Second Reading Speech
Mr RUDDOCK (Berowra-Attorney-General)
I move:
That this bill be now read a second time.
This is a bill to strengthen Australia's counter-terrorism laws in a number of respects-a task made more urgent following the recent tragic terrorist bombings in Spain which resulted in the loss of 190 innocent lives.
The safety and security of its population and national interests is the most important responsibility of any government.
It is a responsibility this government takes very seriously.
Our response to the threat of terrorism has been comprehensive and wide ranging.
Since the devastating September 11 attacks in New York and Washington, the government has overhauled Australia's legislative framework in relation to terrorism, to complement existing laws that already targeted terrorism.
But it is a task that is ongoing.
In the current environment, complacency is not an option.
Our counter-terrorism laws require review and, where necessary, updating if we are to have a legal framework capable of safeguarding all Australians from the scourge of terrorism.
This government has worked hard to ensure that the reach of Australia's criminal justice system extends to cover terrorists by eliminating loopholes and gaps.
We have updated the federal Criminal Code to ensure that our offence regime comprehensively responds to terrorism.
The Security Legislation Amendment (Terrorism) Act 2002 introduced a suite of offences into the Criminal Code targeting persons involved in terrorist acts or terrorist organisations.
It is now appropriate to improve the capability of Australia's law enforcement agencies to properly investigate these new terrorism offences.
Since 11 September 2001, the AFP have, sadly, had experience in investigating acts and allegations of international terrorism.
They cooperated closely with Indonesian authorities investigating the Bali bombings.
That experience has revealed that issues such as differences in international time zones may substantially reduce the time available during the investigation period to actually question a suspect.
The bill responds to these issues in two concrete ways.
First, it extends the fixed investigation period under part 1C of the Crimes Act for investigations into suspected terrorism offences.
At present, an initial period of four hours is available for any investigation, including investigations into terrorism offences, with a further eight hours available for serious crimes if authorised by a magistrate or other judicial officer.
While this limit has worked well in relation to conventional offences and a time limit is necessary to maintain confidence in the reliability of evidence, it is an inadequate length of time in which to question suspects in the context of complex terrorism investigations that may have international aspects.
The bill would maintain the initial investigation period of four hours; however, it would provide for this period to be extended for up to a further 20 hours.
This would give a maximum investigation period of 24 hours.
As with any extension of the fixed investigation period, each extension would have to be authorised by a magistrate or other judicial officer.
The magisterial supervision and other safeguards, such as `dead time' to allow a person arrested to rest and recuperate before and during questioning, would ensure that the reliability of evidence is not compromised.
Secondly, the bill permits law enforcement agencies to reasonably suspend or delay questioning of a person suspected of committing a terrorism offence to make overseas inquiries to obtain information relevant to that terrorism investigation.
At present, the part 1C questioning regime does not permit investigators to make overseas inquiries without running down the investigation `time clock' or, worse still, releasing the suspect.
Given that terrorism investigations will often have an international dimension, it is vital that authorities be able to make overseas inquiries without compromising their obligation to question a suspect fully.
And with international time zones a likely cause of delay in responding to requests for information and assistance from Australian authorities, the bill prescribes this time as `dead time' so that it does not exhaust the finite investigation period.
In adjusting Australia's investigatory procedures to meet the new terrorist environment, the government recognises the need to ensure that appropriate safeguards are put in place to maintain the balance between security and individual rights and freedom.
That is why this extension would only apply to investigations of relevant terrorist offences under the Criminal Code.
Any decision to suspend or delay questioning to make overseas inquiries must be reasonable in the circumstances and must only last for a reasonable period that does not exceed the amount of the time zone difference.
And that is why all the existing safeguards in part 1C of the Crimes Act will continue to apply to terrorist suspects being investigated in accordance with the Crimes Act regime.
These safeguards include:
a suspect's right to communicate with a legal practitioner, friend or relative, an interpreter or a consular office
a suspect's right to remain silent
requiring the tape recording of any admissions or confessions made by a suspect as a pre-condition for admissible evidence, and
a suspect's right to a copy of recorded interviews.
These amendments will greatly improve the ability of Australia's law enforcement authorities to effectively enforce our terrorism laws.
The bill also amends the Crimes (Foreign Incursions and Recruitment) Act.
The recent armed conflict in Afghanistan demonstrates that in today's security environment terrorist organisations may be acting in collaboration with the armed forces of a foreign state.
In future conflicts there is a real possibility that terrorist organisations will continue to operate with the armed forces of sympathetic foreign states.
The Crimes (Foreign Incursions and Recruitment) Act was designed to prohibit Australian citizens and those ordinarily resident in Australia from engaging in hostile activities in a foreign state.
Currently, a person does not commit an offence under the Foreign Incursions Act if the person commits hostile activities while serving in any capacity in or with the armed forces of a foreign state.
As a result, where a terrorist organisation is part of the armed forces of a government, a person involved in that terrorist organisation will not be liable for an offence under the Foreign Incursions Act.
The bill gives the government the power to prescribe organisations for the purposes of the act.
Engaging in hostile activities while in or with a prescribed organisation will not be excused on the basis that the organisation was part of the armed forces of a foreign state under the regime to be introduced here.
In recognition of the serious nature of the hostile activities prohibited by the Foreign Incursions Act, the bill will increase the maximum penalty for committing a hostile activity to 20 years imprisonment.
Currently, the Foreign Incursions Act is only applicable to a non-Australian citizen or resident if the person was in Australia at any time during the year preceding the doing of an act which is an offence against the Foreign Incursions Act.
This means that a person who is not a citizen or resident escapes the reach of the Foreign Incursions Act on day 366.
The bill will amend the Foreign Incursions Act to make it clear that a person, whether or not an Australian citizen or resident, who was in Australia at any time for a purpose connected with a hostile activity will be liable for prosecution under the act
The Foreign Incursions Act provides for three types of ministerial certificates, two serving as prima facie evidence of the facts recognised in the certificates and one serving as conclusive evidence of recognised facts.
The three types of certificates relate to facts that are difficult to prove or that may have implications for Australia's international relations because of the political nature of the facts (for example, whether a place or an area is or is in an independent sovereign state, whether a person was acting in the course of his duty to the Commonwealth and whether an authority was in effective governmental control of a state or part of a state).
Proving whether a group or organisation is part of the armed forces of a state is similarly difficult to prove and may also have implications for Australia's international relations.
Recognising this fact, the bill contains an amendment enabling a minister to issue a certificate attesting to the fact that a group was not part of the armed forces of a state at any one time.
Such a certificate would be prima facie evidence of the fact stated therein.
These amendments to the Foreign Incursions Act modernise the act and ensure that it remains a valuable legislative tool in protecting Australia's national security and holding persons accountable for their acts committed both within Australia and overseas.
The bill also amends the Criminal Code to make it an offence for a person to be a member of an organisation found by a court to be a terrorist organisation on the basis of facts presented in the course of a trial, where that organisation is not listed in regulations as a terrorist organisation.
This amendment will bring the membership offence provisions in line with the other terrorist organisation offence provisions which apply both in relation to terrorist organisations listed in regulations and organisations found to be terrorist organisations by a court.
The effect of the proposed amendment would be to return the membership offence in division 102 of the Criminal Code to its original form as set out in the Security Legislation Amendment (Terrorism) Bill when it was introduced in 2002.
The inconsistency between the membership offence and other terrorist offences was the result of pressure exerted by the Senate during the passage of that bill.
It does not make sense to have a membership offence which will not apply in circumstances where a court finds that an organisation is a terrorist organisation, and where all other terrorist organisation offences do apply.
A further amendment to section 102.5 of the Criminal Code will introduce modified offences of providing training to or receiving training from a terrorist organisation.
The first offence will apply where a person is reckless as to whether an organisation is a terrorist organisation.
The second offence, which introduces a strict liability component, will apply only in the case where a terrorist organisation has been specified by regulations under division 102 of the Criminal Code.
The effect of the proposed strict liability provision is that the prosecution still has to prove that the person intentionally provided training to or intentionally received training from an organisation, and that the organisation is a terrorist organisation specified by regulations.
However, the prosecution would not have to prove that the person was aware that it was a specified terrorist organisation.
A person will have available a defence of mistake of fact.
In addition, the offence will not apply if the person is not reckless as to the organisation being a specified terrorist organisation.
The effect of this amendment is to place an onus on persons to ensure that they are not involved in training activities with a terrorist organisation.
This amendment will send a clear message to those who would engage in the training activities of terrorist organisations, which could result in an attack of the kind seen in New York or in Bali, that they can expect to be dealt with harshly.
The last set of amendments concern the Proceeds of Crime Act.
The need for strong and effective laws for the confiscation of proceeds of crime is self-evident and has been considered and supported by this chamber in the past.
The purpose of such laws is to discourage and deter crime by diminishing the capacity of offenders to finance future criminal activities and to remedy the unjust enrichment of criminals who profit at society's expense.
Literary proceeds are one aspect of the Proceeds of Crime Act.
The literary proceeds regime prevents criminals exploiting their notoriety for commercial purposes.
Orders can be made, for example, where criminals sell their stories to the media. Proposed amendments to the regime will further limit the ability of a person to profit from crime.
Literary proceeds include any benefit that a person derives from the commercial exploitation of his or her notoriety resulting from that person committing an indictable offence or foreign indictable offence.
Three sets of amendments to the Proceeds of Crime Act are proposed.
The first amendment will extend the operation of the Proceeds of Crime Act for foreign indictable offences beyond literary proceeds derived in Australia to also cover literary proceeds that have been derived elsewhere and then subsequently transferred to Australia.
The second set of amendments concern the definition of `foreign indictable offence'.
For a literary proceeds order to be made for such an offence, the conduct must also have been an offence under Australian law punishable by at least 12 months imprisonment if it had occurred in Australia.
The government proposes to amend the definition of `foreign indictable offence' to clarify that the time at which the double criminality test is to be applied is the time of the application for the restraining or confiscation order in question, whichever comes first.
The definition of `foreign indictable offence' will also be amended to make it clear that the term includes an offence triable by a military commission of the United States under a specified military order.
This will ensure that a person convicted of an offence by certain US military commissions cannot exploit his or her notoriety from that offence for commercial gain and derive proceeds in Australia or transfer such proceeds to Australia.
Third, the act 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.
This final amendment to the act will make it clear that the notoriety need only be indirectly linked to the offence for an order to be made.
For example, the notoriety could flow from where the person was detained rather than from the commission of the offence.
I commend the bill to the House. I hope that it will have a speedy passage through both chambers and that any committee review will be undertaken expeditiously. I present the explanatory memorandum.
Debate (on motion by Mr McClelland) adjourned.