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A Bill for an Act to reform anti-terrorism laws, and for related purposes
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Registered 24 Jun 2009
Introduced Senate 23 Jun 2009

2008‑2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Anti‑Terrorism Laws Reform Bill 2009

 

No.      , 2009

 

(Senator Ludlam)

 

 

 

 

A Bill for an Act to reform anti‑terrorism laws, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—Amendments to the Criminal Code Act 1995                             3

Schedule 2—Amendments to the Crimes Act 1914                                           10

Schedule 3—Amendments to the Australian Security Intelligence Organisation Act 1979             11

Schedule 4—Repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004   13

 


A Bill for an Act to reform anti‑terrorism laws, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Anti‑Terrorism Laws Reform Act 2009.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

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                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1Amendments to the Criminal Code Act 1995

1  Section 80.2

Repeal the section.

2  Subsection 80.3(1)

Omit “Sections 80.1 and 80.2 do”, substitute “Section 80.1 does”.

3  Subsection 100.1(1) (definition of terrorist act)

Repeal the definition, substitute:

terrorist act means an action where:

                     (a)  the action falls within subsection (2) and does not fall within subsection (3) or subsection (3A); and

                     (b)  the action is done with the intention of:

                              (i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

                             (ii)  intimidating the public or a section of the public.

4  Subsections 100.1(2) and (3)

Repeal the subsections, substitute:

             (2)  Action falls within this subsection if it:

                     (a)  causes a person’s death; or

                     (b)  endangers a person’s life, other than the person taking the action; or

                     (c)  causes serious harm that is physical harm to a person; or

                     (d)  involves taking a person hostage; or

                     (e)  creates a serious risk to the health or safety of the public or a section of the public.

             (3)  Action falls within this subsection if it:

                     (a)  is advocacy, protest, dissent or industrial action; and

                     (b)  is not intended:

                              (i)  to cause serious harm that is physical harm to a person; or

                             (ii)  to cause a person’s death; or

                            (iii)  to endanger the life of a person, other than the person taking the action; or

                            (iv)  to involve taking a person hostage.

          (3A)  Action falls within this subsection if it takes place in the context of, and is associated with, an armed conflict (whether or not an international armed conflict).

          (3B)  For the purposes of this Division:

armed conflict has the same meaning it has in Division 268.

take a person hostage means:

                     (a)  to seize or detain that person; and

                     (b)  to threaten to kill, to injure, or to continue to detain, that person.

5  Section 101.4

Repeal the section.

6  Subsection 102.1(1) (before the definition of advocate)

Insert:

Advisory Committee means the Listing Advisory Committee established by section 102.1AB.

7  Section 102.1 (definition of terrorist organisation)

Omit “, assisting in or fostering the doing of”, substitute “or assisting in”.

8  Subsection 102.1(2)

Repeal the subsection, substitute:

       (1AA)  An organisation that, under paragraph (2)(a), is notified of the proposed specification of the organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section (the proposed listing) has the right to oppose the proposed listing by applying to the Minister in the prescribed form.

             (2)  Before the Governor‑General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section (makes a regulation listing an organisation), the Minister must:

                     (a)  ensure that the organisation is notified, if it is practical to do so, of that proposed listing; and

                     (b)  ensure that the organisation and its members are notified, if it is practical to do so, of their right to oppose the proposed listing by application to the Minister; and

                     (c)  in the case of the proposed listing of an organisation at the request of a foreign country—ensure that the following are notified of that fact:

                              (i)  the organisation and its members, if it is practical to do so; and

                             (ii)  the Advisory Committee; and

                     (d)  be satisfied on reasonable grounds that the organisation:

                              (i)  is directly or indirectly engaged in, preparing, planning or assisting in a terrorist act (whether or not a terrorist act has occurred or will occur); or

                             (ii)  advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

       (2AA)  The Minister in making a decision under paragraph (2)(d) must:

                     (a)  seek advice from the Advisory Committee under subsection 102.1AC; and

                     (b)  take into account the recommendations of the Advisory Committee.

        (2AB)  If the Governor‑General makes a regulation listing an organisation, the Minister must:

                     (a)  ensure that the organisation is notified, if it is practical to do so, that a regulation has been made listing the relevant organisation and the consequences of that listing for the members of the organisation; and

                     (b)  cause to be published:

                              (i)  on the Internet; and

                             (ii)  in a daily newspaper that circulates generally in each State and self‑governing Territory; and

                             (ii)  in the Gazette; and

                            (iv)  in any other way required by the regulations (if any);

                            a notice, stating that a regulation has been made listing the relevant organisation and the consequences of that listing for members of the organisation.

        (2AC)  If the Governor‑General makes a regulation listing an organisation and a foreign country had requested the proposed listing, that information must be included in a notice under subsection (2AB).

       (2AD)  The making of a regulation listing an organisation constitutes a decision to list an organisation for the purposes of subsection (2AE) and section 102.1AA.

        (2AE)  A notice under subsection (2AB) must also state:

                     (a)  that the decision to list an organisation can be reviewed by the Administrative Appeals Tribunal; and

                     (b)  the time in which the application for review may be made; and

                     (c)  who can apply for the review; and

                     (d)  where the application for review can be made.

9  After section 102.1

Insert:

102.1AA  Review by the Administrative Appeals Tribunal

             (1)  An application may be made to the Administrative Appeals Tribunal for review of a decision to list an organisation.

             (2)  The regulations must provide for the procedures to be followed by the Tribunal in considering an application under subsection (1).

102.1AB  Establishment and membership of Listing Advisory Committee

             (1)  A Listing Advisory Committee is established by this section.

             (2)  The Advisory Committee is to consist of at least 5 members.

             (3)  Each member of the Advisory Committee is to be appointed by the Minister by written instrument.

Note:          For re‑appointment, see subsection 33(4A) of the Acts Interpretation Act 1901.

             (4)  A member of the Advisory Committee holds office on a part‑time basis for the period specified in his or her instrument of appointment. The period must not exceed 3 years.

             (5)  An instrument of appointment is to determine the terms and conditions of the appointment, including remuneration and allowances.

             (6)  The Minister must not appoint a person as a member of the Advisory Committee unless:

                     (a)  the person is not otherwise connected to the process of specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1; and

                     (b)  the Minister is satisfied that the person has knowledge of, or experience in, one or more of the following fields:

                              (i)  human or civil rights;

                             (ii)  security analysis;

                            (iii)  public affairs;

                            (iv)  public administration;

                             (v)  legal practice;

                            (vi)  a field specified in regulations made for the purposes of this subparagraph.

             (7)  The Minister is to appoint one of the members of the Advisory Committee as the convenor of the Committee.

             (8)  The Minister may, in writing, terminate the appointment of a member of the Advisory Committee at any time.

             (9)  A member of the Advisory Committee may resign his or her appointment by giving the Minister a written resignation. The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

           (10)  The performance of the function of the Advisory Committee is not affected because of a vacancy or vacancies in the membership of the Advisory Committee.

102.1AC  Functions

             (1)  The functions of the Advisory Committee are:

                     (a)  to advise the Minister on any proposed listing of an organisation;

                     (b)  to consider any application made to the Minister opposing the proposed listing of an organisation and make recommendations to the Minister as a result of its consideration.

             (2)  To assist in carrying out its functions under subsection (1), the Advisory Committee may:

                     (a)  publicise the role of the Advisory Committee in providing advice to the Minister;

                     (b)  engage in public consultations, including calling for submissions;

                     (c)  do anything else the members of the Advisory Committee consider necessary.

10  Section 102.5

Repeal the section, substitute:

102.5 Training a terrorist organisation or receiving training from a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

11  Paragraph 102.7(1)(a)

Omit “support”, substitute “material support”.

12  After paragraph 102.7(1)(a)

Insert:

                    (aa)  the person intends that the material support or resources provided will be used by the organisation to engage in such an activity; and

13  Paragraph 102.7(2)(a)

Omit “support”, substitute “material support”.

14  After paragraph 102.7(2)(a)

Insert:

                    (aa)  the person is reckless as to whether the material support or resources provided will be used by the organisation to engage in such an activity; and

15  Section 102.7

At the end of the section, add:

             (3)  In this section:

material support does not include the mere publication of views that appear to be favourable to an organisation or its objectives.

16  Section 102.8

Repeal the section.

Schedule 2Amendments to the Crimes Act 1914

1  Section 15AA

Repeal the section.

2  Before section 23C in Division 2

Insert:

23BA  Persons to be informed of rights

             (1)  A person who is detained under this Division must be informed (at all material times) of his or her rights.

             (2)  It is sufficient if the person is informed of the substance of his or her rights, and it is not necessary that this be done in language of a precise or technical nature.

3  Paragraph 23CA(8)(l)

Omit “;”, substitute “.”.

4  Paragraph 23CA(8)(m)

Repeal the paragraph.

5  Section 23CB

Repeal the section.

6  Paragraph 23CA(8)(h)

Omit “23CB,”.

7  Subsection 23DA(2)

Repeal the subsection, substitute:

             (2)  The application must be made to a judge of the Federal Court of Australia, and that judge is the judicial officer for the purposes of this section and section 23E.

Schedule 3Amendments to the Australian Security Intelligence Organisation Act 1979

1  Paragraph 34F(6)(b)

Omit “.”, substitute “; and”.

2  After paragraph 34F(6)(b)

Insert:

                     (c)  the Minister may not consent unless the Minister is satisfied, for the purposes of subsection (4), that the offence in relation to which the warrant is sought:

                              (i)  was committed after the end of the person’s period of detention under this Division for the first arrest; or

                             (ii)  arose in different circumstances to those of the offence to which any earlier warrant relates arose; and

                     (d)  any questioning of the person under the proposed warrant does not relate to:

                              (i)  the offence to which any earlier warrant relates; or

                             (ii)  the circumstances in which such an offence was committed.

3  Subparagraph 34G(2)(b)(ii)

Omit “.”, substitute “; and”.

4  After paragraph 34G(2)(b)

Insert:

                     (c)  the issuing authority may not issue the warrant requested unless the issuing authority is satisfied, for the purposes of paragraph (1)(b), that the offence in relation to which the warrant is sought:

                              (i)  was committed after the end of the person’s period of detention under this Division for the first arrest; or

                             (ii)  arose in different circumstances to those of the offence to which any earlier warrant relates arose; and

                     (d)  any questioning of the person under the warrant requested does not relate to:

                              (i)  the offence to which any earlier warrant relates; or

                             (ii)  the circumstances in which such an offence was committed.

5  Paragraph 34G(4)(c)

Omit “168 hours”, substitute “24 hours”.

6  Subsection 34K(10)

Repeal the subsection.

7  Section 34S

Omit “168 hours”, substitute “24 hours”.

8  Section 34ZP

Repeal the section.

9  Section 34ZR

Repeal the section.

10  Subsection 34ZS(2)

Repeal the subsection.

11  Section 34ZT

Repeal the section.

Schedule 4Repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004

1  The whole of the Act

Repeal the Act.