2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)

SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002

GENERAL OUTLINE

The Security Legislation Amendment (Terrorism) Bill 2001 (the Bill) amends the Criminal Code Act 1995 (the Criminal Code) to combat terrorism by ensuring that there are criminal offences to deal with terrorism and membership of a terrorist organisation, or other links to a terrorist organisation, may be an offence.

The Bill inserts a series of new terrorism offences into the Criminal Code, all of which carry a penalty of life imprisonment.  The offences are: engaging in a terrorist act; providing or receiving training for a terrorist act; directing organisations concerned with a terrorist act; possessing things connected with a terrorist act; collecting or making documents likely to facilitate a terrorist act; and acts in preparation for, or planning, a terrorist act.  With the exception of the offence of engaging in a terrorist act, it is not necessary for a terrorist act to actually occur for a person to be prosecuted for a terrorism offence.

The Bill also includes a regime for the Attorney-General to proscribe an organisation that has a specified terrorist connection or that has endangered, or is likely to endanger, the security or integrity of the Commonwealth, and to make membership or other specified links with such an organisation an offence.

The Bill replaces the treason offence in the Crimes Act 1914 with a new offence, framed in accordance with contemporary drafting practice and the standard approach under the Criminal Code. 

Finally, the Bill proposes amendments to the Australian Protective Service Act 1987 and the Crimes (Aviation) Act 1991 to ensure that Australian Protective Service has powers to deal with terrorist related offences, and to exercise the aircraft security officer function on intra-state flights.

Financial Impact

It is not expected that the Bill will have a direct financial impact.

NOTES ON CLAUSES

Part 1 – Preliminary

Clause 1: Short Title

This clause is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

Subclause 2(1) provides that each provision of the Security Legislation Amendment (Terrorism) Act 2002 (the Act) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

Item 1 of the table provides that clauses 1-3 of the Bill and any other clauses not covered in the table commence on the day on which the Act receives the Royal Assent.

Item 2 of the table provides that item 1 of Schedule 1, the proposed amendment to the Criminal Code Act 1995 (the Criminal Code) to insert a new Chapter 5 into the Criminal Code to deal with offences relating to the integrity and security of the Commonwealth, commences on the day on which the Act receives the Royal Assent, subject to subclause (3).

Item 3 of the table provides that item 2 of Schedule 1, which inserts into Chapter 5 of the Criminal Code a new Part 5.1, commences the day after the Act receives the Royal Assent.

Item 4 of the table provides that item 3 of Schedule 1, which inserts into Chapter 5 of the Criminal Code a new Part 5.3 dealing with preliminary aspects of the new terrorism offences, commences the day after the Act receives the Royal Assent, subject to subclause (4).

Item 5 of the table provides that items 4 and 5 of Schedule 1, which insert into Chapter 5 of the Criminal Code the terrorism offences and an application provision in relation to the terrorism offences, commence immediately after the start of the day the Act receives the Royal Assent.

Item 6 of the table provides that item 6 of Schedule 1, which amends subsection 4J(7) of the Crimes Act 1914 to amend the list of offences that may not be dealt with summarily, commences the day after this Act receives the Royal Assent, subject to subsection (5).  

Item 7 of the table provides that item 7 of Schedule 1, which substitutes a new subsection for subsection 4J(7) of the Crimes Act 1914,  commences immediately after the commencement of item 2 of Schedule 1, subject to subsection (6).  

Item 8 of the table provides that items 8 to 18 of Schedule 1, which are consequential amendments to the Crimes Act 1914 and the Migration Act 1958, commence on the day after the Act receives the Royal Assent.  

Item 9 of the table provides that item 1 of Schedule 2, the first of the two proposed amendments to the Australian Protective Service Act 1987 to implement the air security officer scheme, commences on the later of the commencement of Division 72 of the Criminal Code and the start of the day on which the Act receives the Royal Assent.

Item 10 of the table provides that item 2 of Schedule 2, the second of the proposed amendments to the Australian Protective Service Act 1987 to implement the air security officer scheme, commences at the same time as Division 101 of the Criminal Code commences.

Item 11 of the table provides that items 3 and 4 of Schedule 2, the proposed amendments to the Crimes (Aviation) Act 1991 to implement the air security officer scheme, commence on the 28th day after the day on which the Act receives the Royal Assent.

Subclause 2(2) provides that Column 3 of the table is for additional information that is not part of the Act.  Relevant commencement dates may be entered into Column 3 by users of the Explanatory Memorandum in the future. 

Subclause 2(3) provides that if either the Criminal Code Amendment (Espionage and Related Offences) Act 2002 or the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which the Act receives the Royal Assent, the provision covered by item 2 of the table does not commence at all. Item 3 of Schedule 1 inserts a new Chapter 5 into the Criminal Code to deal with offences relating to the integrity and security of the Commonwealth.  Subclause 2(3) has been included because, at the time of drafting, it could not be known which of the three Acts containing the provision establishing the new Chapter 5 would commence first.

Subclause 2(4) provides that if the Suppression of Financing of Terrorism Act 2002 receives the Royal Assent on the same day or before the day that the Act receives the Royal Assent, the provision covered by item 4 of the table does not commence at all.  Item 4 of the table deals with the commencement of the insertion of the preliminary aspects of the new terrorism offences into the Criminal Code.  Subclause 2(4) has been included because, at the time of drafting, it could not be known whether the Act or the Suppression of Financing of Terrorism Bill 2002, which contains an equivalent provision, would commence first.

Subclause 2(5) provides that if item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 commences before or at the same time as item 2 of Schedule 1 to the Act, then item 6 of Schedule 1 to the Act does not commence at all. Item 6 of Schedule 1 amends subsection 4J(7) of the Crimes Act 1914 to amend the list of offences that may not be dealt with summarily.
  Subclause 2(5) has been included because, at the time of drafting, it could not be known whether the Act or the Criminal Code Amendment (Espionage and Related Offences) Act 2002 would commence first.

Subclause 2(6) provides that if item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 does not commence before or at the same time as item 2 of Schedule 1 to the Act, then item 7 of Schedule 1 to the Act does not commence at all.  Item 7 of Schedule 1 substitutes a new subsection for subsection 4J(7) of the Crimes Act 1914.
  Subclause 2(6) has been included because, at the time of drafting, it could not be known whether the Act or the Criminal Code Amendment (Espionage and Related Offences) Act 2002 would commence first.

Clause 3: Schedule(s)

Clause 3 provides that each Act specified in a schedule is amended as set out in the Schedule concerned.

Schedule 1 – Amendments relating to treason and terrorism

Item 1 – the Schedule (after Chapter 4 of the Criminal Code)

Item 1 inserts a new Chapter 5 into the Criminal Code.   Proposed Chapter 5 deals with the integrity and security of the Commonwealth.  The Criminal Code Amendment (Espionage and Related Offences) Act 2002 and the Suppression of the Financing of Terrorism Act 2002 also contain an item inserting a new Chapter 5 into the Criminal Code.  Each Bill has a special commencement provision ensuring that the first Act to receive the Royal Assent will insert the new Chapter 5.  This is necessary because, at the time of drafting, it cannot be known which Act will commence first. 

Item 2 – The Schedule (Chapter 5 of the Criminal Code)

Item 2 inserts into Chapter 5 of the Criminal Code a new Part 5.1 – Treason of the Criminal Code.  Item 2 refers to insertion of the part “in the numerical position appropriate” because both the Criminal Code Amendment (Espionage and Related Offences) Act 2002 and the Suppression of the Financing of Terrorism Act 2002 also propose to insert provisions into Chapter 5 and, at the time of drafting, it cannot be known which Act will commence first.

Part 5.1 – Treason
Division 80 – Treason
Proposed section 80.1: Treason

Proposed section 80.1 of the Criminal Code replicates the existing treason offence in section 24 of the Crimes Act subject to changes described below designed to modernise the offence and remove certain anomalies and limitations. A number of the amendments to the treason offence reflect recommendations of the Gibbs Committee review of Commonwealth Criminal Law and the Canadian Law Reform Commission report on Recodifying Criminal Law.

Each paragraph of proposed subsection 80.1(1) is an alternative basis on which the offence of treason may be made out.  Paragraph 80.1(1)(f), described below, is entirely new and its inclusion reflects the most significant difference between the proposed section 80.1 and the existing section 24.  The other paragraphs in subsection 80.1(1) are based on paragraphs of the existing subsection 24(1) of the Crimes Act.

Proposed paragraph 80.1(1)(a) makes it an offence for a person to cause the death of the Sovereign, the heir apparent or the Consort of the Sovereign.  The proposed offence uses the phrase “causes the death of” which is the modern drafting style reflected in, for example, paragraph 71.2(1)(c) of the Criminal Code.  This replaces the more old fashioned and limited term “kills”, which appears in the existing subsection 24(1).  The phrase 'causes the death of' is also employed in sections 5.1.9 to 5.1.11 of the Model Criminal Code (see Discussion Paper: Fatal Offences Against the Person, June 1998).  The Model Criminal Code Discussion Paper concludes that  “the reckless killer foreseeing the probability of causing death is ‘just as blameworthy’ as the intentional killer”(p.59) .  This paragraph is mirrored on part of the existing paragraph 24(1)(a) and part of the existing paragraph 24(1)(b) of the Crimes Act. 

Proposed paragraph 80.1(1)(b) makes it an offence to cause harm to the Sovereign that results in their death.  The proposed offence uses the phrase “causes harm” in line with Criminal Code precedents at paragraph 71.6(1)(a) and paragraph 147.1(1)(b).  The term ‘harm’ is defined in the Criminal Code Dictionary as physical harm or harm to a person’s mental health, whether temporary or permanent.  However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.  The proposed offence also uses the phrase “resulting in the Sovereign’s death”.  This paragraph is mirrored on part of the existing paragraph 24(1)(a).  The two new phrases reflect the modern drafting style of the Code and replace the older terms of “maims and wounds” in the existing paragraph 24(1)(a) of the Crimes Act.

References to the “eldest son” and to the “Queen” in the existing paragraph 24(1)(b) have been amended to employ gender neutral language. 
Proposed paragraph 80.1(1)(c) makes it an offence to cause harm to, imprison or restrain the Sovereign.  As noted above, ‘harm’ is defined in the Criminal Code Dictionary.  Unlike proposed paragraph 80.1(1)(b), this offence does not require that the physical harm directed at the Sovereign leads to death. This paragraph is mirrored on part of the existing paragraph 24(1)(a) of the Crimes Act.

Proposed paragraph 80.1(1)(d) makes it an offence to levy war, or do any act preparatory to levying war, against the Commonwealth.  This is a replication of the existing paragraph in section 24(1)(c) of the Crimes Act.

Proposed paragraph 80.1(1)(e) makes it an offence for a person to engage in conduct that assists by any means whatever, with the intent to assist, an enemy at war with the Commonwealth, whether or not the existence of a state of war has been declared.  The “enemy” is defined within the section as one specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth.  This is a replication of the existing paragraph 24(1)(d) of the Crimes Act. 

Proposed paragraph 80.1(1)(f) makes it an offence to engage in conduct that assists by any means whatever, with the intent to assist, another country or an organisation that is engaged in armed hostilities with the Australian Defence Force.  “Organisation” is defined as a body corporate or an unincorporated body whether or not the body is based outside of Australia, consists of persons who are not Australian citizens, or is part of a larger organisation (see proposed section 80.1(8)).  This paragraph ensures that treason provisions can apply not only when Australia is “at war” but also when Australia is engaged in armed hostilities that do not constitute a formally declared war.  The paragraph also removes the need for an enemy to be proclaimed and makes it clear that hostilities can involve a foreign organisation rather than a foreign country.  These amendments are designed to ensure that the offence of treason reflects the realities of modern conflict that do not necessarily involve a declared war against a proclaimed enemy.  The new paragraph is therefore a contemporary variant of the existing paragraph 24(1)(d) of the Crimes Act, now to be reflected in proposed paragraph 80.1(e).

Proposed paragraphs 80.1(1)(e) and 80.1(1)(f) now both include the term “engages in conduct” because under the Criminal Code, fault attaches to individual physical elements of conduct, circumstance or result.  The proposed paragraphs distinguish the conduct element of the offence, for which intention must be proven, from the result element, for which recklessness or knowledge must be proven.  This is the way section 24 probably would have been read, but this amendment makes this explicit. 

Proposed paragraph 80.1(1)(g) makes it an offence for a person to instigate a person who is not an Australian citizen to make an armed invasion of the Commonwealth.  The “person” who instigates a non-Australian citizen to undertake such action would not necessarily have to be an Australian citizen either.  This ensures that action by, for example, Australian residents, can be treated as treasonous.  This paragraph is mirrored in part on existing paragraph 24(1)(e).

Proposed paragraph 80.1(1)(h) makes it an offence for any person to form an intention to do any act referred to in the proceeding paragraphs and to manifest that intention by an overt act.  This paragraph is mirrored on existing paragraph 24(1)(f).

The maximum penalty for an offence against this section is life imprisonment.  Although the existing subsection 24(1) of the Crimes Act is expressed as carrying the death penalty as a maximum, this is to be read as a maximum of life imprisonment under the Death Penalty Abolition Act 1973.  The explicit reference to a maximum penalty of life imprisonment is therefore merely a tidying up amendment.

Proposed subsection 80.1(2) replicates the existing subsection 24(2) as contained in the Crimes Act with some minor language changes.  Proposed paragraph 80.1(2)(a) makes it an offence for anyone to assist in anyway a person who has committed treason with the intention of allowing him or her to escape apprehension or punishment.  The offence has been extended slightly by adding to “escape apprehension”, as well as punishment.  The terminology “in order to enable” has been replaced with the more modern Code style language of “with the intention of allowing”.  Proposed paragraph 80.1(2)(b) makes knowledge of proposed treason an offence and requires a person with that knowledge to inform a constable, as defined in the new proposed subsection 80.1(8), of that fact.  Alternatively, a person with that knowledge must use other reasonable endeavours to prevent the treason occurring.  The penalty for an offence against this subsection is life imprisonment. 

Proposed subsections 80.1(3) and 80.1(4) replace the existing procedural requirements for the offence of treason as contained in subsections 24AC(1) and (2) of the Crimes Act.   Proposed subsection 80.1(3) specifies that any proceedings brought in respect of a treason offence in proposed subsections 80.1(1) or 80.1(2) must be instituted with the written consent of the Attorney-General.  This is a departure from the Crimes Act model where the written consent of a person authorised by the Attorney-General was sufficient for the purposes of the section.  This is in line with section 270.11 of the Code, which requires the Attorney-General’s consent before proceedings for an offence against Division 7 can be commenced.  The language of the proposed subsection is also further modernised to omit the old trial/summary distinction and replace it with “proceedings for an offence” in line with the language of section 270.11 of the Criminal Code.  The consent requirement still applies to any form of proceeding, but is worded more efficiently.
 
Proposed subsection 80.1(4) provides that a person may be arrested for a treason offence or a warrant for their arrest issued without subsection 80.1(3) consent.  The person may then be charged and remanded in custody or on bail.  At this point no further proceedings may be taken until consent under subsection 80.1(3) is obtained. The section also provides that a person must be discharged if proceedings are not continued within a reasonable time.  This is a standard corollary to an Attorney-General's consent provision, and ensures that the requirement for consent regulates the conduct of proceedings, but does not prevent arrest, charge and remand, which may require urgent action and be incompatible with the careful consideration of the consent decision.  The consent requirement is appropriate because the treason offence is an offence against the nation and therefore special considerations are relevant as to whether a prosecution is justified.   This supplements the general requirement for the Attorney-General's consent in certain cases where the conduct constituting an offence occurs wholly in a foreign country, under section 16.1 of the Criminal Code.  

Proposed subsection 80.1(5) replicates the existing Crimes Act subsection 24(3).  This subsection contains a rule of procedure which provides that where a person is charged with intent to commit any of the treason offences under subsection 24(1) and that intention was manifested by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the indictment.

Proposed subsection 80.1(6) extends the application of 24F of the Crimes Act to this new section 80.1 in the same way it would if this section were a provision of Part II of that Act.  Section 24F outlines circumstances where specified acts done in good faith (for example, legitimate criticism or protest) are not unlawful, including for the purposes of the treason offence.

Proposed subsection 80.1(7) would apply Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to the offences proposed in 80.1(1) and 80.1(2).

Category D geographical jurisdiction will be satisfied whether or not the conduct constituting the alleged offence occurs in Australia and whether or not a result of the conduct constituting the alleged offence occurs in Australia.  This jurisdiction is appropriate due to the transnational nature of terrorist activities, to ensure that a person cannot escape prosecution or punishment based on a jurisdictional loophole.

Proposed subsection 80.1(8) contains definitions of terms used in proposed Part 5.1 of the Criminal Code: 

Constable is defined as a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.  This definition corresponds to the definition of “constable” in section 3 of the Crimes Act .  This definition is used in proposed subsection 80.1(2) to define those to who a treason offence must be reported.

Organisation is defined to mean a body corporate or an unincorporated body, whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a larger organisation.  This definition is used in proposed subparagraph 80.1(f)(ii) to describe groups, the assistance of which is treason.  The definition is used in the same sense in proposed subsection 102.2(1).

Item 3 – The Schedule (at the end of Chapter 5 of the Criminal Code)

Item 3 insert a new Part 5.3 – Terrorism into the Criminal Code.

Part 5.3 – Terrorism
Division 100 - Preliminary
Proposed section 100.1 – Definitions

Proposed section 100.1 contains definitions of terms used in proposed Part 5.3 of the Criminal Code.

Commonwealth place is given the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 where it means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.  The new financing of terrorism offence in proposed section 103.1 will extend to actions that take place in a Commonwealth place.  This definition is one of the mechanisms that aligns the ambit of the offence with the scope of Commonwealth legislative power under the Constitution.

constitutional corporation is defined to mean a corporation within the terms of paragraph 51(xx) of the Constitution.  Paragraph 51(xx) of the Constitution covers foreign, trading and financial corporations.  The new financing of terrorism offence in proposed section 103.1 will extend to actions that affect constitutional corporations or that are carried out by constitutional corporations.  This definition is one of the mechanisms that aligns the ambit of the offence with the scope of Commonwealth legislative power under the Constitution.

funds is defined as property and assets of every kind and legal documents or instruments in any form.  The definition is broad in scope and is derived from Article 1 of the International Convention for the Suppression of the Financing of Terrorism.  The breadth of the definition will ensure that the financing of terrorism offence applies regardless of whether a person facilitates a terrorist act through the provision of money, equipment or weapons.

organisation is defined as a body corporate or an unincorporated body, whether or not it is based in Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.  The definition of organisation is relevant to the proscribed organisations offences in Schedule 1 to Security Legislation Amendment (Terrorism) Bill 2002.  The definition was included to defeat any argument that a group of persons is not an organisation because it does not have a particular formal attribute or structure.

terrorist act is defined to mean a specified action or threat of action that is made with the intention of advancing a political, religious or ideological cause. The types of actions covered by the definition of “terrorist act” are set out in proposed subsection 100.1(2) and include actions involving serious harm to persons, serious damage to property and interference with essential electronic systems.  The new offence in proposed section 103.1 will apply to the financing of actions which fall within this definition.

Lawful advocacy, protest and dissent, and industrial action are expressly excluded from the ambit of the definition.   

Proposed subsection 100.1(2) sets out the types of action referred to in the proposed subsection 100.1(1) that can constitute a “terrorist act”.  The types of actions listed involve serious harm, damage or disruption. A terrorist act includes action that involves serious harm to a person or serious damage to property, endangers life, creates a serious risk to the health or safety of the public or a section of the public, or is designed to seriously interfere with, seriously disrupt, or destroy, an electronic system.  Electronic systems include information systems; telecommunications systems; financial systems; and systems used for essential government services, essential public utilities and transport providers.

Proposed subsection 100.1(3) provides that a reference in proposed Division 100 to any person or property is a reference to any person or property within or outside Australia.  It also provides that a reference to the public includes a reference to the public of a foreign country.

Proposed section 100.2 – Constitutional basis for offences

Proposed section 100.2 provides a broad constitutional basis for the new financing of terrorism offence in proposed section 103.1 and the proposed terrorism offences which will also be inserted into Part 5.3.  An action or threat of action will give rise to an offence under Part 5.3 where it is within the scope of the Commonwealth’s legislative power under the Constitution.  

Proposed subsection 100.2(2) draws on the various bases of Commonwealth legislative power in section 51 of the Constitution to specify particular circumstances in which an action or threat of action will give rise to an offence.  These include circumstances where the action:
•	affects the interests of the Commonwealth, a Commonwealth authority, or a foreign, trading or financial corporation;
•	affects foreign or interstate trade or commerce, banking or insurance; 
•	takes place outside Australia; or 
•	is an action in relation to which the Commonwealth is obliged to create an offence under international law (for example, United Nations Security Council Resolution 1373 obliges Australia to criminalise the collection and provision of funds for terrorist acts).

Item 4 – The Schedule (after Division 100 of the Criminal Code)

Item 4 inserts a new Division, Division 101 – Terrorism into the Criminal Code.

Proposed section 101.1 – Terrorist acts

Proposed subsection 101.1(1) provides that it is an offence for a person to engage in a terrorist act.  Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.1(2) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.1(1).  Category D jurisdiction is unrestricted.  Its application to the offence of engaging in a terrorist act means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Proposed section 101.2 – Providing or receiving training connected with terrorist acts

Proposed section 101.2(1) provides that a person commits an offence if the person provides or receives training in the making of use of firearms, explosives, or chemical, biological, radiological or nuclear weapons and the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.2(2) provides that absolute liability applies to the provision or receipt of training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.  This means that, as long as the person’s provision or receipt of the training was voluntary, the person’s mental state is not relevant.
Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: 
(a)	there are no fault elements for that physical element; and 
(b)	the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element. 
Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolute liability element occurs.  In this case, a person who provides or receives training in the making or use of firearms, explosives or weapons should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act.  The person must avoid this possibility arising, and if they cannot, they should not provide or receive the training.  
It is therefore not necessary to prove fault in relation to the terrorist connection.  If it exists in fact, the person is liable.  
Subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable.  Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening conduct or event (section 10.1), duress (section 10.2), sudden or extraordinary emergency (section 10.3) and self-defence (section 10.4).

Proposed subsection 101.2(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.2(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.2(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.2(1).  Category D jurisdiction is unrestricted.  Its application to the offence of providing or receiving training for terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Proposed section 101.3 – Directing organisations concerned with terrorist acts

Proposed subsection 101.3(1) provides that a person commits an offence if the person directs the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.3(2) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.3(3) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.3(1).  Category D jurisdiction is unrestricted.  Its application to the offence of directing organisations concerned with terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Proposed section 101.4 – Possessing things connected with terrorist acts

Proposed subsection 101.4(1) provides that a person commits an offence if the person possesses a thing and the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.4(2) provides that absolute liability applies to the possession of things connected with preparation for, the engagement of a person in, or assistance in a terrorist act. 

Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: 
(a)	there are no fault elements for that physical element; and 
(b)	the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element. 
Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolutely liability element occurs.  In this case, a person who possesses things in connection with preparation for, the engagement of a person in, or assistance in a terrorist act, should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act.  The person must avoid this possibility arising, and if they cannot, they should not possess the thing.  
It is therefore not necessary to prove fault in relation to the terrorist connection.  If it exists in fact, the person is liable.  
Subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable.  Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening conduct or event (section 10.1), duress (section 10.2), sudden or extraordinary emergency (section 10.3) and self-defence (section 10.4).

Proposed subsection 101.4(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Subsection 101.4(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.4(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.4.  Category D jurisdiction is unrestricted.  Its application to the offence of possessing things connected with terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Proposed section 101.5 – Collecting or making documents likely to facilitate terrorist acts

Proposed subsection 101.5(1) provides that a person commits an offence if the person collects or makes a document and the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.5(2) provides that absolute liability applies to paragraph (1)(b). 

Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: 
(a)	there are no fault elements for that physical element; and 
(b)	the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element. 
Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolutely liability element occurs.  In this case, a person who collects or makes a document likely to facilitate a terrorist act should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act.  The person must avoid this possibility arising, and if they cannot, they should not collect or make the document.  
It is therefore not necessary to prove fault in relation to the terrorist connection.  If it exists in fact, the person is liable.  
Proposed subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable.  Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening conduct or event (section 10.1), duress (section 10.2), sudden or extraordinary emergency (section 10.3) and self-defence (section 10.4).

Proposed subsection 101.5(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.5(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.5(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.5(1).  Category D jurisdiction is unrestricted.  Its application to the offence of collecting or making documents likely to facilitate terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Proposed section 101.6 – Other acts done in preparation for, or planning, terrorist acts

Proposed subsection 101.6(1) provides that a person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Terrorist act is defined in proposed section 100.1.  The maximum penalty is life imprisonment.

Proposed subsection 101.6(2) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.6(3) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.6(1).  Category D jurisdiction is unrestricted.  Its application to the offence of collecting or making documents likely to facilitate terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia. 

Division 102 – Proscribed organisations
Subdivision A - Definitions
Proposed section 102.1 - Definitions

Proposed section 102.1 contains definitions of terms used in the proposed Division 102 of the Criminal Code.  

member of an organisation includes a person who holds informal membership, 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 officer of the body corporate.  This definition is used in proposed paragraph 102.2(1)(b) to describe an affiliation with a group, which may then lead to a group being declared proscribed.  This definition ensures that a person cannot evade liability by a technical argument about their lack of formal membership status.
 
proscribed organisation means an organisation in relation to which a declaration under section 102.2 is in force.  

the Commonwealth is defined to include the Territories when used in a geographical sense.  This term is used in the proscription power in proposed paragraph 102.2(1)(d) and in the defence in proposed paragraph 102.4(3)(c).  The effect of the definition is to ensure that threats to the integrity and security of an external Territory can be considered to be threats to the integrity and security of the Commonwealth and can therefore provide grounds for a proscription or nullify the existence of a defence to the proscribed organisations offence.

Subdivision B – Declarations of proscribed organisations
Proposed section 102.2 - Attorney-General may make declarations

Proposed section 102.2 provides that the Attorney-General may make a declaration in writing that one or more organisations is a proscribed organisation.  This declaration must effectively particularise the organisation to ensure that other organisations not intended to be proscribed are not covered by the declaration.  Once an organisation has been proscribed, having specified links to that organisation is a serious offence under proposed section 102.4.  The Attorney-General may declare an organisation proscribed if he/she is satisfied on reasonable grounds that one or more of proposed paragraphs 102.2(1)(a)-(d) apply in relation to the organisation.

If an organisation is a body corporate and the organisation is committing, or has committed an offence against this part, that is, the terrorism offences, then proposed paragraph 102.2(1)(a) would allow the Attorney-General to declare the organisation proscribed.  This could occur regardless of whether the organisation has been charged or convicted with an offence.

If a member of the organisation is committing, or has committed an offence against this Part on behalf of the organisation, then proposed paragraph 102.2(1)(b) would allow the Attorney-General to declare the organisation proscribed.  Similarly, this could occur regardless of whether the member has been charged or convicted with an offence.

Proposed paragraph 102.2(1)(c) allows the Attorney-General to declare an organisation proscribed if he/she is satisfied that the declaration is reasonably appropriate to give effect to a decision of the United Nations Security Council that the organisation is an international terrorist organisation.

Proposed paragraph 102.2(1)(d) allows the Attorney-General to declare an organisation proscribed if he/she is satisfied that the organisation is likely to endanger or has endangered the security or integrity of the Commonwealth or another country.

The lawfulness of the Attorney-General's decision making process and reasoning is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

Proposed subsection 102.2(2) specifies that the Attorney-General must publish the declaration in the Gazette and a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory.  This wide circulation of such a declaration allows individuals the opportunity to discontinue their involvement with such an organisation at the earliest possible notice.

Proposed subsection 102.2(3) clarifies that such a declaration would come into force when it is published in the Gazette.  The declaration then would stay in force until it is revoked or until a day, as specified in the declaration, as the day the declaration ceases to be in force. 

Proposed subsection 102.2(4) allows the Attorney-General to delegate powers and functions under subsection (1) to a Minister.  This is a limited delegation power, which reflects the importance of the power to declare an organisation as proscribed and the need for that decision to be made out at a senior level.

Proposed section 102.3 - Revocation of declarations

Proposed section 102.3 gives the Attorney-General power to revoke a declaration that an organisation is proscribed.  Proposed subsection 102.3(1) obliges the Attorney-General to revoke a declaration that an organisation is proscribed if the Attorney-General is satisfied on reasonable grounds that none of the paragraphs in proposed subsection 102.2(1) apply in relation to the organisation.  This could be done on the Attorney-General's own motion, or on application.

Proposed subsection 102.3(2) confers a discretionary power upon the Attorney-General to revoke a declaration that an organisation is proscribed. 

Proposed subsection 102.3(3) obliges the Attorney-General to publish a revocation in the Commonwealth Gazette and a newspaper circulating in each State, in the Australian Capital Territory and the Northern Territory.

Proposed subsection 102.3(4) clarifies that a revocation made under this section comes into force when it is published in the Gazette.

Proposed subsection 102.3(5) allows the Attorney-General to delegate powers and functions under subsection (1) or (2) to a Minister.  This is a limited delegation power, which reflects the importance of the power to declare an organisation as proscribed and the need for that decision to be made at a senior level.

Subdivision C – Offences in relation to proscribed organisations
Proposed section 102.4: Directing activities etc. of proscribed organisations

Proposed section 102.4 specifies what kind of interaction with proscribed organisations constitutes an offence.  Proposed subsection 102.4(1) provides that a person commits an offence if the person: (i) directs the activities of a proscribed organisation; (ii) directly or indirectly receives funds from or makes funds available to a proscribed organisation; (iii) is a member of a proscribed organisation; (iv) provides training to, or trains with, a proscribed organisation; or (v) assists a proscribed organisation.

In a prosecution of an offence against subsection 102.4(1) it is not necessary to prove that the defendant knew the organisation is a proscribed organisation.  Proposed subsection 102.4(2) provides that strict liability applies to this section.  This is based on the fact that it is not legitimate to be a member of or have links to an organisation of a kind that could be proscribed.  Therefore, the onus is on the person to make out one of the defences in the proposed section.  Fairness to the individual is safeguarded by the requirement that a proscription be published in the gazette and newspapers (proposed section 102.2) and by the defences of ceasing to being a member and having no knowledge of the existence of grounds for proscription (proposed subsections 102.3(3) and (4)).

Proposed subsection 102.4(3) creates a defence for a person prosecuted for an offence against subsection 102.4(1).  The defendant must satisfy all three criteria.  First, they must prove that they did not know nor were reckless that the organisation, or a member of the organisation, had committed or was committing an offence against this Part.  Second, that they did not know nor were reckless that the UN Security Council had resolved that the organisation is an international terrorist organisation.  Finally, that they did not know nor were reckless that the organisation was likely to endanger or had endangered the security or integrity of the Commonwealth or another country.  The defendant bears a legal burden to prove this fact.  The legal burden is outlined at section 13.4 of the Criminal Code.  A legal burden of proof on the defendant must be discharged on the balance of probabilities (section 13.5).

Proposed subsection 102.4(4) creates a defence to the membership limb of the offence.  The defence applies if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the organisation was proscribed.  As with proposed subsection 102.4(3) the defendant bears a legal burden to prove this.

Proposed subsection 102.4(5) would apply Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to the offences proposed in subsection 102.4(1).

Category D geographical jurisdiction will be satisfied whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia.  This jurisdiction is appropriate due to the transnational nature of terrorist activities, and to ensure that a person cannot escape prosecution or punishment based on a jurisdictional loophole.

Item 5 

Item 5 outlines the application of proposed section 102.2. Once the power to make declarations has commenced, the Attorney-General can use the power on the basis of events prior to commencement.
Crimes Act 1914

Item 6 - Subsection 4J(7)

This Item repeals subsection 4J(7) of the Crimes Act and substitutes it with two new paragraphs, proposed paragraphs 4J(7)(a) and 4J(7)(b).  This change maintains the current rule that the treason offence is not to be dealt with summarily.  The amendment is consequent upon the insertion of Item 2 of Schedule 1 into the Criminal Code.

Item 7 - Subsection 4J(7)

This is an alternate version of Item 6 to deal with the contingency of the Criminal Code Amendment (Espionage and Related Offences) Act 2002 being enacted before this Bill.

Item 8 - Section 24

This Item repeals the existing treason offence in section 24 of the Crimes Act consequent upon the insertion of proposed section 80.1 into the Criminal Code.

Item 9 - Subsection 24AC(1)

This Item removes the reference to section 24 in subsection 24AC(1) of the Crimes Act consequent upon the insertion of proposed subsection 80.1(3) into the Criminal Code, because the rules governing institution of proceedings in section 24AC will now be governed by Division 80.

Item 10 - Subparagraph 24F(2)(b)(ii)

This Item omits reference to paragraph 24(1)(d) of the Crimes Act and substitutes it with proposed subsection 80.1, in section 24F of the Crimes Act which provides that certain good faith acts are not unlawful.  This is consequent on the insertion of Item 1 of schedule 1 in the Criminal Code.

Item 11 - After paragraph 24F(2)(b)

This item amends subsection 24F(2) of the Crimes Act so that the ‘good faith’ exemption from criminal liability extends to the broadened treason offence.

Item 12 - Paragraph 24F(2)(c)
Item 13 - Paragraph 24F(2)(d)

These items clarify that references to certain sections in section 24F of the Crimes Act are to Crimes Act sections, consequential on the inclusion of references to the Criminal Code in section 24F.
Migration Act 1958

Item 14 - Subparagraph 203(1)(c)(i)
Item 15 - After subparagraph 203(1)(c)(i)
Item 16 - Subparagraph 203(1)(c)(ii)
Item 17 - Subparagraph 203(1)(c)(iia)

These items update a cross-reference to the treason offence in section 203 of the Migration Act 1958, to refer instead to the new treason offence in proposed section 80.1.   Section 203 provides for deportation on non-citizens convicted of certain offences.

Item 18 - Saving of proclamations

This item ensures that a proclamation specifying an enemy of the Commonwealth under paragraph 24(1)(d) of the Crimes Act, which is in force when section 24 is repealed and replaced with proposed section 80.1 of the Criminal Code, can remain in force.  The provision has been included in case such proclamation were made before the commencement of these provisions.

Schedule 2 - Amendments relating to air security officers

Australian Protective Service Act 1987

The purpose of these amendments is to extend the list of specified offences in relation to which members of the Australian Protective Service (APS) may exercise their arrest without warrant powers to include the proposed terrorist-bombing and terrorism offences.  The amendments are necessary as members of the APS are only empowered to exercise those powers whilst performing their security and protective function in relation to specified offences. The amendments will further enhance the role of the APS in combating terrorism.

Item 1 - After paragraph 13(2)(b)

This item will insert a new paragraph (ba) into subsection 13(2) of the Act.  The new paragraph will empower members of the APS to exercise powers in relation to the proposed terrorist-bombing offences, which will be included in Division 72 of the Criminal Code.  This item will commence following the commencement of Division 72 of the Criminal Code.

Item 2 - Before paragraph 13(2)(c)

This item will insert a new paragraph (bb) into subsection 13(2) of the Act.  The new paragraph will empower members of the APS to exercise powers in relation to the proposed terrorism offences, which will be set out in Division 101 of the Criminal Code.  This item will commence following the commencement of Division 101 of the Criminal Code.

Crimes (Aviation) Act 1991

Members of the Australian Protective Service (APS) are currently able to exercise their arrest without warrant powers in relation to offences set out in Part 2 of the Crimes (Aviation) Act (in particular the offence of hijacking), but those offences do not operate on intra-state flights.  The purpose of these amendments is to extend the coverage of those offences to aircraft that are operating on intra-state flights.  This is to ensure that members of the APS who are engaged as air security officers are able to provide an immediate and effective anti-hijacking capability for all Australian civil aviation.  

Item 3 - Subsection 3(1) (at the end of the definition of prescribed flight)

This item will insert a new paragraph (c) into the definition of “prescribed flight” in subsection 3(1) of the Act to extend that definition to include flights within a State. As offences set out in Part 2 of the Crimes (Aviation) Act operate on, amongst other things, prescribed flights this will extend the operation of those offences to those intra-state flights.

Item 4 - After section 8

Proposed section 8A: Aircraft flights within a State

The amendment proposed by this item is consequential on the amendment proposed by Item 3.  It will insert a new section 8A into the Act to set out the circumstances in which a flight will be regarded as being within a State for the purposes of the definition of a prescribed flight.