Commonwealth of Australia Explanatory Memoranda

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COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2014

                              2013 - 2014




    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                               SENATE




COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2014




                     ADDENDUM TO THE
                 EXPLANATORY MEMORANDUM




            (Circulated by authority of the Attorney-General,
              Senator the Honourable George Brandis QC)




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COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2014


This addendum sets out additional information which will be added to the Revised
Explanatory Memorandum, to address recommendations made by the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) advisory report on the Bill.
It is additional to the Supplementary Explanatory Memorandum tabled in the Senate
on 25 November 2014.

Schedule 1 - Criminal Code Act 1995
Item 6 - Subdivision A of Division 104 of the Criminal Code

After paragraph 88, insert the following:

The Criminal Code uses the terms ,,support and ,,facilitation but does not define
them. This is exactly how the Bill uses these terms. That is, these terms have their
ordinary meaning and are appropriately left for the courts to determine. The ordinary
meaning of the word ,,support includes ,,to aid the cause of interests of, to strengthen,
or to give aid or strength to. The ordinary meaning of the word ,,facilitate includes
,,to make easier or less difficult, to help forward, or to assist the progress of. In its
report on the Bill, the Parliamentary Joint Committee on Intelligence and Security
recommended that, to the extent possible, the terms ,,supports and ,,facilitates in the
proposed amendments to the control order regime be based on language in the
existing Criminal Code.

Defining these terms for the purposes of Division 104 could undermine the operation
of the provisions by removing the flexibility to request a control order to prevent
different types of conduct which may amount to support or facilitation. In addition,
given those expressions are used elsewhere in the Criminal Code, defining them for
the purposes of the control order regime could have unintended consequences for the
interpretation of those terms in other Criminal Code offences. For example, these
words are used in a number of terrorism offences, including: intentionally providing
to an organisation support or resources that would help the organisation engage in a
terrorist act or activities preparatory or ancillary to a terrorist act (section 102.7);
providing or collecting funds, reckless as to whether the funds will be used to
facilitate or engage in a terrorist act (section 103.1); or making funds available to
another person reckless as to whether the other person will use the funds to facilitate
or engage in a terrorist act (section 103.2). It also includes offences for conduct
unrelated to terrorism, including organising or facilitating the entry of another person
into a foreign country (section 73.1) and making, providing or possessing a false
travel or identity document with the intention that the document will be used to
facilitate the entry of another person into a foreign country (section 73.8).




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Schedule 2 - Intelligence Services Act 2001

After paragraph 147, insert the following:

In its advisory report on the Bill, the PJCIS suggested that the EM be revised to
explain why the Intelligence Services Act 2001 (IS Act) already prohibits IS Act
agencies including ASIS from engaging in conduct constituting torture or cruel,
inhuman or degrading treatment or punishment in contravention of Australias
international obligations.

The explicit function conferred upon the Australian Secret Intelligence Service
(ASIS) in no way changes the prohibition in subsection 6(4) against ASIS engaging in
violence against the person which would include torture or cruel, inhuman or
degrading treatment or punishment.

Such conduct would not be in the proper performance of a function of ASIS, nor
would it be in the proper performance of a function of any other IS Act agency as
required by section 12 of the IS Act. Accordingly, such conduct would not fall within
the protection against civil or criminal liability under section 14 of the IS Act.

After paragraph 149, insert the following:

Limitations on classes of persons subject to authorisations

In its advisory report on the Bill, the PJCIS recommended further explanation on the
limitations that apply to the classes of Australian persons who are able to be the
subject of a Ministerial authorisation enabling ASIS to provide assistance to the ADF
in support of a military operation.

There are a number of limitations and safeguards in relation to the issuing of class
authorisations. When seeking a class authorisation, first, the Defence Minister must
request the Foreign Minister to provide an authorisation in relation to a class of
Australian persons to support the ADF in military operations.

The Foreign Minister must then be satisfied that the class of persons is involved, or is
likely to be involved, in an activity of the type specified in paragraph 9(1A)(a). In
practice, this can only be a class of Australian persons who are, or are likely to be,
involved in activities which are, or are likely to be, a threat to security, as that term is
defined in section 4 of the Australian Security Intelligence Organisation Act 1979
(ASIO Act). Relevantly, ,,security means the protection of, and of the people of, the
Commonwealth and the several States and Territories (as well as the carrying out of
Australias responsibilities to any foreign country) in relation to any of the following
matters:
       espionage
       sabotage
       politically motivated violence
       promotion of communal violence
       attacks on Australias defence system
       acts of foreign interference, or
       the protection of Australias territorial and border integrity from serious
       threats.


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As the activities relate to a threat to security, the Attorney-General must further
provide his or her agreement to the issuing of the Ministerial authorisation. By this
point, three Ministers will have scrutinised the class of persons.

Further, a class of persons is defined solely by reference to the involvement, or likely
involvement, of all of its members in activities that are, or are likely to be, a threat to
security, and not the personal or situational characteristics of individual persons (such
as religious, political or ideological orientation, ethnicity, or mere presence in a
particular location).

A person who is not involved in an activity of this type is, by definition, not within
the class of persons to which the authorisation relates. Therefore, it is not enough for
the Minister to be satisfied that one or more members of the class are so involved, but
rather that the entire class is so involved. If a Ministerial authorisation was
purportedly issued in relation to a class of Australian persons that was not involved in
activities which are, or are likely to be, a threat to security, it would be invalid, and
there would be no legal basis on which to support any activities undertaken in reliance
upon it.

Once the authorisation is issued, ASIS must then make decisions about whether
individual Australians in relation to whom it proposes to undertake activities in
reliance on the authorisation are within the specified class. Activities undertaken in
reliance on a class authorisation are subject to the independent oversight of the
Inspector-General of Intelligence and Security (IGIS), as well as reporting obligations
to the Foreign Minister (under proposed subsection 10A(3) in amending item 31 of
Schedule 2 to the Bill).

If ASIS incorrectly determined that an Australian person was within the class of
Australian persons specified in an authorisation, its activities in relation to that person
would not be supported by the authorisation. This could affect the ability of an ASIS
staff member or agent being able to rely on the protection from civil or criminal
liability under section 14 of the IS Act. It would also be subject to administrative
accountability, such as adverse findings by the IGIS and potential remedial action
directed by the Minister.

In addition, in undertaking its functions in relation to a class of Australian persons,
ASIS is limited by the other provisions in the IS Act. This includes subsection 6(4)
(prohibition on violence against the person) and also subsection 11(1), which provides
that the "functions of the agencies are to be performed only in the interests of
Australias national security, Australias foreign relations or Australias national
economic well being and only to the extent that those matters are affected by the
capabilities, intentions or activities of people or organisations outside Australia".

An example of a class of Australian persons who may be the subject of an
authorisation would be Australian persons who are, or are likely to be, members of the
ISIL terrorist organisation and who are, or are likely to be, fighting with that
organisation or are otherwise supporting that organisation in its military operations.




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Class agreement of the Attorney-General

The PJCIS further recommended that the EM be revised to make clearer that any
Australian person included in the specified class of Australian persons the subject of
an agreement provided by the Attorney-General under paragraph 9(1A)(b) of the
IS Act must be those who are involved, or are likely to be involved, in an activity or
activities that are, or are likely to be, a threat to security, as that term is defined in the
ASIO Act.
After paragraph 160, insert the following:

The comments above in relation to class authorisations apply equally to class
agreements provided by the Attorney-General. In particular, the class of Australian
persons is defined solely by reference to the involvement, or likely involvement, in
activities that are, or are likely to be, a threat to security. A person who is not so
involved is by definition not in the class and is therefore unable to be the subject of a
class agreement. Therefore, it is not enough for the Attorney-General to be satisfied
that one or more members of the class are so involved, but rather that the entire class
is so involved.

Any advice provided to the Attorney-General about the provision of a class agreement
is subject to the independent oversight of the IGIS.




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