Explanatory Memorandum(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)
Outline and financial impact
The Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (the Bill) amends the Criminal Code Act 1995 by inserting a new division, Division 72 - International terrorist activities using explosive or lethal devices, into the Criminal Code.
The purpose of Division 72 is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings (the Convention) which is a response by the international community to terrorist attacks using bombs and other lethal devices.
The Convention came into effect on 23 May 2001. The passage of the Bill will enable Australia to become a party to the Convention. The Convention will come into force for Australia thirty days after its instrument of accession has been deposited.
The main effect of the Bill is to establish offences in the Criminal Code which make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction which would cause major economic loss. The Bill does not establish jurisdiction over an offence where the circumstances relating to the alleged offence are exclusively internal to Australia.
The Bill also prescribes a penalty of life imprisonment for persons who are convicted of offences under this Division of the Criminal Code.
The Bill requires that proceedings for an offence under the Division must not commence without the Attorney-General's written consent. In determining whether to bring proceedings under the Division the Attorney-General must have regard to, amongst other things, State and Territory law governing the conduct that would give rise to an offence under this Division and to whether a prosecution has been or will be initiated under that State or Territory law.
The Bill also amends the Extradition Act 1988 to ensure that the offences in the Bill shall not be regarded, for the purposes of extradition, as political offences.
It is not expected that the Bill will have a direct financial impact. The costs associated with any criminal or extradition proceedings in respect of this Division in the Criminal Code would be absorbed within existing budgets.
Notes on Clauses
Clause 1 provides for the short title of the Act.
Clause 2 provides that sections 1, 2 and 3 of the Act are to commence on Royal Assent and that Schedule 1 is to commence by Proclamation. Subclauses 3 and 4 specify when proclamation must occur.
Subclause 2(2) provides that column 3 of the table in subclause 3(1) is for additional information that is not part of the Bill.
Subclause 2(3) provides that a proclamation to commence Schedule 1 must not specify a day that occurs before the day on which the International Convention for the Suppression of Terrorist Bombings (the Convention) enters into force for Australia.
Subclause 2(4) provides that if Schedule 1 does not commence within 6 months beginning on the day on which the Convention comes into force for Australia, the schedule commences on the first day after that period.
Subclause 2(5) provides that if the schedule commences as a result of subsection (4) the Minister (the Attorney-General) must publish a notice in the Commonwealth Gazette stating the day on which the schedule commenced.
Clause 3 provides that the Criminal Code Act 1995 and the Extradition Act 1988 are amended as set out in Schedule 1.
Schedule 1 - Amendments
The Criminal Code Act 1995 has a schedule that contains the Criminal Code. Chapter 4 of the Criminal code deals with the integrity and security of the international community and foreign governments. This item inserts a new division, Division 72 - International terrorist activities using explosive or lethal devices, into Chapter 4 of the Criminal Code.
Section 72.1 defines the purpose of Division 72 as the creation of offences relating to international terrorist activities using explosive or lethal devices and to give effect to the International Convention for the Suppression of Terrorist Bombings ('the Convention').
Section 72.2 provides that a member of the Australian Defence Force who is acting for the defence or security of Australia may not be prosecuted under this Division.
Subsection 72.3(1) provides the elements of an offence under the Division. The elements of the offence are set out in paragraphs (a) to (d). The effect of section 13.1 of the Criminal Code is that the prosecution in any criminal proceeding bears the legal burden of proving the existence of each of these elements. This principle applies in respect of the offences established in Division 72.
Paragraph 72.3(1)(a) requires that the person committing the offence intentionally puts the device in place or sets it off.
Paragraph 72.3(1)(b) requires that the device be an explosive or other lethal device. This element is satisfied if the person is reckless that what he or she is delivering, placing, discharging or detonating is such a device and would be satisfied if the person was aware that there was a substantial risk that it was such a device and in the circumstances known to that person it was unjustifiable to take that risk. The element would also be satisfied if the person knew that it was such a device. The term 'explosive or other lethal device' has the same meaning as that term has in the Convention. The Convention defines the term in paragraph 3 of Article 1 to mean
- an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage; or
- a weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material.
'Weapon or device' includes not only things which are specifically made for explosive or lethal purposes but also things adapted for those purposes and things which are neither made nor adapted for those purposes although they are used for those purposes. For example, while an aircraft may not be designed for the purpose, it clearly has the capacity to cause death, injury and damage. Therefore, where aircraft are used as they were in the attacks on 11 September 2001 in the United States of America, they would be 'weapons or devices' for the purposes of the Convention and for this legislation.
Paragraph 72.3(1)(c) requires that the place where the device is delivered, placed, discharged or detonated be either a place used by the public, a government facility, a public transportation system or an infrastructure facility. Strict liability applies to the nature of the place. This means that there are no fault elements for this particular element of the offence and, therefore, it is immaterial whether the person knows the nature of the place. However, section 6.1 of the Criminal Code provides that the defence of mistake of fact at section 9.2 of the Code is available.
Paragraph 72.3(1)(d) requires that the person committing the offence intends to cause death or serious harm. The definitions of death and serious harm in the Dictionary in the Criminal Code will apply.
The maximum penalty for committing an offence against subsection 72.3(1) is imprisonment for life.
Paragraphs 72.3(2)(a) to (c) are the same as paragraphs 72.3(1)(a) to (c) but paragraph 72.3(2)(d) requires that the person committing the offence intends to cause extensive destruction to a place, facility or system. Paragraph 72.3(2)(e) requires that the person be reckless as to whether the destruction could result in major economic loss but actual destruction or loss is not required.
The maximum penalty for committing an offence against subsection 72.3(2) is imprisonment for life.
Section 72.4 provides the situations where the jurisdictional requirements of Division 72 will be satisfied. A person commits an offence where one of the following paragraphs apply and the circumstances are not exclusively internal as described in subsection 72.4(2).
Paragraph 72.4(1)(a) provides that a person commits an offence where the conduct constituting an alleged offence occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship as required by Article 6, paragraph (1)(b) of the Convention.
Paragraph 72.4(1)(b) provides that a person commits an offence if, at the time of the alleged offence, the alleged offender is an Australian citizen. This provision meets the obligation at article 6, paragraph 1(c) of the Convention that a country which is a party to the Convention must establish jurisdiction where the alleged offender is a national of that country.
Paragraph 72.4(1)(c) provides that a person commits an offence if, at the time of the alleged offence, the alleged offender is a stateless person whose habitual residence is in Australia. Article 6, paragraph 2(c) of the Convention allows for jurisdiction to be established in this circumstance.
Paragraph 72.4(1)(d) provides that a person commits an offence if the conduct is subject to the jurisdiction of another country which is a party to the Convention established in accordance with paragraph 1 or 2 of article 6 of the Convention and the person is in Australia. This provision complies with the obligation at article 6, paragraph 4 of the Convention.
Paragraph 72.4(1)(e) provides that a person commits an offence if a Commonwealth, State or Territory government facility that is outside Australia is the target of, or suffers damage as the result of, the alleged offence. Article 6, paragraph 2(b) of the Convention allows for jurisdiction to be established where the offence is perpetrated against such a facility.
Paragraph 72.4(1)(f) provides that a person commits an offence if an Australian citizen or a body corporate incorporated in Australia is the target of, or suffers damage as the result of, the alleged offence. Article 6, paragraph 2(a) of the Convention allows for jurisdiction to be established where the offence is perpetrated against an Australian citizen or body corporate.
Paragraph 72.4(1)(g) provides that a person commits an offence if the person engaging in the conduct intends to compel the Commonwealth, a State or a Territory to do or not do anything. Article 6, paragraph 2(d) of the Convention allows for jurisdiction to be established in this circumstance.
Subsection 72.4(2) defines alleged offences as being exclusively internal if:
- the relevant conduct occurs exclusively in Australia; and
- the alleged offender is an Australian citizen; and
- the offence is perpetrated only against Australian citizens or incorporated bodies; and
- the alleged offender is in Australia; and
- no other country which is a party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction, that is the alleged offence was not committed in that other country or on board one of its ships or aircraft.
Section 72.5 preserves the operation of all other Commonwealth, State and Territory laws.
Section 72.6 prevents a person being convicted in respect of a Division 72 offence in respect of conduct where he or she has already been convicted or acquitted of an offence against the law of a foreign country.
Subsection 72.7(1) provides that no prosecution for an offence under Division 72 can be commenced without the written consent of the Attorney-General. This provision is intended to prevent a prosecution being brought under this Division in cases where a prosecution under a different Commonwealth law would be appropriate or where a prosecution would not be appropriate at all, for example, because of the operation of subsection 72.7(4).
Notwithstanding subclause (1), the effect of subclause (2) is to allow preliminary steps to be taken prior to the giving of consent by the Attorney-General to a prosecution under subclause (1).
Subsection 72.7(3) requires the Attorney-General, when deciding whether to bring proceedings for an offence under this Division, to have regard to the terms of the Convention, particularly paragraph 2 of Article 19, which excludes, from the operation of this Convention, the activities of armed forces during an armed conflict and the activities undertaken by military forces in the exercise of their official duties to the extent those activities are governed by other rules of international law.
Subsection 72.7(4) requires the Attorney-General, when deciding whether to bring proceedings for an offence under this Division to also have regard to:
- whether the conduct in question would be an offence under the law of a State or Territory; and
- whether the State or Territory has commenced or will commence a prosecution relating to that conduct.
Subsection 72.8(1) provides that the Minister for Foreign Affairs, who is referred to in the subsection as the Minister administering the Charter of the United Nations Act 1945, may issue a certificate stating when the Convention entered into force for Australia, stating that the Convention remains in force on a specified day for Australia or any other party to the Convention or making a statement on the establishment of jurisdiction under paragraph 1 or 2 of Article 6 of the Convention by any country that is a party to the Convention.
Subsection 72.8(2) provides that the Minister for Immigration and Multicultural and Indigenous Affairs, who is referred to in the subsection as the Minister administering the Australian Citizenship Act 1948, may issue a certificate stating that a person is or was an Australian citizen at a particular time or that a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.
A certificate issued under the new section 72.8 will be prima facie evidence, in any proceedings, of the matters in the certificate.
Section 72.9 excludes the operation of section 38 of the Judiciary Act 1903 in relation to matters arising under this Division, including any questions of interpretation of the Convention. The effect of this provision is to prevent prosecutions under this Division falling within the exclusive jurisdiction of the High Court. Section 68 of the Judiciary Act 1903 will vest jurisdiction in the State and Territory courts.
Section 72.10 lists definitions of a number of terms for the purpose of Division 72. These definitions adopt the meanings given to the same terms in the Convention. However Division 72 refers to government facility rather than to State or government facility which is the term used by the Convention but government facility is defined for the purposes of Division 72 as having the same meaning as State or government facility in the Convention.
Item 2 amends the Extradition Act 1988 by inserting at the end of paragraph (a) of the definition of political offence a new subparagraph (ix) referring to Article 2 of the Convention. The amendment to the Extradition Act 1988 implements the requirement in Article 11 of the Convention that none of the offences in Article 2 of the Convention shall be regarded, for the purposes of extradition, as a political offence. Article 11 provides that a request for extradition based on such an offence may not be refused on the sole ground that it concerns a political offence.