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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Anti-terrorism
Bill (No. 2) 2004
No. ,
2004
(Attorney-General)
A
Bill for an Act relating to foreign travel documents, persons in relation to
whom ASIO questioning warrants are being sought, associating with terrorist
organisations, the transfer of prisoners, forensic procedures, and for other
purposes
Contents
Passports Act
1938 4
Australian Security Intelligence Organisation Act
1979 19
Criminal Code Act
1995 22
Administrative Decisions (Judicial Review) Act
1977 25
Transfer of Prisoners Act
1983 25
Crimes Act
1914 33
A Bill for an Act relating to foreign travel documents,
persons in relation to whom ASIO questioning warrants are being sought,
associating with terrorist organisations, the transfer of prisoners, forensic
procedures, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Anti-terrorism Act (No. 2)
2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
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 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
|
3. Schedule 2 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
|
4. Schedule 3 |
The day after this Act receives the Royal Assent. |
|
|
5. Schedule 4 |
The day on which this Act receives the Royal Assent. |
|
|
6. Schedule 5, items 1 to 5 |
The day on which this Act receives the Royal Assent. |
|
|
7. Schedule 5, item 6 |
The later of: (a) the start of the day on which this Act receives the Royal Assent;
and (b) immediately after the commencement of Schedule 3 to the
Australian Federal Police and Other Legislation Amendment Act
2004. However, the provision(s) do not commence at all if the event mentioned in
paragraph (b) does not occur. |
|
Note: 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 contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
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.
1 Before section 1
Insert:
2 At the end of section 4A
Add:
(2) Subsection (1) does not apply to Parts 2, 3 and 4 of this
Act.
3 Subsection 5(1)
Insert:
competent authority means a competent authority for the
purposes of section 13, 14 or 15.
4 Subsection 5(1)
Insert:
document includes:
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols
or perforations that are:
(i) capable of being given a meaning by persons qualified to interpret
them; or
(ii) capable of being responded to by a computer, a machine or an
electronic device; or
(c) any article or material (for example, a disk or a tape) from which
information is capable of being reproduced with or without the aid of any other
article or device.
5 Subsection 5(1)
Insert:
enforcement officer means:
(a) an officer of Customs within the meaning of the Customs Act
1901; or
(b) a member or a special member of the Australian Federal Police;
or
(c) an officer of the police force of a State or Territory; or
(d) a person, or a person who is one of a class of persons, authorised in
writing by the Minister to exercise the powers and perform the functions of an
enforcement officer.
6 Subsection 5(1)
Insert:
foreign passport means a passport issued by or on behalf of
the government of a foreign country.
7 Subsection 5(1)
Insert:
foreign travel document means:
(a) a foreign passport; or
(b) a document of identity issued for travel purposes by or on behalf of
the government of a foreign country (whether or not also issued for another
purpose).
8 Subsection 5(1)
Insert:
Minister’s determination means an instrument made by
the Minister for the purposes of this Act under section 24.
9 Subsection 5(3)
Omit “(other than paragraph (f))”.
10 Subsection 5(3)
Omit “9B (other than paragraph (b)),”.
11 Subsection 5(4)
Repeal the subsection.
12 After section 6A
Insert:
13 Paragraph 9(1)(a)
Omit “a passport”, substitute “an Australian
passport”.
14 Paragraph 9(1)(b)
Omit “a passport”, substitute “an Australian
passport”.
15 At the end of paragraphs 9A(1)(a), (b), (c), (d)
and (e)
Add “or”.
16 Paragraph 9A(1)(f)
Repeal the paragraph.
17 Subsection 9A(2)
Omit “(f)”, substitute “(e)”.
18 Section 9B
Repeal the section.
19 Subsection 10(2)
Repeal the subsection (but not the penalty at the foot of the
subsection).
20 Before subsection 11(1)
Insert:
(1A) This section does not apply to offences against Part 2 or 3 of
this Act.
21 Before subsection 12(1)
Insert:
(1A) This section does not apply in relation to Parts 2, 3 or 4 of
this Act.
22 At the end of the Act
Add:
(1) If a competent authority believes on reasonable grounds
that:
(a) a person is the subject of an arrest warrant issued in Australia in
respect of an indictable offence against a law of the Commonwealth, a State or
Territory; or
(b) a person (including a person who is in prison) is prevented from
travelling internationally by force of:
(i) an order of a court of the Commonwealth, a State or Territory;
or
(ii) a condition of parole, or of a recognisance, surety, bail bond or
licence for early release from prison, granted under a law of the Commonwealth,
a State or Territory; or
(iii) a law of the Commonwealth, or an order or other direction (however
described) under a law of the Commonwealth;
the competent authority may request the Minister to make an order under
section 16 in relation to the person’s foreign travel
documents.
(2) In this section:
competent authority, in relation to a circumstance mentioned
in paragraph (1)(a) or (b), means:
(a) a person who has responsibility for, or powers, functions or duties in
relation to, that circumstance under a law of the Commonwealth, a State or
Territory (other than a person who is specified in a Minister’s
determination as not being a competent authority in relation to the
circumstance); or
(b) a person specified in a Minister’s determination as a competent
authority in relation to the circumstance.
prevented from travelling internationally includes:
(a) required to remain in Australia; and
(b) required to surrender a passport; and
(c) not permitted to apply for a passport; and
(d) not permitted to obtain a passport.
(1) If a competent authority believes on reasonable grounds
that:
(a) a person is the subject of an arrest warrant issued in a foreign
country in respect of a serious foreign offence; or
(b) a person (including a person who is in prison) is prevented from
travelling internationally by force of:
(i) an order of a court of a foreign country; or
(ii) a condition of parole, or of a recognisance, surety, bail bond or
licence for early release from prison, granted under a law of a foreign country,
or other similar arrangement made under a law of a foreign country; or
(iii) a law of a foreign country, or an order or other direction (however
described) under a law of a foreign country.
the competent authority may request the Minister to make an order under
section 16 in relation to the person’s foreign travel
documents.
(2) In this section:
competent authority, in relation to a circumstance mentioned
in paragraph (1)(a) or (b), means:
(a) an approved representative; or
(b) an employee of the Commonwealth who is specified in a Minister’s
determination as a competent authority in relation to the circumstance;
or
(c) an agency (within the meaning of the Financial Management and
Accountability Act 1997) that is specified in a Minister’s
determination as a competent authority in relation to the
circumstance.
prevented from travelling internationally includes:
(a) required to remain in the foreign country concerned; and
(b) required to surrender a passport; and
(c) not permitted to apply for a passport; and
(d) not permitted to obtain a passport.
serious foreign offence means an offence against the law of a
foreign country:
(a) for which the maximum penalty is death or imprisonment, or other
deprivation of liberty, for a period of not less than 12 months; or
(b) if the offence does not carry a penalty under the law of the
country—the conduct constituting which is, under a treaty to which the
country and Australia are parties (being a treaty relating in whole or in part
to the surrender of persons accused or convicted of offences), required to be
treated as an offence for which the surrender of persons is allowed by the
country or Australia; or
(c) the conduct constituting which would, if engaged in in Australia,
constitute an indictable offence against this Act; or
(d) the conduct constituting which would, if engaged in in Australia,
constitute an offence specified in a Minister’s determination made for the
purposes of subparagraph 15(1)(a)(v).
(1) If a competent authority suspects on reasonable grounds
that:
(a) unless a person’s foreign travel documents are surrendered, the
person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country;
or
(ii) might endanger the health or physical safety of other persons
(whether in Australia or a foreign country); or
(iii) might interfere with the rights or freedoms of other persons
(whether in Australia or a foreign country) set out in the International
Covenant on Civil and Political Rights; or
(iv) might constitute an indictable offence against this Act; or
(v) might constitute an indictable offence against a law of the
Commonwealth, being an offence specified in a Minister’s determination;
and
(b) the person should be required to surrender the person’s foreign
travel documents in order to prevent the person from engaging in the
conduct;
the competent authority may request the Minister to make an order under
section 16 in relation to the person’s foreign travel
documents.
Note: The text of the International Covenant on Civil and
Political Rights is set out in Australian Treaty Series 1980 No. 23. In
2004 this was available in the Australian Treaties Library of the Department of
Foreign Affairs and Trade, accessible on the Internet through that
Department’s world-wide web site.
(2) In this section:
competent authority:
(a) in relation to a circumstance mentioned in subsection (1) that
relates to Australia, means:
(i) a person who has responsibility for, or powers, duties or functions in
relation to, the circumstance under a law of the Commonwealth, a State or
Territory (other than a person who is specified in a Minister’s
determination as not being a competent authority in relation to the
circumstance); or
(ii) a person specified in a Minister’s determination as a competent
authority in relation to the circumstance; or
(b) in relation to a circumstance mentioned in subsection (1) that
relates to a foreign country, means:
(i) an approved representative; or
(ii) an employee of the Commonwealth who is specified in a
Minister’s determination as a competent authority in relation to the
circumstance; or
(iii) an agency (within the meaning of the Financial Management and
Accountability Act 1997) that is specified in a Minister’s
determination as a competent authority in relation to the
circumstance.
(1) If a competent authority makes a request under section 13, 14 or
15 in relation to a person, the Minister may order the surrender of the
person’s foreign travel documents.
(2) If the Minister has made an order under subsection (1), an
enforcement officer may demand that the person surrender to the officer the
person’s foreign travel documents.
(3) If the person does not immediately surrender the person’s
foreign travel documents, the officer may:
(a) seize the person’s foreign travel documents; and
(b) seize any foreign travel document of the person that is not in the
possession or control of any person.
(4) Subsection (3) does not authorise an enforcement officer to enter
premises that the officer would not otherwise be authorised to enter.
(5) A person commits an offence if:
(a) an enforcement officer demands under subsection (2) that the
person surrender the person’s foreign travel documents; and
(b) the officer informs the person that the Minister has ordered the
surrender of the person’s foreign travel documents and that the officer is
authorised to make the demand; and
(c) the officer informs the person that it may be an offence not to comply
with the demand; and
(d) the person has possession or control of one or more of the
person’s foreign travel documents; and
(e) the person fails to surrender those documents to the officer
immediately.
Penalty: Imprisonment for 1 year or 20 penalty units, or both.
(6) A foreign travel document obtained by an enforcement officer under
this section may be retained for so long as there is a competent authority
who:
(a) believes on reasonable grounds that a circumstance mentioned in
section 13 or 14 applies in relation to the person; or
(b) suspects on reasonable grounds that a circumstance mentioned in
section 15 applies in relation to the person.
(7) Despite subsection (6), a foreign travel document must be
returned to the person to whom it was issued if, on review by the Administrative
Appeals Tribunal:
(a) the Tribunal sets aside the decision of the Minister to order the
surrender of the document; and
(b) either:
(i) the Tribunal substitutes a decision not to order the surrender of the
document; or
(ii) the Tribunal remits the matter for reconsideration and, on that
reconsideration, the Minister decides not to order the surrender of the
document.
(1) An enforcement officer may demand that a person surrender to the
officer:
(a) a foreign travel document that has been obtained, or that the officer
suspects on reasonable grounds has been obtained, by means of a false or
misleading statement, false or misleading information or a false or misleading
document; or
(b) a foreign travel document or other document that has been used, or
that the officer suspects on reasonable grounds has been used, in the commission
of an offence against this Act.
(2) A person commits an offence if:
(a) an enforcement officer demands under subsection (1) that the
person surrender a document; and
(b) the officer informs the person that the officer is authorised to
demand that document; and
(c) the officer informs the person that it may be an offence not to comply
with the demand; and
(d) the person has possession or control of the document; and
(e) the person fails to surrender the document to the officer
immediately.
Penalty: Imprisonment for 1 year or 20 penalty units, or both.
(3) A document surrendered to an enforcement officer under this section
may be retained for so long as there is an enforcement officer who suspects on
reasonable grounds:
(a) that the document was obtained by means of a false or misleading
statement, false or misleading information or a false or misleading document;
or
(b) that the document has been used in the commission of an offence
against this Act.
(1) A person commits an offence if:
(a) the person makes a statement (whether orally, in writing or any other
way) to another person; and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading;
and
(c) the statement is made in, or in connection with, an application for a
foreign travel document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Subsection (1) does not apply:
(a) as a result of subparagraph (1)(b)(i)—if the statement is
not false or misleading in a material particular; or
(b) as a result of subparagraph (1)(b)(ii)—if the statement did
not omit any matter or thing without which the statement is misleading in a
material particular.
Note: The defendant bears an evidential burden in relation
to the matters in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(1) A person commits an offence if:
(a) the person gives information to another person; and
(b) the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is
misleading; and
(c) the information is given in, or in connection with, an application for
a foreign travel document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Subsection (1) does not apply:
(a) as a result of subparagraph (1)(b)(i)—if the information is
not false or misleading in a material particular; or
(b) as a result of subparagraph (1)(b)(ii)—if the information
did not omit any matter or thing without which the statement is misleading in a
material particular.
Note: The defendant bears an evidential burden in relation
to the matters in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(1) A person commits an offence if:
(a) the person produces a document to another person; and
(b) the document is false or misleading; and
(c) the document is produced in, or in connection with, an application for
a foreign travel document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Subsection (1) does not apply if the document is not false or
misleading in a material particular.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply to a person who produces a document
if the document is accompanied by a written statement signed by the person (or,
in the case of a body corporate, by a competent officer of the body
corporate):
(a) stating that the document is, to the knowledge of the first-mentioned
person, false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is, to the knowledge of the first-mentioned person, false or
misleading.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(1) A person commits an offence if:
(a) the person uses a foreign travel document in connection with travel or
identification; and
(b) the document has been cancelled.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) A person commits an offence if:
(a) the person uses a foreign travel document in connection with travel or
identification; and
(b) the document was not issued to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(3) A person commits an offence if:
(a) the person provides another person with a foreign travel document that
was issued to the first-mentioned person; and
(b) the first-mentioned person is reckless as to whether the document is
or will be used by the other person in connection with travel or
identification.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(4) A person commits an offence if:
(a) the person has possession or control of a foreign travel document;
and
(b) the person knows that the document was not issued to the
person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(5) Subsections (1), (2), (3) and (4) do not apply if the person has
a reasonable excuse.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (5). See subsection 13.3(3) of the Criminal
Code.
(1) A person commits an offence if:
(a) the person has possession or control of a document; and
(b) the person knows that the document is a false foreign travel
document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) A person commits an offence if:
(a) the person:
(i) makes a false foreign travel document; or
(ii) provides a false foreign travel document to another person;
and
(b) the person does so with the intention that the false foreign travel
document may be used, acted on or accepted as if it were a passport or document
of identity issued by or on behalf of the government of a foreign
country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(3) Subsections (1) and (2) do not apply if the person has a
reasonable excuse.
Note: The defendant bears an evidential burden in relation
to the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) In this section:
false foreign travel document:
(a) means a document:
(i) that purports to be a passport issued by or on behalf of the
government of a foreign country but that was not issued by or on behalf of that
government; or
(ii) that purports to be a document of identity issued for travel purposes
by or on behalf of the government of a foreign country for the purposes of
travel but that was not issued by or on behalf of that government; and
(b) includes a foreign travel document that has been altered by a person
who is not authorised to alter that foreign travel document.
make, in relation to a false foreign travel document,
includes alter a document so as to make it a false document (whether or not it
was already a false document before the alteration).
(1) Application may be made to the Administrative Appeals Tribunal for
review of a decision by the Minister under section 16 to order the
surrender of a person’s foreign travel documents.
(2) For the purposes of section 27 of the Administrative Appeals
Tribunal Act 1975, the only person whose interests are taken to be affected
by the decision is the person whose foreign travel documents are ordered to be
surrendered.
(3) The Minister may, if the Minister makes a decision in response to a
request under section 15, certify that the decision involved matters of
international relations or criminal intelligence.
(4) Despite section 43 of the Administrative Appeals Tribunal Act
1975, if the Minister has given a certificate under subsection (3) in
relation to a decision, then in any review of that decision the Administrative
Appeals Tribunal may only make a decision:
(a) affirming the Minister’s decision; or
(b) remitting the decision to the Minister for reconsideration in
accordance with any directions or recommendations of the Tribunal.
(1) The Minister may make instruments specifying any of the matters that
this Act provides may be specified in a Minister’s
determination.
(2) An instrument made under subsection (1) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Part or by Part 2 or 3 of this Act
to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Part or to Part 2 or 3 of this Act.
Australian Security
Intelligence Organisation Act 1979
1 After section 34JB
Insert:
(1) If the Director-General has sought the Minister’s consent to
request the issue of a warrant under section 34D in relation to a person,
then, as soon as practicable after that person is notified of that action and of
the effect of this subsection, the person must deliver to an enforcement officer
every passport that:
(a) is an Australian passport (as defined in the Passports Act
1938), or a foreign passport, that has been issued to the person;
and
(b) the person has in his or her possession or control.
Penalty: Imprisonment for 5 years.
(2) The Director-General must cause a passport delivered under
subsection (1) to be returned to the person to whom it was issued, as soon
as practicable after the first of the following events:
(a) the Minister refuses to consent to request the issue of a warrant
under section 34D in relation to the person;
(b) an issuing authority refuses to issue a warrant under section 34D
in relation to the person;
(c) if a warrant under section 34D is issued in relation to the
person—the period specified in the warrant under paragraph 34D(6)(b)
ends;
but the Director-General may cause the passport to be returned to that
person earlier.
(3) Subsection (2) does not require:
(a) the return of a passport during a period specified under paragraph
34D(6)(b) in another warrant that specifies the person to whom the passport was
issued; or
(b) the return of a passport that has been cancelled.
(4) If a warrant under section 34D is issued in relation to the
person, a person approved under subsection 24(1) in relation to the warrant may,
after a passport of the first-mentioned person is delivered under
subsection (1) and before it is returned under
subsection (2):
(a) inspect or examine the passport; and
(b) make copies or transcripts of it.
(5) In this section:
enforcement officer means any of the following:
(a) a member of the Australian Federal Police;
(b) an officer of the police force of a State or Territory;
(c) an officer of Customs (within the meaning of the Customs Act
1901).
(1) A person commits an offence if:
(a) the person has been notified:
(i) that the Director-General has sought the Minister’s consent to
request the issue of a warrant under section 34D in relation to the person;
and
(ii) of the effect of this subsection in connection with that action;
and
(b) the person leaves Australia; and
(c) the leaving occurs after the person has been notified that the
Director-General has sought the Minister’s consent and of the effect of
this subsection in connection with that action, and before the first of the
following events:
(i) if the Minister refuses to consent to request the issue of a warrant
under section 34D in relation to the person—that refusal;
(i) if an issuing authority refuses to issue a warrant under
section 34D in relation to the person—that refusal;
(ii) if a warrant under section 34D is issued in relation to the
person—the period specified in the warrant under paragraph 34D(6)(b) ends;
and
(d) the person does not have written permission from the Director-General
to leave Australia at the time the person leaves Australia.
Penalty: Imprisonment for 5 years.
(2) The Director-General may give written permission for a person to leave
Australia at a specified time. The permission may be given either
unconditionally or subject to specified conditions.
Note 1: The Director-General may revoke or amend the
permission. See subsection 33(3) of the Acts Interpretation Act
1901.
Note 2: If permission is given subject to a condition and
the condition is not met, the permission is not in force.
2 Application of item 1
The amendments made by item 1 of this Schedule apply to a person in
relation to whom the Director-General has sought the Minister’s consent to
request the issue of a warrant under section 34D of the Australian
Security Intelligence Organisation Act 1979 on or after the commencement of
that item.
1 Subsection 102.1(1) of the Criminal
Code
Insert:
associate: a person associates with another person if the
person meets or communicates with the other person.
2 Subsection 102.1(1) of the Criminal
Code
Insert:
close family member of a person means:
(a) the person’s spouse, de facto spouse or same-sex partner;
or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person;
or
(e) a guardian or carer of the person.
3 At the end of Subdivision B of Division 102
of the Criminal Code
Add:
(1) A person commits an offence if:
(a) on 2 or more occasions:
(i) the person intentionally associates with another person who is a
member of, or a person who promotes or directs the activities of, an
organisation; and
(ii) the person knows that the organisation is a terrorist organisation;
and
(iii) the association provides support to the organisation; and
(iv) the person intends that the support assist the organisation to expand
or to continue to exist; and
(v) the person knows that the other person is a member of, or a person who
promotes or directs the activities of, the organisation; and
(b) the organisation is a terrorist organisation because of
paragraph (b), (c), (d) or (e) of the definition of terrorist
organisation in this Division (whether or not the organisation is a
terrorist organisation because of paragraph (a) of that definition
also).
Penalty: Imprisonment for 3 years.
(2) A person commits an offence if:
(a) the person has previously been convicted of an offence against
subsection (1); and
(b) the person intentionally associates with another person who is a
member of, or a person who promotes or directs the activities of, an
organisation; and
(c) the person knows that the organisation is a terrorist organisation;
and
(d) the association provides support to the organisation; and
(e) the person intends that the support assist the organisation to expand
or to continue to exist; and
(f) the person knows that the other person is a member of, or a person who
promotes or directs the activities of, the organisation; and
(g) the organisation is a terrorist organisation because of
paragraph (b), (c), (d) or (e) of the definition of terrorist
organisation in this Division (whether or not the organisation is a
terrorist organisation because of paragraph (a) of that definition
also).
Penalty: Imprisonment for 3 years.
(3) Strict liability applies to paragraphs (1)(b) and
(2)(g).
(4) This section does not apply if:
(a) the association is with a close family member and relates only to a
matter that could reasonably be regarded (taking into account the person’s
cultural background) as a matter of family or domestic concern; or
(b) the association is in a place being used for public religious worship
and takes place in the course of practising a religion; or
(c) the association is only for the purpose of providing aid of a
humanitarian nature; or
(d) the association is only for the purpose of providing legal advice or
legal representation in connection with:
(i) criminal proceedings or proceedings related to criminal proceedings
(including possible criminal proceedings in the future); or
(ii) proceedings relating to whether the organisation in question is a
terrorist organisation.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (4). See subsection 13.3(3).
(5) This section does not apply unless the person is reckless as to the
circumstance mentioned in paragraph (1)(b) and (2)(g) (as the case
requires).
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5). See subsection 13.3(3).
(6) This section does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6). See subsection 13.3(3).
(7) A person who is convicted of an offence under subsection (1) in
relation to the person’s conduct on 2 or more occasions is not liable to
be punished for an offence under subsection (1) for other conduct of the
person that takes place:
(a) at the same time as that conduct; or
(b) within 7 days before or after any of those occasions.
Administrative Decisions
(Judicial Review) Act 1977
1 After paragraph (xa) of
Schedule 1
Insert:
(xb) decisions of the Attorney-General under Part II or III of the
Transfer of Prisoners Act 1983 refusing applications or requests, or
refusing to give consent, on the ground that, or on grounds that include the
ground that, refusal is necessary in the interests of security (within the
meaning of that Act);
(xc) decisions of the Attorney-General under Part IV of the
Transfer of Prisoners Act 1983;
Transfer of Prisoners Act
1983
2 Subsection 3(1) (definition of
prison)
Repeal the definition, substitute:
prison includes:
(a) any place where a person who has been sentenced to imprisonment may be
detained to undergo that imprisonment; and
(b) any place where a person who has been charged with an offence may be
remanded in custody for that offence.
3 Subsection 3(1)
Insert:
remand prisoner means a person who has been charged with an
offence against a law of the Commonwealth, a State or a Territory, and who has
been remanded in custody for that offence.
4 Subsection 3(1) (definition of return transfer
order)
Omit “or 16A”, substitute “, 16A or 16C”.
5 Subsection 3(1)
Insert:
security means:
(a) the protection of, and of the people of, the Commonwealth and the
several States and Territories from:
(i) espionage; or
(ii) sabotage; or
(iii) politically motivated violence; or
(iv) promotion of communal violence; or
(v) attacks on Australia’s defence system; or
(vi) acts of foreign interference; or
whether directed from, or committed within, Australia or not;
and
(b) the carrying out of Australia’s responsibilities to any foreign
country in relation to a matter mentioned in any of the subparagraphs of
paragraph (a).
6 Subsection 3(1)
Insert:
security transfer order means an order for the transfer of a
prisoner made under section 16B.
7 Subsection 3(1) (before paragraph (a) of the
definition of transfer order)
Insert:
(aa) a security transfer order; or
8 Subsection 3(1) (at the end of paragraph (a)
of the definition of transfer order)
Add “or”.
9 Subsection 3(1) (at the end of the definition of
transfer order)
Add:
; or (d) an order under section 16D or 16E.
10 Subsection 3(10)
After “transfer order”, insert “(other than an order
under Part IV)”.
11 Part III (after the
heading)
Insert:
12 Part IV (heading)
Repeal the heading.
13 Before section 14
Insert:
14 After subsection 16(1)
Insert:
(1A) However, subsection (1) does not apply if the transfer order in
pursuance of which the person is in that other State or Territory is an order
under Part IV.
15 Before Part V
Insert:
(1) The Attorney-General may make an order in writing for the transfer
of:
(a) a prisoner serving a federal, Territory or State sentence of
imprisonment in a prison of a State or Territory; or
(b) a remand prisoner in a prison of a State or Territory;
to another State or Territory if the Attorney-General believes on
reasonable grounds that it is necessary in the interests of security.
(2) In exercising his or her powers under subsection (1) to make an
order, the Attorney-General must have regard to all matters that he or she
considers relevant, including, but without limiting the generality of the
foregoing:
(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.
(3) The Attorney-General must not make an order under subsection (1)
for the transfer of the prisoner or remand prisoner unless both:
(a) the appropriate Minister of the State or Territory in which the
prisoner or remand prisoner is in prison; and
(b) the appropriate Minister of the State or Territory to which the
prisoner or remand prisoner is to be transferred;
have consented in writing to the transfer.
(1) If:
(a) a prisoner or remand prisoner is transferred to a State or Territory
pursuant to:
(i) a security transfer order; or
(ii) a return transfer order under this section (unless it orders a
transfer to the originating State or Territory); and
(b) the Attorney-General reviews the order; and
(c) as a result of the review, the Attorney-General believes on reasonable
grounds that, if he or she were now to consider the transfer of the prisoner or
remand prisoner to the State or Territory, the order would not be
made;
the Attorney-General may make an order in writing for the transfer of the
prisoner or remand prisoner from that State or Territory back to:
(d) the State or Territory from which he or she has been transferred
pursuant to that order; or
(e) if that State or Territory is not the originating State or
Territory:
(i) the originating State or Territory; or
(ii) any other State or Territory to which the prisoner or remand prisoner
has been transferred, pursuant either to a security transfer order or to a
return transfer order under this section, since his or her transfer from the
originating State or Territory.
(2) The Attorney-General must conduct a review of an order referred to in
paragraph (1)(a), within 3 months after:
(a) the day on which the Attorney-General made the order; and
(b) the day on which the Attorney-General last reviewed the
order;
unless the Attorney-General has made an order under subsection (1)
after a review of that order.
(3) In exercising his or her powers under subsection (1) to make an
order, the Attorney-General must have regard to all matters that he or she
considers relevant, including, but without limiting the generality of the
foregoing:
(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.
(4) The Attorney-General must not make an order under subsection (1)
for the transfer of the prisoner or remand prisoner unless both:
(a) the appropriate Minister of the State or Territory in which the
prisoner or remand prisoner is in prison; and
(b) the appropriate Minister of the State or Territory to which the
prisoner or remand prisoner is to be transferred;
have consented in writing to the transfer.
(5) In this section:
originating State or Territory means the last State or
Territory in which the prisoner or remand prisoner was held other than as a
result of an order under this Part.
(1) If a security transfer order, or a return transfer order under
section 16C, has been made in relation to a prisoner or remand prisoner,
the Attorney-General may make an order in writing for:
(a) the transfer of the prisoner or remand prisoner from the State or
Territory in which the prisoner or remand prisoner is in prison to another State
or Territory to appear in proceedings before a court in that other State or
Territory; and
(b) the transfer of the prisoner or remand prisoner from the other State
or Territory back to the first-mentioned State or Territory as soon as
practicable after that appearance has concluded.
(2) However:
(a) the Attorney-General must not make an order under subsection (1)
if the Attorney-General believes on reasonable grounds that it is contrary to
the interests of security; and
(b) this section does not apply in relation to the appearance of a remand
prisoner in proceedings for the offence with which he or she is charged and for
which he or she has been remanded in custody; and
(c) this section does not apply once the prisoner or remand prisoner has
been returned to the originating State or Territory (within the meaning of
section 16C).
(3) In exercising his or her powers under subsection (1) to make an
order, the Attorney-General must have regard to all matters that he or she
considers relevant, including, but without limiting the generality of the
foregoing:
(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.
(4) The Attorney-General must not make an order under subsection (1)
for the transfers of the prisoner or remand prisoner unless both:
(a) the appropriate Minister of the State or Territory in which the
prisoner or remand prisoner is in prison at the time the order is made;
and
(b) the appropriate Minister of the State or Territory to which the
prisoner or remand prisoner is to be transferred to appear in the
proceedings;
have consented in writing to the transfers.
(1) If:
(a) a security transfer order, or a return transfer order under
section 16C, has been made in relation to a remand prisoner; and
(b) the remand prisoner is required to appear in proceedings for the
offence with which he or she is charged and for which he or she has been
remanded in custody before a court in a State or Territory; and
(c) the remand prisoner is in prison in another State or
Territory;
the Attorney-General must make an order in writing for:
(d) the transfer of the remand prisoner from the other State or Territory
to the State or Territory in which he or she is required to appear;
and
(e) the transfer of the remand prisoner from the State or Territory in
which he or she is required to appear back to the other State or Territory as
soon as practicable after that appearance has concluded.
(2) However:
(a) the Attorney-General is not required to make an order under
subsection (1) if:
(i) the Attorney-General believes on reasonable grounds that it is
essential in the interests of security that the order not be made; and
(ii) the court that remanded the remand prisoner in custody orders that
his or her detention may continue; and
(b) this section does not apply once the prisoner or remand prisoner has
been returned to the originating State or Territory (within the meaning of
section 16C).
(1) If an order under this Part has been made in relation to a prisoner or
remand prisoner:
(a) an application must not be made to a court for an order under a State
transfer law for the transfer of the prisoner or remand prisoner to another
State or Territory; and
(b) an order (other than an order by a court) must not be made under a
State transfer law for the transfer of the prisoner or remand prisoner to
another State or Territory;
unless the Attorney-General has consented in writing to the
transfer.
(2) This section does not apply once the prisoner or remand prisoner has
been returned to the originating State or Territory (within the meaning of
section 16C).
16 Subsection 17(5)
After “a transfer order”, insert “(other than an order
under Part IV)”.
17 Subsection 17(6)
After “a transfer order”, insert “(other than an order
under Part IV)”.
18 At the end of subsection
29(1)
Add “or the powers under Part IV”.
19 After subsection 29(1)
Insert:
(1A) However, a delegation under subsection (1) does not extend to
the power:
(a) to make or revoke an order under Part II; or
(b) to make an application under section 8; or
(c) to give consent for the purposes of subsection 9(2); or
(d) to serve notices or make orders under Division 2 of
Part III;
in any case:
(e) that relates to a prisoner or remand prisoner who is subject to an
order under Part IV; or
(f) in which making or revoking the order, making the application, giving
the consent or serving the notice would involve consideration of questions of
security.
20 At the end of subsection
29(4)
Add “or the powers under Part IV”.
1 Subsection 3(1)
Insert:
State offence means an offence against a law of a State or
the Australian Capital Territory.
2 Division 11A of Part ID
(heading)
Repeal the heading, substitute:
3 Paragraph 23YUF(1)(b)
Omit “occurring outside Australia and Norfolk
Island”.
4 Paragraph 23YUF(2)(a)
Before “one or more”, insert “if the determination would
relate to an incident occurring wholly outside Australia and Norfolk
Island—”.
5 After subsection 23YUF(2)
Insert:
(2A) The Minister must not make a determination under
paragraph (1)(b) relating to an incident occurring wholly within Australia
or Norfolk Island unless:
(a) the Minister suspects on reasonable grounds that the incident involves
the commission of:
(i) an offence against a law of the Commonwealth; or
(ii) a State offence that has a federal aspect; or
(iii) an offence against a law of a Territory; or
(b) the Minister suspects on reasonable grounds that victims of the
incident are persons of a kind with respect to whom the Commonwealth Parliament
has power to make laws; or
(c) the Minister is satisfied that the incident is or has created a
national emergency.
(2B) Without limiting paragraph (1)(b), the reference in that
paragraph to persons of a kind with respect to whom the Commonwealth Parliament
has power to make laws includes references to the following:
(a) aliens;
(b) persons receiving pensions, benefits or allowances from the
Commonwealth;
(c) members of the Australian Defence Force;
(d) persons employed by, or holding an office in, the
Commonwealth;
(e) residents of a Territory.
(2C) A State offence is taken, for the purposes of
subparagraph (2A)(a)(ii), to have a federal aspect if:
(a) it has a federal aspect within the meaning of section 4A of the
Australian Crime Commission Act 2002; or
(b) it would have a federal aspect within the meaning of that section if
the references in paragraph 4A(2)(d) of that Act to the Australian Crime
Commission included references to the Australian Federal Police.
6 Subsection 23YUF(2C)
Repeal the subsection.
Note: This item does not commence at all if Schedule 3
to the Australian Federal Police and Other Legislation Amendment Act 2004
does not commence. See item 7 of the table in subsection
2(1).