2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

CRIMINAL CODE AMENDMENT (TERRORISM) BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)

CRIMINAL CODE AMENDMENT (TERRORISM) BILL 2002

OUTLINE

The Criminal Code Amendment (Terrorism) Bill 2002 amends the Criminal Code Act 1995 (the Criminal Code) to re-enact federal counter-terrorism offences and thereby give them comprehensive national application.

The Bill would re-enact Part 5.3 of the Criminal Code (which contains federal terrorism offences enacted in June 2002, and amended in October 2002) so that it would attract the support of State references of power in accordance with section 51(xxxvii) of the Constitution.

The Bill will, in effect, re-enact the terrorism offences as Commonwealth provisions capable of operating throughout Australia, without any limitations arising from existing limits on Commonwealth constitutional powers.  The substance of the current offences would not be affected.  The re-enacted offences would be in the same terms as the current offences, but for the constitutional ‘reading down’ provisions.

The principal objective of this explanatory memorandum is therefore to explain the differences between the Bill and the current operation of the provisions in existing Part 5.3 of the Criminal Code.  Explanatory material for the Criminal Code offence provisions on which the Bill is based may be found in the explanatory memoranda for the legislation that enacted or amended those provisions.

Background to the Bill

The current federal terrorism offences contained in Part 5.3 of the Criminal Code commenced on 5 July 2002.  

Those terrorism offences were based on existing Commonwealth constitutional power.  As the Commonwealth Constitution does not give the Commonwealth Parliament power to make laws with respect to ‘terrorism’ as such, the offences rely on a ‘patchwork’ of existing constitutional powers.

The patchwork of existing Commonwealth constitutional powers is extensive but it is also complex.  It is impossible to rule out unforeseen gaps in constitutional support and consequent gaps in the coverage offered by offences based on existing powers.  Any legal complexity or uncertainty may become a focus for litigation about the effectiveness of the new federal terrorism offences.

Problems of this kind may be avoided by removing doubts about the extent of the Commonwealth’s constitutional power to enact the new federal terrorism offences.  States can remove those doubts by means of constitutional ‘references’ to the Commonwealth Parliament in accordance with section 51(xxxvii) of the Commonwealth Constitution.  (Similar considerations were seen to justify the recent State references in support of the new Commonwealth corporations legislation.)  Under section 51(xxxvii) of the Commonwealth Constitution, the Commonwealth Parliament may legislate with respect to matters referred to it by the State parliaments.  Suitable State references would support comprehensive terrorism offences of national application.  They would remove any need to ‘read down’ the new federal terrorism offences by reference to existing Commonwealth constitutional powers.  They would assist in ensuring that the new legislative framework is fully effective by enabling comprehensive and national coverage.

The Prime Minister and State and Territory Leaders have agreed on the importance of comprehensive, national coverage of terrorism offences.

A Summit of Commonwealth and State and Territory Leaders (Leaders’ Summit) was held in Canberra on 5 April 2002 to consider enhanced national frameworks to deal with transnational crime and terrorism.  Leaders agreed to a range of initiatives.  In relation to counter-terrorism issues, Leaders agreed, amongst other things, that State constitutional references would be sought to support federal terrorism offences of national application.

The Bill is designed to implement this agreement.  It would, in effect, re-enact the terrorism offences as Commonwealth provisions capable of operating nationally, partly in reliance on referrals by the States under section 51(xxxvii) of the Commonwealth Constitution.

The Bill assumes a two-fold reference by States.  In summary, the State reference legislation would refer the ‘text’ of the new federal terrorism offences in Divisions 101 (terrorism – offences based on terrorist acts), 102 (terrorist organisations) and 103 (financing terrorism) of Part 5.3 of the Criminal Code, together with a power to amend those offences.  The first reference by each State of the text of the federal legislation ensures, in effect, that the Commonwealth has power validly to enact that text as a comprehensive law of national application.  The second reference – the amendment reference – ensures that the new federal legislation, once enacted, could be amended from time to time by the Commonwealth Parliament.  This is to ensure that the legislation is not ‘frozen’ and remains responsive to an evolving security environment.  However, the Bill reflects an agreement between the Commonwealth and States and Territories that future amendments will not be made without the approval of a majority of the States and Territories (and of at least 4 States).

The Bill is introduced on the assumption that all States will make suitable references to the Commonwealth.

Financial Impact Statement

The Bill does not have any financial impact.	

NOTES ON CLAUSES

Clause 1:  Short title

1.	The short title of the Act will be the Criminal Code Amendment (Terrorism) Act 2002.

Clause 2:  Commencement

2.	The substantive parts of the Act will commence on a day to be fixed by Proclamation.  Due to the uncertain timing of the passage of State reference legislation, this may not be within six months after the Bill receives Royal Assent.  The Bill therefore does not provide for commencement on the earlier of proclamation or six months after Royal Assent.

Clause 3:  Schedule(s)

3.	Clause 3 provides that each Act specified in a Schedule is amended or repealed as set out in the Schedule concerned.

Schedule 1 - Amendment of the Criminal Code Act 1995

Item 1 – The Schedule (Part 5.3 of the Criminal Code)

4.	This item repeals the existing Part 5.3 of the Criminal Code and enacts a new Part 5.3 based on references of power from the States.

Proposed section 100.1 – Definitions

5.	The proposed new section differs from the existing section 100.1 by:

•	adding a new term, express amendment, to the definitions for the purposes of proposed sections 100.2 and 100.8;
•	adding a new term, referring State, to the definitions (and defining it according to the meaning given to it by proposed section 100.2); and
•	renumbering the subparagraphs in subsection (2) of the terrorist act definition.

Proposed section 100.2 – Referring States

6.	This proposed new section sets out when a State will be a referring State.  A State will be a referring State if the Parliament of the State has referred to the Parliament of the Commonwealth:

•	the matters that are necessary to enable the Parliament of the Commonwealth to re-enact Part 5.3 of the Criminal Code; and

•	the matter of terrorist acts or actions relating to terrorist acts, to the extent to making laws with respect to that matter by express amendment of Part 5.3 (“Terrorism”) or Chapter 2 (“General principles of criminal responsibility”) of the Criminal Code.

7.	A State ceases to be a referring State if the reference by the State Parliament to the Commonwealth Parliament of either or both of the referred matters is terminated (proposed subsection 100.2(5)).  However, a State will not cease to be a referring State simply because the State reference legislation provides that the reference to the Commonwealth Parliament of either or both of the matters referred is to terminate in particular circumstances (proposed subsection 100.2(4)).  

Proposed sections 100.3 and 100.4 – Constitutional basis for the operation of Part 5.3 and application of provisions

8.	The operation of the new terrorism offences throughout and outside Australia will depend on State references, as well as the powers that the Commonwealth Parliament has apart from such references.  Proposed section 100.3 explains the operation of Part 5.3 of the Criminal Code:

(1)	in referring States (State references will supplement the Commonwealth Parliament’s other powers by referring matters to the extent to which they are not otherwise included in the Commonwealth Parliament’s legislative powers);

(2)	in non-referring States (the Commonwealth Parliament’s existing legislative powers support this application – proposed subsection 100.4(5) identifies particular powers that are being relied on, in similar terms to the existing section 100.2);

(3)	in territories (the Commonwealth Parliament’s existing legislative powers, particularly its power to make laws with respect to territories under section 122 of the Constitution, support this application); and

(4)	outside Australia (the Commonwealth Parliament’s existing legislative powers, particularly its power to make laws with respect to external affairs under section 51 of the Constitution, support this application).

9.	Proposed section 100.4 in particular deals with the possibility that one or more States may terminate a reference.  In particular it indicates that, in such circumstances, the application of the offences to a “terrorist act” or a “preliminary act” in a non-referring State will rely on the Commonwealth’s existing constitutional powers, whereas the application of the offences to both terrorist and preliminary acts in a referring State will attract referred powers.  “Terrorist act” continues to be defined in proposed section 100.1 to cover specified actions and threats of action.  “Preliminary acts” is defined in proposed paragraph 100.4(1)(b) to cover all actions within the scope of the current offences that relate to terrorist acts but do not themselves constitute terrorist acts.  

Proposed section 100.5 – Application of Acts Interpretation Act 1901

10.	The scope of what is referred by a State Parliament is determined by that Parliament.  As the scope of the matters referred is in part determined by reference to a particular text, proposed section 100.5 provides that the text referred is to be interpreted in accordance with the Acts Interpretation Act 1901 of the Commonwealth as in force on the day on which Schedule 1 of the Bill commences.  This is intended to preclude any argument that the matters referred differ from State to State (as a result of differences in the local interpretation legislation) or that the scope of the reference may change as a result of amendments of the Acts Interpretation Act 1901.  While the Bill applies the Acts Interpretation Act 1901 as at the date of commencement of Schedule 1, it is envisaged that changes to that Act could be applied to the interpretation of the legislation by an appropriate amendment of section 100.5 in reliance on the amendment reference.

11.	Other Commonwealth provisions passed pursuant to existing Commonwealth constitutional power would continue to apply in relation to the referred matters according to their terms.  The Commonwealth Parliament will have legislative power with respect to matters that are incidental to the matters referred to the Commonwealth by the States (subsection 51(xxxix) of the Constitution).  Existing Commonwealth Acts such as the Crimes Act 1914 and Evidence Act 1995 (as amended from time to time) will therefore apply to the provisions once re-enacted.

Proposed sections 100.6 and 100.7 – Interaction with State and Territory laws

12.	Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law prevails and the State law, to the extent of the inconsistency, is invalid.  Proposed section 100.6 provides for the concurrent operation of State legislation (ie where there is no indirect inconsistency).  Proposed section 100.7 provides a regulation-making mechanism to ‘roll-back’ aspects of the new Part 5.3 of the Criminal Code to accommodate certain State and Territory legislation.

13.	The new Part 5.3 is not intended to limit the concurrent operation of any law of a referring State (proposed section 100.6).  Proposed section 100.6 is in terms similar to those of several other Commonwealth provisions, such as section 5E of the Corporations Act 2001.

14.	The new Part 5.3 will allow regulations to be made modifying its operation so that the Part does not apply to a matter dealt with by a State or Territory law, or is not inconsistent with the operation of a State or Territory law specified in the regulations (proposed section 100.7).  

15.	The regulation-making power is intended to apply to laws of a State or Territory in force (or proposed) immediately before the Bill commences, and also to laws of a State or Territory proposed after the Bill commences.  The Bill will therefore allow regulations to be made narrowing the operation of Part 5.3 to make way for the existing or proposed State or Territory law to operate, thus avoiding any inconsistency.

Proposed section 100.8 – Approval for changes to or affecting this Part

16.	Proposed section 100.8 reflects an agreement between the Commonwealth and the States and Territories that amendments to:
·	Part 5.3 of the Criminal Code, and
·	Chapter 2 of the Criminal Code where the amendments apply only to Part 5.3 (and are not of general application to Commonwealth offences)
will not be made without the approval of a majority of the States and Territories (and of at least 4 States).

17.	It is envisaged that the Commonwealth and the States and Territories will enter into an inter-governmental agreement to further support this understanding.

Proposed Divisions 101, 102 and 103 – re-enactment of terrorist act, terrorist organisations and financing terrorism offences

18.	This re-enacts, in the same terms, the existing terrorism offences in Divisions 101 (terrorism – offences based on terrorist acts), 102 (terrorist organisations) and 103 (financing terrorism) of the Criminal Code.  Explanatory material for the offence provisions may be found in the explanatory memoranda for the legislation that enacted or amended those provisions.

Proposed Division 106 – Transitional provisions

19.	Proposed section 106.1 provides a savings provision in relation to regulations specifying an organisation as a “terrorist organisation” for the purposes of the terrorist organisation offences in Division 102.  Any such regulations made under the existing legislation will continue to have effect after commencement of the new provisions, as if they had been made for the purposes of paragraph (b) of the “terrorist organisation” definition in subsection 102.1(1), as in force after commencement of this Bill.  

Schedule 2 – Amendment of the Security Legislation Amendment (Terrorism) Act 2002

Item 1 – Subsection 4(1)

20.	This item adds the Bill to a list of Commonwealth counter-terrorism legislation that is subject to a public and independent review mechanism concerning the operation, effectiveness and implications of amendments made by the legislation.