Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (116 of 2014)

Schedule 1   Main counter terrorism amendments

Part 1   Amendments

Foreign Evidence Act 1994

125   After Part 3

Insert:

Part 3A - Use of foreign material and foreign government material in terrorism-related proceedings

27A Foreign material may be adduced as evidence

(1) Foreign material may be adduced in a terrorism-related proceeding.

Note 1: The court has a discretion to direct that foreign material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).

Note 2: Section 27D deals with admissibility of foreign material adduced.

(2) However, foreign material is not to be adduced as evidence if it appears to the court’s satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing.

27B Foreign government material may be adduced as evidence

Adducing foreign government material

(1) Foreign government material may be adduced in a terrorism-related proceeding if the material is:

(a) annexed to a written statement by a senior AFP member that:

(i) is verified on oath or affirmation by the member; and

(ii) meets the requirements in subsection (2); and

(b) accompanied by a certificate of the Attorney-General given under subsection (3).

Note 1: The court has a discretion to direct that foreign government material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).

Note 2: Section 27D deals with admissibility of foreign government material adduced.

Content of statement by senior AFP member

(2) A statement by a senior AFP member for the purposes of paragraph (1)(a) must:

(a) relate only to foreign government material annexed to the statement; and

(b) state what the material is; and

(c) state, to the best of the senior AFP member’s knowledge:

(i) how the material, and any information contained in the material, was obtained by the first foreign authority to obtain or produce the material or information; and

(ii) each step in the process by which the material or information came from that foreign authority into the possession of the Australian Federal Police.

Attorney-General’s certificate

(3) The Attorney-General may certify, in a form prescribed under subsection (4), that he or she is satisfied that it was not practicable to obtain the foreign government material or the information in the foreign government material as foreign material.

(4) The Attorney-General may by legislative instrument prescribe a form for a certificate to be given under subsection (3).

(5) A certificate given under subsection (3) is not a legislative instrument.

27C Discretion to prevent material being adduced

(1) This section applies in relation to a terrorism-related proceeding described in an item of the following table if a person described in that item seeks to adduce foreign material or foreign government material in the proceeding.

(2) The court may direct that the material not be adduced as evidence in the proceeding if the court is satisfied that adducing the material would have a substantial adverse effect on the right of another party to the proceeding to receive a fair hearing.

27D Admissibility of material adduced

(1) The following are admissible in a terrorism-related proceeding, subject to subsection (2) but despite any other Australian law about evidence:

(a) foreign material adduced under subsection 27A(1) in the proceeding;

(b) foreign government material adduced under subsection 27B(1) in the proceeding;

(c) the statement to which the foreign government material was annexed as described in paragraph 27B(1)(a);

(d) the certificate that accompanied the foreign government material as described in paragraph 27B(1)(b).

Exception to admissibility

(2) Foreign material or foreign government material is not admissible if the court is satisfied that the material, or information contained in the material, was obtained directly as a result of torture or duress.

(3) In subsection (2):

duress means a threat that:

(a) is made explicitly or implicitly to a person; and

(b) is a threat to imminently cause one or both of the following unless material or information is provided:

(i) death or serious injury of the person, a member of the person’s family or a third party;

(ii) damage to, or loss by the person of, the person’s significant assets; and

(c) is a threat to which a reasonable person would respond by providing the material or information.

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act that the person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights done at New York on 16 December 1966;

but does not include an act or omission arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the Covenant.

Note: The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(4) If foreign government material is not admissible, neither of the following is admissible, so far as it relates to the inadmissible foreign government material:

(a) the statement described in paragraph (1)(c);

(b) the certificate described in paragraph (1)(d).

27DA Warning and informing jury

(1) If foreign material or foreign government material is admitted in a terrorism-related proceeding conducted before a jury, and a party to the proceeding so requests, the judge is to:

(a) warn the jury that the material may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the material and the weight to be given to it.

(2) The judge need not comply with subsection (1) if there are good reasons for not doing so.

(3) It is not necessary that a particular form of words be used in giving the warning or information.

(4) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

27E Operation of other laws

This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law.