Federal Register of Legislation - Australian Government

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A Bill for an Act to enhance the Commonwealth’s ability to combat terrorism and treason, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced HR 12 Mar 2002

Security Legislation Amendment (Terrorism) Bill 2002
First Reading

2002

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Security Legislation Amendment (Terrorism) Bill 2002

No. , 2002

(Attorney-General)

A Bill for an Act to enhance the Commonwealth's ability to combat terrorism and treason, and for related purposes

Contents

1       Short title 1

2       Commencement 1

3       Schedule(s) 3

Schedule 1--Amendments relating to treason and terrorism       4

Criminal Code Act 1995       4

Crimes Act 1914       15

Migration Act 1958       17

Schedule 2--Amendments relating to air security officers       18

Australian Protective Service Act 1987       18

Crimes (Aviation) Act 1991       18

A Bill for an Act to enhance the Commonwealth's ability to combat terrorism and treason, and for related purposes

The Parliament of Australia enacts:

1 Short title
        This Act may be cited as the Security Legislation Amendment (Terrorism) Act 2002.

2 Commencement
       (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent


2. Schedule 1, item 1

The day on which this Act receives the Royal Assent, subject to subsection (3)


3. Schedule 1, item 2

The day after this Act receives the Royal Assent


4. Schedule 1, item 3

The day after this Act receives the Royal Assent, subject to subsection (4)


5. Schedule 1, items 4 and 5

Immediately after the start of the day after this Act receives the Royal Assent


6. Schedule 1, item 6

The day after this Act receives the Royal Assent, subject to subsection (5)


7. Schedule 1, item 7

Immediately after the commencement of item 2 of Schedule 1, subject to subsection (6)


8. Schedule 1, items 8 to 18

The day after this Act receives the Royal Assent


9. Schedule 2, item 1

The later of:

(a) the commencement of Division 72 of the Criminal Code; and

(b) the start of the day on which this Act receives the Royal Assent


10. Schedule 2, item 2

At the same time as Division 101 of the Criminal Code commences


11. Schedule 2, items 3 and 4

The 28th day after the day on which this Act receives the Royal Assent


Note: 
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     This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

       (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

       (3) If either the Criminal Code Amendment (Espionage and Related Offences) Act 2002 or the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, the provision covered by item 2 of the table does not commence at all.

       (4) If the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, the provision covered by item 4 of the table does not commence at all.

       (5) If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 commences before or at the same time as item 2 of Schedule 1 to this Act, then item 6 of Schedule 1 to this Act does not commence at all.

       (6) If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 does not commence before or at the same time as item 2 of Schedule 1 to this Act, then item 7 of Schedule 1 to this Act does not commence at all.

3 Schedule(s)
        Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendments relating to treason and terrorism

Criminal Code Act 1995

1 The Schedule (after Chapter 4 of the Criminal Code)

Insert:

Chapter 5--The integrity and security of the Commonwealth

Note:       If either the Criminal Code Amendment (Espionage and Related Offences) Act 2002 or the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(3) of this Act.

2 The Schedule (Chapter 5 of the Criminal Code)

Insert in the appropriate numerical position:

Part 5.1--Treason

Division 80--Treason

80.1 Treason
       (1) A person commits an offence, called treason, if the person:

       (a) causes the death of the Sovereign, the heir apparent of the Sovereign or the Consort of the Sovereign; or

       (b) causes harm to the Sovereign resulting in the Sovereign's death; or

       (c) causes harm to the Sovereign, or imprisons or restrains the Sovereign; or

       (d) levies war, or does any act preparatory to levying war, against the Commonwealth; or

       (e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:

       (i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

       (ii) specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or

       (f) engages in conduct that assists by any means whatever, with intent to assist:

       (i) another country; or


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       (ii) an organisation;

        that is engaged in armed hostilities against the Australian Defence Force; or

       (g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or

       (h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.

Penalty:       Imprisonment for life.

       (2) A person commits an offence if the person:

       (a) receives or assists another person who, to his or her knowledge, has committed treason with the intention of allowing him or her to escape punishment or apprehension; or

       (b) knowing that another person intends to commit treason, does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.

Penalty:       Imprisonment for life.

       (3) Proceedings for an offence against this section must not be commenced without the Attorney-General's written consent.

       (4) Despite subsection (3):

       (a) a person may be arrested for an offence against this section; or

       (b) a warrant for the arrest of a person for such an offence may be issued and executed;

and the person may be charged, and may be remanded in custody or on bail, but:

       (c) no further proceedings may be taken until that consent has been obtained; and

       (d) the person must be discharged if proceedings are not continued within a reasonable time.

       (5) On the trial of a person charged with treason on the ground that he or she formed an intention to do an act referred to in paragraph (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that intention by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the indictment.

       (6) Section 24F of the Crimes Act 1914 applies to this section in the same way it would if this section were a provision of Part II of that Act.

       (7) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against this section.

       (8) In this section:

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

organisation means:

       (a) a body corporate; or

       (b) an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

3 The Schedule (at the end of Chapter 5 of the Criminal Code)

Add:

Part 5.3--Terrorism

Division 100--Preliminary

100.1 Definitions
       (1) In this Part:

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

funds means:

       (a) property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and

       (b) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.

organisation means:

       (a) a body corporate; or

       (b) an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.


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terrorist act means action or threat of action where:

       (a) the action falls within subsection (2); and

       (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;

but does not include:

       (c) lawful advocacy, protest or dissent; or

       (d) industrial action.

       (2) Action falls within this subsection if it:

       (a) involves serious harm to a person; or

       (b) involves serious damage to property; or

       (c) endangers a person's life, other than the life of the person taking the action; or

       (d) creates a serious risk to the health or safety of the public or a section of the public; or

       (e) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

       (i) an information system; or

       (ii) a telecommunications system; or

       (iii) a financial system; or

       (iv) a system used for the delivery of essential government services; or

       (v) a system used for, or by, an essential public utility; or

       (vi) a system used for, or by, a transport system.

       (3) In this Division:

       (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

       (b) a reference to the public includes a reference to the public of a country other than Australia.

100.2 Constitutional basis for offences
       (1) An action, or threat of action, gives rise to an offence under this Part if it is an action or threat of action in relation to which the Commonwealth has power to create the offence.

       (2) Without limiting the generality of subsection (1), an action, or threat of action, gives rise to an offence under this Part to the extent that:

       (a) the action affects, or if carried out would affect, the interests of:

       (i) the Commonwealth; or

       (ii) an authority of the Commonwealth; or

       (iii) a constitutional corporation; or

       (b) the threat is made to:

       (i) the Commonwealth; or

       (ii) an authority of the Commonwealth; or

       (iii) a constitutional corporation; or

       (c) the action is carried out by, or the threat is made by, a constitutional corporation; or

       (d) the action takes place, or if carried out would take place, in a Commonwealth place; or

       (e) the threat is made in a Commonwealth place; or

       (f) the action involves, or if carried out would involve, the use of a postal service or other like service; or

       (g) the threat is made using a postal or other like service; or

       (h) the action involves, or if carried out would involve, the use of an electronic communication; or

       (i) the threat is made using an electronic communication; or

       (j) the action disrupts, or if carried out would disrupt, trade or commerce:

       (i) between Australia and places outside Australia; or

       (ii) among the States; or

       (iii) within a Territory, between a State and a Territory or between 2 Territories; or

       (k) the action disrupts, or if carried out would disrupt:

       (i) banking (other than State banking not extending beyond the limits of the State concerned); or

       (ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

       (l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

       (m) the threat is one in relation to which the

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Commonwealth is obliged to create an offence under international law; or

       (n) the action takes place, or if carried out would take place, outside Australia; or

       (o) the threat is made outside Australia.

Note:       If the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which this Act receives the Royal Assent, this item does not commence at all. See subsection 2(4) of this Act.

4 The Schedule (after Division 100 of the Criminal Code)

Insert:

Division 101--Terrorism

101.1 Terrorist acts
       (1) A person commits an offence if the person engages in a terrorist act.

Penalty:       Imprisonment for life.

       (2) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

101.2 Providing or receiving training connected with terrorist acts
       (1) A person commits an offence if:

       (a) the person provides or receives training in the making or use of firearms, explosives or chemical, biological, radiological or nuclear weapons; and

       (b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty:       Imprisonment for life.

       (2) Absolute liability applies to paragraph (1)(b).

       (3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

       (4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Note:       A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

       (5) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

101.3 Directing organisations concerned with terrorist acts
       (1) A person commits an offence if the person directs the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty:       Imprisonment for life.

       (2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

       (3) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

101.4 Possessing things connected with terrorist acts
       (1) A person commits an offence if:

       (a) the person possesses a thing; and

       (b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty:       Imprisonment for life.

       (2) Absolute liability applies to paragraph (1)(b).

       (3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

       (4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Note:       A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

       (5) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

101.5 Collecting or making documents likely to facilitate terrorist acts

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       (1) A person commits an offence if:

       (a) the person collects or makes a document; and

       (b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty:       Imprisonment for life.

       (2) Absolute liability applies to paragraph (1)(b).

       (3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

       (4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Note:       A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

       (5) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

101.6 Other acts done in preparation for, or planning, terrorist acts
       (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty:       Imprisonment for life.

       (2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

       (3) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

Division 102--Proscribed organisations

Subdivision A--Definitions

102.1 Definitions
        In this Division:

member of an organisation includes:

       (a) a person who is an informal member of the organisation; and

       (b) a person who has taken steps to become a member of the organisation; and

       (c) in the case of an organisation that is a body corporate--a director or an officer of the body corporate.

proscribed organisation means an organisation in relation to which a declaration under section 102.2 is in force.

the Commonwealth, when used in a geographical sense, includes the Territories.

Subdivision B--Declarations of proscribed organisations

102.2 Attorney-General may make declarations
       (1) The Attorney-General may make a declaration in writing that an organisation is a proscribed organisation if the Attorney-General is satisfied on reasonable grounds that one or more of the following paragraphs apply in relation to the organisation:

       (a) if the organisation is a body corporate--the organisation has committed, or is committing, an offence against this Part (whether or not the organisation has been charged with, or convicted of, the offence);

       (b) a member of the organisation has committed, or is committing, an offence against this Part on behalf of the organisation (whether or not the member has been charged with, or convicted of, the offence);

       (c) the declaration is reasonably appropriate to give effect to a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation;

       (d) the organisation has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country.

       (2) The Attorney-General must publish a declaration in:

       (a) the Gazette; and

       (b) a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory.

       (3) A declaration comes into force at the time it is

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published in the Gazette and stays in force until:

       (a) it is revoked; or

       (b) the beginning of a day (if any) specified in the declaration as the day the declaration ceases to be in force.

       (4) The Attorney-General may delegate powers and functions under this section to a Minister.

102.3 Revocation of declarations
       (1) The Attorney-General must revoke a declaration made under section 102.2 in relation to an organisation if the Attorney-General is satisfied on reasonable grounds that none of the paragraphs in subsection 102.2(1) apply in relation to the organisation.

       (2) The Attorney-General may revoke a declaration made under section 102.2.

       (3) The Attorney-General must publish a revocation in:

       (a) the Gazette; and

       (b) a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory.

       (4) A revocation comes into force at the time it is published in the Gazette.

       (5) The Attorney-General may delegate powers and functions under this section to a Minister.

Subdivision C--Offences in relation to proscribed organisations

102.4 Directing activities etc. of proscribed organisations
       (1) A person commits an offence if the person:

       (a) directs the activities of a proscribed organisation; or

       (b) directly or indirectly receives funds from, or makes funds available to, a proscribed organisation; or

       (c) is a member of a proscribed organisation; or

       (d) provides training to, or trains with, a proscribed organisation; or

       (e) assists a proscribed organisation.

Penalty:       Imprisonment for 25 years.

       (2) Strict liability applies to the element of the offence against subsection (1) that the organisation is a proscribed organisation.

       (3) It is a defence to a prosecution of an offence against subsection (1) if the defendant proves that the defendant neither knew, nor was reckless as to whether:

       (a) the organisation, or a member of the organisation, had committed, or was committing, an offence against this Part; and

       (b) there was a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation and that decision was in force at the time the person engaged in the conduct constituting the offence; and

       (c) the organisation had endangered, or was likely to endanger, the security or integrity of the Commonwealth or another country.

Note:       The defendant bears a legal burden in relation to the matters in subsection (3). See section 13.4.

       (4) It is a defence to a prosecution of an offence against paragraph (1)(c) if the defendant proves that the defendant took all reasonable steps to cease to be a member of the organisation as soon as practicable after the organisation became a proscribed organisation.

Note:       The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4.

       (5) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1).

5 Application

The Attorney-General may make a declaration under section 102.2 of the Criminal Code after the commencement of that section in relation to:

       (a) acts or omissions committed before or after the commencement of that section; or

       (b) decisions of the Security Council of the United Nations made before or after the commencement of that section.

Crimes Act 1914

6 Subsection 4J(7)


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Repeal the subsection, substitute:

       (7) This section does not apply in relation to an offence against:

       (a) section 24AA, 24AB or 78 or subsection 79(2) or (5) of this Act; or

       (b) section 80.1 of the Criminal Code.

Note:       If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 commences before or at the same time as item 2 of Schedule 1 to this Act, then this item does not commence at all. See subsection 2(5) of this Act.

7 Subsection 4J(7)

Repeal the subsection, substitute:

       (7) This section does not apply to an offence against:

       (a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or

       (b) section 80.1 or 91.1 of the Criminal Code.

Note:       If item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 does not commence before or at the same time as item 2 of Schedule 1 to this Act, then this item does not commence at all. See subsection 2(6) of this Act.

8 Section 24

Repeal the section.

9 Subsection 24AC(1)

Omit "24,".

10 Subparagraph 24F(2)(b)(ii)

Omit "paragraph 24(1)(d)", substitute "paragraph 80.1(1)(e) of the Criminal Code".

11 After paragraph 24F(2)(b)

Insert:

       (ba) with intent to assist:

       (i) another country; or

       (ii) an organisation (within the meaning of section 100.1 of the Criminal Code);

        that is engaged in armed hostilities against the Australian Defence Force;

12 Paragraph 24F(2)(c)

After "subsection 24AA(4)", insert "of this Act".

13 Paragraph 24F(2)(d)

After "paragraphs 24AA(2)(a) and (b)", insert "of this Act".

Migration Act 1958

14 Subparagraph 203(1)(c)(i)

Omit "24,".

15 After subparagraph 203(1)(c)(i)

Insert:

       (ia) an offence against section 80.1 of the Criminal Code; or

16 Subparagraph 203(1)(c)(ii)

Omit "that Act that relates to an offence mentioned in subparagraph (i)", substitute "the Crimes Act 1914 that relates to an offence mentioned in subparagraph (i) or (ia)".

17 Subparagraph 203(1)(c)(iia)

After "subparagraph (i)", insert "or (ia)".

18 Saving of proclamations

A proclamation that was in force for the purpose of paragraph 24(1)(d) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a proclamation that was in force for the purpose of paragraph 80.1(e) of the Criminal Code.

Schedule 2--Amendments relating to air security officers

Australian Protective Service Act 1987

1 After paragraph 13(2)(b)

Insert:

       (ba) an offence against Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or

2 Before paragraph 13(2)(c)

Insert:

       (bb) an offence against Division 101 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or

Crimes (Aviation) Act 1991

3 Subsection 3(1) (at the end of the definition of prescribed flight)

Add:

       ; or (c) within a State.

4 After section 8

Insert:

8A Aircraft flights within a State
        For the purposes of this Act, a flight of an aircraft is taken to be a flight within a State if:

       (a) the flight starts in the State; and

       (b) the flight ends in the State or is, when the flight starts, intended to end, in the State;

whether or not the aircraft goes, or will or may go, outside the State during the flight.