) Shortly after the announcement, the
media reported that the Opposition would consider the legislation
on its merits once the detail had been seen and that it would wait
to see the detail of the proposals before commenting
.(10) Stephen Hopper (Habib s lawyer) is reported as
saying that laws which promote peace and good behaviour should not
be used selectively. He said that Australians did military training
in Israel, the United States and other countries, without being
subjected to the same treatment as Habib .(11)
The Bill seeks to amend the Crimes (Foreign
Incursions and Recruitment) Act to broaden the scope of the offence
contained in section 6 of entering a foreign state
with intent to engage in a hostile activity (or actually engaging
in such conduct). The Bill provides that the defence in subsection
6(4) does not apply if the person enters a foreign state while in
or with an organisation which has been prescribed by the
regulations as a terrorist organisation at the time of entry. The
Bill also provides that the defence in subsection 6(4) does
not apply if the person engages in a hostile activity in a foreign
state while in or with an organisation which is a prescribed
organisation at the time of the hostile activity. This amendment
may create problems for a person who leaves Australia to join a
foreign armed force (knowing that that army is not a prescribed
organisation), but the organisation is later prescribed. The person
may not be aware of the change of status of the organisation (that
is, prescription) but may commit an offence under section 6. The
Explanatory Memorandum states that the regulations prescribing
organisations will not be retrospective.(12) However,
the knowledge deficit problem remains.
Further, the Explanatory Memorandum states
that the amendment to the Act enabling the making of regulations is
designed to outlaw participation with new and emerging terrorist
groups from the moment it becomes evident that they pose a threat
to Australia s security .(13) However, this criterion is
not included in the amendments. Notably, the Bill also seeks to
increase the penalty for an offence under section 6.
The Bill seeks to amend the Criminal Code Act
( the Criminal Code ) by revising the offences of being a member of
a terrorist organisation in section 102.3 and of
training a terrorist organisation (or receiving training from a
terrorist organisation) in section 102.5.
First, the Bill seeks to extend the operation
of the membership offence in section 102.3 to
include membership of an organisation which falls within paragraph
(a) of the definition of terrorist organisation in subsection
102.1(1). At present, a person commits an offence under
section 102.3 if:
-
the person intentionally is a member of an organisation
-
the organisation is a specified terrorist organisation (being
one which falls within paragraphs (b) (e) of the definition of
terrorist organisation in subsection 102.1(1)), and
-
the person knows the organisation is a terrorist
organisation.
The offence carries a penalty of a maximum of
10 years imprisonment. According to section 5.3 of
the Criminal Code, a person has knowledge of a circumstance or a
result if he or she is aware that it exists or will exist in the
ordinary course of events .
The term member [of an
organisation] is defined in subsection 102.1(1) of
the Criminal Code to include a person who is an informal member of
the organisation , a person who has taken steps to become a member
of the organisation , and in the case of an organisation that is a
body corporate a director or an officer of the body corporate . The
amendment may therefore lead to uncertainty about the commission of
an offence, particularly if a person is an informal member of an
organisation which may fall within paragraph (a) of the definition
of terrorist organisation or if the person has taken steps to
become a member of the organisation.
It is arguable that the proposed amendment may
have the effect of curtailing freedom of association, particularly
if the organisation is not already a specified terrorist
organisation or the organisation does not have a formal
organisational structure or membership processes.
Second, the Bill amends the offences in
section 102.5. Currently the Act provides two
offences:
-
if a person
intentionally provides training to, or receives training from, an
organisation and the organisation is a terrorist organisation (as
defined in subsection 102.1(1)) and the person
knows the organisation is a terrorist organisation
penalty: up to 25 years imprisonment, and
-
if a person provides training to, or receives training from, an
organisation and the organisation is a terrorist organisation (as
defined in subsection 102.1(1)) and the person is
reckless as to whether the organisation is a
terrorist organisation penalty: up to 15 years imprisonment.
The Bill now distinguishes between:
-
non-proscribed organisations (or those which a court may find
fall within paragraph (a) of the definition of terrorist
organisation when a terrorist offence is prosecuted)
(proposed subsection 102.5(1)), and
-
those organisations specified as terrorist organisations
(proposed subsection 102.5(2)).
(This distinction is discussed further in
relation to items 19 and 20 of Schedule 1 in the
Main Provisions section of this Digest.)
Although the Prime Minister mentioned this
aspect of the Bill when speaking on the Sunday television
program on 28 March 2004, there has been little press commentary
directly on this issue. Presumably, the justice spokesman for the
Australian Democrats, Senator Greig, was referring to the proposed
amendments to section 102.3 when he said that
the laws could lead to uncertainty about what constituted a
terrorist organisation .(14)
Among other things, the Proceeds of Crime Act
currently empowers a court to control certain proceeds from
publications that relate to an indictable offence (being an
indictable offence against Commonwealth law) or a foreign
indictable offence (defined below). In relation to indictable
offences, a court can control literary proceeds (defined largely as
any benefit a person derives from the commercial exploitation of
notoriety arising from the offence).(15) In relation to
a foreign indictable offence (defined below), the court can
currently control only literary proceeds that are derived
in Australia.
The Bill amends the definition of foreign
indictable offence in the Proceeds of Crime Act. Currently, foreign
indictable offence is defined in section 338 of
the Proceeds of Crime Act as follows:
foreign indictable offence means an
offence against a law of a foreign country constituted by conduct
that would have constituted an offence against a law of the
Commonwealth, a State or a Territory punishable by at least 12
months imprisonment if it had occurred in Australia.
The amendment replaces that definition with a
more complicated definition. The revised definition extends the
meaning of foreign indictable offence to provide that where a
person commits an offence against a foreign law at a time when the
conduct was not an offence against Australian law, but where the
conduct is an offence against Australian law at the time when an
application is made for a restraining or confiscation order under
the Proceeds of Crime Act is first made, the conduct is treated as
a foreign indictable offence . In this way, the effect of the
proposed amendment is to provide for the retrospective application
of future offence provisions, not to charge or convict a person but
to prevent a person deriving a commercial benefit from the
conduct.
The Bill also extends the operation of the
legislation to situations where literary proceeds are derived
overseas but later transferred to
Australia.
According to the Second Reading Speech, the
purpose of the proceeds of crime legislation is to discourage and
deter crime by diminishing the capacity of offenders to finance
future criminal activities and to remedy the unjust enrichment of
criminals who profit at society s expense .(16)
In submissions made to the review of the
Proceeds of Crime Act 1987 by the Australian Law Reform
Commission in 1999, various legal bodies suggested that the widest
discretion should vest in a court so that the legislation does not
produce unjust results. They also suggested that literary proceeds
could be used to pay compensation to victims of crime, and that
where a person donates literary proceeds to charity, a court should
not confiscate the proceeds. They suggested that literary proceeds
should not be confiscated if there is no connection between the
literary work and the offence (that is, if the author writes about
matters unrelated to his or her criminal activities, even if the
author trades on notoriety gained from those activities). Finally,
they suggested that proceeds of crime legislation (and literary
proceeds orders) should not be seen as inhibiting free speech,
because it targets the profit rather than the speech
itself.(17)
It is important to note that
subsection 153(1) of the Proceeds of Crime Act
refers to the person committing an indictable offence or a foreign
indictable offence; it is not necessary for the person to be
convicted of the offence for the provision to take effect. It
remains, nonetheless, a question of proof.
Section 154 of the Proceeds
of Crime Act sets out the matters which a court must take into
account in deciding whether to make a literary proceeds order
.(18) Those matters include:
(i) the nature and purpose of the product or
activity from which the literary proceeds were derived; and
(ii) whether supplying the product or carrying
out the activity was in the public interest; and
(iii) the social, cultural or educational
value of the product or activity; and
(iv) the seriousness of the offence to which
the product or activity relates; and
(v) how long ago the offence was
committed.
Speaking on the Sunday television
program on 28 March 2004, the Prime Minister said:
I think most people would regard it as pretty
offensive that somebody can be associated with a terrorist
organisation which has killed people, including associates, may
have killed our people in Bali, and then they go and write a book
about it. I think that sticks in the craw of most Australians
(19)
A spokesman for the Attorney-General has
denied that the amendment is aimed specifically at David
Hicks.(20) On behalf of the Democrats, Senator Greig
said: We already have laws against profiting from crime which
covers films and books, as in the Mark Chopper Read case, so these
new laws would be an unnecessary duplication .(21)
The measures contained in the Bill (if not the
Bill itself) seem to have the support of the Opposition.
Nonetheless, the Opposition is cautious about the proposed
amendments, as evidenced by the following comments by its foreign
affairs spokesman, Kevin Rudd MP:
Our examination and our response to those
draft laws will be taken on the basis of our judgment of the
Australian national interest.
We place a high priority on the
counter-terrorism fight here at home and we will be looking
carefully at the draft proposals put to us by the Prime
Minister.(22)
The Democrats are reported to have said that
the proposed amendments would not stop terrorists and could harm
the civil liberties of Australians and that the laws are a drastic
over-reaction .(23)
On 31 March 2004, the Greens issued a
press release in which Senator Bob Brown called for a Senate
inquiry into the Bill in view of serious erosion of civil rights
for Australians involved . Senator Brown drew attention to the
possibility that [i]nnocent citizens, including range or pilot
instructors, may be convicted of training terrorists
.(24) However, on 30 March 2004, the Senate
Standing Committee on the Selection of Bills had already resolved
to recommend that the provisions of the Anti-terrorism Bill 2004 be
referred immediately to the Legal and Constitutional Legislation
Committee for inquiry and report on 11 May 2004
.(25) On 31 March 2004, the Senate referred the
provisions of the Bill to the Committee. Submissions are called for
before 19 April 2004.(26) The principal matters for the
Committee to consider are as follows:
The benefits of the bill for the investigation
and prosecution of Commonwealth terrorism offences.
The extent to which the amendment advances the
objective of the Proceeds of Crime Act 2002 to prevent individuals
obtaining financial benefit from criminal
activity.(27)
Item 1 amends the definition
of investigation period in subsection 23B(1) of
the Crimes Act to add reference to proposed section
23CA, which relates to the period of arrest (or
investigation period) if a person is arrested for a terrorism
offence (see commentary on item 5 below).
Item 2 inserts a definition
of terrorism offence into subsection 23B(1) of the
Crimes Act. The term is defined as an offence against Division 72
of the Criminal Code or an offence against Part 5.3 of the Criminal
Code . Division 72 (being sections 72.1 72.10)
deals with international terrorist activities using explosive or
lethal devices. Part 5.3 (being Divisions 100
106) deals with terrorism. Among other things, it contains the
definitions of terrorist act and terrorist organisation . As a
result of the application of the Criminal Code, terrorism offences
will also include ancillary offences such as attempt, inciting,
conspiracy and complicity.
Item 3 excludes terrorism
offences from the application of section 23C of
the Act. As noted earlier, section 23C currently deals with the
period of arrest for a Commonwealth offence. The Bill seeks to
replace the heading to section 23C to make it clear that
section 23C applies only to arrests for non-terrorism
offences. Consequently, the Bill also seeks to insert
proposed section 23CA to deal with the period of
arrest if a person is arrested for a terrorism offence (see below).
The Bill does not amend the period of arrest for a person arrested
for a non-terrorism offence the initial period of arrest remains at
four hours unless the period is extended once (for up to eight
hours) under section 23D. (Note that if the person is or appears to
be under 18, an Aboriginal person or a Torres Strait Islander , the
initial period is two hours).
Item 4 amends
subsection 23C(6) to provide for the calculation
of the arrest period under section 23C if the person has already
been arrested more than once in a period of 48 hours for either a
non-terrorism offence or a terrorism offence.
Item 5 inserts
proposed section 23CA to deal with the period of
arrest if a person is arrested for a terrorism offence. In large
measure, it replicates section 23C (as amended by items 3
and 4 of Schedule 1). The initial period of arrest (or
investigation period) is four hours (or two hours for minors or
indigenous persons to whom paragraph 23CA(4)(a) applies). Time does
not run when the questioning of the person has been suspended,
among other things, to allow the person to rest or recuperate
(proposed paragraph 23CA(8)(j)), or to allow
the investigating official to obtain information relevant to the
investigation from a place outside Australia that is in a different
time zone, being a period that does not exceed the amount of the
time zone difference (proposed paragraph
23CA(8)(m)). (It should be noted that proposed
paragraph 23CA(8)(m) is not replicated in section 23C for
non-terrorism offences.)
Item 6 amends
subsection 23D(1) to exclude terrorism offences
from the operation of that provision (which deals with the
extension of the investigation period where a person is under
arrest for a serious offence). Consequently, item
7 inserts proposed section 23DA to deal
with the extension of the investigation period if a person is
arrested for a terrorism offence. Proposed section 23DA largely
replicates section 23D (as amended by item 6). The
main difference between the provisions is found in proposed
subsection 23DA(7) which provides that the investigation
period may be extended any number of times, but the total of the
periods of extension cannot be more than 20 hours . (Compare
subsection 23D(5) which provides that the
investigation period may be extended for a period not exceeding 8
hours, and must not be extended more than once .)
Items 8 12 make consequential
amendments to other provisions of the Crimes Act to give effect to
the proposed amendments to the Crimes Act mentioned above.
Item 13 increases the penalty
for the offence of entering a foreign state with intent to engage
in a hostile activity (or actually engaging in a hostile activity
in a foreign state) in subsection 6(1) of the
Crimes (Foreign Incursions and Recruitment) Act from a maximum of
14 years imprisonment to a maximum of 20 years imprisonment.
Item 14 increases the scope
for the commission of the offence in subsection
6(1) by amending section 6(2). The effect
of the amendment is that if the person alleged to have committed
the offence is not an Australian citizen or ordinarily resident in
Australia but the person was present in Australia at any time
before the act said to constitute the offence and the person s
presence in Australia was connected with that act, then the person
can be prosecuted for an offence against section 6. Currently the
person must have been an Australian citizen, ordinarily resident in
Australia, or in Australia within a year of the act said to
constitute the offence to be liable for prosecution for an offence
against section 6.
Item 15 inserts
proposed subsections 6(5), (6) and (7), which are
designed to limit the operation of the defence in
paragraph 6(4)(a). Currently paragraph
6(4)(a) provides that section 6 does not apply to an act done by a
person in the course of, and as part of, the person s service in
any capacity in or with the armed forces of the government of a
foreign state . In other words, service in the armed forces of a
foreign government excuses a person from liability for the
offence.
Proposed subsection 6(5)
provides that the defence in paragraph 6(4)(a) will not apply if a
person enters a foreign State with intent to engage in a hostile
activity in that foreign State while in or with an organisation;
and the organisation is a prescribed organisation at the time of
entry . In other words, if the person is serving in or with the
armed forces of the government of a foreign state but those forces
are a prescribed organisation, then the defence in paragraph
6(4)(a) will not apply. Proposed subsection 6(5) may create
problems for a defendant who is abroad when the organisation is
prescribed in Australia and may not be aware of the prescription
(or have the ability to find out).
Proposed subsection 6(6)
provides that the defence in paragraph 6(4)(a) does not apply if a
person engages in a hostile activity in a foreign State while in or
with an organisation; and the organisation is a prescribed
organisation at the time when the person engages in that hostile
activity . Again, this provision may cause problems for a defendant
who is abroad when the organisation is prescribed in Australia and
may not be aware of the prescription.
Proposed subsection 6(7)
defines prescribed organisation for the purposes of proposed
subsections (5) and (6). The term means an organisation
prescribed by the regulations for the purposes of paragraph 6(7)(a)
or an organisation specified by the regulations for the purposes of
paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1) of the Criminal Code (in other words, a
specified terrorist organisation). This provision thus contemplates
the prescription of organisations other than those specified as
terrorist organisations. The regulations will be subject to
disallowance by either House of Parliament.
Item 16 amends
paragraph 7(2)(b) of the Crimes (Foreign
Incursions and Recruitment) Act to increase the scope of the
operation of section 7 (being offences of
preparing for incursions into foreign states for the purpose of
engaging in hostile activities). Presently, the Act provides that
for a person to commit an offence against section 7, the person
must be an Australian citizen or an Australian resident or present
in Australia during one year before the offence. The effect of the
amendment will be to remove the one year time limit on a person s
presence in Australia prior to the offence and to replace it with
reference to the person being in Australia at any time before the
offence. Accordingly, a person who is an Australian citizen, an
Australian resident or who has been in Australia at any time before
the doing of the act giving rise to the offence (if the person s
presence was connected with the offence) may be taken to have
committed the offence.
Item 17 inserts
proposed subsection 11(3A). Section
11 deals with evidentiary certificates of Ministers that
can be used in proceedings for offences against the Act. Proposed
subsection 11(3A) provides that a certificate by a Minister stating
that an organisation named in the certificate was not on a
specified day or period an armed force, or part of an armed force,
of the government of a foreign State specified in the certificate
is prima facie evidence of the matters stated in the
certificate. One of the reasons for relying on ministerial
certificates is that a matter is difficult to prove. However, it
may also be difficult in practice for a defendant to rebut the
facts contained in the certificate.(28) Clause
4 of the Bill provides that the amendment made by
item 17 does not apply to proceedings for offences
alleged to have been committed before the commencement of this Act
.
Item 18 inserts
proposed section 12 to provide that the
Governor-General may make regulations prescribing matters for the
purposes of the Crimes (Foreign Incursions and Recruitment) Act. As
mentioned earlier, the regulations would be subject to
disallowance.
Item 19 amends the offence of
being a member of a terrorist organisation in section
102.3 of the Criminal Code. It replaces the requirement
that the organisation must be a terrorist organisation within
paragraph (b), (c), (d) or (e) of the definition of terrorist
organisation in subsection 102.1(1) of the Criminal Code (that is,
an organisation specified by the regulations as a terrorist
organisation ) with the requirement that the organisation is a
terrorist organisation (that is, including paragraph (a) of the
definition of terrorist organisation ).(29)
It is arguable that the proposed amendment may
have the effect of curtailing freedom of association, particularly
if the organisation is not already a specified terrorist
organisation and a person is unsure about whether an organisation s
activities would cause a court to determine that it is a terrorist
organisation under paragraph (a) of the definition of a terrorist
organisation when an offence is prosecuted. Nonetheless, given that
paragraph (a) of the definition of terrorist organisation may
already introduce some uncertainty to the definition of terrorist
organisation , it is also arguable that the amendment does no more
than ensure that the whole of the existing definition of terrorist
organisation (contained in subsection 102.1(1) of the Criminal
Code) applies to the offence contained in section 102.3.
Proposed subsection 102.5(1)
provides that a person commits an offence if the person
intentionally provides training to, or intentionally receives
training from, an organisation, and the organisation is a terrorist
organisation (including an organisation which is not currently
specified as a terrorist organisation), and the person is
reckless as to whether the organisation is a
terrorist organisation. The penalty is up to 25 years
imprisonment.
Proposed subsection 102.5(2)
provides that a person commits an offence if the person
intentionally provides training to, or receives training from, an
organisation, and the organisation is a specified terrorist
organisation. Proposed subsection 102.5(3)
introduces strict liability into the offence contained in
subsection 102.5(2). This means that the
prosecution need not prove that the person considered whether the
organisation was a specified terrorist organisation, but the person
may raise a defence of mistake of fact (see sections 6.1
and 9.2 of the Criminal Code).
Further, proposed subsection
102.5(4) provides a defence of recklessness. This means
that the person bears the evidential burden of proving
either that he or she was not aware of a substantial risk
that the circumstance [being proscription] exists or will exist
or that having regard to the circumstances known to him or
her, it was not unjustifiable to take the risk . (See
subsection 5.4(1) of the Criminal Code.) It is
not, however, clear how the defendant would prove that he or she
was not reckless as to whether an organisation was a specified
terrorist organisation. The penalty for the offence is 25 years
imprisonment.
In relation to proposed subsection
102.5(3), it should be noted that it is unusual for
serious Commonwealth offences to contain elements of strict (or
absolute) liability.(30) The rationale for the
introduction of strict liability (and the reversal of the onus of
proof) is explained in the Second Reading Speech:
The effect of the proposed strict liability
provision is that the prosecution still has to prove that the
person intentionally provided training to or intentionally received
training from an organisation, and that the organisation is a
terrorist organisation specified by regulations.
However, the prosecution would not have to
prove that the person was aware that it was a specified terrorist
organisation.
A person will have available a defence of
mistake of fact.
In addition, the offence will not apply if the
person is not reckless as to the organisation being a specified
terrorist organisation.
The effect of this amendment is to place an
onus on persons to ensure that they are not involved in training
activities with a terrorist organisation.
This amendment will send a clear message to
those who would engage in the training activities of terrorist
activities, which could result in an attack of the kind seen in New
York or in Bali, that they can expect to be dealt with
harshly.(31)
In this context, it should be noted that
training is not defined in the Criminal Code or in the Bill. There
is potential for the term to be construed broadly (for example, it
could include receiving a training manual).
Clause 4 of the Bill provides
that the amendments to the Proceeds of Crime Act contained in
items 21 27 have retrospective operation. The
amendments are said to apply to applications in relation to conduct
that occurred proceeds derived or realised or literary proceeds
derived or transferred to Australia before the commencement of this
Act .
Item 21 of Schedule 1 amends
paragraph 20(1)(d) of the Proceeds of Crime Act.
The main distinction between the current provision and item
21 is that the amendment will enable a court to make a
restraining order in relation to literary proceeds which are not
derived in Australia but which are transferred to Australia.
Likewise, item 22 amends paragraphs
20(3)(b) and (c) to extend the operation of section 20 to
literary proceeds derived outside Australia.
Item 23 amends
subsection 152(2) to provide that a court with
proceeds jurisdiction may make a literary proceeds order if it is
satisfied that a person has committed a foreign indictable offence
and the person has derived literary proceeds in relation to the
offence. Currently paragraph 152(2)(c) provides that the person has
derived the literary proceeds in Australia, but item
23 seeks to remove the reference to Australia. As noted
earlier, subsection 153(1) refers to the person
committing an indictable offence or a foreign indictable offence;
it is not necessary for the person to be convicted of the offence
for the provision to take effect.
Item 24 amends the definition
of literary proceeds in section 153 to provide
that they are a benefit a person derives from the commercial
exploitation of (among other things) the person s notoriety
resulting directly or indirectly from the person
committing an indictable offence or a foreign indictable offence
(proposed amendment emphasised). It is arguable that these words
could have been inferred in the provision as it currently stands,
but the proposed amendment may clarify the situation.
Item 25 also amends the
definition of literary proceeds in section 153 by
inserting proposed subsection 153(3A). That
provision states that if the offence is a foreign indictable
offence, then a benefit is not treated as literary proceeds unless
the benefit is derived in Australia or transferred to Australia. In
other words, a court having proceeds jurisdiction could not make an
order for payment to the Commonwealth under Part 2 5 of the
Proceeds of Crime Act if the person committed a foreign indictable
offence but did not derive any benefit in Australia and maintained
the proceeds in a foreign bank (so long as no benefits are
transferred to Australia).
Item 26 inserts
proposed section 337A defining foreign indictable
offence . The term is currently defined in section 338, but the
proposed definition is wider. As mentioned earlier, the revised
definition extends the meaning of foreign indictable offence to
provide that where a person commits an offence against a foreign
law at a time when the conduct was not an offence against
Australian law, but where the conduct is an offence against
Australian law at the time an application is first made for a
restraining or confiscation order under the Proceeds of Crime Act
is made, the conduct is treated as a foreign indictable offence .
This provision (referred to in the Second Reading Speech as the
double criminality test ) has retrospective operation, which may be
unfair if a person commits a crime overseas which is not a crime in
Australia at the time the conduct giving rise to the offence
occurs. In some circumstances, however, it is arguable that a crime
may be so morally reprehensible that the perpetrator should not go
unpunished, particularly if the perpetrator has derived a benefit
from the commission of the offence.
The term offence against a law of a foreign
country includes an offence triable by a military commission of the
United States under a specific military order: Detention,
Treatment, and Trial of certain Non-Citizens in the War Against
Terrorism , issued by President George W Bush on 13 November
2001.(32) Offences triable by a military commission
include, for example, certain war crimes, attacking civilians or
civilian property, terrorism, aiding the enemy and ancillary
offences.(33)
Item 27 repeals the current
definition of foreign indictable offence in section 338 and
replaces it with a cross-reference to the definition of the term in
proposed section 337A (see item
26 above).
Tensions exist between the right
to personal liberty and the need to detain a person to enable law
enforcement officers to investigate crime. These tensions have been
the subject of numerous reports and legal decisions. See, for
example, the decision of the High Court of Australia
in Williams
v The Queen (1986) 161 CLR 278
where Mason and
Brennan JJ said (at 299):
The jealous protection of personal
liberty accorded by the common law of Australia requires police so
to conduct their investigation as not to infringe the arrested
person's right to seek to regain his personal liberty as soon as
practicable. Practicability is not assessed by reference to the
exigencies of criminal investigation; the right to personal liberty
is not what is left over after the police investigation is
finished.
By contrast, it has been argued
that the common law protection afforded to personal liberty is too
great:
The criminal law must strike a
balance between the protection of personal liberty and the
exigencies of criminal investigation. There is a strong argument in
favour of the view that the common law and its statutory
equivalents as now interpreted by the courts unrealistically fail
to give due weight to the latter consideration, with the
consequence that if the law were strictly enforced the proper
investigation of crime would be likely to be seriously hampered and
offenders would be likely to escape
justice.(34)
In the case of the
present Bill,
Parliament may want to consider whether the balance is right
between the need for law enforcement officers to investigate crime
and the rights of the suspect not to be detained for an
unreasonable period of time. It may also want to consider whether
the extended period of involuntary detention to enable
investigations to occur sits comfortably with the potential of the
extended period of detention to erode the suspect s right to remain
silent.
A doctoral candidate at
the Australian
National
University recently described
the proposed amendments to the Crimes Act and the Crimes (Foreign
Incursions and Recruitment) Act (as contained in the
present Bill)
as certainly sensible . However, the same candidate referred to the
other proposed amendments as deeply worrisome . He referred
specifically to the proposed amendments to the Proceeds of Crime
Act as follows:
While effectively curtailing the
freedom of speech, a fundamental principle in any liberal
democracy, provisions like these are also counterproductive.
History provides numerous examples for defectors of terrorist
groups publishing books or memoirs and thus providing rare insights
into the respective group s organisational structures and
motivations.(35)
Questions might be raised about
whether the proposed amendments to the Proceeds of Crime Act
infringe the implied constitutional freedom of communication
concerning political and governmental matters. Freedom of
communication is considered to be central to the system of
representative government. However, as the High Court of Australia
explained in Lange
v Australian Broadcasting Corporation
(1997)
189 CLR 520, the freedom is not
absolute. A law which might otherwise breach the freedom is valid
if it satisfies two conditions (at 567-568) (footnotes
omitted):
When a law of a State or federal
Parliament or a Territory legislature is alleged to infringe the
requirement of freedom of communication imposed by ss 7, 24, 64 or
128 of the Constitution, two questions must be answered before the
validity of the law can be determined. First, does the law
effectively burden freedom of communication about government or
political matters either in its terms, operation or effect? Second,
if the law effectively burdens that freedom, is the law reasonably
appropriate and adapted to serve a legitimate end the fulfilment of
which is compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government and
the procedure prescribed by s 128 for submitting a proposed
amendment of the Constitution to the informed decision of the
people (hereafter collectively the system of government prescribed
by the Constitution ). If the first question is answered yes and
the second is answered no , the law is invalid.
In deciding whether a law
impermissibly infringes the implied freedom, a court might look at
whether political communication was involved, and if so, whether a
law preventing a person profiting from their work effectively
burdens political communication. If the answer to these questions
is yes , the court would need to consider whether the law is
reasonably appropriate and adapted . As mentioned in the
Background section to this Digest, the Australian
Law Reform Commission considers that proceeds of crime legislation
does not inhibit free speech, because it targets profit rather than
speech.
It should be noted that the High
Court of Australia has never found a right to freedom of
association implied in the Constitution.
The proposed revision of the term
foreign indictable offence in the Proceeds of Crime Act has two
components: the offence must be an offence against the law of a
foreign country (which includes an offence triable by a military
commission), and the activity must be an offence against Australian
law at the testing time (that is, when an application is first made
for a restraining order or a confiscation order under the Proceeds
of Crime Act). While Hicks and Habib may not have committed an
offence against Australian law at the time they were apprehended,
it is possible (depending on the evidence) that their activities
may constitute an offence at a future testing time . For instance,
there is now a range of terrorist act and terrorist organisation
offences, war crimes and other offences under the Criminal Code
(including ancillary offences). If passed, the
Bill will add modified
offences under the Crimes (Foreign Incursions and Recruitment) Act
relating to preparation for foreign incursions to this list, as
well as new terrorism offences.
If this is the case, then the
Proceeds of Crime Act (as amended by the
Bill) could apply to Hicks
and/or Habib. By virtue of proposed section 337A
of the Proceeds of Crime Act (being the definition of foreign
indictable offence ), if the conduct of Hicks (and/or Habib)
constituted an offence against a law of a foreign country
and if the conduct had occurred in Australia at the
testing time, the conduct would have constituted an offence
under Australian law punishable by at least 12 months imprisonment
at the testing time, then the conduct would constitute a
foreign indictable offence . The Commonwealth could then seek a
restraining order or a confiscation order in relation to any
literary proceeds which Hicks may derive from publishing a book
(provided the benefit was derived in
Australia or transferred
to Australia).
Neither Hicks nor Habib need be charged or convicted of an offence
for the Proceeds of Crime legislation to take effect;
section 152 of the Proceeds of Crime Act refers to
a court being satisfied that the person has committed an indictable
offence or a foreign indictable offence (whether or not the person
has been convicted of the offence) and that the person has derived
literary proceeds in relation to the offence .
-
Brendan Nicholson, Police may get more time to hold terror
suspects , The Age, 20 March 2004, p. 7.
-
Martin Chulow, PM backs new power to detain , The Weekend
Australian, 20 March 2004, p.4.
-
Martin Chulow, PM backs new power to detain , The Weekend
Australian, 20 March 2004, p.4, and [unidentified author],
Longer detention for terror suspects , Daily Telegraph,
20 March 2004, p. 5
-
Martin Chulow, PM backs new power to detain , The Weekend
Australian, 20 March 2004, p. 4, and Brendan Nicholson, Police
may get more time to hold terror suspects , The Age,
20 March 2004, p. 7.
-
Mark Phillips, New law to fight terrorism , Herald Sun
(Melbourne), 18 March 2004, p. 5.
-
Senator Durack, Attorney-General, Second reading speech: Crimes
(Foreign Incursions and Recruitment) Bill 1978 , Senate,
Debates, 7 March 1978, p. 364.
-
Sophie Morris, Ruddock in grab for terror powers , The
Australian, 18 March 2004, p. 2.
-
Mark Phillips, Terrorists face our courts; Legislation to
toughen security , Daily Telegraph, 18 March 2004, p. 5,
and Verona Burgess, Ruddock bid for secret trials , The
Canberra Times, 18 March 2004, p. 2.
-
Brendan Nicholson, Legal push to tackle terrorism , The
Age, 18 March 2004, p. 2.
-
Sophie Morris, Ruddock in grab for terror powers , The
Australian, 18 March 2004, p. 2, and Mark Phillips, New law to
fight terrorism , Herald Sun (Melbourne), 18 March 2004,
p. 5.
-
Brendan Nicholson, Legal push to tackle terrorism , The
Age, 18 March 2004, p. 2.
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 19
(item 15).
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 18
(item 15).
-
Bid to outlaw profits from terror memoirs , The Canberra
Times, 29 March 2004, p. 2.
-
Currently, Part 2 5 of the Proceeds of Crime
Act deals with literary proceeds orders. It forms
part of Chapter 2 of the Act, which deals with the confiscation
scheme. The term literary proceeds is defined in subsection
153(1) of the Proceeds of Crime Act as follows:
Literary proceeds are any benefit
that a person derives from the commercial exploitation of:
the person's notoriety resulting from the
person committing an indictable offence or a foreign indictable
offence; or
(a)
the notoriety of another person, involved in the commission of that
offence, resulting from the first-mentioned person committing that
offence.
(The term commercial exploitation is defined
in subsection 153(2) as including (a) publishing any material
in written or electronic form; or (b) any use of media from which
visual images, words or sounds can be produced; or (c) any live
entertainment, representation or interview . The term benefit is
defined in section 338 as including service or advantage .)
-
The Hon Philip Ruddock, Attorney-General, Second reading speech:
Anti-terrorism Bill 2004 , House of Representatives,
Debates, 31 March 2004, p. 26 476.
-
Australian Law Reform Commission, Confiscation that counts:
A review of the Proceeds of Crime Act 1987, Report No 87,
1999. The report is available electronically at: http://www.austlii.edu.au/au/other/alrc/publications/reports/87/
(at 13 April 2004). See particularly Chapter 18 Literary proceeds
at paragraphs 18.37 18.43.
-
A literary proceeds order is an order under section 152
requiring a person to pay an amount to the Commonwealth where the
person has derived literary proceeds from the commission of an
indictable offence.
-
John Howard, Prime Minister, Transcript of interview with Laurie
Oakes, Sunday, Channel 9, 28 March 2004; also quoted in
Jason Frenkel, Crackdown on suspects cashing in; PM toughens
detention laws , Herald Sun (Melbourne), 29 March 2004, p.
2.
-
Bid to outlaw profits from terror memoirs , The Canberra
Times, 29 March 2004, p. 2.
-
Bid to outlaw profits from terror memoirs , The Canberra
Times, 29 March 2004, p. 2.
-
Brendan Nicholson, Coalition reviews anti-terror laws , The
Age, 29 March 2004, p. 5, and Tony Maguire, PM flags new laws
to fight terror , Daily Telegraph, 29 March 2004, p.
2.
-
Bid to outlaw profits from terror memoirs , The Canberra
Times, 29 March 2004, p. 2, and Tony Maguire, PM flags new
laws to fight terror , Daily Telegraph, 29 March 2004, p.
2.
-
Senator Bob Brown, Anti-terrorism bill's provisions require
scrutiny: Greens , Press release, 31 March 2004, available at
http://www.greens.org.au
(at 1 April 2004).
-
Senate Standing Committee on the Selection Of Bills, Report No.
6 of 2004, Senate Journals, Volume 142, 31 March 2004, p.
3301.
-
See
http://www.aph.gov.au/senate/committee/legcon_ctte/anti_terrorism04/index.htm
(at 13 April 2004)
-
Senator Jeannie Ferris, Committees: Selection of Bills
Committee: Report , Senate, Hansard, 31 March 2004, p. 22
125.
-
Explanatory Memorandum to the Anti-terrorism Bill 2004, p. 19
(item 17).
-
Paragraph (a) of the definition of terrorist organisation
provides: (a) an organisation that is directly or indirectly
engaged in, preparing, planning, assisting in or fostering the
doing of a terrorist act (whether or not the terrorist act occurs)
.
-
See, for example, Attorney-General s Department,
Submission to the inquiry by the Senate Legal and
Constitutional Legislation Committee into the Security Legislation
Amendment (Terrorism) Bill 2002 (No. 2) and related Bills,
Submission 383A, 26 April 2002, p. 6 (which refers to other
terrorism offences, sexual offences outside Australia involving
minors, and offences involving UN personnel).
-
The Hon Philip Ruddock, Attorney-General, Second reading speech:
Anti-terrorism Bill 2004 , House of Representatives,
Debates, 31 March 2004, p. 26 475 (available
electronically at: http://www.aph.gov.au/hansard/reps/dailys/dr310304.pdf).
-
See
http://www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html
(at 1 April 2004).
-
Department of Defense (USA), Military Commission Instruction
No. 2 (Subject: Crimes and Elements for Trials by Military
Commission), 30 April 2003.
-
Review of Commonwealth Criminal Law, (chaired by Sir Harry
Gibbs), Discussion Paper No. 3, Arrest and related matters ,
September 1987, p. 20 at paragraph 5.5.
-
Christopher Michaelsen, Little basis for tougher terrorism laws
, The Canberra Times, 6 April 2004, p. 11.
Morag Donaldson
19 April 2004
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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