Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Outline, financial impact statement and notes on items
Outline
The Bill contains, in Schedule 1 amendments to the Passports Act 1938; in Schedule 2 amendments to the Australian Intelligence Security Act 1979; in Schedule 3 amendments to the Schedule of the Criminal Code Act 1995 ('the Criminal Code'); in Schedule 4 amendments to the Administrative Decisions (Judicial Review) Act 1977 and to the Transfer of Prisoners Act 1983; and in Schedule 5 amendments to the Crimes Act 1914. The proposed amendments improve Australia's counter-terrorism legal framework.
The objects of this Bill are:
- a.
- to amend the Passports Act 1938 to ensure that those subject to a warrant for an indictable offence or serious foreign offence, prevented from travelling internationally by force of an order of a court, a law of the Commonwealth or a condition of parole, or suspected of engaging in harmful conduct (such as terrorist activities) are prevented from leaving Australia on a foreign passport
- b.
- to amend the Australian Security Intelligence Organisation Act 1979 to ensure that those subject to a request by the Director-General of Australian Security Intelligence Organisation (ASIO) to the Minister for consent to apply for a questioning warrant are prevented from leaving Australia
- c.
- to amend the Criminal Code Act 1995 to strengthen the counter-terrorism legislation by extending the application of offence provisions under Division 102 of the Code to people whose associations with a listed terrorist organisation, or with a person who is a member or who promotes or directs the activities of such an organisation, assists the organisation to continue to exist or to expand.
- d.
- to amend the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, State and Territory prisoners, as well as for persons charged with and remanded in custody for an offence. The amendments to the Transfer of Prisoners Act will also provide for the return transfer of such persons, as well as the transfer of such persons for court proceedings.
- e.
- To amend the Administrative Decisions (Judicial Review) Act 1977 to make decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act 1983, as well as any decision of the Attorney-General under the Act on the grounds of security, exempt from the application of the Act.
- f.
- To amend the forensic procedure provisions in the Crimes Act 1914 to facilitate effective disaster victim identification in the event that a disaster causing mass casualties (such as a terrorist attack or an aircraft disaster) were to occur within Australia.
The Bill will amend the Passports Act 1938 (Passports Act) to create powers to demand, confiscate and seize foreign travel documents to ensure that those suspected of serious offences or harmful conduct are prevented from leaving Australia on a foreign travel document. The Bill will also insert new offences for making false statements in relation to foreign travel document applications, giving false information in relation to foreign travel document applications, providing false documents in relation to foreign travel document applications, improper use or possession of a foreign travel document, making, possessing or using false foreign travel documents, failure to surrender a suspicious foreign travel document, and failure to surrender a foreign travel document when required to do so.
The proposed provisions and offences are similar to those that apply to Australian passports and are necessary to combat the misuse of foreign travel documents in Australia. The misuse of foreign travel documents can be associated with terrorist and other criminal activity.
Currently, it is possible for a person to depart Australia on a foreign passport despite the cancellation and seizure of that person's Australian passport on security or law enforcement grounds. The new foreign passport provisions will enable the competent authorities to seek an order from the Minister for Foreign Affairs requiring a person to surrender the person's foreign travel documents, and will authorise an enforcement officer to request and, if necessary, seize foreign travel documents, whether or not a person has used the documents to enter Australia.
Australian Security Intelligence Organisation Act 1979
The Bill will amend the Australian Security Intelligence Act 1979 (ASIO Act) to create a power for ASIO to demand the surrender of a person's passports (both Australian and foreign) to prevent that person from leaving Australia, where the person is subject to a request by the Director-General of ASIO to the Minister for consent to apply for a questioning warrant. In practice, for operational security reasons, the power would only be exercised if the person who is the subject of the request attempts to leave Australia or there is a concern that the person may attempt to leave Australia.
The Bill will also create new offences under the ASIO Act for failure to comply with a demand for the surrender of a person's passport and for leaving Australia when a person is subject to a request for consent to apply for a questioning warrant.
Division 102 of the Criminal Code
The Bill would insert a new offence provision, "Association with a Terrorist Organisation", in Division 102 of the Criminal Code which would make it an offence to intentionally associate with a person who is a member or who promotes or directs the activities of a listed terrorist organisation where that association provides support that would help the terrorist organisation to continue to exist or to expand. The offence would only apply to organisations which are listed as terrorist organisations under the Criminal Code Regulations 2002 and where the person knew that the organisation was a listed terrorist organisation. Exceptions to the offence are provided for in relation to associations with close family members; associations for the purpose of public religious worship; associations for the purpose of the provision of aid of a humanitarian nature; and associations for the purpose of providing legal advice or representation in criminal proceedings, or related proceedings, or proceedings relating to whether the organisation in question is a terrorist organisation.
The provision draws on concepts from the offence of consorting (which is a State and Territory offence aimed against criminal gangs), and fairly recently enacted New South Wales legislation which provides for the use of non-association orders as part of sentencing (Crimes (Sentencing Procedure) Act 1999 (NSW) No. 92.). Just as consorting offences can be used to break up criminal gangs, the proposed offence can be used to break up terrorist groups.
Transfer of Prisoners Act 1983
Schedule 4 amends the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, State and Territory prisoners, as well as for persons charged with and remanded in custody for an offence. The amendments to the Transfer of Prisoners Act will also provide for the return transfer of such persons, as well as the transfer of such persons for court proceedings.
Schedule 5 amends Division 11A of Part 1D of the Crimes Act 1914 to facilitate effective disaster victim identification if a mass casualty incident (such as a terrorist attack or an aircraft disaster) were to occur within Australia.
Part 1D of the Crimes Act (which contains Division 11A) establishes a framework for a cooperative legislative scheme with States and Territories in relation to forensic procedures which has the potential, when fully implemented, to facilitate effective disaster victim identification in relation to domestic incidents. However, that cooperative scheme is not yet fully operative, and the inter-jurisdictional arrangements in place at the time of these amendments are limited to law enforcement purposes only, and could not be used solely for the purpose of disaster victim identification.
Division 11A was inserted into Part 1D shortly after the Bali bombings to facilitate the identification of the victims of the bombings and the criminal investigation in relation to the incident. Its application is currently limited to the Bali bombings and any other incident occurring outside Australia and Norfolk Island that the Minister determines in writing. It overrides State and Territory legislation and enables, for the purposes of the identification of victims of the relevant incident and the criminal investigation of the incident, access to the National Criminal Investigation DNA Database, the transfer of DNA information between the Australian government and the States and Territories, the matching of DNA profiles, and the disclosure of the results of those matchings.
Section 23YUK of the Crimes Act 1914 requires that the operation of Division 11A be independently reviewed as soon as possible after the first anniversary of the commencement of the Division. That review is being undertaken at the time of these amendments. The Chair of the review committee has written to the Minister for Justice and Customs advising that existing forensics legislation may be inadequate to facilitate effective disaster victim identification if a mass casualty incident were to occur within Australia. The Chair raised this issue in advance of the Committee's report because he considered it was of an "important and urgent" nature.
The purpose of Schedule 5 is to broaden the scope of Division 11A to ensure that Australia can adequately respond to a wide range of domestic incidents which are within the legislative capacity of the Federal Parliament. This will reduce the risk of delays in disaster victim identification which may otherwise be caused by gaps in the cooperative legislative scheme being developed with States and Territories under Part 1D.
The report of the Division 11A review committee is expected to be completed in July 2004. The domestic incidents issue raised by the Chair of the review is considered sufficiently important to warrant these urgent amendments. Any further issues that may be raised by the review will need to be addressed in subsequent amendments.
Financial impact statement
The Bill is not expected to have a significant financial impact.
Notes on items
It is proposed that the short title of the Act will be the Anti-terrorism (No. 2) Act 2004.
Item 2 of the table provides that Schedule 1 commences on the 28th day after the day on which this Act receives the Royal Assent.
Item 3 of the table provides that Schedule 2 commences on the 28th day after the day on which this Act receives the Royal Assent.
Item 4 of the table provides that Schedule 3 commences on the day after the day on which this Act receives the Royal Assent.
Item 5 of the table provides that Schedule 4 commences on the day on which this Act receives the Royal Assent.
Item 6 of the table provides that Schedule 5, items 1 to 5, commences on the day on which this Act receives the Royal Assent.
Item 7 of the table provides that Schedule 5, item 6, commences on the later of: (a) the start of the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of Schedule 3 to the Australian Federal Police and Other Legislation Amendment Act 2004. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.
This clause provides that Acts specified in Schedule 1 (Passports Act 1938); in Schedule 2 (Australian Security Intelligence Organisation Act 1979); in Schedule 3 (Criminal Code Act 1995); in Schedule 4 (Administrative Decisions (Judicial Review) Act 1977 and Transfer of Prisoners Act 1983); and in Schedule 5 (Crimes Act 1914) are amended as set out in each case.