10. Schedules 3 to 5 and consequential amendments

10.1
This chapter discusses the following amendments proposed in Schedules 3 to 5 to the Bill:
a proposed new aggravated offence for giving false or misleading information in relation to a security clearance (Schedule 3),
proposed amendments to the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to enable telecommunications interception warrants to be requested in relation to the offences in the Bill (Schedule 4), and
amendments to the Foreign Influence Transparency Scheme Act 2018 that are proposed to come into effect if and once the Foreign Influence Transparency Scheme Bill 2017 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 are passed by the Parliament.
10.2
This chapter also discusses a number of consequential amendments contained in Schedules 1 and 2 to the Bill, including amendments affecting:
cessation of Australian citizenship,
applications for Australian citizenship,
deportation of non-citizens,
presumption against bail, and
in-camera court proceedings.
10.3
Finally, this chapter discusses the application of mandatory non-parole periods to many of the new offences created in the Bill.

Schedule 3 – Aggravated offence for giving false or misleading information

10.4
Schedule 3 will amend Division 137 of the Criminal Code to introduce a new aggravated offence for providing false or misleading information. The maximum penalty for the existing underlying offence is 12 months imprisonment. The maximum penalty for the proposed aggravated offence will be imprisonment for five years.1

Scope of the offence

10.5
Currently, it is an offence to knowingly provide information that is false or misleading to the Commonwealth, or to knowingly provide information which omits a matter so as to make the information provided misleading.2 The Bill proposes creating an aggravated offence where the false or misleading information or omission is made in connection with the application for, or the maintenance of, an Australian Government security clearance.
10.6
The Explanatory Memorandum states that the proposed offence reflects the higher level of culpability and the serious consequences that can flow from providing misleading information in the context of the security clearance process.3 The Explanatory Memorandum provides two scenarios in which the proposed aggravated offence would apply: where a vetting applicant does not disclose that they have previously participated in military service for a foreign country; and where a security clearance holder does not disclose that they have an ongoing association with an employee of a foreign government.4
10.7
In addition to the scenarios outlined by the Explanatory Memorandum, the proposed aggravated offence would also apply to any other person who provides information as part of the security clearance process, for example, the vetting candidate’s personal referee or former employer. The Attorney-General’s Department submitted that ‘protecting the integrity of security vetting is of fundamental importance and referee checking is a key element of the vetting process’.5
10.8
The Law Council of Australia expressed concern that the offence would capture a broader range of conduct than undeclared links to foreign principal. The Law Council gave the example of a vetting applicant omitting a singular incident of recreational drug use as conduct that could fall within the scope of the proposed aggravated offence.
10.9
The Law Council recommend that the proposed aggravated offence should not proceed, and instead suggested:
an offence of failing to disclose defined activities linked to a foreign country or foreign principal in relation to an application for, or the maintenance of, an Australian Government security clearance; or alternatively
the proposed aggravated offence should be limited to activities linked to a foreign country or foreign principal in relation to an application for, or the maintenance of, an Australian Government security clearance.6
10.10
The Law Council submitted that the scope of the proposed aggravated offence should reflect the intent of the Bill—to limit foreign adversaries from wielding undue influence.7 The Attorney-General’s Department responded to this concern as follows:
Security clearance processes are not only concerned with a person’s foreign association. They are intended to identify a range of potential vulnerabilities that may indicate that a person is not suitable to have access to classified information.
The provision of false or misleading information about a person’s personal or financial circumstances can be just as important as the person’s connections to a foreign country when determining a person’s suitability to hold a security clearance.8

Definition of key terms

10.11
As discussed in Chapter 3, the phrase ‘Australian Government security clearance’ is not defined in the Bill but is intended to capture the four clearances level outlined in the Protective Security Policy Framework: Baseline, Negative Vetting Level 1, Negative Vetting Level 2 and Positive Vetting. 9 The phrase ‘maintenance’ is also not defined in the Bill, nor does the Explanatory Memorandum outline the intended scope of activities and conduct that is sought to be characterised as constituting the ‘maintenance of an Australian Government security clearance’.

Defences

10.12
The existing defences available to the underlying offence in section 137.1 will also apply to the proposed aggravated offence. The defence may be available where:
the information provided is not false or misleading in a material particular;
the information omitted did not omit any matter or thing without which the information is misleading in a material particular; or
the Commonwealth does not take reasonable steps to inform the person providing the information, prior to their provision of the information, of the existence of the offence. For this purpose the Criminal Code provides that the officer can inform the person that ‘giving false or misleading information is a serious offence’.10

Telecommunications interception

10.13
The Bill also proposes enabling law enforcement agencies to obtain a telecommunications interception warrant to investigate the proposed aggravated offence. The expansion of telecommunications interception powers is addressed in Chapter 10.

Committee Comment

10.14
The Committee recognises the significant harm that could be caused by a person acquiring or maintaining an Australian Government Security Clearance on the basis of an undeclared relationship to a foreign principal, or concealed allegiance to a foreign country. This information can be key to the Government’s assessment of whether a person is suitable to hold a clearance, and if so, whether any risk mitigation strategies should be implemented. Accordingly, the Committee recognises the need to deter misleading conduct and to enable law enforcement agencies to effectively investigate it.
10.15
The Committee also recognises concerns that a broader range of conduct will fall within the ambit of the proposed offence than concealed foreign allegiances. Any type of information and any person providing such information, including personal referees, will be captured. The Committee notes the Attorney-General’s Department’s view that this is necessary because a person’s personal or financial circumstances can be ‘just as important’ as their connections to foreign countries when determining whether a person is suitable to hold a clearance.11
10.16
However, the Committee also recognises that information provided by a referee, particularly for high-level security clearances, can be of an acutely personal nature. For example, a personal referee may have shared a sexual or romantic relationship with the security clearance holder, or may have engaged in criminal activity or drug taking with a security clearance applicant.
10.17
The Committee notes that all of the defences to the underlying offence in section 137.1 are available in connection with proposed new section 137.1A. This includes that the person does not commit an offence if the information is not false or misleading in a ‘material particular’, or if the Commonwealth entity (in this case, a security vetting authority) did not take reasonable steps to notify the person of the existence of the offence.
10.18
The Committee also notes that the default mental element of recklessness applies in relation to proposed section 137.1A(1)(b)—that is, the person must be aware of a substantial risk that they are giving the information in relation to an application for, or the maintenance of, an Australian Government security clearance and that in the circumstances known to him or her it was unjustifiable to take that risk.

Schedule 4 – Telecommunications interception

10.19
Schedule 4 amends the Telecommunications (Interception and Access) Act 1979 (TIA Act) to enable ‘enforcement agencies’ (the Australian Federal Police, the Australian Commission for Law Enforcement Integrity and the Australian Criminal Intelligence Commission) to apply to an issuing authority for a telecommunications interception warrant for the purpose of investigating a number of the Bill’s proposed offences.
10.20
Currently, enforcement agencies may apply for a warrant to intercept communications for the purposes of investigating a ‘serious offence’, defined in the TIA Act to include any offence punishable by at least seven years imprisonment, and a list of other prescribed offences.12
10.21
The Bill proposes enabling these agencies to acquire a warrant to investigate all of the Bill’s proposed offences. All offences in the following divisions will be defined as ‘serious offences’ for the purposes of the TIA Act:
Division 82 (Sabotage)
Division 83 (Other threats to security)
Division 91 (Espionage)
Division  92 (Foreign interference)
Division  92A (Theft of trade secrets involving foreign government principal)
Division  122 (Secrecy) and;
Section 137.1A (aggravated offence of providing misleading information) of the Criminal Code.13
10.22
The Explanatory Memorandum provides that the purpose of the amendment is to ensure that ‘law enforcement agencies have access to telecommunications interception powers to investigate these serious offences.’14 The Explanatory Memorandum states that these powers are an ‘essential tool for investigating offences involving foreign principals or communication of sensitive information’.15
10.23
The majority of these offences are proposed to carry a maximum penalty of seven years imprisonment or more, and would accordingly fall within the current TIA Act definition of a ‘serious offence’, with the following exceptions:
the aggravated offence for giving false or misleading information (section 137.1A) which is proposed to carry a maximum penalty of five years imprisonment; and
a number of the new secrecy offences which are proposed to carry maximum penalties of between two and five years’ imprisonment.

Application to aggravated offence of providing misleading information and secrecy offences

10.24
The Bill proposes the extension of telecommunications interception powers to investigations concerning the proposed section 137.1A ‘aggravated offence for giving false or misleading information’.16
10.25
The Law Council of Australia did not support this amendment. It noted that this offence, as proposed, does not require the false or misleading information to have a nexus to a foreign country or foreign principal. Accordingly, a warrant could be obtained to investigate matters that do not pose a threat to Australia’s national security. In this context, it considered the proposed expansion ‘would be considerable and does not appear justified’.17
10.26
In response, the Attorney-General’s Department submitted:
The use of telecommunications interception powers are likely to be critical in understanding a person’s intentions, associations or other prejudicial activity, as well as the person’s associations, in the context of the provision of false or misleading information as part of a security clearance process.18
10.27
The Bill will also enable law enforcement agencies to seek warrants to investigate all secrecy offences, including:
the ‘inherently harmful information’ offences set out in proposed section 122.1(2)-(4), which are proposed to carry a maximum penalty of five years imprisonment;
the ‘conduct causing harm to Australia’s interests’ offences set out in proposed section 122.2(2)-(4) , which are proposed to carry a maximum penalty of five years imprisonment; and
unauthorised disclosure of information by a current or former Commonwealth officer, subject to a maximum penalty of two years imprisonment (proposed section 122.4).
10.28
The Statement of Compatibility with Human Rights in the Explanatory Memorandum acknowledges that telecommunications interception imposes a limitation on the right to privacy. The limitation is justified by reference to:
The gravity of the threat posed to Australia’s national security by espionage, foreign interference and related activities demonstrates the need to take reasonable steps to detect, investigate and prosecute those suspected of engaging in such conduct. The current lack of law enforcement and intelligence powers with respect to these activities has resulted in a permissive operating environment for malicious foreign actors, which Australian agencies are unable to effectively disrupt and mitigate.19
10.29
Mr Timothy Pilgrim, the Australian Information Commissioner and the Australian Privacy Commissioner, submitted that, consistent with Article 17 of the International Covenant on Civil and Political Rights (ICCPR), proposals to limit privacy protections should be demonstrably reasonable, necessary and proportionate, having regarding to the proposal’s policy objectives.20 Article 17 provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.21
10.30
The Commissioner noted that the Bill’s proposal to extend telecommunications powers to capture the expanded secrecy offences and proposed aggravated offence would increase the circumstances where personal information may be collected, accessed and disclosed under the TIA Act.22 He raised concerns that the Explanatory Memorandum focuses on the limitation to the right to privacy in the context of espionage and foreign interference, but does not make clear the need for expanding the regime in the TIA Act to include the secrecy provisions and the aggravated offence for false or misleading information.23
10.31
Accordingly, the Commissioner recommended that additional information be included in the Explanatory Memorandum to explain ‘how the expanded definition of ‘serious offence’ is reasonable, necessary and proportionate, given the likely impact of this expanded definition on individuals’ privacy’.24
10.32
Responding to the Commissioner’s concern, the Attorney-General’s Department submitted that:
The department’s view is that the inclusion of secrecy offences and aggravated false and misleading information offence in the definition of serious offence under the TIA Act is reasonable, necessary and proportionate.25
10.33
The Department referred to the ‘detailed justification’ provided elsewhere in the Explanatory Memorandum for the inclusion of all of the relevant offences in the TIA Act definition of ‘serious offence’.26
10.34
The Centre for Media Transition raised concerns that defining a ‘serious offence’ to include all of the proposed secrecy offences would facilitate access by agencies to information concerning journalists’ sources, without adequate public interest protections.27

Committee Comment

10.35
The Committee has previously noted the dual objectives of the TIA Act to protect the privacy of communications by prohibiting unlawful interception, while enabling limited interception access for the investigation of serious crime and threats to national security.28
10.36
The Committee considers that it is appropriate that law enforcement agencies be enabled, subject to the safeguards in the TIA Act, to investigate the offences proposed in the Bill. This includes the proposed new offences for foreign interference and theft of trade secrets, as well as the range of other serious offences that will be amended by the Bill. The Committee particularly notes the important role that telecommunications interception could play in investigating the proposed new and amended secrecy offences. Accordingly, the Committee supports these amendments.
10.37
The Committee notes that a justification for the expanded telecommunications interception laws is provided in the Explanatory Memorandum,29 but such an explanation is absent from the Bill’s Statement of Compatibility with Human Rights. The Statement justifies limiting the right to privacy by reference to the threat posed by espionage, foreign interference and related activities.30 As described earlier, this offence has a broader application than information concerning espionage and foreign interference.
10.38
In recognition of concerns expressed by the Privacy Commissioner, the Committee recommends amending the Bill’s Statement of Compatibility with Human Rights to address the matters raised by the Commissioner.31

Recommendation 52

10.39
The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the necessity, reasonableness, and proportionality of the expansion of telecommunications interceptions powers to all of the offences specified in Schedule 4 of the Bill.

Schedule 5 – The Foreign Influence Transparency Scheme Bill 2017

10.40
The Foreign Influence Transparency Scheme Bill 2017 (FITS Bill) proposes to establish a Foreign Influence Transparency Scheme (the Scheme). The Scheme will require persons or entities who engage in certain activities on behalf of a foreign principal to register.
10.41
On the same day that the Prime Minister introduced this Bill and the FITS Bill into the House of Representatives, the Minister for Finance introduced the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (Electoral Bill) into the Senate.
10.42
Part 1 of Schedule 5 makes amendments to the requirement to register under section 16 of the Foreign Influence Transparency Scheme Act (if, and once, it is passed). Section 16 requires a person to apply to the Secretary for registration under the scheme within 14 days of becoming liable to register. The effects of the amendments are that
if a registrable arrangement is in existence between a person and a foreign principal at the time of the commencement of the Foreign Influence Transparency Scheme Act, the person is not required to register under the scheme before six months after the day on which that Act commences. The effect of this item is that the person must apply to the Secretary for registration within 14 days after the end of the six month period.32
10.43
Part 2 of Schedule 5 will amend the FITS Bill if and once the FITS Bill and the Electoral Bill have been passed by the Parliament. Schedule 5 will not take effect unless both the FITS Bill and Electoral Bills are passed.
10.44
The proposed amendments will:
align the disclosure threshold for donor activity under the Scheme with the disclosure threshold in the Commonwealth Electoral Act ($13 500), and
import the term ‘political campaigners’ into the Scheme so that:
lobbying a political campaigner could be a registrable activity, and
influencing processes in relation to a political campaigner could be a registrable activity.
10.45
The reason amendments to the FITS Bill are contained in the Bill are explained in the Explanatory Memorandum as follows:
The usual practice is to not have amending Schedules at the ends of Bill that establish new Principal Acts. In accordance with this practice, Schedule 5 has been included in this amending Bill rather than as a schedule to the Foreign Influence Transparency Scheme Bill 2017.33
10.46
The Joint Standing Committee on Electoral Matters (JSCEM) tabled its advisory report on the Electoral Bill on 9 April 2018. A key recommendation in the JSCEM report was that instead of the categories of ‘third party campaigner’ and ‘political campaigner’ being established as registration thresholds, the Government consider establishing a publicly available ‘Transparency Register’ for all entities involved in ‘political expenditure’, with mandatory registration for activities that reach a minimum ‘expenditure threshold’. JSCEM considered that, due to its common usage, the term ‘disclosure threshold’ should not be used.34

Committee comment

10.47
The Committee notes that Schedule 5 to the Bill proposes amendments to the Foreign Influence Transparency Scheme Bill 2017 (FITS Bill) that will only come into effect if, and once, that Bill is passed. The Committee is reporting on its review of the FITS Bill separately.
10.48
In addition to the FITS Bill, some of the amendments in Schedule 5 will only come into effect following the passage of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (Electoral Bill). The JSCEM has recently tabled its report on the Electoral Bill and the Committee recognises that, if JSCEM’s recommendations are accepted by the Government, then certain consequential amendments to Schedule 5 are likely to also be required.

Consequential amendments

Cessation of citizenship

10.49
Schedule 1 to the Bill includes consequential amendments to section 35A of the Australian Citizenship Act 2007. Section 35A of the Australian Citizenship Act 2007 was introduced in 2015 to enable the Minister to determine that a dual-citizen has ceased to be an Australian citizen where:
the person has been convicted of specified offences, including treason, treachery, espionage or sabotage,35
the person has been sentenced to a period of imprisonment of at least six years, or to periods of imprisonment that total at least six years,36 and
the Minister is satisfied of certain other prescribed criteria.37
10.50
The Committee reviewed the proposed introduction of section 35A through its review of the Australian Citizenship Amendments (Allegiance to Australia) Bill 2015. In its advisory report, the Committee acknowledged significant concerns raised by various stakeholders, both in relation to section 35A and the amendments more broadly. The Committee noted its support for
the policy intention of the [Australian Citizenship Amendments (Allegiance to Australia) Bill 2015] to help protect the community from person who have clearly renounced their allegiance to Australia by engaging in serious terrorism-related acts that harm Australian or Australian interests.38
10.51
In relation to section 35A, the Committee stated:
The Committee considers that revocation of citizenship under proposed section 35A should only follow appropriately serious conduct that demonstrates a breach of allegiance to Australia. This is consistent with the intent of the Bill … the Committee considers that the provision should more appropriately target the most serious conduct that is closely linked to a terrorist threat.39
10.52
In keeping with these statements, the majority of provisions in the Bill which gained Committee support concerned terrorism related conduct. However, the Committee supported the inclusion of a small number of non-terrorism related offences in section 35A: treason, espionage, sabotage and treachery.
10.53
Following the Committee’s review, the Bill’s Revised Explanatory Memorandum stated:
The specified offences in 35A(1)(a) reflect the policy intention that an offence listed for the purpose of cessation under new subsection 35A(1) must be a terrorism-related offence where the maximum penalty is at least 10 years imprisonment. The offences are of a nature that on the face of them a person who undertakes such offences has repudiated their allegiance to Australia.40
The purpose of new section 35A is to deal with the threat caused by those who have acted in a manner contrary to their allegiance to Australia by removing them from formal membership of the Australian community. Cessation of citizenship is a very serious outcome of very serious conduct that demonstrates a person has repudiated their allegiance to Australia (refer to paragraph 35A(1)(d)). Removing a person’s formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests.41

Proposed expansion of citizenship cessation regime

10.54
The Bill proposes substituting the references to the current treachery, espionage and sabotage offences, which will be repealed, for the new versions of these offences proposed by the Bill.42
10.55
The Committee questioned whether the application of section 35A of the Australian Citizenship Act 2007 to all of the proposed new sabotage and espionage offences was intentional and, if so, whether this could be addressed in the Explanatory Memorandum. The Attorney-General’s Department confirmed that this would be the effect, and that ‘the Explanatory Memorandum could more explicitly state that this effect was intended if the Committee would consider this useful’.43
10.56
In response to another question, about why these amendments applied to all sabotage and espionage offences, and whether the Minister could be given a discretionary power to approve a citizenship application where an applicant had been convicted of one of the less serious sabotage or espionage offences, the Department advised:
The scope of espionage and sabotage offences is a matter for the Parliament. The policy intention of the consequential amendments to the Australian Citizenship Act is to ensure that the scope of section 35A of the Australian Citizenship Act aligns with the scope of the enacted offences, as determined by the Parliament.44

Committee Comment

10.57
The Committee has considered the Bill’s treachery, sabotage and espionage offences earlier in this report (see Chapters 6, 8 and 9), and notes that the amendments proposed in the Bill will broaden the scope of the equivalent existing offences. Accordingly, the Bill’s consequential amendments to section 35A of the Australian Citizenship Act 2007 will have the effect of broadening the range of conduct that will expose a dual citizen to the possibility of losing his or her Australian citizenship.
10.58
The Committee recognises the serious consequences which flow from removing a person’s formal membership of the Australian community. Accordingly, the Committee notes its previous comment that citizenship laws should target the ‘most serious conduct that is closely linked to a terrorist threat’.45
10.59
It is the Committee’s view that a strong justification for any expansion of the existing citizenship loss laws is required. In response to a question from the Committee, the Attorney-General’s Department advised:
The policy intention of the consequential amendments to the Australian Citizenship Act is to ensure that the scope of section 35A of the Australian Citizenship Act aligns with the scope of the enacted offences, as determined by the Parliament.46
10.60
The Committee also notes its previous recommendation that section 35A should be limited to offences that carry a maximum penalty of at least 10 years imprisonment.47 Under the current Bill, a conviction for the offence of ‘preparing for or planning sabotage offence’ (proposed section 82.9) is punishable by a maximum penalty of imprisonment for seven years.48 Accordingly, the Committee considers this offence should not be included within the scope of section 35A.
10.61
The Committee considers that section 35A should apply to serious national security offences. This should include the reformed treason, treachery, espionage and sabotage offences, as well as the new foreign interference offences. However, the Committee considers that section 35A should not apply to:
proposed section 82.9, given its lower maximum penalty, consistent with the Committee’s previous views,
section 83.4 (interference with political rights and duties) as, notwithstanding that interfering with political rights and duties is a very serious matter warranting criminal sanctions, it is not inherently a matter of national security, and
the proposed new secrecy offences in Part 5.6 as, notwithstanding that many aspects of these offences plainly relate to national security, it will not always be the case that a person committing a secrecy offence endangers national security.

Recommendation 53

10.62
The Committee recommends that Schedule 1, item 29 of the Bill be amended such that section 35A of the Australia Citizenship Act 2007 applies to the foreign interference offences in the Bill, and does not apply to
proposed section 82.9 (preparing for or planning sabotage offence),
proposed section 83.4 (interference with political rights and duties), or
proposed Part 5.6 – Secrecy of information.

Citizenship applications

10.63
Schedules 1 and 2 to the Bill also contain amendments to the definition of ‘national security offence’ in section 3 of the Australian Citizenship Act 2007, which affects the treatment of applications for Australian citizenship made by persons who are not a national or citizen of any country (‘stateless persons’).
10.64
Currently, the Minister is obliged to refuse certain citizenship applications made by stateless persons, where the applicant has been convicted of a ‘national security offence’ including:
treachery,
sabotage,
inciting mutiny,
assisting prisoners of war to escape,
unlawful drilling,
interfering with political liberty,
espionage, or
an ‘official secrets’ offence.49
10.65
The Bill proposes to repeal these offences and substitute with new versions of the offences, including:
the proposed offences to be inserted into Part 5.1 of the Criminal Code, such as the introducing vulnerability offences in Division 82, and the proposed new espionage offences in Division 91, and
the proposed new secrecy offences in Part 5.6.50
10.66
Currently, the Crimes Act offence of destroying or damaging Commonwealth property is a national security offence. The Bill does not propose listing the new version of this offence, which is proposed to be inserted into Part 7.2 of the Criminal Code, as a national security offence.
10.67
The Committee asked the Department why the amendments include all of the proposed new offences in Division 82 (sabotage) and Division 91 (espionage), rather than being limited to the most serious of the offences. The Committee also asked whether, if this was intended, the Minister could possess a discretion to approve a citizenship application where the applicant has been convicted of one of the less serious sabotage or espionage offences. The Attorney-General’s Department responded:
The scope of espionage and sabotage offences is a matter for the Parliament. The policy intention of the consequential amendments to the Australian Citizenship Act is to ensure that the scope of the definition of ‘national security offence’ in the Australian Citizenship Act aligns with the scope of the enacted offences, as determined by the Parliament.
This would mean that the Minister could consider any of the sabotage or espionage offences in proposed new Divisions 82 and 91 of the Criminal Code when exercising a power in the Australian Citizenship Act that relies on the definition of ‘national security’ in section 3 of that Act.51

International obligations to prevent statelessness

10.68
Australia is party to the Convention on the Reduction of Statelessness, which imposes obligations directed at reducing the incidence of statelessness, including obligations related to the conferral and withdrawal of citizenship. The Introductory Note to the Convention records that:
By setting out rules to limit the occurrence of statelessness, the Convention gives effect to article 15 of the Universal Declaration of Human Rights which recognizes that ‘everyone has the right to a nationality’.52
10.69
The Attorney-General’s Department submitted that the obligations set out in the Convention on the Reduction of Statelessness:
… are relevant to the Bill to the extent that the Bill makes changes to offences in the Criminal Code and Crimes Act for which a conviction may, under the Australian Citizenship Act 2007 (Cth), operate as a bar to the grant of citizenship or as a ground for cessation of citizenship.53
10.70
In response to the Committee’s queries, the Attorney-General’s Department advised that further consideration would be given to the interaction between the Bill and Australia’s obligations under the 1961 Reduction Convention.54 The Department subsequently advised that:
We have considered this issue further, and our view is that some changes may be needed to remove a small number of offences in the [B]ill from the scope of the definition of ‘national security offences’ in the Australian Citizenship Act, and we are working through those details with the Department of Home [A]ffairs, which administers the Australian Citizenship Act.55

Committee Comment

10.71
As discussed in Chapter 1, the Committee has reviewed the Bill with a view to ensuring that each measure is clear and unambiguous in its terms; enforceable; proportional and appropriately targeted to the threat.
10.72
The Committee has considered the Bill’s treachery, sabotage and espionage offences earlier in this report (see Chapters 6, 8 and 9), and notes that the amendments proposed in the Bill will broaden the scope of the equivalent existing offences. Accordingly, the Bill’s proposed amendments to the definition of ‘national security offence ’in the Australian Citizenship Act 2007 will have the effect of broadening the range of conduct that will mandate the refusal of an application for citizenship by a stateless person. The Committee recognises that a number of these provisions do not have a clear nexus to national security.
10.73
The Committee notes the Attorney-General’s Department’s advice that further amendments to these provisions will be forthcoming in relation to Australia’s obligations under the Convention on the Reduction of Statelessness. At the time of drafting, these amendments had not been made available to the Committee for its consideration. The Committee considers that in order for these measures to be proportional and appropriately targeted to the threat, their operation should be limited to convictions for offences with a clear national security nexus.

Recommendation 54

10.74
The Committee recommends that the Bill be amended such that the phrase ‘national security offence’ in the Australian Citizenship Act 2007 is limited to those offences which contain a clear nexus to national security.

Recommendation 55

10.75
The Committee recommends that the Explanatory Memorandum be amended so that the Statement of Compatibility with Human Rights explicitly addresses the interaction between the proposed consequential amendments to citizenship application provisions, and Australia’s international obligations regarding stateless persons.

Deportation

10.76
Consequential amendments in Schedule 1 also affect the Minister’s powers of deportation in Division 9 of the Migration Act 1958. This regime enables the Minister to order the deportation of a non-citizen who
has resided in Australia for less than ten years, and has been convicted of an offence punishable by at least one year of imprisonment,56 or
has resided in Australia for any period of time and:
has been convicted of ‘certain serious offences’,57 or
is the subject of an ASIO adverse security assessment.58
10.77
Currently, the list of ‘certain serious offences’ includes treason, treachery, sabotage, inciting mutiny; and assisting prisoners of war to escape.59 The Bill proposes amending section 203 of the Migration Act 1958 to replace these offences with the modernised versions of these offences proposed by the Bill.60 This will include the new proposed sabotage and introducing vulnerability offences in Division 82 of the Criminal Code. The Attorney-General’s Department submitted that it ‘considers all of the sabotage offences in Division 82 to be serious, as reflected in the maximum penalties applied to the offences’.61

Committee Comment

10.78
The Committee has considered the Bill’s sabotage, treachery and advocating mutiny offences earlier in this report (see Chapters 8 and 9), and notes that the amendments proposed in the Bill will broaden the scope of the equivalent existing offences. Accordingly, the Bill’s proposed amendments to the list of ‘certain serious offences’ in section 203 of the Migration Act 1958 will have the effect of broadening the range of circumstances in which the Minister may order the deportation of a non‑citizen who has resided in Australia for more than ten years.
10.79
However, the Committee notes that the conduct captured by the broadened offences proposed in the Bill is potentially very serious. Further, the Committee recognises that—apart from conviction for ‘certain serious offences’—there are a number of other avenues available to the Minister to order the deportation of such persons. These include the ‘character test’ in section 501 of the Migration Act and ASIO’s ability to issue an adverse security assessment if the person poses an unacceptable risk to security. As such, the Committee does not consider the broadening of section 203 of the Migration Act 1958 to cover the amended offences unreasonable or out of step with existing provisions.

Presumption against bail

10.80
Consequential amendments in Schedule 1 to the Bill affect laws relating to the presumption against bail contained in section 15AA of the Crimes Act 1914.
10.81
State and territory courts hear and deal with federal offence bail applications according to their own bail procedures and laws.62 These laws routinely require judicial officers to consider a range of factors when determining the appropriateness of the grant of bail, including the seriousness of the offence; the likelihood that the accused would fail to appear; and the possibility the accused could interfere with witnesses or evidence.63
10.82
The Explanatory Memorandum notes that most state and territory criminal procedure laws provide for a general presumption in favour of bail, which ensures that deprivations of liberty are kept to a minimum by allowing the temporary release of the accused person pending criminal proceedings.64 This presumption is consistent with article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), which provides:
It shall not be the general rule that persons awaiting trial shall be detained in custody…
10.83
However, the Explanatory Memorandum states that the general presumption in favour of bail may be displaced in certain circumstances:
The presumption against bail is appropriately reserved for serious offences recognising the need to balance the right to liberty and the protection of the community.65
10.84
The Bill will impose a presumption against bail upon a number of the new and modified offences proposed by the Bill.66 Bail will only be granted for these offences where the accused can demonstrate exceptional circumstances exist to justify bail.
10.85
Currently, section 15AA of the Crimes Act imposes a presumption against Bail for a number of national security offences including offences against Subdivision C of Division 80 of the Criminal Code (urging violence and advocating terrorism or genocide); Division 91 of the Criminal Code (espionage); and section 24AA (treachery) of the Crimes Act.
10.86
The presumption’s application to these offences is limited to circumstances where it is alleged that the conduct caused, or carried a substantial risk of causing the death of a person. In these circumstances, bail cannot be granted unless exceptional circumstances exist to justify bail.67
10.87
The Bill proposes amending section 15AA to extend the presumption against bail to:
Division 80 offences, not only those offences in Subdivision C. This will have the effect of continuing to limit bail for treachery offences, and creating a new limitation on bail for treason offences,
the proposed new espionage offences in Division 91, and
new proposed offences of intentional foreign interference (section  92.2(1)) and reckless foreign interference (section 92.3(1)).
10.88
Consistent with current requirements, the Bill proposes that a person charged with, or convicted of a Division 80 or Division 91 offence will not be granted bail where it is alleged that their conduct caused, or carried a substantial risk of causing the death of a person, unless exceptional circumstances exist to justify the grant of bail.68
10.89
In contrast, the Bill proposes that the foreign interference offences will attract the presumption against bail wherever ‘it is alleged that any part of the conduct the defendant engaged in involved making a threat to cause serious harm or a demand with menaces’.69 The proposed amendment does not require that the conduct caused, or carried a substantial risk of causing death.
10.90
The Explanatory Memorandum states that extending the presumption against bail to the new foreign interference offences
… is appropriate given that the conduct is similar in nature to that of an espionage offence. However, it is appropriate that a person being prosecuted for a foreign interference offence against section 92.2(1) and 92.3(1) should only be subject to a presumption against bail in circumstances when there is a threat of harm.70
10.91
The Law Council of Australia noted that it opposes in principle laws that create a presumption against bail, on the basis that such laws are inconsistent with the presumption of innocence.71 Accordingly, the Law Council did not support the proposed amendments to section 15AA. In reference to Article 9(3) ICCPR, the Law Council submitted:
The United Nations Human Rights Committee has stated on a number of occasions that pre-trial detention should remain the exception and that bail should be granted except in circumstances where the likelihood exists that, for example, the accused would abscond, tamper with evidence, influence witnesses or flee from the jurisdiction.72
10.92
The Law Council advocates for the presumption in favour of bail to operate in all cases.73 In relation to the particular offences proposed to be subject to a presumption against bail, the Council raised concerns that
given the potential complexity of any trial for an espionage, treason and foreign interference offence, the period of pre-trial detention may be lengthy, and
due to the breadth of the proposed offences, relatively innocuous or trifling conduct could be captured.74
10.93
In the event that the proposed presumption against bail is to proceed, the Law Council recommended:
the Independent National Security Legislation Monitor should review the bail provisions in section 15AA of the Crimes Act, including the provision’s impact on children; and
there should be no provision for a grant of bail to be stayed if the prosecution notifies an intention to appeal.75
10.94
The Attorney-General’s Department did not agree with the Law Council’s submission, noting that the offences proposed to be subject to a presumption against bail are ‘very serious offences’.76
10.95
Regarding the thresholds for treason, treachery and espionage offences (causing death or a risk of death); compared to the threshold for foreign interference offences (threat or menaces), the Attorney-General’s Department submitted that the latter
recognises the significant consequences for an individual’s personal safety and mental health if the conduct involves serious harm (consistent with the definition of ‘serious harm’ in the Dictionary to the Criminal Code) or making a demand with menaces’ (as defined in section 138.2 of the Criminal Code).77

Committee comment

10.96
The Committee notes that section 15AA of the Crimes Act operates to
impose a presumption against bail that allows bail only in exceptional circumstances, and
even where exceptional circumstances exist, allows the detention of a successful bail applicant for up to three days pending a prosecutor’s appeal.78
10.97
The Committee considers that laws that create a presumption against bail should be limited to only the most serious offences.
10.98
The Committee considers that treason, treachery and espionage offences that cause, or could cause the death of a person, possess this quality. The Committee therefore supports the continued the application of section 15AA to the revised treachery and espionage offences. The Committee also supports the proposal to extend the operation of section 15AA of the Crimes Act to include treason offences. The Committee notes that the deprivation of the accused’s liberty for these offences will be limited to cases where the conduct caused the death of a person, or carried a substantial risk of this occurring.79
10.99
The Committee also supports applying a presumption against bail to the foreign interference offences in proposed sections 92.2(1) and 92.3(1). However, the Committee recommends that the circumstances in which this presumption arises should be consistent with the threshold for treason, treachery and espionage offences. The Committee notes the amendments in the Bill currently apply to a foreign interference offences founded on a ‘demand with menaces’. This is a considerably lower threshold than that applied to treachery and espionage offences (death, or risk of death).
10.100
The Committee considers that thresholds for a presumption against bail should be high and should be consistent. Accordingly, the presumption against bail should apply to section 92.2(1) or 92.3(1) only where the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or conduct that is a physical element of the offence that carried a substantial risk of causing the death of a person.
10.101
The Committee notes that section 15AA of the Crimes Act has a broader operation than the amendments currently before the Committee. The Law Council of Australia has raised general concerns about the operation of section 15AA, including:
subsection 15AA(3D), which has the effect of enabling the detention for up to three days, of any person charged with an offence meeting the criteria set out in section 15AA, regardless of their personal circumstances, and
the impact of section 15AA on children.80
10.102
The Committee supports consideration of these provisions by the Independent National Security Legislation Monitor (INSLM), and notes that the INSLM is currently conducting a review into the prosecution and sentencing of children for Commonwealth terrorist offences, following a reference by the Prime Minister.81

Recommendation 56

10.103
The Committee recommends that the Bill be amended to provide that section 15AA(1) of the Crimes Act 1914 applies to an offence against proposed Division 80, Division 91, and Division 92 of the Criminal Code only if:
the death of a person is alleged to have been caused by conduct that is a physical element of the offence, or
conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.

In-camera proceedings

10.104
The power to conduct proceedings in-camera is set out in section 93.2 of the Criminal Code. The provision applies to any proceeding heard in a federal court, territory court, or court exercising federal jurisdiction, and is not limited to proceedings under Part 5.2 of the Criminal Code.82 The section enables a judicial officer to order, or make directions to:
exclude the public, or certain persons from all or part of the proceedings,
issue a non-publication order, which would prevent the publication of a report of the whole, or a specified part of the proceedings, and/or
restrict access to the Court file or any part of it, for example, an affidavit, or exhibit.
10.105
Currently, the Court may make such orders where it is in the interest of the ‘security or defence’ of the Commonwealth. For the purposes of this section, the Criminal Code provides that the
‘security or defence’ of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.83
10.106
The Bill proposes enabling such orders to be made in circumstances where it is in the ‘interest of Australia’s national security’. The Bill proposes defining national security to include a country’s
defence,
protection of its border from serious threats,
protection from espionage, sabotage, terrorism, foreign interference and political violence, and
political, military or economic relations with another country or other countries.84
10.107
As discussed in Chapter 3, aspects of the Bill’s definition of ‘national security’ are intended to align with the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act), which ‘substantially implemented’ the ALRC’s 2004 recommendations in Keeping Secrets: The Protection of Classified and Security Sensitive Information.85 Similarly to section 93.2, the object of the NSI Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security.86
10.108
The ALRC also recommended in its 2004 report that section 93.2 of the Criminal Code be repealed with the introduction of the NSI Act.87 Despite this, the Attorney-General’s Department considered that there was ‘significant value’ in section 93.2 being retained.
The NSI Act neither excludes nor impedes a court’s other powers, including powers to make other protective orders such as closure of court and non-publication orders, and sections 20B and 38AB of the NSI Act refer expressly to section 93.2 of the Criminal Code.
The NSI Act provides a comprehensive regulatory framework for the disclosure, storage and handling of all national security information involved in federal criminal proceedings or civil proceedings, whether in documentary or oral form. The NSI Act, once invoked by the prosecutor, applies to the whole proceeding and provides a structure for a court to follow where national security information is disclosed in proceedings.
… Section 93.2 allows a presiding judge to make whatever orders are considered appropriate in the interests of the security or defence of the Commonwealth in a more targeted way where the varied protective options available under the NSI Act are not required.88
10.109
The Attorney-General’s Department noted that the proposed amendment in the Bill ‘ensures the alignment of this provision with the new definitions proposed to be inserted by the Bill’. 89 It added:
Section 93.2 complements any available state and territory laws allowing for suppression orders or non-publication orders to be imposed on national security grounds (such the Open Courts Act 2013 (Vic) and the Court Suppression and Non-Publication Orders Act 2010 (NSW)). Section 93.2 provides a power to appropriately manage proceedings where the court is satisfied that it is in the interests of Australia’s national security to do so. This is an important protection and the decision as to whether to exercise the power remains with the court.90

Committee Comment

10.110
While section 93.2 of the Criminal Code has a similar objective to the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), the Committee recognises its distinct purpose and the value that it adds.
10.111
The Committee has discussed the Bill’s proposed definition of national security earlier in this report (see Chapter 3). The Committee supports the proposed amendment to align the terminology used in section 93.2 of the Criminal Code with the new definition of national security in the Bill.
10.112
The Committee notes the broad application of section 93.2 to all proceedings heard in a federal court, territory court, or court exercising federal jurisdiction, not only proceedings instituted for an offence against Part 5.2 of the Criminal Code.91 The Committee recommends that the Explanatory Memorandum be amended to make the scope of the provision clear.

Recommendation 57

10.113
The Committee recommends that the Explanatory Memorandum for the Bill be amended to clarify the scope and application of section 93.2 of the Criminal Code.

Standard non-parole periods

10.114
A number of the Bill’s new and modified offences will be subject to section 19AG of the Crimes Act. This section requires a sentencing Court to impose a non-parole period that is
three-quarters of the sentence imposed by the Court, or
where the sentence imposed by the Court is imprisonment for life, three-quarters of 30 years.
10.115
Currently, section 19AG of the Crimes Act requires minimum non-parole periods to be fixed in relation to all convictions for
offences against section 24AA of the Crimes Act (treachery);
terrorism offences;
offences against Division 80 of the Criminal Code (treason, urging violence and advocating terrorism or genocide); and
offences against Division 91 of the Criminal Code (espionage).
10.116
Section 19AG will continue to apply to the modified treachery and treason offences, and all of the proposed new espionage offences in the Bill. The proposed espionage and treachery offences are broader in scope than current offences (see Chapters 6 and 9), therefore expanding the operation of section 19AG. The Explanatory Memorandum does not comment on the effect of all of the new espionage laws, and the extended treachery offence, being subject to minimum non-parole periods.92
10.117
The Law Council of Australia opposes section 19AG of the Crimes Act. The Council submitted that while section 19AG does not limit a judge’s discretion in imposing a head sentence, the provision removes all judicial discretion concerning the non-parole period.93
10.118
In its submission, the Law Council characterised provisions which impose a minimum non-parole sentence as undermining the independence of the judiciary and threatening an essential component of the rule of law.94 The Law Council submitted that such provisions remove the ability of courts to consider relevant factors, such as the offender’s criminal history, individual circumstances or whether there are any mitigating factors, such as mental illness or other forms of hardship or duress. The Law Council submitted that this can result in disproportionately harsh sentences, and that it was unlikely that judicial officers would impose a lower head sentence in order to mitigate the impact of the mandated non-parole period.95
10.119
At a public hearing, Mr Morry Bailes, President of the Law Council told the Committee that
taking away judicial discretion leads to inequity and injustice. Imposing mandatory minimums of any type will ultimately lead, in some instances, to poor outcomes. The legislature is entitled to set maximum penalties … but we will always argue that there should be unfettered judicial discretion.’96
10.120
The Law Council recommended that:
the mandatory minimum non-parole period for terrorism offences, Division 80 offences and Division 91 offences under section 19AG should be repealed; and (if not repealed)
the Independent National Security Legislation Monitor should review section 19AG of the Crimes Act, including its impact on children.97
10.121
The Attorney-General’s Department responded to the Law Council’s concerns as follows:
The Bill does not amend section 19AG other than to remove an obsolete reference to the offence of treachery which is being repealed by the Bill.98
10.122
The Department did not comment on the appropriateness of section 19AG applying to all of the proposed new espionage offences, or the extended treachery offence.

Committee comment

10.123
The Committee acknowledges the important role the Court plays in determining an appropriate sentence for each offender, taking into account a range of circumstances including the nature of the offence and the offender’s personal circumstances. Section 19AG of the Crimes Act limits this judicial discretion. The Committee notes that while the Bill does not propose to amend section 19AG directly, the Bill will extend its operation by expanding the scope of the espionage and treachery offences that are subject to it (see Chapters 6 and 9).
10.124
It would be appropriate for the operation of section 19AG to be limited to the most serious espionage offences in the Bill. Accordingly, the Committee considers that the operation of section 19AG should be limited to:
proposed section 91.1(1)—‘dealing with information etc. concerning national security which is or will be made available to a foreign principal’, with intention as to national security, and
proposed section 91.2(1)— ‘dealing with information etc. which is or will be made available to a foreign principal’, with intention as to national security.

Recommendation 58

10.125
The Committee recommends that the Bill be amended to provide that section 19AG of the Crimes Act 1914, relating to minimum non-parole periods for certain offences, applies to an espionage offence against section 91.1(1) or 91.2(1), rather than all espionage offences in Division 91.
10.126
The Committee recognises that section 19AG has a broader operation than the proposed offences currently before the Committee, and notes the Law Council of Australia’s general concerns about the provision, including its impact on children. The Committee supports consideration of this provision by the Independent National Security Legislation Monitor (INSLM), and notes that the INSLM is currently conducting a review into the prosecution and sentencing of children for Commonwealth terrorist offences, following a reference by the Prime Minister.99

  • 1
    Criminal Code, section  137.1(1).
  • 2
    Criminal Code, section  137.1.
  • 3
    Explanatory Memorandum, p. 4.
  • 4
    Explanatory Memorandum, p. 295.
  • 5
    Attorney-General’s Department, Submission 6.1, p. 91.
  • 6
    Law Council of Australia, Submission 5, p. 72.
  • 7
    Law Council of Australia, Submission 5, p. 72.
  • 8
    Attorney-General’s Department, Submission 6.1, p. 24.
  • 9
    Explanatory Memorandum, pp. 132, 271.
  • 10
    Criminal Code, section 137.1(2)-(6).
  • 11
    Attorney-General’s Department, Submission 6.1, p. 24.
  • 12
    Telecommunications (Interception and Access) Act 1979, section 5D.
  • 13
    National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, sch. 4.
  • 14
    Explanatory Memorandum, p. 7.
  • 15
    Explanatory Memorandum, p. 298.
  • 16
    National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, sch. 4, cl. 2.
  • 17
    Law Council of Australia, Submission 5, p. 73.
  • 18
    Attorney-General’s Department, Submission 6.1, p. 24.
  • 19
    Explanatory Memorandum, p. 19.
  • 20
    Office of the Australian Information Commissioner, Submission 16, p. 3.
  • 21
    International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49.
  • 22
    Office of the Australian Information Commissioner, Submission 16, p. 3.
  • 23
    Office of the Australian Information Commissioner, Submission 16, p. 4
  • 24
    Office of the Australian Information Commissioner, Submission 16, p. 2.
  • 25
    Attorney-Generals’ Department, Submission 6.1, p. 40.
  • 26
    Attorney-Generals’ Department, Submission 6.1, p. 40.
  • 27
    University of Technology Sydney Centre for Media Transition, Submission 23, p. 5
  • 28
    Parliamentary Joint Committee on Intelligence and Security, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation, May 2013, p. 13.
  • 29
    Explanatory Memorandum, p. 300.
  • 30
    Explanatory Memorandum, p. 19 .
  • 31
    Human Rights (Parliamentary Scrutiny) Act 2011, section 8.
  • 32
    Explanatory Memorandum, p. 302.
  • 33
    Explanatory Memorandum, p. 302.
  • 34
    Joint Standing Committee on Electoral Matters, Advisory Report on the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, April 2018, pp. 29–30.
  • 35
    Australian Citizenship Act 2007, section 35A(1)(a)(ii) and (v).
  • 36
    Australian Citizenship Act 2007, section 35A(1)b).
  • 37
    Australian Citizenship Act 2007, section 35A. The criteria includes that the person has been sentenced to a period of imprisonment of at least six years and that the Minister is satisfied that the conviction demonstrates that the person has repudiated their allegiance to Australia. The Minister must also consider the public interest in the person remaining in retaining their citizenship, including the severity of the conduct, the threat posed by the person, the person’s age (and if under 18, the best interests of the child), the person’s connection to the other country to which they are a citizen or national, Australia’s international relations and any other matters of public interest (section 35A(1)(e)).
  • 38
    Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015,
  • 39
    Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 114-115.
  • 40
    Revised Explanatory Memorandum, p. 31.
  • 41
    Revised Explanatory Memorandum, p. 33.
  • 42
    Schedule 1, items 29-30.
  • 43
    Attorney-General’s Department, Submission 6.1, p. 90.
  • 44
    Attorney-General’s Department, Submission 6.1, p. 90.
  • 45
    Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, September 2015, p. 115.
  • 46
    Attorney-General’s Department, Submission 6.1, p. 90.
  • 47
    Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, September 2015, p. 115.
  • 48
    Proposed section 82.9.
  • 49
    Australian Citizenship Act 2007, sections 17(4A); 19D(6); 24(4A); and 30(5). Refer to the definition of a ‘national security offence’ in section 3 of the Act.
  • 50
    Schedule 1, item 28; Schedule 2, item 11.
  • 51
    Attorney-General’s Department, Submission 6.2, p. 6.
  • 52
    1961 Convention on the Reduction of Statelessness: Introductory note by the Office of the United Nations High Commissioner for Refugees.
  • 53
    Attorney-General’s Department, Submission 6.1, pp. 90–91.
  • 54
    Attorney-General’s Department, Submission 6.1, p. 91.
  • 55
    Ms Anna Harmer, First Assistant Secretary, Attorney-General’s Department, Committee Hansard, Melbourne, 16 March 2018, p. 36.
  • 56
    Migration Act 1958, section 201.
  • 57
    Migration Act 1958, section 203.
  • 58
    Migration Act 1958, section 202.
  • 59
    Crimes Act 1914, sections 24AA, 24AB, 25 and 26.
  • 60
    Schedule 1, item 47–48.
  • 61
    Attorney-General’s Department, Submission 6.1, p. 85.
  • 62
    Judiciary Act 1903, section 68.
  • 63
    For example, Bail Act 2013 (NSW), Bail Act 1980 (QLD).
  • 64
    Explanatory Memorandum, p. 13 .
  • 65
    Explanatory Memorandum, p. 13.
  • 66
    Schedule 1, items 38 and 39.
  • 67
    Crimes Act 1914, section 15AA.
  • 68
    Crimes Act 1914, proposed subsections 15AA(2)(c) and (d).
  • 69
    Crimes Act 1914, proposed section 15AA(2)(e).
  • 70
    Explanatory Memorandum, p. 216.
  • 71
    Law Council of Australia, Submission 5, p. 74 .
  • 72
    Law Council of Australia, Submission 5, p. 75, referring to the UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).
  • 73
    Law Council of Australia, Policy Statement on Principles Applying to Detention in a Criminal Law Context, 22 June 2013, p. 5.
  • 74
    Law Council of Australia, Submission 5, p. 74.
  • 75
    Law Council of Australia, Submission 5, p. 78.
  • 76
    Attorney-General’s Department, Submission 6.1, p. 25.
  • 77
    Attorney-General’s Department, Submission 6.2, p. 3.
  • 78
    Crimes Act 1914, section 15AA(3C) and (3D).
  • 79
    Crimes Act 1914, section 15AA(2)(c).
  • 80
    Law Council of Australia, Submission 5, pp. 74–76.
  • 81
    Independent National Security Legislation Monitor, ‘Review: the prosecution and sentencing of children for Commonwealth terrorist offences’, < http://www.inslm.gov.au/current-review-work> viewed 11 May 2018.
  • 82
    This point was clarified by the Attorney-General’s Department in Submission 6.5, p. 4.
  • 83
    Criminal Code, section 90.1.
  • 84
    Proposed section 90.4.
  • 85
    Attorney-General’s Department, Submission 6.1, pp. 2, 44.
  • 86
    National Security Information (Criminal and Civil Proceedings) Act 2004, section 3.
  • 87
    Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information (Report 98), May 2004, pp. 478, 508.
  • 88
    Attorney-General’s Department, Submission 6.5, p. 4.
  • 89
    Attorney-General’s Department, Submission 6.1, p. 49.
  • 90
    Attorney-General’s Department, Submission 6.1, pp. 48–49.
  • 91
    Explanatory Memorandum, p. 204.
  • 92
    Explanatory Memorandum, p. 216.
  • 93
    Law Council of Australia, Submission 5, p. 77.
  • 94
    Law Council of Australia, Submission 5, p. 77.
  • 95
    Law Council of Australia, Submission 5, p. 77.
  • 96
    Mr Morry Bailes, President, Law Council of Australia, Committee Hansard, Canberra, 30 January 2010, p. 54.
  • 97
    Law Council of Australia, Submission 5, p. 78.
  • 98
    Attorney-General’s Department, Submission 6.1, p. 25.
  • 99
    Independent National Security Legislation Monitor, ‘Review: the prosecution and sentencing of children for Commonwealth terrorist offences’, < http://www.inslm.gov.au/current-review-work> viewed 11 May 2018.

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