Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 1 - amendments
This Schedule sets out the amendments to be made to the Crimes Act 1914, Crimes (Foreign Incursions and Recruitment) Act 1978, Criminal Code Act 1995 and Proceeds of Crime Act 2002.
Crimes Act 1914
Item 1 - Subsection 23B(1) (definition of investigation period)
This item amends the existing definition of 'investigation period' to ensure that it applies to the two separate investigatory regimes that would operate: the regime for investigations into offences other than terrorism offences under section 23C and the regime for the investigation of terrorism offences under proposed section 23CA.
The 'investigation period' is the period between the arrest of a person and their release or when they are brought before a judicial officer. The person can be questioned for the purposes of the investigation during the investigation period.
Item 2 - Subsection 23B(1) (definition of terrorism offence)
This item inserts a new definition of 'terrorism offence' into subsection 23B(1) of Part 1C. A 'terrorism offence' is defined to mean only those offences contained in Division 72 and Part 5.3 of the Criminal Code. Division 72 of the Criminal Code contains offences targeting international terrorist activities using explosive or lethal devices, giving effect to Australia's international obligations under the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997. Part 5.3 of the Criminal Code contains a suite of federal terrorism offences, including offences targeting persons engaging in terrorist acts, providing or receiving training connected with terrorist acts, and directing the activities of a terrorist organisation.
The definition of 'terrorism offence' helps set the parameters within which the proposed new investigatory framework for terrorism offences would operate, and underscores an important aspect of the Bill: the proposed amendments to Part 1C do not alter the investigatory framework and applicable safeguards applying to the investigation of offences other than terrorism offences.
Under section 11.6 of the Criminal Code any reference to a federal offence in federal law includes a reference to the related inchoate offences of attempt, incitement and conspiracy found in Part 2.4 of the Criminal Code (sections 11.1, 11.4 and 11.5). This means that investigations into the offences of attempting, inciting or conspiring to commit a terrorism offence would also be covered by the proposed new investigatory framework. Investigations that draw on the complicity and common purpose or innocent agency provisions of Part 2.4 of the Criminal Code (sections 11.2 and 11.3) in relation to terrorism offences will also be covered by the proposed new investigatory framework. This is because a person to whom those provisions would apply is taken to have committed the primary offence, which in this case would be a terrorism offence.
This item clarifies that the existing provisions of section 23C in Part 1C, which prescribe the fixed time limit and 'dead time' mechanisms, would continue to apply to the investigation of federal offences other than terrorism offences, but would not apply to the investigation of terrorism offences. Instead, section 23C is essentially replicated in proposed section 23CA, but with one new 'dead time' provision. Proposed section 23CA would apply exclusively to the investigation of federal terrorism offences.
This item replaces existing subsection 23C(6) to ensure that it reflects the two separate investigatory regimes that would operate: the regime for investigations into offences other than terrorism offences under section 23C and the regime for investigations into terrorism offences under proposed section 23CA. Subsection 23C(6) is an important protection and guarantees that if a suspect is arrested within 48 hours of a previous arrest relating to the same circumstances, the investigation period is reduced by the amount of time exhausted by the investigation period that followed the previous arrest. This means that a suspect cannot be released from custody and immediately re-arrested (or, even, re-arrested within 48 hours) and subjected to a further maximum period of questioning by investigating officials. It is proposed that this safeguard continue to apply to both investigations into terrorism and other offences.
This item sets out an investigatory framework that is to apply only when a person is arrested for a terrorism offence (as defined in proposed item 2 of Schedule 1). A person may be arrested for a terrorism offence if a police officer believes on reasonable grounds that the person has committed or is committing the offence and proceeding by summons would not be appropriate.
Where a person has been arrested for an offence other than terrorism and in the course of their inquiries investigating officials form a belief on reasonable grounds that the person has committed a terrorism offence, then the person must be arrested for the terrorism offence in order for the investigatory framework under proposed section 23CA to apply. In practice, this would involve the investigating officials informing the person that they were now detaining the person for a particular terrorism offence. If a person is not arrested for a terrorism offence, the existing investigatory framework under section 23C would apply, regardless of whether the person is in fact being questioned about terrorism offences.
The proposed investigatory framework for the investigation of terrorism offences is essentially the same as that which currently applies to the investigation of all federal offences under section 23C. The only substantive differences from the existing framework are that:
- i.
- an extra 'dead time' provision has been included to account for time lost due to obtaining information from overseas locations in different time zones, and
- ii.
- additional extensions of the investigation period are possible but only with judicial authorisation and up to a maximum of 20 hours (see item 7).
Proposed subsection 23CA(2) specifically allows a person to be detained for questioning for the purpose of investigating whether they committed the terrorism offence for which they have been arrested and/or whether they committed another terrorism offence that an investigating official reasonably suspects the person to have committed. This provision requires that any person detained for these purposes must not be held beyond the end of the designated investigation period, which is provided in proposed subsection 23CA(4).
Proposed subsections 23CA(4) and (5)
Proposed subsection 23CA(4) provides that the investigation period extends from the time of arrest for a reasonable time, having regard to all the circumstances. A maximum investigation period of four hours is prescribed for terrorism offences. For persons who are or who appear to be under 18, and Aboriginal persons or Torres Strait Islanders, the maximum investigation period is two hours. These maximum investigation periods would be subject to extension under proposed section 23DA (see item 7 below). Proposed subsection 23CA(5) requires that the number and complexity of matters being investigated be considered in determining the appropriate period of time a person should be held.
The maximum investigation periods under proposed subsection 23CA(4) are the same as those under existing section 23C and, as is currently the case under that provision, the investigation period in each particular case only extends for a reasonable period having regard to all the circumstances. The maximum investigation periods provided under subsection 23CA(4) are the maximum periods a person can be detained and only operate as an absolute cap when a reasonable period from the time of arrest has not already expired.
Proposed subsection 23CA(3) replicates existing subsection 23C(3). It requires that a person must either be released (unconditionally or on bail) within the investigation period, or be brought before a judicial officer within the investigation period or as soon as practicable after the expiry of that period. 'Judicial officer' is defined in proposed subsection 23CA(10) as a magistrate, a justice of the peace or a person authorised to grant bail under the law of the State or Territory in which the person was arrested.
Proposed subsections 23CA(6) and (7)
Proposed subsection 23CA(6) mirrors the proposed amended version of subsection 23C(6) (see item 4 above). These provisions are an important protection and guarantee that if a suspect is arrested within 48 hours of a previous arrest relating to the same circumstances, the investigation period is reduced by the amount of time exhausted by the investigation period that followed the previous arrest. This means that a suspect cannot be released from custody and immediately re-arrested (or even re-arrested within 48 hours) and subjected to a further fixed period of questioning by investigating officials.
Proposed subsection 23CA(7) replicates existing subsection 23C(6A). It provides that the protection of subsection 23CA(6) does not apply if a person is arrested a second time within 48 hours for conduct completely separate from their conduct which led to the original arrest. Specifically, proposed subsection 23CA(7) only applies either where the later arrest is for a federal offence that was committed after the detention for the original arrest, or where the later arrest is for a federal offence that arose in different circumstances to those to which the original arrest applies and for which new evidence has been obtained since that earlier arrest. Where either of these situations exist, the person detained cannot be questioned about the offence for which they were originally arrested or the circumstances surrounding that offence.
Proposed subsection 23CA(8) mirrors existing subsection 23C(7) in prescribing specific situations that may occur after arrest during which the 'clock stops' for the purposes of the time limits on investigation periods. The time it takes for these situations to occur is known as 'dead time' and questioning cannot occur during these periods. Proposed subsection 23CA(8) contains the same list of 'dead time' provisions as existing subsection 23C(7), such as the time taken to convey the person from the place of arrest to the place where questioning is to occur, the time taken for a legal practitioner to arrive at the place of questioning, and the time taken for a person to receive medical attention. However, proposed subsection 23CA(8) contains a new provision, which allows the time taken to obtain information relevant to the investigation from a place outside Australia that is in a different time zone to be counted as 'dead time' for the purpose of the time limits on the investigation period (proposed paragraph 23CA(8)(m)). This new 'dead time' provision would only apply where a person has been arrested for a terrorism offence.
Time zone differences between countries impose constraints on investigations with an international aspect, as investigators may need to obtain information from overseas critical to informing interviews with suspects. It is possible that during terrorism investigations, halting the questioning of an arrested suspect will be necessary so that investigators can obtain relevant information from overseas authorities in other time zones.
Proposed paragraph 23CA(8)(m) contains two important qualifiers. Firstly, any suspension or delay of questioning to receive information from an overseas location in a different time zone must be reasonable. A suspension or delay would, for example, be unreasonable if the information could be obtained from an overseas location without delay, regardless of any time zone differences, or if the same information as that sought overseas could be obtained from a location. A suspension or delay of questioning may also be unreasonable if the information to be obtained from overseas has little relevance to the questioning of the person detained.
The second qualifier in proposed paragraph 23CA(8)(m) is that the period for which questioning is suspended or delayed must also be reasonable and is capped so that the dead time cannot exceed the difference in time zones between the place of the investigation and the relevant overseas location.
Proposed subsection 23CA(9) replicates existing subsection 23C(8). It provides that in any proceedings, the prosecution bears the burden of showing that the person detained was brought before a judicial officer as soon as practicable and that any period of time during the investigation period that was counted as dead time was in fact covered by the dead time provisions in proposed subsection 23CA(8). This means the prosecution would be required to show that any suspension or delay of questioning to seek and/or obtain relevant information from an overseas location in a different time zone was in fact reasonable.
Proposed subsection 23CA(10) defines judicial officer for the purposes of proposed subsection 23CA as a magistrate, a justice of the peace or a person authorised to grant bail under the law of the State or Territory in which the person was arrested. This definition replicates the definition of judicial officer in existing section 23C.
This item clarifies that the provisions of section 23D in Part 1C, which regulate extensions of the investigation period for serious offences, do not regulate extensions of the investigation period for investigations into terrorism offences. Instead, item 7 of the Bill inserts a similar set of provisions to section 23D, applicable only to terrorism investigations, which allow any number of extensions of the investigation period, but only up to a total time of 20 hours.
This item sets out the mechanism for extending the investigation period beyond the initial maximum period of four hours for investigations into terrorism offences. It is similar to the current mechanism for extensions of the investigation period for serious offences in existing section 23D. Existing subsection 23D(5) provides that the investigation period can only be extended once for a maximum of eight hours. Proposed subsection 23DA(7), in contrast, allows the investigation period for investigations into terrorism offences to be extended any number of times, but only until the total aggregate time of the extensions reaches 20 hours.
The effect of proposed section 23DA in combination with proposed section 23CA is that a person arrested for a terrorism offence may be detained for questioning for a maximum of 24 hours (not including dead time) if extensions of the investigation period up to the maximum total of 20 hours are granted. Currently for serious offences including terrorism offences, the maximum period a person can be detained for questioning is 12 hours. Twelve hours is unlikely to allow sufficient time in all circumstances to investigate a terrorism offence, because of the potential complexity of such investigations and the potential need to involve a range of jurisdictions, both in Australia and overseas. Terrorist attacks are likely to involve many players and can be coordinated from a range of locations around the world.
Proposed subsection 23DA(1) provides that an investigating official may apply for an extension of the investigation period, in relation to a person who is under arrest for a terrorism offence. The application is to be made at or before the end of the investigation period, the time limit for which is provided in proposed subsection 23CA(4) or, if one or more extensions have already been granted, in the written authority provided by the granting judicial officer.
Proposed subsections 23DA(2) to (6) replicate the mechanism for making applications to a judicial officer for an extension of the investigation period currently used for all serious federal offences under section 23D.
Proposed subsection 23DA(7) provides that the investigation period for terrorism offences may be extended for any number of times, but only so that the total time of the extensions does not exceed 20 hours. This differs from existing subsection 23D(5), which provides that only one extension of up to eight hours is allowed for the investigation of serious offences.
This item allows applications for an extension of the investigation period under proposed section 23DA to be made by telephone, fax, etc in the same way that applications can currently be made under section 23D.
Item 9 - At the end of subsection 23E(3)
This item contains a consequential amendment including the appropriate reference to proposed subsection 23DA(5).
Item 10 - Subsection 23WD(4) (note)
This item contains a consequential amendment removing the specific reference to existing subsection 23C(7), because proposed subsection 23CA(8) is now also relevant. The note will refer more generally to Part 1C as a result of the amendment.
Item 11 - Subsection 23WM(4) (note)
This item contains a consequential amendment removing the specific reference to existing subsection 23C(7), because proposed subsection 23CA(8) is now also relevant. The note will refer more generally to Part 1C as a result of the amendment.
Item 12 - Paragraph 23XGD(2)(h)
This item contains a consequential amendment including a reference to proposed subsection 23CA(8).
Crimes (Foreign Incursions and Recruitment) Act 1978
Item 13 - Subsection 6(1) (penalty)
This item raises the maximum penalty available for an offence against section 6 of the Foreign Incursions Act from 14 years to 20 years. Offences constituted by acts similar to those constituting an offence under the Foreign Incursions Act include war crimes, terrorism offences and treason. Those offences carry penalties ranging from 20 years to life imprisonment.
The increased penalty reflects the fact that in today's international security environment it is more likely than when the Foreign Incursions Act was first developed that Australian citizens may fight with groups that are in armed opposition to Australian forces. Twenty years is an appropriate penalty, capturing both the very serious hostile acts listed in section 6 of the Foreign Incursions Act and providing a real disincentive to commit the less serious hostile acts.
A person does not commit an offence against the Foreign Incursions Act unless that person was an Australian citizen, ordinarily resident in Australia, or was in Australia for a purpose connected with an act constituting an offence at any time during the one year period preceding the doing of that act. As a result of the last formulation, a person who, not being an Australian citizen or ordinarily resident in Australia, was present in Australia 366 days prior to the doing of an act constituting an offence cannot be prosecuted for an offence under the Act.
This item removes from section 6(2)(b) of the Foreign Incursions Act the words "during the period of one year immediately preceding" and substitutes in their place the word "before". As a result, a person who was present in Australia for a purpose connected with the doing of an act constituting an offence at any time before the doing of an act can be prosecuted for an offence under the Act. This will ensure that persons will not escape the reach of the Foreign Incursions Act merely because they were present in Australia 366 days before the doing of the acts constituting an offence.
Item 15 - At the end of section 6 (application of paragraph 6(4)(a))
A person who commits a hostile act in the course of, and as part of, his or her service in any capacity in or with the armed forces of a government of a foreign state does not commit a hostile activity for the purposes of section 6 of the Foreign Incursions Act (the 6(4)(a) defence). Where a terrorist organisation is part of the armed forces of a government, a person engaged in such an organisation will not be liable for an offence under the Act.
Item 15 limits the application of paragraph 6(4)(a) so that it does not apply to persons who engage in hostile activities while in or with an organisation or who, when entering a foreign state, intend to engage in hostile activities while in or with an organisation if, at the time of committing the act or entering the foreign state, the organisation was prescribed in regulations made under the Foreign Incursions Act or prescribed as a terrorist organisation listed in the Criminal Code Regulations.
By providing power to make regulations to list prohibited groups from time to time, the Foreign Incursions Act will outlaw participation with new and emerging terrorist groups from the moment it becomes evident that they pose a threat to Australia's security. In instances where the Australian Defence Force is fighting in an armed conflict overseas, it would be appropriate to quickly list an organisation or group so that Australians fighting with that group against the ADF will not be free from the consequences of their actions. Providing for the prescription of organisations and groups by regulation also means that cases for listing can be considered on an individual basis rather than trying to fit an organisation or group into a legislative definition which may over time prove inadequate as international relations and the security environment change. Importantly, listings made in the regulations will still be subject to disallowance and will not have retrospective application.
This item amends paragraph 7(2)(b) in the same way that item 14 amends paragraph 6(2)(b).
Item 17 - After subsection 11(3) (ministerial certificate)
Section 11 of the Foreign Incursions Act currently provides for three types of ministerial certificates, two serving as prima facie evidence of the facts recognised in the certificates and one serving as conclusive evidence of recognised facts. The three types of certificates relate to facts that are difficult to prove or that may have implications for Australia's international relations because of the political nature of the facts (for example, whether a place or an area is or is in an independent sovereign state, whether a person was acting in the course of his duty to the Commonwealth, or whether an authority was in effective governmental control of a state or part of a state). Proving whether a group or organisation is part of the armed forces of a state is similarly difficult to prove and may also have implications for Australia's international relations.
Item 17 inserts into the Foreign Incursions Act a provision enabling a Minister to issue a certificate attesting to the fact that a group was not part of the armed forces of a state at any one time. Such a certificate would be prima facie evidence of the fact stated therein.
Item 18 - At the end of the Act (regulations)
This item inserts a regulation-making power into the Foreign Incursions Act. A regulation-making power is necessary to enable the listing of prescribed organisations.
Criminal Code Act 1995
Item 19 -Paragraph 102.3(1)(b) of the Criminal Code
This item repeals paragraph 102.3(1)(b) of the Criminal Code and substitutes a new paragraph 102.3(1)(b). The new paragraph makes membership of a terrorist organisation, however defined by section 102.1 of the Criminal Code, an offence. The requirement that an organisation is a terrorist organisation because of paragraph (b), (c) (d) or (e) of the definition of terrorist organisation in section 102.1 is removed. This amendment makes the offence of membership of a terrorist organisation consistent with the other offence provisions in Division 102 of the Criminal Code by allowing paragraph 102.3(1)(b) to apply where a court has found an organisation to be a terrorist organisation.
Item 20 - Section 102.5 of the Criminal Code
Item 20 replaces section 102.5 of the Criminal Code with modified offences of providing training to or receiving training from a terrorist organisation. The amended section 102.5 includes a strict liability component.
For the offence in proposed subsection 102.5(1), the prosecution has to prove that: the person intentionally provides training to, or intentionally receives training from, an organisation; and the organisation is a terrorist organisation; and the person is reckless as to whether the organisation is a terrorist organisation. Under the Criminal Code (section 5.4), a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. The proposed offence in subsection 102.5(1) will still cover the situation where a person knows the organisation is a terrorist organisation. (Subsection 5.4(4) of the Criminal Code provides that if recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy the fault element.)
Proposed subsections 102.5(2) - 102.5(4)
For the offence in proposed subsection 102.5(2), the prosecution has to prove that: the person intentionally provides training to, or intentionally receives training from, an organisation; and the organisation is a terrorist organisation that has been specified by regulations under Division 102 of the Criminal Code.
Under proposed subsection (3), strict liability would apply to the element in paragraph (2)(b) (that the organisation is a terrorist organisation specified by regulations). The prosecution still has to prove that the person intentionally provided training to or intentionally received training from an organisation, and that the organisation is a terrorist organisation specified by regulations. However, the prosecution would not have to prove that the person was aware that it was a specified terrorist organisation.
Application of paragraph 6.1(2)(b) of the Criminal Code means that the person would have a mistake of fact defence available under section 9.2 of the Criminal Code. In the case of proposed subsection 102.5(2), this would mean that a person is not criminally responsible if before the time of the offending conduct the person considered whether or not the organisation was a specified terrorist organisation and the person was under a mistaken but reasonable belief that it was not such an organisation. The defendant bears the evidential burden in this case. If the person can point to evidence that they had such a mistaken belief then it is for the prosecution to prove beyond reasonable doubt that there was no mistaken belief.
In addition to the normal mistake of fact defence attaching to strict liability, proposed subsection 102.5(4) also includes a recklessness exception. The offence in proposed subsection 102.5(2) will not apply if the person is not reckless as to the organisation being a specified terrorist organisation. Application of subsection 13.3(3) of the Criminal Code means that the person bears an evidential burden in relation to this matter. If the person can point to evidence suggesting a reasonable possibility that the exception applies, then it is for the prosecution to prove beyond reasonable doubt that the exception has no application.
Proceeds of Crime Act 2002
This item replaces existing paragraph 20(1)(d) of the Proceeds of Crime Act 2002 to remove the condition that literary proceeds must have been derived in Australia when there are reasonable grounds to suspect that a person has committed a foreign indictable offence. In effect, the amendment will allow a restraining order to be granted under section 20 in relation to a foreign indictable offence without consideration of whether the literary proceeds in question have been derived in Australia.
Item 22 - Paragraphs 20(3)(b) and (c)
This item replaces existing paragraphs 20(3)(b) and (c) to remove the requirement that an authorised officer suspects that a suspect derived in Australia literary proceeds from the foreign indictable offence in question.
This item repeals the existing requirement that a court must be satisfied that a person has derived in Australia literary proceeds in relation to a foreign indictable offence.
This item amends the definition of literary proceeds. Section 153 requires that any benefit that a person derives from the commercial exploitation of the person's notoriety results from the person having committed an indictable or foreign indictable offence. The amendment makes it clear that the notoriety need only be indirectly linked to the offence and that this will be sufficient to fall within the definition of literary proceeds. For example, this amendment is intended to vitiate a claim that a person's notoriety stems from circumstances related to their commission of an offence, such as their place of incarceration, and not from the actual commission of the offence.
Item 25 - After subsection 153(3)
This item amends the definition of literary proceeds in relation to foreign indictable offences. In addition to benefits derived in Australia, benefits transferred to Australia have been included in the definition of literary proceeds. This amendment will allow literary proceeds orders to be sought where, for instance, a person commercially exploits their criminality overseas and subsequently transfers their benefits to Australia.
This item inserts a new meaning of foreign indictable offence. Proposed section 337A is intended to clarify that the time at which the double criminality test is to be applied is the time of the application for the restraining or confiscation order in question, whichever comes first. The courts will be required to consider whether there was a comparable Australian offence at the time of the application for the restraining or confiscation order, not at the time of the offence against a law of the foreign country.
For the purpose of considering the meaning of foreign indictable offence, proposed subsection 337A(3) inserts a specific category of offences that are to be considered as offences against a law of a foreign country. This subsection covers offences that are triable by a military commission of the United States of America established under a specified military order. Some who are alleged to have committed terrorism related offences may be dealt with by a US military commission.
Item 27 - Section 338 (definition of foreign indictable offence)
This item repeals the existing definition of foreign indictable offence.