Senate

Supplementary Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

General outline and financial impact

General Outline

The Anti-terrorism Bill ('the Bill') contains important measures to improve Australia's counter-terrorism legal framework.

The Bill amends:

a.

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 in Part 1C

b.

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.

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.

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.

the Proceeds of Crime Act 2002 to improve restrictions on any commercial exploitation by a person who has committed foreign indictable offences.

The proposed Government amendments to the Bill respond to recommendations contained in the Senate Legal and Constitutional Committee Report on the Bill and further enhance Australia's counter-terrorism legal framework.

The amendments fall into two categories:

(1)

Proposed amendments which provide a legislative response to the Senate Legal and Constitutional Legislation Committee Report into the provisions of the Bill. The Report was released on 11 May 2004 and contained several recommendations. Proposed amendments at items (4), (5), (6), (7) and (8) fall into this category.

(2)

Proposed amendments that further enhance Australia's counter-terrorism legal framework by:

(i)

providing a national solution to bail issues for persons charged with terrorism offences, and certain other offences that are relevant to terrorist activity, and

(ii)

providing for minimum non-parole periods for persons convicted of, and sentenced for, committing specified minimum non-parole offences against the Criminal Code and the Crimes Act 1914.

Proposed amendments at (1), (2) and (3) fall into this category.

Bail

Proposed item 1B of proposed amendment (2) would provide a nationally consistent approach to bail for persons charged with terrorism offences and certain other federal offences that will in many instances be relevant to terrorist activity.

At present, bail for persons charged with federal offences is dealt with under State and Territory bail laws, which are applied by subsection 68(1) of the Judiciary Act 1903 (Cth). All States and Territories have enacted bail Acts. But each Bail Act deals with federal offenders slightly differently. This is a legacy of Australia's federal criminal justice system.

With the exception of Western Australia, all jurisdictions establish the presumption that a person will receive bail. Most jurisdictions also provide for a presumption against bail where the person is accused of a particular offence or is a repeat offender. For example, many jurisdictions impose a presumption against bail for serious drug offences, including serious federal drug offences in the Customs Act 1901 (Cth).

The Victorian, Western Australian and New South Wales' bail Acts go further. Each stipulates that bail should not be granted to persons accused of specific offences unless the court is satisfied that exceptional circumstances apply. In each jurisdiction, this 'exceptional circumstances only' bail provision applies in limited circumstances as follows:

•

Victoria: murder, treason and the most serious drug offences

•

New South Wales: murder, repeat offenders of serious violent offences and federal terrorism offences

•

Western Australia: defendants who commit serious offences while on bail for other serious offences

It is proposed to amend the Crimes Act 1914 (Cth) so that an 'exceptional circumstances only' bail test applies to certain federal offenders dealt with by State and Territory courts or other bail authorities. The proposed presumption would apply to persons charged with, or convicted of, federal terrorism offences and certain other federal offences that are relevant to terrorist activity. This proposed presumption would require persons charged with relevant offences to persuade a bail authority that 'exceptional circumstances' existed justifying their release on bail pending trial, appeal or sentence. Failure to persuade the bail authority would lead to a refusal to grant bail.

Minimum non-parole periods for specified offences, including terrorism offences

Proposed item 1C of amendment 2 would provide for minimum non-parole periods for persons convicted of, and sentenced to imprisonment for, committing specified minimum non-parole offences against the Criminal Code and the Crimes Act 1914.

The Australian Government does not operate any correctional facilities and under the Constitution the States are responsible for the provision of federal offenders within their gaols. While States are responsible for the administration of their own prisons, the sentencing and administration of Commonwealth offenders is provided for in Part 1B of the Crimes Act 1914.

The Australian Government is concerned that sentences for convicted terrorists should reflect community concern about terrorism. The significant period of time served out in the community, on parole (which is in most cases necessary to reintegrate prisoners back into the community) is not warranted in the case of terrorists and does not reflect community concern about their crimes. The significant proportion of the overall head sentence that is often devoted to release on parole has the potential to undermine confidence in the criminal justice system, given that dealing with terrorism cases is often costly and difficult.

Statutory limitation of the parole period is an extraordinary measure which, to date, has only been used in the context of people smuggling offences in 2001 (section 233C of the Migration Act 1958). On that occasion there was also a fixed minimum head sentence. The terrorism offences contained in Division 72 and Part 5.3 of the Criminal Code differ from the Migration Act offences as they target varying types of conduct and have differing maximum sentences of imprisonment, making a fixed minimum head sentence undesirable. A longer fixed minimum non-parole period that is determined by reference to the head sentence provides a way of increasing the time served by convicted terrorists in gaol while at the same time avoiding unnecessary arbitrariness and enabling judicial discretion when determining the head sentence for the offender. The Government also considers that a minimum non-parole period is also appropriate for the very serious offences of treason, treachery and espionage.

Consequently, the proposed minimum non-parole period regime provides for the non-parole period to be represented as a ratio of three-quarters of the sentence of imprisonment imposed by the court. For example, if the court imposed a maximum sentence of ten years the minimum non-parole period for the offence would be seven and a half years. However, the Court will still retain the ability to impose a higher non-parole period if considered appropriate in the circumstances.

The Crimes Act does not specify a numerical value for life imprisonment. In order to ensure that someone sentenced to life imprisonment receives a longer non-parole period, than say someone sentenced to twenty-five years imprisonment, life imprisonment has been deemed to be thirty years imprisonment. The minimum non-parole period would then be three-quarters of thirty years, being twenty-two and a half years. Whilst this may appear to be an arbitrary determination it is considered necessary in order to reflect the seriousness of a sentence of life imprisonment.

Dead time

Proposed amendments (4) - (6) respond to recommendation 1 of the Senate Legal and Constitutional Committee.

Proposed subsection 23CA(8) in the Bill prescribes 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 amendments (4) - (6) would insert into Part 1C of the Crimes Act 1914 a comprehensive judicially supervised 'dead time' regime for investigations of terrorism offences.

The Senate Committee recommended that the proposed 'dead time' item in paragraph 23CA(8)(m) of the Bill should not be available automatically to investigating officials, but should only be available if authorised by a judicial officer. The Committee further recommended that in making such an application for 'dead time' the investigating official be required to inform the judicial officer as to whether the suspect is a minor, an Aboriginal person or a Torres Strait Islander.

Paragraph 23CA(8)(m), contained in proposed section 23CA at item 5 of the Bill, would provide for a new 'dead time' item permitting authorities to reasonably suspend or delay the questioning of a person arrested for a terrorism offence to obtain information relevant to the investigation from locations outside Australia that are in different time zones. The time would need to be reasonable and is limited to a period that does not exceed the amount of the time zone difference.

Proposed amendments (4) - (6) would implement the Senate Committee's recommendation with respect to providing 'dead time' for overseas inquiries undertaken across different time zones. Paragraph 23CA(8)(m) would be deleted from the Bill in its current form. A judicially supervised 'dead time' mechanism for terrorism investigations would be inserted as a new section 23CB. This mechanism is general in nature and is not restricted to the narrow circumstances contemplated by the original paragraph 23CA(8)(m). It would allow judicial authorisation of 'dead time' for terrorism investigations subject to certain considerations. The fact that authorities may want to reasonably suspend or delay the questioning of a person arrested for a terrorism offence to obtain information relevant to the investigation from locations outside Australia that are in different time zones is specifically identified as a typical 'event' that may justifying the authorisation of 'dead time'.

Requiring that extra 'dead time' available for terrorism investigations be judicially supervised addresses concerns about the prospect of unjustifiably long delays to questioning.

The consolidated judicially supervised 'dead time' mechanism contained in proposed section 23CB at amendment (6) would be consistent with the critical goals of promoting investigatory efficiency and procuring reliable evidence. An application for 'dead time' under proposed section 23CB could be progressed in tandem with an application for the extension of an investigation period under proposed section 23DA in the Bill.

Crimes (Foreign Incursions and Recruitment) Act 1978

Minor amendments are proposed to include criteria by which organisations may be prescribed under the Crimes (Foreign Incursions and Recruitment) Act 1978 for the purposes of proposed paragraph 6(7)(a). This will bring transparency to the prescription process. The effect of prescribing an organisation is to remove the availability of a defence under the Act.

Financial Impact

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 is 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.

The amendments to the Crimes (Foreign Incursions and Recruitment) Act 1978 will have no financial impact.

The bail amendments and the minimum non-parole periods will affect a limited number of federal offenders. There will be some minimal financial impact on correctional facilities.