Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Outline and financial impact statement
Outline
The Bill contains in Schedule 1 amendments to Part 1C of the Crimes Act 1914, the Crimes (Foreign Incursions and Recruitment) Act 1978, the Schedule of the Criminal Code Act 1995 ('the Criminal Code') and the Proceeds of Crime Act 2002. All these proposed amendments improve Australia's counter-terrorism legal framework.
The objects of this Bill are:
- a.
- to amend Part 1C of the Crimes Act 1914 by permitting the fixed investigation period applying to the investigation of federal terrorism offences to be extended by a maximum of 20 hours if judicially authorised and subject to all the existing procedural safeguards enshrined in Part 1C
- b.
- to amend Part 1C of the Crimes Act 1914 by permitting the authorities to reasonably suspend or delay questioning of a person arrested for a terrorism offence to make inquiries in overseas locations that are in different time zones to obtain information relevant to that terrorism investigation
- c.
- to amend the Crimes (Foreign Incursions and Recruitment) Act 1978 to enhance the foreign incursions offences, particularly in situations where terrorist organisations are operating as part of the armed forces of a state
- d.
- to amend the Criminal Code Act 1995 to strengthen the counter-terrorism legislation relating to membership of terrorist organisations and the offence of providing training to or receiving training from a terrorist organisation, and
- e.
- to amend the Proceeds of Crime Act 2002 to improve restrictions on any commercial exploitation by a person who has committed foreign indictable offences.
None of these amendments are intended to operate retrospectively.
Part 1C of the Crimes Act 1914 was inserted in 1991 to address the uncertainty caused by the High Court's decision in Williams v R
[1987] HCA 36
; (1986)
161 CLR 278
. In Williams, the High Court held that law enforcement agencies lacked the power to detain and question suspects, or to continue other investigations into a suspect's alleged involvement in criminal activity, prior to bringing an arrested person before a magistrate. Part 1C makes it clear that an arrested person may be detained for questioning, prior to being brought before a magistrate or other judicial officer, for the purpose of:
- i.
- investigating whether that person committed the offence for which they were arrested, and/or
- ii.
- investigating whether the person committed another Commonwealth offence that an investigating official suspects them of committing.
Part 1C also introduced important investigatory safeguards to balance the practical consideration that police should be able to question a suspect about an offence before they are brought before a judicial officer. These safeguards were intended to ensure any evidence obtained during such questioning was an accurate reflection of the truth and could be relied upon in court. One example of the safeguards found in Part 1C is the requirement to record admissions or confessions. Fixed time limits for post-arrest investigations are another crucial investigatory safeguard in Part 1C.
This Bill would adjust two of these safeguards so that authorities investigating the commission of terrorism offences are not overly constrained. The two key constraints are: (i) the inadequate duration of the investigation period for investigations of terrorism offences, even when extended by a magistrate or other judicial officer and (ii) the inability of Australia's law enforcement authorities to make inquiries in overseas locations that are in different time zones to obtain information relevant to their investigations without exhausting the fixed investigation period.
An important procedural safeguard is the prescription of a fixed time during which police may question arrested suspects in relation to all federal offences, including terrorism offences, before bringing them before a magistrate or other judicial officer. (A person may be arrested for a federal offence if a constable believes on reasonable grounds that the person has committed or is committing the offence and proceeding by summons would not be appropriate.) The fixed time for questioning arrested suspects is currently four hours, with one eight hour extension possible for serious offences. A total investigation period of 12 hours, as is currently the case, is not sufficient for complex terrorism investigations. It is proposed that the initial investigation period continue as four hours with a further 20 hours possible if the investigation period is extended. There would be no limit on the number of extensions that may be granted, provided that a magistrate or other judicial officer separately authorises each extension. However, the maximum time for these extensions would be capped at 20 hours. It would be open for a magistrate or other judicial officer to issue a single extension for up to 20 hours. In cases where extensions up to the maximum time allowed for questioning are necessary and authorised, the total investigation period for investigations of terrorism offences would be 24 hours.
The investigation period runs from the point when the person is arrested. However, there are prescribed events which do not count for the purposes of the time limit. For example, the time it takes for the person to communicate with a legal practitioner and for that legal practitioner to arrive, or for the person to receive medical treatment, or for a forensic procedure to be carried out, is not counted. These periods of time are set out in Part 1C, and are known as 'dead time'. The Bill would retain all of the existing 'dead time' provisions for investigations into terrorism offences.
However, it is possible that during investigations into terrorism offences it will be necessary to halt the questioning of an arrested suspect so that investigators can obtain relevant information from authorities overseas. This is particularly so for investigations into terrorism offences as many of these investigations will have an international aspect. Seeking and obtaining relevant information from overseas is complicated given that overseas authorities operate (or do not operate, as the case may be) in different time zones. It is proposed that this process should constitute 'dead time', but with two important provisos: (i) the decision to halt questioning and utilise the 'dead time' mechanism must be reasonable and (ii) the period for which questioning is suspended or delayed must be reasonable, with the maximum allowable 'dead time' capped by the amount of the time zone difference between the place of investigation and the relevant overseas location.
Maintaining existing investigatory safeguards
The existing investigatory safeguards in Part 1C of the Crimes Act 1914 would be retained for suspects being investigated for terrorism offences. Key safeguards include the right to communicate with a legal practitioner, friend or relative (section 23G), an interpreter (section 23N) and a consular office (section 23P). A suspect's right to remain silent would be retained (section 23S). The tape recording of any admissions or confessions made by a suspect during questioning would continue to be a pre-requisite to establish the admissibility of any such admission or confession (section 23V). Suspects would also have a right to a copy of recorded interviews (section 23U).
Crimes (Foreign Incursions and Recruitment) Act
The Crimes (Foreign Incursions and Recruitment) Act 1978 (Foreign Incursions Act) is designed to prohibit Australian citizens and those ordinarily resident in Australia from engaging in hostile activities in a foreign state. For the purposes of the Foreign Incursions Act, hostile activities include, among other things, acting to overthrow the government of a foreign state and engaging in armed hostilities in a foreign state.
Recognising that there may be instances where Australian citizens, especially those who are dual nationals, wish to join the legitimate armed forces of a foreign state, the Foreign Incursions Act does not apply to actions taken in the course of a person's service with the armed forces of a foreign state. Accordingly, paragraph 6(4)(a) states: "Nothing in this section applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with the armed forces of the government of a foreign state" (referred to hereinafter as the 6(4)(a) defence).
As events in Afghanistan demonstrate, in today's security environment terrorist organisations may be fighting as part of or alongside the armed forces of a foreign state. In some cases, those foreign forces may even be fighting against our own Defence Forces. In those circumstances, it is not appropriate that the 6(4)(a) defence be available to excuse people from the reach of the Foreign Incursions Act.
The Bill would make amendments to address this issue. It would also make amendments to increase the penalty for an offence against section 6 of the Act, modify the one year presence in Australia requirement for non-citizens and non-residents, and insert a new ministerial certificate provision.
The Bill would remove the requirement that an organisation must be specified in regulations as a terrorist organisation in order for the membership offence in section 102.3 of the Criminal Code to apply. This would make the membership offence consistent with the other terrorism offence provisions in Division 102 of the Criminal Code. As a result, a person may be guilty of the offence of being a member of an organisation that is found by a court to be a terrorist organisation (and where that organisation is not listed in regulations as a terrorist organisation) on the basis of facts presented in the course of a trial
The Bill would also modify the offence of providing training to or receiving training from a terrorist organisation in section 102.5 of the Criminal Code.
The Proceeds of Crime Act 2002 allows for literary proceeds orders where a court is satisfied that a person has committed an indictable offence (whether or not the person has been convicted of the offence) and derived literary proceeds from that offence. It also applies where a court is satisfied that a person has committed a foreign indictable offence (whether or not the person has been convicted of the offence) and that person has derived in Australia literary proceeds from the offence. The intention of the literary proceeds regime is to prevent criminals exploiting their notoriety for commercial purposes.
The amendments in this Bill will improve restrictions on any commercial exploitation by any person who has committed a foreign indictable offence. It is critical that those involved in terrorist activity or other serious crime are not able to benefit from their notoriety.
The definition of 'foreign indictable offence'
A foreign indictable offence is an offence against a law of a foreign country constituted by conduct that would have constituted an offence against a law of the Commonwealth, a State or Territory punishable by at least 12 months imprisonment if it had occurred in Australia.
The amendment in this Bill to the definition of foreign indictable offence specifies that the time at which the double criminality test is to be applied is the time of the application for a restraining or confiscation order, whichever occurs first. The amendment also specifies that, for the purpose of the definition of foreign indictable offence, an offence against a law of a foreign country includes offences triable by a military commission established under a specified order of the President of the United States of America. Some who are alleged to have committed terrorist related offences may be dealt with by a US military commission.
The definition of 'literary proceeds'
Section 153 of the Proceeds of Crime Act 2002 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 in this Bill is intended to make it clear that the notoriety need only be indirectly linked to the offence.
Currently, where a foreign indictable offence is the relevant offence, only literary proceeds derived in Australia are subject to the literary proceeds regime and a person could seek to make a literary profit from their crimes overseas and then transfer those profits to Australia. The definition of literary proceeds will be extended to cover this situation so that literary proceeds transferred to Australia can also be subjected to literary proceeds orders. A person will, for instance, still be able to publish material or give media interviews about their experiences but they will not be able to profit from such in Australia.
Financial impact statement
The Bill is not expected to have a significant impact on Commonwealth expenditure or revenue.
The financial impact of the amendments to Part 1C of the Crimes Act 1914 are difficult to quantify. Longer investigation periods for terrorism offences may require more AFP resources to be devoted to a particular investigation. However, in other cases an extended investigation period may lead to the acquisition of information that results in the early elimination of a suspect from further inquiries and better focusing of subsequent AFP investigations. This may have cost benefits for the AFP.
It is not possible to estimate the cost of bringing any new Proceeds of Crime Act 2002 confiscation proceedings, particularly in the area of literary proceeds, or the cost of preserving and realising property that is the subject of orders made after the amendments. However, it is expected that the revenue generated from the confiscation of property will offset the investigative and legal costs in bringing proceedings and administering property.
The amendments to the Crimes (Foreign Incursions and Recruitment) Act 1978 and the Criminal Code Act 1995 are not expected to have any financial impact.