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National Security Legislation Proposed Amendments (2009)

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National Security Legislation Proposed Amendments

Australian Human Rights Commission
Submission on the Attorney-General’s
Discussion Paper on Proposed Amendments to National Security Legislation

9 October 2009

Table of Contents

1 Introduction

2 Summary

3 Recommendations

4 Treason Offences

4.1 Allegiance to the Commonwealth

4.2 Material Assistance

5 Urging violence offences

5.1 Removal of the word ‘sedition’

5.2 Urging violence within a community

5.3 Urging violence against an individual

5.4 Defence to acts of treason and urging violence for acts done in good faith

6 Amendment to the Definition of Terrorist Acts

6.1 Broadening of the extent of ‘harm’ in the definition of ‘terrorist act’

6.2 Threat of action

7 Terrorism Hoax

8 Definition of ‘advocates’ in respect of the doing of a terrorist act by an organisation – listing of terrorist organisations

9 Offences in relation to terrorist organisations

9.1 Offence of providing support to a terrorist organisation

9.2 Offence of providing training to or receiving training from a terrorist organisation

9.3 Offences regarding terrorist organisation not dealt with by the discussion paper or scheduled for review

10 Pre-charge detention

10.1 Threshold for state of mind of arresting officer

10.2 Length of investigation period

11 Entry to premises without warrant

12 Oversight of the Australian Federal Police by the PJC-Law Enforcement

13 National Security Legislative provisions not dealt with by the discussion paper

1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Attorney-General’s Department, providing comments on the
    Attorney-General’s discussion paper on proposed amendments to the National
    Security Legislation (the discussion paper).

  2. The Commission is established by the Australian Human Rights Commission
    Act 1986     (Cth) and is Australia’s national human rights institution.

  3. The Commission welcomes the opportunity to make a contribution to the
    National Security Legislation Review. It is important that significant areas of
    law reform such as this, involve broad consultation. The Commission encourages
    the Australian Government to conduct further consultation processes as it
    continues to reform national security legislation.

  4. Governments have both a right and a duty to enact counter-terrorism measures
    to protect their communities. However, the Commission agrees with the
    Attorney-General’s recent comment that not only is it possible to respond
    to threats to national security whilst recognising and adopting human rights,
    but imperative to the long term fight against
    terrorism.[1]

  5. The reforms suggested in this discussion paper do in large part further the
    protection of human rights. However, the Commission remains concerned that some
    provisions in the existing national security legislative regime undermine human
    rights. Further, some of the amendments proposed by the discussion paper further
    undermine human rights.

  6. Given the fundamental importance of ensuring that human rights are protected
    in national security legislation, it is disappointing that the discussion paper
    does not raise for consideration or discussion the human rights implications of
    the proposed amendments. The Commission encourages the government to ensure that
    human rights impacts are explicitly made a key consideration of any future
    review of national security legislation.

  7. This submission sets out the Commission’s observations and concerns
    about the impact on human rights of the reforms suggested in the discussion
    paper.

2 Summary

  1. The proposed amendments in large part enact the governments responses to the
    reports of:

    • the Hon John Clarke QC into the case of Dr Mohamed Haneef (the Clarke
      report);[2]

    • the Parliamentary Joint Committee on Intelligence and Security into the
      proscription of ‘terrorist organisations’(the PJCIS proscription
      report);[3]

    • the Parliamentary Joint Committee on Intelligence and Security review of
      security and counter-terrorism legislation (the PJCIS review
      report);[4] and

    • the Australian Law Reform Commission’s review of sedition laws in
      Australia (the ALRC
      report).[5]

  2. The Commission emphasises the overriding duty of governments to define
    precisely, by law, all criminal offences in the interest of legal
    certainty[6] and therefore supports
    the amendments seek to more precisely define offences within the national
    security regime.

  3. The proposed amendments largely enhance the protection of human rights.
    However, the Commission has concerns in relation to a number of the proposed
    changes, including:

    • the retention of the reference to ‘threat’ in the definition of
      ‘terrorist act’’;[7]

    • the breadth of the ‘hoax’ offence and associated
      penalty;[8] and

    • the introduction of a power for police to enter a premises without
      warrant.[9]

  4. The Commission is also concerned that some aspects of Australia’s
    National Security Legislation have not been included in the discussion paper and
    are not otherwise due to be reviewed.

  5. This submission discusses:

    • treason offences

    • urging violence offences

    • the definition of 'terrorist act’

    • terrorism hoax offence

    • the definition of ‘advocates’

    • offences in relation to terrorist organisations

    • pre-charge detention

    • entry to premises without warrant

    • oversight of the Australian Federal Police

    • national security legislative provisions that have not been dealt with by
      the discussion paper.

3 Recommendations

  1. The Commission recommends that:

Recommendation 1: Section
80.1 of the Criminal Code Act 1995 (Cth) (Criminal Code) be
amended to require that the person committing the offences contained within that
section owe an allegiance to the Commonwealth.

Recommendation 2: The term ‘ethnic origin’ be added to s
80.2A(1)(c) Criminal Code and the proposed section 80.2B(1)(c) Criminal Code so that a group may be distinguished by ‘race,
religion, nationality, national origin, ethnic origin or political
opinion’.

Recommendation 3: Recommendation 12-2 the ALRC report, that s 80.2 of
the Criminal Code be amended, be implemented as it was proposed.

Recommendation 4: The words ‘threat of action’ be removed
from the definition of ‘terrorist act’ in section 100.1(1) of the Criminal Code and a separate offence of threatening to commit a terrorist
act be created in Div 101 of the Criminal Code.

Recommendation 5: The hoax offence that is proposed to be inserted in
the Criminal Code be amended so as to limit the nature of the conduct
that is captured.

Recommendation 6: Section 102.5 of the Criminal Code be
redrafted so that it is not an offence to provide to or receive training from a
terrorist organisation if that training does not have any connection with a
terrorist act.

Recommendation 7: Part 1C, Division 2 of the Crimes Act be amended so
that:

  1. Disregarded time be limited in nature to that in which the person under
    arrest is accessing services such as; legal representation, interpreters and
    medical practitioners and time in which the arrested person is resting,
    recuperating, eating, sleeping etc and time related to these times;

  2. The maximum time by which the investigation period can be extended pursuant
    to s23DA(7) is 4 days.

Recommendation 8:

  1. That the proposed section regarding entry to premises without warrant be
    amended as follows:

    1. ‘suspect’ in subparagraph (1) be changed to
      ‘belief’;

    2. subparagraphs (3) and (4) be deleted; and

    3. amend subparagraph (5) to refer to a ‘serious and imminent threat to a
      persons life, health and safety’.

  2. A mechanism be established whereby the Police report on each use of this
    power, in the nature of a retrospective warrant application, such applications
    to be reviewed by the newly named PJC-Law Enforcement

4 Treason
Offences

  1. The discussion paper proposes to amend the offence of treason by shifting
    the offence of providing assistance to the enemy, currently in s 80.1 (e) and
    (f) of the Criminal Code, to a new section, 80.1AA of the Criminal
    Code    . It is also proposed to amend the offence in the new section 80.1AA to
    require:

    1. the person owe an allegiance to the Commonwealth; and

    2. the assistance that is provided must be ‘material’
      assistance.[10]

  2. The Commission supports both of these amendments

4.1 Allegiance
to the Commonwealth

  1. As the offence is currently worded, any person anywhere in the world is
    liable to commit an offence of providing assistance to an enemy at war with
    Australia. Adding the requirement that to commit the offence of treason, a
    person must owe an allegiance to the Commonwealth, will limit the
    extraterritorial ambit of the offence so that only a person with a relevant
    connection to Australia will be caught by the offence. It is not appropriate
    that such an offence apply, for example, to people legitimately serving in
    armies who are at war with Australia. The Commission notes that proposal is
    consistent with the recommendations in the ALRC report and the PJCIS review
    report.[11]

  2. The Commission notes that the proposed amendment is to apply only to the new

    s 80.1AA of the Criminal Code and not to the offences remaining in s
    80.1 of the Criminal Code. There does not appear to be any basis upon
    which to distinguish between the offence in sub-paragraphs s 80.1(a)-(d), (g),
    (h) and those in the new s 80.1AA. The discussion paper does not discuss or
    explain the reason why there is no proposal to amend s 80.1 to also require that
    the person owe an allegiance to Australia.

  3. The ambit of the offences in both s 80.1 and 80.1AA are currently the same.
    The concerns raised about the breadth of the offence are equally applicable to
    those remaining in s 80.1 such as causing the death of the Sovereign etc. Both
    the Australian Law Reform Commission (ALRC) and the Parliamentary Joint
    Committee on Intelligence and Security (PJCIS) recommended that it should be a
    requirement for all offences in s 80.1 that the person owe an allegiance to
    Australia.[12] The Government
    supported both of these
    recommendations.[13]

Recommendation 1: Section 80.1 of the Criminal Code be amended to require that the person committing the offences contained within
that section owe an allegiance to the Commonwealth.

4.2 Material
Assistance

  1. As the offences in s 80.1 of the Criminal Code currently stand, a person
    will commit an offence if they provide assistance to the enemy by ‘any
    means whatever’.[14] This can
    be direct or indirect assistance including expressions of support and does not
    have to help the enemy actually engage in war. It therefore captures an
    extraordinary breadth of conduct.

  2. The proposal to remove the words ‘by any means whatever’ and
    require ‘that the conduct will materially assist the enemy to engage in
    war with the
    Commonwealth’,[15] will
    appropriately narrow the offence in such a way as to capture conduct that is
    intended to and does assist the enemy engage in war.

5 Urging
violence offences

5.1 Removal
of the word ‘sedition’

  1. The discussion paper proposes to replace the word ‘sedition’ in
    the heading of Part 5.1 and the heading of Division 80 of the Criminal
    Code     and replace it with the term ‘urging violence’. The
    Commission supports this proposal. The word has traditionally and historically
    been associated with ‘political’
    crimes.[16] It does not adequately
    describe the criminality of the offences that now make up Part 5.1 of the Criminal Code which include the offences of treason, and urging violence
    against the Constitution, the Government etc and groups. The removal of the word
    sedition is consistent with the recommendations of the
    ALRC.[17]

5.2 Urging
violence within a community

  1. Section s 80.2(5) of the Criminal Code currently provides that a
    person commits an offence if the person urges a group or groups to use force or
    violence against another group distinguished by ‘race, religion,
    nationality or political opinion’ and the use of the force or violence
    would threaten the peace, order or good government of the Commonwealth.

  2. The offence is directed at conduct that ‘urges’. By implication
    this would be conduct in the nature of imparting information and ideas. The
    right to freedom of expression is protected by article 19(2) of the ICCPR and
    can only be limited in appropriate circumstances.

  3. The discussion paper proposes to amend the existing offence of ‘urging
    violence within a community’ in s 80.2(5) of the Criminal Code to:

    1. Add the word ‘intentionally’ before the word ‘urges’
      in relation to the violence;

    2. Add the requirement that the person urging the violence has the intention
      that the force or violence will occur;

    3. Add ‘national origin’ to the distinguishing features of a group
      for the purpose of the offence;

    4. Extend the offence so that it covers the situation where a person urges
      another person, as distinct from another group, as the offence currently
      provides; and

    5. Clarify where a group is urged to use force or violence against another
      group, only the targeted group needs to be distinguished by race, religion,
      nationality, national origin or political
      opinion.[18]

  4. The Commission generally supports the proposed changes and notes they are
    consistent with the recommendations of the
    ALRC.[19] The Commission
    recommends, however, that groups distinguished by ethnic origin should also be
    included in the provisions.

(a) Intention
to urge the use of force or violence

  1. Section 80.2(5) does not currently provide that it is necessary to prove the
    person intended to urge the use of force or violence. The Commission agrees it
    is appropriate to clarify that the fault element in relation to the urging is
    intention.

(b) Intention
that the force or violence will occur

  1. At present, it is not necessary to prove that the person intended that the
    force or violence would occur. The conduct covered by the offence is accordingly
    expansive. The Commission agrees that by adding the requirement of intention
    that force or violence be carried out, the offence will be appropriately
    narrowed.

(c) Including
‘national origin’ as a distinguishing feature

  1. The features by which a group that is the target of force or violence may be
    distinguished do not currently include ‘national origin’. The
    Commission agrees that there may be people who are targets of violence because
    of features that do not fall within those identified in the section. For
    example, people who are Australian citizens but who also identify with a
    particular national community or a more broadly based community such as one
    based on ethnicity.

  2. The Commission supports the proposal to include ‘national
    origin’ in the section. Further the Commission submits that the section
    should also extend to groups distinguished on the basis of their ethnicity.

  3. Australia’s obligations under Article 4(a) of International Covenant
    on the Elimination of all Forms of Racial Discrimination (ICERD) require it to
    create an offence of incitement of violence against groups on the basis of race,
    colour and ethnic origin. The Racial Discrimination Act 1975 (Cth) (RDA)
    which substantially implements Australia’s obligations under ICERD also
    extends the prohibition on discrimination to the ground of ‘ethnic
    origin’.

  4. Accordingly, ss 80.2A and B should be extended to violence that targets
    groups or members of groups distinguished by ethnic origin.

  5. The addition of both ‘national origin’ and ‘ethnic
    origin’ to the grounds covered by the offence is consistent with the Crimes Act Amendment (Incitement to Violence) Bill 2005 introduced by the
    government whilst it was on 5 December 2005 in opposition.

(d) Urging
an individual to use force or violence

  1. The offence in s 80.2(5) is currently directed at the urging of groups to
    use force or violence and does not apply when it is an individual that is being
    so urged. The Commission agrees that a distinction should not be drawn between
    the urging of violence by a group and the urging of violence by an individual.
    The conduct that should be targeted is the urging of violence by anyone in the
    relevant circumstances. Extending the ambit of the offence to cover the
    situation where a single person is being urged to use the force or violence is
    an appropriate measure to protect the rights of those being
    targeted.

Recommendation 2: The term ‘ethnic
origin’ be added to section 80.2A(1)(c) and the proposed section
80.2B(1)(c) so that a group may be distinguished by ‘race, religion,
nationality, national origin, ethnic origin or political opinion’.

5.3 Urging
violence against an individual

  1. The discussion paper proposes the introduction of a new offence of urging
    violence against an individual. The proposed offence is in the same terms as
    that of urging violence against a group except that the target of the force or
    violence is a single person within a group which is distinguished by one of the
    listed features.

  2. The Commission supports the introduction of an offence where a person is the
    subject of force or violence because they are a member of a group which is
    distinguished by race, religion, nationality, national origin or political
    opinion. As indicated above, the Commission also believes it is appropriate to
    extend the bases upon which the group is distinguished to include ‘ethnic
    origin’.

  3. The Commission has consistently called for a comprehensive regime of
    Commonwealth legislation designed to prohibit acts of racial or religious
    violence in order to fulfil Australia’s obligations under international
    law,[20] particularly:

    1. Article 4 of ICERD which requires that there be an offence of incitement to
      violence or discrimination against groups of another colour or ethnic origin,
      punishable by law; and

    2. Article 20 of International Covenant on Civil and Political Rights (ICCPR)
      which requires any advocacy of national, racial or religious hatred that
      constitutes incitement hostility or violence be prohibited by law.

  4. The Commission supports the introduction of an
    offence directed at prohibiting violence against individuals in these
    circumstances. However, it has some concerns regarding the location of the
    offence within Chapter 5 of the Criminal Code which is entitled
    ‘the Security of the Commonwealth’ and contains the bulk of the
    Commonwealth’s anti-terrorism provisions. The Commission believes that
    intergroup violence should be understood as separate and distinct from acts of
    terrorism. The organisation of the Criminal Code should reflect this.
    Further consideration should be given to relocating the urging violence offences
    to another Chapter of the Criminal
    Code.[21]

5.4 Defence
to acts of treason and urging violence for acts done in good faith

  1. The discussion paper proposes to amend s 80.3 of the Criminal Code to
    include additional factors to which the court may have regard to when
    considering if a person has a ‘good faith’ defence to the offences
    of urging violence.[22]

  2. Currently, there is a defence available to those who commit an offence of
    treason under s 80.1 and sedition (urging violence) under s 80.2 of the Criminal Code. The defence in s 80.3 is available where the acts were
    done in defined circumstances which are broadly referred to as being done in
    ‘good faith’. Subsection 80.3(2) sets out various matters which the
    court may have regard to when considering the defence. It is proposed to add an
    additional subsection which will set out a number of factors to which the court
    may have regard when considering a defence to the urging violence offences
    only.[23]

  3. The additional factors are centred around works of expression such as art,
    publications and public statements.

  4. The proposal is designed to overcome the concerns raised regarding the
    breadth of the urging violence offences and their imposition on the right to
    freedom of expression. In their current form the urging violence offences
    inappropriately capture legitimate activities and restrict the right to freedom
    of expression.[24]

  5. The Commission supports the intent behind the proposed amendment but
    believes it would be better to protect the right to freedom of expression by
    amending the offences so that legitimate conduct is not prohibited rather than
    relying on a defence to excuse the conduct.

  6. The Commission supports the ALRC’s recommendation that the offence be
    reframed to obviate the need for a defence to protect legitimate freedom of
    expression.[25] The ALRC proposed
    that s 80.2 should be amended to provide that, the same factors as are proposed
    to be inserted as the new subsection 80.3(2), should be taken into account by
    the court when determining whether a person intended that the urged force or
    violence would
    occur.[26]

Recommendation
3: Recommendation 12-2 the ALRC report, that Section 80.2 of the Criminal
Code be amended, be implemented as it was proposed.

6 Amendment
to the Definition of Terrorist Acts

6.1 Broadening
of the extent of ‘harm’ in the definition of ‘terrorist
act’

  1. The discussion paper suggests that the definition of ‘terrorist
    act’ in s 100.1(2) of the Criminal Code be extended to cover any
    serious harm rather than just physical harm.

  2. The Commission agrees that there is no relevant basis for distinguishing
    between types of harm that may arise from terrorist acts. Psychological harm is
    a very real outcome of terrorist acts. At the same time the Commission
    recognises the breadth of activity and conduct that is prohibited by virtue of
    the definition of ‘terrorist act’ and that any broadening of that
    definition should be carefully scrutinised. In this regard the Commission notes
    the limitations placed on the definition by the section itself,
    notably:

    1. the need for it to be serious harm;

    2. the harm must be caused in circumstances where the person doing the act must
      have the intention of advancing a political, religious or ideological cause;
      and

    3. the harm is not caused by an act or threat done as advocacy, protest,
      dissent or industrial action and in that context was not done with intent to
      cause the harm.

  3. The Commission believes that with these qualifiers the broadening of the
    definition to capture those terrorist acts that cause serious harm other than
    physical harm is appropriate.

6.2 Threat
of action

  1. The definition of ‘terrorist act’ in s 100.1 of the Criminal
    Code     currently includes ‘threat of action’. The discussion paper
    notes the problem that has been identified by the inclusion of threats in the
    current definition – namely that it may require that the threat itself
    cause serious harm (rather than the offence simply being a threat to do an act
    that would cause serious
    harm).[27]

  2. The discussion paper proposes to resolve the uncertainties surrounding the
    inclusion of ‘threat of action’ in the definition by adding to each
    of the items in the list of the effects, the words ‘or is likely to
    cause’ so that each effect will include the likelihood that it will occur.
    The Commission is of the view that rather than clarifying the definition, the
    proposed amendment compounds the uncertainty.

  3. The proposed wording of the section includes acts that are not threats and
    do not actually cause harm, but are ‘likely to cause harm’. To the
    extent that failed terrorist acts should be criminalised, these will fall within
    the provisions of the Criminal Code dealing with
    attempts.[28] This amounts to a
    broadening of the definition and therefore extends the ambit of the many
    offences which have reference to it.

  4. The Commission therefore opposes the proposed amendment and remains of the
    view, shared by the Security Legislation Review Committee (the Sheller
    Committee)[29] and the
    PJCIS[30] that the reference to
    ‘threat’ in the definition of ‘terrorist act’ is
    confusing and should be removed, and that a separate offence of threatening to
    commit a terrorist act should be created.

  5. The discussion paper suggests that removing ‘threat of action’
    from the definition of terrorist act ‘dilutes the policy focus of
    criminalising threat of action within Division
    101’.[31]

  6. The Commission does not agree. A distinct threat offence could be included
    in Div 101 of the Criminal Code as recommended by SLRC and PJCIS without
    any dilution of policy focus or
    intent.[32] As is recognised by both
    the SLRC and PJCIS committees and in the discussion paper, the commission of an
    act and the threat to commit the act are conceptually distinct. They should be
    treated as such.

Recommendation 4: The words ‘threat
of action’ be removed from the definition of ‘terrorist act’
in section 100.1(1) of the Criminal Code and a separate offence of
threatening to commit a terrorist act be created in Div 101 of the Criminal
Code.

7 Terrorism
Hoax

  1. The discussion paper proposes to create a new and separate offence of
    terrorism hoax. A person will commit such an offence if they engage in conduct
    with the intention of inducing a false belief, in any person, that a terrorist
    act has occurred, is occurring or is likely to
    occur.[33]

  2. The Commission acknowledges that a separate hoax offence may be justified in
    circumstances where the hoax is made with the intention of causing serious harm
    or damage to property and with the intention of coercing, intimidating or
    influencing either governments, public authorities or significant sections of
    the public. The Commission is however, concerned that the proposed offence will
    capture an extraordinary breadth of ‘hoaxes’ including those without
    any of the intention elements ordinarily required in relation to a terrorist
    act. The ambit of the proposed offence will potentially limit the right to
    freedom of expression provided for in article 19 of the International
    Covenant on Civil and Political Rights     (ICCPR).[34] The offence may
    capture misguided pranks played on a single person or a very small section of
    the public where there is no resulting fear, harm or damage. For example
    teenagers playing a prank on their parents about a supposed terrorist act that
    has already occurred could be included. The Commission’s view is that it
    is not appropriate to criminalise such conduct.

Recommendation 5: The hoax offence that is proposed to be inserted in the Criminal Code be amended so as to limit the nature of the conduct that is captured.

8 Definition
of ‘advocates’ in respect of the doing of a terrorist act by an
organisation – listing of terrorist organisations

  1. Section 102.1 of the Criminal Code allows for an organisation to be
    proscribed as a terrorist organisation where it advocates doing a terrorist act.
    ‘Advocates’ includes praising a terrorist act in circumstances where
    there is a ‘risk’ that such praise might have the effect of leading
    a person to engage in a terrorist act. The provision limits the right to freedom
    of expression provided for in article 19 of the ICCPR.

  2. The discussion paper proposes to amend ‘risk’ to
    ‘substantial
    risk’.[35]

  3. The amendment is proposed to overcome concerns recognised by the Sheller
    Committee and PJCIS regarding the breadth of the circumstances in which an
    organisation will be found to have advocated a terrorist act and therefore be
    liable for proscription under s102.1(2)(b) of the Criminal
    Code.[36]

  4. The ambit of the section in its current form means that an organisation
    could be found to be advocating a terrorist act when there is the slightest risk
    that a person might engage in a terrorist act as a result of praise of a
    terrorist act.

  5. The Commission supports the amendment so that the circumstances in which an
    organisation may be found to have advocated the doing of a terrorist act are
    more confined and the limitation placed on the right to freedom of expression is
    reduced.

9 Offences
in relation to terrorist organisations

9.1 Offence
of providing support to a terrorist organisation

  1. In relation to the offence of providing support to a terrorist organisation
    in section 102.7 of the Criminal Code, the discussion paper
    proposes to amend the offence to require that the support provided must be
    ‘material’ support.[37] The Commission supports this amendment.

  2. As it stands the potential meaning of the word ‘support’ in the
    context of this offence may be inappropriately broad. As ‘support’
    is not defined in the Criminal Code it could include indirect support
    which could in turn include conduct such as the publication of views favourable
    to the organisation.[38] This may
    disproportionally restrict the right to freedom of expression. By requiring that
    the support is material support, the scope of the offence will be narrowed.

  3. It is also proposed to insert a new subsection 102.7(aa) setting out that
    the material support must be provided by the person with the intention that the
    support help the organisation engage in a terrorist act. Currently there is no
    requirement that the person providing the support has such specific intention,
    giving the offence an unduly broad scope. The Commission also supports this
    amendment.

9.2 Offence
of providing training to or receiving training from a terrorist organisation

  1. Section 102.5 of the Criminal Code makes it an offence to provide
    training to a terrorist organisation. The discussion paper proposes amendments
    to address concerns that the offence may apply to legitimate activities such as
    those provided by humanitarian aid
    organisations.[39]

  2. The amendment proposed is a scheme of ministerial authorisation for aid
    organisations. This will exempt those organisations from the offences and apply
    when the Attorney-General is satisfied that the benefits to the community
    outweigh any benefit that could be received by a terrorist organisation as a
    result of that aid.[40]

  3. It is proposed that such authorisation can be revoked and cannot last for
    more than 3 years.

  4. While the Commission recognises that the proposed scheme is an improvement
    on the current position, it has a number of significant concerns with the
    continued scope of the offence.

  5. First, the offence continues to apply to all training, even where such
    training is not connected with, intended or likely to assist with the commission
    of terrorist acts. It therefore covers medical or humanitarian training.

  6. The Sheller Committee recommended that the offence in s 102.5 be urgently
    redrafted and that it should be an element of the offence that training is
    either connected with a terrorist act or that the training is such that it would
    reasonably prepare the organisation, or the person receiving the training, to
    engage in, or assist with, a terrorist
    act.[41] The Commission supports
    that recommendation as it would ensure that the offence is properly
    limited.

  7. Second, the ministerial authorisation scheme is unlikely to enable other
    than well-recognised intentional aid organisations to be so authorised. Many aid
    organisations will not be willing or able to make application and submit
    information sufficient to satisfy the minister of the nature and character of
    their aid delivery. There may be a number of reasons for this, including
    concerns about ensuring the safety of personnel working in communities in which
    terrorist organisations may also be present. Aid organisations may also be
    reluctant to raise the presence of a terrorist organisation in communities in
    which they provide humanitarian training for fear of exposing themselves to
    prosecution for such work.

  8. Third, the proposed authorisation scheme adds complexity to what is already
    recognised to be a complex
    section.[42] Accordingly, the
    Commission submits that it is preferable that it be redrafted to focus on
    training that supports terrorist activities.

Recommendation 6: Section 102.5 of the Criminal Code be redrafted so that it is not an
offence to provide training to a terrorist organisation if that training does
not have any connection with a terrorist act.

9.3 Offences
regarding terrorist organisation not dealt with by the discussion paper or
scheduled for review

  1. There are a number of provisions relating to terrorist organisation offences
    about which concerns have previously been raised and recommendations made, which
    have not been addressed in the discussion paper.

  2. Although the government has supported some of the recommendations of the
    PJCIS and SLRC in relation to the offences relating to terrorist organisations,
    there are a number of recommendations of both of these committees to which the
    government has either not responded or is
    opposed.[43] These provisions are
    also not scheduled for review.

  3. The Commission is particularly concerned that recommendations concerning the
    following offences are not dealt with in the discussion paper and not scheduled
    for review:

    • intentionally being a member of a terrorist
      organisation[44]

    • training or receiving training from a terrorist
      organisation[45]

    • getting funds to or from a terrorist
      organisation[46]

    • providing support to a terrorist
      organisation[47]

    • financing a terrorist
      organisation.[48]

The
Commission believes that the recommendations of the Sheller Committee and the
PJCIS in relation to these offences should be implemented as soon as
possible.

10 Pre-charge
detention

10.1 Threshold
for state of mind of arresting officer

  1. The discussion paper seeks comment on the inconsistency between the state of
    mind of that is required to be held by the relevant officer in ss 3W(1),
    23C(2)(b) and s23CA(2)(b) of the Crimes Act 1914 (Cth) (Crimes
    Act).

  2. Section 3W(1) allows an officer to arrest a person without warrant if the
    officer believes on reasonable grounds that the person committed the offence.
    Sections 23C(2)(b) and s23CA(2)(b) provide a power to an arresting officer to
    continue to hold a person under arrest where they reasonably suspect that the
    person committed an offence other than the one for which they were arrested.

  3. There does not appear to be any valid reason to distinguish between the
    power to arrest without warrant (under s 3W(1)) in relation to the first offence
    and the power to maintain that arrest (under s23C(2)(b) and s23CA(2)(b)), still
    without warrant, for the second offence.

  4. The Commission therefore recommends that the 23C(2)(b) and s23CA(2)(b) be
    amended to provide that the relevant officer must believe on reasonable grounds
    that the person committed the other offence. The higher standard is preferable
    to ensure the least interference with the right to freedom from arbitrary
    detention provided for in article 9(1) of the ICCPR.

10.2 Length
of investigation period

  1. Part 1C, Division 2 of the Crimes Act contains various provisions in
    relation to the powers of detention of persons arrested for Commonwealth
    offences. Prior to the introduction of Part 1C of the Crimes Act, the common law
    required that once a person was arrested, police had no power to detain that
    person while they conducted further investigations. That meant, the
    investigations had to be conducted prior to the arrest. Once arrested, the
    person had to be charged. The common law position was modified, by the
    introduction of Part 1C, in order to assist law enforcement.

  2. Pursuant to article 9(1) of the ICCPR, a person has the right not to be
    arbitrarily detained. In order to avoid violation of this right, the length of
    time for which a person can be detained must be limited and proportionate.

  3. Pursuant to s 23CA of the Crimes Act a person arrested for a terrorism
    offence can be detained until the ‘investigation period’ expires.
    Under s 23CA(4) of the Crimes Act the investigation period expires 4 hours after
    the arrest, unless it is extended under s 23DA.

  4. Section 23DA allows an officer to apply for an extension of the
    investigation period. Section 23DA(7) provides that any number of applications
    can be made for extension of the investigation period but the total time by
    which the investigation period can be extended is 20 hours.

  5. Therefore, the maximum investigation period is 24 hours. However, certain
    categories of time are disregarded when calculating when the 24 hours expires.
    These categories of time are set out in s 23CA(8)(a) to (m). They include such
    things as time in which a person sleeps, receives medical attention, is
    intoxicated etc.[49] It also
    includes time in which certain forensic activities and other investigations are
    conducted.[50] Under s23CA(8)(m)
    time can be disregarded if it is time during which questioning of the person is
    reasonably suspended or delayed and is within a period specified under s 23CB of
    the Crimes Act.

  6. Section 23CB allows an officer to bring an application to have time
    specified by a magistrate as disregarded time. At present, there is no limit to
    the amount of time which can be disregarded nor on the number of times an
    application can be made.

  7. This means that in fact the investigation period is currently unlimited.

  8. The discussion paper proposes to limit the total amount of time which can be
    specified by a magistrate under s23CA(8)(m) to a maximum of 7 days. It does not
    propose to place a limit on the other types of disregarded time in s
    23CA.[51]

  9. Whilst the period of 7 days proposed as a cap appears to have arisen as a
    result of a comment in the Clarke
    report,[52] the comment was made in
    the context of a much broader discussion. As the Clarke report identifies, the
    time provided for in s 23CA(8)(m) is entirely different in character
    to that in s 23CA(8)(a) – (l). It is ‘additional investigation
    time’.[53]

  10. The Commission is of the view that there is duplication between an
    application under the s 23CB and s 23DA in that both are applications for
    further time in which to conduct investigations. This was recognised in the
    Clarke report where was proposed that ‘s23CA(8)(m) and 23CB should be
    removed from the Crimes Act: in lieu thereof all applications for extended time
    would be made under s 23DA, with a reconsideration of the time
    limit’.[54]

  11. The reasoning in the Clarke report in relation to the nature of the time
    provided for in subparagraph 23CA(8) (m) can equally be applied to subparagraphs
    23CA(8)(f), (g), (h), (i), (k) and (l) which relate to time in which various
    other forensic and investigation activities occur. These are all in the nature
    of extensions to the investigation period, and should be contrasted against the
    subparagphs 23CA(8)(a), (b), (c), (d), (e) and (j) which relate to time to allow
    the arrested person to do certain things or access certain services.

Recommendation 7: Part 1C, Division 2 of the Crimes Act be
amended so that:

    1. Disregarded time be limited in nature to that in which the person under
      arrest is accessing services such as; legal representation, interpreters
      and medical practitioners and time in which the arrested person is resting, recuperating, eating, sleeping etc and time related to these
      times;
    2. The maximum time by which the investigation period can be extended pursuant
      to s23DA(7) is 4 days.

 

  1. In the alternative to the above recommendation, the Commission recommends
    that there be a 3 day cap on all time disregarded under s 23CA(8).

  2. One further amendment that is proposed in the discussion paper is to require
    that an application to either have time specified as disregarded time or to
    extend the investigation period must be brought before a magistrate. Currently,
    a justice of the peace or a bail justice may also hear the applications. The
    Commission supports the recommendation to amend the legislation to ensure that
    the application is heard by a magistrate. This change offers better protection
    of the prohibition on arbitrary detention in article 9(1) of the
    ICCPR.

11 Entry
to premises without warrant

  1. Part 3 of the discussion paper inserts a new power of entry to premises. The
    new section, 3UEA of the Crimes Act allows a police officer to enter premises if
    they suspect on reasonable grounds that a thing relevant to a terrorism offence
    is on the premises, it is necessary to search for and seize the thing to prevent
    it from being used in connection with a terrorism offence and it is necessary to
    do this without a warrant because there is a serious and imminent threat to a
    persons life, health or
    safety.[55]

  2. The new section further empowers the officer to:

    1. secure the premises until they can obtain a warrant if, during the course of
      their search, they find another thing that the officer suspects on reasonable
      grounds to be relevant to another offence; and

    2. seize any other thing if the officer suspects on reasonable grounds that it
      is necessary to seize it to protect a persons life, health or safety and without
      warrant because the circumstances are serious and
      urgent.[56]

  3. The proposed new power is a significant infringement on an
    individual’s right to freedom from arbitrary interference with his
    privacy, family and home set out in article 17 of the ICCPR.

  4. The Commission recognises that there may be circumstances where the
    Australian Federal Police will need to enter premises where they would not have
    time to make application for a warrant, such as cases of emergency in order to
    prevent death or serious injury. The discussion paper gives two examples of laws
    which authorise entry to premises without warrant in such circumstances. Both of
    these laws require that the officers hold a belief as to the relevant
    circumstances.[57]

  5. The Commission does not agree that such entry should be allowed on the basis
    of a reasonable suspicion held by the officer but rather should require the
    officer to hold a reasonable belief that the relevant circumstances exist.
    Whilst it may be appropriate in the circumstances of obtaining a warrant to
    enable an officer to swear the information on the basis of a suspicion, it is
    not acceptable in a situation where there is no independent scrutiny of that
    information.

  6. As noted in the discussion paper, the State Laws referred to do not allow
    for the officers to search the premises once entered, nor do they allow the
    officers to secure the premises until they have obtained a warrant in relation
    to evidence of other offences found during that
    search.[58]

  7. The ambit of the proposed section is, in that regard, significantly broader
    than those in NSW and ACT laws and should be narrowed to at least the same ambit
    as those provisions.

Recommendation 8:

    1. That the proposed section regarding entry to premises without warrant be
      amended as follows:

      1. ‘suspect’ in subparagraph (1) be changed to
        ‘belief’;

      2. subparagraphs (3) and (4) be deleted; and

      3. amend subparagraph (5) to refer to a ‘serious and imminent threat to a
        persons life, health and safety’.

    2. A mechanism be established whereby the Police report on each use of this
      power, in the nature of a retrospective warrant application, such applications
      to be reviewed by the newly named PJC-Law Enforcement.

12 Oversight
of the Australian Federal Police by the PJC-Law Enforcement

  1. Chapter 5 of the discussion paper provide for the establishment of a
    Parliamentary Joint committee on Law Enforcement with the aim of enabling the
    committee to provide broad oversight of the Australian Federal Police and the
    Australian Crime Commission and examine trends and changes in criminal
    activities. It is proposed to achieve this by extending the functions of the
    existing Parliamentary Joint Committee on the Australian Crime Commission
    (PJC-ACC).[59]

  2. The Commission supports the proposal to extend the function of the PJC-ACC
    to include oversight of the Australian Federal Police in the manner
    proposed.

13 National Security
Legislative provisions not dealt with by the discussion paper

  1. A number of crucial provisions of the national security legislation regime
    do not form part of the proposed amendments. It is recognised that many of those
    provisions which have not been considered in the discussion paper have had
    alternative review mechanisms identified. These include:

    1. preventative detention orders - proposed to be reviewed by the Council of
      Australian Governments
      (COAG);[60]

    2. control orders - proposed to be reviewed by
      COAG;[61]

    3. police powers to stop, search and seize in ‘prescribed security
      zones’ and Commonwealth places - proposed to be reviewed by
      COAG;[62]

    4. proscription of terrorist organisations – proposed to be reviewed by
      COAG;[63]

    5. the powers of ASIO to collect intelligence concerning the threat of
      terrorism (including warrants to detain and question a person) – sunset
      clause for expiration in
      2016;[64]

    6. the offence of associating with terrorist organisations – proposed to
      be reviewed by the Legislation Monitor once
      established;[65] and

    7. strict liability provisions applied to serious criminal offences that
      attract the penalty of imprisonment and terrorist organisation offences
      -proposed to be reviewed by the Legislation Monitor once established .[66]

  2. The Commission is concerned that the ASIO powers to detain and question a
    person to collect intelligence are not due for review until 2016. The Commission
    recommends that these provisions be referred to the Legislation Monitor for
    review as soon as possible.

  3. There are a number of provisions of the national security legislation regime
    that are not currently set down for review. Of most concern in this regard are
    the offences relating to terrorist organisations. In particularly, membership
    of, receiving training from, getting funds to or from, providing support to and
    financing of. The Commission recommends that these measures also be referred to
    the Legislation Monitor for review as soon as
    possible.

[1] The Hon Robert McClelland MP,
Attorney General ‘Human Rights: A Moral Compass (Speech delivered at the
Lowy Institute For International Policy, Sydney, 22 May
2009).

[2] The Hon. John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November
2008).

[3] Parliamentary Joint
Committee on Intelligence and Security, Inquiry into the proscription of
‘terrorist organisations’ under the Australian Criminal Code (September 2007).

[4] Parliamentary Joint Committee on Intelligence and Security, Review of
Security and Counter Terrorism Legislation (2006).

[5] Australian Law
Reform Commission, Fighting Words: A Review of Sedition Laws in
Australia, ALRC 104 (2006).

[6] M Nowak, U.N. Covenant on civil and Political Rights – CCPR
Commentary (2nd revised edition 2005),p
360

[7] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009)
47.

[8] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009)
51.

[9] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009)
151.

[10] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 4-7.

[11] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia, ALRC 104 (2006) Recommendation 11-4 and Parliamentary Joint
Committee on Intelligence and Security Report on Review of Security and
Counter-Terrorism Legislation (2006) Recommendation
6(a).

[12] Australian Law Reform
Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC
104 (2006) Recommendation 11-4 and Parliamentary Joint Committee on Intelligence
and Security Report on Review of Security and Counter-Terrorism Legislation (2006) Recommendation
6(a).

[13] Government Response to
the Parliamentary Joint Committee on Intelligence and Security, Report on
Review of Security and Counter-Terrorism Legislation. Tabled December 2008.
At http://www.ag.gov.au (viewed 17 September
2009) and Government Response to the Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia. Tabled December
2008. At http://www.ag.gov.au (viewed 17
September 2009).

[14] Criminal
Code Act 1995 (Cth) s
80.1.

[15] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 5.

[16] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia, ALRC 104 (2006) chapter
2.

[17] Australian Law Reform
Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC
104 (2006) Recommendation
2-1.

[18] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 17-18.

[19] Australian Law Reform
Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC
104 (2006) Recommendations 9-2, 9-5, 10-2 and
10-4.

[20] Human Rights and Equal
Opportunity Commission, Racist Violence: Report of the National Inquiry into
Racist Violence in Australia (1991), Human Rights and Equal Opportunity
Commission, Article 18: Freedom of Religion and Belief (1998) and Human
Rights and Equal Opportunity Commission, Isma—Listen: National
Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004).

[21] Australian Law
Reform Commission, Fighting Words: A Review of Sedition Laws in
Australia, ALRC 104 (2006)
196-215.

[22] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 29.

[23] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 29.

[24] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 29.

[25] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia, ALRC 104 (2006) Recommendation
12-2.

[26] Australian Law Reform
Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC
104 (2006) Recommendation
12-2

[27] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 47.

[28] Criminal Code Act 1995 (Cth) s
11.

[29] Sheller Committee, Report of the Security Legislation Review Committee (2006)
Recommendations 7 and 8.

[30] Parliamentary Joint Committee on Intelligence and Security Report on Review
of Security and Counter-Terrorism Legislation (2006) Recommendation
10.

[31] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009)
49.

[32] Sheller Committee, Report of the Security Legislation Review Committee (2006)
Recommendations 7 and 8 and Parliamentary Joint Committee on Intelligence and
Security Report on Review of Security and Counter-Terrorism Legislation (2006) Recommendation 10.

[33] New s101.7 Attorney-General’s Department, National Security Legislation
Discussion Paper (August 2009)
50.

[34] International Covenant
on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into
force 23 March 1976).

[35] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 57.

[36] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 57.

[37] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 63.

[38] Sheller Committee, Report of the Security Legislation Review Committee (2006) [10.50].

[39] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 67.

[40] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 69.

[41] Sheller Committee, Report of the Security Legislation Review Committee (2006) [10.42].

[42] Parliamentary Joint Committee on Intelligence and Security Report on Review
of Security and Counter-Terrorism Legislation (2006)
[5.79].

[43] Government Response
to the Parliamentary Joint Committee on Intelligence and Security, Report on
Review of Security and Counter-Terrorism Legislation. Tabled December 2008.
At http://www.ag.gov.au (viewed 17 September
2009).Whilst the Government has not responded directly to the Sheller report, in
its response to the PJCIS Review it noted the report had taken into account the
recommendations made by the Sheller
Committee.

[44]Sheller Committee, Report of the Security Legislation Review Committee (2006) Recommendation
11 and Parliamentary Joint Committee on Intelligence and Security Report on
Review of Security and Counter-Terrorism Legislation (2006) Recommendation
15.

[45] Sheller Committee, Report of the Security Legislation Review Committee (2006) Recommendation
12 and Parliamentary Joint Committee on Intelligence and Security Report on
Review of Security and Counter-Terrorism Legislation (2006) Recommendation
16.

[46] Sheller Committee, Report of the Security Legislation Review Committee (2006) Recommendation
13.

[47] Sheller Committee, Report of the Security Legislation Review Committee (2006) Recommendation
14.

[48] Sheller Committee, Report of the Security Legislation Review Committee (2006) Recommendation
16 and Parliamentary Joint Committee on Intelligence and Security Report on
Review of Security and Counter-Terrorism Legislation (2006) Recommendation
21.

[49] Crimes Act 1914 (Cth) s 23CA(8)(d), (e) and
(j)

[50] Crimes Act 1914 (Cth) s 23CA(8)(g), (k) and
(l)

[51] Attorney-General’s
Department, National Security Legislation Discussion Paper (August 2009)
127.

[52] The Hon. John Clarke
QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November 2008) 249.

[53] The
Hon. John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed
Haneef (November 2008)
246.

[54] The Hon. John Clarke
QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November 2008) 246.

[55] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009)
152-153.

[56] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 152.

[57] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 151.

[58] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 151.

[59] Attorney-General’s Department, National Security Legislation Discussion
Paper (August 2009) 323.

[60] Details and process for Council of Australian Governments’ (COAG) review
of counter-terrorism legislation’, Council of Australian
Governments’ Meeting (10 February 2006), Attachment G. At http://www.coag.gov.au/coag_meeting_outcomes/2006-02-10/docs/attachment_g_counter_terrorism.rtf (viewed 31 August 2009).

[61] COAG, above.

[62] COAG,
above.

[63] Parliamentary Joint
Committee on Intelligence and Security, Inquiry into the proscription of
‘terrorist organisations ’under the Australian Criminal Code. (September 2007) Recommendation 7, accepted by Government in its Response to
that report. Government Response to the Parliamentary Joint Committee on
Intelligence and Security, Inquiry into the proscription of ‘terrorist
organisations ’under the Australian Criminal Code. Tabled December
2008. At http://www.ag.gov.au (viewed 17
September 2009).

[64] Australian Security Intelligence Organisation Act 1979 (Cth) s
34ZZ.

[65] Parliamentary Joint
Committee on Intelligence and Security Report on Review of Security and
Counter-Terrorism Legislation (2006) Recommendation 19. Accepted by the
government in its response to that report. Government Response to the
Parliamentary Joint Committee on Intelligence and Security, Report on Review
of Security and Counter-Terrorism Legislation. Tabled December 2008. At http://www.ag.gov.au (viewed 17 September
2009).

[66] Parliamentary Joint
Committee on Intelligence and Security Inquiry into the proscription of
‘terrorist organisations ’under the Australian Criminal Code. (September 2007) Recommendation 5. Accepted by the government in its
response to that report. Government Response to the Parliamentary Joint
Committee on Intelligence and Security, Inquiry into the proscription of
‘terrorist organisations ’under the Australian Criminal Code. (September 2007). Tabled December 2008. At http://www.ag.gov.au (viewed 17 September 2009)
and Parliamentary Joint Committee on Intelligence and Security Report on
Review of Security and Counter-Terrorism Legislation (2006) Recommendation
19. Accepted by the government in its response to that report. Government
Response to the Parliamentary Joint Committee on Intelligence and Security, Report on Review of Security and Counter-Terrorism Legislation. Tabled
December 2008. At http://www.ag.gov.au (viewed 17 September 2009).