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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COUNTER-TERRORISM LEGISLATION AMENDMENT (FOREIGN FIGHTERS)
BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
COUNTER-TERRORISM LEGISLATION AMENDMENT (FOREIGN FIGHTERS)
BILL 2014
GENERAL OUTLINE
1. Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation
in Iraq and Syria poses an increasing threat to the security of all Australians both here and
overseas. Existing legislation does not adequately address the domestic security threats
posed by the return of Australians who have participated in foreign conflicts or undertaken
training with extremist groups overseas (foreign fighters`).
2. This Bill provides a suite of measures which are specifically designed to strengthen
and improve Australia`s counter-terrorism legislative framework to respond to the foreign
fighter threat. It will provide additional powers for security agencies to deal with the threat
of terrorism within Australia and that posed by Australians who participate in terrorist
activities overseas. It will further counter terrorism through improving border security
measures and by cancelling welfare payments for persons involved in terrorism.
3. The Bill also implements those recommendations of the Independent National
Security Legislation Monitor`s (INSLM) second and fourth Annual Reports and the Final
Report of the Council of Australian Governments (COAG) Review of Counter-Terrorism
Legislation (the COAG Review) that will assist to address the most pressing gaps in our
counter-terrorism framework.
FINANCIAL IMPACT STATEMENT
4. The delayed notification search warrant scheme provides compensation if electronic
equipment is damaged in the course of the execution of a warrant. However, this is
anticipated to have minimal financial impacts on Government revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
5. The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the
Bill) makes a range of amendments to a number of Acts, primarily the Crimes (Foreign
Incursions and Recruitment) Act 1978, the Criminal Code Act 1995, the Crimes Act 1914, the
Australian Security Intelligence Organisation 1979, the Intelligence Services Act 2001, the
Telecommunications (Interception and Access) Act 1979, the Australian Passports Act 2005,
the Foreign Passports (Law Enforcement and Security) Act 2005, the Terrorism Insurance
Act 2003, the Customs Act 1901, the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006, the Migration Act 1958, the Foreign Evidence Act 1994, the A New Tax
System (Family Assistance) Act 1999, the Paid Parental Leave Act 2010, the Social Security
Act 1991 and the Social Security (Administration) Act 1999. It also makes consequential
amendments to the Administrative Decisions (Judicial Review) Act 1977, the Sea
Installations Act 1987, the National Health Security Act 2007, the Proceeds of Crime Act
2001, and the AusCheck Act 2007.
6. The Bill implements the Government`s responses to the evolving national security
landscape and in particular, the threat posed by Australians engaging in, and returning from,
conflicts in foreign States. The latter category of persons, collectively referred to as foreign
fighters`, may have fought alongside listed terrorist organisations in overseas conflicts and
return to Australia with enhanced terrorism capabilities and ideological commitment. This
heightens the likelihood of the commission of terrorist acts on Australian soil.
7. The reforms introduce substantive changes to the criminal law regime in respect of
terrorism offences. Cumulatively, they enhance the capabilities of Australia`s law
enforcement and intelligence agencies to respond proactively and effectively to the threats
posed by foreign fighters to Australia and its national security interests.
8. These reforms, in part, draw on the work undertaken by various independent bodies.
The INSLM has to date prepared four annual reports which have reviewed the operation,
effectiveness and implications of Australia`s counter-terrorism and national security
legislation to ensure that it is operating effectively and appropriately. Of particular relevance
for the purposes of the Bill are the recommendations made by the INSLM regarding the
foreign fighter threat in his Fourth Annual Report (released on 28 March 2014) and other
specific recommendations contained in the Second Annual Report (released on 20 December
2012). The Bill also builds upon the work of COAG which undertook a comprehensive
review of Australia`s counter-terrorism legislation. The COAG Review was tabled in
Parliament by the Attorney-General on 14 March 2013.
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Overview of measures
9. Outlined below is a brief summary of the substantive changes to each of the relevant
Acts. Consequential and minor amendments which do not engage human rights have not
been addressed in this section.
Schedule 1 - main counter-terrorism amendments
Administrative Decisions (Judicial Review) Act 1977
10. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) is being
amended to include decisions in respect of the suspension of Australian travel documents and
14-day seizure of foreign travel documents as decisions to which the Act does not apply.
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
11. The amendments to the Anti-Money Laundering and Counter-Terrorism Financing
Act 2006 (AML/CTF Act) include:
enhancing the ability of the Australian Transaction Reports and Analysis Centre
(AUSTRAC) to share information obtained under section 49, and
listing the Attorney-General`s Department (AGD) as a designated agency` under
section 5.
Australian Passports Act 2005
12. The amendments to the Australian Passports Act 2005 (Passports Act) include:
introducing the power to suspend a person`s Australian travel documents for 14
days, and
introducing a mechanism that provides that a person is not required to be notified
of a passport refusal or cancellation decision by the Minister for Foreign Affairs if
it is essential to the security of the nation or would adversely affect an
investigation into a terrorism offence.
Australian Security Intelligence Organisation Act 1979
13. The amendments to the Australian Security Intelligence Organisation Act 1979
(ASIO Act) include:
amending the provision authorising the use of force in the execution of a
questioning warrant
extending the operation of Division 3 to provide for the continuation of the
questioning and questioning and detention warrant regime for a further ten years
repealing the criterion for Ministerial consent in subparagraph 34D(4)(b) and
substitute a requirement that the Minister must be satisfied that it is reasonable in
all circumstances, including whether other methods of collecting that intelligence
would likely be as effective
including a new subsection in section 34L creating a new offence for persons who
destroy or tamper with a record or thing, with the intention to prevent it from
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being produced, or from being produced in a legible form, in accordance with a
request for production made under a questioning warrant, and
amending section 36 to exclude the operation of Part IV from security assessments
furnished by ASIO on the Department of Foreign and Trade (DFAT)
recommending the Minister of Foreign Affairs suspend a person`s Australian
travel documents.
Crimes Act 1914
14. The amendments to the Crimes Act 1914 (Crimes Act) include:
introducing a delayed notification search warrant scheme for terrorism offences
extending the operation of the powers in relation to terrorist acts and terrorism
offences in Part IAA, Division 3A for a further ten years
lowering the legal threshold for arrest of a person without a warrant for terrorism
offences and the new advocating terrorism` offence to suspects on reasonable
grounds`
amending the definition of terrorism offence` so that it applies to offences against
Part 4 of the Charter of the United Nations Act 1945 (UN Charter Act), Part 5 to
the extent that it relates to the Charter of the United Nations (Sanctions--
Al Qaida) Regulations 2008, and offences against Subdivision B of Division 80 of
the Criminal Code., and
amending the requirement regarding the power to obtain documents such that a
person must comply with the notice on a day at least 14 days after the notice is
given, or in appropriate circumstances, 3 days after the notice is given.
Criminal Code Act 1995
15. Amendments to the Criminal Code Act 1995 (Criminal Code Act) include:
limiting the defence of humanitarian aid for the offence of treason to instances
where the person did the act for the sole purpose of providing humanitarian aid
creating a new offence of advocating terrorism`
authorising the Attorney-General to add, remove or alter the alias of a terrorist
organisation by declaration, where the Attorney-General is satisfied that the alias
or aliases are those of the listed terrorist organisation
amending the terrorist organisation listing provision to provide that the
advocates` limb includes the promotion and encouragement of terrorist acts, in
addition to praise of the doing of a terrorist act
amending the terrorist organisation training offences so that they include an
offence of intentionally participating in training provided to or from a terrorist
organisation
extending the control order regime in Division 104 for a further ten years
expanding the criteria for issuing control orders to apply to persons who have
engaged in armed hostilities in a foreign State
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expanding the criteria for issuing control orders to apply to persons convicted in
Australia or a foreign country of an offence relating to terrorism, a terrorist
organisation or a terrorist act
amending the criteria for issuing control orders on the basis that a person has
trained with or received training from a terrorist organisation to include
participating in training provided to or from a terrorist organisation
amending the threshold for an Australian Federal Police (AFP) applicant to
request a control order by amending the threshold in subparagraph 104.2(2)(a) to
suspects on reasonable grounds`
introducing a requirement that an AFP member serving an interim control order
must advise the person that appeal and review rights are available in relation to the
order
including an indicative maximum curfew period of 12 hours within a 24 hour
period for the control order condition to direct a person to remain at specified
premises between specified times each day, or on specified days
extending the preventative detention order (PDO) regime in Division 105 for a
further ten years
enabling applications for initial PDOs and prohibited contact orders to be made
verbally and electronically in urgent circumstances
enabling PDOs to be made in respect of a person whose full name is not known,
but who is able to be identified as the intended subject of the order
amending the issuing criteria for PDOs to make the state of mind of the AFP
applicant suspect, on reasonable grounds` instead of reasonable grounds to
suspect`, and
amending the issuing criteria for PDOs such that a person must be satisfied that it
is reasonably necessary` as opposed to necessary` to detain the subject to
preserve evidence of, or relating to, the terrorist act.
Crimes (Foreign Incursions and Recruitment) Act 1978 and new Part 5.5 of the Criminal
Code
16. The amendments to the Crimes (Foreign Incursions and Recruitment) Act 1978
(Foreign Incursions Act) and equivalent provisions in Part 5.5 of the Criminal Code include:
repealing the Foreign Incursions Act and re-enacting its provisions to Part 5.5 of
the Criminal Code
amending the definition of recruit` to ensure consistency with Part 5.3
(Terrorism) of the Criminal Code
removing the requirement that the prosecution must prove that a person intended
to engage in a hostile activity in a particular foreign country, rather than in any
foreign country
aligning the penalties for foreign incursions offences with the penalties for
terrorism offences under Part 5.3 of the Criminal Code
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limiting the exception to the offence of preparing for an incursion into a foreign
State to provide humanitarian aid to instances where the person did the act for the
sole purpose of providing humanitarian aid
replacing the phrase engaging in armed hostilities in the foreign State` by
inserting the phrase engages in subverting society` into the definition of engage
in a hostile activity`. The definition of engaging in subverting society` includes
conduct similar to that which constitutes a terrorist act` in section 100.1
aligning the wording in the foreign incursions regime regarding causing fear of
suffering death or personal injury with the wording adopted in subsection 100.1(1)
of the Criminal Code concerning intimidation of the public or a section of the
public, and
creating a new offence of entering a declared area` in which a terrorist
organisation is engaging in hostile activity.
Foreign Evidence Act 1994
17. The Foreign Evidence Act 1994 (Foreign Evidence Act) is being amended to allow
the court greater flexibility in determining whether to admit material obtained from overseas
in terrorism-related proceedings.
Foreign Passports (Law Enforcement and Security) Act 2005
18. The Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports
Act) is being amended to introduce a 14-day foreign travel document seizure mechanism.
Telecommunications (Interception and Access) Act 1979
19. The Telecommunications (Interception and Access) Act 1979 (TIA Act) is being
amended to provide that the breach of a control order, and offences against Subdivision B of
Division 80 and Division 119 of the Criminal Code are offences for which a
telecommunications interception warrant can be issued.
Schedule 2 - Stopping welfare payments
A New Tax System (Family Assistance) Act 1999
20. A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) is being
amended to provide for the cancellation of family assistance for individuals on security
grounds.
Paid Parental Leave Act 2010
21. The Paid Parental Leave Act 2010 (PPL Act) is being amended to provide for the
cancellation of parental leave pay or dad and partner pay for individuals on security grounds.
Social Security Act 1991
22. The Social Security Act 1991 (Social Security Act) is being amended to provide for
the cancellation of social security payments or concession cards for individuals on security
grounds.
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Administrative Decisions (Judicial Review) Act 1977
23. The ADJR Act is being amended to include an exemption from the requirement to
provide reasons for decisions to cancel welfare payments.
Schedule 3 - Customs' detention power
Customs Act 1901
24. The Customs Act 1901 (Customs Act) is being amended to overcome vulnerabilities
in the detention power of Customs.
Schedule 4 - Cancelling visas on security grounds
Migration Act 1958
25. The Migration Act 1958 (Migration Act) is being amended to include a new
emergency visa cancellation power where a non-citizen outside of Australia might be a direct
or indirect risk to national security.
Schedule 5 - Identifying persons in immigration clearance
Migration Act 1958
26. The amendments to the Migration Act include:
amendments to enable automated border processing control systems such as
SmartGate or eGates to obtain personal identifiers (specifically an image of the
person`s face and shoulders) from all persons who use those systems
amendments to allow personal identifiers (specifically an image of the person`s
face and shoulders) to be obtained from Australian citizens who enter or depart
Australia or who travel on an overseas vessel between ports within Australia. The
Act currently contains safeguards applicable to the collection of personal
identifiers from non-citizens. These amendments extend these safeguards to
Australian citizens who may be required to provide a personal identifier by way of
an identification test conducted by an authorised officer`
amendments that clarify that if a person presents a document such as a passport to
a clearance authority under Division 5 of Part 2, the clearance authority may
collect information in that document. The amendments also ensure that any
personal information collected under Division 5 of Part 2 can be disclosed in the
same way that personal identifiers can be disclosed under Part 4A of the Act, and
amendments to expand the purposes for which personal identifiers may be
accessed and disclosed to ensure that personal identifiers can be used to assist in
identifying and authenticating the identity of a person who may be of national
security concern.
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Schedule 6 - Identifying persons entering or leaving Australia through advanced
passenger processing
Migration Act 1958
27. The Migration Act will be amended to extend Advance Passenger Processing (APP)
arrangement to departing air and maritime travellers.
Schedule 7 - Seizing bogus documents
Migration Act 1958
28. The Migration Act will be amended to introduce a measure to retain documents
presented or provided to the Department of Immigration and Border Protection (DIBP).
Citizenship Act 2007
29. The amendments to the Citizenship Act 2007 (Citizenship Act) include introducing a
definition of bogus documents` and related documents.
Human rights implications
30. The Bill engages the following human rights:
the right to life in Article 6 of the International Covenant on Civil and Political
Rights (ICCPR)
the right to freedom from arbitrary detention and the right to liberty of the person
in Article 9 of the ICCPR
the right to freedom of movement in Article 12 of the ICCPR
the right to a fair trial, the right to minimum guarantees in criminal proceedings
and the presumption of innocence in Article 14 of the ICCPR
the right to protection against arbitrary and unlawful interferences with privacy in
Article 17 of the ICCPR
the right to freedom of expression in Article 19 of the ICCPR
the right to freedom of association in Article 22 of the ICCPR
the rights of parents and children in Article 23 and 24 of the ICCPR
the prohibition on cruel, inhuman or degrading treatment or punishment in Article
7 of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT)
the protection against the use of evidence obtained from torture in Article 15 of
the CAT
the right to work in Article 6 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR)
the right to social security in Article 9 of the ICESCR, and
the right of the child to be detained separately in Article 37 of the Convention on
the Rights of the Child (CRC).
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SCHEDULE 1 - MAIN COUNTER-TERRORISM AMENDMENTS
Part 1 - Amendments
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Listing the Attorney-General's Department as a designated agency
31. Section 5 of the AML/CTF Act will be amended to include the AGD in the definition
of designated agency`. This will enable the AGD to have access to the financial intelligence
of AUSTRAC. This amendment will result in administrative efficiencies where it is
necessary for AGD to consider AUSTRAC information when formulating AML/CTF policy.
Access to this information would allow AGD to more efficiently and effectively develop and
implement policy around terrorism financing risks, and ensure a more holistic approach to the
Government`s foreign fighters national security response.
Freedom against unlawful and arbitrary interference with privacy in Article 17 of the ICCPR
32. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The amendment will limit the right in Article 17 by
altering the definition of designated agency` to include the AGD. This will allow AGD to
access AUSTRAC information, which may include personal information. The collection,
disclosure, storage or use of personal information without a person`s consent will engage, and
limit, the protection from arbitrary and unlawful interference with privacy in Article 17 of the
ICCPR.
33. The right in Article 17 may be subject to permissible limitations, where the limitations
are lawful and are not arbitrary. In order for an interference with the right to privacy to be
permissible, the interference must be authorised by law, be for a reason consistent with the
ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights
Committee has interpreted the requirement of reasonableness` to imply that any interference
with privacy must be proportional to the end sought and be necessary in the circumstances.
34. In this case, the limitations on Article 17 are reasonable, necessary and proportionate.
The vast majority of AUSTRAC information considered by AGD would be at an aggregated
level to enable the Government to more effectively produce anti-money laundering and
counter-terrorism financing policy to be developed. Enabling the AGD to access AUSTRAC
information will enhance AGD`s abilities to bring together whole-of-government resources to
properly advise the Government on important questions of counter-terrorism policy.
35. Accordingly, the amendment is reasonable, necessary and proportionate to achieving
the objective of producing more informed and effective governmental policy.
Sharing information obtained under section 49
36. This amendment enhances the ability of AUSTRAC to share information it obtains
under section 49 of the AML/CTF Act. Currently information obtained by AUSTRAC under
section 49 is subject to different requirements compared to other information obtained under
the AML/CTF Act. This amendment will enhance the value of information collected by
AUSTRAC under section 49 as they will facilitate access to this information by all
AUSTRAC`s partner agencies, rather than requiring such information to be quarantined.
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Freedom against unlawful and arbitrary interference with privacy in Article 17 of the ICCPR
37. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The collection, disclosure, storage or use of
personal information without a person`s consent will engage, and limit, the protection from
arbitrary and unlawful interference with privacy in Article 17 of the ICCPR. This
amendment limits the right in Article 17 by allowing AUSTRAC to provide information
collected under section 49 to its partner agencies.
38. As explained at paragraph 33, the right in Article 17 may be subject to permissible
limitations, where the limitations are lawful and not arbitrary.
39. The sharing of information by AUSTRAC with its partner agencies is not in a relevant
sense arbitrary`. The provision of this information will be clearly established by the
AML/CTF Act and will be undertaken in accordance with that regime, which has significant
safeguards to protect information. The sharing of AUSTRAC information better enables
AUSTRAC to carry out its statutory objectives of being a regulator and a gatherer of
financial intelligence to assist in the prevention, detection and prosecution of crime. The
sharing of relevant information to partner agencies enhances the value of information
obtained by AUSTRAC. Accordingly, this amendment cannot be characterised as arbitrary
and is a reasonable, necessary and proportionate measure to better facilitate the work of
AUSTRAC and its partner agencies.
Australian Passports Act 2005 / Australian Security Intelligence Organisation Act 1979 /
Foreign Passports (Law Enforcement and Security Act) 2005 / Administrative Decisions
(Judicial Review) Act 1977
Overview of passports measures
40. The Bill will amend the Passports Act to enable the Minister for Foreign Affairs to
suspend a person`s Australian travel documents for a period of 14 days if requested by the
Australian Security Intelligence Organisation (ASIO).
41. ASIO currently has the ability to make a competent authority request for a person`s
Australian passport to be cancelled if it suspects on reasonable grounds that, if the person had
an Australian passport, the person would be likely to engage in conduct that might prejudice
the security of Australia or a foreign country and that the passport should be cancelled in
order to prevent the conduct.
42. The amendments will enable ASIO to make a request that the Minister for Foreign
Affairs suspend for a period of 14 days all Australian travel documents issued to a person if it
suspects on reasonable grounds both that the person may leave Australia to engage in conduct
that might prejudice the security of Australia or a foreign country and that all the person`s
Australian travel documents should be suspended in order to prevent the person from
engaging in the conduct.
43. The primary purpose of these amendments is to enhance the Australian Government`s
capacity to take proactive, swift and proportionate action to mitigate security risks relating to
Australians travelling overseas. The amendment will enable the Minister for Foreign Affairs
to exercise a discretionary power to take temporary action to suspend a person`s travel
11
documents upon receipt of a request from ASIO. The request will include the security
rationale for the making of the request.
44. These amendments will strengthen the Australian Government`s capacity to
proactively mitigate the security risk arising from travel overseas by Australians who may be
planning to engage in activities of security concern by providing a lower threshold for the
making of a request for suspension. The requisite threshold is commensurate with the
temporary nature of the contemplated administrative action by the Minister for Foreign
Affairs. The amendments provide that ASIO would need to make a further competent
authority request recommending passport cancellation to give longer term effect to the
disruption of the security threat.
45. The amendments will also override the requirement to notify a person of the
Minister`s passport cancellation or refusal decision where it is essential to the security of the
nation or where notification would adversely affect a current investigation into a terrorism
offence.
46. The Bill will also insert provisions into the Foreign Passports Act that will
complement the new suspension mechanism under the Passports Act. The Minister for
Foreign Affairs already has the ability to order the surrender of a person`s foreign travel
documents if requested by ASIO. The proposed amendment will allow ASIO to make a
request for the 14-day surrender of a person`s foreign travel documents at a lower threshold
than that provided for under the existing provisions.
47. Decisions relating to the new Australian travel document suspension mechanism and
14-day seizure of foreign travel documents will not be merits reviewable or reviewable under
the ADJR Act. Judicial review under the Act may compromise the operations of security
agencies and defeat the national security purpose of the new mechanisms.
48. These changes implement several recommendations of the INSLM`s fourth annual
report.
Freedom of movement in Article 12 of the ICCPR, right to a trial in Article 14 of the ICCPR,
right to respect for the family in Articles 17(1) and 23 of the ICCPR
49. Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a
State shall, within the territory, have the right to liberty of movement. Everyone shall also be
free to leave any country, including his own. Article 12(3) provides that the right to liberty of
movement can be permissibly limited if the limitations are provided by law and are necessary
to protect national security. The new suspension mechanism will temporarily restrict a
person`s right to liberty of movement if that person seeks to travel while their Australian
travel documents are suspended. Consistent with Article 12(3), the restriction will be
provided by law and is necessary for the protection of Australia`s national security.
50. The introduction of the new suspension mechanism is reasonable and necessary to
achieve the national security objective of taking proactive, swift and proportionate action to
mitigate security risks relating to Australians travelling overseas who may be planning to
engage in activities of security concern. The amendments contemplate that the making of a
suspension request by ASIO must be based on credible information which indicates that the
person may pose a security risk. The suspension of an Australian travel document is only for
a maximum period of 14 days and cannot be extended beyond this period. While the
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suspension period is longer than the maximum 7-day suspension period proposed by the
INSLM, it is necessary to ensure the practical utility of the suspension period with regard to
both the security and passports operating environment.
51. Article 12(4) of the ICCPR states that no one shall be deprived of the right to enter his
or her own country. The proposed 14-day seizure of foreign travel documents under the
Foreign Passports Act may prevent a person from returning to their own country. However,
the restriction on this right is reasonable, necessary and proportionate to mitigate the security
risk arising from persons travelling overseas who may be planning to engage in activities of
security concern. The limited duration of the seizure ensures that an individual`s right to
return to a foreign state is not unduly impinged.
52. Article 14 of the ICCPR provides that, in the determination of any criminal charge
against a person or a suit at law, that person shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The new mechanisms do
not engage Article 14. Judicial review under section 75(v) of the Constitution is maintained
and where such a suit is initiated, a person will be entitled to a fair and public hearing by an
independent and impartial tribunal. A person will maintain existing review rights in the AAT
in relation to the issuing of an adverse security assessment or the Minister`s decision to
cancel a passport. The decision to cancel a passport is also reviewable under the ADJR Act.
53. Articles 17(1) and 23 of the ICCPR concern the right to respect for family. Article
17(1) prevents arbitrary and unlawful interference with one`s family while Article 23 states
that the family is a natural and fundamental group unit of society and is entitled to protection
by society and the State. A family` should be given a broad meaning and include all persons
comprising the family as understood in the society of each country. Limiting the freedom of
movement from Australia to a foreign State could possibly be argued to restrict the right to
respect for family where the individual has family in the foreign State. However, the
temporary 14-day restriction will enhance the Australian Government`s capacity to take
proactive, swift and proportionate action to mitigate security risks relating to Australians
travelling overseas. The restriction will not be arbitrary and will be undertaken in accordance
with the law.
Absence of notification
Freedom of movement in Article 12 of the ICCPR
54. Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a
State shall, within the territory, have the right to liberty of movement. Everyone shall also be
free to leave any country, including his own. The absence of notification does not of itself
restrict the right to liberty of movement. In some situations, notifying a person that their
passport has been cancelled (or that a decision to refuse to issue a passport has been made)
will adversely affect the security of the nation or the investigation of a terrorism offence. The
new provisions will ensure that, in certain limited circumstances, a person does not need to be
notified of the decision relating to that person`s passport or passport application. To that end,
the limitations are provided by law and are reasonable, necessary and proportionate to protect
Australia`s national security.
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Australian Security Intelligence Organisation Act 1979
`Last resort' requirement
55. The Bill will repeal the requirement in paragraph 34D (4)(b) that the Attorney-
General must be satisfied that relying on other methods of collecting that intelligence would
be ineffective` prior to issuing a questioning warrant. This requirement will be substituted
with a requirement that the Minister must be satisfied that it is reasonable in all the
circumstances, including whether other methods of collecting that intelligence would likely
be as effective.
Right to freedom of movement in Article 12 of the ICCPR
56. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State
shall, within the territory, have the right to liberty of movement. This right has been
restricted to the extent that the issuing of a questioning warrant requires a specified person to
appear before a prescribed authority for questioning immediately after the person is notified
of the issue of the warrant or at a time specified by the warrant.
57. Access to a questioning warrant is streamlined by this amendment as the Attorney-
General no longer needs to be satisfied that others means of collecting the relevant
intelligence would be ineffective. Instead a reasonableness requirement will be used and the
relevant parties to the decision-making (the Director-General of ASIO, the Attorney-General
and the issuing authority) should consider whether the power should be invoked.
58. The limitation on the right to freedom of movement can be justified on the basis that it
achieves a legitimate objective - that the questioning warrant will substantially assist in the
collection of intelligence that is important in relation to a terrorism offence`. Given the
statutory objective of ASIO is to obtain, correlate and evaluate intelligence relevant to
security` (section 17), this amendment significantly enhances ASIO`s abilities to carry out its
function. Moreover, terrorism offences constitute the most serious threats to Australia and its
national security interests. The amendment improves the efficacy of the questioning warrant
power and improves the tools by which terrorist threats may be mitigated.
59. The limitation on the freedom of movement is reasonable, necessary and
proportionate. This is based on the safeguards already built into the questioning warrant
framework. The Attorney-General`s Guidelines provide a safeguard for the appropriate use
of questioning warrants. These guidelines are provided by the Attorney-General to the
Director-General of ASIO under subsections 8A(1) and 8A(2). The Guidelines require ASIO
to always consider the intrusiveness and proportionality of its avenues for obtaining
information. Any methods for obtaining information must:
be proportionate to the gravity of the threat posed and the probability of its
occurrence
use as little intrusion into a person`s privacy as is possible, and
wherever possible the least intrusive techniques of information gathering should
be used before resort to the more intrusive techniques (where a threat is assessed
as likely to develop quickly, a greater degree of intrusion may be justified).
60. Under paragraph 34D(4)(c), before issuing a questioning warrant the
Attorney-General must be satisfied that there is in force a written statement of procedures to
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be observed in the execution of warrants issued under Division 3 of Part III of the ASIO Act.
Such a statement of procedures was originally tabled in Parliament on 12 August 2003. An
updated version of those procedures, dated 16 October 2006, is currently in effect - this is a
legislative instrument and is publicly available. The statement of procedures sets out
procedures to be observed by ASIO and law enforcement agencies in record-keeping
(including video recordings of any questioning), transport and questioning logistics, health
and welfare of a subject of a warrant and options for that subject to make contact with
representatives or make complaints about the process if desired. Section 34D also requires
that the Director-General of ASIO must provide a draft request that includes a draft of the
warrant to be requested, a statement of facts and grounds on which the Director-General
considers it is necessary to issue the warrant, a statement of particulars and outcome of all
previous requests for the issue of a warrant under this Division and details about any previous
warrants issued in respect of the suspect under this Division, as a pre-requisite for the issuing
of a questioning warrant. Furthermore, the qualifiers of reasonable grounds for believing`
and substantially assist` mean that something more than a fleeting suspicion that a
questioning warrant may be of use is required.
61. The INSLM observed of the Guidelines and statement of procedures that they
constitute formidable and reassuring prerequisites for the issue and control of the execution
of a [questioning warrant]`. The INSLM considered that these safeguards justified the
elimination of the last resort` requirement. The Guidelines and the reasonableness
requirement ensure that the same level of rigour is exercised in a decision to issue a
questioning warrant.
62. To the extent that this amendment is a restriction on the right to freedom of
movement, it is reasonable, necessary and proportionate to achieving the legitimate objective
of gathering important intelligence in relation to terrorism offences.
Destruction or tampering with records
63. Section 34L(6) requires that a person subject to a warrant issued under Division 3 of
the ASIO Act must produce any record or thing that they have been requested in accordance
with the warrant to produce. The INSLM highlighted that there is no express offence under
this section for destroying or tampering with a record or thing, with the intention of
preventing it from being produced, or from being produced in a legible form, in accordance
with a request for production made under a questioning warrant. The offence will carry a
maximum penalty of five years, in accordance with the other offences in section 34L.
Right to protection against arbitrary and unlawful interferences with privacy in Article 17 of
the ICCPR, right to freedom from cruel, inhuman or degrading treatment or punishment in
Article 7 of the ICCPR and the CAT
64. The requirement to produce certain records (defined in section 22) engages the right
to protection against arbitrary or unlawful interference with the privacy of the individual.
The application of the new offence is not arbitrary in that its use is established by law and not
inappropriate, unjust or unpredictable and does not confer upon a person an unfettered
discretion as to how it is applied. Moreover, the use of warrants is limited to instances where
a request will substantially assist in the collection of intelligence that is important in relation
to a terrorism offence`. The documents to be produced would go towards a similar purpose
of gathering evidence in relation to a terrorism offence. As terrorist acts constitute one of the
15
most significant threats to Australia and its national security interests, the new offence is a
reasonable, necessary and proportionate measure.
65. Article 7 of the ICCPR and the CAT prohibit conduct which may be considered cruel,
inhuman or degrading treatment or punishment (ill treatment`). These rights are absolute
and cannot be limited in any way. The penalty for destruction or tampering with records that
are required to be produced is five years. This is proportionate and reflects the gravity of this
offence. The deliberate destruction or tampering with evidence frustrates the gathering of
intelligence in relation to a terrorism offence. The failure to produce such information
prevents ASIO from carrying out its statutory functions whilst also endangering the safety of
Australian national security interests. Accordingly, the penalty of five years imprisonment is
not so significant that it would constitute cruel, inhuman or degrading treatment or
punishment.
Use of force in execution of a questioning warrant
66. This amendment impacts the use of force in taking persons into custody and detaining
persons for the purposes of a warrant issued under section 34G or in accordance with
subsection 34K(7). In particular, subsection 34V(3) provides that the use of force to cause
death of, or grievous bodily harm to, the person is permissible only if the officer believes on
reasonable grounds that doing that thing is necessary to protect life or to prevent serious
injury to another person (including the officer)`. The INSLM considered that
paragraph 34V(3)(b), which allows for the use of force if there is no alternative way of taking
the person into custody, should be removed. This is a largely technical amendment that
amends subsection 34V(3) to more concisely capture the intent of paragraphs 34V(3)(a)
and (b).
Right to security of the person in Article 9 of the ICCPR, right to life in Article 6 of the
ICCPR
67. The right to security of the person in Article 9 of the ICCPR requires States to
provide reasonable and appropriate measures, within the scope of those available to public
authorities to protect a person`s physical security. The use of reasonable and necessary force
in executing a warrant can engage the right to security of the person where force could be
used against a person in circumstances where it is legally authorised. Relatedly, Article 6(1)
of the ICCPR guarantees every human being the inherent right to life, stating that no one
shall be arbitrarily deprived of his or her life. Section 34V may engage this right to the extent
it allows for the use of force.
68. The use of force in section 34V must be in accordance with the requirements of that
provision and would be reasonable and necessary in the circumstances envisioned in
subsection 34V(3). The use of force would be justified where it is used only in order to
protect life or prevent serious injury to another person.
69. The framework of section 34V also places inherent limitations on the use of lethal
force or force causing grievous bodily harm. A police officer must not use more force or
subject the person to greater indignity than is necessary and reasonable to carry out the action
contemplated in subsection 34V(1). This requirement also promotes respect for the inherent
dignity of the human person (in accordance with Article 10 of the ICCPR). Moreover, the
use of lethal force is only permissible where the police officer believes on reasonable
grounds` that it is required to protect another human life or to prevent serious injury to
16
another. The threshold of believes` as opposed to suspects` and the objective nature of this
test ensures that the use of force is not arbitrarily employed and only used where appropriate.
Moreover, the conferral of such an authority on a police officer allows him or her to protect
another human life and thereby preserve another`s right to security of the person.
70. This amendment clarifies the exceptional circumstances in which the use of force,
including lethal force, is permissible. The restriction on the security of the person and right
to life is not arbitrary, and is reasonable, necessary and proportionate to achieving legitimate
objectives.
Extending the operation of Division 3
71. Currently, section 34ZZ provides that Division 3 will cease to have effect on
22 July 2016. The Bill amends this section to provide for the continuation of the Division for
a further ten years, until 22 July 2026. Division 3 contains ASIO`s special powers relating to
terrorism offences. In particular, Division 3 contains ASIO`s questioning and questioning
and detention powers. This amendment recognises the enduring nature of the terrorist threat
and provides ASIO with the necessary tools to respond effectively to the evolving
counter-terrorism landscape.
72. The questioning warrant will require a specified person to appear before a prescribed
authority for questioning under the warrant immediately after the person is notified of the
issue of the warrant, or at a time specified in the warrant. A questioning and detention
warrant authorises a person to be taken into custody immediately by a police officer and be
brought before a prescribed authority immediately for questioning under the warrant for a
period of time described in subsection 34G(4).
Right to freedom of movement in Article 12 of the ICCPR, right to freedom from arbitrary
detention in Article 9 of the ICCPR
73. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State
shall, within the territory, have the right to liberty of movement. The questioning, and
questioning and detention warrants both infringe an individual`s right to freedom of
movement by requiring their presence before a prescribed authority. However, this is
permissible on the basis it achieves the legitimate objective of protecting Australia`s national
security interests. The respective warrants are only available where there are reasonable
grounds for believing that the warrant will substantially assist` in the collection of
intelligence that is important in relation to a terrorism offence`.
74. The extent to which an incursion into an individual`s freedom of movement is
reasonable, necessary and proportionate has been explored in relation to the last resort`
requirement discussed above. Similar considerations apply here and provide sufficient
support for a restriction on the freedom of movement to achieve the legitimate objectives of
preserving Australia`s national security.
75. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedures as are established by law. The United Nations Human Rights Committee has
stated that arbitrariness` includes the elements of inappropriateness, injustice and a lack of
predictability. Arrest or detention must be reasonable and necessary in all circumstances with
reference to the recurrence of crime, interference with evidence or the prevention of flight.
17
The questioning and detention warrant may be considered to engage the right to freedom
from arbitrary detention because it allows an individual to be taken into custody by a police
officer and brought before a prescribed authority immediately for questioning for a specific
period of time.
76. The detention permitted under the questioning and detention regime cannot be
described as arbitrary`. The detention is established by and operates in accordance with the
procedures described in Subdivision C of Division 3. The requirements necessary to issue a
warrant provide predictability and ensure that its application is not subject to excessive
discretion or capriciousness by decision-makers. The collection of important intelligence
relating to terrorism offences can go towards the gathering of evidence and prove vital in the
investigation, prevention and prosecution of terrorism related offences. Given the statutory
objective of ASIO is to obtain, correlate and evaluate intelligence relevant to security`
(section 17), this amendment significantly enhances ASIO`s abilities to carry out its function.
77. Accordingly, the continuation of the questioning and questioning and detention
regime does not result in a diminishing of an individual`s right to freedom from arbitrary
detention. The detention regime is clearly articulated in the ASIO Act and is a reasonable,
necessary and proportionate measure in order for ASIO to carry out its statutory obligations.
Crimes Act 1914
Section 3--definition of terrorism offence
78. The definition of terrorism offence` in section 3 will be expanded so that it applies
to:
offences against Part 4 of the UN Charter Act and Part 5 of that Act insofar as it
relates to the Charter of United Nations (Sanctions - Al Qaida) Regulations 2008
Part 5.5 of the Criminal Code, and
Subdivision B of Division 80 of the Criminal Code.
79. The importance of a consistent definition of terrorism offence, and the offences which
should be included in such a definition, has been noted by the INSLM in his Third and Fourth
Annual Reports. The practical implication of this amendment is that the provisions in the
Crimes Act concerning regulating access to bail before conviction and the imposition of
non-parole periods in sentencing of persons convicted of terrorism offences; search,
information gathering and arrest powers affecting persons suspected of terrorism offences;
the provisions for investigating terrorism offences and the questioning and detention of
persons arrested for terrorism offences will consequently apply to the relevant UN Charter
Act offences and Criminal Code offences captured by the definition.
80. Section 15AA regulates access to bail before conviction for persons charged with
certain offences. Amending the definition of terrorism offence` will result in a broader
range of offences being offences to which bail will not be granted except in exceptional
circumstances. This amendment implements a recommendation from the INSLM`s Fourth
Annual Report.
81. The amendment to the definition of terrorism offences` will also mean that
subsection 19AG(1) in respect of non-parole periods applies to a broader range of offences.
18
This will result in the court having to fix a non-parole period of at least three-quarters of the
sentence. This amendment implements a recommendation from the INSLM`s Fourth Annual
Report.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
82. The amendment engages the limitation on the freedom from arbitrary detention under
Article 9 of the ICCPR. In respect of the access to bail before conviction in section 15AA,
the denial of bail in limited circumstances is in accordance with procedures that are
established by law and cannot be considered arbitrary. The refusal to provide bail to a person
charged with, or convicted of, a terrorism offence is intended to recognise the unique and
serious threat posed to the Australian public by those alleged to have been involved in
terrorism-related activities. The high risk presented by individuals charged with terrorism
offences justifies a refusal to grant bail except in exceptional circumstances.
83. Section 15AA is sufficiently mindful of human rights obligations by facilitating the
exercise of judicial discretion. Section 15AA recognises the importance of not providing a
blanket presumption against bail, even in respect of terrorism offences. Accordingly,
subsection 15AA(1) states that bail may still be granted where there are exceptional
circumstances`. As such, this amendment does not indiscriminately deprive one of their right
to freedom from arbitrary detention or arrest. It applies to serious offences such as terrorism
and provides safeguards that demonstrate the measure is reasonable, necessary and
proportionate in responding to the threat posed by those charged with terrorism offences.
84. The impact of this amendment on the non-parole periods regime may also engage the
limitation on the freedom from arbitrary arrest or detention. However, the non-parole periods
regime is established clearly by law and does not provide decision-makers with unfettered
discretion such that the application of section 19AG could be considered inappropriate, unjust
or unpredictable.
85. This amendment achieves the legitimate objective of protecting Australia and its
national security interests. Non-parole periods are fixed only for serious crimes such as
terrorism offences, treachery and offences against Divisions 80 (treason and urging violence)
and 91 (offences relating to espionage and similar activities) of the Criminal Code. The
policy rationale is that individuals convicted of terrorism offences should not be released into
the community sooner than absolutely required on the basis they have committed serious
offences that have endangered public safety.
86. This amendment does not infringe upon an individual`s right to freedom from
arbitrary detention or arrest. It is a reasonable, necessary and proportionate measure in
responding to the continued threat presented by those who have committed serious terrorism
related crimes.
Extending the operation of powers under Part IAA, Division 3A
87. Part IAA of Division 3A relates to police powers in respect of terrorist acts and
terrorism offences. This Division is due to sunset on 15 December 2015. The COAG
Review recommended that if the search and seizure powers were to be renewed, the sunset
period should be five years, and the relevant legislation should (excepting the machinery
provisions), cease to exist after this period. This Bill extends the operation of this Division
for a further ten years until 15 December 2025. The sunset period has been extended beyond
19
the five year period recommended by COAG in recognition of the fact that the terrorist threat
remains an ongoing and real phenomenon. This amendment ensures that law enforcement
agencies continue to have the necessary counter-terrorism powers to prevent and disrupt
terrorist activity.
Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the
ICCPR, right to security of the person in Article 9 of the ICCPR, right to freedom from cruel,
inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT
88. To the extent that Part IAA, Division 3A relates to search and seize powers and entry
into premises powers, the regime limits an individual`s right to protection against arbitrary
and unlawful interferences with privacy and their home. Lawful interference with the right to
privacy will be permitted, provided it is not arbitrary.
89. The interference with the right to privacy is proportionate to and limited to the
obtaining of relevant information in respect of terrorist acts and terrorism offences. The
powers provided by the Division are subject to appropriate limitations which ensure that the
use of power is reasonable and necessary. In respect of stopping and searching powers, a
police officer may only use this power where a terrorism-related item is believed to be
present. A terrorism-related item means a thing that the police officer conducting a search
under section 3UD reasonably suspects may be used in a terrorist act, is connected with the
preparation for, or the engagement of a person in a terrorist act or is evidence of, or relating
to, a terrorist act (section 3UA).
90. In respect of the power of emergency entry into premises without a warrant, the
power may only be exercised if the police officer suspects, on reasonable grounds` that a
thing on the premises is being used in connection with a terrorism offence and that there is a
serious and imminent threat to a person`s life, health or safety` (subsection 3UEA(1)).
Moreover, a condition of notification is required within 24 hours of entry to the occupier of
the premises (subsection 3UEA(7)). A seizure notice must also be provided where items are
seized under sections 3UE or 3UEA within 7 days after the day on which the thing was
seized.
91. These measures ensure that any incursions into an individual`s right to privacy are
reasonable, necessary and proportionate. They require law enforcement officials to be
satisfied of thresholds that mean that the powers cannot be used in an arbitrary fashion and
that their level of intrusiveness is no more than necessary to achieve a legitimate objective.
The legitimate objective advanced by Part IAA, Division 3A is to assist law enforcement
officers prevent serious threats to Australia`s national security interests. The potentially
intrusive nature of the powers under Part IAA, Division 3A is balanced by its use in respect
of only terrorism offences, which constitute the gravest threats to safety of Australians.
92. Article 9 of the ICCPR requires States to provide reasonable and appropriate
measures, within the scope of those available to public authorities, to protect a person`s
physical security. Article 7 of the ICCPR guarantees that no one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. In carrying out a search under
Division 3A a police officer must not use more force, or subject the person to greater
indignity, than is reasonable and necessary to conduct the search. In conducting the search a
person must not be detained for longer than is reasonably necessary. Moreover, the use of
reasonable force is only in respect of terrorism offences and only considered a measure of last
resort in order to conduct searches.
20
93. Accordingly, the right to security of the person is limited only to the extent that it is
reasonable, necessary and proportionate to achieve the legitimate objectives of Division 3A
of Part IAA.
Lowering of the arrest threshold
94. The Bill inserts a new section 3WA to provide that a constable may, without a
warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the
Criminal Code where the constable suspects on reasonable grounds` that the person has
committed or is committing a terrorism offence or an offence against section 80.2C and that
proceedings by summons would not achieve one or more specified purposes. A 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` (section 3 of the Crimes Act).
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
95. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law.
96. This amendment reduces the threshold for arrest in relation to terrorism offences to
suspects on reasonable grounds`. This amendment to the threshold is established by law and
the requirements for such an arrest are clearly outlined in section 3WA. Its use is
appropriate, justifiable and sufficiently predictable in its operation as it does not confer
unfettered discretion on a constable to utilise powers of arrest in an arbitrary manner.
97. The requirement of suspects on reasonable grounds` requires something more than a
mere idle wondering` and must have a positive feeling of actual apprehension or mistrust,
amounting to a slight opinion``. This indicates that arrest, even under the lower threshold of
suspicion`, is not arbitrary and clear legal standards exist around the necessary mental state
required.
98. In his Fourth Annual Report, the INSLM recommended the threshold of suspects`,
noting that the power has a proactive and preventative focus and is of use in a
terrorism-related context. An arrest threshold based on suspicion is not a new concept in
Australian law and is used in a number of Australian jurisdictions. The arrest threshold in the
United Kingdom is reasonable grounds for suspecting`, a position which is consistent with
the European Convention on Human Rights. Lowering the arrest threshold will allow police
to intervene and disrupt terrorist activities and the advocating of terrorism at an earlier point
that would be possible where the threshold is reasonable grounds to believe`.
99. Accordingly, this amendment is a reasonable, necessary and proportionate measure in
relation to offences that constitute grave threats to Australia and its national security interests.
Power to obtain documents
100. In order to enhance the efficacy of the power to obtain documents relating to serious
terrorism offences in section 3ZQN, the INSLM recommended that an amendment be
inserted to provide for compliance with the notice to produce the documents within 14 days.
The INSLM considered that this would ensure the power operates as an effective
investigatory power. This amendment also overcomes an anomaly where an individual is
21
required to comply with a notice to produce documents within 14 days after the day on which
the notice is given for serious non-terrorism offences, but for serious terrorism offences no
such time limit is specified.
Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the
ICCPR
101. Article 17 of the ICCPR provides that no-one shall be subjected to arbitrary or
unlawful interference with their privacy, family, home or correspondence.
102. Section 3ZQN applies where an authorised AFP officer considers on reasonable
grounds that a person has documents relevant to, and will assist, the investigation of a serious
terrorism offence. The officer can give the person a written notice requiring the person to
produce documents as soon as practicable covering the matters identified in section 3ZQP
that are in the possession (or control) of the person. The types of matters covered in
section 3ZQP include documents relating to bank accounts held, whether a specified person
travelled or will travel between specified dates or specified locations, whether assets have
been transferred to or from a specified persons between specified dates etc. These documents
relate to matters that if disclosed could result in an infringement of the right to privacy.
103. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or
unlawful interference with their privacy, family, home or correspondence. Lawful
interference with the right to privacy will be permitted provided it is not arbitrary and in
accordance with the provisions, aims and objectives of the ICCPR and should be reasonable
in the particular circumstances. This amendment requires individuals to provide personal
documents. However, it is not arbitrary as it has been clearly prescribed by law and the
power to obtain documents must be exercised in accordance with the requirements and
safeguards contained in the section.
104. This amendment applies to serious terrorism offences which constitute a grave risk to
Australia and its national security interests. The regime itself provides important safeguards
which ensure the application of these powers are not arbitrary. The power to obtain
documents can only be used when the authorised AFP officer considers on reasonable
grounds that such documents will be relevant to, and will assist, the investigation of a serious
terrorism offence. Furthermore, the only documents that can be obtained are those in the
possession or under the control of the person. This amendment states that a notice to produce
documents must specify the date by which a person must comply with the notice, being a day
at least 14 days after giving the notice or in urgent circumstances, 3 days after the giving of
the notice. This provides a reasonable time within which an individual can compile and
provide the documents requested.
105. This amendment does not constitute an arbitrary or unlawful incursion into a person`s
right to privacy. To the extent that there is a restriction on an individual`s right to privacy,
there are number of important internal safeguards built into the regime to ensure any
interference is reasonable, necessary and proportionate.
Delayed notification search warrants scheme for terrorism offences
106. Part IAAA will introduce a delayed notification search warrant (delayed notification
search warrant) scheme into Part IAA of the Crimes Act. The existing search warrant
provisions in Part IAA of the Crimes Act require the officer executing the warrant to provide
22
a copy of the warrant to the occupier of the premises and allow them to observe the search.
The amendments proposed by Part IAAA will enable the AFP (defined in this Part as the
authorising agency`) to conduct searches of a warrant premises without the occupier`s
knowledge and without notifying the occupier of the premises at the time the warrant is
executed. Notice of the search will be required to be given to the occupier of a searched
premise at a later date, generally within six months.
107. The delayed notification search warrant scheme will provide the AFP with warrant
powers similar to those currently available under Part IAA, with the added ability to exercise
those powers covertly. This includes the power to impersonate a person where reasonably
necessary to execute the warrant. This is intended to be utilised to allay the suspicion of
other residents of the area. In addition, the executing officer or a person assisting is
empowered to leave a warrant premise temporarily and subsequently re-enter to continue the
execution of the warrant in certain instances where, for example, the occupier returns home
and the covert nature of the warrant is at risk. The executing officer or a person assisting is
also able to enter the main premise via an adjoining premises, if this is expressly specified in
the warrant, where it is required to avoid comprising the prevention or investigation of the
relevant offences. This power is limited to accessing the warrant premise and does not allow
for the search and seizure of things in that adjoining premise. Notice is to be given to the
occupier of an adjoining premises entered to gain access to the main premise at a later date,
generally within six months.
108. The ability of federal law enforcement officers to conduct a delayed notification
search warrant is critical to enable covert investigation of terrorism offences. Operational
experience has shown that the individuals and groups who commit such offences are highly
resilient to other investigative methods and pose significant threats to the Australian
community. The value of a adopting a delayed notification search warrant scheme for
terrorism offences was also recognised in the INSLM`s Fourth Annual Report.
109. A delayed notification search warrant will only be used in limited operational
situations and will be subject to a number of safeguards to balance the legitimate interests of
the Commonwealth in preventing terrorism with the need to protect human rights.
Right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the
ICCPR, right to life in Article 6 of the ICCPR, right to freedom from cruel, inhuman or
degrading treatment or punishment in Article 7 of the ICCPR and the CAT
110. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or
unlawful interference with their privacy, family, home or correspondence. Accordingly,
lawful interference with the right to privacy will be permitted, provided it is not arbitrary.
The term unlawful` means no interference can take place except in cases authorised by law.
The use of the term arbitrary` means that any interference with privacy must be in
accordance with the provisions, aims and objectives of the ICCPR and should be reasonable
in the particular circumstances. The United Nations Human Rights Committee has
interpreted reasonableness` to imply that any limitation must be proportionate and necessary
in the circumstances.
111. The delayed notification search warrant scheme limits the right to privacy by enabling
law enforcement officers to enter a warrant premises, including a suspect`s home or place of
work, without the knowledge or consent of the occupier. The limitation, however, serves the
legitimate aim of assisting the AFP to effectively prevent or investigate Commonwealth
23
terrorism offences. This is because allowing for an occupier to be notified of a search
warrant sometime after the warrant was executed or otherwise granted provides the AFP with
the opportunity to gather evidence, identify additional suspects and locate further relevant
premises and evidence while keeping the existence of an ongoing investigation confidential.
112. Without this power, there is a risk, particularly in relation to terrorist organisations,
that the occupier will alert his or her criminal associates to police interest in their activities
and that evidence will be destroyed or removed, jeopardising the success of a law
enforcement operation. A delayed notification search warrant will therefore provide the AFP
with a significant tactical advantage, enabling AFP officers to conduct further investigations
without a suspect being aware of their interest. This will achieve the legitimate objectives of
increasing the opportunity for successful investigations of terrorism offences and enhancing
the ability of the AFP to gather information about planned operations with a view to
preventing a terrorism offence from being committed.
113. The delayed notification search warrant scheme will only be utilised in limited
circumstances where it is reasonable and proportionate to do so and will be subject to a
number of safeguards, including a two-step authorisation process, rigorous reporting
requirements and oversight by the Commonwealth Ombudsman, to ensure that the powers
cannot be used arbitrarily to limit an individual`s right to privacy.
114. Part IAAA clearly identifies that the delayed notification search warrant may only be
applied for and authorised in relation to Commonwealth terrorism offences, with a maximum
penalty of imprisonment of seven years or more. This penalty threshold is consistent with
that which applies to telecommunications interception warrants and is higher than the
threshold for other Commonwealth covert schemes, such as surveillance devices and
controlled operations, which are both available in respect of offences with maximum
penalties of imprisonment of three years or more. Accordingly, a seven year threshold is
considered to be sufficiently high for making an application for and issuing of a delayed
notification search warrant, ensuring that these warrants will only be used in the investigation
of the most serious terrorism offences.
115. Furthermore, an application for a delayed notification search warrant will be subject
to a two-step authorisation process to ensure that a warrant is subject to prior scrutiny both
internally by the AFP and by an independent person before it is authorised. An officer must
first obtain internal authorisation from the Commissioner (or their delegate) of the AFP
(defined in the Schedule as the chief officer`). If the AFP Commissioner authorises the
application, the officer may then apply to an eligible issuing officer for approval. An eligible
issuing officer includes a Judge of the Federal Court of Australia, or of the Supreme Court of
a State or Territory, who consents to be nominated to act as an eligible Judge for this purpose.
An eligible issuing officer also includes a Deputy President, a full-time senior member, a
part-time senior member or a member of the Administrative Appeals Tribunal (AAT).
116. To issue the delayed notification search warrant, both the AFP Commissioner and the
eligible issuing officer will need to be satisfied that:
there are reasonable grounds to suspect that one or more eligible offences have
been, are being, are about to be or likely to be committed
entry to and search of the premises will substantially assist in the prevention of, or
investigation into, those offences, and
24
there are reasonable grounds to believe that it is necessary for the entry and search
of the premises to be conducted without the knowledge of any occupier of the
premises.
117. In addition, the eligible issuing officer must have regard to a number of key factors,
including:
the extent to which the exercise of the power under the warrant would assist the
investigation into the offences to which the application for the warrant relates
the existence of alternative means of obtaining the evidence or information sought
to be obtained
the extent to which the privacy of any person is likely to be affected
the nature and seriousness of the relevant offences to which the application for the
warrant relates
any conditions to which the warrant should be subject
whether allowing entry to an adjoining premises is reasonably necessary, and
the outcome of any previous application in respect of the premises for a NDSW or
a search warrant under Division 2 of Part IAA of the Crimes Act, so far as this is
known to the eligible issuing officer.
118. The above will ensure that a delayed notification search warrant is not authorised
where it is not appropriate to do so, for example, where there would be a disproportionate
impact on the occupier`s privacy or there is a more appropriate means of obtaining the
evidence or information sought.
119. The delayed notification search warrant that is issued must clearly specify, amongst
other details: the name of the applicant; the address of the warrant premises; the offence to
which the warrant relates; the kinds of things that may be searched for, seized, copied,
photographed, recorded, marked, tagged, operated, printed, tested or sampled; whether the
warrant authorises a thing to be placed in substitution for a thing seized under the warrant and
whether the warrant authorises the re-entry of the warrant premises to return anything to the
warrant premises, or to retrieve anything substituted at the warrant premises.
120. As a safeguard, section 2H of Subdivision C prohibits the making of false or
misleading statement in an application for delayed notification search warrant with a penalty
of imprisonment for two years.
121. Part IAAA also contains measures to ensure than an occupier receives notification
that a warrant has been authorised and/or executed as soon as practicable without
jeopardising the investigation. A delayed notification search warrant must be executed
within 30 days of issue, with notice to be given within six months of execution. An extension
of time may be granted on more than one occasion, provided that the extension is not by more
than six months at a time and it does not cause notice of the search to be given more than 18
months after the date the warrant was issued. An extension beyond 18 months may be
provided where the Minister has issued a certificate approving an application for extension
and the issuing officer is satisfied that there are reasonable grounds for granting such an
extension. This recognises that, in limited circumstances, investigations may be lengthy and
25
early notification would compromise operational outcomes. Each extension can be for no
more than six months.
122. Part IAAA will also impose rigorous reporting requirements on executing officers and
the AFP Commissioner, to ensure that delayed notification search warrant are authorised and
executed in accordance with the provisions of Part IAAA. This includes requirements for
executing officers to provide written reports to the AFP Commissioner as soon as practicable
after the warrant is executed. The AFP Commissioner must also report on each delayed
notification search warrant applied for and issued to the Minister each financial year, with the
report to be tabled in Parliament within set time limits. The Ombudsman will be required to
inspect the records of the AFP at least once every six months to determine the extent of
compliance with the scheme. Accordingly, the AFP will be required to keep detailed records
of all delayed notification search warrant that have been issued and/or applied for by that
agency. The Ombudsman is given a range of powers to assist in its oversight role, including
the power to enter agency premises and require staff members of the agency to provide
further information as required. This reporting function would also include the power to
comment on the annual report that the AFP would need to prepare on their use of these
warrants, which must also be tabled. The Ombudsman will be required to give a written
report on its inspections to the Minister at six monthly intervals, which must be tabled in both
Houses of Parliament within set time limits.
123. Finally, evidence obtained under a delayed notification search warrant will be subject
to the normal rules of criminal procedure (including evidential burdens and rules of
admissibility under the Evidence Act 1995 (the Evidence Act)). Courts will retain their
current discretion under the Evidence Act and the common law to admit or exclude any
illegally or improperly obtained evidence if any of the provisions relating to the issue and
execution of a delayed notification search warrant are not complied with.
124. A delayed notification search warrant may also authorise law enforcement officers to
covertly enter neighbouring premises to gain access to target premises. Although the exercise
of this power can limit the right to privacy of the occupiers of those premises, this power is
necessary to assist Part IAAA in achieving its legitimate law enforcement aims and is subject
to a number of safeguards which will ensure it is a reasonable and proportionate means of
achieving these aims.
125. In particular, this power is limited to authorising entry onto neighbouring premises for
the purpose of obtaining access to the target premises and cannot authorise the search of the
neighbouring premises for evidence. Access to neighbouring premises will only be
permissible where it is specifically authorised by the warrant, and will require the issuing
officer considering the warrant application to be satisfied that entry to the neighbouring
premises is reasonably necessary to avoid compromising the investigation. An occupier of the
neighbouring premises will be required to be notified in the same manner as the occupier of
the main premises, and law enforcement officers will be subject to the same reporting and
oversight requirements in relation to the neighbouring premises as for target premises. As
above, if any of these requirements are not complied with, the courts will retain their
discretion under the Evidence Act to admit or exclude any illegally or improperly obtained
evidence. Accordingly, although Part IAAA will impact the right to privacy, the limitation
will be reasonable, necessary and proportionate to achieve the legitimate aim of improving
the effectiveness of investigations of Commonwealth terrorism offences.
26
126. The power to seize and/or move items away from premises for examination and
processing will also limit the right to privacy under Article 17. This power is intended to
allow the AFP to deal more effectively with specific items, including electronic equipment
such as laptop computers and smartphones, located during searches to support the legitimate
purpose of investigating and preventing terrorism offences.
127. This power will remain subject to significant safeguards that ensure these powers are
used in accordance with the right to protection against arbitrary and unlawful interference
with privacy. This includes the threshold that, for a thing to be moved for examination or
processing, the eligible officer must suspect on reasonable grounds that the thing contains or
constitutes a thing that may be seized under the warrant and that it is significantly more
practicable to do so having regard to the timeliness and cost of examining or processing the
thing at another place and the availability of expert assistance. This item will be returned
when the AFP Commissioner is satisfied that it is no longer required and, although unlikely,
if there is any damage during this process, compensation will be available. For an item to be
retained or forfeited, the eligible issuing officer, on application by an eligible officer from the
AFP, would need to be satisfied that there are reasonable grounds to suspect that if the thing
is returned to the owner, it is likely to be used in the commission of a terrorist act, offence, or
a serious offence within the meaning of Part IAA. Details of those items seized and/or
moved will be recorded as part of the delayed notification search warrant process and, in turn,
in reports provided to the Ombudsman and to the Minister by the AFP.
128. Accordingly, to the extent that this power may affect a person`s right to protection
against arbitrary and unlawful interference with their privacy, these effects are reasonable,
necessary and proportionate in achieving the intended outcome of Part IAAA.
129. Article 6(1) of the ICCPR guarantees every human being the inherent right to life,
stating that no one shall be arbitrarily deprived of his or her life. Article 7 of the ICCPR
guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. Part IAAA potentially engages these two rights by allowing for the
use of force in the execution of delayed notification search warrant. Importantly, the power
to use force against a person or a thing, whether at the main or adjoining premise, is limited
to where necessary and reasonable in the circumstances.
130. It is not anticipated that any powers to use force against persons would be required to
be exercised during the execution of a delayed notification search warrant. However, it is
possible that an executing officer may be required to use force against persons or things in
exceptional and unforeseen circumstances. For example, an officer may need to break a lock
to access a compartment in a premises, or possibly restrain a person who unexpectedly enters
onto premises and seeks to obstruct the execution of a delayed notification search warrant.
Compensation is available for damage to electronic equipment where insufficient care was
exercised in the operation of the equipment.
131. Additionally, the law enforcement officers that will be empowered to use force
against a person under Part IAAA are trained and authorised to do so under AFP Act.
Accordingly, any potential limitation on Article 6 or 7 of the ICCPR imposed by Part IAAA
would be reasonable, necessary and proportionate.
132. Part IAAA is compatible with human rights as, to the extent that it may limit human
rights, it serves a reasonable and proportionate means of achieving the legitimate objective of
27
improving the ability of the AFP to prevent and investigate Commonwealth terrorism
offences.
Criminal Code Act 1995
Humanitarian exception for treason
133. The Bill amends subsection 80.1AA(6) to alter the humanitarian aid defence so that it
is applicable only where conduct is undertaken for the sole purpose of providing
humanitarian aid. This reflects other humanitarian aid defences in paragraph 102.8(4)(c)
and 390.3(6) of the Criminal Code. This ensures that the underlying policy objectives of the
relevant offence is not compromised and that persons who engage in treasonous conduct
cannot point to a single act, possibly part of a broader conduct, to enliven the defence. It will
also ensure, in an appropriately limited manner, that humanitarian aid can continue to be used
as a defence.
134. The human rights considerations set out below in respect of the humanitarian aid
exception to foreign incursions offences will be equally applicable in this instance.
New offence of `advocating terrorism'
135. The Bill introduces the offence advocating terrorism` in Subdivision C of
Division 80 of the Criminal Code. A person commits an offence if they intentionally
counsel, promote, encourage or urge the doing of a terrorist act or the commission of a
terrorism offence and the person is reckless as to whether another person will engage in a
terrorist act or commit a terrorist offence. Terrorist act` has the same meaning as in section
100.1 of the Criminal Code and terrorism offence` has the same meaning as in subsection
3(1) of the Crimes Act. The offence carries a maximum penalty of five years` imprisonment.
Freedom of expression in Article 19(2) of the ICCPR, freedom from cruel, inhuman or
degrading treatment or punishment in Article 7 of the ICCPR and CAT
136. Article 19(2) provides that everyone has the right to freedom of expression.
However, Article 19(3) provides that the freedom of expression may be limited if it is
necessary to achieve a legitimate purpose, such as it is necessary in the interests of national
security. The restriction on free expression is justified on the basis that advocating the
commission of a terrorist act or terrorism offence is conduct which jeopardises the security of
Australia, the personal safety of its population and its national security interests. This is
because of the severe nature of actions which are defined as terrorist acts` in section 100.1.
Terrorist acts constitute the gravest threats to the welfare of Australians as they include
causing serious physical harm or death, damaging property, creating a serious risk to the
health or safety of the public and interfering with electronic systems. It is reasonable that
such conduct should not be advocated and that reasonable steps should be taken to discourage
behaviour that promotes such actions.
137. Importantly, deterring the advocating of such acts, which can at its most serious
include causing a person`s death, promotes the rights of others (in accordance with
Article 19(3)(a)). In this instance, this may include protecting other people`s right to life in
Article 6 of the ICCPR.
28
138. These restrictions on freedom of expression are a reasonable, necessary and
proportionate measure in order to protect the public from terrorist acts and the terrorism
activities that the relevant terrorism offences are designed to deter. The new offence is an
important tool to assist disrupting and preventing the threat posed by foreign fighters.
Individuals who have travelled overseas to participate in foreign conflicts often return with
radicalised ideologies that includes violent extremism. Advocating terrorism heightens the
probability of terrorist acts or the commission of terrorism offences on Australian soil and
encourages others to join the fight overseas. The criminalisation of behaviour which
encourages terrorist acts or the commission of terrorism offences is a necessary preventative
mechanism to limit the influence of those advocating violent extremism and radical
ideologies.
139. The existence of a good faith defence in section 80.3 for the offence created by new
section 80.2C provides an important safeguard against unreasonable and disproportionate
limitations of a person`s right to freedom of expression. The good faith defence ensures that
the communication of particular ideas intended to encourage public debate are not
criminalised by the new section 80.2C. In the context of matters that are likely to pose vexed
questions and produce diverse opinion, the protection of free expression that attempts to
lawfully procure change, points out matters producing ill-will or hostility between different
groups and reports on matters of public interests is vital. The maintenance of the right to
freedom of expression, including political communication, ensures that the new offence does
not unduly limit discourse which is critical in a representative democracy.
140. This legislative safeguard, taken together with the ordinary rights common to criminal
proceedings in Australian courts, provide certainty that human rights guarantees are not
disproportionately limited in the pursuit of preventing terrorist acts or the commission of
terrorism offences. Accordingly, the limitation on the right to freedom of expression
resulting from the offence in new section 80.2C is reasonable, necessary and proportionate.
141. Article 7 of the ICCPR and CAT prohibits conduct which is regarded as cruel,
inhuman or degrading treatment. The maximum penalty of five years` imprisonment for the
new offence is not so significant that it would constitute cruel, inhuman or degrading
treatment or punishment. The maximum penalty of five years` imprisonment is considered a
proportionate response given the severity of the potential consequences of encouraging others
to engage in terrorist acts or commit terrorism offences. The penalty implements a gradation
consistent with established principles of Commonwealth criminal law policy, as documented
in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers. The Guide suggests that the maximum penalty should aim to provide an effective
deterrent to the commission of the offence, and should reflect the seriousness of the offence
within the relevant legislative scheme.
142. Furthermore, the Guide provides that a heavier penalty is appropriate where the
consequences of an offence are particularly dangerous or damaging. The penalty for the new
offence reflects the gravity of the crime and addresses the significant national security threat
presented by individuals who advocate the commission of terrorist acts or terrorism offences.
Accordingly, the maximum penalty of five years` imprisonment is reasonable, necessary and
appropriate and would not constitute cruel, inhuman or degrading treatment or punishment.
29
Definition of `terrorist organisation'
143. Currently, advocates` the doing of a terrorist act is defined in section 102.1(1A) to
mean:
(a) the organisation directly or indirectly counsels or urges the doing of a terrorist
act; or
(b) the organisation directly or indirectly provides instruction on the doing of a
terrorist act; or
(c) the organisation directly praises the doing of a terrorist act in circumstances
where there is a substantial risk that such praise might have the effect of leading a
person (regardless of his or her age or any mental impairment that the person
might suffer) to engage in a terrorist act.
144. The Bill amends the definition of advocates` in subsection 102.1(1A) to provide that
the term includes promotes or encourages in addition to counsels or urges the doing of a
terrorist act. The effect of this amendment is that where the Minister is satisfied on
reasonable grounds that an organisation directly or indirectly counsels, promotes, encourages
or urges the doing of a terrorist act the Governor-General may make a regulation listing the
organisation as a terrorist organisation.
145. A further amendment to subsection 102.1(2) now states that a terrorist act` includes a
reference to the doing of a terrorist act even if a terrorist act does not occur, a reference to the
doing of a specific terrorist act and a reference to the doing of more than one terrorist act.
146. Human rights do not apply to organisations, only individuals. As this amendment
does not impact an individual`s freedom of expression, no human rights are engaged in this
measure.
Aliases of terrorist organisations
147. This amendment allows the Attorney-General to make a declaration that an alias be
added or omitted to a terrorist organisation which is specified by a regulation. The policy
rationale for the amendment is to allow a terrorist organisation listing to be kept up-to-date
where there are rapid changes to aliases or names by which an organisation is also known,
provided that the Attorney-General remains satisfied that the alias is the same entity as the
listed organisation. The fluidity with which terrorist organisations form, evolve or adopt new
aliases has been recently illustrated in the case of the Islamic State of Iraq and the Levant
which changed its name to Islamic State. The efficacy of the terrorist listing regime is
dependent on its ability to react efficiently to these changes, especially where terrorist
organisations adopt aliases but are otherwise the same entity. The INSLM`s Fourth Annual
Report recommended the implementation of this measure. This amendment overcomes a
practical difficulty in the terrorist listing regime and does not engage any human rights.
Intentionally participating in training provided to or from a terrorist organisation
148. Section 102.5 makes it an offence to intentionally provide training to, or intentionally
receive training from a terrorist organisation where the person is reckless to the fact that the
organisation is a terrorist organisation. This Bill expands the offence to apply to situations
where a person participates in training with a terrorist organisation reckless to the fact that
organisation is a terrorist organisation. This is designed to capture circumstances in which
30
there are no formally defined teaching and learning roles in a training session, so that the
individual participants are not readily identifiable as either providing or receiving training.
Right to freedom of association in Article 22 of the ICCPR
149. Article 22 of the ICCPR protects the right of all persons to group together voluntarily
for a common goal and to form and join an organisation. Article 22(2) provides that this right
may be limited for the purpose of national security. This amendment, and more broadly the
terrorist organisation listing regime, limits the right of freedom of association to prevent
people engaging with and participating in terrorist organisations. Terrorist organisations
present a threat to the security of Australia and often seek to harm Australians and our
democratic institutions. The statutory definition of a terrorist organisation` requires that
these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a
terrorist act which includes the causing of serious harm to persons or death and serious
damage to property. Due to the severity of the danger posed by terrorist organisations, it is
reasonable, necessary and proportionate to limit the right of individuals who by their
association with a terrorist organisation pose a threat to Australians.
Retention of the control order regime in Division 104
150. The Bill extends the operation of the control order regime for a further ten years,
following the expiration of the sunset period on 16 December 2015. This implements the
Government`s response to the COAG Review which recommended the retention of the
control order regime with additional safeguards. The control order regime has been retained
in recognition of the enduring nature of the terrorist threat and the importance of providing
law enforcement agencies with the necessary tools to respond proactively to the evolving
nature of the threat presented by those wishing to undertake terrorist acts against Australia.
151. The process through which a control order is obtained pursuant to Division 104 is:
a senior AFP member must seek the Attorney-General`s consent to request an
interim control order on one of two grounds (this Bill expands the number of
grounds, which are discussed in greater detail below)
once the Attorney-General`s consent has been granted, the senior AFP member
may request a control order from an issuing court
the issuing court may only order an interim control order where it is satisfied on
the balance of probabilities that making the order will satisfy the grounds on
which the order is requested
the issuing court must also be satisfied on the balance of probabilities that each of
the obligations, prohibitions and restrictions to be imposed on the subject of the
order is reasonably necessary, and reasonably appropriate and adapted, for the
purposes of protecting the public from a terrorist act
as soon as practicable (but at least 72 hours after) the issue of an interim control
order, the AFP must decide whether to request the court to confirm the control
order
upon hearing submissions by the AFP, the subject of the control order, his/her
lawyer, or in some instances the Queensland public interest monitor, the court
may declare the interim control order void, revoke it or confirm it
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a confirmed control order may last for a period of up to 12 months from the date
of the original interim control order, and
the AFP or the subject of the control order may request that the court revoke or
vary a confirmed control order at any time after it is served upon a person.
152. Control orders are a protective mechanism and constitute an important element of the
counter-terrorism strategy. They provide the AFP with a means to request that a court
impose obligations, prohibitions and restrictions on a person for the purpose of protecting the
public from a terrorist act. The control order regime has been used judiciously to date -- at
September 2014, two control orders have been issued. This reflects the policy intent that
these orders do not act as a substitute for criminal proceedings. Rather they should only be
invoked in limited circumstances and are subject to numerous legislative safeguards that
preserve the fundamental human rights of a person subject to a control order.
153. The control order regime in Division 104 engages several human rights. Outlined
below are the rights that will are likely to be engaged by the continuation of the control
orders regime.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR, right to freedom of
movement in Article 12 of the ICCPR, right to a fair trial in Article 14 of the ICCPR, freedom
of association in Article 22 of the ICCPR, right to privacy in Article 17 of the ICCPR, right to
respect for family in Articles 17 and 23 of the ICCPR, right to freedom of expression in
Article 19(2) of the ICCPR, right to work under Article 6 of ICESCR
154. Article 12 of the ICCPR provides that persons lawfully within the territory of a State
shall have the right to freedom of movement within that State. Among the restrictions that
may be placed on an individual subject to a control order is that they may be restricted from
being in specified areas or places (paragraph 104.5(3)(a)), they may be prohibited from
leaving Australia (paragraph 104.5(3)(b)) and they may be required to remain at specified
premises between specified times each day, or on specified days (paragraph 104.5(3)(c)).
Freedom of movement can be permissibly limited if the limitations are provided by law and
are necessary to achieve a legitimate purpose, such as protecting national security and public
order.
155. The control order regime is comprehensively prescribed by legislation. A person
subject to a control order will only have their right to freedom of movement restricted on
grounds clearly established by domestic law and on grounds which are in accordance with the
requirements of Division 104. As well as being authorised by law, the purpose of the control
order regime is to protect the Australian public from a terrorist act. This is because the
circumstances in which a control order may be sought, including the expanded grounds
proposed by this Bill are: where the order would substantially assist in preventing a terrorist
act`, or where a person has been providing training to or receiving from or participating in
training with a listed terrorist organisation, engaging in a hostile activity in a foreign country
or being convicted in Australia or a foreign country of an offence relating to terrorism, a
terrorist organisation or terrorist act.
156. The restriction of freedom of movement must be reasonable, necessary and
proportionate to achieving this objective. These requirements are reflected in the legislative
framework of the control order regime. An issuing court may only issue a control order
where the court is satisfied on the balance of probabilities that each of the obligations,
32
prohibitions and restrictions to be imposed on the person by the order is reasonably
necessary, and reasonably appropriate and adapted, for the purpose of protecting the public
from a terrorist act` (paragraph 104.4(1)(d)). This ensures that the restrictions on freedom of
movement caused by a control order are no greater than is required to protect the welfare of
the Australian public. The gravity of consequences likely to be occasioned by a terrorist act
justifies a reasonable and proportionate limitation of free movement.
157. Article 22 of the ICCPR provides that everyone shall have the right to freedom of
association with others. The control order regime may limit this right to the extent that an
express restriction may be placed on the subject of a control order that prevents them from
associating or communicating with specified individuals (paragraph 104.5(3)(e)). This may
also relevantly impact upon the right to respect for family in Articles 17 and 23 of the ICCPR
where a restriction is placed on an individual`s right to associate with their own family
members.
158. However, Article 22(2) allows for permissible limitations on the freedom of
association where it is to advance a legitimate objective, one of which is the interests of
national security. Moreover, the proportionality of a restriction on association is maintained
on the basis that the restriction on associating with certain individuals requires a degree of
specificity about the individuals whom a subject of a control order may not associate with.
The associations that are restricted are those that increase the likelihood of a terrorist act
being committed by the subject of the control order.
159. Moreover, the overarching requirement that a court be satisfied that any restriction be
reasonably necessary` and reasonably appropriate and adapted` to protecting the public
from a terrorist act prevents indiscriminate and disproportionate intrusions into an
individual`s freedom of association. Further, in identifying the appropriate restriction, the
court is also required to take into account the impact of the restriction on the person`s
circumstances (subsection 104.4(2)). This additional safeguard ensures that each restriction
is tailored to the subject of the control order and that specific circumstances inform the
appropriateness of a restriction.
160. In addition to the above, any restriction under paragraph 104.5(3)(e) that prevents a
person communicating or associating with specified individuals is limited.
Subsection 104.5(4) provides that the matters subsection 102.8(4) of the Criminal Code
applies to paragraph 104.5(3)(e) in the same way as that subsection applies to section 102.8
and a person`s association. The exceptions under subsection 102.8(4) include an association
with a close family member relating to a matter of family or domestic concern, an association
in a place used for public religious worship and takes place in the course of practising a
religion, an association for the purposes of providing aid of a humanitarian nature or an
association for the purpose of providing legal advice or legal representation in connection
with certain proceedings as set out in subparagraphs 102.8(4)(d)(i) to (vi).
161. Accordingly, a restriction on the freedom of association is reasonable, necessary and
proportionate.
162. Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful
interference with their privacy. The collection, use and storage of personal information
constitutes an interference with privacy. The control order regime limits the right to
protection against arbitrary and unlawful interferences with privacy to the extent it can
require the person to wear a tracking device (paragraph 104.5(3)(d)), require the person allow
33
himself or herself to be photographed (paragraph 104.5(3)(j)) and allow impressions of a
person`s fingerprints to be taken (paragraph 104.5(3)(k)). These limitations on the right to
privacy are justified on the basis they protect the public from a terrorist act. These
obligations assist in advancing Australia`s national security and ensure identification and
enforcement of the control order. Photographs and impressions of fingerprints obtained under
paragraphs 104.5(3)(j) and (k) are collected, stored and disclosed in accordance with the
Australian Privacy Principles (noting that there have been no control orders since the
enactment of the Australian Privacy Principles) and section 104.22--treatment of
photographs and impressions of fingerprints.
163. The procedures by which this restriction on privacy is permitted are authorised by law
and not arbitrary. The operation of the control order regime is prescribed clearly in
Division 104. The use of the term arbitrary` suggests that any interference to privacy must
be in accordance with the provisions, aims and objectives of the ICCPR and should be
reasonable, necessary and proportionate to achieving that objective.
164. Legislative safeguards within the control order regime in Division 104 operate so as
to not limit the right to privacy beyond what is reasonable, necessary and proportionate.
These include that the restrictions imposed by a control order must be reasonably necessary`
and reasonably appropriate and adapted` for the purpose of protecting the public from a
terrorist act. Further, a photograph or impression of fingerprints obtained from the subject of
a control order must only be used for the purpose for which they were taken - ensuring
identification and enforcement of the order (subsection 104.22(1)). Subsection 104.22(3)
creates an offence where a person uses the photograph or impression of fingerprints in a
manner inconsistent with the purposes of ensuring compliance with the control order. The
offence carries a maximum penalty of imprisonment for two years. Furthermore, a
photograph or impression of fingerprints obtained from the subject of a control order must be
destroyed as soon as practicable after 12 months after the control order ceases to be in force
(subsection 104.22(2)). These guarantees seek to minimise the level of interference with
privacy and demonstrate an intention to permit interference only to the extent that it is
reasonable, necessary and proportionate to achieve a legitimate end.
165. The right to freedom of expression in Article 19(2) of the ICCPR can be limited by
the control order regime to the extent that the subject of a control order may be prohibited or
restricted from accessing or using specified forms of telecommunications or other
technology, including the internet (paragraph 104.5(3)(f)). This is in accordance with a
legitimate purpose in Article 19(3) on the grounds of national security.
166. The restriction on freedom of expression is justified on the basis that certain ideas that
advocate terrorist acts or promote extremist ideologies may jeopardise national security and
the communication of such ideas may endanger the liberty and safety of others. The
legislative requirement that all restrictions be reasonably necessary` and reasonably
appropriate and adapted` to prevent the public from a terrorist act ensures that restrictions on
the freedom of expression are no greater than what is reasonable, necessary and proportionate
to achieving the legitimate objective.
167. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law. The impact of the control order regime on this right will
be considered separately in respect of the amendment relating to the indicative maximum
curfew.
34
168. Article 6 of ICESCR requires that State Parties must recognise the right to work,
including the right of everyone to have the opportunity to gain their living by work which
they freely choose or accept and take appropriate steps to safeguard this right. Article 4 of
the ICESCR provides that States may only subject the rights contained in the Covenant to
such limitations as are determined by law only in so far as this may be compatible with the
nature of these rights and solely for the purpose of promoting the general welfare in a
democratic society. The control order regime may limit this right to the extent it can
authorise a prohibition or restriction on the person carrying out specified activities, including
in respect of his or her work or occupation (paragraph 104.5(3)(h)).
169. The restriction on the right to work has been authorised by law and is subject to
important legislative safeguards. Intrusions into the right to work at a place of choice are
limited by the legislative requirement that the restriction be reasonably necessary and
reasonably appropriate and adapted` to protect the public from a terrorist act. This clarifies
that the restriction is an important part of achieving the objectives of the control order regime
and that the impact on the rights of the individual subject to the control order is not greater
than is necessary to achieve this objective. Of particular importance is the requirement that
courts also turn their mind to the specific impact of a restriction on a person`s circumstances,
including the person`s financial and personal circumstances. This ensures that any of the
proposed restrictions on a subject of a control order cannot be characterised as
disproportionate as they do not impose restrictions where they are not specifically needed.
170. More broadly, the control order regime is confined in its scope and its propensity for
misuse by a range of legislative safeguards that protect the rights of the subject of a control
order. For instance, the right to a fair trial and due process under Article 14 of the ICCPR is
enhanced by:
the requirement that the control order only come into force when the individual is
notified of it (section 104.12)
the subject`s right to apply for the order to be varied, revoked or declared void as
soon as they are notified that an order is confirmed (section 104.18)
the subject of the order and their lawyer`s right to obtain a copy of the order
outlining the reasons for the order (section 104.13), and
a court`s ability to revoke or vary a confirmed control order on an application
made under sections 104.18 or 104.19 (section 104.20).
171. In addition, the control order regime cannot be sought in respect of children under the
age of 16. The regime operates in a modified fashion for persons between the age of 16
and 18. Finally, the reporting requirements placed upon the Attorney-General also provide
an element of transparency by requiring Parliament to be kept abreast annually on the
operation of the control orders regime (section 104.29).
172. The retention of the control order regime engages a variety of human rights. To the
extent that such rights are limited, the restrictions are reasonable, necessary and proportionate
to achieving the legitimate objective of protecting the public from a terrorist act and not
compromising national security interests.
35
Attorney-General's consent to request an interim control order
173. The Bill amends the threshold for an AFP member seeking a control order under
paragraph 104.2(2)(a) from considers` to suspects`. This amendment means that an AFP
applicant can request the Attorney-General`s consent for a control order based on a lower
degree of certainty as to whether a control order would substantially assist in preventing a
terrorist act`.
174. Nevertheless, the threshold of suspicion` requires:
more than a mere idle wondering whether it exists or not; it is a positive feeling of
actual apprehension or mistrust, amounting to a "slight opinion", but without
sufficient evidence...Consequently, a reason to suspect that a fact exists is more than a
reason to consider or look into the possibility of its existence." (Kitto J in Queensland
Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 - quoted in George v Rockett (1990)
170 CLR 104).
175. The threshold of suspicion` is not so low as to allow a control order to be issued
arbitrarily or capriciously.
176. The limitations on the human rights identified above, particularly regarding the
freedom from arbitrary detention and arrest in Article 9 of the ICCPR, that are likely to flow
from amending the threshold may be justified on the basis that the amendment seeks to
achieve a legitimate objective, being the promotion of Australia`s national security. The
threat posed by individuals engaging in and returning from conflicts overseas is novel in its
scale. The numbers of Australians now believed to be engaged in foreign conflicts presents a
serious security threat to Australia. These individuals are politically or ideologically
motivated and there is nothing in their beliefs that would suggest their motivations cease once
they leave a foreign country and return to Australia. The amended threshold reflects the view
that in the present threat environment, the restriction on the rights identified is justified given
the heightened threat posed by foreign fighters.
177. Additionally, the important safeguards of ensuring the control order in fact protects
the public from a terrorist act and that any restrictions are reasonably necessary, and
appropriate and adapted` to this end ensure that the limitations on rights are no more than is
reasonable, necessary and proportionate to achieving a legitimate objective.
178. However a person`s rights under Article 9 are ultimately protected by section 104.4
and the fact that a court must apply a balance of probabilities test to the evidence produced in
support of the issuance of a control order before deciding to issue one.
Requesting an interim control order
179. Paragraph 104.2(2)(b) will be amended to include the following changes:
expanding the limb to capture those participating in training with a listed terrorist
organisations
expanding the limb to capture those engaged in hostile activity in a foreign
country (within the meaning of subsection 117.1(1)), and
expanding the limb to capture those convicted in Australia or a foreign country of
an offence relating to terrorism, a terrorist organisation or a terrorist act.
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180. The impact of these changes is to extend the instances in which a control order may
be sought. They will, in particular, apply to those who are suspected of participating in
training with terrorist organisations or those engaged in hostile activity in a foreign country.
The risk posed by these individuals is that their association with terrorist organisations and
engaging in a hostile activity in a foreign country provides them with enhanced capabilities to
undertake terrorist acts on Australian soil upon their return. The nature of the restrictions
imposed by control orders will be subject to the overarching legislative requirements that
includes consideration by the issuing court that any limitation be reasonably necessary` and
reasonably appropriate and adapted` to protecting the public from a terrorist act. As such, it
is expected that any limitations will be reasonable, necessary and proportionate to achieve the
legitimate objective of preventing those with enhanced terrorist capabilities (as a result of
participating in training with terrorist organisations or having engaged in foreign conflicts)
from committing terrorist acts on Australian soil.
181. The application of a control order on an individual who has been convicted of a
terrorism offence in Australia or in a foreign jurisdiction creates a technical difficulty because
there is no agreed definition at international law. What constitutes terrorism may vary from
country to country. A concern may arise about the indiscriminate use of this limb to place
control orders on individuals whose conduct is not in an appropriate sense a terrorism-related
offence in the Australian context. However, the additional requirements must be fulfilled
before a control order is issued which ensures that the terrorism offence limb is not arbitrarily
or capriciously used. Any restriction must still be reasonably necessary, and reasonably
appropriate and adapted` to protect the public from a terrorist act. Accordingly, a control
order will not be issued for offences characterised in foreign countries as terrorism` but in
Australia pose no credible risk to the public of a terrorist act (as defined in section 100.1).
A nexus between the previous conduct constituting terrorism in a foreign country and a threat
to the Australian public of a terrorist act must be clear. Where no such nexus exists, a control
order cannot be issued.
182. Article 14 of the ICCPR protects the right to a fair trial and in particular states that no
one shall be punished for an offence for which they have already been fully convicted or
acquitted in accordance with the law and penal procedure of each country. It may be
contended that this right is infringed where control orders are applied to persons who have
already been tried and punished for having committed a terrorism offence in Australia or a
foreign country. However, the application of control orders to such individuals is justifiable
on two grounds. Firstly, those convicted of terrorism offences and sentenced to a term of
imprisonment may not have satisfactorily rehabilitated and may show continued
dangerousness. Upon their return into society, they may hold the type of radical political or
ideological beliefs that previously inspired them. As such, they still pose a significant
security threat to Australia and its national security interests. Secondly, the control order
regime does not constitute a criminal penalty as is neither punitive nor retributive. Rather,
the regime seeks to protect members of the public from the risk of terrorist acts by placing
obligations, prohibitions and restrictions on the controlled person`s involvement in activities.
Accordingly, this amendment does not further punish those who have been convicted or
acquitted in accordance with the law.
Indicative maximum curfew
183. Currently, paragraph 104.5(3)(c) does not indicate a length of time a person may be
required to remain at specified premises between specified times each day, or on specified
37
days as part of a control order restriction. The Bill introduces a maximum curfew of twelve
hours within a 24-hour period.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
184. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law. It may be contended that the duration of time for which
a subject of a control order may be subjected to could result in a form of detention (by
requiring an individual to be in one place for twelve hours).
185. However, the curfew period cannot in any sense be considered arbitrary`. The
conditions of a restriction to remain within specified premises is established by and granted in
accordance with the law. In determining whether a restriction on a person`s movement for an
extended period is acceptable, the issuing court must consider whether the restriction is
reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting
the public from a terrorist act` (paragraph104.4(1)(d)). Furthermore, the court must also take
into account the impact of the restriction on the person`s circumstances, including the
person`s financial and personal circumstances (subsection 104.4(2)). These remove the
element of arbitrariness from an extended curfew and ensure that any limitations on an
individual`s rights are reasonable, necessary and proportionate.
Advising controlled persons of their rights
186. The amendment to paragraph 104.12(1)(b) requires that the AFP member inform the
person that he or she has the following legal rights in relation to the interim control order: the
right to appeal and review rights in relation to the decision of the issuing court, the person`s
right to attend court to confirm or declare or revoke the interim control order, the right of the
person (or their representatives) to adduce evidence if the interim order is confirmed, the
person`s right to apply for a variation or revocation if the interim order is confirmed and the
person`s right (or their representative) to adduce evidence in relation to an application to
revoke or vary the control order if it is confirmed. This amendment is supported by the views
expressed by the COAG Review in its report on Australia`s counter-terrorism legislation.
Right to a fair trial in Article 14 of the ICCPR
187. The subject of a control order has his or her right to a fair trial under Article 14 of the
ICCPR promoted by this amendment. The subject of the control order is given the
opportunity to be fully alerted of their rights under the control order regime and of the
appropriate means of appeal should he or she wish to challenge the application of the control
order. The subject of a control order is appropriately informed of the procedures that will
allow him or her to protect their own rights, including adducing evidence to support the
variation or revocation of a confirmed control order. These measures cumulatively promote
an individual`s right to a fair trial.
Retention of the preventative detention order regime in Division 105
188. The Bill extends the operation of the PDO regime for a further ten years, following
the expiration of the sunset period on 16 December 2015. This amendment is intended to
recognise the enduring nature of the terrorist threat and the importance of ensuring that law
38
enforcement agencies have the necessary preventative tools to counter imminent and severe
national security threats.
189. The key elements of the PDO regime pursuant to Division 105 are:
the AFP applicant and the issuing authority must be satisfied of three matters: the
terrorist act is imminent (within the next 14 days), the making of the order would
substantially assist in preventing a terrorist act occurring` and detaining a person
is reasonably necessary to prevent a terrorist act occurring
there is a limited duration for which a PDO operates, being a maximum of 48
hours with the requirement to seek the approval of an issuing authority for an
extension beyond the initial 24 hours
where a PDO is made on an evidence preservation basis, the AFP member and
issuing authority must be satisfied that a terrorist act has occurred within the last
28 days, that it is necessary to detain the person to preserve evidence of, or
relating to the terrorist act, and that detention is a reasonably necessary step in
achieving this outcome
an AFP member may apply to an issuing authority for a continued PDO. The
issuing authority may authorise a continued PDO after considering afresh the
merits of any application and whether the statutory criteria for the order being
made is satisfied. The period of time of detention, including any initial periods,
must not be greater than 48 hours
a prohibited contact order may be sought where it is reasonably necessary to
prevent serious harm to a person, to avoid a risk of action being taken to prevent
the occurrence of a terrorist act, and to avoid other specified risks, and
the key review mechanisms include: the detainee`s right to apply, on expiration of
the order, to the Security Appeals Divisions of the AAT to seek merits review of
the decision to make or extend an order; the detainee`s right to bring proceedings
in a court on expiration of the order relating to the issuing of the order or their
treatment in detention; or limited right to review of a Commonwealth order on
grounds available in reviews of state and territory orders.
190. The PDO regime engages several human rights. The restriction on human rights
resulting from the continuation of the PDO regime are justifiable on the basis they are in
pursuit of achieving a legitimate objective - being the detention of individuals where there
are reasonable grounds to suspect they will engage in a terrorist act, possess a thing
connected with engaging or preparing for a terrorist act, have done an act in preparation for
or planning a terrorist act; or it is necessary to detain the person to preserve evidence relating
to a recent terrorist act. To the extent that particular rights have been limited, such limitations
are reasonable, necessary and proportionate to achieving this legitimate objective. Outlined
below are the human rights implications.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR, freedom of movement
in Article 12 of the ICCPR and right to a fair trial in Article 14 of the ICCPR, right to be
treated with humanity and dignity under Article 10 of the ICCPR, freedom from cruel,
inhuman or degrading treatment or punishment in Article 7 of the ICCPR and CAT
191. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
39
procedure as are established by law. That means a person can only be subject to a PDO
where the grounds for such an order are clearly established in domestic law. The law itself
should not be arbitrary and must not be enforced in an arbitrary manner. This means that
detention must not only be lawful, but reasonable and necessary in all the circumstances.
192. The PDO regime is not arbitrary as its operation is governed by the legislative
framework in Division 105. This ensures that it is only applied for the purposes of
preventing an imminent terrorist act occurring or to preserve evidence of, or relating to, a
recent terrorist act. The resulting detention from a PDO achieves the legitimate objective of
protecting Australia and its national security interests. This is attained by preventing a crime
occurring or to preventing interference with evidence relating to a terrorist act. In practice,
the AFP has not yet had to rely on the use of a PDO, demonstrating the fact that the PDO
regime has not been applied arbitrarily and inappropriately. It is aptly considered an avenue
of last resort and only to be applied in the most severe of circumstances. Accordingly, the
PDO regime cannot be said to infringe upon an individual`s freedom from arbitrary detention
or arrest.
193. Article 12 of the ICCPR provides the right to freedom of movement. The legitimate
aim to be pursued by limiting the freedom of movement in respect of PDO is the prevention
of an imminent terrorist act or the preservation of evidence relating to a recent terrorist act.
Nevertheless, the means through which a legitimate objective is achieved must be reasonable,
necessary and proportionate.
194. The PDO regime provides sufficient protection against unreasonable and
disproportionate limitations of an individual`s right to freedom of movement. This is
evidenced by the high threshold required to be satisfied when applying for and issuing a
PDO. The application for a PDO requires that an AFP member must be satisfied on
reasonable grounds` that the suspect will engage in a terrorist act, possess a thing related to
or done an act in preparation for or planning a terrorist act (paragraph 105.4(4)(a)). Even if
this is satisfied, an AFP member must still demonstrate that the PDO will substantially assist
in preventing a terrorist act occurring` and demonstrate that detention is reasonably
necessary` for the purpose of preventing a terrorist act (paragraphs 105.4(4)(b) and (c)).
Similar requirements exist in respect of application for a PDO for the preservation of
evidence of, or relating to, the terrorist act (subsection 105.4(6)). A continued PDO under
section 105.12 requires the issuing authority to consider the merits of the application afresh
prior to issuing a continued PDO. Each of these requirements limits the instances under
which a PDO may be sought and demonstrates that a PDO is applied only when reasonable,
necessary and proportionate.
195. Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful
interference with their privacy. The PDO regime limits such a right where it allows a police
officer by force to take identification material from a person if the police officer believes on
reasonable grounds that it is necessary to do so for the purpose of confirming the person`s
identity as the person specified in the PDO. The restriction on the right to privacy is
articulated clearly in section 105.43 and not in any relevant sense arbitrary. Further,
identification of a PDO subject is a legitimate objective. The failure to properly identify the
intended subject of the PDO could result in the wrong individual being subject to detention.
This is a risk that can be reasonably mitigated by limited incursions into one`s right to
privacy. Any material obtained must be destroyed as soon as practicable after the end of that
period. Accordingly, the restriction on the right to privacy is not arbitrary and is a
reasonable, necessary and proportionate measure.
40
196. The PDO regime has important legislative safeguards which preserve a variety of
human rights. For instance:
Article 7 of the ICCPR and the CAT prohibit conduct which may be considered
cruel, inhuman or degrading treatment or punishment. Article 10 of the ICCPR
provides that all persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the person. These rights are protected
by section 105.33 which guarantee that a person detained must be treated with
humanity and not be subjected to cruel, inhuman or degrading treatment.
A contravention is an offence under section 105.45 which results in two years`
imprisonment.
Article 37(3) of the CRC guarantees that a child who is deprived of his or her
liberty shall be separated from adults unless it is in a child`s best interest not to do
so. Section 105.33A guarantees this right and creates an offence where a senior
AFP officer fails to do so.
Article 37(3) of the CRC also protects the rights of the child to maintain contact
with his or her family through correspondence and visits, except in exceptional
circumstances. Section 105.39 protects the right of a child to have contact with a
parent or guardian for a period of two hours a day or such longer period as
specified in the PDO (subsection 105.39(5)).
Article 14 of the ICCPR provides fair trial rights and minimum guarantees in
criminal proceedings. The PDO regime requires that an AFP member advise the
person detained under the order of particular matters about the regime, including
their right to make representations before a senior AFP member, to contact a
lawyer and family members and to make complaints to the Commonwealth
Ombudsman. The availability of an interpreter to communicate certain obligatory
matters is covered by section 105.5A and further enhances a person`s rights under
Article 14.
197. The enduring nature of the terrorist threat and the heightened risk posed by returning
foreign fighters justifies the continued existence of the PDO regime. In the evolving
terrorism landscape, it remains an appropriate preventative mechanism in rare situations
where immediate and preventative action is required by Australia`s law enforcement
agencies.
State of mind of an AFP member--issuing criteria
198. Currently, the issuing and application criteria for a PDO require that the AFP member
and the issuing authority be satisfied of the matters in subsections 105.4(4) and 105.4(6).
Accordingly, paragraph 105.4(4)(a) requires that both the applicant and the issuing authority
must hold the same state of mind in relation to the existence of the matters set out in
subparagraphs (i)-(iii). This amendment prescribes a different state of mind for the AFP
member who is now required to suspect, on reasonable grounds` of one of the matters set out
in subparagraphs (i)-(iii). This produces a dual subjective-objective requirement, as opposed
to the formerly objective requirement.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
199. This amendment engages the right to freedom from arbitrary arrest or detention in
Article 9 of the ICCPR. It is unlikely that this amendment could be considered arbitrary` in
41
any sense as it is clearly articulated in section 105.4 and accordingly, established by law.
Despite amending the threshold for an AFP applicant, an important safeguard that remains
unchanged is the state of mind required of the issuing authority under section 105.4.
Furthermore, the existing safeguards within the PDO regime ensure that the operation of a
PDO is not arbitrary and occurs for no longer than is necessary to prevent imminent threats to
Australia`s national security.
Evidence preservation orders - issuing criteria
200. The Bill provides that a PDO may be sought where it is reasonably necessary` to
preserve evidence of, or relating to, the terrorist act. The amendment was proposed by the
INSLM who considered that from a practical perspective, the necessary` requirement alone
would prove a difficult threshold to be satisfied of, effectively requiring satisfaction that the
destruction or loss of evidence will occur.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
201. This amendment does not arbitrarily` deny an individual their right to freedom from
detention and arrest as it is clearly articulated in section 105.4 and accordingly, established by
law. Its operation is clear and appropriate and justifiable on the basis that it seeks to achieve
a legitimate objective. The legitimate objective in this instance is to allow the AFP to more
effectively investigate and gather evidence of, or relating to, terrorist acts. The obtaining of
vital evidence assists in the prosecution of those engaging in terrorist acts and provides a
strong deterrent for others who may wish to undertake such acts.
Verbal and electronic applications in urgent circumstances
202. The Bill provides for the making and issuing of an initial and extended PDO on an
urgent basis by electronic or verbal means. The measure similarly provides for the making
and issuing of a prohibited contact order on an urgent basis by electronic means. A new
provision will also be included to clarify that an urgent prohibited contact order may be
sought in parallel with an application for an urgent initial PDO by electronic means. Urgent
application will be permissible only if a senior AFP member considers that it is necessary
because of specific urgent circumstances. This amendment does not engage any human
rights.
Application of PDO where an individual's full name is not known
203. The Bill will allow a senior AFP member to make an initial PDO where a person`s
full name is not known, but they are able to be identified as the intended subject of the PDO.
Such situations arise where someone is known by an alias or partial name.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
204. This amendment does not arbitrarily` deny an individual their right to freedom from
detention and arrest as it is clearly articulated in section 105.4 and accordingly, established by
law. This expansion of the breadth of operation of the PDO regime does not provide
decision-makers with unfettered discretion regarding when a PDO will apply.
205. Furthermore, the limitation is justified on the basis that the PDO is applicable only to
prevent imminent terrorist acts or to preserve evidence of, or relating to, a terrorist act. These
acts pose a threat to Australia and its national security interests. The failure of law
42
enforcement agencies to act proactively and efficiently to prevent such threats could result in
threats to the safety of others. The legitimacy of the amendment is further supported by the
fact that law enforcement officials will still need to be able to identify the individual who is
to be the subject of a PDO to a reasonable level of certainty, for instance, by knowing the
individual`s identity through a partial name or alias. Given the grave consequences of a
failure to prevent imminent terrorist acts, the allowing of a PDO to be issued for individuals
whose full names are not known is a reasonable, necessary and proportionate response.
New Part 5.5 (Foreign incursions and recruitment) of the Criminal Code
206. These amendments flow from the repeal of the Foreign Incursions Act and the
transfer of its contents to new Part 5.5 of the Criminal Code.
Amendment of the definition of `recruit'
207. New subsection 117.1(1) of Part 5.5 of the Criminal Code will amend the definition of
recruit` from procure, induce and incite` in subsection 3(1) of the Foreign Incursions Act so
that it is consistent with Part 5.3 (Terrorism) of the Criminal Code, being induce, incite and
encourage`. This amendment will modernise the definition used in relation to foreign
incursion and recruitment offences and provide clarity and consistency in relation to the
definition of recruit` in the Criminal Code. The new definition will include encourage`
which is not novel as the definition of incite` in the Foreign Incursions Act includes
encourage`. Incite` was separately defined in the Foreign Incursions Act as including urge,
aid and encourage and also includes print or publish any writing that incites, urges, aids or
encourages`. On this basis, it is a largely technical amendment.
Right to freedom of expression in Article 19 of the ICCPR
208. Article 19(2) of the ICCPR provides that everyone has the right to freedom of
expression, including the freedom to impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art or through any other media.
This includes the freedom to receive and impart information. Article 19(3) provides that this
right may be subject to certain restrictions that are established by law and are necessary for
the protection of national security.
209. Amending the definition of recruit` in relation to foreign incursions, while already an
offence, may operate to restrict the free expression of ideas where the expression involves
recruiting persons to join organisations acting against the governments of foreign countries or
to serve in or with an armed force in a foreign country. Recruiting for a terrorist
organisation, including encouraging a person to join, is already a criminal offence under the
Criminal Code. Permissibly limiting freedom of expression to prevent individuals
undertaking this type of behaviour, in particular, from recruiting individuals to join
organisations engaged in hostile activities against foreign governments, is necessary to
protect national security by assisting in preventing the recruitment of individuals to take part
in violent conflicts overseas.
210. Statistics indicate that a significant number of Australians have already been recruited
in Australia and are engaged as foreign fighters in conflicts in Syria and Iraq. When these
individuals return to Australia, they often possess enhanced capabilities to undertake terrorist
and other acts that could threaten the Australian Government and people in Australia. On this
basis, to the extent that amending the definition of recruit` engages and limits the right to
43
freedom of expression, such a limitation is necessary in the interests of Australia`s national
security. It is a reasonable and proportionate measure to discourage the recruitment of
Australians in Australia from partaking in foreign conflicts, particularly where terrorist
organisations are involved.
Definition of `engages in subverting society'
211. The previously undefined phrase engaging in armed hostilities in a foreign State` in
paragraph 6(3)(aa) of the Foreign Incursions Act has been substituted with the phrase
engages in subverting society` in new subsection 117.1(1) of the Criminal Code. The
definition of engages in subverting society` provided at subsection 117.1(3) refers to conduct
similar to that which constitutes a terrorist act` in section 100.1. This is intended to ensure
that a narrow interpretation of impermissible conduct under the foreign incursions regime is
not adopted. Accordingly, the broader definition of what amounts to engaging in a hostile
activity ensures that conduct, which at its most serious could result in another person`s death,
is appropriately deterred. This amendment is a technical amendment to provide clarity and
does not engage any human rights.
Including `a section of the public' to align with the Criminal Code
212. The Bill amends subparagraph 6(3)(b) of the Foreign Incursions Act (new
subsection 117.1(1) in the Criminal Code) to insert the text the public, or a section of the
public, in the foreign State` to ensure that conduct otherwise criminalised under the foreign
incursions regime, but directed at causing by force or violence a small minority group in a
foreign State to be in fear of suffering or death or personal injury, is not excluded.
213. This amendment is consistent with the objectives of the foreign incursions regime and
also ensures consistency with the wording of the provisions in section 100.1 of the Criminal
Code concerning intimidation of the public or a section of the public. This is consistent with
the INSLM`s recommendation in the Fourth Annual Report. This amendment is a minor
measure and technical in nature and, consequently, does not engage any human rights.
Offences of incursions into foreign countries with the intention to engage in hostile
activities
214. New section 119.1 of Part 5.5 of the Criminal Code will replace section 6 of the
Foreign Incursions Act. This section was drafted to criminalise engaging in a hostile activity
in a foreign country or entering a foreign country with the intent to engage in a hostile
activity in that foreign country. The INSLM`s Fourth Annual Report and the COAG Review
both highlighted that in order to overcome the practical difficulties of proving a particular
foreign country was the target destination, the section should be amended to remove the need
to prove an intention to engage in hostile activity in a particular foreign country. This will
enable intervention by the Commonwealth Director of Public Prosecutions at an
appropriately preparatory stage` where an individual may be contemplating undertaking
incursions in various theatres of violence, but plans to travel to a third country to obtain
training, materials or guidance as to his or her ultimate destination. It will also capture a
situation where a person enters a foreign country without the intention to engage in hostile
activity and then forms an intention to engage in hostile activity in that country.
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Right to a fair trial in Article 14 of the ICCPR
215. Article 14 of the ICCPR provides that, in the determination of any criminal charge
against a person, that person shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. Article 14 also contains a range of
minimum guarantees in criminal proceedings. The amendment addresses practical
difficulties that have arisen in prosecuting persons and will enable a broader range of conduct
to be captured under the offence provisions. In this regard, the amendment engages the right
to a fair trial. However, the inherent safeguards guaranteed by Australian court proceedings
and the requirement on the prosecution to discharge the burden of proof by having to make
out all the elements of an offence mean that a defendant`s right to receive a fair trial has not
been limited as a result of this amendment. The new section 119.1 will not apply
retrospectively.
Alignment of penalty provisions with the Criminal Code
216. As part of the alignment of the Foreign Incursions Act to the existing provisions of
the Criminal Code, the offences under sections 6, 7 and 8 of the CFIRA will be made
consistent with the reflecting Criminal Code offences. Accordingly, offences against
section 6 of the Foreign Incursions Act (now subsection 119.1(1)) will align with the terrorist
act offence at section 101.1 of the Criminal Code with the penalty increased from a maximum
period of 20 years` imprisonment to life imprisonment. Offences for preparation for
incursions into a foreign country in section 7 of the Foreign Incursions Act (now
subsection 119.4(1)) will align the terrorist act preparation offence at section 101.6 of the
Criminal Code with the penalty increased from a maximum period of ten years`
imprisonment to life imprisonment. Finally, offences of recruitment for foreign incursions in
section 8 of the Foreign Incursions Act (now section 119.6) will align with the terrorist
organisation recruitment offence at subsection 102.4(1) of the Criminal Code with the penalty
increased from a maximum period of seven years` imprisonment to 25 years` imprisonment.
These amendments will not operate retrospectively.
Right to freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of
the ICCPR and the CAT, right to freedom from arbitrary detention in Article 9 of the ICCPR
217. Article 7 of the ICCPR and the CAT prohibit conduct which may be considered cruel,
inhuman or degrading treatment or punishment (ill treatment`) and can be either physical or
mental. The United Nations treaty bodies responsible for overseeing the implementation of
these treaties have provided guidance on the sort of treatment that is prohibited. Examples of
cruel, inhuman or degrading treatment include unduly prolonged detention that causes mental
harm. Punishment may be regarded as degrading if, for instance, it entails a degree of
humiliation beyond the level usually involved in punishment. These rights are absolute and
cannot be limited in any way. Relatedly, Article 9 of the ICCPR provides that no-one shall
be subjected to arbitrary detention or deprived of their liberty except on such grounds and in
accordance with such procedure as are established by law.
218. The increased penalties for foreign incursion and recruitment offences are
proportionate and reflect the gravity of these offences. Australians engaged in foreign
conflicts act to destabilise foreign governments and may be involved in the perpetration of
violence, which at its most serious could involve unlawful death or an intention to cause
unlawful death. Moreover, those returning from foreign conflicts to Australia may have
enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia.
45
To this extent, the penalty provisions reflect the seriousness of the offences and the threat
posed to the national security of Australia and people in Australia.
219. Persons charged with these offences will have a fair trial in accordance with
Article 14 of the ICCPR. If a person is convicted of one of these offences, the presiding
judicial officer will have discretion to impose a penalty that reflects the gravity of the offence
taking into account the nature of the conduct and the particular circumstances of the person.
Furthermore, the periods of imprisonment do not impose mandatory minimum periods of
imprisonment. If convicted, defendants will be sentenced to imprisonment in a State or
Territory facility and will not be treated any differently to other prisoners.
220. The penalties are also consistent with the established principles of Commonwealth
criminal law policy as set out in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers by imposing heavier penalties where the
consequences of the offence are particularly dangerous or damaging. Accordingly, the
increased penalties are proportionate to the seriousness of the offences and will not result in
the imposition of periods of imprisonment that would constitute cruel, inhuman or degrading
treatment or punishment.
New offence of entering, or remaining in a `declared area'
221. A new offence will provide that a person commits an offence if the person enters, or
remains in, an area in a foreign country and that area is an area declared by the Foreign
Affairs Minister. The offence will not operate retrospectively. An area will be declared
where the Foreign Affairs Minister is satisfied that a terrorist organisation listed under the
Criminal Code is engaging in a hostile activity in that area of the foreign country. A
declaration may cover areas in two or more countries or an entire country if the Minister is
satisfied that a listed terrorist organisation is engaging in a hostile activity in each of those
areas or throughout the country.
222. This offence will not prevent a person from travelling overseas, including to a
declared area, for a legitimate purpose or purposes. An individual suspected of entering, or
remaining in, a declared area can rely on the offence-specific defence by pointing to evidence
of their sole legitimate purpose or purposes for entering, or remaining in, the area. Consistent
with the normal rules for criminal prosecutions, the prosecution will then be required to prove
that the person was not in the declared area solely for that purpose or purposes beyond
reasonable doubt.
223. New subsection 119.2(3) provides that the following conduct will be classed as a
legitimate purpose for the purposes of the offence:
a. providing aid of a humanitarian nature;
b. satisfying an obligation to appear before a court or other body exercising judicial
power;
c. performing an official duty for the Commonwealth, a State or a Territory;
d. performing an official duty for the government of a foreign country or the
government of part of a foreign country (including service in the armed forces of
the government of a foreign country), where that performance would not be a
violation of the law of the Commonwealth, a State or a Territory;
e. performing an official duty for the United Nations or an agency of the United
Nations;
46
f. making a news report of events in the area, where the person is working in a
professional capacity as a journalist or is assisting another person working in a
professional capacity as a journalist;
g. making a bona fide visit to a family member;
h. any other purpose prescribed by the regulations.
224. The ability to prescribe other purposes under regulations is an important safeguard in
the event other purposes that should be covered by the defence emerge over time. A note at
the end of section 119.2 provides that sections 10.1 and 10.3 of the Criminal Code also
provide exceptions to subsection 119.2(1) relating to intervening conduct or event and sudden
and extraordinary emergency respectively.
225. The legitimate objective of the new offence is to deter Australians from travelling to
areas where listed terrorist organisations are engaged in a hostile activity unless they have a
legitimate purpose to do so. People who enter, or remain in, a declared area will put their
own personal safety at risk. Those that travel to a declared area without a sole legitimate
purpose or purposes might engage in a hostile activity with a listed terrorist organisation.
These people may return from a declared area with enhanced capabilities which may be
employed to facilitate terrorist or other acts in Australia. The new offence will enable the
prosecution of people who intentionally enter an area in a foreign country where they know,
or are aware of a substantial risk, that the Australian Government has determined that
terrorist organisations are engaging in a hostile activity and the person is not able to
demonstrate a sole legitimate purpose or purposes for entering, or remaining in, the area. The
maximum penalty for this offence is ten years` imprisonment. Reflective of the heightened
threat to Australia currently emanating from overseas conflict zones, the offence will be
subject to a ten year sunset clause.
Right to a fair trial and presumption of innocence in Article 14 of the ICCPR, right to
freedom from arbitrary detention in Article 9 of the ICCPR, prohibition on cruel, inhuman or
degrading treatment or punishment in Article 7 of the ICCPR and CAT and freedom of
movement in Article 12 of the ICCPR
226. Article 14 of the ICCPR provides the right to fair hearing by a competent,
independent and impartial tribunal established by law and Article 14(2) provides that
everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law. It imposes on the prosecution the burden of proving a
criminal charge and guarantees that no guilt can be presumed until the charge has been
proved beyond reasonable doubt. Offences that contain a reverse burden`, particularly a
legal, as opposed to an evidential burden, may limit the presumption of innocence. This
includes a situation where the defendant has to provide evidence in relation to an
offence-specific defence. This is because a defendant`s failure to discharge a legal or
evidential burden may permit their conviction despite reasonable doubts as to their guilt.
227. The new offence does not reverse the onus of proof as guilt is not presumed.
However, it requires the defendant to provide evidence of a sole legitimate reason for
entering a declared area which shifts an evidential burden to the defendant. This requires the
defendant to adduce evidence that suggests a reasonable possibility that they have a sole
legitimate purpose or purposes for entering the declared area. Once that evidence has been
advanced by the defendant, the burden shifts back to the prosecution to disprove that
evidence beyond reasonable doubt.
47
228. The defendant may adduce evidence to justify his or her presence in a declared area
on two bases. The first is where the individual is solely there in the course of the person`s
service in any capacity with the armed forces of the government of a foreign country or any
other armed force if a declaration under subsection 119.8(1) covers the person and the
circumstances of the person`s service in or with the force. The second is where the defendant
is in the declared area solely for one or more legitimate purposes`. A list of legitimate
purposes is outlined in subsection 119.2(3).
229. The new offence under section 119.2 does not reverse the onus of proof or limit the
presumption of innocence. To the extent that there is a limitation on Article 14 of the
ICCPR, those limitations are reasonable, necessary and proportionate to countering the threat
posed to Australia and its national security interests by foreign fighters returning to Australia
from areas where the Foreign Affairs Minister is satisfied that a listed terrorist organisation is
engaging in a hostile activity.
230. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedures as are established by law. The UN Human Rights Committee has stated that
arbitrariness` includes the elements of inappropriateness, injustice and a lack of
predictability. Arbitrariness can result from a law that is vague and provides for the exercise
of powers in a broad range of circumstances that are not sufficiently defined. However,
arrest or detention may be considered reasonable and necessary where it is required in the
circumstances, for example, to prevent flight, interference with evidence or the recurrence of
crime. In relation to this offence, arrest, detention or the deprivation of liberty of a convicted
person is not arbitrary` in the sense that the offence is established by law and its application
is clear and predictable. The amendment to Part 5.5 clearly outlines the legislative
framework and requirements necessary for a prosecution of the declared areas offence.
231. Article 7 of the ICCPR and CAT prohibits conduct which is regarded as cruel,
inhuman or degrading treatment. Whilst the maximum penalty imposed by the offence is ten
years imprisonment, the period of imprisonment does not include a mandatory minimum
sentence and the presiding judicial officer will have discretion to impose a penalty that
reflects the gravity of the offence taking into account the nature of the conduct and the
particular circumstances of the defendant. The offence-specific defence of legitimate purpose
is also available to the defendant. If convicted, defendants will be sentenced to imprisonment
in a State or Territory facility and will not be treated any differently to other prisoners. As
such any penalty imposed would not constitute cruel, inhuman or degrading treatment.
232. The penalty implements a gradation consistent with established principles of
Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth
offences, Infringement notices and Enforcement Powers. The Guide suggests that the
maximum penalty should aim to provide an effective deterrent to the commission of the
offence, and should reflect the seriousness of the offence within the relevant legislative
scheme.
233. Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a
State shall, within the territory, have the right to liberty of movement. Article 12(2) provides
that everyone shall also be free to leave any country, including his own. This right also
extends to the right of the person to determine the country of destination. These rights can be
permissibly limited if the limitations are provided by law and are necessary to advance a
48
legitimate objective. The new offence of declaring certain areas may limit the freedom of
movement of persons who wish to travel to declared areas.
234. This limitation is justified on the basis that it achieves the legitimate objective of
deterring Australians from travelling to areas where listed terrorist organisations are engaged
in a hostile activity unless they have a legitimate purpose to do so. People who enter, or
remain in a declared area will put their own personal safety at risk. Those that travel to a
declared area without a sole legitimate purpose or purposes may engage in a hostile activity
with a listed terrorist organisation. These people may return from a declared area with
enhanced capabilities which may be used to facilitate terrorist or other acts in Australia. The
radicalisation of these individuals abroad may enhance their ability to spread extremist
messages to the Australian community which thereby increases the likelihood of terrorist acts
being undertaken on Australian soil. Even with the existence of a legitimate objective, any
restriction on the freedom of movement must still be reasonable, necessary and proportionate.
Several factors indicate that the restriction achieves an appropriate balance between securing
Australia`s national security and preserving an individual`s civil liberties.
235. The sole legitimate purpose defence provides an appropriate safeguard for individuals
who have entered, or remained in, areas that have been declared. Individuals may lead
evidence highlighting that their presence in a declared area was for a legitimate purpose and
prosecution will be required to discharge its burden of disproving the existence of a
legitimate purpose. The legitimate purpose defence captures common reasons for travelling,
including the provision of humanitarian aid, undertaking official duty for a government or the
United Nations or an agency of the United Nations, making a news report of events in the
area by a professional journalist and making a genuine visit to a family member. Moreover,
further legitimate purposes may be prescribed by regulations should additional grounds be
required. The breadth of the grounds of defence is intended to ensure that legitimate travel is
not unduly restricted by the new offence.
236. The new offence also contains safeguards that ensure the declaration process and
prosecution processes are rigorous. Firstly, a declaration by the Foreign Affairs Minister
requires that he or she be satisfied` that a listed terrorist organisation is engaging in a hostile
activity in that area of the foreign country. As such, a declaration will not be made in an
arbitrary manner. The Minister must also arrange for the Leader of the Opposition in the
House of Representatives to be briefed in relation to the proposed declaration. Any
declaration will be a disallowable legislative instrument. Secondly, a declaration of the
Minister ceases to have effect on the third anniversary of the day on which it takes effect.
The Minister is also not prevented from revoking a declaration where he or she ceases to be
satisfied that the requisite criteria for declaration are satisfied. Thirdly, the
Attorney-General`s consent is required prior to the institution of proceedings in respect of
offences in relation to the declared area.
237. On this basis, the impact of the new declared area offence on the right to freedom of
movement is reasonable, necessary and proportionate in order to achieve the legitimate
objective of protecting Australia and its national security interests.
238. Article 15 of the ICCPR imposes a prohibition against the retrospective operation of
criminal laws. This right has not been limited by the creation of the new offence. The
offence does not apply retrospectively and will only apply from the time of declaration of an
area by the Foreign Affairs Minister. Only individuals who then enter or remain in the newly
designated area will be subject to prosecution under the new offence.
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Humanitarian aid defence
239. Section 7(1B) of the Foreign Incursions Act (new subsections 119.4(7) and 119.5(4)
of the Criminal Code) provides a defence in relation to the offence of doing acts preparatory
to a foreign incursion where a person does an act related to the provision of aid of a
humanitarian nature. This amendment will limit the operation of the defence to instances
where the conduct is for the sole purpose of providing humanitarian aid as opposed to one
among other purposes. In his Fourth Annual Report the INSLM recommended that
subsection 7(1B) be amended to include an exception for activities that are humanitarian in
character and are conducted by or in association with the International Committee of the Red
Cross, the UN or its agencies, and agencies contracted or mandated to work with the UN or
its agencies. Whilst the INSLM`s specific recommendation has not been implemented, the
overarching rationale of the INSLM`s recommendation, being that a broad humanitarian
defence for terrorism offences is not appropriate, has been adopted. This amendment will
appropriately limit the operation of the defence whilst ensuring that genuine humanitarian
activities do fall within the scope of the offences at new sections 119.4 and 119.5. The
amendment will also provide consistency with the operation of other humanitarian aid
defences in the Criminal Code such as those at paragraphs 102.8(4)(c)--associating with
terrorist organisations and 390.3(6)(b)--associating in support of serious organised criminal
activity.
240. The policy rationale underlying the amendment is that the relevant offence under the
foreign incursions regime is not compromised by persons who are engaged in armed
hostilities in a foreign State who can then point to one small act of humanitarian aid to shield
conduct that otherwise contravenes the objective of the offence. Rights to a fair trial in
Article 14(1) and to the presumption of innocence in Article 14(2), which provides that
everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law, are not limited. Individuals will have access to the
humanitarian aid defence where they undertake prohibited acts solely for the purpose of
providing humanitarian assistance. Importantly, the prosecution will still need to prove all
the elements of the offence before the defendant is convicted. The amendment will not
operate retrospectively.
Customs Act 1901
Amendment to the definition of `terrorist act'
241. The Bill repeals the definition of terrorist act` in section 183UA of the Customs Act
and substitutes it with a cross-reference to the definition of terrorist act` in section 100.1 of
the Criminal Code. This is a technical amendment that eliminates the need to constantly
update the definition of terrorist act` in section 183UA as the definition in the Criminal Code
changes. This amendment does not engage any human rights.
Foreign Evidence Act 1994
Amendment to rules of evidence
242. There are two components to the amendments to the Foreign Evidence Act. Firstly,
the Act will be amended to enable material received from foreign countries on an agency-to-
agency basis (i.e. through police channels, intelligence channels) to be adduced in terrorism-
related proceedings. Secondly, the Act would be amended to allow the court greater
50
flexibility in determining whether to admit material obtained on an agency-to-agency basis or
as a result of a mutual assistance request in terrorism-related proceedings. The amendments
include safeguards such as a broad judicial discretion to prevent material from being adduced
in terrorism-related proceedings if it would have a substantial adverse effect on the right of
the defendant to receive a fair trial and a requirement to exclude material obtained as a result
of torture or duress.
243. The INSLM and Australian law enforcement agencies have identified difficulties in
the ability to obtain foreign evidence for terrorism-related proceedings in a form which
complies with Australia`s rules of evidence. In particular, Recommendation IV of the
INSLM`s Fourth Annual Report seeks to ensure existing provisions in the Foreign Evidence
Act do not unnecessarily limit the court's ability to consider whether or not to admit foreign
evidence.
244. Given the very serious nature of these offences and the need to protect the safety of
the community, the amendments are designed to address these difficulties by providing the
court with greater discretion to admit foreign material in appropriate cases. It recognises that
the majority of evidence for terrorism-related offences may be located overseas and unable to
be obtained in a way that would meet Australia`s evidentiary requirements. The amendments
aim to enable the investigating and prosecuting authorities to develop a brief of evidence that
is able to be considered by the court without the majority of the evidence being automatically
excluded on the basis that it fails to meet detailed rules of evidence in Australia.
245. In recognition of the fact that the mutual assistance process remains the preferred
method for obtaining foreign evidence for use in Australian proceedings and to safeguard the
rights of the defendant, the amendments include a range of safeguards that will need to be
met before foreign evidence is able to be adduced and admitted in terrorism-related
proceedings.
Right to a fair trial in Article 14 of the ICCPR
246. Article 14 of the ICCPR protects the right to a fair trial by providing that everyone
shall be entitled to a fair trial by a competent, independent and impartial tribunal established
by law.
247. The amendments to the Foreign Evidence Act will have the result of displacing the
rules of evidence and exclusionary discretions in relation to all foreign evidence sought to be
adduced in:
criminal proceedings for a designated offence (defined in subsection 3(1)), which
include offences against Part 5.3 of the Criminal Code, Part 5.4 of the Criminal
Code, the Foreign Incursions Act (now Part 5.5 of the Criminal Code) and
offences against subsection 34L(4) of the ASIO Act
proceedings under the Proceeds of Crime Act 2002 relating to a designated
offence, and
proceedings under Division 104 of the Criminal Code.
248. Under the new provisions, the adducing of material in terrorism-related proceedings
will be subject to the exercise of a broad judicial discretion to prevent material from being
adduced if the court is satisfied that adducing the material would have a substantial adverse
51
effect on the right of a defendant to receive a fair hearing. The amendments are a reasonable,
necessary and proportionate response to the difficulty of adducing evidence from foreign
states who are embroiled in conflict, or who lack the capabilities or capacity to respond to
requests for mutual assistance. Responding to these difficulties requires an adjustment to the
rules of evidence in limited circumstances whilst still maintaining the court`s discretion to
ensure a fair hearing for the defendant.
249. Critical safeguards remain to ensure that minimum standards of criminal procedure
are not compromised or the right to a fair trial is not abrogated, including a broad discretion
on the Court to not adduce material and a mandatory requirement to exclude material
obtained by torture or duress.
250. Importantly, the broad discretion on the court under section 25A, as suggested by the
INSLM, remains such that the court retains the discretion to direct that evidence not be
adduced if doing so would have a substantial adverse effect on the right on the defendant to
receive a fair hearing (this provision will be moved to new section 27B).
251. Furthermore, in any criminal proceedings, the defence will have the opportunity to
challenge such evidence and produce their own evidence to discredit the prosecution`s case.
Inherent in the criminal procedure is also the requirement that the prosecution must discharge
the burden of proof, demonstrating a defendant is guilty of a criminal offence beyond
reasonable doubt. As such, notwithstanding the change to the rules of evidence that will
apply, the prosecution will continue to need to prove all elements of the specific offence have
been satisfied beyond reasonable doubt. The proposed amendments do not alleviate the
prosecution of this duty.
The protection against the use of evidence obtained from torture in Article 15 of the CAT
252. Article 15 of the CAT states, Each State Party shall ensure that any statement which is
established to have been made as a result of torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture as evidence that the statement was
made. The proposed amendments include provision for foreign material or foreign
government material to be admissible unless the court is satisfied that the material or
information contained in the material, was obtained directly as a result of torture in
subsection 27C(3). This provision upholds Australia`s international obligations under
Article 15 of the CAT.
253. Further to the requirement to exclude material obtained as a result of torture,
subsection 27C(2) also provides a mandatory exception to admissibility for material, or
information contained in the material, directly obtained as a result of duress.
254. The inclusion of these mandatory exceptions recognises the seriousness of threats of
the kind contained in the definition of duress` and the inherent unreliability of material or
information obtained in such a manner. It provides an important safeguard to protect the fair
trial rights of the defendant. Specifically, duress will exist in circumstances where a person
performs actions because of threats of death or serious injury to themselves, or to family
members, being threats of such a nature that a reasonable person would have yielded to them.
255. It is also critical to appreciate that the context within which this amendment is
proposed is the threat posed by foreign fighters who have engaged in acts of violence in an
overseas conflict. These individuals return to Australia with significantly enhanced
52
capability to conduct, encourage or support acts of violence in Australia and overseas.
Prosecuting returning foreign fighters is a critical step in the disruption and prevention of
terrorism in Australia. The proposed amendments to the rules of evidence are reasonable,
necessary and proportionate in respect of crimes that constitute the gravest threat to the lives
of Australians and Australia`s national security interests.
Intelligence Services Act 2001
Repeal of requirement to review particular Acts
256. The Bill repeals the requirement in paragraph 29(1)(ba) of the Intelligence Services
Act 2001 (Intelligence Services Act) for the Parliamentary Joint Committee on Intelligence
and Security (PJCIS) to review the operation, effectiveness and implications of the Security
Legislation Amendment (Terrorism) Act 2002, the Border Security Legislation Amendment
Act 2002, the Criminal Code Amendment (Suppression of Terrorist Bombing) Act 2002 and
the Suppression of the Financing of Terrorism Act 2002. This amendment repeals this
paragraph on the basis that the PJCIS has already undertaken this review and presented its
report in December 2006. This amendment does not engage any human rights.
Extending the PJCIS review period for Division 3 of Part III of the ASIO Act
257. The PJCIS is required to review the operation, effectiveness and implications of
Division 3 of Part III of the ASIO Act by 22 January 2016. The Bill amends this requirement
by altering the date by which the PJCIS must report to 22 January 2026. This is consistent
with the extension of the operation of Division 3 of Part III of the ASIO Act to
22 January 2026 and recognises the recent INSLM reviews of those provisions ad ongoing
role to review the operation and effectiveness of these provisions. The PJCIS review and the
general powers of inquiry of the Inspector-General of Intelligence and Security (IGIS)
ensures that the operation of Division 3 of Part III of the ASIO Act remains effectively
monitored. This amendment does not engage any human rights.
Telecommunications (Interception and Access) Act 1979
Amendment of definition of `serious offence'
258. The amendment to the TIA Act updates the meaning of a serious offence` in
paragraph 5D(1)(e) to include a breach of a control order, and offences against Subdivision B
of Division 80 and Division 119 of the Criminal Code. A serious offence` for the purpose
of the Act is one for which declared agencies can seek interception warrants.
Right to protection against arbitrary and unlawful interferences with privacy in Article 17 of
the ICCPR
259. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The collection, disclosure, storage or use of
personal information without a person`s consent will engage, and limit, the protection from
arbitrary and unlawful interference with privacy in Article 17 of the ICCPR. The interception
of telecommunications is likely to engage an individual`s right to freedom from arbitrary or
unlawful interference with privacy. The right in Article 17 may be subject to permissible
limitations, where the limitations are lawful and not arbitrary. Any interference with privacy
must be authorised by law, for a reason consistent with the ICCPR and be reasonable in the
53
particular circumstances. The UN Human Rights Committee has interpreted the requirement
of reasonableness` to imply that any interference with privacy must be proportional to the
end sought and be necessary in the circumstances.
260. The interception regime is clearly authorised by law and its application authorised by
the legislative framework in the TIA Act. Before issuing an interception warrant, the relevant
authority must be satisfied that the agency is investigating a serious offence, the gravity of the
offence warrants intrusion into privacy and the interception is likely to support the
investigation. This threshold acts as a safeguard against the arbitrary or capricious use of the
interception regime.
261. This amendment allows for interception warrants to be used in respect of a particular
class of offences. The offences identified, being treason, control order breaches and foreign
incursion offences are those that jeopardise Australia and its national security interests and
for which prevention and disruption are critical elements of the counter-terrorism strategy.
The gravity of the threat posed by possible breaches of these regimes demonstrates a need to
take reasonable steps to detect, investigate and prosecute those suspected of engaging in such
conduct.
262. The inherent safeguards and controls built into the TIA Act ensure that any incursions
into privacy are no more than is reasonable, necessary and proportionate. These safeguards
include the heads of interception agencies providing the Secretary of AGD a copy of each
telecommunication interception warrant and interception agencies providing reports the
Attorney-General, within three months of a warrant ceasing to be in force, detailing the use
made of information obtained by the interception. Moreover, there is independent oversight
of the use of interception powers of law enforcement agencies by the Commonwealth
Ombudsman. At least twice a year, the Commonwealth Ombudsman must inspect bodies
such as the AFP in relation to their use, dissemination and destruction of intercepted
information. The Commonwealth Ombudsman is also required under the TIA Act to report
to the Attorney-General about these inspections, including any information about deficiencies
identified and remedial action.
263. The safeguards identified and the legal framework around which interception warrants
are issued ensure that the use of this power is prescribed by law and not arbitrary.
Accordingly, the amendment is reasonable, necessary and proportionate to achieve the
legitimate objective of assisting law enforcement agencies investigate serious crimes.
Terrorism Insurance Act 2003
Amendment to the definition of `terrorist act'
264. The Bill repeals section 5 of the Terrorism Insurance Act 2003. Section 5 currently
reproduces in full the definition of terrorist act` found in section 100.1 of the Criminal Code.
This is a technical amendment that eliminates the need to update the definition of terrorist
act` in section 5 as the definition in the Criminal Code changes. This amendment does not
engage any human rights.
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Part 2 - Repeals
Crimes (Foreign Incursions and Recruitment) Act 1978
Repeal of the Crimes (Foreign Incursions and Recruitment) Act 1978
265. The Foreign Incursions Act will be repealed and its contents moved to new Part 5.5 of
the Criminal Code. This is a technical amendment and does not engage any human rights.
SCHEDULE 2 - STOPPING WELFARE PAYMENTS
A New Tax System (Family Assistance) Act 1999 / Paid Parental Leave Act 2010 / Social
Security (Administration) Act 1991 / Social Security (Administration) Act 1999 /
Administrative Decisions (Judicial Review) Act 1977
Stopping welfare payments
266. This Schedule amends the Family Assistance Act, the PPL Act, the Social Security
Act and the Social Security (Administration) Act 1999 (Social Security (Administration) Act)
to provide that welfare payments can be cancelled for individuals whose passports have been
cancelled or refused, or whose visas have been refused, on national security grounds. This is
to ensure that the Government does not support individuals who are fighting or training with
extremist groups. It is for the benefit of society`s general welfare that individuals engaged in
these activities do not continue to receive welfare payments.
267. Currently, welfare payments can only be suspended or cancelled if the individual no
longer meets social security eligibility rules, such as participation requirements, and
residence or portability qualifications. The new provisions will require the cancellation of a
person`s welfare payment when the Attorney-General provides a security notice to the
Minister for Social Services. The Attorney-General will have discretion to issue a security
notice where either:
the Foreign Affairs Minister has notified the Attorney-General that the individual
has had their application for a passport refused or had their passport cancelled on
the basis that the individual would be likely to engage in conduct that might
prejudice the security of Australia or a foreign country, or
the Immigration Minister has notified the Attorney-General that an individual has
had their visa cancelled on security grounds.
268. The Foreign Affairs Minister and the Immigration Minister will also have a discretion
whether to advise the Attorney-General of the passport or visa cancellation.
269. Welfare payments will only be cancelled in circumstances where the receipt of
welfare payments was relevant to the assessed security risk posed by the individual and the
cancellation of welfare would not adversely impact the requirements of security. This is to
ensure that those individuals assessed to be engaged in politically motivated violence
overseas, fighting or actively supporting extremist groups are covered. It is not intended that
every person whose passport or visa has been cancelled on security grounds would have their
welfare payments cancelled, but would occur only in cases where it is appropriate or justified
on the grounds of security.
55
270. Where an individual ceases to be eligible for welfare payments, the Secretary of DSS
must cause reasonable steps to be taken to notify the individual of the cessation. In practice,
notifying individuals who may be participating in overseas conflicts may not be possible.
Right to social security in Article 9 of the ICESCR
271. Article 9 of the ICESCR recognises the right of everyone to social security, including
social insurance. Article 4 of ICESCR provides that countries may subject economic social
and cultural rights only to such limitations as are determined by law only in so far as this
may be compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society`. The objective of the proposal to cancel welfare is to
promote the general welfare of the Australian community by supporting national security and
promoting public order. Specifically, the proposal addresses concerns about public monies in
the form of social security payments being used by individuals to facilitate or participate in
terrorist activities or fund terrorist organisations.
272. Social security payments are made to Australian residents to provide them and their
families with a basic but adequate standard of living in Australia. Cancelling welfare
payments to individuals of security concern will restrict their right to social security.
However, this power will only be available where a person has had their passport cancelled or
refused or their visa cancelled on security grounds. Furthermore, the Attorney-General will
have the discretion to decide whether the welfare payment should be cancelled. In exercising
this discretion it would be appropriate for the Attorney-General to have regard to relevant
human rights considerations. In particular, the discretion means the Attorney-General is able
to consider the individual circumstances of each case, including the applicable security
concerns, the effect of welfare cancellation on the individual (including the availability of
other sources of income), and the purposes for which the welfare payments are used.
273. CESCR notes that persons who claim violations of their right to social security should
have access to effective judicial or other appropriate remedies. The decisions of the Foreign
Minister, Immigration Minister and Attorney-General to issue notices will be reviewable
under the ADJR Act, but there will be no requirement to provide reasons for the decision.
This is because the decision to issue the notices will be based on security advice which may
be highly classified and could include information that if disclosed to an applicant may put
Australia`s security at risk.
274. Furthermore, given that any decision by the Attorney-General to cancel welfare
payments is triggered by the cancellation of a visa or the cancellation of, or refusal to issue an
Australia passport, an individual will be able to seek review of the decision to cancel a visa or
the cancellation of, or refusal to issue, a passport. This would include merits review under
the Administrative Appeals Tribunal Act 1975 (AAT Act) of an adverse security assessment
made by ASIO in support of those decisions.
275. The decisions to cancel welfare payments will be subject to judicial review under
section 39B of the Judiciary Act 1903 or section 75(v) of the Constitution.
The rights of parents and children in Article 24 of the ICCPR
276. Article 24(1) of the ICCPR provides that Every child shall have, without any
discrimination as to race, colour, sex, language, religion, national or social origin, property or
56
birth, the right to such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.`
277. Family assistance payments made under the Family Assistance Act are to assist with
the cost of raising children and are normally paid to the carer of the child who has
responsibility for raising the child. The carer is responsible for using the payment as he or
she sees fit to assist in raising the child. If a security notice is issued to an individual who has
a child, the individual the subject of the notice would not be eligible to receive family
assistance which would impact on their right to protect their child.
278. However, the purpose of the payment is for the child`s benefit, to assist with the cost
of raising them. Although the individual the subject of the security notice would not be able
to claim the family assistance payment, the whole or a part of any amount that would have
been payable may instead be paid to a payment nominee of the individual under Part 8B of
the Family Assistance Act. This means that the payment may still be able to be used for the
individual`s family which promotes the rights of parents and children.
279. The Secretary of DSS will not have to take into account the wishes (if any) of the
individual in appointing a nominee to receive the payment on the individual`s behalf, but
instead can appoint a nominee without consulting the individual. In practice it may be very
difficult to contact the individual, especially if they are overseas fighting. In these
circumstances, the parent is unable to fulfil their responsibilities and duties as a parent.
Accordingly, the Secretary would appoint a nominee so that the benefit could still be paid to
assist the child. This promotes the rights of the child.
SCHEDULE 3 - CUSTOMS' DETENTION POWERS
Customs Act 1901
Customs detention power
280. Customs officers have the power to detain persons suspected of committing a serious
Commonwealth offence or a prescribed State or Territory offence under section 219ZJB of
the Customs Act. Broadly, the amendments to the detention power in section 219ZJB relate
to:
extending serious Commonwealth offence` to any Commonwealth offence that is
punishable upon conviction by imprisonment for a period of 12 months or more
expanding the applicability of the detention powers to include where an officer
has reasonable grounds to suspect that the person is intending to commit a
Commonwealth offence
expanding the required timeframe by which an officer must inform the detainee of
their right to have a family member or other person notified of their detention
from 45 minutes to 4 hours,
introducing a new section with a new set of circumstances in which a person may
be detained in a designated area that relates to national security or security of a
foreign country.
57
281. Section 219ZJD will also be amended to extend the power to conduct a search of the
person where it is to prevent the concealment, loss or destruction of information relating to a
threat to national security.
Right to freedom from arbitrary detention in Article 9 of the ICCPR, freedom of movement in
Article 12 of the ICCPR, right to freedom from cruel, inhuman or degrading treatment or
punishment in Article 7 of the ICCPR and the CAT, right of persons deprived of liberty to be
treated with humanity and dignity in Article 10 of the ICCPR
282. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedures as are established by law.
283. The Customs detention power and the expanded scope of this power under the new
amendment are likely to engage the detainee`s right to freedom from arbitrary detention.
This power now exists in respect of a greater number of offences as a result of its application
to any Commonwealth offence that is punishable upon conviction by imprisonment for a
period of 12 months or more as opposed to its previously restricted application to only
serious Commonwealth offences. It will also apply where there exist reasonable grounds to
suspect that the person is intending to commit a Commonwealth offence. The new section
will also allow an officer to detain a person where the officer is satisfied that the person is, or
is likely to be, involved in activities that are or likely to be a threat to national security.
284. The expanded framework of the Customs detention power is established by law and
its use is in accordance with the requirements of section 219ZJB. The new section that
provides for detention in respect of those who pose a national security threat also applies only
in respect of actions that potentially impact Australia`s national security interests. These
detention powers are appropriate in that they are applicable in respect of only Commonwealth
offences where imprisonment is for a period of twelve months or greater or to national
security matters which pose the gravest threats to the welfare of Australians.
285. The enhanced detention powers are part of the targeted response to the threat posed by
foreign fighters. A crucial element of the preventative measures undertaken to limit the
threat of returning foreign fighters is to prevent Australians leaving Australia to engage in
foreign conflicts in the first instance. The detention powers of Customs constitute an
important preventative and disruption mechanism. Preventing individuals travelling outside
of Australia where their intention is to commit acts of violence in a foreign country assists in
preventing terrorists acts overseas and prevents these individuals returning to Australia with
greater capabilities to carry out terrorist acts on Australian soil.
286. Accordingly, the expanded detention powers provided by these amendments are not
arbitrary or unlawful. They are prescribed by law and their use is confined such that its
application is restricted to instances where it is reasonable, necessary and a proportionate
response to achieving the legitimate objective of securing Australia`s national security.
287. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State
shall, within the territory, have the right to liberty of movement. Everyone shall also be free
to leave any country, including his own. This right can be permissibly limited if the
limitations are provided by law and are necessary to advance a legitimate objective. The
proposed amendments will limit the right of an individual to leave Australia or movement in
a designated place` (defined in section 4 of the Customs Act).
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288. The restriction on freedom of movement is permissible on the basis that the primary
reason underlying the expanded detention powers is to target individuals thought to be threats
to Australia`s national security leaving the country. The detention powers of Customs are not
indefinite and are subject to significant safeguards including the right in all but the most
extreme situations to notify a family member or others of their detention (subsections
219ZJB(5) and (6) and 219JCA (5) and (6)) and the requirement that if the officer detaining
the individual ceases to be satisfied of certain matters, they must release the person from
custody (subsections 219ZJB(5) and 219ZJCA(4)). Accordingly, the restriction on the
freedom of movement is reasonable, necessary and proportionate to achieving the legitimate
objective of securing Australia`s national security.
289. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or
unlawful interference with their privacy, family, home or correspondence. Lawful
interference with the right to privacy will be permitted, provided it is not arbitrary. The term
unlawful` means no interference can take place except as authorised by law and should be
reasonable, necessary and proportionate.
290. The new section that provides for detention on the basis of threats to national security
or security of a foreign country will also include extend the existing power of an officer to
conduct a frisk and ordinary search of the person and a search of the person`s clothing and
any property within the person`s immediate control if the officer believes on reasonable
grounds it is necessary to do so for the purpose of preventing concealment, loss or destruction
of evidence of, or relating to the offence concerned (paragraph 219ZJD(1)(d)). Current
subsection 219ZJD(3) provides that the search must be conducted as soon as practicable after
the person is detained and by an officer of the same sex as the detainee. An officer will also
have the authority to seize anything the officer has reasonable grounds to believe is a thing
with respect to the offence committed, that will afford evidence of the commission of an
offence or that was used or intended to be used for the purpose of committing an offence
(paragraph 219ZJD(3)(b)). These actions constitute incursions into the right of privacy on an
individual detained. They encompass a physical search of the person, of their clothing and
items under their control and a seizure of items. Such an incursion is not however unlawful
as it will be authorised and applicable in accordance with section 219ZJD.
291. In its application, the frisk and ordinary search power is not arbitrary. Its use will be
limited to instances where the individual is considered to be a threat to national security.
National security concerns pose among the gravest threats to the welfare of Australians and
the consequences of a failure to act can be severe. The destruction or concealment of
evidence relating to a national security offence will also be critical in investigating and
prosecuting those believed to be involved in activities such as terrorism. The prevention of
terrorist acts and the prosecution of those engaged in terrorist activities is an important
element of Australia`s foreign fighter strategy to prevent and disrupt terrorism in Australia.
292. Moreover, the detention regime has important safeguards that ensure that the human
rights of the detainee are appropriately limited to promote national security considerations.
Important qualifiers such as reasonable grounds to suspect`, as soon as practicable`, take
all reasonable steps` and believes on reasonable grounds` (section 219ZJB) ensure that
application of the detention provisions are not arbitrary and subject to certain thresholds
which require officers of Customs to consider whether use of the detention powers is
appropriate in a given circumstance. Overall, the expanded detention regime under the
Customs Act is reasonable, necessary and proportionate to achieving a legitimate objective,
being the protection of Australia and its national security interests.
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293. Article 10 of the ICCPR provides that all persons deprived of their liberty shall be
treated with humanity and respect for the inherent dignity of the human person. The
UN Human Rights Committee stated that this right can be violated if a detainee is subjected
to unreasonable restrictions on correspondence with his or her family. This right may be
limited because it is proposed to extend the time by which an officer must inform the detainee
of their right to have a family member of other person notified of their detention from
45 minutes to 4 hours.
294. However, it is not likely that the extension proposed from 45 minutes to 4 hours
constitutes an unreasonable restriction on correspondence with the detainee`s family. This
increase of time is only in respect of Commonwealth offences which carry imprisonment of
twelve months or greater as penalty. The current limit of 45 minutes may not provide
Customs officers with sufficient time and opportunity to undertake enquiries once a person is
detained.
295. In limited instances, the Customs detention regime allows an officer to refuse
notification of a detainee`s family or another person in particular circumstances
(subsection 219ZJB(7)). It is proposed the current justifications for depriving the detainee of
this right be extended to national security. This may be considered an unreasonable
restriction on correspondence with the detainee`s family.
296. However, the justifications, including national security, represent a reasonable and
proportionate restriction on this right. This is because in order to make a decision to not
notify a family member, the officer must believe on reasonable grounds that such notification
will compromise the processes of law enforcement, endanger the life and safety of any person
or compromise national security. These justifications provide reasonable limits on the right
to notification. The safeguard provided by the qualifier believes on reasonable grounds`,
ensures that the deprivation of the detainee`s right is not arbitrary and given due
consideration.
297. The amendments proposed engage the right of detained persons to be treated with
humanity and dignity. To the extent that the amendments proposed limit Article 10, the
restrictions are reasonable, necessary and proportionate to achieve legitimate objectives such
as not compromising national security, compromising law enforcement processes or
endangering another`s life.
SCHEDULE 4 - CANCELLING VISAS ON SECURITY GROUNDS
298. The amendments to the Migration Act include a new emergency visa cancellation
power where a non-citizen outside of Australia might be a direct or indirect risk to national
security.
New emergency visa cancellation power
299. The Migration Act contains a number of powers that provide the Australian
Government with appropriate tools to manage the various risks that a non-citizen might pose
to the Australian community. For example, where ASIO makes an assessment that a
permanent visa holder is a direct or indirect risk to national security, existing section 501 of
the Migration Act provides the capacity for a permanent visa holder in Australia to be
considered for visa cancellation. Further, section 116 of the Migration Act provides for the
cancellation of a temporary visa onshore, and a temporary or permanent visa offshore on the
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grounds that the visa holder has been assessed as posing a direct or indirect risk to the
Australian community (within the meaning of the ASIO Act).
300. However, these existing cancellation provisions do not adequately address the
situation where ASIO receives intelligence about a permanent or temporary visa holder who
is outside Australia, where that intelligence raises the possibility that that visa holder is a risk
to the Australian community, but that intelligence alone is not sufficient to enable ASIO to
furnish an adverse security assessment to meet existing legal thresholds in the Migration Act.
This measure will enhance the Government`s capacity to respond to prospective security
threats in a responsive and proportionate manner. In limited circumstances, it will be both
desirable and necessary that a visa be cancelled on the basis of the nature and extent of the
security risk that a person might pose, as temporary mitigating action to permit further
investigation and evaluation of the individual.
301. It is therefore proposed to amend Division 3 of Part 2 of the Migration Act to insert a
new section providing for the mandatory cancellation of a visa where ASIO forms a
reasonable suspicion that the visa holder might be a risk to security. Visa cancellation will
have the effect of preventing that non-citizen from entering Australia for a limited period of
28 days to enable ASIO additional time to further consider the security risk posed by that
individual. The amendments provide that visa cancellation will be revoked unless ASIO
furnishes a subsequent security assessment that recommends against revocation having
assessed that the person is, directly or indirectly, a risk to security within 28 days of the
original cancellation decision. The visa will remain cancelled where they do. This
amendment will also include consequential discretionary cancellation provisions for family
unit members where the visa remains cancelled based on an assessment by ASIO that the
person is, directly or indirectly, a risk to security. Family unit members` visas will not be
considered for cancellation until and unless the main visa holder`s visa cancellation has not
been revoked.
302. This new emergency cancellation provision will apply to any visa (temporary or
permanent) held by a non-citizen where that person is outside Australia and where ASIO
provides an assessment to the DIBP containing:
advice that the person might be, directly or indirectly, a risk to security (within the
meaning of section 4 of the ASIO Act), and
a recommendation that the visa be cancelled under the new emergency
cancellation power on the basis of the intelligence currently held by ASIO.
303. The cancellation under the new provision will be mandatory, will be without notice or
notification and will not be merits reviewable. Within the 28 day period following the
emergency cancellation decision ASIO may issue an assessment that the person is, directly or
indirectly, a risk to security (within the meaning of section 4 of the ASIO Act), or provide an
assessment containing a recommendation for revocation of the emergency cancellation.
304. Where ASIO does not issue a further assessment, or where ASIO recommends
revocation within the 28 days, the amendments will require that the cancellation must be
revoked. Where ASIO provides an assessment within the required period that the person is,
directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act), the
visa will remain cancelled and the person will be notified of the decision as appropriate
subject to security requirements as advised by ASIO. The person, if a former permanent visa
61
holder, would then be able to seek merits review of the adverse security assessment by ASIO
at the AAT.
305. While members of the family unit of the visa holder will not be subject to the
emergency cancellation pursuant to the new provisions outlined above, the proposed
amendments do include a consequential cancellation power that would see their visas
considered for discretionary cancellation in the event that ASIO provides a final assessment
that the primary visa holder is a risk to security.
306. The Government views it as reasonable that a person, who only holds a visa
consequentially to another person, have their visa considered for cancellation when the other
person`s visa is cancelled. This decision would be discretionary and merits reviewable and a
range of factors will be considered under policy - this includes consideration of family unity
principles, the best interests of the child and possible legal consequences of the cancellation
decision such as detention and removal. Consequential cancellation will not apply to a
family unit member as described above who has since been granted a visa in their own right
or become an Australian citizen.
307. The proposed amendments have been assessed against the seven core international
human rights treaties to which Australia is party and engage the rights articulated below.
However, as Australia generally only owes human rights obligations to those within its
territory and/or jurisdiction, the below analysis is restricted to persons who are within
Australia`s territory and/or jurisdiction and who may be impacted by these proposed
amendments on that basis. That is, members of the family unit of a person whose visa is
cancelled under the emergency cancellation provisions, who are in Australia and whose visas
are cancelled pursuant to the abovementioned amendments.
308. Consistent with the existing legislative framework of the Migration Act, where the
visa of a person in Australia is cancelled pursuant to these amendments, they will become an
unlawful non-citizen and in accordance with sections 189 and 198 of the Migration Act will
be liable for detention and possible removal from Australia (dependant on the outcome of any
merits review or judicial review process). This process engages human rights concerning the
best interests of the child, family unity, the prohibition on arbitrary detention, expulsion of
aliens and non-refoulement.
Article 3 of the Convention of the Rights of the Child (CRC)
309. Article 3 of the CRC provides that the best interests of the child shall be a primary
consideration in all actions concerning children. Article 3 requires that the best interests of a
child be a primary, not the primary consideration. The best interests of the child may be
outweighed by other countervailing primary considerations, such as the integrity of
Australia`s migration system and the safety of the Australian community.
310. There are a number of circumstances arising from the proposed amendments that
require the consideration of the best interests of the child. This includes the use of the
emergency cancellation provision to cancel the visa of a person who is the parent or guardian
of a child who is in Australia. This would continue the temporary separation of a child from
their parent or guardian since the parent or guardian will no longer be able to return to
Australia. A decision by the Minister to cancel a visa under proposed section 134B is
mandatory. These policy settings are based on the countervailing primary consideration of
national security risks, and the Government considers that they outweigh the child`s best
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interests in being able to have their parent to return to Australia. Depending on the
circumstances of the case, the family may be able to reunite outside Australia.
311. Another circumstance arising from these provisions is the possibility of consequential
cancellation of the child`s visa under proposed subsection 134F(2). Policy supporting this
amendment will provide that in deciding whether or not to exercise the discretion to cancel
the child`s visa, the decision maker should treat the best interests of that child as a primary
consideration. This consideration will also consider the impact of possible detention or
removal on the child, as a consequence of the potential visa cancellation.
Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR)
312. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with his family. Article 23 of the ICCPR provides that the family is the
natural and fundamental group unit of society and is entitled to protection by society and the
State. However, avoiding interference with the family or protecting the family can be
weighed against other countervailing considerations including the integrity of the migration
system and the safety of the Australian community, so long as the measures used to safeguard
those objectives are reasonable and proportionate.
313. Under the proposed amendments, two circumstances exist in which such interference
can occur within the meaning of Article 17 of the ICCPR. The first is where a visa holder`s
visa is cancelled under the emergency cancellation provision while they are offshore. This
will result in the continued temporary separation of the visa holder whose visa has been
cancelled and any family members who are located within Australia at the time of that
cancellation. This continued separation is necessary on the basis that ASIO has received
intelligence that the visa holder located offshore might pose a direct or indirect risk to the
Australian community and requires time to establish the veracity of the intelligence. It is the
Government`s position that 28 days is a reasonable and proportionate period of time in which
further investigations may continue because of the potential security risk the primary visa
holder poses to the Australian community.
314. The second circumstance which may give rise to separation of the family is when the
emergency cancellation decision is not revoked due to the security assessment made by ASIO
in the specified 28 day period. Where the cancellation of the visa held by the person offshore
remains after the specified 28 day period, the person and their family will be subject to
ongoing separation. The impact upon the family unity principles contained in the ICCPR in
this situation is necessary because ASIO has affirmed that the risk posed to the safety and
security of the Australian community by the offshore person whose visa has been cancelled is
significant enough to warrant not revoking the cancellation of their visa. Again, this is a
proportionate response on the basis that the alleged risk that person poses to the Australian
community has been comprehensively assessed and verified.
315. While the Government would not prevent family unit members from moving offshore
in order to reunite with the person whose visa has been cancelled pursuant to the proposed
amendments, where the cancelled person`s family unit are onshore in Australia, separation of
the family may result because the person whose visa is cancelled offshore has lost their
entitlement to return to Australia and their family members may be unable or unwilling to
reunite with them outside Australia, especially if they fear harm in country where the
cancelled person now resides.
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316. In relation to members of the family unit located in Australia whose visas are for
consequential cancellation pursuant to proposed subsection 134F(2), relevant international
obligations, including those relating to family unity, would be taken into account when
making any discretionary cancellation decision.
Article 9 and 10 of the ICCPR
317. Article 9 of the ICCPR provides that no one shall be subjected to arbitrary detention.
Article 10 provides that all persons deprived for their liberty be treated with humanity and
with respect for the inherent dignity of the person.
318. Australia takes its obligations to people in detention very seriously. Continuing
detention may become arbitrary after a certain period of time without proper justification.
The determining factor, however, is not the length of detention, but whether the grounds for
the detention are justifiable.
319. In the context of Article 9, arbitrary means detention must have a legitimate
purpose within the framework of the ICCPR in its entirety. Detention must be predictable in
the sense of the rule of law (it must not be capricious) and it must be reasonable (or
proportional) in relation to the purpose to be achieved.
320. Detention arising from the cancellation of a visa pursuant to the proposed
amendments is lawful by virtue of section 189 of the Migration Act which provides for the
detention of an unlawful non-citizen.
321. The lawfulness, necessity and proportionality of any subsequent detention can form
part of the consideration of the discretionary visa cancellation decision relating to the family
members in Australia and as such, that circumstance does not give rise to incompatibility
with human rights.
Article 13 of the ICCPR
322. Article 13 of the ICCPR states:
An alien lawfully within the territory of a State Party to present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with law
and shall, except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority or a person or
persons especially designated by the competent authority.
323. The Migration Act and policy thereunder contain procedural safeguards to provide
that the Government is not in breach of its obligations under Article 13 of the ICCPR in the
context of visa cancellation pursuant to the proposed amendments.
324. For visas cancelled consequentially it is intended that former visa holders will be
notified of the cancellation of their visa, the grounds on which their visa was cancelled and
the effect of that visa cancellation on their status, including review rights if relevant.
325. Family unit members whose visas are consequentially cancelled while they are
onshore and who become liable for detention and possible removal from Australia by virtue
of the proposed amendments will have the ability to seek merits at the Migration Review
Tribunal or the Refugee Review Tribunal pursuant to subsection 338(3) and paragraph
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411(1)(d) of the Migration Act respectively. Further, all persons affected by cancellation
pursuant to these amendments may pursue judicial review of the decision to cancel their visa.
326. As such, the proposed amendments are compatible with human rights.
Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) and Article 6 and Article 7 of the ICCPR
327. Article 3(1) of the CAT contains an express non-refoulement obligation which
prohibits the expulsion, return or extradition of a person to another State where there are
substantial grounds for believing that they would be in danger of being subjected to torture.
Further non-refoulement obligations arise under the ICCPR, under articles 6 and 7 which
prohibit the arbitrary deprivation of life and torture and other cruel, inhuman or degrading
treatment or punishment respectively.
328. The Government recognises that these non-refoulement obligations are absolute and
does not seek to resile from or limit Australia`s non- refoulement obligations in these
circumstances. Where a family unit member is being considered for consequential
cancellation any non- refoulement obligations to that person would normally either form part
of the consideration as to whether the visa should be cancelled, or, be considered through
subsequent visa or ministerial intervention processes. These processes can include a
Protection visa application, or the use of the Minister`s personal powers under section 195A
of the Migration Act to grant a visa to a person where the Minister considers it in the public
interest to do so.
329. As such, the proposed amendments will be implemented in a manner which is
consistent with Australia`s non- refoulement obligations under the CAT and ICCPR.
SCHEDULE 5 - IDENTIFYING PERSONS IN IMMIGRATION CLEARANCE
Migration Act 1958
Collection of personal identifiers at automated border control eGates
330. The ability to accurately collect, store and disclose biometric identification of all
persons increases the integrity of identity, security, and immigration checks of people
entering and departing Australia.
331. Automated Border Clearance systems (SmartGate and eGates) are authorised
systems` to perform the immigration clearance function for arriving passengers, and border
processing for departing passengers. The authorised system confirms the identity of a
traveller by biometrically comparing the photograph contained in the passport to a live image
of the traveller`s face and conducts visa and alert checks. Currently, for both arrivals and
departures, the Migration Act only allows an authorised officer` (not an authorised system`)
to obtain personal identifiers from non-citizens by way of an identification test under section
166, 170 and 175 of the Migration Act. DIBP relies on the Privacy Act 1988 to obtain
personal identifiers from citizens and non-citizens using an authorised system`.
332. Amendments to sections 166, 170 and 175 of the Migration Act will authorise a
clearance authority, which is defined as a clearance officer or an authorised system, to collect
and retain personal identifiers (specifically a photograph of the person`s face and shoulders)
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of citizens and non-citizens who enter or depart Australia or who travel on an overseas vessel
from one port to another within Australia. The amendments will also permit the disclosure of
that information for specified purposes.
333. The amendments include new subparagraphs 166(1)(d)(ii), 170(1)(d)(ii)
and 175(1)(d)(ii) that will allow an authorised system to collect other personal identifiers if
those personal identifiers are prescribed by the Migration Regulations 1994 (Migration
Regulations). DIBP does not intend to make new regulations in relation to this provision at
this time as automated border clearance systems only need to collect a person`s photograph of
their face and shoulders to confirm their identity. Should the need arise, and technology
improve, other personal identifiers such as a persons` fingerprints or iris scan may be
prescribed in the Migration Regulations.
334. The amendments will enable the authorised system (such as SmartGate or eGates) to
perform accurate biometric identification of all persons and will ensure the integrity of
identity, security, and immigration checks of all persons entering and departing Australia.
When the traveller presents their travel document to the authorised system, the system will be
able to determine whether the traveller is the same person to whom the document was issued
and whether the document satisfies the test as being a genuinely issued document.
Freedom against unlawful and arbitrary interference with privacy in Article 17 of the ICCPR
and Article 16 of the Convention on the Rights of the Child
335. As this measure relates to the collection, storage and disclosure of personal
information by DIBP or Customs to law enforcement agencies, this measure engages
Article 17 of the ICCPR and the corresponding article in relation to children at Article 16 of
the ICCPR.
336. Pursuant to Article 17 of the ICCPR, an interference with an individual`s privacy
must have a lawful basis and must not be arbitrary. That is to say, it must be reasonable in
the sense of necessary and proportionate. Article 16 of the CRC is written in similar terms to
Article 17 of the ICCPR and prohibits the arbitrary or unlawful interference with the privacy
of the child. To the extent that these measures may interfere with the privacy of citizens and
non-citizens, both adult and children, that interference is lawful by virtue of these legislative
amendments.
337. Further, any collection, storage and disclosure of information will be undertaken in
accordance with the Australian Privacy Principles contained in the Commonwealth Privacy
Act 1988. This is consistent with the United Nations Human Rights Committee General
Comment 16 in which the Committee states that the gathering and holding of personal
information using information technology must be regulated by law and that effective
measures must be taken to ensure that the information collected is not accessed by persons
who are not authorised by law to receive, process or use it. The eGates will also comply with
the Privacy Act 1988, specifically Australian Privacy Principle 5 (APP5) which requires
persons to be notified of a number of matters before personal information is collected (or as
soon as practicable after the collection if it is not practicable to inform the person
beforehand).
338. Persons will be notified of these through signs, information sheets, and information on
DIBP`s and Customs` websites. The Migration Act already specifies purposes for accessing
identifying information 336D, and the permitted disclosures in sections 336E, 336F
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and 336FA. The proposed amendments contain within them restrictions upon the purposes
for which this information will be collected and used by the DIBP and Customs. These
include collection of personal identifiers for those purposes already set out in
subsection 5A(3) of the Migration Act. These include, amongst others, to improve the
integrity of entry programs, including passenger processing at Australia`s border and to
enhance DIBP`s ability to identify non-citizens who are of a national security concern. The
proposed amendments will extend the purposes for collection in relation to Australian
citizens to purposes that assist in identifying persons who may be of national security
concern.
339. The safeguards in sections 258B, 258C, 258D, 258E, 261AL and 261AM of the
Migration Act that apply to non-citizens will be amended so they also apply to Australian
citizens who may be required to provide a personal identifier by way of an identification test
conducted by an authorised officer`. These safeguards relate to the manner in which
identification tests are to be conducted by authorised officers, the information that is to be
provided to a person before an identification test, and to the protection of minors and
incapable persons. The Migration Act also contains offences for disclosing identifying
information if it is not a permitted disclosure.
340. The safeguards in section 258B of the Migration Act (provision of information before
identification tests to obtain a personal identifier), are not being applied to identification tests
carried out by authorised systems such as SmartGate or eGate. This is justified on the
grounds that these safeguards are either not relevant or impractical when personal identifiers
(specifically, a photograph of the person`s face and shoulders) are obtained by an authorised
system. These safeguards are impractical in the sense that the safeguards outline the
requirement to explain to the person prior to taking their photograph, in a language they
understand:
a. why the personal identifier is required
b. how the personal identifier will be collected and used
c. the circumstances under which the personal identifier might be disclosed to a third
party
d. that the personal identifier might be produced in evidence in a court or tribunal,
and
e. information about the Privacy Act 1988 and the person`s rights under the Freedom
of Information Act 1982.
341. For the eGates or SmartGate to provide this information to every person would slow
the process down unreasonably. Instead, this information will be made available on signs and
information sheets at the airport and on DIBP`s website.
342. The safeguards in section 258E (general rules for carrying out identification tests) are
not being applied to identification tests carried out by authorised systems such as SmartGate
or eGate. This is because the safeguards in that section are ill-suited to authorised systems
such as SmartGate or eGate. It is not possible for SmartGate or eGate to conduct an
identification test to obtain a facial image away from the view of other people because the
system is in a public place (paragraphs 258E(a) and (b) refer). Similarly, the rules limiting
the amount of visual inspection and the removal of clothing (paragraphs 258E(d) and (e)
67
refer) are not relevant to identification tests undertaken by authorised systems which do not
require the removal of any clothing.
343. The safeguards in subsection 261AL(5) (parent/guardian/independent person to be
present when personal identifiers are obtained from a minor) are not being applied to
identification tests (biometrically comparing a live photograph to the photograph contained in
the passport) carried out by an authorised systems such as SmartGate or eGate. This is
justified in that the system is deliberately designed to only allow one person at the Gate at the
time when the person`s personal identifier (photograph of the person`s face and shoulders) is
obtained to prevent other persons passing through the gate without authorisation. This is
justified on the grounds that persons (including minors and their parents) can choose to
present to a clearance officer instead of an authorised system. This would allow a parent to
be present when their child provides a personal identifier if this is preferred.
344. The SmartGates or eGates are designed so that persons travelling together can see
each other while their photo is being taken and parents/guardians can assist children through
the machines or they can choose to present to a clearance officer.
345. Subsection 261AL(5) currently provides a safeguard for minor non-citizens and
requires a parent or guardian to be present if the minor is required to provide personal
identifiers to an authorised officer. The amendments to subsection 261AL(5) will ensure that
an identification test carried out by an authorised officer to obtain a personal identifier from a
minor who is an Australian citizen, must also be carried out in the presence of a parent or
guardian of the minor or an independent person. The effect of the amendment is that minors
who are Australian citizens would be subject to the same safeguards as minors who are non-
citizens, if they present to a clearance officer.
346. In addition to requiring a lawful basis for interference, Article 17 prohibits arbitrary
interference of privacy. Interferences which are lawful may nonetheless be arbitrary where
those interferences are not in accordance with the objectives if the ICCPR and are not
reasonable in the circumstances. The United Nations Human Rights Committee has
interpreted the requirement of reasonableness` to imply that any interference with privacy
must be proportional to the end sought and be necessary in the circumstances.
347. Any interference with a person`s privacy by reason of the proposed amendments is
proportionate. An authorised system or a clearance officer will not take more information or
personal identifiers from the person than is necessary to achieve the legitimate objective of
confirming the person`s identity and validate the authenticity of their travel document. The
eGates or SmartGates will take a photograph of the person`s head and shoulders, and will
compare this image to the photograph already contained in their passport.
348. The amendments are necessary to modernise Australia`s border processing and take
advantage of technological advancements in facial recognition matching. Automated border
clearance systems SmartGate or eGates will perform the immigration clearance function for
arriving persons and border processing for departing persons. Automated border control
eGates will automate identity checking for all persons by replicating the current manual face-
to-passport check conducted by a clearance officer with automated biometric face matching
of live image capture to a passport. Biometric face matching technology can identify persons
with greater accuracy than manual processing. This will enable enhanced ability to
accurately identify all persons arriving and departing Australia and detect impostors and
fraudulent documents.
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349. Further, in light of the current threat of persons seeking to enter and depart Australia
undetected as impostors or using fraudulent documents to conduct criminal or terrorist
activities, the ability to lawfully collect, store and disclose information collected by clearance
officers or authorised systems is necessary, reasonable and proportionate in order to achieve
the legitimate objective accurately identifying persons arriving and departing Australia to
protect Australia and its national security interests.
350. Therefore, to the extent that these measures interfere with the freedom from unlawful
or arbitrary interference with privacy within the meaning of Article 17 of the ICCPR and
Article 16 of the CRC, such interferences are lawful and reasonable in the sense of necessary
and proportionate.
SCHEDULE 6 - IDENTIFYING PERSONS ENTERING OR LEAVING AUSTRALIA
THROUGH ADVANCE PASSANGER PROCESSING
Migration Act 1958
Expansion of Advance Passenger Processing systems for departing air and maritime
travellers
351. For travellers arriving in Australia, the Migration Act currently requires airlines to
mandatorily provide passenger data including the traveller`s name, nationality and passport
number through an approved reporting system (Advance Passenger Processing (APP)). APP
will confirm this baseline data against the record held by the Australian Government for that
visa or Australian passport or New Zealand passport and then confirm their authority to travel
to Australia. The current reporting system is also used by inward bound maritime vessels that
have more than 100 passenger berths. The intention of the APP system is to prevent entry to
Australia of any identified high-risk travellers.
352. The Advance Passenger Processing system provides forewarning of a person`s
intention to travel at the point that they check in for their flight. In the context of the foreign
fighter threat and persons intending to depart Australia to engage in foreign conflicts, this
advance notice allows appropriate security response to persons of interest.
353. It is proposed that section 5A and Division 12B of the Migration Act be amended to
require airlines and maritime vessels to electronically report on departing travellers via an
approved system. These amendments will also impose an infringement regime for airlines
and maritime vessels that fail to comply with the reporting requirement. The penalty regime
will be the same as for Inward APP (for arriving travellers to Australia), being either
prosecution or a financial penalty in lieu of prosecution. The financial penalty rate will be
the same as for arrivals and currently this is $1700 for each incident of the carrier failing to
provide APP report for a traveller.
354. This amendment is intended to overcome the current situation of DIBP and (Customs)
being only aware that a person is intending to depart Australia when the traveller arrives at
the outward immigration processing point. This is particularly problematic when a traveller
only presents for check-in or boarding at the airport or seaport a short time before their flight
or maritime vessel departs, and DIBP and Customs do not have sufficient time to respond to
or address any potential alerts or threats in relation to that traveller.
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355. APP for departing travellers will also provide greater administrative efficiency in
automating departure processing, streamlining the experience for international travellers
leaving Australia, and improving identity management.
Freedom from arbitrary and unlawful interferences with privacy in Article 17 of the
International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the
Convention on the Rights of the Child (CRC)
356. As this measure relates to the collection of personal information of citizens and non-
citizens for the purposes of reporting on persons departing from Australia, these measures
engage Article 17 of the ICCPR and Article 16 of the CRC.
357. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. Article 16 of the CRC is written in similar terms to
Article 17 of the ICCPR and prohibits the unlawful or arbitrary interference with the privacy
of a child.
358. To the extent that these measures may interfere with the privacy of citizens and non-
citizens (adults and children), such interference will be lawful by virtue of these legislative
amendments.
359. Further, any collection, storage and disclosure of information pursuant to the
proposed amendments will be undertaken in accordance with the Australian Privacy
Principles contained in the Commonwealth Privacy Act 1988. In particular, the measure
explicitly lists purposes for which the use or disclosure of personal information under
Division 12B is authorised by law. This is also consistent with the United Nations Human
Rights Committee General Comment 16 in which the Committee states that the gathering and
holding of personal information using information technology must be regulated by law and
that effective measures must be taken to ensure that the information collected is not accessed
by persons who are not authorised by law to receive, process or use it. Part 4A of the
Migration Act outlines officers` obligations relating to identifying information including the
manner in which officers are authorised to access and disclose information.
360. In addition to requiring a lawful basis for interference, Article 17 prohibits arbitrary
interference with privacy. Lawful interferences with privacy may nonetheless be arbitrary
where those interferences are not in accordance with the objectives if the ICCPR and are not
reasonable in the circumstances. The United Nations Human Rights Committee has
interpreted the requirement of reasonableness` to imply that any interference with privacy
must be proportional to the end sought and be necessary in the circumstances.
361. Any interference with a citizen or non-citizen`s privacy is necessary as Outward APP
forms a component of the whole of government approach to assist in preventing persons
departing from Australia from engaging in foreign conflicts and other activities that
compromise Australia`s national security. The departure check-in data received via the APP
reporting system will increase the time interval for law enforcement agencies to implement a
response to a given law enforcement concern about to occur at the border. As such, these
measures are necessary to mitigate the risk to the safety of the Australian community.
362. These measures are proportionate to that necessity and does not increase the scope of
information collected about departing persons. The information proposed to be collected is
information that is already collected at the immigration processing point when a person
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departs Australia and is typically presented to carriers by travellers and entered into their
systems to facilitate check-in. These amendments just ensure that the information can be
requested at an earlier point in time, and that reporting can occur at multiple points. This is
intended to ensure the reports can be required when circumstance change (for example if a
person does not board the aircraft after check-in), and provide DIBP and Customs sufficient
time to make assessment as to the threat posed by certain travellers.
363. The introduction of automated departure processing will mean that Customs staff will
need to make fewer manual checks of personal information as the system will be making
those checks instead. This is an operational enhancement that allows DIBP and Customs to
perform its functions more thoroughly and with greater effectiveness, reducing potential
workplace injuries through repetitive manual data input.
364. To the extent that this measure engages Article 17 of the ICCPR, these measures are
lawful and reasonable in the sense of necessary and proportionate to achieving the legitimate
purpose of identifying high risk travellers who may pose a safety risk to the Australian
community.
SCHEDULE 7 - SEIZING BOGUS DOCUMENTS
Migration Act 1958 / Australian Citizenship Act 2007
Seizure of bogus documents
365. The Bill amends the Migration Act and the Citizenship Act to introduce a measure to
retain documents presented or provided to DIBP that are bogus.
366. DIBP is presented with, or has provided to it, hundreds of documents on a daily basis.
Examples include passports and other travel documents provided on arrival or at departure at
Australia`s eight international airports, visa applications lodged at DIBP counters, or during
compliance visits where DIBP confirms work rights. The requirement to provide documents
to DIBP relates to the type of service being requested. For example, all persons who seek to
enter Australia must provide a passport or valid travel document that details the person`s
personal information and has a facial image. Currently, inspection of documents takes place
in public, which may include DIBP officers conducting a visual inspection of document/s and
asking persons questions about the documents presented.
367. While the overwhelming majority of documents are legitimate, a small number are
bogus. Where a bogus document is detected currently, the DIBP officer has no option but to
return the bogus document to the person who provided it. While DIBP does take action so
that the person does not obtain a benefit as a result of using a bogus document at the time (for
example, DIBP may refuse a visa application based on a bogus birth date), the document
remains available to the person to continue to use it for potentially fraudulent purposes.
368. The following examples illustrate why it is important to remove bogus documents
from circulation:
a person may arrive or depart Australia using another person`s passport/travel
document, or
a person who continues to use a bogus passport as evidence of identity in
Australia to obtain a credit card and pay for goods and services.
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369. The Bill describes the forfeiture, seizure, and requirements of DIBP when seizing a
document and the rights of the individual whose documents may be forfeited and seized.
370. A bogus document` is currently defined in section 97 of the Migration Act:
in relation to a person, means a document that the Minister reasonably suspects is a
document that:
a) purports to have been, but was not, issued in respect of the person; or
b) is counterfeit or has been altered by a person who does not have the authority to
do so; or
c) was obtained because of a false or misleading statement, whether or not made
knowingly.
371. New sections will be added to the Migration Act to provide a prohibition on a person
providing a bogus document/s within the meaning of section 97 above for any purpose
relating to DIBP`s functions or activities under the Migration Act. A document presented or
provided to DIBP is subject to forfeiture to the Commonwealth.
372. New sections will also be added to the Citizenship Act to provide a definition of
bogus documents; as such a definition does not currently exist. Further provisions are also
proposed relating to the prohibition of a person presenting or providing a bogus document/s
for any purpose relating to DIBP`s functions or activities under that Act, and for the forfeiture
of a bogus document so provided to DIBP. As under the Migration Act, applicants for
citizenship also provide a wide range of documents to DIBP, and the amendments to the
Citizenship Act are for the same purposes as amendments to the Migration Act.
373. The seizure of bogus document/s would take place during routine inspection of
documents, which may be in a public place. In some of these instances, the retention of
documents may occur in view of other members of the public. The proposed amendments to
the Migration Act and the Citizenship Act would apply equally to any person who presents or
provides a bogus document to DIBP.
Freedom against unlawful and arbitrary interference with privacy in Article 17 of the ICCPR
374. As these amendments relate to the forfeiture and seizure of suspected bogus
documents which contain personal information (such as passports, driver licences, foreign
government identity documents, bank statements, English proficiency test rests), Article 17 of
the ICCPR is engaged.
375. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. To the extent that these measures may interfere with
the privacy of citizens and non-citizens, those limitations are lawful by virtue of these
legislative amendments.
376. Further, any collection, storage and disclosure of information pursuant to these
proposed amendments will be undertaken in accordance with the Australia Privacy Principles
contained in the Commonwealth Privacy Act 1988. This is consistent with the UN Human
Rights Committee General Comment 16 in which the Committee states that the gathering and
holding of personal information using information technology must be regulated by law and
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that effective measures must be taken to ensure that the information collected is not accessed
by persons who are not authorised by law to receive, process or use it.
377. In addition to requiring a lawful basis for interference, Article 17 prohibits arbitrary
interference with privacy. Lawful interferences with privacy may nonetheless be arbitrary
where those interferences are not in accordance with the objectives of the ICCPR and are not
reasonable in the circumstances. The UN Human Rights Committee has interpreted the
requirement of reasonableness` to imply that any interference with privacy must be
proportional to the end sought and be necessary in the circumstances.
378. DIBP`s objective in making these amendments is to enable effective border
management and ensure integrity in its migration and citizenship programmes by accurately
establishing and managing the identity of persons who enter, exist and reside in Australia.
This objective is consistent with the Government`s priority to detect and prevent the travel of
persons identified as travelling to/from Australia for a terrorism-related purpose. The
amendments involve the authority to retain a bogus document when it is given, presented,
produced or provided to DIBP. A notice will be provided to a person whose document/s is
retained, and to facilitate any claim that a person may choose to initiate.
379. The ability of DIBP to retain bogus document/s from an individual is necessary as
fraudulent documents may be used for criminal, including terrorist, purposes. Fraudulent
documents including identity documents are recognised as enablers of criminal activity,
including identity fraud. For example, bogus documentation can be used to gain financial
advantage or to obtain legitimate` proof-of-identity documents for the purposes of
committing fraud against the Commonwealth, State and Territory governments, the private
sector (including financial institutions), and small businesses that provide service son credit.
380. Therefore, to the extent that these measures engage Article 17 of the ICCPR, these
measures are lawful and necessary and proportionate to meet the legitimate objective of the
Bill to reduce the threat of terrorism in Australia by assisting to remove from circulation in
the Australian community bogus documents that would be able to be used to facilitate
terrorist or serious criminal activity.
INDEPENDENT OVERSIGHT BODIES
381. The role of the INSLM, the Commonwealth Ombudsman and the IGIS are vital and
constitute important safeguards in the monitoring of the legal and operational framework of
law enforcement and intelligence agencies. The ongoing reviews undertaken by these
independent bodies provide an additional safeguard to ensure the legislative regimes
proposed by the Bill function effectively and that any deficiencies are identified and
remedied.
The Independent National Security Legislation Monitor
382. The position of the INSLM was created under the Independent National Security
Legislation Monitor Act 2010. The role of the INSLM is to review the effectiveness and
operation of Australia`s counter-terrorism and national security legislation on an annual basis.
Among the INSLM`s roles is to also take into account Australia`s international human rights
obligations when reviewing legislation so as to ensure the measures adopted are proportionate
and necessary. The INSLM must also report on matters referred to him or her and has the
authority to commence inquiries into matters within his or her remit.
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383. The INSLM will be the principal review mechanism as the statutory mandate of the
INSLM is to review Australia`s counter-terrorism and national-security related provisions in
the Criminal Code Act, Crimes Act, ASIO Act, Foreign Incursions Act, UN Charter Act,
Defence Act 1903 and the National Security Information (Criminal and Civil Proceedings)
Act 2004. As the measures under the Bill amend some of the abovementioned Acts, the
INSLM will review the proposed amendments and report on them annually.
384. The INSLM`s considerations on the operation, effectiveness and implications of
Australia`s counter-terrorism and national security framework will continue to inform the
Australian Government`s response to the emerging and evolving threat of foreign fighters and
terrorism more broadly. The additional safeguard provided by the INSLM will ensure that
the balancing of national security concerns with civil liberties is under constant review.
The Inspector-General of Intelligence and Security
385. The IGIS has broad powers under the Inspector-General of Intelligence and Security
Act 1986 (IGIS Act) to inquire into any matter relating to compliance by ASIO with laws of
the Commonwealth, the states and territories or with directions or guidelines issued by the
responsible minister, the propriety of its actions and the effectiveness and appropriateness of
procedures relating to legality or propriety, at the request of the responsible Minister, on his
or her own motion or in response to a complaint.
386. The IGIS has particularly strong powers to compulsorily obtain information and
documents and enter premises, as well as obligations to provide procedural fairness. The role
of the IGIS under the IGIS Act has also been recently expanded to allow the Prime Minister
to request the IGIS to inquire into an intelligence or security matter relating to any
Commonwealth department or agency. Increasingly, a range of Commonwealth departments
and agencies work with the Australian Intelligence Community on intelligence and security
matters. To fully consider an intelligence or security matter, it may sometimes be necessary
for the IGIS to consider the role played by non-Australian Intelligence Community
departments or agencies in relation to that matter.
387. A crucial element of this oversight role of the IGIS is the ability to undertake formal
inquiries into the activities of an Australian intelligence agency in response to a complaint or
a reference from a Minister. The IGIS can also act independently to initiate inquiries and
conducts regular inspections and monitoring of agency activities. In conducting a formal
inquiry, the IGIS has significant powers including requiring the attendance of witnesses,
taking sworn evidence, copying and retention of documents and entry into Australian
intelligence agencies` premises. The IGIS may also conduct preliminary inquiries into
matters with a view to determining whether a full inquiry is necessary.
388. After undertaking an inquiry, the IGIS must complete a report. Complaints can be
brought to the IGIS about the actions of the relevant intelligence agency, including ASIO,
and the IGIS can recommend how the agency should respond to these complaints if they are
determined to be well-founded.
Commonwealth Ombudsman
389. The Commonwealth Ombudsman is also the Law Enforcement Ombudsman and is
mandated to investigate complaints about the actions of AFP members and about the policies,
practices and procedures of the AFP as an agency. For instance, the PDO regime in
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Division 105 of the Criminal Code expressly provides that a detained person may contact the
Commonwealth Ombudsman and make a complaint about his or her treatment while in
detention under a PDO. The Commonwealth Ombudsman provides an additional safeguard to
ensure the effective and appropriate functioning of the measures contemplated in the Bill.
Conclusion
390. The Bill engages a range of human rights and is compatible with human rights
because it promotes some rights and to the extent that it may limit particular rights, those
limitations are reasonable, necessary and proportionate in achieving a legitimate objective.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
391. This clause provides for the Bill to be cited as the Counter-Terrorism Legislation
Amendment (Foreign Fighters) Act 2014.
Clause 2 - Commencement
392. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
393. Sections 1 to 3 commence on the day the Act receives Royal Assent. Schedules 1 to 2
commence on the 28th day after the Act receives Royal Assent. Schedules 3 to 5 will
commence on the day after this Act receives Royal Assent. Schedule 6 will commence on 1
July 2015.
394. Schedule 7, which provides for amendments that relate to seizing bogus documents,
commences according to table items 5 to 13 of the Commencement Information table.
395. Table items 5, 8, 10 and 13 provide that items 1 to 3 and items 6, 8 and 11 of
Schedule 7 commence on the day after the Act receives Royal Assent.
396. Table items 6, 7, 9, 11 and 12 refer to items in Schedule 7 that make amendments that
are contingent on the commencement of the Migration Amendment (Protection and Other
Measures) Act 2014 (POM Act).
397. The POM Act re-locates the definition of bogus document from section 97 of the
Migration Act to subsection 5(1) of that Act. Items 4, 5, 7, 9 and 10 of Schedule 7 provide
alternative amendments to refer to the term bogus document as defined in section 97 of the
Migration Act if the POM Act has not yet commenced or refer to the term bogus document
as defined in subsection 5 (1) if the POM Act has commenced first. The commencement of
each item depends on whether or not the POM Act has already commenced.
Clause 3 - Schedules
398. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
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Schedule 1 - Amendments and repeals
Part 1 - Amendments
Administrative Decisions (Judicial Review) Act 1977
Item 1 - After paragraph (db) of Schedule 1
399. Item 1 inserts paragraphs (dc) and (dd) in Schedule 1 of the ADJR Act. Schedule 1 of
the Act lists classes of decisions that are not decisions to which the Act applies.
400. New paragraph (dc) provides that decisions made under new sections 22A and 24A of
the Passports Act, which are inserted by items 21 and 23, are not subject to review under the
ADJR Act. These new sections enable the 14-day suspension and surrender of a person`s
Australian travel documents.
401. New paragraph (dd) provides that decisions made under new sections 15A and 16A of
the Foreign Passports Act, which are inserted by items 129 and 131, are not subject to review
under the ADJR Act. These new sections relate to the 14-day surrender of a person`s foreign
travel documents.
402. It is necessary to exclude all decisions listed in new paragraphs (dc) and (dd) from
review under the ADJR Act as judicial review under the Act may compromise the operations
of security agencies and defeat the national security purpose of the new mechanisms. For
example, the new mechanisms would be made redundant if a court were to make an
injunction order allowing the person of security concern to travel on an Australian travel
document despite that document being suspended. The exclusion of the decisions from
review under the ADJR Act is balanced by the fact that the effect of the decision is for a short
temporary period of 14 days.
403. The exclusion of these decisions from ADJR Act review implements
Recommendations V/4 and V/5 of the INSLM`s Fourth Annual Report. The INSLM noted
that for the temporary passport suspension to be an effective counter-terrorism measure a
decision to request a passport suspension should not be subject to judicial review (except
under the Constitution) or merits review.
404. The exclusion of these decisions from ADJR Act review does not prevent the
decisions from being judicially reviewed under paragraph 75(v) of the Constitution.
Additionally, the IGIS will have oversight of any decision by ASIO to make a request under
the new provisions in the Passports Act and the Foreign Passports Act.
Anti-Monday Laundering and Counter-Terrorism Financing Act 2006
Item 2 - Section 5
405. This item inserts the new definition of Attorney-General`s Department`, meaning the
department administered by the Attorney-General.
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Item 3 - Section 5 (after paragraph (ha) of the definition of designated agency)
406. This item expands the definition of designated agency` to include AGD. This allows
AGD to access the financial intelligence data holdings of the Australian Transaction Reports
and Analysis Centre (AUSTRAC). This will allow AGD to more efficiently and effectively
develop and implement policy around terrorism financing risks, and ensure a more holistic
approach to the Government`s national security response to foreign fighters.
Item 4 - Application of amendments
407. This item provides that the listing of AGD as a designated agency under section 5
applies in relation to disclosures of, and access to, information after this item commences,
regardless of whether the information was obtained before, on or after the commencement of
the provision.
Item 5 - Paragraph 121(2)(a)
408. This item amends existing paragraph 121(2)(a) by removing the reference to section
49 or. This operates to ensure that further information obtained by an entrusted public
official under section 49 may be disclosed in the circumstances set out in subsection 121(3).
Item 6 - Paragraphs 122(1)(a), (b), (c) and (d)
409. This item repeals paragraphs (a) - (d) of subsection 122(1) to make it clear that these
categories of entrusted investigating officials are not subject to the restricted disclosure
regime set out in section 122 regarding information obtained under section 49.
Item 7 - Paragraph 122(3)(a), (c) and (d)
410. This item repeals paragraphs (a), (c) and (d) of subsection 122(3) to make it clear that
information obtained under section 49 may only be disclosed by an entrusted investigating
official if the disclosure is for, or in connection with, the performance of the functions of the
AUSTRAC CEO (subparagraph 122(3)(b)), or if the disclosure is made to another entrusted
investigating official as provided for in subparagraphs s122(3)(e) - (j).
Item 8 - Application of amendments
411. This item provides that the amendments to sections 121 and 122 apply in relation to
disclosures of information made after this item commences, regardless of whether the
information was obtained before, on or after the commencement of the relevant provision.
AusCheck Act 2007
Item 9 - Paragraph 8(2)(d)
412. This item inserts a reference to Part 5.5 after the reference to Part 5.3 in
paragraph 8(2)(d) which, in combination with existing paragraph 8(1)(b), limits the purposes
for which a background check can be conducted under another Act. This ensures AusCheck
can conduct background checks for purposes related to the prevention of the foreign
incursions and recruitment conduct prohibited by new Part 5.5 of the Criminal Code.
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Item 10 - Paragraph 8(2)(d)
413. This amendment is consequential to the first amendment to paragraph 8(2)(d). This
amendment describes new Part 5.5 of the Criminal Code as dealing with foreign incursions
and recruitment.
Australian Passports Act 2005
Overview of new passports measures
414. Items 11 to 26 will amend the Passports Act to enable the Minister for Foreign Affairs
to suspend a person`s Australian travel documents for a period of 14 days if requested by
ASIO.
415. ASIO currently has the ability to make a competent authority request for a person`s
Australian passport to be cancelled if it suspects on reasonable grounds that, if the person had
an Australian passport, the person would be likely to engage in conduct that might prejudice
the security of Australia or a foreign country and that the passport should be cancelled in
order to prevent the conduct.
416. The amendments will enable ASIO to make a request that the Minister for Foreign
Affairs suspend for a period of 14 days all Australian travel documents issued to a person if it
suspects on reasonable grounds both that the person may leave Australia to engage in conduct
that might prejudice the security of Australia or a foreign country and that all the person`s
Australian travel documents should be suspended in order to prevent the person from
engaging in the conduct.
417. The primary purpose of these amendments is to enhance the Australian government`s
capacity to take proactive, swift and proportionate action to mitigate security risks relating to
Australians travelling overseas. The amendment will enable the Minister for Foreign Affairs
to exercise a discretionary power to take temporary action to suspend a person`s travel
documents upon receipt of a request from ASIO. The request will include the security
rationale for the making of the request.
418. These amendments will strengthen the Australian Government`s capacity to
proactively mitigate the security risk arising from travel overseas by Australians who may be
planning to engage in activities of security concern by providing a lower threshold for the
making of a request. The requisite threshold is commensurate with the temporary nature of
the contemplated administrative action by the Minister for Foreign Affairs. The amendments
provide that ASIO would need to make a further competent authority request recommending
passport cancellation to give longer term effect to the disruption of the security threat.
419. The amendments will also override the requirement to notify a person of the
Minister`s passport cancellation or refusal decision where it is essential to the security of the
nation or where notification would adversely affect a current investigation into a terrorism
offence.
420. Items 127 to 131 will also insert provisions into the Foreign Passports Act that will
complement the new suspension mechanism under the Passports Act. The Minister for
Foreign Affairs already has the ability to order the surrender of a person`s foreign travel
documents if requested by ASIO. The proposed amendment will allow ASIO to make a
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request for the 14-day surrender of a person`s foreign travel documents at a lower threshold
than that provided for under the existing provisions.
421. These changes implement several recommendations of the INSLM`s Fourth Annual
Report.
Item 11 - Subsection 6(1)
422. This item inserts the definition of ASIO (the Australian Security Intelligence
Organisation) into subsection 6(1). A definition of ASIO is required as it is the only
authority that can make a request for an Australian document to be suspended under new
section 22A and it is not currently defined in the Act.
Item 12 - Section 17 (heading)
423. This item amends the heading of section 17 to reflect changes made to subsection
17(1), which relate to the new suspension of Australian travel documents.
Item 13 - At the end of subsection 17(1)
424. This item amends subsection 17(1) of the Act so that the Minister cannot issue an
Australian passport to a person while their passport is suspended. This is necessary because
the person`s Australian travel documents may be subsequently cancelled following the
suspension of those documents, so issuing the person with another passport during the
suspension period would defeat the purpose of the passport suspension.
Item 14 - Division 3 of Part 2 (heading)
425. This item amends the heading of Division 3 of Part 2 to reflect the effect of
Division 3, which relates to circumstances when Australian travel documents are suspended
as well as cancelled.
Item 15 - Section 20 (heading)
426. This item amends the heading of section 20 to reflect the introduction of new
subsection 20(3) and to clarify that existing subsections 20(1) and (2) relate to the cessation
of the validity of an Australian passport.
Item 16 - At the end of section 20
427. This item inserts a new subsection 20(3) to provide that an Australian passport is not
valid while it is suspended under new section 22A. This assists in preventing the person from
travelling while a suspension is in place.
Item 17 - Section 21 (heading)
428. This item amends the heading of section 21 to reflect new subsection 21(2) and to
clarify that new subsection 21(1) relates to the cessation of the validity of an Australian travel
document.
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Item 18 - Section 21
429. This item inserts new subsection 21(1), which captures the provisions already
contained in section 21, which relate to the cessation of the validity of a travel document.
Item 19 - At the end of section 21
430. This item inserts new subsection 21(2), which provides that an Australian
travel-related document is not valid while it is suspended under new section 22A. This
assists in preventing the person from travelling while a suspension is in place.
Item 20 - At the end of section 22
431. This item inserts subsection 22(3) to ensure that it is clear that the Minister can cancel
a person`s passport while the passport is suspended under section 22A.
Item 21 - At the end of Division 3 of Part 2
432. This item inserts new section 22A, which is the mechanism that allows the Minister to
suspend the validity of an Australian travel document.
433. New section 22A will strengthen the effectiveness of Australia`s counter-terrorism
legislative framework and enable the Australian Government to proactively mitigate security
threats. Currently, there are no provisions in the Passports Act which allow the Minister for
Foreign Affairs to take temporary action in relation to a person`s passport where there are
security concerns in relation to the person, but there is not enough information and/or time to
permit ASIO to make a competent authority request that the person`s Australian passport be
cancelled under section 14 of the Act. This item introduces a temporary measure in the form
of a suspension of the person`s Australian travel documents. New section 22A is the main
provision that implements Recommendation V/4 of the INSLM`s fourth annual report to
introduce an interim passport suspension scheme for Australian passports. The mechanism
will be complemented by a new provision in the Australian Passports Determination 2005,
which will allow the processing of a passport to be delayed at the request of ASIO where
there are security concerns in relation to the person.
434. New subsection 22A(1) enables the Minister to suspend a person`s travel documents
for a period of 14 days where ASIO makes a request under new subsection 22A(2). While
the suspension period is longer than the maximum 7-day suspension period proposed by the
INSLM this is necessary to ensure the practical utility of the suspension period with regard to
both the security and passports operating environment. This time period also ensures that, on
balance, a person`s travel rights are not unduly impinged upon in the interests of national
security. An order made by the Minister will apply to all of a person`s Australian travel
documents and not just that person`s passport. This is consistent with the intention of the
mechanism to prevent overseas travel on any Australian travel document and is also
consistent with the language of section 22 of the Act, which allows the Minister to cancel an
Australian travel document (and not just a passport).
435. New subsection 22A(2) gives ASIO the ability to make a request to the Minister to
suspend all Australian travel documents issued to a person. ASIO will be able to make a
request where it suspects on reasonable grounds that the person may leave Australia to
engage in conduct that might prejudice the security of Australia or a foreign country, and the
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person`s Australian travel documents should be suspended to prevent the person from
engaging in the conduct. ASIO is the sole requesting authority as the suspension mechanism
is designed to target persons of security concern as defined in section 4 of the ASIO Act. The
threshold for a request under subsection 22A(2) is lower than that required for a passport
refusal or cancellation request under section 14 of the Act, commensurate with the temporary
nature of the contemplated administrative action.
436. The lower threshold will enable the Minister for Foreign Affairs to take temporary
action to suspend a person`s Australian travel documents for a period of 14 days during
which time ASIO can further assess the extent and nature of the security risk to inform
further security advice to DIBP of Foreign Affairs. The making of a suspension request by
ASIO must be based on credible information which indicates that the person may pose a
security risk. The written request will include the security rationale for the making of the
request.
437. New subsection 22A(3) allows ASIO to make an additional request in relation to the
person where it has new information that was not before it at the time of the suspension
request and during the period of the suspension. The subsection allows ASIO to make a
request where there is genuinely new information before it. However, the subsection is not
intended to allow for consecutive rolling suspensions, which would defeat the purpose of the
limited 14-day suspension period.
Item 22 - At the end of paragraph 24(1)(b)
438. This item amends paragraph 24(1)(b) so that an officer cannot demand that a person
surrender a suspended Australian travel document to the officer under section 24. The
surrender of a suspended Australian travel document is instead provided for in new
section 24A.
Item 23 - After section 24
439. Under new subsection 24A(1), an officer may demand that a person surrender their
Australian travel document if it has been suspended under section 22A. This surrender power
ensures that a person is unable to travel using their suspended Australian travel document.
440. New subsection 24A(4) creates an offence in circumstances where a person fails to
surrender their Australian travel documents after a demand from an officer under subsection
24A(1). The offence is necessary to give effect to the surrender order so a person will not be
able to keep their suspended Australian travel documents, despite an order being made for
their surrender, with no adverse consequences. The penalty for an offence under this
subsection is imprisonment for six months or ten penalty units, or both.
441. New subsection 24A(3) provides that an Australian travel document, if surrendered,
must be returned to the person at the end of the suspension period (that is, at the end of 14
days from the making of the order). Subsection 24A(3) appropriately ensures that at the end
of the suspension period a person is able to exercise their right to travel. However, the
exception to this is where the Minister has cancelled a person`s Australian travel documents
in the suspension period. In this situation, the surrendered Australian travel documents are
not required to be returned to the person because they will be invalid.
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442. The decision to demand the surrender of a suspended Australian travel document will
not be a reviewable decision under section 48, given the temporary nature of the surrender.
Item 24 - Section 48 (note)
443. This item amends the note to section 48 to clarify that the notification provisions in
section 27A of the AAT Act apply to reviewable decisions under section 48, but will not
apply in the circumstances described in new section 48A.
Item 25 - After section 48
444. This item inserts new section 48A, which provides for circumstances where the
notification provisions under section 27A of the AAT Act and section 38 of the ASIO do not
apply. In some situations, notifying a person that their passport has been cancelled (or that a
decision to refuse to issue a passport has been made) will adversely affect the security of the
nation or the investigation of a terrorism offence. New section 48A has been inserted to
ensure that, in certain limited circumstances, a person does not need to be notified of the
decision relating to that person`s passport or passport application.
445. New subsection 48A(1) provides for the scope of application of section 48A, which
sets out the circumstances in which the Minister will not be required to notify a person of a
decision to refuse to issue an Australian passport or to cancel an Australian travel document.
446. New subsection 48A(2) gives legislative certainty to the withholding of notice of
passport cancellations. If ASIO or the Director-General of Security makes a refusal or
cancellation request in relation to a person`s passport under subsection 14(1) of the Passports
Act the request will amount to an adverse security assessment` for the purposes of Part IV of
the ASIO Act. If ASIO provides an adverse security assessment to DIBP or DFAT in respect
of a person and recommends that the Minister cancel the person`s Australian passport,
subsection 38(1) of the ASIO Act imposes specific legal obligations on DFAT including the
provision to the person of written notice of the security assessment, a copy of the security
assessment and information in the prescribed form concerning the person`s right to apply to
the AAT to seek merits review of the security assessment. However, if the Attorney-General
certifies in writing under paragraph 38(2)(a) of the ASIO Act that s/he is satisfied that the
withholding of notice to a person is essential to the security of the nation, DFAT is permitted
not to give notice to the person in accordance with subsection 38(1) of the ASIO Act in
relation to the security assessment.
447. The insertion of subsection 48A(2) ensures that a person will not be notified by DFAT
of the making of the competent authority request or the Minister`s passport cancellation or
refusal decision where the Attorney-General has certified under paragraph 38(2)(a) of the
ASIO Act that s/he is satisfied that the withholding of notice of the making of a security
assessment from a person is essential to the security of the nation. Under section 27A of the
AAT Act, the Minister is required to take such steps as are reasonable in the circumstances to
notify the person whose interests are affected by the Minister`s passport cancellation or
refusal decision. New subsection 48A(2), when read with new subsection 48A(7), provides
that where the Attorney-General has issued a certificate under paragraph 38(2)(a) of the
ASIO Act in relation to the withholding of notice to a person of the security assessment (that
is, the refusal or cancellation request) the notification provisions in section 27A of the
AAT Act do not apply.
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448. New subsection 48A(3) provides that the Minister is not required to notify a person of
the refusal or cancellation if a member or special member of the AFP has made a request
under subsection 14(1) and there is in force a certificate under new subsection 48(4).
449. New subsection 48A(4) allows the Minister administering the Australian Federal
Police Act 1979 (AFP Act) to certify, in writing, that notifying a person of a refusal or
cancellation decision would adversely affect a law enforcement investigation into one of the
offences listed in paragraph (a)-(d). Paragraphs (a)-(d) list the terrorism offences under the
new definition of terrorism offence` in the Crimes Act. The certificate under new subsection
48A(4) has been limited to these offences because, as a general rule, a person should be
notified when an administrative decision has been made against them. However, in light of
the enduring terrorist threat it is necessary to prevent the notification of a person where
Australia`s law enforcement interests would be adversely affected by the notification of that
person. New subsection 48A(4), when read with subsection 48A(7), provides that where the
Minister administering the AFP Act has issued a certificate the notification provisions in
section 27A of the AAT Act do not apply.
450. Subsection 48A(5) has been included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003
(Legislative Instruments Act).
451. New subsection 48A(6) has been included to ensure that the Minister is notified
where the Minister administering the AFP Act has issued a certificate (or revoked a
certificate) under new subsection 48A(4). It is necessary that the Minister be notified so that
the Minister does not inadvertently notify the relevant person of a passport refusal or
cancellation decision despite the existence of a certificate issued in accordance with new
subsection 48A(4).
452. New subsection 48A(7) provides that new section 48A has effect despite the
notification provisions in section 27A of the AAT Act.
Item 26 - After paragraph 51(1)(d)
453. This item inserts paragraph 51(1)(da), which allows the Minister to delegate, in
writing, to an officer (within the meaning of paragraph (a), (b), (c) or (g) of the definition of
officer in subsection 6(1)) the Minister`s power to suspend a person`s Australian travel
documents under new section 22A. It is appropriate for the Minister to be able to delegate
this power because the Minister is already able to delegate the decision to cancel a person`s
Australian travel documents.
Australian Security Intelligence Organisation Act 1979
Item 27 - Section 4 (paragraph (c) of the definition of politically motivated violence)
454. This item is consequential to amending items 110 and 144 of Schedule 1 to the Bill,
which repeal the Foreign Incursions Act and insert a new Part 5.5 in the Criminal Code. The
offences in the Foreign Incursions Act are consolidated in the new Division 119 of Part 5.5 of
the Criminal Code.
455. Paragraph (c) of the definition of politically motivated violence` in section 4 of the
ASIO Act includes a number of security offences, including those against the Foreign
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Incursions Act. Amending item 27 substitutes the reference in paragraph (c) to offences
against the Foreign Incursions Act with offences against new Division 119 of the Criminal
Code.
456. The definition of politically motivated violence` in the ASIO Act is relevant to
ASIO`s statutory functions in relation to security as set out in section 17 of the ASIO Act.
The term security` is defined in section 4 of the ASIO Act to include the protection of the
Commonwealth, states and territories, and their people, from threats including politically
motivated violence: per subparagraph (a)(iii).
457. Amending item 27 will ensure that ASIO can continue to perform its statutory
functions with respect to matters relevant to security that relate to politically motivated
violence, in the form of the offences presently in the Foreign Incursions Act and proposed to
be relocated to new Division 119 of the Criminal Code. As this amendment is technical in
nature it does not extend, in any material way, ASIO`s statutory functions or powers.
Item 28 - Paragraph 34D(4)(b)
458. This item amends one of the issuing criteria for questioning warrants in
section 34D(4)(b). This provision concerns the elements of which the Minister (being the
Attorney-General) must consent prior to the Director-General of Security making an
application to an issuing authority for a questioning warrant. Presently, section 34D(4)(b)
requires the Attorney-General to be satisfied that relying on other methods of collecting the
intelligence sought to be obtained would be ineffective. As the INSLM noted in his second
annual report, this operates, in effect, as a last resort` requirement, in that consent cannot be
granted if there are any other intelligence collection methods are available that are not
ineffective. It is therefore not material that other available methods may be significantly less
effective than a questioning warrant, may take considerably longer in time critical
circumstances, or may involve a considerably greater risk to the lives or safety of persons
collecting the intelligence.
459. Amending item 28 removes the last resort` requirement in section 34D(4)(b) and
substitutes it with a provision requiring the Attorney-General to be satisfied that the issuing
of the warrant requested is reasonable in all of the circumstances. The new threshold will
require the Attorney-General, in making this assessment, to have regard to whether there are
other methods of collecting the intelligence sought to be collected under the warrant, and
whether those other methods are likely to be as effective. This means that, rather than being
available only if the Attorney-General is satisfied that they are the sole means of collecting
intelligence, questioning warrants will be available if the Attorney-General is satisfied that it
is reasonable in the circumstances to obtain intelligence by way of a questioning warrant.
The existence of other, less intrusive methods of obtaining the intelligence will therefore be a
relevant but non-determinative consideration in decisions made under section 34D(4).
460. This item implements the Government`s response to a recommendation in the
INSLM`s second annual report. The Government supports the reasoning of the INSLM, who
concluded that it would be reasonable to substitute the last resort` requirement in
section 34D(4)(b) with a most effective` requirement, on the basis that the latter requirement
would be a fair balance of security and liberty` having regard to the range of other
safeguards governing the exercise of powers to issue questioning warrants. These safeguards
include the requirement for questioning warrants to be issued by an issuing authority who,
before issuing a questioning warrant, must be satisfied that there are reasonable grounds for
85
believing that the warrant will substantially assist the collection of intelligence that is
important in relation to a terrorism offence. They also include the Attorney-General`s
Guidelines to ASIO, which are made under section 8A of the ASIO Act, and the ability for
Statement of Procedures for the exercise of authority under Part III, Division 3 to be issued
by the Director-General of Security in accordance with section 34C of the ASIO Act.
Importantly, the Attorney-General`s Guidelines require ASIO to undertake inquiries and
investigations, wherever possible, using the least intrusive techniques to collect information.
461. Further, the legality and propriety of ASIO`s activities, including in making requests
for questioning warrants, is subject to the oversight of the IGIS under the IGIS Act. The
IGIS also has a specific oversight function in relation to the execution of questioning and
questioning and detention warrants under Division 3 of Part III of the ASIO Act. This
includes an obligation on the Director-General of Security, under section 34ZI, to furnish the
IGIS, as soon as practicable, with a copy of any draft requests for warrants given to the
Attorney-General under section 34D(3). The IGIS will therefore have visibility of the
statement of facts and other grounds on which ASIO considers it necessary that the warrant
should be issued.
462. As the INSLM also noted in his second annual report, there is precedent for a
requirement in the nature of that inserted by this item in the compulsory questioning powers
invested in the Australian Crime Commission under section 28(1A) of the Australian Crime
Commission Act 2002. On this basis, the Government supports the INSLM`s conclusion that
the last resort` requirement presently included in section 34D(4)(b) of the ASIO Act is not
necessary, and it is appropriately replaced with the threshold in amending item 28.
Item 29 - Application of amendment
463. Amending item 29 provides that the requirement in new section 34D(4)(b) applies to
consent that is sought on or after the commencement of amending item 28. This means that,
if a request for the Attorney-General`s consent is sought before amending item 28
commences, the last resort` threshold presently in section 34D(4)(b) must be applied (or the
request discontinued and a new request made after new section 34D(4)(b) commences). If a
request for consent is made on, or after, the commencement of amending item 28, the
threshold in new section 34D(4)(b) applies. The new threshold is therefore of prospective
application only.
Item 30 - At the end of section 34L
464. This item creates a new offence in section 34L (new subsection 10) in relation to
persons who engage in conduct in relation to a record or a thing which has been requested to
be produced under a warrant, with the result that the record or thing is unable to be produced
or produced in wholly legible or useable form.
465. This item implements the Government`s response to a recommendation in the
INSLM`s second annual report to introduce a new offence in relation to the wilful destruction
of, or tampering with, records or things which have been requested to be produced under a
questioning warrant. This is intended to ensure that there are no unforeseen gaps in the
existing offence provision in section 34L(6), which applies to persons who fail to produce a
record or thing to a prescribed authority, in accordance with a request made in a warrant
issued under Division 3 of Part III of the ASIO Act. Consistent with the intent of the
INSLM, the offence in new section 34L(10) is introduced to ensure the offences in section
86
34L capture persons who contravene the obligation to produce materials which are required
to be produced under a questioning warrant.
466. The elements of the offence are that the person has been requested, under a
questioning warrant, to produce a record or thing; and he or she intentionally engages in
conduct, the result of which is that the record or thing is unable to be produced in a legible or
useable form. The person must be reckless as to the result of his or her conduct, by reason of
section 5.6(2) of the Criminal Code. This means that a person must be aware of a substantial
risk that his or her conduct would result in the non-production, or production in an illegible or
unusable form, of the record or thing requested under a warrant, and nonetheless and
unjustifiably in the circumstances known to him or her at the time took the risk of engaging
in the conduct (pursuant to section 5.4(2) of the Criminal Code).
467. The application of the fault element of recklessness to the physical element of a result
of conduct in proposed section 34L(10)(c) reflects the Government`s view that persons who
have been placed on notice to produce materials under a warrant are held to an appropriate
standard of conduct in ensuring that the materials are able to be produced. It would be
counter-productive to require the prosecution to specifically prove that the person intended to
destroy or otherwise interfere with a thing or record, and that the person engaged in that
conduct with the specific intention of preventing the thing or record from being produced
under a warrant. The inclusion of such elements in the proposed offence would create an
arbitrary distinction between culpable and non-culpable conduct on the basis of evidence in
relation to a person`s specific intent in engaging in the relevant conduct, and the particular
nature of his or her actions, notwithstanding that the result of conduct is an inability to
produce the records or things specifically requested under the warrant. Unlike offences
applying to persons who destroy or tamper with materials that they know are, or may be,
required in judicial proceedings (for example, section 39 of the Crimes Act), the offence in
proposed section 34L(10)(c) is limited to the subject of a questioning warrant, who is placed
on notice to produce materials as a result of the issuing of that warrant to him or her.
468. The offence applies to conduct which prevents production of things or records in
wholly legible or useable form. The inclusion of the term wholly` in proposed
section 34L(10)(c) makes clear that the offence can apply to conduct that compromises parts
of records or things requested to be produced under a warrant. This is consistent with the
intention that the offence should target the wrongdoing inherent in the conduct of a person
who has been placed on notice to produce a record or thing under a warrant, and who engages
in conduct which frustrates or compromises the warrant. It is not material, in this respect,
that the relevant record or thing is compromised in part or in full.
469. The new offence carries a maximum penalty of five years` imprisonment. This is
identical to the penalty applied to the existing offence in section 34L(6) in respect of persons
who fail to produce records or things to a prescribed authority in accordance with a request
made under a warrant issued under Division 3 of Part III of the ASIO Act. Parity of these
penalties is appropriate given that both offences are directed to similar sorts of wrongdoing
that frustrate the execution of a warrant issued under Division 3 of Part III.
Item 31 - Application of subsection 34L(10) of the Australian Security Intelligence
Organisation Act 1979
470. Amending item 31 provides that the new offence in section 34L(10) applies to
conduct occurring on, or after, the commencement of that item. It is not material to the
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application of section 34L(10) whether the warrant referred to in paragraph (a) was issued
before, on or after the commencement of the offence provision.
471. This means that the new offence will apply to a person who is issued with a warrant
prior to the commencement of section 34L(10), and who engages in conduct that contravenes
section 34L(10) when, or after, that offence provision commences. The offence is therefore
prospective in its application to the relevant conduct in paragraph (b) and the result of that
conduct in paragraph (c).
472. The fact that a warrant may have been issued prior to the commencement of
section 34L(10) is not considered material to a person`s culpability because, in any case, it
has served to place the person on notice that he or she is under a legal obligation to produce
the records or things specified in the warrant, and that failure to comply is the subject of
criminal penalty. Limiting the new offence to warrants issued on or after the commencement
of section 34L(10) would produce an arbitrary distinction between culpable and non-culpable
conduct on the basis of the time at which the warrant was issued, notwithstanding that the
conduct which resulted in non-production would be identical in either scenario.
473. In addition, the existing provisions of Division 3 of Part III in relation to the execution
of warrants provide considerable safeguards. In particular, questioning warrants must require
the person to appear before a prescribed authority for questioning immediately after the issue
of the warrant or at a time specified in the warrant: section 34E(2). Similarly, a questioning
and detention warrant must authorise a person to be brought before a prescribed authority
immediately for questioning under the warrant: section 34G(3). The prescribed authority is
required under section 34J(1)(c) to explain the effect of section 34L to the person on his or
her first appearance, including the fact that the section creates offences. A person also has
the right to contact a lawyer in relation to a warrant: sections 34E(3) and 34G(5) and (6).
474. In addition, warrants may only be in force for a maximum of 28 days under
sections 34E(5) and 34G(8), meaning that the opportunity for any perceived retrospectivity`
in relation to the application of paragraph (a) of section 34L(10) is limited.
Item 32 - Subsection 34V(3)
475. This item amends the provisions in section 34V(3)(b), which authorise the use of
lethal force, or force likely to cause grievous bodily harm, by a police officer where
necessary to prevent a person from escaping being taken into custody in accordance with a
warrant by fleeing.
476. Paragraph 34V(3)(b) authorises the use of force that is likely to cause the death of, or
grievous bodily harm to, the person who is subject to the warrant, if the person is attempting
to escape being taken into custody by fleeing. Subparagraphs 34V(3)(b)(i) and (b)(ii) create
two, cumulative conditions for the use of lethal force, or that which is likely to cause grievous
bodily harm, in these circumstances. Under subparagraph (b)(i) a police officer must believe
on reasonable grounds that exercising such force is necessary to protect life or prevent serious
injury to another person. Under subparagraph (b)(ii) the person must have been called upon
to surrender (if practicable) and the officer must believe on reasonable grounds that the
person cannot be taken into custody in any other manner.
477. The requirements in section 34V(3)(b), which apply specifically to persons attempting
to escape being taken into custody, are additional to those in section 34V(3)(a), which govern
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the use of lethal force, or that which is likely to cause grievous bodily harm, in all other
circumstances in connection with the execution of a warrant issued under Division 3 of Part
III. The test in section 34V(3)(a) is identical to that in section 34V(3)(b)(i) - namely, that the
officer must believe, on reasonable grounds, that the use of lethal force, or force likely to
cause grievous bodily harm, is necessary to protect life or prevent serious injury to another
person.
478. Amending item 32 removes the specific thresholds in section 34V(3)(b) for the use of
lethal force, or that which is likely to cause grievous bodily harm, in relation to persons who
are attempting to escape being taken into custody under a warrant. This means that the
general test, currently in section 34V(3)(a), will govern all circumstances in which such force
can be used by a police officer in the execution of a warrant. As such, the item consolidates
the ground presently in section 34V(3)(a) into a single provision in subsection (3). It is no
longer necessary to maintain separate paragraphs 34V(3)(a) and (b) because a single ground
will now apply.
479. Amending item 32 gives effect to the Government`s response to a recommendation in
the INSLM`s second annual report that the requirement in section 34V(3)(b)(ii) be removed.
The Government supports the INSLM`s conclusion that the requirement in
subparagraph (b)(ii) is not necessary, in light of the requirement in subparagraph (b)(i), which
is identical to that in paragraph (a).
Item 33 - Section 34ZZ
480. Item 33 amends section 34ZZ of the ASIO Act, which provides that Division 3 of Part
III ceases to have effect on 22 July 2016. The effect of this item will be to extend the
existence of these provisions to 22 July 2026. The Government is of the view that there are
realistic and credible circumstances in which it may be necessary to conduct coercive
questioning of a person for the purposes of gathering intelligence about a terrorism offence -
as distinct from conducting law enforcement action, or obtaining a preventive order under
Divisions 104 and 105 of the Criminal Code - particularly in time critical circumstances.
Intelligence is integral to protecting Australia and Australians from the threat of terrorism,
and it is important to ensure that ASIO has the necessary capabilities to perform this function.
The threat of terrorism is pervasive and has not abated since the enactment of Division 3 of
Part III in 2003. On this basis, the Government is satisfied that there is a continued need for
these powers.
481. The judicious use of the powers conferred by Division 3 of Part III is consistent with
their extraordinary nature and the intention that they should be used sparingly. Independent
reviews of Division 3 of Part III have been undertaken by the INSLM in 2012-14 and the
predecessor committee to the PJCIS in 2005 (the Parliamentary Joint Committee on ASIO,
ASIS and DSD), which found no evidence of impropriety in the use of these provisions. The
IGIS, in undertaking her standing oversight functions, has similarly found no evidence of
impropriety or aberrant use.
482. The powers under Division 3 of Part III are caveated by extensive safeguards, which
will continue to apply for the ten-year extension of the Division. These include: stringent
statutory issuing criteria; the appointment of an independent issuing authority to determine
applications (the making of which must be approved by the Attorney-General); the conduct
of questioning before an independent prescribed authority; limitations on the duration of
warrants and questioning time under warrants; the conferral of rights on persons subject to
89
warrants to contact a lawyer, the IGIS or the Ombudsman and to access an interpreter where
necessary; the imposition of obligations on persons executing warrants to treat the subject
with humanity and respect for dignity; limitations in relation to powers of search (including
person searches) and the use of force in the execution of warrants; special rules for young
persons who are subject to warrants; specific reporting obligations to the Attorney-General
and the IGIS in relation to warrants; the conferral of a specific oversight function on the IGIS
under Division 3; the ability of a person subject to a warrant to apply for financial assistance
from the Commonwealth; and the application of criminal offences to persons who contravene
statutory safeguards under Division 3.
Item 34 - After paragraph 36(b)
483. This item inserts new subparagraph (ba) to make a security assessment that is also a
request under section 22A of the Passports Act not subject to Part IV of the ASIO Act other
than subsections 37(1), (3) and (4) of the ASIO Act.
484. New section 22A enables the Minister to suspend a person`s Australian travel
documents for a period of 14 days where ASIO makes a request under new subsection
22A(2). Similar to a request by ASIO for the cancellation of a passport under section 14(1)
of the Passports Act, the request for suspension of Australian travel documents falls within
the definition of prescribed administrative action within section 35 of the ASIO Act. The
making of a request by ASIO in writing recommending the taking of prescribed
administrative action to suspend a person`s Australian travel documents will amount to a
security assessment as defined within section 35 of the ASIO Act.
485. The amendments operate on the basis that a request by ASIO under new section 22A
is not also subject to the notification and merits review requirements contained in Part IV of
the ASIO Act. Under the new suspension scheme, it is intended that a person only have
judicial review rights under the Constitution. This is to reduce the operational security risk
that arises from making such decisions reviewable, in addition to being proportionate to the
strict 14-day timeframe that applies where an order is made for the suspension and surrender
of a person`s Australian travel documents on the basis of ASIO`s request. If ASIO makes a
cancellation request under section 14 of the Passports Act following a suspension request in
relation to the person, that person will have merits review and notification rights under Part
IV in relation to that request.
Crimes Act 1914
Items 35 to 38 - Overview of definition of terrorism offence
486. Subsection 3(1) defines terrorism offence as an offence against Subdivision A of
Division 72 of the Criminal Code, or an offence against Part 5.3 of the Criminal Code. This
definition is particularly important in the context of the Crimes Act for:
Division 3A of Part 1A which provides powers in relation to terrorist acts and
terrorism offences
Section15AA which relates to bail not being granted in certain cases
Section 19AG which relates to non-parole periods for sentences for certain
offences
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New section 3WA in Part 1AAwhich inserts a new power of arrest without a
warrant for a terrorism offence or offence of advocating terrorism
New Part 1AAA which inserts the delayed notification search warrant scheme,
and
Part 1C which provides powers to detain a person for the purpose of investigating
a terrorism offence.
487. Items 35-37 expand the current definition of terrorism offence for the purposes of the
Crimes Act. These items implement Recommendation VI/6 of the INSLM`s fourth report. In
this recommendation the INSLM reiterates his position stated in his third annual report that
there is no reason in principle or policy to distinguish UN Charter Act terrorism financing
offences which implement Australia`s international counter-terrorism obligations under 1373
and relate to potentially very serious terrorism financing activity, from terrorism offences
under the Criminal Code. Further to this, he notes that the Foreign Incursions Act
criminalises politically motivated violence, including conduct that would fit within the
meaning of terrorist act` under the Criminal Code and criminalises engaging in hostile
activity with an organization which is a proscribed terrorist organization under the Criminal
Code. For this reason there is similarly reason in principle or policy to distinguish between
the offences under the Foreign Incursions Act, which cover potentially very serious terrorist
activity, from terrorism offences under the Criminal Code.
488. The amended definition of terrorism offence will also be used in the Proceeds of
Crime Act 2002 as item 136 repeals the existing definition of terrorism offence in section 338
and replaces it with a cross-reference to the definition in the Crimes Act.
Item 35 - Subsection 3(1) (after paragraph (a) of the definition of terrorism offence)
489. This item extends the definition of terrorism offence in subsection 3(1) to include
offences against Subdivision B of Division 80 of the Criminal Code. This includes the
offence of treason at section 80.1 and the offence of treason--materially assisting enemies
etc. at 80.1AA.
Item 36 - Subsection 3(1) (paragraph (b) of the definition of terrorism offence)
490. This item extends the definition of terrorism offence in subsection 3(1) to include
foreign incursion and recruitment offences that will be inserted in new Part 5.5 of the
Criminal Code.
Item 37 - Subsection 3(1) (at the end of the definition of terrorism offence)
491. This item extends the definition of terrorism offence in subsection 3(1) to include
offences against Part 4 of the UN Charter Act and Part 5 of that Act, to the extent that it
relates to the Charter of the United Nations (Sanctions--Al Qaida) Regulations 2008.
Item 38 - Application of amendments
492. This item provides that the amendments to the definition of terrorism offence in
subsection 3(1) apply in relation to any terrorism offence, whether the offence occurs before,
on or after commencement off this item.
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Items 39 to 42 - Amendments relating to the creation of a new delayed notification
search warrant scheme
These items relate to the creation of the new delayed notification search warrant scheme (see
item 51) and distinguish the existing search, information gathering, arrest and related powers
in Part IAA of the Crimes Act from the powers provided in the new Part IAAA, referred to at
item 51.
Item 39 - Part IAA (heading)
493. This item substitutes the existing heading Part IAA--search, information gathering,
arrest and related powers` with Part IAA--search, information gathering, arrest and related
powers (other than powers under delayed notification search warrants)`. This reflects the
insertion of a new Part IAAA in the Crimes Act, which provides for additional search and
information gathering powers that do not fall within Part IAA.
Item 40 - Subsection 3C(1) (at the end of the definition of issuing officer)
494. Item 40 adds a drafting note below the definition of issuing officer in subsection
3C(1) of the Crimes Act to clarify how this definition will interact with the relevant
provisions within the new Part IAAA of the Crimes Act. The meaning of an issuing officer
specifies who is authorised to issue a warrant to search premises or a person or a warrant for
arrest under Part IAA of the Crimes Act. Under proposed section 3ZZBJ of the new Part
IAAA of the Crimes Act, an eligible issuing officer (as defined in Part IAAA) is also
authorised to issue a warrant to search premises as if the eligible issuing officer were an
issuing officer within the meaning of subsection 3C(1). This provision is intended to enable
applications for ordinary search warrants and delayed notification search warrants relevant to
the same investigation to be determined by one eligible issuing officer.
Item 41 - Subsections 3D(1) and (2)
495. Subsections 3D(1) and (2) clarify that Part IAA does not limit or exclude the
operation of Commonwealth laws relating to the search of premises, arrest and related
matters, the stopping, detaining or searching of conveyances or persons, the seizure of things
or the requesting of information or documents from persons. Item 41 inserts (including
other provisions of this Act) within subsections 3D(1) and (2) as an additional
Commonwealth law that is not limited or excluded by Part IAA. This clarifies that even
though new Part IAAA may provide a power to do one or more things contained within Part
IAA, the similar power conferred by Part IAA may be used despite those powers elsewhere.
Item 42 - After subsection 3E(1)
496. Subsection 3E(1) specifies when search warrants can be issued under Part IAA of the
Crimes Act. Item 42 inserts a drafting note at the end of this section to clarify that the issue
of delayed notification search warrants is set out in new Part IAAA.
Item 43 - Subsection 3UK(1)
497. This item extends the ability for police officers to exercise powers and duties under
Division 3A of Part IAA until 15 December 2025. Division 3A gives police officers powers
in relation to terrorist acts and terrorism offences, including stop, search and seizure powers.
These powers were due to sunset on 14 December 2015. However, in light of the enduring
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threat of terrorism, these powers will be maintained for an extended period of ten years to
give law enforcement agencies the appropriate tools they need to deal with this threat.
Item 44 - Subsection 3UK(2)
498. This item extends the operation of a declaration made under section 3UJ from ten
years after the commencement of Division 3A to 15 December 2025. Section 3UJ gives the
Minister the power to declare a Commonwealth place to be a prescribed security zone if it
would assist in preventing a terrorist act occurring or assist in responding to a terrorist act that
has occurred. A police officer may exercise powers under Subdivision B of Division 3A in
relation to a person if that person is in a Commonwealth place in a prescribed security zone
(refer to section 3UB(1)). It is necessary to extend the operation of subsection 3UK(2) to
give full effect to item 43, which extends the operation of police powers and duties under
Division 3A.
Item 45 - Subsection 3UK(3)
499. This item extends the ability of a police officer to apply for, and the Minister to make,
a declaration under section 3UJ from ten years after the commencement of Division 3A to
15 December 2025. It is necessary to extend the operation of subsection 3UK(3) to give full
effect to item 43, which extends the operation of police powers and duties under Division 3A.
Item 46 - Subsection 3W(1)
500. This item inserts other than a terrorism offence and an offence against section 80.2C
of the Criminal Code` after the word offence` in subsection 3W(1) to provide that a
constable`s powers under the subsection do not apply in relation to those offences. A
constable`s powers in relation to those offences are addressed in new section 3WA inserted
by item 47.
Item 47 - After section 3W
501. This item inserts new section 3WA, which gives constables the power to arrest a
person without a warrant for a terrorism offence or an offence against new section 80.2C of
the Criminal Code. New subsection 3WA(1) provides a police constable with the power to
arrest a person without a warrant where the constable suspects on reasonable grounds that the
person has committed or is committing a terrorism offence or an offence against section
80.2C and issuing a summons against the person would not be effective for the purposes
specified in subparagraphs (i)-(vi). These purposes mirror the existing provisions in existing
subparagraphs 3W(2)(b)(i)-(vi).
502. The threshold for suspecting` on reasonable grounds is lower than that of believing`
on reasonable grounds, which is the threshold in section 3W. However, there would need to
be some factual basis for the suspicion and there would need to be more than idle wondering.
An arrest threshold based on suspicion is not a new concept in Australian law and is used in a
number of Australian jurisdictions.
503. Lowering the arrest threshold will give police the option to intervene and disrupt
terrorist activities and the advocating of terrorism at an earlier point than would be possible
where the threshold is reasonable grounds to believe. Once a person has been arrested and
the suspected activity disrupted, police will be able to examine the evidence (including
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evidence obtained during searches conducted simultaneously with the arrest action or shortly
thereafter) to support the brief of evidence. Lowering the threshold is appropriate for
terrorism offences due to the extraordinary risk posed to the Australian public by terrorism
and the time critical nature that a response to such offences is needed.
504. The threat from terrorism has been exacerbated by Australians travelling (and seeking
to travel) overseas to participate in foreign conflicts and it will not always be appropriate or
in the public`s best interest to delay action until sufficient evidence has been obtained to meet
the threshold of reasonable belief. Section 80.2C of the Criminal Code has been included in
addition to terrorism offences as it is necessary for the police to have the ability to arrest a
person at an earlier stage to prevent and disrupt that person from advocating terrorism.
However, given the nature of the offence it is not necessary for the broader suite of powers
that apply to terrorism offences`, such as the stop search and seizure powers under Division
3A of Part IAA, to apply to section 80.2C.
505. New subsection 3WA(2) necessarily provides that where a person has been arrested
but not yet charged and the constable in charge of the investigation ceases to suspect on
reasonable grounds that the person committed the offence, or that holding the person in
custody is necessary to achieve a purpose referred to in new paragraph 3WA(1)(b), the
person must be released.
Item 48 - Application of amendments
506. This item provides that the application of the amendments made to section 3W and
the introduction of new subsection 3WA apply to arrests made after the commencement of
this item.
Item 49 - Paragraph 3ZB(2)(a)
507. This item inserts or 3WA` into paragraph 3ZB(2)(a). This will ensure that, if a
constable can arrest someone under section 3W or new section 3WA, and the constable
believes on reasonable grounds that the person is on any premises, the constable may enter
the premises using necessary and reasonable force.
Item 50 - Paragraph 3ZQN(3)(e)
508. Section 3ZQN enables an authorised AFP officer to obtain documents relating to
serious terrorism offences. The power is exercised through a written notice which compels a
person to produce documents relevant to the investigation of a serious terrorism offence.
Paragraph 3ZQN(3)(e) provides that the person must comply with the notice as soon as
practicable`, but does not presently specify any particular deadline for compliance with the
notice. As there is presently no specific timeframe in which a notice must be answered,
delays can be encountered in receiving the information.
509. Item 50 replaces existing paragraph 3ZQN(3)(e). The effect of this is that a notice
need no longer state that a person must comply with the notice as soon as practicable`.
Instead, it is proposed that a notice issued under section 3ZQN must specify the day by which
a person is to comply with that notice.
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510. That day must be at least 14 days from the giving of the notice or, if the authorised
AFP officer believes that it is appropriate to specify an earlier day, having regard to the
urgency of the situation, a day that is at least 3 days from the giving of the notice.
511. A serious terrorism offence is defined in section 3C of the Crimes Act.
512. This item implements Recommendation VI/4 of the INSLM`s fourth annual report.
Item 51
Delayed Notification Search Warrants
513. This item will establish a delayed notification search warrant scheme in a new stand-
alone Part IAAA of the Crimes Act. Under current Commonwealth search warrant
provisions in the Crimes Act, the occupier of searched premises or their representative must
be given a copy of the warrant if they are present (section 3H), which ensures that a search
cannot occur without the occupier being made aware that the search is taking place. A
delayed notification search warrant scheme will allow AFP officers to covertly enter and
search premises for the purposes of preventing or investigating Commonwealth terrorism
offences, without the knowledge of the occupier of the premises, with the occupier to be
given notice at a later time.
514. Delaying notification of a search warrant will ensure that the investigation remains
confidential. This is considered critical to the success of certain investigations by the AFP,
particularly when carrying out investigations of multiple suspects over an extended period. If
members of a terrorist group are alerted to investigator`s knowledge of their activities, the
success of the law enforcement operation could be jeopardised. For example, a suspect
whose premises are searched under the current regime would be notified of police interest in
their activities. A suspect could then undertake counter-surveillance measures, change their
plans to avoid further detection, relocate their operations, or relocate or destroy evidence of
their activities. It would also provide a suspect with the opportunity to notify their associates,
who may not yet be known to police, allowing the associates to cease their involvement with
the known suspect, destroy evidence or avoid detection in other ways. Delaying notification
of a search warrant will also enable the AFP, when executing the warrant, to gather
information about a planned operation with a view to preventing a terrorism offence from
being committed.
515. Introducing a delayed notification search warrant regime is consistent with other
covert Commonwealth schemes, such as telecommunications interception, surveillance
devices and controlled operations schemes, which already allow law enforcement agencies to
collect evidence covertly. In addition, several Australian states and territories have either
delayed notification or covert search warrant regimes for investigating terrorism offences
including New South Wales, Victoria, Queensland, Western Australia and the Northern
Territory. Covert or delayed notification search warrants are also available in both Canada
and New Zealand.
Item 51 - At the end of Part 1AA
516. This item inserts a new Part IAAA--Delayed notification search warrants into the
Crimes Act. This new Part provides for requesting, authorising, issuing and reporting
obligations with respect to delayed notification search warrants.
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Division 1--Preliminary
517. Division 1 outlines the administrative arrangements for issuing delayed notification
search warrants, and definitions of terms used in the proposed Part IAAA.
Section 3ZZAA Object of this Part
518. Subsection 3ZZAA(1) explains that Part IAAA is intended to provide eligible
agencies with the ability to obtain search warrants in relation to eligible offences that
authorise the entry and search of premises without having to produce the warrant at the time
of entry and search. The AFP is specified as the eligible agency`. An eligible offence` is
defined as a terrorism offence that is punishable on conviction by imprisonment for 7 years or
more. The Bill has expanded the definition of terrorism offences` within subsection 3(1) of
the Crimes Act to include an offence against Subdivision B of Division 80, Part 5.3 or Part
5.5 of the Criminal Code and an offence against Part 4 of the UN Charter Act and Part 5 of
that Act, to the extent that it relates to the Charter of the United Nations (Sanctions--Al
Qaida) Regulations 2008 (see items 35-37 above).
519. The threshold penalty period of 7 years or more will capture all terrorism offences
within the Criminal Code, with the exception of associating with terrorist organisations
(section 102.8) which attracts three years` imprisonment. This penalty threshold is consistent
with the thresholds for other Commonwealth schemes for covert investigation. For example,
telecommunications interception warrants are available for the investigation of
Commonwealth, state and territory offences with a penalty of seven years or more, as well as
certain other offences, which involve the use of telecommunications or computers and have
lower penalties, such as cybercrime offences.
Section 3ZZAB Application of Part
520. This application provision clarifies that the Part IAAA does not limit or exclude the
operation of Commonwealth laws in relation to the search of premises, the seizure of things,
the use of an assumed identity or the installation of surveillance devices. This applies even in
instances where a power has been conferred by this Part that may be similar to an existing
power under another Commonwealth law. This provision also clarifies that even though
another Commonwealth law may provide a power to do one or more of those things, a similar
power conferred by Part IAAA may be used despite those powers elsewhere.
Section 3ZZAC Definitions
521. Section 3ZZAC provides definitions of terms used in new Part IAAA. These
definitions will be explained, where applicable, in the subsequent notes on clauses.
Section 3ZZAD Eligible Issuing Officers
522. Under new Part IAAA of the Crimes Act, the issue of a delayed notification search
warrant will be contingent on a two-step process requiring both internal authorisation within
an eligible agency and then application to an eligible issuing officer. New section 3ZZAD
defines who is an eligible issuing officer for the purpose of Part IAAA.
523. Subsection 3ZZAD(1) defines the term eligible issuing officer` as a person who is
either a judge of the Federal Court of Australia, a judge of the Supreme Court of a State or
Territory or a nominated member of the AAT. For the purposes of this Part, judges are
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required to have consented to, and be declared by the Minister to be, an eligible issuing
officer under subsections 3ZZAE(1) and (2).
524. Subsection 3ZZAD(2) provides that any function or power conferred on a judge under
this Part is conferred in a personal capacity, that is, in persona designata, rather than as a
court or a member of a court.
525. Subsection 3ZZAD(3) provides that a judge will have the same protection and
immunity in relation to the performance or exercise of a function or power conferred on them
under this Part as a judge would have if that function was exercised as a member of a court of
which the judge was a member. Similarly, the drafting note for this subsection explains that a
member of the AAT will have the same protection and immunity in relation to the
performance of a function or power conferred on them under this Part as a Justice of the High
Court has in relation to proceedings in the High Court.
Section 3ZZAE Consent of Judges
526. Subsection 3ZZAE(1) and (2) provides that judges may consent to be declared an
eligible issuing officer by the Minister. Both the consent and the subsequent declaration by
the Minister must be in writing. Subsection 3ZZAE(3) is included to assist readers, as the
consent or declaration provided under this section is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act.
Section 3ZZAF Nominated AAT members
527. Subsection 3ZZAF(1) provides that the Minister may nominate a Deputy President, a
full-time senior member, a part-time senior member or a member of the AAT to issue delayed
notification search warrants.
528. Subsection 3ZZAF(2) provides that the Minister must not nominate a part-time senior
member or member under subsection 3ZZAF(1) unless the person is enrolled, and has been
so enrolled for at least five years, as a legal practitioner of the High Court, of another federal
court, or of the Supreme Court of a state or the Australian Capital Territory. The Northern
Territory is covered by the reference to state, as defined in subsection 3(1) of the Crimes Act.
529. Under subsection 3ZZAF(3) a nomination will cease to have effect if the nominated
AAT member ceases to hold their appointment to the AAT or the Minister withdraws the
nomination in writing.
Division 2--Issue of delayed notification search warrants
530. This division describes the process by which an application may be made for a
delayed notification search warrant, requirements for their issue and what must be included in
the warrant.
Subdivision A--The normal process for applying for and issuing delayed notification
search warrants
Section 3ZZBA The conditions for issue of a delayed notification search warrant
531. The issue of a delayed notification search warrant will involve a two-stage process of
both internal authorisation and application to an eligible issuing officer. Section 3ZZBA
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specifies the conditions that must be met at each of these stages for a delayed notification
search warrant.
532. A person must be satisfied that there are reasonable grounds to suspect that one or
more eligible offences have been, are being, are about to be or are likely to be committed. A
person must also be satisfied that entry to and search of the premises will substantially assist
in the prevention of, or investigation into, those eligible offences. Finally, a person must be
satisfied that there are reasonable grounds to believe that it is necessary for the entry and
search of the premises to be conducted without the knowledge of any occupier of the
premises.
Section 3ZZBB Authorisation to apply for delayed notification search warrants
533. Following on from section 3ZZBA, subsection 3ZZBB(1) enables the chief officer,
defined in section IC as the Commissioner, of an eligible agency to authorise an eligible
officer of that agency to apply in writing for a delayed notification search warrant in respect
of a particular premises if the chief officer is satisfied that the conditions for issue set out in
section 3ZZBA are met. This requirement for authorisation to apply for a delayed notification
search warrant is an additional safeguard which is not contained in the general search warrant
provisions in Part IAA of the Crimes Act.
534. Subsection 3ZZBB(2) allows the chief officer, namely the AFP Commissioner, to
provide this authorisation orally (in person, by telephone or other means of voice
communication). This is limited to circumstances where the conditions for issue set out in
section 3ZZBA are met and where there is either an urgent case or if receiving the
authorisation in writing would frustrate the effective execution of the delayed notification
search warrant. If this authorisation is provided orally, the chief officer must make a written
record within 7 days as per subsection 3ZZBB(3). This balances a need for flexibility to
address operational demands with the need for accountability and record-keeping measures.
Section 3ZZBC Applying for delayed notification search warrant
535. This section sets out the procedures to be followed by an eligible officer applying for
a delayed notification search warrant. An eligible officer who has been authorised under
section 3ZZBC may apply to an eligible issuing officer for the issue of a delayed notification
search warrant in respect of a particular premises.
536. The first drafting note clarifies that for this application to be successful, it will need to
address why the conditions for issues set out in 3ZZBA have been met. It will also need to
address the matters that must be specified in the warrant, set out in subsection 3ZZBE (1),
and any other matters that the eligible issuing officer will consider in making the decision to
authorise a delayed notification search warrant, as set out in subsection 3ZZBD(2). The
second drafting note cross-references section 3ZZBF to explain that this application may be
made by telephone, fax or other electronic means in specified circumstances.
537. Subsection 3ZZBC(2) sets out what must be included in an application for a delayed
notification search warrant. Unless made remotely under proposed section 3ZZBF, the
application must be in writing. The eligible officer must provide the eligible issuing officer
with a copy of, or details of, the authorisation provided under section 3ZZBB and details
(including on the outcomes) of any previous applications for a warrant under this Part or
Division 2 of Part IAA (general search warrants) in respect of the same premises so far as
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known to the eligible officer. For example, if a previous application was refused, it is
intended that the application would justify why the delayed notification search warrant should
be issued at this time.
538. Subsection 3ZZBC(3) requires the application to be supported by an affidavit setting
out the grounds on which the warrant is sought. Subsection 3ZZBC(4) provides that an
eligible issuing officer may request further information relating to the application, and the
information may be required to be provided on oath or affirmation. This power enables an
eligible issuing officer to be satisfied as to the necessity for issuing a delayed notification
search warrant.
Section 3ZZBD Issuing a delayed notification search warrant
539. Subsection 3ZZBD(1) provides that before issuing a delayed notification search
warrant to an eligible officer, the eligible issuing officer must be satisfied, by information on
oath or affirmation, that the conditions for issue set out in section 3ZZBA have been met.
That is, the eligible issuing officer must be satisfied that there are reasonable grounds to
suspect that one or more relevant offences have been, are being, are about to be or are likely
to be committed and, that entry and search of the premises will substantially assist in the
prevention of, or investigation into, those offences, and also that there are reasonable grounds
to believe that it is necessary for the entry and search of the premises to be conducted without
the knowledge of the occupier of the premises.
540. Subsection 3ZZBD(2) sets out seven matters which an eligible issuing officer must
have regard to when deciding whether to issue a delayed notification search warrant, and
includes the extent to which the exercise of the powers would assist the prevention of or
investigation into the eligible offence to which the application relates to; the existence of
alternative means of obtaining the evidence or information sought to be obtained; the extent
to which the privacy of any person is likely to be affected; the nature and seriousness of the
alleged offence(s) to which the warrant is after; whether any conditions should be included in
the warrant, and the outcome of any known previous applications for delayed notification
search warrant or a Division 2 of Part IAA warrant in connection with the same premises. If it
is proposed that an adjoining premises be entered, the eligible issuing officer must also be
satisfied that entry is reasonably necessary to enter the main premises and is required to avoid
compromising the prevention or investigation of the eligible offence(s). This subsection
recognises and balances the competing public interest in timely and effective law
enforcement and the intrusion on the privacy of a group or individual.
541. Subsections 3ZZBD(3) enables eligible issuing officers of the Federal Court of
Australia or AAT members to issue a delayed notification search warrant in relation to
premises located anywhere in the Commonwealth or an external Territory. Under subsection
3ZZBD(4), eligible issuing officers who are state or territory Supreme Court Judges are
restricted to issuing delayed notification search warrants only in relation to premises located
in that state or territory.
Section 3ZZBE Contents of delayed notification search warrant
542. Subsection 3ZZBE(1) sets out the information, which must be contained in a delayed
notification search warrant. The warrant is to contain the name of the applicant; the eligible
agency and the eligible officer who is to be responsible for executing the warrant; the
address, location or other description of the warrant premises; the eligible offence to which
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the warrant relates; the day on which, and the time, the warrant is issued; the day on which,
and the time at which, the warrant expires; the notification period and a description of the
kinds of things that are proposed to be searched for, seized, copied, photographed, recorded,
marked, tagged, operated, printed, tested or sampled. In addition, the warrant is to state
whether the warrant authorises the entry of adjoining premises and details of that premises if
required; whether a thing may be placed in substitution for a seized or moved item; any
conditions to which the warrant is subject and that the eligible issuing officer is satisfied of
the conditions of issue and of the matters specified in subsection 3ZZBD(2).
543. The warrant must also state whether it authorises re-entry of the warrant premises to
return anything seized or moved or to retrieve anything substituted, and if so paragraph
3ZZBE(1)(m) requires that re-entry is to be within 14 days of the day on which the warrant
was executed, that is, the day on which the premises were first entered under the warrant, or
the time as extended in particular circumstances specified in section 3ZZCE. A delayed
notification search warrant must include the name and signature of the eligible issuing officer
under proposed subsection 3ZZBE(2).
544. These requirements ensure that executing officers and constables assisting have clear
guidance on their powers under each delayed notification search warrant and are accountable
for the proper execution of the warrant.
Subdivision B--Delayed notification search warrants by telephone, fax etc.
Section 3ZZBF Delayed notification search warrants by telephone, fax etc.
545. This section sets out an alternative method of applying for and issuing delayed
notification search warrants. Subsection 3ZZBF(2) permits the application to an eligible
issuing officer for a delayed notification search warrant to be made by telephone, fax, e-mail
or any other means of electronic communication where the eligible officer is satisfied that it
is an urgent case, or that delaying the application until it can be made in person would
frustrate the effective execution of the warrant.
546. Subsections 3ZZBF(3) and (4) reflect the existing provisions of subsections 3R(2)
and (3) of the Crimes Act. These subsections enable an eligible issuing officer to require
communication by voice, where practicable, and to record that communication. The
application must include all the information required in an ordinary application for a delayed
notification search warrant, but may be made before the information is sworn or affirmed.
This application must also include the details of, or be accompanied by a copy of, the
authorisation provided by the chief officer of the eligible agency, namely the AFP
Commissioner.
547. Pursuant to subsection 3ZZBF(5), having regard to this application, and the matters
set out in subsection 3ZZBD(2), the eligible issuing officer may complete and sign a delayed
notification search warrant. This is limited to circumstances where the conditions for issue
set out in 3ZZBA are met and where the eligible issuing officer is satisfied that it is an urgent
case, or that delaying the application until it can be made in person would frustrate the
effective execution of the warrant.
548. After completing and signing the delayed notification search warrant, the eligible
issuing officer must inform the applicant by telephone, fax or other electronic means of the
terms of the warrant and the day on which, and the time at which, the warrant was signed as
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set out in subsection 3ZZBF(6). The applicant must then complete a form of the delayed
notification search warrant to reflect the warrant completed and signed by the eligible issuing
officer. As required in subsection 3ZZBF(7) this form must specify the name of the eligible
issuing officer who issued the delayed notifications search warrant and the day and time of
signing the warrant.
549. Subsection 3ZZBF(8) requires this completed form to be sent to the eligible issuing
officer, in addition to the information referred to when applying for the delayed notification
search warrant which must have been duly sworn or affirmed. These are to be sent by the
end of the day after the day on which the delayed notification search warrant expires or the
day of execution of the warrant, whichever occurs first. Pursuant to subsection 3ZZBF(9),
once received by the eligible issuing officer, these documents must be attached to the warrant
signed by that eligible issuing officer. These provisions ensure appropriate accountability
around delayed notification search warrants issued remotely.
Section 3ZZBG Authority of delayed notification search warrant by telephone, fax etc.
550. Subsection 3ZZBG(1) explains that the form of delayed notification search warrant
completed remotely under section 2F is authority for the same powers as authorised by a
warrant signed by the eligible issuing officer as part of the normal process under section
3ZZBD.
551. Subsection 3ZZBG(2) creates a rebuttable presumption if an issue arises as to whether
the exercise of a power under a delayed notification search warrant issued on a remote
application was duly authorised, that the power was not duly authorised unless the form of
warrant signed by the eligible issuing officer is produced in evidence.
Subdivision C--Offences relating to applying for warrants etc.
Section 3ZZBH Offence for making false statement in application for delayed
notification search warrant
552. This provision creates an offence for making a false or misleading statement in an
application for a delayed notifications search warrant. A maximum penalty of imprisonment
for two years will apply.
Section 3ZZBI Offence relating to delayed notification search warrant by telephone,
fax etc.
553. This provision creates a range of offences relating to the form of delayed notification
search warrants remotely authorised under section 3ZZBF. This includes detailing
information that departs from the warrant authorised by the eligible issuing officer. This
offence has a maximum penalty of imprisonment for two years.
554. The creation of this offence safeguards against the inappropriate use of provisions
relating to remote applications for authorising delayed notification search warrants and
ensures that the availability of remote authorisation of warrants for operational urgency is
balanced with the necessity of ensuring accountability for those officers applying for delayed
notifications search warrants.
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Subdivision D--Interaction with other provisions under which search warrants may be
issued
Section 3ZZBJ Issue of warrants under other provisions as well as or instead of
delayed notification search warrants
555. Section 3ZZBJ empowers an eligible officer making, or who has made an application
for, a delayed notification search warrant to make an application to the same eligible issuing
officer for a search warrant under Division 2 of Part IAA of the Crimes Act to search the
main or other premises for evidential material which may be related to the eligible offence, or
to other offences which are connected to the eligible offence for which the delayed
notification search warrant is sought or was issued. Provided the application relates to the
same premises and offence it may be made at the same time as, or at a later time than, the
application for a delayed notification search warrant.
556. This provision enables applications for ordinary search warrants and delayed
notification search warrants in the same investigation to be determined by one eligible issuing
officer. It also ensures that when there is no necessity for covert entry of premises, a delayed
notification search warrant is not used to conduct an investigation of other premises.
557. Subsection 3ZZBJ(4) enables the eligible issuing officer to consider the Part IAA,
Division 2 application as if the eligible issuing officer were an issuing officer within the
meaning of section 3C of Part IAA.
558. Subsection 3ZZBJ(5) enables an eligible issuing officer who is not satisfied that a
delayed notification search warrant should be issued, to treat the application for a delayed
notification search warrant as an application for a search warrant under Division 2 of Part
IAA, and deems the eligible issuing officer to be an issuing officer within the meaning of
section 3C of Part IAA for the purposes of issuing such a search warrant.
Division 3--Exercise of powers under delayed notification search warrants
559. This division specifies the powers that are authorised under a delayed notification
search warrant.
Section 3ZZCA What is authorised by a delayed notification search warrant
560. Section 3ZZCA sets outs clearly what powers the executing officer or a person
assisting is authorised to exercise in executing a delayed notification search warrant. An
executing officer, as defined in section 3ZZAC, is the person named in the warrant as being
responsible for executing the warrant or the name of another eligible officer inserted into the
warrant. A person assisting is defined in section 3ZZAC as an eligible officer who is
assisting in the execution of the warrant or another person who has been authorised by the
executing officer to assist in executing the warrant, such as a data analyst.
561. Paragraphs 3ZZCA(1)(a) and (b) authorise the executing officer or person assisting to
enter the warrant premises and, if specified in the warrant, to enter adjoining premises. This
entry may occur without the knowledge of the occupier of the premises or any other person
present at the premises, as authorised in subsection 3ZZCA(2). The power to impersonate a
person authorised by paragraph 3ZZCA(1)(c) would enable executing officers and persons
assisting to gain entry without arousing the suspicion of other residents of the area. It is not,
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however, intended to empower an executing officer to impersonate a person beyond that
which is reasonably necessary to execute the warrant. The drafting note included below
subsection 3ZZCA(1) clarifies that proposed paragraph 3ZZCA(1)(c) does not authorise the
acquisition or use of an assumed identity. If an assumed identity is required for the execution
of a delayed notification search warrant, the requirements of Part IAC of the Crimes Act
would need to be complied with.
562. The remaining powers include the power to search for and seize any thing of a kind
specified in the warrant, or any other thing found in the course of the search, if the executing
officer believes on reasonable grounds that the thing is evidential material and that the seizure
of the thing is necessary to prevent its concealment, loss, destruction or use.
Paragraph 3ZZCA(1)(g) also authorises the seizure of any other thing found in the course of
the search, if the executing officer believes on reasonable grounds that the thing would
present a danger to a person or could be used to assist a person to escape from lawful
custody.
563. Paragraph 3ZZCA(1)(h) further authorises the executing officer or a person assisting
to search for and record fingerprints found at the premises, and to take samples of things
found at the premises for forensic purposes. This provision is based upon section 3F(1)(b) of
the Crimes Act. Samples may include such things as samples of explosive and weapon type
material, and DNA from such items as used cups or cigarettes.
564. Paragraph 3ZZCA(1)(i) only authorises an executing officer or a person assisting to
replace a seized item or an item moved with a substitute if specified in the warrant. These
powers are authorised to ensure the occupier of the premises is not alerted to the search until
an occupier`s notice is provided. Paragraph 3ZZCA(1)(k) authorises an executing officer or a
person assisting to do anything reasonably necessary to conceal the fact that any thing has
been done under the warrant. This recognises that in the course of executing a warrant, the
executing officer may become aware of something which will result in the search becoming
known to the occupier. It is important in these circumstances that the executing officer has
the power to do what is necessary to conceal the fact that something was done under the
warrant. Without this power, the covert nature of the search could be undermined.
565. Paragraph 3ZZCA(1)(j) authorises an executing officer or a person assisting to copy,
photograph or otherwise record, mark or tag, operate, print test or sample a thing of a kind
specified in the warrant, and any other thing believed on reasonable grounds to be evidential
material. The powers under paragraphs 3ZZCA(1)(j) are supported by the provisions of
sections 3ZZCE, 3ZZCF, 3ZZCG and 3ZZCH. The power to mark or tag a thing allows for
visible and invisible material to be placed onto a thing to identify if, for example, an item is
later utilised in a particular location or for a particular purpose.
566. Paragraph 3ZZCA(1)(l) authorises re-entry of the warrant premises, or adjoining
premises for the purpose of entering or leaving the warrant premises, to return a thing seized
or moved or retrieve a thing substituted at the warrant premises. Any such re-entry must
occur within the time period set out in 3ZZBE(1)(m), namely 14 days or an extended time
period authorised under subsection 3ZZCC. Subsection 3ZZCA(3) provides that if this
period for re-entry ends after the delayed notification search warrant expires, the power to re-
enter may be exercised during that period as if the warrant was still in force. This is required
to ensure the occupier of the premises is not alerted to the search until an occupier`s notice is
provided.
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Section 3ZZCB Specific powers available to person executing the warrant
567. The powers under subsection 3ZZCB(1) are based on the existing powers under
subsection 3J(1) of the Crimes Act. The subsection authorises an executing officer or person
assisting to take photographs (including video recordings) of the warrant premises for a
purpose incidental to the execution of the warrant. Due to the covert nature of a delayed
notification search warrant, a power to take photographs with the written consent of the
occupier, similar to that at subsection 3J(1), is not included.
568. Paragraph 3ZZCB(2)(a) allows the executing officer or a person assisting to leave the
warrant premises temporarily for a maximum period of one hour and, provided the warrant is
still in force, re-enter to complete its execution. The powers are based on subsection
3ZZCB(2) of the Crimes Act. Paragraph 3ZZCB(2)(b) allows the executing officer or a
person assisting to leave the premises temporarily for not more than 24 hours and, provided
the warrant is still in force, re-enter to complete its execution in emergency situations or to
reduce the risk of discovery of the fact that a law enforcement officer has been on the
premises. An emergency situation is defined in section 3ZZAC as a situation that the
executing officer or a person assisting believes, on reasonable grounds, involves a serious and
imminent threat to a person`s life, health or safety that requires the executing officer and
persons assisting to leave the premises. If a time period longer than 24 hours is required the
conditions in section 3ZZCC must be satisfied.
569. Paragraph 3ZZCB(3) is based on subsection 3J(3) of the Crimes Act. It allows the
execution of a warrant to be completed if the execution was halted by an order of a court,
which is subsequently revoked or reversed, provided the warrant is still in force. If the
warrant is no longer in force, but covert re-entry is still considered necessary, a new warrant
must be applied for, and details of the previous warrant will be included in the supporting
affidavit as required by paragraph 3ZZBC(2)(b).
Section 3ZZCC Extension of time to re-enter premises left in emergency situation or to
avoid discovery of law enforcement officer
570. Subsection 3ZZCC(1) permits an eligible issuing officer or person assisting to apply
to an eligible issuing officer for an extension of time to re-enter premises. This is limited to
instances where the executing officer or a person assisting has left the warrant premises due
to an emergency situation or to reduce the risk of discovery of the fact that a law enforcement
officer has been on the premises and the executing officer or person assisting believes on
reasonable grounds that he or she will not be able to return to the premises within the 24 hour
time period set out in paragraph 3ZZCB(2)(b). For an extension to be authorised, the eligible
issuing officer must be satisfied, by information on oath or affirmation, that there are
circumstances justifying this extension and the extension would not result in the period
ending after the expiry of the warrant.
Section 3ZZCD Executing a warrant - assistance, use of force and related matters
571. This section, which is based on section 3G of the Crimes Act, authorises the executing
officer to obtain such assistance as is necessary and reasonable in the circumstances to
execute the warrant. It also authorises the executing officer or an eligible officer who is a
person assisting to use such force against people and things as is necessary and reasonable to
execute a delayed notification search warrant. A person assisting who is not an eligible
officer may only be authorised to use force against things.
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572. Subsection 3ZZCD(2) requires that an executing officer has a copy of the warrant, or
if the warrant has been issued remotely, a copy of the form of warrant, available when
executing the warrant at the warrant premises, or entry of the adjoining premises. The
warrant or form of warrant must be available to the executing officer or a person assisting to
produce without delay, such as obtaining it from a team member outside or in an adjoining
room. If circumstances require it, an executing officer or a person assisting can produce the
warrant to confirm that their presence is legitimate.
573. Subsection 3ZZCD(3) clarifies that there is no requirement to produce the warrant.
As a warrant allows an executing officer or a person assisting to impersonate another person
during the execution of the warrant, the occupier may accept the legitimacy of the action,
which obviates the need to produce the warrant, and allows the operation to remain covert.
Section 3ZZCE Use of equipment to examine or process things
574. Subsection 3ZZCE(1), which authorises the executing officer or a person assisting to
bring to the warrant premises any equipment reasonably necessary for the examination or
processing of a thing found at the premises, is based on subsection 3K(1) of the Crimes Act.
Subsection 3ZZCE(2), which authorises the operation of equipment already at the premises to
examine or process a thing found at the premises if the executing officer or person assisting
believes on reasonable grounds that the equipment is suitable for the examination or
processing and will not be damaged as a result of its operation, is based upon
subsection 3K(4) of the Crimes Act.
575. Subsection 3ZZCE(2) authorises the removal of a thing found at the warrant premises
to another place for examination or processing in order to determine whether it may be
seized. This is limited to circumstances where the executing officer or a person assisting
suspects on reasonable grounds that the thing is a thing that may be seized under the warrant
and it is significantly more practicable to move the thing due to the time and cost of
examining or processing the thing at another place and/or the availability of expert assistance.
The operation of electronic equipment moved under this section is provided in sections
3ZZCG and 3SZFB.
576. Pursuant to subsection 3ZZCE(3), the time for moving a thing to another place for
examination or processing is limited to a maximum of 14 days. Extensions of no more than 7
days at a time may be permitted, pursuant to subsection 3ZZCE(5), if the eligible issuing
officer believes on reasonable grounds, based on the application from the executing officer,
that the thing cannot be examined or processed within 14 days or the time previously
extended.
Section 3ZZCF Use of electronic equipment at warrant premises
577. This section authorises the operation of electronic equipment found at the warrant
premises to access data held on that equipment to determine whether it constitutes a thing that
may be seized under the warrant. The power to access data not held on site from equipment
found on site is consistent with the existing search warrant powers under subsection 3L(1) of
the Crimes Act.
578. As computers and electronic devices are becoming increasingly interconnected, files
physically held on one computer are often accessible from another computer. Accordingly, it
is critical that law enforcement officers executing a search warrant are able to search not only
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material on computers located on the search premises but also material accessible from those
computers but located elsewhere. This provision would enable the tracing of a suspect`s
internet activity and viewing of material accessed by the suspect through the use of that
equipment.
579. The executing officer would not be required to notify operators of computers not on
search premises if data held on those computers is accessed under the warrant. It would not
be practicable to impose such a notification requirement on investigating officers, as it will
not always be apparent when accessing data whether it is held on premises or off site or, in
some cases, where it is held. For example, computer files accessible from a personal
computer connected to a network may be stored on a mainframe computer located elsewhere,
but there may be nothing that would indicate to the person accessing those files that they are
not held on the search premises.
580. Electronic equipment, such as a computer hard drive, can hold large amounts of data.
It is often not practicable for officers to search all the data for evidential material while at the
search premises and then copy only that data, which they believe may constitute evidential
material. Accordingly, subsection 3ZZCF(2) authorises the executing officer or a person
assisting to copy data held on electronic equipment accessed at search premises to a storage
device where there are reasonable grounds to suspect that the data constitutes a thing that
may be seized under the warrant, and to take that device holding the data from the premises.
This will permit officers to copy all data held on a computer hard drive or data storage device
if the data constitutes a thing that may be seized under the warrant or if there are reasonable
grounds to suspect that the data constitutes a thing that may be seized under the warrant. The
authorisation only extends to copying the data to a storage device brought to the premises by
the executing officer or a person assisting. This provision is based on subsection 3L(1A) of
the Crimes Act with the necessary exception that the consent of the occupier is not required
to enable the executing officer or a person assisting to copy the data to a device found at the
premises.
581. Subsection 3ZZCF(3) reflects existing subsection 3L(1B) of the Crimes Act. This
provision safeguards the rights of the occupier when the data taken from the premises is no
longer required, or is not likely to be required, to be kept for the purposes of any investigation
or for handling a complaint about the conduct of officers of the eligible agency in the
execution of the warrant. The chief officer, or his delegate must arrange for the data to be
removed from any device onto which it was copied, or the destruction of any other
reproduction of the data which has been made during the course of the examination of the
data.
582. Subsections 3ZZCF(4) and (5) enable the executing officer or a person assisting to
operate equipment found at the premises to reproduce the thing found by accessing the
equipment in documentary form or, if that is not practicable or the possession constitutes an
offence, to seize the equipment. These provisions only enable the reproduction of, or seizure
of equipment, consisting of a thing that may be seized under the warrant. The subclauses are
based on the existing provisions of subsections 3L(2) and (3) of the Crimes Act.
Section 3ZZCG Use of moved electronic equipment at other place
583. Subsections 3ZZCG(1) and (2) permit electronic equipment to be moved to another
place to operate the equipment to access data (including data held at another place) and, if the
executing officer or person assisting suspects on reasonable grounds that the data accessed
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constitutes a thing that may be seized under the warrant, this data may be copied to a disk,
tape or other associated device.
584. Similar to subsection 3ZZCF(3), subsection 3ZZCG(3) safeguards the rights of the
occupier when the data is no longer required, or is not likely to be required, to be kept for the
purposes of any investigation or for handling a complaint about the conduct of officers of the
eligible agency in the execution of the warrant. The chief officer, or his or her delegate, must
arrange for the data to be removed from any device onto which it was copied, or the
destruction of any other reproduction of the data, which has been made during the course of
the examination of the data.
585. Similar to subsections 3ZZCF(4) and (5), subsections 3ZZCH(4) and (5) enable the
executing officer or a person assisting to operate equipment moved from the premises to
reproduce the data or thing found into documentary form or, if that is not practicable or the
possession constitutes an offence, to seize the equipment. These provisions only enable the
reproduction of, or seizure of equipment, consisting of a thing that may be seized under the
warrant.
Section 3ZZCH Operating seized or moved electronic equipment
586. This section applies to electronic equipment seized under this Part or moved under
section 3ZZCE. Subsection 3ZZCH(2) permits electronic equipment to be operated at any
location after it has been seized or moved to determine whether the data held on or accessible
from the electronic equipment is a thing that may be seized under the delayed notification
search warrant and, in turn, to obtain access to such data. This includes data that was not held
on the electronic equipment at the time the electronic equipment was seized or moved.
587. Pursuant to subsection 3ZZCH(5), this section does not limit the operation of other
provisions within Part IAAA relating to items seized or moved. The drafting note explains
that, for example, section 3ZZCH does not limit the operation of the time limits set out in
section 3ZZCE on the examination or processing of a thing moved under that section.
Section 3ZZCI Compensation for damage to electronic equipment
588. Subsection 3ZZCI(1) places an obligation on the Commonwealth to pay the owner of
equipment operated in accordance with sections 3ZZCE, 3ZZCF,3ZZCG or 3ZZCH
reasonable compensation for damage or corruption. The damage or corruption to the
equipment, data or programs must have occurred because insufficient care was exercised in
either selecting the person to operate the equipment or in the operation of the equipment.
Damage, in relation to data, is defined in section 1C as damage by erasure of data or addition
of other data.
589. Given the covert nature of delayed notification search warrants, compensation would
normally only be paid when an occupier`s notice of the warrant was provided, unless the
occupier had become aware that damage had been sustained. Pursuant to subsection
3ZZCI(2), the Commonwealth is required to pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation as the Commonwealth and the owner or
user agree upon. Proceedings in the Federal Court of Australia may be instituted if the owner
or the user and the Commonwealth are unable to reach an agreement.
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Division 4--Notice to Occupiers
590. This division sets out the process by which the occupier of the warrant premises or of
an adjoining premises entered under a delayed notification search warrant is to be given
notice of the entry.
Section 3ZZDA Warrant premises occupier's notice must be prepared and given
591. Section 3ZZDA requires that a written notice be given to the occupier of premises
entered under a delayed notification search warrant and sets out the information which must
be contained in the notice. The notice is to be prepared by the executing officer.
592. The notice must specify the name of the authorised agency, the address, location or
other description of the warrant premise, the day and time the warrant was issued, the day of
execution, the number of persons who entered the warrant premises, and include a description
of any thing seized and/or substituted and whether any thing was returned or retrieved from
the warrant premises. The requirement that the notice include a summary of the purpose of
the delayed notification search warrant and the things done under the warrant is intended to
provide the occupier with an outline of the operation of the scheme. A copy of the warrant,
which is to be provided under subsection 3ZZDA(3) with the occupier`s notice, will give the
occupier information regarding what was authorised. These requirements will ensure that the
occupier of the premises is aware of why a delayed notification search warrant was issued in
respect of the premises, and what was done under the warrant.
593. The notice is to be given in accordance with the time limits specified under section
3ZZDC. Subsection 3ZZDA(4) creates an exception to the requirement to give an occupier`s
notice if the occupier`s identity cannot be ascertained, or the occupier cannot be located. In
such circumstances the person who prepared the occupier`s notice must report back to the
eligible issuing officer who may give directions on the requirement to give the notice. As
clarified in subsection 3ZZDA(5), a notice and a direction under this section is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act.
This provision is included to assist readers and is merely declaratory of the law.
Section 3ZZDB Adjoining premises occupier's notice must be prepared and given
594. This subsection requires that notice be given to the occupier of adjoining premises
entered under a delayed notification search warrant to gain access to the main premises, and
sets out what is to be included in the notice. The notice is to be prepared by the executing
officer. A copy of the delayed notification search warrant authorising the entry is also to be
provided with the notice.
595. The information to be provided to the occupier of adjoining premises is more limited
than that required to be provided to the occupier of the main premises to reflect the reduced
powers available to the executing officer or person assisting in relation to the adjoining
premises. However, it will be sufficient to ensure that the occupier is aware of why entry to
his or her premises was authorised and when it occurred.
596. The notice is to be given in accordance with the time limits specified under section
3ZZDC. As at subsection 3ZZDA(4), a person who prepares an adjoining premises
occupier`s notice but who cannot ascertain the identity of, or locate, the occupier of the
adjoining premises, must report back to the eligible issuing officer who may give directions
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regarding delivery of the notice. As clarified in subsection 3ZZDB(5), a notice and a
direction under this section is not a legislative instrument within the meaning of section 5 of
the Legislative Instruments Act. This provision is included to assist readers and is merely
declaratory of the law.
597. An executing officer would not be required to notify owners or operators of
computers not on search premises if data held on those computers is accessed under warrant.
Access to data held on remote computers under a delayed notification search warrant does not
constitute access to adjoining premises. Accordingly, there is no requirement to give notice
to the owner or operator of those computers.
Section 3ZZDC Time for giving warrant premises occupier's notice or adjoining
premises occupier's notice
598. This section sets out when an occupier`s notice and adjoining premises occupier`s
notice must be given. The general rule, as set out in subsection 3ZZDC(2) is that the notice
must, unless an extension is obtained, be provided to the occupier of the premises or of the
adjoining premises within six months of the day on which the delayed notification search
warrant was executed.
599. Subsection 3ZZDC(4) enables the chief officer of the eligible agency, namely the
AFP Commissioner, to authorise an eligible officer to apply to an eligible issuing officer for
an extension of the period within which the notice must be given. This authorisation must be
in writing. Subsection 3ZZDC(5) requires that an eligible issuing officer granting an
extension be satisfied that there are reasonable grounds for extending the period within which
the notice must be given. An extension would normally be appropriate when there is an
ongoing investigation of a relevant offence, the success of which may depend on continued
confidentiality.
600. Subsection 3ZZDC(6) limits the period of extension that may be granted by an
eligible issuing officer by periods of up to six months on any one application, up to a
maximum of 18 months. An extension beyond 18 months from the date of entry may only be
granted where authorisation has been received from both the Minister, in the form of a
certificate approving the application for the extension, and an eligible issuing officer. The
Minister must be satisfied that there are exceptional circumstances justifying the extension
and that the public interest that would be served by notifying the occupier is outweighed by
the prejudicial consequences that might result from the occupier being aware that the search
took place. Prejudicial circumstances may include compromising or hindering the
investigation, endangering the life or safety of any person, prejudicing any legal proceeding
or compromising any law enforcement agency`s operational activities or methodologies. If
the Minister does issue a certificate approving an application, the issuing officer must only
approve delaying of notification further if he or she is also separately satisfied that an
extension is justified due to exceptional circumstances. The certificate provided by the
Minister is not a legislative instrument, pursuant to subsection 3ZZDC(7).
601. Subsection 3ZZDC(3) requires that if a person is charged with an offence and the
prosecution is proposing to rely on evidence obtained under the warrant the notice must be
given as soon as practicable after the person is charged with the offence and no later than the
time of service of the brief of evidence by the prosecution. This recognises that it is
important that any person charged with an offence is notified of the way in which evidence
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supporting the particular charge or charges has been obtained, in order to enable them to
challenge the evidence.
Division 5--Using, sharing and returning things seized
602. This division provides for the use and sharing of things seized under the warrant in
specified circumstances and details the requirement for returning things that are seized.
Subdivision A--Using and sharing things seized
Section 3ZZEA Purposes for which things may be used and shared
603. Subsection 3ZZEA(1) lists the purposes for which an eligible officer or a
Commonwealth officer may use, or make available to another eligible officer or a
Commonwealth officer to use, a thing seized under this Part. The purposes include
investigations or proceedings under a range of Commonwealth legislation such as the
Proceeds of Crime Act 1987, the Proceeds of Crime Act 2002, the Law Enforcement Integrity
Commissioner Act 2006, the Ombudsman Act 1976 and the Privacy Act 1988.
Subsections 3ZZEA(2) and (3) also permit the use of a thing seized under this Part by an
eligible officer or a Commonwealth officer for any other use that is required or authorised by
or under a law of a state or a territory. This is not intended to be an exhaustive list, with
subsection 3ZZEA(4) clarifying that this section does not limit any other law of the
Commonwealth that requires or authorises the use of a thing or the making available
(however described) of a thing.
604. An eligible officer of an eligible agency or a Commonwealth officer is also permitted
to make a thing seized under this Part available to a state or territory law enforcement agency,
as defined in section 3ZZAC. In addition, an eligible officer or a Commonwealth officer is
permitted to make a thing seized under this Part available to the appropriate agency in a
foreign country responsible for law enforcement, intelligence gathering or security. This
ability to share a thing seized is limited to situations listed in subsections 3ZZEA(1)(2)(3)
and (5). The outcome of this provision is that a thing seized under the warrant can be shared
with foreign agencies for the investigation of Commonwealth, state or territory offences, in
recognition of the international aspects of many modern offences, however, material cannot
be shared with foreign agencies for the investigation of foreign offences.
605. Subsection 3ZZEA(6) clarifies that, in addition to the ability to share between law
enforcement agencies, the Minister retains the capacity to make an arrangement with a
Minister of a state or territory for the sharing of a thing that has been seized under this Part
and, in turn, the disposal of such things when they are no longer of use to the relevant agency.
Subdivision B--Returning things seized
Section 3ZZEB When things seized must be returned
606. Subsection 3ZZEB(1) requires the chief officer of the eligible agency, namely the
AFP Commissioner or his/her delegate, to take reasonable steps to return a thing seized under
the Part if is not required, or no longer required, for a purpose listed in subsection 3SFA or
for other judicial or administrative review proceedings. The thing is to be returned to the
person from whom it was seized, or to the owner if that person is not entitled to possess it.
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607. Subsection 3ZZEB(2) provides an exhaustive list of exceptions to this requirement
including, amongst other exceptions, that the thing may otherwise be retained, destroyed or
disposed of under a law or is the subject of a dispute as to ownership. Paragraph
3ZZEB(2)(d) recognises that the item is not required to be returned until a warrant premises
occupier`s notice has been given to ensure that the confidentiality of the warrant is
maintained until operational sensitivities allow disclosure.
Section 3ZZEC Eligible issuing officer may permit a thing seized to be retained,
forfeited etc.
608. Under this section, an eligible issuing officer may make an order in relation to a thing
seized under this Part for that thing to be retained for a set time period, forfeited to the
Commonwealth, sold and proceeds given to the owner or destroyed or otherwise disposed.
Subsection 3ZZEC(1) provides that for one of these orders to be made the eligible issuing
officer must be satisfied that there are reasonable grounds to suspect that, if the thing is
returned to the owner of the thing, or the person from whom the thing is seized, it is likely to
be used by that person or another person in the commission of a terrorist act or a terrorism
offence or a serious offence (as defined in Part IAA). Where this threshold is not met, the
eligible issuing officer is required to order that the thing be returned to the person from whom
the thing was seized or to the owner if that person is not entitled to possess it.
Division 6--Reporting and record-keeping
609. This division sets out the reporting requirements of the delayed notification search
warrants scheme. These requirements are intended to ensure that executing officers and the
authorising agencies are accountable for the use of delayed notification search warrants.
Section 3ZZFA Reporting on delayed notification search warrants
610. This section imposes reporting requirements on the executing officer of a delayed
notification search warrant, whether or not it was executed.
611. Under subsection 3ZZFA(2) the executing officer or the applicant must, as soon as
practicable after execution of a delayed notification search warrant, or the expiry of an
unexecuted warrant, provide a report to the chief officer, namely the AFP Commissioner,
setting out the matters listed in subsection 3ZZFA(3). If the delayed notification search
warrant was executed, the report must also include the information listed at proposed
subsection 3ZZFA(4). The requirement at paragraph 3ZZFA(4)(c) that the report contain
information on the kind of assistance provided` requires a general description of the nature
of the assistance provided rather than a technical description of what was actually done and
how it was done. For example, it is sufficient to say that a person provided data analysis. It
is not necessary to specify how they did it or what data was analysed. If the warrant premises
occupier`s notice or adjoining premises occupier`s notice has not been given at the time the
report is made, under subsection 3ZZFA(5) the executing officer is required to give a further
report including those details. Under subsection 3ZZFA(6), if the delayed notification search
warrant was not executed, the report must state why not.
612. Subsection 3ZZFA(7) sets out details to be included in a further report if the warrant
premises were re-entered after the warrant was executed for the purposes of returning a thing
to, or retrieving a thing left at, the premises. This report must be given to the chief officer of
the eligible agency as soon as practicable after the warrant premises were re-entered. As
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clarified in subsection 3ZZFA(9) a report under this section is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act. This provision is
provided to assist the reader and is merely declaratory of the law.
Section 3ZZFB Annual reports to Minister
613. Section 3ZZFB requires the chief officer of the eligible agency, namely the AFP
Commissioner, to provide a written report to the Minister within three months of the end of
each financial year and sets out the matters which must be included in that report.
614. The report must set out the number of warrants applied for and issued to eligible
officers of the eligible agency during the year, and specify the number applied for in person
or remotely. The report must also include details of the eligible offence(s) to which the
issued delayed notification search warrants relate. The report must not only specify the
number of warrants that were executed, but must also specify the number of warrants that
were executed under which things were seized, placed in substitution, returned to or retrieved
from the premises or copied, photographed, recorded, marked, tagged, operated, printed,
tested or sampled at the warrant premises.
615. Paragraph 3ZZFB(1)(f) provides that the report may contain any other information
related to delayed notification search warrants and the administration of the scheme that the
Minister considers appropriate. This enables the Minister to request further information from
the chief officer, namely the AFP Commissioner. The further information may outline the
benefit to an investigation of the use of a delayed notification search warrant and the use of
any evidence or information obtained under the delayed notification search warrant, or
provide details of the sharing of evidence or information obtained under the delayed
notification search warrant to persons other than officers of the eligible agency.
616. Subsection 3ZZFB(3) requires the Minster to table the report before each House of
Parliament within 15 sitting days of receipt. These reports will assist the Minister and the
Parliament to ascertain the uses that are being made of delayed notification search warrants.
For example, of ten warrants executed by an agency, eight of the warrants may have included
items seized, two of the warrants may have included items that were copied, one of the
warrants may have included items substituted for seized items, and five of the warrants may
have included items tested. Provision of this information will enable an assessment of the
usefulness of the delayed notification search warrants scheme, and of whether an appropriate
balance between law enforcement and intrusion into privacy has been met, and will also
ensure accountability of the authorised agency.
Section 3ZZFC Regular reports to Ombudsman
617. Section 3ZZFC requires the chief officer of the eligible agency, namely the AFP
Commissioner, to provide a written report to the Ombudsman as soon as practicable each
six-month period starting on 1 January or 1 July and sets out the matters which must be
included in that report. The includes the number of warrants applied for, issued to and
executed by eligible officers of the eligible agency during the year, and the number applied
for in person or remotely.
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Section 3ZZFD Keeping documents connected with delayed notification search
warrants
618. This section imposes administrative requirements on the eligible agency using the
delayed notification search warrants scheme to ensure it is sufficiently accountable. The
section lists the documents, which are to be kept for purposes of records maintenance and to
facilitate investigations by the Commonwealth Ombudsman under Division 7 of Part IAAA.
Section 3ZZFE Register of delayed notification search warrants
619. This section is an additional accountability requirement of the eligible agency to keep
a register of delayed notification search warrants. The information to be kept in the register
includes, amongst other things, the details of any directions given by an eligible issuing
officer if the occupier of premises or of an adjoining premises is unknown or unable to be
located. Information is to be kept about every application for a delayed notification search
warrant, regardless of whether it was issued or refused.
620. Subsection 3ZZFE(3) clarifies that the register is not a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act. This provision is provided to
assist readers and is merely declaratory of the law. It does not create an exemption from the
Legislative Instruments Act.
Division 7--Inspection by Ombudsman
621. This division establishes the procedure for the Commonwealth Ombudsman to
monitor the delayed notification search warrants scheme, by inspecting records and reporting
to the Minister to ensure that the eligible agency is complying with its obligations under this
Division.
Section 3ZZGA Appointment of inspecting officers
622. This section allows the Ombudsman to appoint members of the Ombudsman`s staff to
be inspecting officers for the purpose of this Division. The appointment must be evidenced
in writing.
Section 3ZZGB Inspection of records by the Ombudsman
623. This section establishes an inspection regime requiring the Commonwealth
Ombudsman to inspect the records kept by eligible agencies at least in each six-month period
starting on 1 January or 1 July. The role of the Ombudsman is to determine whether the
records kept are accurate and whether an eligible agency is complying with its obligations
under the Division.
624. Paragraphs 3ZZGB(2)(a) and (b) provide that the Ombudsman can enter premises
occupied by the eligible agency at any reasonable time after notifying the chief officer of the
agency, namely the AFP Commissioner. The Ombudsman is then entitled to full and free
access at all reasonable times to all records of the delayed notification search warrants
scheme that are relevant to the inspection. The Ombudsman has the power under paragraph
3ZZGB(2)(c) to require a member of staff of the eligible agency to provide any information
relevant to the inspection that is in their possession or to which the member has access.
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625. Subsection 3ZZGB(3) requires the chief officer to ensure that agency staff provide the
Ombudsman with any assistance that the Ombudsman reasonably requires to enable the
Ombudsman to inspect the records.
626. Subsection 3ZZGB(4) enables the Ombudsman to delay the inspection of records of
the agency on a delayed notification search warrant until an occupier`s notice has been given
in relation to the warrant. This ensures that confidentiality of the information is maintained
until operational sensitivities allow disclosure.
Section 3ZZGC Power to obtain relevant information
627. This section empowers the Ombudsman to require, in writing, a staff member of the
eligible agency to provide written information relevant to an inspection at a specified place
and within a specified period if the Ombudsman has reason to believe that the staff member is
able to give the information.
628. Under subsections 3ZZGC(3) and 3ZZGC(5) the Ombudsman may also require, in
writing, a staff member to attend to answer questions relevant to the inspection before a
specified inspecting officer at a specified place and within either a specified period or at a
reasonable time and date. This section will enable the Ombudsman to question a staff
member who he or she believes is able to give information relevant to the inspection.
629. If the Ombudsman has reasonable grounds to believe that a staff member, whose
identity is unknown to the Ombudsman, is able to give information relevant to an inspection,
subsections 3ZZGC(4) and 3ZZGC(5) also authorise the Ombudsman in writing to require
the chief officer of an eligible agency, or a person nominated by the chief officer, to attend to
answer questions relevant to the inspection before a specified inspecting officer, at a specified
place and either within a reasonable specified period or at a reasonable time and date.
Section 3ZZGD Offence
630. Section 3ZZGD creates an offence if a person refuses or fails to attend before a
person, to give information or to answer questions when required to do so under
section 3ZZGC. The maximum penalty for the offence is imprisonment for six months.
Section 3ZZGE Ombudsman to be given information etc. despite other laws
631. Subsection 3ZZGE(1) states that a person is not excused from providing information,
answering questions or giving access to a document when required under this Division, on
the grounds that doing so would contravene a law, would be contrary to the public interest or
might tend to incriminate the person or make them liable to a penalty, or to disclose certain
advice of a legal nature.
632. Subsection 3ZZGE(2) states that if the person is a natural person, the information,
answer given or the fact that the person has given access to a document, and any information
or thing that is obtained as a direct or indirect consequence, is not admissible in evidence
against the individual except in a prosecution for unauthorised disclosure of information
under section 3ZZHA or a prosecution for providing false or misleading information or
documents, or making a false document under Part 7.4 or 7.7 of the Criminal Code.
633. Subsection 3ZZGE(3) provides that nothing in section 3ZZHA, which creates an
offence of unauthorised disclosure of information about delayed notification search warrants,
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or any other law prevents an officer of an eligible agency from providing information to an
inspecting officer in any form or from providing access to records of the eligible agency for
the purposes of an inspection under this Division. This abrogation of the privilege against
self-incrimination subject to a use and derivative use immunity recognises the public interest
in the effective monitoring of the use of delayed notification search warrants to ensure that
civil liberties are not unduly breached.
634. Subsection 3ZZGE(4) enables an officer of an eligible agency to make a record of
information, or cause such a record to be made, for the purposes of giving the information to
a person as permitted by subsection 3ZZGE(3), without being liable for a breach of proposed
section 3ZZHA or any other law.
635. Subsection 3ZZGE(5) ensures that a claim for legal professional privilege over
information, documents or other records provided or answers given under this clause is
maintained.
Section 3ZZGF Exchange of information between Ombudsman and State or Territory
inspecting authorities
636. Section 3ZZGF allows the Commonwealth to develop effective and consistent
inspection arrangements with other inspecting bodies, particularly state ombudsmen.
Subsection 3ZZGF(4) provides definitions for State or Territory agency` and State or
Territory inspecting authority` for the purposes of the section.
637. Subsection 3ZZGF(1) authorises the Ombudsman to give information that relates to a
state or territory agency which was obtained by the Ombudsman under this Division to the
state or territory inspecting authority responsible for inspecting that agency.
Subsection 3ZZGF(2) requires that the Ombudsman be satisfied that it is necessary to give
the information to the inspecting authority to enable it to perform its functions in relation to
the state or territory agency.
638. Subsection 3ZZGF(3) empowers the Ombudsman to receive information relevant to
the performance of the Ombudsman`s functions under this Division from a state or territory
inspecting authority.
Section 3ZZGG Ombudsman not to be sued
639. This section gives immunity from action, suit or proceeding to the Ombudsman, an
inspecting officer or a person acting under an inspecting officer`s direction or authority for an
act or omission made in good faith in the performance or exercise, purported or otherwise, of
a function, power or authority conferred under this Division. It further gives immunity to a
Deputy Ombudsman or a delegate of the Ombudsman.
Section 3ZZGH Report on inspection
640. Under this section, the Ombudsman is required to provide a written report to the
Minister after six-month period starting on 1 January or 1 July on the results of each
inspection undertaken under section 3ZZGB. Subsection 3ZZGH(2) permits the Ombudsman
to include a comment on whether the requirement to provide reports to the Minister (at
section 3ZZFB) and to the Ombudsman (at section 3ZZFC) has been complied with.
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641. Subsection 3ZZGH(3) requires that a copy of the Ombudsman`s report be tabled by
the Minister before each House of Parliament within 15 sitting days of that House after the
Minister has received the report.
Division 8--Unauthorised disclosure of information
642. This division creates an offence of unauthorised disclosure of information relating to a
delayed notification search warrant.
Section 3ZZHA Unauthorised disclosure of information
643. Subsection 3ZZHA(1) creates an offence of unauthorised disclosure of information
relating to an application for a delayed notification search warrant, the execution of a delayed
notification search warrant, a report prepared by an executing officer or applicant after the
warrant has been executed or has expired, or relating to an occupier`s notice or adjoining
occupier`s notice. The offence carries a maximum penalty of two years imprisonment. This
mirrors a similar offence for disclosing information relating to a controlled operation
(section 15HK of the Crimes Act). Subsection 3ZZHA(2) specifies exceptions where lawful
disclosure can be made. The defendant bears the evidential burden of proof of the exception
in accordance with the provision at subsection 13.3(3) of the Criminal Code.
644. By virtue of paragraph 3ZZHA(2)(e), no offence can be committed under 3ZZHA(1)
once the occupier`s notice has been provided. The intention of this offence provision is to
maintain confidentiality of the information as long as operational sensitivities require. The
exceptions at 3ZZHA(2) ensure that no offence is committed if information is disclosed by
officers in the performance of their duties
Division 9--Other matters
Section 3ZZIA Delegation
645. Subsection 3ZZIA(1) will allow the AFP Commissioner to delegate all or any of
his/her powers, functions or duties under Part 1AAA to a Deputy Commissioner of the AFP
or a senior executive AFP employee who is an AFP member and authorised in writing by the
Commissioner. This provision will allow the Commissioner to delegate the power to the
person most appropriately placed to handle the return of the item. This is necessary due to
the large amount of seized material that police officers deal with.
646. Subsection 3ZZIA(2) will also allow the AFP Commissioner to delegate all or any of
his/her powers or functions under Division 5 of Part 1AAA to the chief executive officer
(however described) of a state or territory law enforcement agency or a Commonwealth
officer, if the Commissioner is satisfied on reasonable grounds that the officer is able to
properly exercise those powers, functions or duties. State and territory law enforcement may
have access to material seized under Part 1AAA. As such, it is necessary and appropriate for
the Commissioner to be able to delegate the responsibility of returning or destroying (if
required) seized items to state and territory police.
647. The provision will also allow the Ombudsman to delegate all or any of his/her powers
under Part 1AAA (other than the power to report to the Minister) to an APS employee
responsible to the Ombudsman. Subsection 3ZZIA(5) will require all delegates to produce
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the instrument of delegation or a copy of such to a person affected by the exercise of any
power delegated to the delegate.
Section 3ZZIB Law relating to legal professional privilege not affected
648. Subsection 3ZZIB ensures that, except as expressly provided (such as section 3ZZGE
in relation to information to be given to the Ombudsman), the law relating to legal
professional privilege is maintained.
649.
Item 52 - Paragraphs 15AA(2)(c) and (d)
650. Subsection 15AA(2) provides the offences for which bail is not to be granted except
in exceptional circumstances. Terrorism offences (except an offence against 102.8 of the
Criminal Code) are covered by paragraph 15AA(2)(a). Paragraphs 15AA(2)(c) and (d) cover,
amongst other things, Division 80 of the Criminal Code.
651. This item inserts a reference to Subdivision C of` after the words provision of` in
paragraphs 15AA(2)(c) and (d). This item is consequential to amending item 35, which
inserts Subdivision B of Division 80 of the Criminal Code in the definition of terrorism
offence` in subsection 3(1) of the Crimes Act.
652. As the definition of terrorism offences now includes Subdivision B of Division 80 (by
amending item 35), it is not necessary to refer to all of Division 80 in paragraphs 15AA(2)(c)
and (d) as Subdivision B of Division 80 will be covered in paragraph 15AA(2)(a). The only
other Subdivision in Division 80 that contains offence provisions is Subdivision C. Item 52
inserts reference to Subdivision C into paragraphs 15AA(2)(c) and (d) to reflect the change
made to the definition of terrorism offence by item 35.
Item 53 - After paragraph 15YU(1)(f)
653. This item is consequential to items 110 and 144, which repeal the Foreign Incursions
Act and insert a new Part 5.5 in the Criminal Code. The offences in the Foreign Incursions
Act are consolidated in the new Division 119 of Part 5.5 of the Criminal Code.
654. Item 53 inserts paragraph (fa) into subsection 15YU(1) providing that Part IAE,
which relates to the use of video link evidence in proceedings for terrorism and related
offences, applies to offences against Part 5.5 of the Criminal Code.
Item 54 - Paragraph 15YU(1)(j)
655. This item is consequential to amending item 144, which repeals the Foreign
Incursions Act. Item 53 repeals paragraph 15YU(1)(j), which relates to offences committed
under the Foreign Incursions Act.
Item 55 - Application of amendments
656. This item provides that paragraph 15YU(1)(j) will continue to apply, despite the
commencement of item 54, in relation to any proceedings for an offence against the Foreign
Incursions Act. Item 55 necessarily ensures that any proceedings involving offences against
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the Foreign Incursions Act will continue to be able to use the video link provisions in
Part IAE despite the repeal of that Act.
Item 56 - Subsection 23DB(1) (note)
657. This item omits the reference to section 3W(2)` in the note of subsection 23DB(1)
and inserts 3WA(2)`. The amendment is consequential to the insertion of new arrest
provisions for terrorism offences and offences against section 80.2C of the Criminal Code
under new section 3WA (see item 47).
658. Subsection 23DB(1) provides that the provisions in section 23DB apply to persons
arrested for terrorism offences. The note to the subsection outlines that a person will not be
arrested for a terrorism offence if that person has been released under section 3W(2). As the
arrest provisions for terrorism offence will now be contained in section 3WA, the amended
reference refers to new subsection 3WA(2).
Criminal Code Act 1995
Items 57 to 62 - Amendments to Division 80 of the Criminal Code
These items amend the humanitarian aid defence for the offence of Treason--materially
assisting enemies, insert a new offence for advocating terrorism into Division 80 of the
Criminal Code, and make minor amendments consequential to the insertion of that new
offence. Further information about each item is provided below.
Item 57 - Part 5.1 of the Criminal Code (heading)
659. This item replaces the existing heading with a new heading Part 5.1--Treason,
urging violence and advocating terrorism, acknowledging the inclusion of a new offence for
advocating terrorism in Part 5.1.
Item 58 - Division 80 of the Criminal Code (heading)
660. This item replaces the existing heading with a new heading Division 80--Treason,
urging violence and advocating terrorism, acknowledging the inclusion of a new offence for
advocating terrorism in Division 80.
Item 59 - Subsection 80.1AA(6) of the Criminal Code
661. This item inserts the word solely in subsection 80.1AA(6) of the Criminal Code to
limit the humanitarian aid defence to the treason offences of materially assisting enemies to
circumstances where the conduct was undertaken solely for humanitarian aid reasons.
662. This is designed to prevent a person who engages in treasonous conduct but also, for
example, takes bandages with him or her in order to be able to render first aid to another
person, from relying on the defence on the basis that one of the reasons for the persons
conduct related to humanitarian aid.
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Item 60 - Subdivision C of Division 80 of the Criminal Code (heading)
663. This item replaces the existing heading with a new heading Subdivision C--Urging
violence and advocating terrorism, acknowledging the inclusion of a new offence for
advocating terrorism in Subdivision C of Division 80.
Item 61 - At the end of Subdivision C of Division 80 of the Criminal Code
664. This item inserts new section 80.2C providing the new Advocating terrorism
offence at the end of Subdivision C of Division 80.
665. New subsection 80.2C(1) creates a new offence for advocating the doing of a terrorist
act or the commission of a terrorism offence where the person engages in the conduct
reckless as to whether another person will engage in a terrorist act or commit a terrorism
offence.
666. New subsection 80.2C(1) includes a note that refers readers to the existing defence in
section 80.3 of the Criminal Code for acts done in good faith. This defence protects the
implied freedom of political communication, and specifically excludes from the offence,
among other things, publishing a report or commentary about a matter of public interest in
good faith.
667. The offence carries a maximum penalty of five years imprisonment, recognising the
severity of the potential consequences of encouraging others to engage in terrorist acts and
commit terrorism offences.
668. New subsection 80.2C(2) provides that, for the purposes of the offence in
subsection 80.2C(1), a terrorism offence` is limited to an offence punishable by at least five
years imprisonment; does not include an offence against section 11.1 (attempt), section 11.4
(incitement) or section 11.5 (conspiracy) to the extent that it relates to a terrorism offence;
and does not include a terrorism offence that a person is taken to have committed because of
section 11.2 (complicity and common purpose), section 11.2A (joint commission) or
section 11.3 (commission by proxy).
669. New subsection 80.2C(3) defines terrorism offence` so that it has the same meaning
as in subsection 3(1) of the Crimes Act, and defines terrorist act` so that it has the same
meaning as in section 100.1 of the Criminal Code. It also defines advocates` as counselling,
promoting, encouraging or urging the doing of a terrorist act or the commission of a terrorism
offence.
670. New subsection 80.2C(4) makes it clear that a reference to advocating the doing of a
terrorist act or commission of a terrorism offence includes a reference to advocating the
doing of a terrorist act or commission of a terrorism offence, even if:
a terrorist act or terrorism offence does not occur
it is in relation to a specific terrorist act or the commission of a specific terrorism
offence, or
it is in relation to more than one terrorist act or commission of more than one
terrorism offence.
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Item 62 - Subsection 80.4(2) of the Criminal Code
671. This item adds a reference to new subsection 80.2C(1) in subsection 80.4(2), and is
consequential to the insertion of the new offence in subsection 80.2C(1). This provides that
extended geographical jurisdiction-category B as defined by existing section 15.2 applies to
the new offence. This is consistent with the existing offences for urging violence against
groups under subsection 80.2A(2) and urging violence against members of groups under
subsection 80.2B(2), which also carry a maximum penalty of five years imprisonment.
Item 63 - Subsection 102.1(1) of the Criminal Code (paragraph (a) of the definition of
terrorist organisation)
672. This item removes the reference to the expression whether or not a terrorist act
occurs in the existing definition of terrorist organisation` in paragraph 102.1(1)(a). It is no
longer necessary to include that expression following the insertion of new
subsection 102.1(20), which defines the doing of a terrorist act for the purposes of revised
section 102.1.
Item 64 - Paragraph 102.1(1A)(a) of the Criminal Code
673. This item amends existing paragraph 102.1(1A)(a) of the Criminal Code to ensure
that an organisation can be listed as a terrorist organisation for advocating a terrorist act
where the organisation directly or indirectly counsels, promotes, encourages or urges the
doing of a terrorist act by the addition of the words promotes` and encourages`.
674. The terms promotes` and encourages` are not defined. The ordinary meaning of
encourages` the doing of a terrorist act could include conduct or statements that inspire an
individual to commit a terrorist act. The ordinary meaning of promotes` the doing of a
terrorist act could include conduct or statements such as launching a campaign to commit
terrorist acts.
675. While there may be some overlap with counsels` or urges` the doing of a terrorist
act, which may include conduct such as inducement, persuasion or insistence, or to give
advice, or an opinion about the doing of a terrorist act, the inclusion of the additional terms is
designed to ensure coverage of a broader range of conduct that may be considered as
advocating a terrorist act, beyond the conduct of counsels` or urges`.
676. An organisation could be listed as a terrorist organisation under paragraph 102.1(1)(b)
of the definition of terrorist organisation on the basis of statements made by the organisation
that satisfy the definition of advocates` under subsection 102.1(1A). However, if the
organisation ceases to be actively and directly involved in committing terrorist acts, and
becomes more involved in the direct or indirect promotion of a terrorist` ideology or
methodology, the inclusion of the terms promotes or encourages become a greater factor in
considering whether the organisation continues to advocate the doing of a terrorist act.
677. An organisation could continue to have a significant influence in promoting or
encouraging terrorism by others without necessarily engaging in terrorist acts itself, without
directly counselling or urging the doing of a terrorist act.
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678. The inclusion of the terms promotes` and encourages` in paragraph 102.1(1A)(a) is
consistent with section 3 of the United Kingdom`s Terrorism Act 2000, which provides that
an organisation is concerned in terrorism if it promotes or encourages terrorism.
Item 65 - Subsections 102.1(2), (4) and (17) of the Criminal Code
679. This item omits the expression whether or not a terrorist act has occurred or will
occur from existing subsections 102.1(2), (4) and (17). It is no longer necessary to include
that expression following the insertion of new subsection 102.1(20) which defines the doing
of a terrorist act for the purposes of revised section 102.1.
Item 66 - At the end of section 102.1 of the Criminal Code
680. This item inserts new subsection 102.1(20) into the definitions section. New
subsection 102.1(20) provides that, whenever there is a reference in section 102.1 to the
doing of a terrorist act`, that reference is to be interpreted as including the doing of a terrorist
act whether or not any terrorist act has occurred, the doing of a specific terrorist act, and the
doing of more than one terrorist act.
681. This amendment has two elements. The first is technical arising from the omission of
the words whether or not a terrorist act occurs referred to in items 63 and 65 above. The
second is to clarify that it is not necessary to prove that an organisation that directly or
indirectly does any of the things listed in paragraphs 102.1(1)(a) or (b) of the definition of
terrorist organisation`, or section 102.1(1A) of the definition of advocates`, relates to a
particular terrorist act. It can be a specific terrorist act, more than one terrorist act and the
terrorist act does not have to occur.
Item 67 - After section 102.1 of the Criminal Code
682. This item inserts a new section 102.1AA Including or removing names of prescribed
terrorist organisations` after existing section 102.1.
683. New subsection 102.1AA(1) provides that the new section 102.1AA applies where the
Minister is satisfied on reasonable grounds that a terrorist organisation is specified in
regulations under the Criminal Code and is referred to by a name in addition to, or instead of,
the name to specify the organisation (an alias) or no longer uses a name specified in the
regulations (a former name). Provided the requirements of new subsection 102.1AA(1) apply
new subsection 102.1AA(2) provides that the Minister may add an alias and/or remove a
former name from the regulation by legislative instrument.
684. New subsection 102.1AA(3) makes it clear that amendment of regulations under new
subsection 102.1AA(2) does not prevent the further amendment or repeal of regulations made
under the main regulation making power, section 5 of the Criminal Code Act, nor does it
affect the sunset date for the regulations.
685. New subsection 102.1AA(4) precludes the Attorney-General from amending
regulations to delist` a terrorist organisation.
686. New subsection 102.1AA(5) is an avoidance of doubt measure that new section
102.1AA does not affect the power under section 5 of the Criminal Code Act to make
regulations for the purposes of paragraph (b) of the definition of terrorist organisation` in
subsection 102.1(1).
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687. This item partially implements recommendation VI/1of the INSLM`s fourth report.
Item 68 - Section 102.5 of the Criminal Code (heading)
688. This item repeals the existing heading for section 102.5 of the Criminal Code and
replaces it with a new heading 102.5 Training involving a terrorist organisation` reflecting
amendments to extending the conduct criminalised in section 102.5.
Item 69 - Paragraphs 102.5(1)(a) and 102.5(2)(a) of the Criminal Code
689. This item repeals existing paragraphs 102.5(1)(a) and 102.5(2)(a) and replaces them
with new paragraph 102.5(1)(a) and paragraph 102.5(2)(a).
690. New paragraph 102.5(1)(a) provides that the training offence in subsection 102.5(1) is
made out not only where the person intentionally provides training to or receives training
from an organisation, but where the person intentionally participates in training with an
organisation, where the person is reckless as to whether the organisation providing or
receiving the training is a terrorist organisation. This offence applies whether or not the
organisation was a listed terrorist organisation.
691. New paragraph 102.5(2)(a) similarly provides that the training offence in
subsection 102.5(2) is made out not only where the person intentionally provides training to
or receives training from an organisation, but where the person intentionally participates in
training with an organisation that is a listed terrorist organisation.
692. These amendments are designed to facilitate prosecutions in circumstances where
there are no formally defined teaching and learning roles in a training session, where it is
clear that a person has participated in training with a terrorist organisation, but the nature of
the training or the circumstances in which it occurred means it is not possible to ascertain
whether the person provided or received the training. An example would be where a group of
like-minded individuals decide to acquire weapons and meet at a location to practice using
them, for the purpose of directly or indirectly engaging in, preparing, planning, assisting in or
fostering the doing of a terrorist act.
693. These amendments implement recommendation 17 of the COAG Review.
Items 70 to 87 - Amendments to Division 104 of the Criminal Code--Control Orders
694. These items amend Division 104 of the Criminal Code, which sets out the
Commonwealth`s control order regime.
695. Control orders provide law enforcement agencies with a legal basis upon which to
take appropriate action to prevent a terrorist threat from eventuating in circumstances where
there are insufficient grounds for arrest, but a person is nonetheless assessed as presenting a
credible risk to public safety and security. This is particularly relevant in respect of emerging
threats presented by Australians returning from conflict zones overseas. The small number of
control orders made to date reflects the policy intent that they are extraordinary measures
which are to be used sparingly.
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Item 70 - Paragraph 104.2(2)(a) of the Criminal Code
696. This item replaces the word considers with suspects in paragraph 104.2(2)(a).
This changes the threshold for a senior AFP member seeking the Attorney-General`s consent
to request an interim control order to circumstances where the member suspects on
reasonable grounds that the order would substantially assist in preventing a terrorist act,
making it consistent with the threshold in existing and revised paragraph 104.2(2)(b).
697. This amendment follows law enforcement advice that the current threshold for
seeking consent to apply for an interim control order is too high. While this lowers the
threshold for seeking consent to apply, an issuing court must still be satisfied of the various
matters set out in the legislation on the balance of probabilities before it can make an interim
control order, including that each of the obligations, prohibitions and restrictions to be
imposed on the person by the order is reasonably necessary and reasonably appropriate and
adapted for the purpose of protecting the public from a terrorist act.
Item 71 - Paragraph 104.2(2)(b) of the Criminal Code
698. This item repeals the existing criteria for seeking the Attorney-General`s consent to
request an interim control order under paragraph 104.2(2)(b) and replaces it with three
criteria.
699. The first criteria at subparagraph 104.2(2)(b)(i) expands the existing training criteria
to authorise a senior AFP member to seek the Attorney-General`s consent to request an
interim control order in relation to a person the member reasonably suspects has provided
training to, received training from, or participated in training with a listed terrorist
organisation. This amendment broadens the criteria for seeking consent to request an interim
control order, consistent with the revised terrorist organisation training offence in
subsection 102.5(2).
700. The new criteria at subparagraphs 104.2(2)(b)(ii) and (iii) authorise a senior AFP
member to seek consent to request an interim control order in relation to a person the member
reasonably suspects has engaged in a hostile activity in a foreign country or has been
convicted in Australia or a foreign country of an offence relating to terrorism, a terrorist
organisation or a terrorist act.
701. The addition of these criteria follow law enforcement advice that there is a gap in the
control order regime that currently precludes them from seeking consent to apply for a
control order against a person who has actually engaged in foreign fighting activity or been
convicted of a terrorism offence where those persons pose a risk to the community. The
inclusion of these additional criteria will facilitate the placing of appropriate controls over
such individuals where this would substantially assist in preventing a terrorist act.
Item 72 - At the end of section 104.2 of the Criminal Code
702. This item adds a new subsection to section 104.2, which sets out the criteria for
seeking consent to request an interim control order. Consistent with new
subsection 102.1(20), new subsection 104.2(6) makes it clear that a reference to a terrorist act
in paragraph 104.2(2)(a) and (b) is to be interpreted as including a terrorist act whether or not
any terrorist act has occurred, a specific terrorist act, and more than one terrorist act.
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703. In relation to paragraph 104.2(2)(a), this amendment is designed to further clarify that
an AFP member can seek the Attorney-General`s consent to apply for a control order without
having to prove that a particular terrorism act provides the grounds for the order. This is
important to ensure a person who poses a risk to the public in the form of terrorism cannot
avoid being placed under a control order merely because there is no information about the
specific means by which the person is likely to do a terrorist act or the precise target of the
terrorist act.
704. In relation to paragraph 104.2(2)(b), this amendment is designed to further clarify that
an AFP member can seek the Attorney-General`s consent to apply for a control order without
having to prove that a conviction in Australia or a foreign country of an offence relates to a
particular terrorist act. This is consistent with the existing terrorist act offences at
sections 101.2, 101.4, 101.5 and 101.6 of the Criminal Code.
Item 73 - Subparagraph 104.4(1)(c)(ii) of the Criminal Code
705. This item repeals existing subparagraph 104.4(1)(c)(ii) which sets out the criteria for
making an interim control order and replaces it with expanded criteria, consistent with the
expanded criteria for seeking consent to request such an order.
706. The expanded and new criteria at subparagraph 104.4(1)(c)(ii), (iii) and (iv) now
authorise an issuing court to make an interim control order in relation to a person where the
court is satisfied on the balance of probabilities that the person has provided training to,
received training from, or participated in training with a listed terrorist organisation, has
engaged in a hostile activity in a foreign country or has been convicted in Australia or a
foreign country of an offence relating to terrorism, a terrorist organisation or a terrorist act.
707. The inclusion of these additional criteria are consistent with the new criteria set out in
subparagraph 104.2(2)(b)(ii) and (iii). Their inclusion will fill an existing gap in the control
order regime by facilitating the placing of appropriate controls over individuals who have
engaged in foreign fighting or have been convicted of a relevant offence where this would
substantially assist in preventing a terrorist act
Item 74 - At the end of section 104.4 of the Criminal Code
708. This item inserts new subsection 104.4(4) at the end of existing section 104.4.
Consistent with new subsection 104.2(6) which relates to requests to seek control orders, new
subsection 104.4(4) makes it clear that a reference to a terrorist act in paragraph 104.4(1)(c)
or (d) is to be interpreted as including a terrorist act whether or not any terrorist act has
occurred or will occur, a specific terrorist act, and one or more terrorist acts.
709. This amendment is designed to further clarify that an issuing court can make a control
order without proof of the particular terrorist act that provides the grounds for the order.
Item 75 - At the end of paragraph 104.5(3)(c) of the Criminal Code
710. This item amends paragraph 104.5(3)(c), which provides for a control order to include
a requirement that the person subject to an interim control order remain at specified premises
between specified times each day or on specified days. Amended paragraph 104.5(3)(c)
limits the period for which a person can be required to remain at specified premises to a
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maximum of twelve hours within any twenty-four hour period. This is designed to address
concerns that this restriction could otherwise be used to impose house arrest on a person.
711. A period of up to twelve hours is considered reasonable and appropriate to the threat
posed by the individual. Such a restriction is not anticipated to interfere with the person`s
ability to engage in the usual activities of daily living, such as engaging in appropriate
employment, taking children and other family members to work or other appropriate
appointments and engagements, and engaging in social activities, provided none of those
activities would require the person to contravene one of the other terms of the control order.
712. This amendment implements the Government`s response to recommendation 34 of the
COAG Review.
Item 76 - Paragraphs 104.6(1)(b) and 104.8(1)(b) of the Criminal Code
713. This item omits the words either considers or and is consequential to the
amendments to paragraphs 104.2(2)(a) (b) which change the threshold for seeking consent for
an interim control order from considers` to suspects` on reasonable grounds.
Item 77 - Subparagraph 104.12(1)(b)(iii) of the Criminal Code
714. This item removes the word and from subparagraph 104.12(1)(b)(iii), consequential
to the addition of new subparagraph 104.12(1)(b)(iv) after subparagraph 104.12(1)(b)(iii).
Item 78 - At the end of paragraph 104.12(1)(b) of the Criminal Code
715. This item adds new paragraphs 104.12(1)(iv) to (ix) at the end of existing
subsection 104.12(1), which sets out the matters the AFP must inform the person the subject
of an interim control order at the time of serving the order on that person. This provision
provides an important safeguard for persons the subject of a control order by placing an
obligation on the AFP member serving the order not only to explain the person`s rights but to
take appropriate steps to ensure the person understands them.
716. New paragraphs 104.12(1)(iv) and (vii) require the AFP member to inform the person
that he or she may have appeal and review rights in relation to any decision of an issuing
court to make and confirm the order.
717. New paragraphs 104.12(1)(v) and (vi) require the AFP member to inform the person
of the person`s right to attend court on the day specified in the order for the purposes of
confirming, declaring void, or revoking the interim control order and also of the person`s
right to have one or more representatives adduce evidence or make submissions to the issuing
court if the order is confirmed.
718. New paragraph 104.12(1)(viii) requires the AFP member to inform the person of the
person`s right to apply for an order revoking or varying the order if it is confirmed.
719. New paragraph 104.12(1)(ix) requires the AFP member to inform the person of the
person`s right to have one or more representatives adduce evidence or make submissions to
the issuing court in relation to an application by the AFP Commissioner to revoke or vary the
order or to add obligations, prohibitions or restrictions to the order if it is confirmed.
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720. Existing subsection 104.12(3) provides that the obligations on the AFP member to
serve the order on the person personally and to explain the person`s rights and take
appropriate steps to ensure they are understood, do not apply if the actions of the person to
whom the interim control order relates makes it impractical for the AFP member to do so.
This could include a situation where the person is violent towards the member, but would not
include a situation where the person`s comprehension of English is poor. In such a case, the
AFP member would be required to make appropriate arrangements to ensure the person is
aware of and can understand his or her rights.
721. This amendment implements recommendation 32 of the COAG Review.
Item 79 - Section 104.17 of the Criminal Code
722. This item inserts subsection number (1) before the text of existing section 104.17 to
convert existing section 104.17 to subsection 104.17(1). This amendment is consequential to
the addition of new paragraphs 104.17(1)(a) to (c) and subsections 104.17(2) and (3).
Item 80 - Section 104.17 of the Criminal Code
723. This item omits the words after section 104.14, in subsection 104.17, which
provides for the service of a declaration, revocation, variation of confirmation of a control
order, and replaces them with three new paragraphs. These amendments provide additional
safeguards for individuals the subject of an interim control order where the status of that
order changes.
724. New paragraph 104.17(1)(a) requires the AFP member to serve the relevant
declaration, revocation, or confirmed control order personally on the person.
725. New paragraph 104.17(1)(b) provides that, if the court confirms the interim control
order--with or without variation--the AFP must inform the person that he or she may have
appeal and review rights in relation to the decision of the issuing court to confirm the order,
he or she has the right to apply under section 104.18 for an order revoking or varying the
order, and that he or she, or one or more of his or her representatives, has the right to adduce
evidence or make submissions in relation to an application to revoke or vary the order.
726. New paragraph 104.17(1)(c) provides that, where the court has confirmed the interim
control order, the AFP member must ensure the person understands the information provided.
In doing so, the AFP member must take into account the person`s individual circumstances,
including age, language skills and mental capacity.
727. This amendment implements recommendation 32 of the COAG Review.
Item 81 - At the end of section 104.17 of the Criminal Code
728. This item adds subsections 104.17(2) and (3) to revised section 104.17.
729. New subsection 104.17(2) provides that the obligations on the AFP member to inform
the person of certain matters and to ensure the person understands those matters (imposed by
paragraphs 104.17(1)(b) and (c)) do not apply if the actions of the person make compliance
impracticable.
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730. New subsection 104.17(3) makes it clear that a failure by the AFP member to ensure
the person understands the matters set out in new paragraph 104.17(1)(b) does not impact on
the effectiveness of the control order. This is an important safeguard for a number of reasons.
For example, the person could advise the AFP member they understand the information
provided and behave in a manner consistent with understanding the information provided, but
not actually understand it. It would be difficult if not impossible for the AFP member to be
aware of that. Alternatively, the person could be acting violently towards the AFP member
and it could be impractical for the AFP member to ensure the person understands the
information.
Item 82 - At the end of section 104.23 of the Criminal Code
731. This item adds a new subsection to section 104.23, which provides for the
Commissioner of the AFP to cause an application to be made to vary a confirmed control
order by adding one or more obligations, prohibitions or restrictions. New
subsection 104.23(6) makes it clear that a reference to a terrorist act in subsection 104.23(1)
is to be interpreted as including a terrorist act whether or not any terrorist act has occurred or
will occur, a specific terrorist act, and one or more terrorist acts.
732. This amendment is designed to further clarify that the AFP Commissioner can seek a
variation without having to prove a particular terrorist act that provides the grounds for the
variation.
Item 83 - At the end of section 104.24 of the Criminal Code
733. This item adds a new subsection to section 104.24, which provides an issuing court
can vary a confirmed control order by adding one or more obligations, prohibitions or
restrictions. New subsection 104.24(4) makes it clear that a reference to a terrorist act in
paragraph 104.24(1)(b) is to be interpreted as including a terrorist act whether or not any
terrorist act has occurred or will occur, a specific terrorist act, and one or more terrorist acts.
734. This amendment is designed to further clarify that an issuing court can vary a
confirmed control order by adding conditions without a requirement for the variation to relate
to a particular terrorist act.
Item 84 - Subparagraph 104.26(1)(c)(ii) of the Criminal Code
735. This item removes the word and from subparagraph 104.26(1)(c)(ii), consequential
to the addition of new subparagraphs 104.26(1)(c)(iii), (iv) and (v) after
subparagraph 104.26(1)(c)(ii).
Item 85 - At the end of paragraph 104.26(1)(c) of the Criminal Code
736. This item adds new subparagraphs 104.26(1)(c)(iii), (iv) and (v) at the end of existing
paragraph 104.26(1)(c), which sets out the matters the AFP must inform the person the
subject of a varied control order at the time of serving the order on that person.
737. New subparagraph 104.26(1)(c)(iii) requires the AFP member to inform the person
that he or she may have appeal and review rights in relation to any decision of an issuing
court to make and confirm the order.
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738. New subparagraphs 104.26(1)(c)(iv) and (v) require the AFP member to inform the
person of the person`s right to make an application to revoke or vary the order and also of the
person`s right to have one or more representatives adduce evidence or make submissions in
relation to any such application.
739. Existing subsection 104.26(3) provides that the obligations on the AFP member to
serve the order on the person personally and to explain the person`s rights and take
appropriate steps to ensure they are understood, do not apply if the actions of the person to
whom the interim control order relates makes it impractical for the AFP member to do so.
This could include a situation where the person is violent towards the member, but would not
include a situation where the person`s comprehension of English is poor. In such a case, the
AFP member would be required to make appropriate arrangements to ensure the person is
aware of and can understand his or her rights.
740. This amendment implements recommendation 32 of the COAG Review.
Items 86 to 87 - Subsection 104.32(1) and (2) of the Criminal Code
741. These items amend section 104.32 to ensure the control order regime continues for
another ten years. This amendment recognises the enduring nature of the terrorist threat and
the important role of control orders in mitigating and responding to that threat.
742. In light of the increasing threat the escalating terrorist situation in Iraq and Syria poses
to the security of all Australians, both here in Australia and overseas, it is vital that law
enforcement agencies continue to have access to all tools that could be required to combat
this threat and protect Australia and Australians from terrorist acts.
Items 88 to 108 - Amendments to Division 105 of the Criminal Code--Preventative
detention orders
743. These items amend Division 105 of the Criminal Code, which sets out the
Commonwealth regime for preventative detention.
744. PDOs provide law enforcement agencies with a legal basis to take appropriate action
to prevent a terrorist threat from eventuating or to preserve evidence in the immediate
aftermath of a terrorist act where there are insufficient grounds for arrest, but a person is
nonetheless assessed as presenting a credible risk to public safety. This is particularly
relevant in respect of emerging threats presented by Australians returning from conflict zones
overseas. The fact that no PDOs have been made to date reflects the policy intent that they
are extraordinary measures which are to be used sparingly.
Item 88 - Subsection 105.4(4) of the Criminal Code
745. This item repeals existing subsection 105.4(4) to provide for a subjective test for an
AFP member applying for a PDO in relation to a person.
746. New paragraph 105.4(4)(a) provides that an AFP member may apply for a PDO in
relation to a person where the member suspects one or more of the listed matters on
reasonable grounds. The threshold is being changed on the advice of law enforcement that
the use of the subjective test of suspects on reasonable grounds is more appropriate. The use
of that threshold is designed to ensure that, not only are there reasonable grounds upon which
to form the suspicion, but the AFP member has actually formed the suspicion.
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747. New paragraph 105.4(4)(b) retains the requirement that the issuing authority is
satisfied there are reasonable grounds to suspect that the relevant person will do one of the
things listed. The listed matters are that the person will engage in a terrorist act, possesses a
thing connected with the preparation for or engagement in a terrorist act, or has done an act in
preparation or planning a terrorist act.
748. New paragraphs 105.4(4)(c) and (d) retain the requirements for both the AFP member
and the issuing authority to be satisfied that making the order would substantially assist in
preventing a terrorist act occurring and that detaining the person is reasonably necessary to
substantially assist in preventing a terrorist act.
749. This item implements the Government`s response to recommendation III/1 of the
INSLM`s second annual report.
Item 89 - Paragraph 105.4(6)(b) of the Criminal Code
750. This item changes the threshold in paragraph 105.4(6)(b) for detaining a person under
a PDO to circumstances where the AFP member or issuing authority is satisfied that
detention is reasonably necessary to preserve evidence of or relating to a terrorist act that
occurred within the last 28 days. The existing additional requirements in
paragraphs 105.4(6)(a) and (c) are not changed.
751. This item implements recommendation III/3 of the INSLM`s second annual report.
Item 90 - Paragraph 105.7(2)(a) of the Criminal Code
752. This item repeals paragraph 105.7(2)(a) which sets out the requirements for an
application to an issuing authority for an initial PDO in relation to a person.
753. Subparagraph 105.7(2)(a)(i) retains the ability for an AFP member to apply for an
initial PDO in writing, and clarifies that this does not include writing by means of an
electronic communication.
754. New subparagraph 105.7(2)(a)(ii) authorises an AFP member to apply for an initial
PDO orally where the AFP member considers it necessary because of urgent circumstances.
The provision authorises the AFP member to apply orally in person or by telephone, fax,
email or other electronic means of communication. This inclusive description is designed to
ensure other forms of electronic communication, including those not contemplated or not
invented at the time of the amendment can be used to make an oral application.
755. This amendment clarifies that, under normal circumstances, an application should be
made in writing in the presence of an issuing authority. However, where the situation is
urgent, for example, because the person is thought to be about to abscond, destroy evidence
or undertake actions in furtherance of a terrorist act, or because it is not possible to make an
application to an issuing authority in person within a reasonable period of time due to
physical location or other limitations, an urgent oral application can be made.
Item 91 - After subsection 105.7(2A) of the Criminal Code
756. This item inserts new subsection 105.7(2B) at the end of existing
subsection 105.7(2A). New subsection 105.7(2B) requires that, where an AFP member
makes an application orally under new subparagraph 105.7(2)(a)(ii), the AFP member must
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subsequently verify or give the information that was previously provided orally to the
relevant issuing authority on oath or affirmation. The use of the expression verify`
acknowledges that the information provided orally should be provided again (in writing) in
writing. The use of the expression give` acknowledges that information in addition to the
information previously provided could also be provided in writing.
757. New subsection 105.7(2B) provides for an exception to this requirement where the
issuing authority is satisfied that it is not practical to administer an oath or affirmation to the
AFP member. This is a safeguard to ensure that, where unforeseen circumstances arise that
make it impractical to administer an oath or affirmation, it does not compromise the validity
of the application and the PDO that was made.
Item 92 - Subsection 105.8(1) of the Criminal Code
758. This item inserts the words subject to subsection (1A) into subsection 105.8(1).
This amendment makes it clear that an issuing authority may make an initial PDO in relation
to a person subject to new subsection 105.8(1A).
Item 93 - After subsection 105.8(1) of the Criminal Code
759. This item inserts new subsection 105.8(1A) after subsection 105.8(1). New
subsection 105.8(1A) provides that, where an application for an initial PDO is made orally,
the issuing authority must not make the order unless the issuing authority is satisfied that it is
necessary, because of urgent circumstances, to apply for the order by such means. This is
designed to ensure the AFP applies for PDOs in writing in cases where there are not urgent
circumstances sufficient to justify the making of an order on the basis of an oral application.
Item 94 - Paragraph 105.8(6)(a) of the Criminal Code
760. This item inserts the words or description after the word name in
paragraph 105.8(6)(a). This amendment ensures an issuing authority can make an initial
PDO in relation to a person whose full name is not known, but who can be identified, for
example, by a partial name or nickname. It is important that a person of security concern
cannot escape being the subject of an initial PDO merely because authorities do not know the
person`s full legal name.
Item 95 - After subsection 105.8(7) of the Criminal Code
761. This item inserts new subsection 105.8(7A) after existing subsection 105.8(7). This
amendment provides an important safeguard for persons subject to an initial PDO made
orally by requiring the issuing authority to ensure there is either an audio or audio-visual
recording of the application (at the time the application is made) or that a written record of
the details of the application and any information given in support of the application is made
as soon as practicable after the order is made. It also provides a safeguard to the applicant
and issuing authority by ensuring there is an accurate record of the information relied upon
for the application and making of the order.
Item 96 - Paragraph 105.12(6)(a) of the Criminal Code
762. This item inserts the word words or description after the word name in
paragraph 105.12(6)(a), consistent with the amendment to paragraph 105.8(6)(a). This
amendment ensures an issuing authority can make a continued PDO in relation to a person
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whose full name is not known, but who can be identified, for example, by a partial name or
nickname. It is important that a person of security concern cannot escape being the subject of
a continued preventative detention in circumstances where authorities still do not know the
person`s full legal name after the person is taken into detention under an initial PDO.
Item 97 - After subsection 105.15(1) of the Criminal Code
763. This item inserts new subsection 105.15(1A) after existing subsection 105.15(1).
764. New paragraph 105.15(1A)(a) retains the ability for an AFP member to apply for a
prohibited contact order in writing, and clarifies that this does not include writing by means
of an electronic communication.
765. New paragraph 105.15(1A)(b) authorises an AFP member to apply for a prohibited
contact order orally where the AFP member considers it necessary because of urgent
circumstances. The provision authorises the AFP member to apply orally in person or by
telephone, fax, email or other electronic means of communication. This inclusive description
is designed to ensure other forms of electronic communication, including those not
contemplated or not invented at the time of the amendment can be used to make an oral
application.
766. This amendment complements the provisions that authorise an AFP member to apply
for and an issuing authority to make an initial PDO. This measure is important to ensure a
person the subject of an initial PDO made in urgent circumstances cannot circumvent the
provisions providing for the making of a prohibited contact order where one or more of the
criteria in subsection 105.14A(4) is satisfied.
767. This amendment clarifies that, under normal circumstances, an application for a
prohibited contact order should be made in writing in the presence of an issuing authority.
However, where the situation is urgent, for example, because the person is about to be taken
into detention or is already in detention and is thought to be about to contact a person in order
to facilitate that person absconding, destroying evidence or undertaking actions in furtherance
of a terrorist act, or because it is not possible to make an application to an issuing authority in
person within a reasonable period of time due to physical location or other limitations, an
urgent oral application can be made.
Item 98 - Subsection 105.15(3) of the Criminal Code
768. This item repeals and replaces subsection 105.15(3) and inserts new
subsection 105.15(3A).
769. Revised subsection 105.15(3) provides that, where an AFP member applies for a
continued PDO and an application for a prohibited contact order is made in writing under
subparagraph 105.15(1A)(a), the information in the application for the prohibited contact
order must be sworn or affirmed by the AFP member.
770. New subsection 105.15(3A) provides that, where an AFP member applies for a
continued PDO and an application for a prohibited contact order is made orally under new
subparagraph 105.15(1A)(b), the information in the application for the prohibited contact
order must be sworn or affirmed by the AFP member. Subsection 105.15(3A) provides for
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an exception to this requirement where the issuing authority is satisfied that it is not practical
to administer an oath or affirmation to the AFP member.
Item 99 - Subsection 105.15(4) of the Criminal Code
771. This item inserts the words subject to subsection (4A) into subsection 105.15(4).
This amendment makes it clear that an issuing authority may make a prohibited contact order
in relation to a person subject to new subsection 105.15(4A).
Item 100 - After subsection 105.15(4) of the Criminal Code
772. This item inserts new subsection 105.15(4A) after subsection 105.15(4). New
subsection 105.15(4A) provides that, where an application for a prohibited contact order is
made orally, the issuing authority must not make the order unless the issuing authority is
satisfied that it is necessary, because of urgent circumstances, to apply for the order by such
means. This is designed to ensure the AFP applies for prohibited contact orders in writing in
cases where there are not urgent circumstances sufficient to justify the making of an order on
the basis of an oral application.
773. This amendment clarifies that, under normal circumstances, an application for a
prohibited contact order should be made in writing in the presence of an issuing authority.
However, where the situation is urgent, for example, because the person is about to be taken
into detention or is already in detention and is thought to be about to contact a person in order
to facilitate that person absconding, destroying evidence or undertaking actions in furtherance
of a terrorist act, or because it is not possible to make an application to an issuing authority in
person within a reasonable period of time due to physical location or other limitations, an
urgent oral application can be made.
Item 101 - At the end of section 105.15 of the Criminal Code
774. This item inserts new subsection 105.15(7) after existing 105.15(6). This amendment
provides an important safeguard for persons subject to a prohibited contact order made orally
by requiring the issuing authority to ensure there is either an audio or audio-visual recording
of the application (at the time the application is made) or that a written record of the details of
the application and any information given in support of the application is made as soon as
practicable after the order is made. It also provides a safeguard to the applicant and issuing
authority by ensuring there is an accurate record of the information relied upon for the
application and making of the order.
Item 102 - After subsection 105.16(1) of the Criminal Code
775. This item inserts new subsection 105.16(1A) after existing subsection 105.16(1).
776. New paragraph 105.16(1A)(a) provides that an AFP member can apply for a
prohibited contact order in relation to a person who is already the subject of a PDO in
writing, and clarifies that this does not include writing by means of an electronic
communication.
777. New paragraph 105.16(1A)(b) provides that an AFP member can apply for a
prohibited contact order in relation to a person who is already the subject of a PDO orally
where the AFP member considers it necessary because of urgent circumstances. The
provision authorises the AFP member to apply orally in person or by telephone, fax, email or
132
other electronic means of communication. This inclusive description is designed to ensure
other forms of electronic communication, including those not contemplated or not invented at
the time of the amendment can be used to make an oral application.
Item 103 - Subsection 105.16(3) of the Criminal Code
778. This item repeals and replaces subsection 105.16(3) and inserts new
subsection 105.16(3A).
779. Revised subsection 105.16(3) provides that, where an AFP member applies for a
continued PDO and an application for a prohibited contact order in relation to a person
already the subject of a preventative order in writing under subparagraph 105.16(1A)(a), the
information in the application for the prohibited contact order must be sworn or affirmed by
the AFP member.
780. New subsection 105.16(3A) provides that, where an AFP member applies for a
continued PDO and an application for a prohibited contact order is made in relation to a
person already the subject of a preventative order orally under new
subparagraph 105.16(1A)(b), the information in the application for the prohibited contact
order must be sworn or affirmed by the AFP member. Subsection 105.16(3A) provides for
an exception to this requirement where the issuing authority is satisfied that it is not practical
to administer an oath or affirmation to the AFP member.
Item 104 - Subsection 105.16(4) of the Criminal Code
781. This item inserts the words subject to subsection (4A) into subsection 105.16(4).
This amendment makes it clear that an issuing authority may make a prohibited contact order
in relation to a person already the subject of a PDO subject to new subsection 105.16(4A).
782. This amendment clarifies that, under normal circumstances, an application for a
prohibited contact order should be made in writing in the presence of an issuing authority.
However, where the situation is urgent, for example, because the person is already in
detention and is thought to be about to contact a person in order to facilitate that person
absconding, destroying evidence or undertaking actions in furtherance of a terrorist act, or
because it is not possible to make an application to an issuing authority in person within a
reasonable period of time due to physical location or other limitations, an urgent oral
application can be made.
Item 105 - After subsection 105.16(4) of the Criminal Code
783. This item inserts new subsection 105.16(4A) after subsection 105.16(4). New
subsection 105.16(4A) provides that, where an application for a prohibited contact order is
made in relation to a person who is already the subject of a PDO orally, the issuing authority
must not make the order unless the issuing authority is satisfied that it is necessary, because
of urgent circumstances, to apply for the order by such means. This is designed to ensure the
AFP applies for prohibited contact orders in writing in cases where there are not urgent
circumstances sufficient to justify the making of an order on the basis of an oral application.
Item 106 - At the end of section 105.16 of the Criminal Code
784. This item inserts new subsection 105.16(7) after existing 105.16(6). This amendment
provides an important safeguard for persons subject to a prohibited contact order made orally
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by requiring the issuing authority to ensure there is either an audio or audio-visual recording
of the application (at the time the application is made) or that a written record of the details of
the application and any information given in support of the application is made as soon as
practicable after the order is made. It also provides a safeguard to the applicant and issuing
authority by ensuring there is an accurate record of the information relied upon for the
application and making of the order.
Items 107 to 108 - Section 105.53 of the Criminal Code
785. This item amends section 105.53 to ensure the operation of the PDO regime will
continue for a further ten years after the commencement of these amendments. This
amendment recognises the enduring nature of the terrorist threat and the important role of
PDOs in mitigating and responding to that threat.
786. In light of the increasing threat posed by the escalating terrorist situation in Iraq and
Syria to the security of all Australians, both here in Australia and overseas, it is vital that law
enforcement agencies continue to have access to all tools that could be required to combat
this threat and protect Australia and Australians from terrorist acts.
Item 109 - At the end of Division 106 of the Criminal Code
787. This item adds new section 106.5 at the end of Division 106 of the Criminal Code.
New section 106.5 sets out the application provisions for certain amendments to
Divisions 102, 104 and 105 made by the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Act 2014.
788. New subsection 106.5(1) provides that the amendments to section 102.1 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 do
not affect the continuity of any regulations that are in force for the purposes of that section
immediately before the commencement of this section.
789. New subsection 106.5(2) provides that the amendments to section 104.2 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply to requests for interim control orders made after the commencement of section 106.5
where the conduct in relation to which the request is made occurs before or after that
commencement.
790. New subsection 106.5(3) provides that the amendments to section 104.4 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply to the making of interim control orders requested after the commencement of
section 106.5 where the conduct in relation to which the request is made occurs before or
after that commencement.
791. New subsection 106.5(4) provides that the amendments to sections 104.6 and 104.8
made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act
2014 apply to the making of requests for urgent interim control orders made after the
commencement of this section, where the conduct in relation to which the request is made
occurs before or after that commencement
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792. New subsection 106.5(5) provides that the amendments to section 105.4 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to applications for PDOs made after the commencement of section 106.5.
793. New subsection 106.5(6) provides that the amendments to section 105.7 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to applications for initial PDOs made after the commencement of
section 106.5.
794. New subsection 106.5(7) provides that the amendments to section 105.8 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to initial PDOs made after the commencement of section 106.5.
795. New subsection 106.5(8) provides that the amendment to section 105.12 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to continued PDOs made after the commencement of section 106.5,
regardless of when the initial PDO to which the continued order relates was made.
796. New subsection 106.5(9) provides that the amendments to section 105.15 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to applications for prohibited contact orders made after the commencement
of section 106.5, regardless of when the application for the PDO to which the prohibited
contact order relates was made.
797. New subsection 106.5 (10) provides that any amendments to section 105.16 made by
Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
apply in relation to applications for prohibited contact orders made after the commencement
of section 106.5, regardless of when the PDO to which the prohibited contact order relates
was made.
Item 110 - New Part 5.5 of the Criminal Code
798. Item 110 inserts new Part 5.5--Foreign incursions and recruitment` into the Criminal
Code. New Part 5.5 contains offences and other provisions based on the Foreign Incursions
Act, which is repealed by the Counter-Terrorism Legislation Amendment (Foreign Fighters)
Act 2014.
799. New Part 5.5 will modernise the provisions of the Foreign Incursions Act and
addresses the anomalies and mismatches identified by the INSLM during his review of the
Foreign Incursions Act in his fourth annual report to ensure that the provisions complement
other counter-terrorism laws and enhance the overall effectiveness of the framework. The
offences in new Part 5.5 are designed to simplify the offences to ensure they are easier to
understand, and to respond to the significant threat to the safety and security of Australia and
Australians posed by those who engage in foreign fighting or seek to do so.
Item 110 - At the end of Chapter 5 of the Criminal Code
800. This item inserts new Part 5.5--Foreign incursions and recruitment` after Part 5.4.
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Part 5.5--Foreign incursions and recruitment
Division 117--Preliminary
801. New Division 117 sets out the definitions relevant to new Part 5.5, provides the
criteria for the making of regulations prescribing organisations by the Governor-General, and
identifies the geographical jurisdiction that applies for the offences in new Part 5.5.
117.1 Definitions
802. New subsection 117.1(1) contains a number of definitions relevant to the offences and
other provisions in Part 5.5.
803. The definition of engage in a hostile activity` reflects the definition in the Foreign
Incursions Act but expands the definition to include conduct that occurs in the foreign
country or any other foreign country (or of a part of that or any other foreign country). This
revised definition implements the Government`s response to recommendation III/2 of the
INSLM`s fourth annual report.
804. The term recruit` is defined to include induce, incite or encourage. This revised
definition reflects the current definition of recruit` contained in Part 5.3 of the Criminal
Code. The amendment will modernise the definition used in relation to foreign incursion and
recruitment offences and will provide consistency and clarity. The new definition will include
encourage` which is not new as the definition of incite` in the former Foreign Incursions
Act included encourage. The amendment implements the Government`s response to
recommendation III/5 of the INSLM`s fourth annual report.
Prescribing organisations
805. New subsection 117.1(2) provides that, before the Governor-General makes a
regulation prescribing an organisation for the purposes of paragraph 117.1(1)(a) of the
definition of prescribed organisation, the Minister must be satisfied on reasonable grounds
that the organisation either is directly or indirectly engaged in, preparing, planning, assisting
in or fostering a serious violation of human rights or subverting society` (within the meaning
given by subsection 117.1(3)) in Australia or a foreign State allied or associated with
Australia or a terrorist act within the meaning of section 100.1 or an act prejudicial to the
security, defence or international relations Australia.
806. New subsection 117.1(3) defines engages in subverting society` for the purposes of
new Part 5.5. The new phrase engages in subverting society` replaces the previously
undefined phrase at paragraph 6(3)(aa) of the Foreign Incursions Act engaging in armed
hostilities in the foreign State`.
807. Paragraph 6(3)(aa) of the Foreign Incursions Act was inserted by the Crimes
Legislation Amendment Act 1987 to extend the definition of engaging in a hostile activity`
to fill the present gap in the Act by reason of which it is not an offence for an Australian to
become involved in mercenary activities per se in a foreign State (Crimes Legislation
Amendment Bill 1987 explanatory memorandum, p. 25).
808. However, there has been some uncertainty about how broadly the phrase engaging in
armed hostilities in the foreign State` should have been interpreted. The expression engage
in armed hostilities` has a specific meaning at international law that is much narrower than
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the proposed definition in 117.1(3). It is limited to acts taking place during a formal state of
war. Such a narrow meaning was not intended in the originating bill and is not appropriate in
the current environment.
809. To ensure that mercenary activities that extend to taking part in the commission of a
terrorist act are appropriately criminalised the terminology has been changed to adopt an
appropriately broad exhaustive definition for engage in subverting society` based on the
definition of terrorist act in subsections 100.1(2) and (3) of the Criminal Code. This is
appropriate as in his second reading speech for the Crimes (Foreign Incursions and
Recruitment) Bill 1978 the Attorney-General Senator the Hon P.D. Durack equated foreign
incursions with acts of terrorism.
810. A person engages in subverting society` if the person engages in any of the conduct
specified in paragraphs 117.1(3)(a) to (f) unless that conduct that falls within
subsection 117.1(4). Paragraphs 117.1(3)(a) to (c) specify conduct that causes serious harm
that is physical harm to another person, serious damage to property or another person`s death.
Paragraphs 117.1(3)(d) and (e) specify conduct that endangers another person`s life, other
than the life of the person taking the action and conduct that creates a serious risk to the
health or safety of the public or a section of the public. Paragraph 117.1(3)(f) specifies
conduct that seriously interferes with, seriously disrupts, or destroys, an electronic system
including, but not limited to an information system, a telecommunications system, a financial
system, a system used for the delivery of essential government services, a system used for, or
by, an essential public utility, or a system used for, or by, a transport system.
811. New subsection 117.1(4) excludes conduct that would otherwise fall within the
definition in subsection 117.1(3) if that conduct is advocacy, protest, dissent or industrial
action provided the conduct is also not intended to cause serious harm that is physical harm to
a person, is not intended to cause a person`s death, is not intended to endanger the life of a
person other than the person taking the action, and is not intended to create a serious risk to
the health or safety of the public or a section of the public.
117.2 Extended geographical jurisdiction--category D
812. New section 117.2 provides that category D extended geographical jurisdiction as
defined in section 15.4 of the Criminal Code applies to the offences against Part 5.5 subject to
any other restrictions in Part 5.5 to the contrary.
Division 119--Foreign incursions and recruitment
119.1 Incursions into foreign countries with the intention of engaging in hostile
activities
813. New section 119.1 creates two offences for entering a foreign country with the
intention of engaging in hostile activities and engaging in a hostile activity in a foreign
country, and a defence to those offences. The penalties for these offences implement
recommendation III/7 of the INSLM`s fourth annual report, that the penalty provisions in
sections 101.1 and 101.6 of the Criminal Code and 6 and 7 of the Foreign Incursions Act
should be equivalent.
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Offence for entering foreign countries with the intention of engaging in hostile activities
814. New subsection 119.1(1) creates an offence for intentionally entering a foreign
country with the intention of engaging in a hostile activity as defined by subsection 117.1(1)
in that country or in any other foreign country.
815. New paragraph 119.1(1)(b) provides that the offence only applies to a person who is
an Australian citizen, a resident of Australia, a person who holds a visa under the Migration
Act or a person who has voluntarily put themselves under the protection of the
Commonwealth at the time when the person enters the foreign country. This paragraph
ensures the offence only applies to persons with a relevant and sufficient connection to
Australia.
816. The maximum penalty for contravening the new offence in subsection 119.1(1) is
imprisonment for life, reflecting the seriousness of the conduct.
Offence for engaging in a hostile activity in a foreign country
817. New subsection 119.1(2) creates an offence for intentionally engaging in a hostile
activity in a foreign country. Consistent with the offence at new subsection 119.1(1), new
paragraph 119.1(1)(b) limits the application of the offence to a person who is an Australian
citizen, a resident of Australia, a person who holds a visa under the Migration Act or a person
who has voluntarily put themselves under the protection of the Commonwealth at the time
when the person engages in the activity.
818. The maximum penalty for contravening the new offence in subsection 119.1(2) is
imprisonment for life, reflecting the seriousness of the conduct which at its most serious
could involve unlawful death or an intention to cause unlawful death.
819. New subsection 119.1(3) provides that absolute liability applies to the elements in
paragraphs 119.1(1)(b) and (2)(b) that the person is a citizen, resident, visa holder, or has
voluntarily placed themselves under Australia`s protection.
820. The Note to subsection 119.1(3) advises readers to refer to section 6.2 of the Criminal
Code for further information about the fault element of absolute liability.
821. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the defendant knew or was
reckless as to the fact that they were a citizen, resident, visa holder, or had voluntarily placed
themselves under Australia`s protection at the time they entered the foreign country to engage
in the conduct.
822. Absolute liability is appropriate and required for the element of the offence that the
person is a citizen, resident, visa holder, or has voluntarily placed themselves under
Australia`s protection. The element appropriately limits the jurisdictional operation of the
offence to only operate in respect of conduct of persons with the requisite connection to
Australia (otherwise extended geographical jurisdiction--category D would apply). Further,
the issue of whether the person knew or was reckless to the fact that they were a citizen,
resident, visa holder, or had voluntarily placed themselves under Australia`s protection at the
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time they entered the foreign country to either engage in a hostile activity or with the
intention to engage in a hostile activity is not relevant to their culpability. This is consistent
with Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Exception
823. New subsection 119.1(4) creates a defence to the offences in subsections 119.1(1)
and (2). The defence applies to an act done by a person in the course of, and as part of, the
person`s service in any capacity in or with either the armed forces of the government of a
foreign country or any other armed force the subject of a declaration made under
subsection 119.8(1), provided that declaration covers the person and the circumstances of the
person`s service in or with the force.
824. Note 1 to new subsection 119.1(4) advises readers that a defendant bears an evidential
burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that in
the case of a standard evidential burden` defence, the defendant bears the burden of
adducing or pointing to evidence that suggests a reasonable possibility that the defence is
made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.
825. Note 2 to new subsection 119.1(4) refers readers to new section 119.9, which sets out
a further defence for conduct engaged in for the defence or international relations of
Australia.
119.2 Entering, or remaining in, declared areas
826. New section 119.2 creates a new offence for entering, or remaining in, an area in a
foreign country that is the subject of a declaration under new section 119.3, as well as
defences to that offence.
827. The purpose of the offence is to equip law enforcement and prosecutorial agencies
with the tools to arrest, charge and prosecute those Australians who have committed serious
offences, including associating with, fighting, or providing other support for terrorist
organisations overseas. Legitimate purposes for travel to or remaining in a declared area are
protected, but appropriately limited in recognition of the need to deter individuals from
travelling to areas which pose a significant risk to life.
828. New subsection 119.2(1) creates an offence for intentionally entering, or remaining
in, an area in a foreign country reckless to the fact that the area is an area declared for the
purposes of the offence. It will not be necessary for the person to know specifically that the
area is a declared area by the Foreign Affairs Minister under section 119.3`.
829. New paragraph 119.2(1)(c) provides that the offence only applies to certain classes of
person. Those classes are Australian citizens, residents of Australia, persons who hold a visa
under the Migration Act and persons who have voluntarily put themselves under the
protection of the Commonwealth. This paragraph is designed to ensure the offence only
applies to those persons with a relevant and sufficient connection to Australia.
830. The maximum penalty for contravening the new offence in subsection 119.2(1) is
imprisonment for ten years, reflecting the seriousness of the conduct.
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831. New subsection 119.2(2) provides that absolute liability applies to the elements in
paragraph 119.2(1)(c) that the person is a citizen, resident, visa holder, or is under Australia`s
protection.
832. The Note to subsection 119.2(2) advises readers to refer to section 6.2 of the Criminal
Code for further information about the fault element of absolute liability.
Exception--entry or remaining solely for legitimate purposes
833. New subsection 119.2(3) creates a defence to the offence in subsection 119.2(1). That
defence is available to a person who enters or remains in the area solely for a legitimate
purpose. For the purposes of the offence, legitimate purpose includes providing aid of a
humanitarian nature; satisfying an obligation to appear before a court or other body
exercising judicial power; performing an official duty for the Commonwealth, a state or a
territory; performing an official duty for the government of a foreign country or the
government of part of a foreign country (including service in the armed forces of the
government of a foreign country), where that performance would not be a violation of the law
of the Commonwealth, a state or a territory; performing an official duty for the United
Nations or an agency of the United Nations; making a news report of events in the area,
where the person is working in a professional capacity as a journalist or is assisting another
person working in a professional capacity as a journalist; making a genuine visit to a family
member, and any other purpose prescribed by the regulations.
834. The ability to prescribe other purposes under regulations is an important safeguard in
the event other purposes that should be covered by the defence emerge over time.
835. The Note to new subsection 119.2(3) advises readers that a defendant bears an
evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers
readers to subsection 13.3(3) of the Criminal Code.
Exception--entry or remaining solely for service with armed force other than prescribed
organisation
836. New subsection 119.2(4) creates a defence to the offence in subsection 119.2(1). That
defence is available to a person who enters or remains in the area solely in the course of and
as part of the person`s service in any capacity in or with the armed forces of the government
of a foreign country or any other armed force the subject of a declaration made under
subsection 119.8(1) provided that declaration covers the person and the circumstances of the
person`s service in or with the force.
837. Note 1 to new subsection 119.2(4) advises readers that a defendant bears an evidential
burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code.
838. New subsection 119.2(5) provides that the defence at subsection 119.2(4) does not
apply if the person enters, or remains in, an area in a foreign country while in or with an
organisation and the organisation is a prescribed organisation at the time the person enters, or
remains in, the area.
839. Note 1 to new subsection 119.2(5) refers readers to new section 119.9, which sets out
a further defence for conduct engaged in for the defence of Australia.
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840. Note 2 to new subsection 119.2(5) advises readers that sections 10.1 and 10.3 of the
Criminal Code also provide exceptions to subsection 119.2(1) relating to intervening conduct
or event and sudden and extraordinary emergency respectively.
841. New subsection 119.2(6) provides that new section 119.2 ceases to have effect ten
years after it commences.
119.3 Declaration of areas for the purposes of section 119.2
842. New section 119.3 provides for the making of a declaration for the purposes of the
offence in section 119.2.
843. New subsection 119.3(1) provides that the Foreign Affairs Minister may declare an
area in a foreign country for the purposes of section 119.2 by legislative instrument. The
Foreign Affairs Minister may only do so if he or she is satisfied that a listed terrorist
organisation is engaging in a hostile activity in that area of the foreign country.
844. New paragraph 119.3(2)(a) clarifies that a single declaration may cover areas in two
or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed
terrorist organisations are engaging in a hostile activity in each of those areas.
845. New paragraph 119.3(2)(b) clarifies that a single declaration may cover an entire
country if the Foreign Affairs Minister is satisfied that a listed terrorist organisation is
engaging in a hostile activity throughout the country.
Requirement to brief Leader of the Opposition
846. New subsection 119.3(3) provides that, before making a declaration, the Foreign
Affairs Minister must arrange for the Leader of the Opposition in the House of
Representatives to be briefed in relation to the proposed declaration. This is an important
safeguard that is consistent with processes for the listing of a terrorist organisation under
Division 102 of the Criminal Code.
Cessation of declaration
847. New subsection 119.3(4) provides that a declaration ceases to have effect on the third
anniversary of the day on which it takes effect. This ensures a declaration cannot continue in
automatic operation for more than three years.
848. New paragraphs 119.3(4)(a) and (b) provide that new subsection 119.3(4) does not
prevent the revocation of the declaration before its expiry on the third anniversary of the day
in which it takes effect or the making of a new declaration the same in substance as the
previous declaration before or after the previous declaration ceases to have effect.
849. The note to subsection 119.3(4) advises readers that an offence committed in relation
to the declared area before the cessation of the relevant declaration can still be prosecuted
after the cessation of the declaration. The note relevantly refers readers to section 7 of the
Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislative
Instruments Act.
141
850. New subsection 119.3(5) provides that, if the Foreign Affairs Minister ceases to be
satisfied that a listed terrorist organisation is engaging in a hostile activity in a declared area,
the Foreign Affairs Minister must revoke the declaration.
851. The note to subsection 119.3(5) provides an example of circumstances in which the
Foreign Affairs Minister may cease to be satisfied that a listed terrorist organisation is
engaging in a hostile activity in the area. That example is where the relevant organisation
ceases to be specified in the regulations, i.e. a listed terrorist organisation as defined at
section 100.1 of the Criminal Code.
852. New subsection 119.3(6) clarifies that the Foreign Affairs Minister may subsequently
make a declaration in relation to an area the subject of a revoked declaration if he or she
subsequently becomes satisfied that a listed terrorist organisation is engaging in a hostile
activity in that area.
119.4 Preparations for incursions into foreign countries for purpose of engaging in
hostile activities
Preparatory acts
853. New section 119.4 creates offences for conduct that is preparatory to the offences of
entering a foreign country with the intention of engaging in a hostile activity or engaging in a
hostile activity in a foreign country.
854. New subsection 119.4(1) creates an offence for intentionally engaging in conduct
either within or outside Australia in circumstances where the person is reckless to the fact
that the conduct is preparatory to the commission of an offence against new section 119.1.
Paragraph 119.4(1)(b) provides that the conduct of the person could be preparatory to the
commission of a relevant offence either by that person or by another person.
Paragraph 119.4(1)(c) provides that the offence only applies to a person who is an Australian
citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person
who has voluntarily put themselves under the protection of the Commonwealth, or a body
corporate incorporated by or under a law of the Commonwealth or of a state or territory at the
time the person engages in the conduct. This paragraph ensures the offence only applies to
persons with a relevant and sufficient connection to Australia.
855. The maximum penalty for contravening the offence in subsection 119.4(1) is
imprisonment for life, reflecting the seriousness of the conduct. The penalties for these
offences implement recommendation III/7 of the INSLM`s fourth annual report, that the
penalty provisions in sections 101.1 and 101.6 of the Criminal Code and 6 and 7 of the
Foreign Incursions Act should be equivalent.
Accumulating weapons etc.
856. New subsection 119.4(2) creates an offence for intentionally accumulating,
stockpiling or otherwise keeping arms, explosives, munitions, poisons or weapons either
within or outside Australia with the intention that an offence against new section 119.1 will
be committed.
857. Paragraph 119.4(2)(b) provides that the conduct of the person could be preparatory to
the commission of a relevant offence either by that person or by another person. Consistent
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with the offence at subsection 119.4(1), paragraph 119.4(2)(c) provides that the offence only
applies to a person who is an Australian citizen, a resident of Australia, a person who holds a
visa under the Migration Act, a person who has voluntarily put themselves under the
protection of the Commonwealth, or a body corporate incorporated by or under a law of the
Commonwealth or of a state or territory at the time the person engages in the conduct.
858. The maximum penalty for contravening the offence in subsection 119.4(2) is
imprisonment for life, reflecting the seriousness of the conduct which at its most serious
could involve an intention to cause unlawful death.
Providing or participating in training
859. New subsection 119.4(3) creates an offence for intentionally providing military
training to another person or participating in providing military training to another person or
being present at a meeting or assembly of persons, where the person intends at that meeting
or assembly to provide, or participate in providing, military training to another person either
within or outside Australia.
860. New paragraph 119.4(3)(b) limits the offence to circumstances where the person
engages in the conduct intending to prepare the other person to commit an offence against
new section 119.1.
861. Consistent with the offences at subsections 119.4(1) and (2), paragraph 119.4(3)(c)
provides that the offence only applies to a person who is an Australian citizen, a resident of
Australia, a person who holds a visa under the Migration Act, a person who has voluntarily
put themselves under the protection of the Commonwealth, or a body corporate incorporated
by or under a law of the Commonwealth or of a state or territory at the time the person
engages in the conduct.
862. The maximum penalty for contravening the offence in subsection 119.4(3) is
imprisonment for life, reflecting the seriousness of the conduct.
863. New subsection 119.4(4) creates an offence for intentionally allowing military
training to be provided to himself or herself or intentionally allowing himself or herself to be
present at a meeting or assembly of person either within or outside Australia.
864. New paragraph 119.4(4)(b) limits the offence to circumstances where the person
engages in the conduct intending to commit an offence against new subsection 119.1.
865. Consistent with the offences at subsections 119.4(1), (2) and (3),
paragraph 119.4(4)(c) provides that the offence only applies to a person who is an Australian
citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person
who has voluntarily put themselves under the protection of the Commonwealth, or a body
corporate incorporated by or under a law of the Commonwealth or of a state or territory at the
time the person engages in the conduct.
866. The maximum penalty for contravening the offence in subsection 119.4(4) is
imprisonment for life, reflecting the seriousness of the conduct.
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Giving or receiving goods and services to promote the commission of an offence
867. New subsection 119.4(5) creates an offence for intentionally giving money or goods
to, or performing services for, any other person, body or association or receiving or soliciting
money or goods, or the performance of services for any other person, body or association,
either within or outside Australia.
868. New paragraph 119.4(5)(b) limits the offence to circumstances where the person
engages in the conduct with the intention of supporting or promoting the commission of an
offence against new subsection 119.1.
869. Consistent with the offences at subsections 119.4(1), (2), (3) and (4)
paragraph 119.4(5)(c) provides that the offence only applies to a person who is an Australian
citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person
who has voluntarily put themselves under the protection of the Commonwealth, or a body
corporate incorporated by or under a law of the Commonwealth or of a state or territory at the
time the person engages in the conduct.
870. The maximum penalty for contravening the offence in subsection 119.4(5) is
imprisonment for life, reflecting the seriousness of the conduct.
Absolute liability element
871. New subsection 119.4(6) provides that absolute liability applies to the elements in
paragraphs 119.4(1)(c), (2)(c), (3)(c), (4)(c) and (5)(c) that the person is a citizen, resident,
visa holder, under Australia`s protection or relevant body corporate.
872. The Note to subsection 119.4(6) advises readers to refer to section 6.2 of the Criminal
Code for further information about the fault element of absolute liability.
Exception
873. New subsection 119.4(7) creates a defence to the offences in subsections 119.4(1)
to (5). That defence is available where the person engages in the relevant conduct solely for
humanitarian aid purposes.
874. Note 1 to new subsection 119.4(7) advises readers that a defendant bears an evidential
burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code.
875. Note 2 to new subsection 119.4(7) refers readers to new section 119.9, which sets out
a further defence for conduct engaged in for the defence or international relations of
Australia.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
876. New subsection 119.4(8) provides that a reference in section 119.4 to the commission
of an offence against section 119.1 includes a reference to doing an act that would constitute
an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded. The
effect of this is that the person who engages in the preparatory conduct contrary to the
section 119.4 offences must be an Australian citizen, a resident of Australia, a person who
holds a visa under the Migration Act, a person who has voluntarily put themselves under the
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protection of the Commonwealth, or a body corporate incorporated by or under a law of the
Commonwealth or of a state or territory at the time the person engages in the conduct--that
is, the person must have a connection with Australia`. However, any other persons relevant
to the preparatory conduct need not satisfy that criteria.
877. For the offence against subsection 119.4(1), provided the person who engages in the
relevant preparatory conduct has a connection to Australia, it is immaterial that the person
intended to engage in conduct contrary to section 119.1 does not have a connection to
Australia and therefore cannot be prosecuted under section 119.1.
878. Similarly, for an offence against subsection 119.4(2), provided the person who
accumulates the weapons has a connection to Australia, it is immaterial that the person
intended to commit an offence against section 119.1 does not have a connection to Australia
and cannot be prosecuted under section 119.1.
879. For the offences against subsections 119.2(3), (4) and (5), provided the person
charged has a connection to Australia, it is not necessary for the person or persons who
receive military training, provide military training, or receive money or goods or services or
provide money, goods or services, respectively, have a connection to Australia.
880. Subsection 119.4(8) provides an important safeguard to ensure a person cannot escape
prosecution for an offence simply because the other person or persons involved are foreigners
and are neither Australian citizens, residents of Australia, persons who hold visas under the
Migration Act, persons who have voluntarily placed themselves under the protection of the
Commonwealth, or a bodies corporate incorporated by or under a law of the Commonwealth
or of a state or territory.
119.5 Allowing use of buildings, vessels and aircraft to commit offences
Use of buildings
881. New section 119.5 creates offences for facilitating, supporting or promoting the
commission of a preparatory offence through the use of buildings, vessels and aircraft.
882. New subsection 119.5(1) creates an offence for a person who is an owner, lessee,
occupier, agent or superintendent of any building, room, premises or other place, who
intentionally permits a meeting or assembly of persons to be held in that place. The offence
applies whether the person or the place is within or outside Australia.
883. Paragraph 119.5(1)(c) limits the offence to circumstances where the person permitting
the meeting or assembly to be held does so with the intention to commit, or support or
promote the commission of a preparatory offence contrary to section 119.4.
884. Paragraph 119.5(1)(d) provides that the offence only applies to a person who is an
Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act,
a person who has voluntarily put themselves under the protection of the Commonwealth, or a
body corporate incorporated by or under a law of the Commonwealth or of a state or territory
at the time the person permits the meeting or assembly to be held. This paragraph ensures the
offence only applies to persons with a relevant and sufficient connection to Australia.
885. The maximum penalty for contravening the offence in subsection 119.5(1) is
imprisonment for life, reflecting the seriousness of the conduct.
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Use of vessels or aircraft
886. New subsection 119.5(2) creates an offence for a person who is an owner, charterer,
lessee, operator, agent or master of a vessel, or an owner, charterer, lessee, operator or pilot in
charge of an aircraft, who intentionally permits the vessel or aircraft to be used. The offence
applies whether the person, vessel or aircraft is within or outside Australia.
887. Paragraph 119.5(2)(c) limits the offence to circumstances where the person permitting
the use does so with the intention to commit, or support or promote the commission of a
preparatory offence contrary to section 119.4.
888. Consistent with the offence at subsection 119.5(1), paragraph 119.5(2)(d) provides
that the offence only applies to a person who is an Australian citizen, a resident of Australia,
a person who holds a visa under the Migration Act, a person who has voluntarily put
themselves under the protection of the Commonwealth, or a body corporate incorporated by
or under a law of the Commonwealth or of a state or territory at the time the person permits
the use of the vessel or aircraft.
889. The maximum penalty for contravening the offence in subsection 119.5(2) is
imprisonment for life, reflecting the seriousness of the conduct. The penalties for the
offences in subsections 119.5(1) and (2) implement recommendation III/7 of the INSLM`s
fourth annual report, that the penalty provisions in sections 101.1 and 101.6 of the Criminal
Code and 6 and 7 of the Foreign Incursions Act should be equivalent.
Absolute liability element
890. New subsection 119.5(3) provides that absolute liability applies to the elements in
paragraphs 119.5(1)(d) and (2)(d) that the person is a citizen, resident, visa holder, under
Australia`s protection or relevant body corporate.
891. The Note to subsection 119.5(3) advises readers to refer to section 6.2 of the Criminal
Code for further information about the fault element of absolute liability.
Exception
892. New subsection 119.5(4) creates a defence to the offences in subsections 119.5(1) and
(2). That defence is available where the person engages in the relevant conduct solely for
humanitarian aid purposes.
893. Note 1 to new subsection 119.5(4) advises readers that a defendant bears an evidential
burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code.
894. Note 2 to new subsection 119.5(4) refers readers to new section 119.9, which sets out
a further defence for conduct engaged in for the defence or international relations of
Australia.
119.6 Recruiting persons to join organisations engaged in hostile activities against
foreign governments
895. New section 119.6 creates an offence for intentionally recruiting, in Australia, another
person to become a member of, or serve in any capacity with, a body or association of
146
persons whose objectives include any one or more of the objectives referred to in the
definition of engage in a hostile activity` in subsection 117.1(1).
896. The Note to new section 119.6 refers readers to new section 119.9, which sets out a
further defence for conduct engaged in for the defence or international relations of Australia.
897. The maximum penalty for contravening the offence in section 119.6 is imprisonment
for 25 years, reflecting the relative seriousness of the conduct. The penalties for this offence
implement recommendation III/6 of the INSLM`s fourth annual report, that the penalty
provisions in section 102.4 of the Criminal Code for the offence of recruiting for a terrorist
organisation and section 8 of the Foreign Incursions Act for the offence of recruiting person
to join organizations engaged in hostile activities against foreign governments should be
equivalent.
119.7 Recruiting persons to serve in or with an armed force in a foreign country
Recruiting others to serve with foreign armed forces
898. New section 119.7 creates offences for recruiting others for service with an armed
force in a foreign country, in Australia.
899. New subsection 119.7(1) creates an offence for intentionally recruiting, in Australia,
another person to serve in any capacity in or with an armed force in a foreign country.
900. The maximum penalty for contravening the offence in subsection 119.7(1) is
imprisonment for ten years, reflecting the relative seriousness of the conduct.
Publishing recruitment advertisements
901. New subsections 119.7(2) and (3) create offences for publishing items relevant to
recruiting.
902. New subsection 119.7(2) creates an offence for intentionally publishing in Australia
an advertisement or item of news that was procured by the provision or promise of money or
any other consideration reckless as to the fact that the publication of the advertisement or
item of news is for the purpose of recruiting persons to serve in any capacity in or with an
armed force in a foreign country.
903. New subsection 119.7(3) creates an offence for intentionally publishing in Australia
an advertisement or item of news that was procured by the provision or promise of money or
any other consideration reckless as to the fact that the advertisement or item of news contains
information relating to the place at which, or the manner in which, persons may make
applications to serve, or obtain information relating to service, in any capacity in or with an
armed force in a foreign country or relating to the manner in which persons may travel to a
foreign country for the purpose of serving in any capacity in or with an armed force in a
foreign country.
904. The maximum penalty for contravening the offences in subsections 119.7(2) and (3)
is imprisonment for ten years, reflecting the relative seriousness of the conduct.
147
Facilitating recruitment
905. New subsection 119.7(4) creates an offence for intentionally engaging in conduct in
Australia with the intention to facilitate or promote the recruitment of persons to serve in any
capacity in or with an armed force in a foreign country.
906. The maximum penalty for contravening the offence in subsection 119.7(4) is
imprisonment for ten years, reflecting the relative seriousness of the conduct.
Exception
907. New subsection 119.7(5) provides for a defence where the recruiting, publishing or
facilitating conduct is authorised pursuant to a declaration made under subsection 119.8(2).
This is designed to ensure, for example, that Australia`s allies can legally advertise and
recruit in Australia for service in or with their legitimate armed forces for a legitimate
purpose.
908. Note 1 to subsection 119.7(5) advises readers that a defendant bears an evidential
burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code.
909. Note 2 to new subsection 119.7(5) refers readers to new section 119.9, which sets out
a further defence for conduct engaged in for the defence or international relations of
Australia.
Armed forces that are not part of the government of a foreign country
910. New subsection 119.7(6) provides that a reference in this section to an armed force in
a foreign country includes any armed force in a foreign country, whether or not the armed
force forms part of the armed forces of the government of that foreign country.
911. New subsection 119.7(7) provides that, without limiting this section, a person recruits
another person to serve in or with an armed force in a foreign country if the other person
enters a commitment or engagement to serve in any capacity in or with an armed force,
whether or not the commitment or engagement is legally enforceable or constitutes legal or
formal enlistment in that force.
119.8 Declaration in relation to specified armed forces
912. New section 119.8 provides for the making of declarations by the Minister in relation
to sections 119.1, 119.2 and 119.7.
Service
913. New subsection 119.8(1) provides that the Minister may declare, by legislative
instrument, that section 119.1 or 119.2 does not apply in certain circumstances or to certain
persons if the Minister is satisfied that it is in the interests of the defence or international
relations of Australia to do so. The declaration can apply to a specified person or class of
persons in any circumstances or in circumstances specified in the declaration. The effect of a
subsection 119.8(1) declaration is to permit the service of the person or class of persons in the
circumstances specified (if any) in or with a specified armed force in a foreign country or a
specified armed force in a foreign country in a specified capacity.
148
914. The ability to make declarations under subsection 119.8(1) is important to Australia`s
defence and international relations and cooperation. A declaration could be made, for
example, to authorise an individual with certain skills to work with the armed forces of one of
Australia`s allies in a peace keeping mission at a location that is, or that could become, the
subject of a declaration made by the Foreign Affairs Minister under section 119.3 on the
grounds that a listed terrorist organisation is engaging in a hostile activity in that area. In
such a case, it would be important that the individual engaged in activities approved by the
Australian Government was not at risk of contravening the offences of entering a foreign
country with the intention of engaging in a hostile activity or entering or remaining in a
declared area.
Recruitment
915. New subsection 119.8(2) provides that the Minister may, by legislative instrument,
declare that section 119.7 does not apply in certain circumstances or to certain persons if the
Minister is satisfied that it is in the interests of the defence or international relations of
Australia to do so. The declaration can apply to a specified person or to a class of persons in
any circumstances or in circumstances specified in the declaration. The effect of a
subsection 119.8(2) declaration is to permit the recruitment in Australia of that person or
class of persons to serve in those circumstances in or with a specified armed force in a
foreign country or a specified armed force in a foreign country in a specified capacity.
916. The ability to make declarations under subsection 119.8(2) is also important to
Australia`s defence and international relations and cooperation. A declaration could be made,
for example, to authorise one of Australia`s allies to recruit or advertise to recruit a person
with specialist skills necessary for a proposed peace keeping mission at a location that is, or
that could become, the subject of a declaration made by the Foreign Affairs Minister under
section 119.3 on the grounds that a listed terrorist organisation is engaging in a hostile
activity in that area. In such a case, it would be important that the person who does the
recruiting or publishing the advertisement with the approval of the Australian Government
was not at risk of contravening one of the recruitment the offences in section 119.7.
119.9 Exception--conduct for defence of Australia
917. New section 119.9 provides a defence for the offences in Division 119 where the
conduct the subject of the offence is undertaken by a person acting in the course of the
person`s duty to the Commonwealth in relation to the defence or international relations of
Australia.
918. Note 1 to section 119.9 advises readers that a defendant bears an evidential burden in
relation to the matters set out in that subsection. Note 1 relevantly refers readers to
subsection 13.3(3) of the Criminal Code.
919. Note 2 to section 119.9 refers readers to new section 119.12, which provides for the
making of declarations for the purposes of proceedings for offences against this Division.
119.10 Mode of trial
920. New section 119.10 sets out the requirements for a trial for a prosecution for the
offences in Division 119 and related offences.
149
921. New subsection 119.10(1) provides that a prosecution for an offence against Division
119, an offence against section 6 of the Crimes Act, or an ancillary offence that relates to an
offence against Division 119 is to be on indictment.
922. However, new subsection 119.10(2), provides that if a law of a State or Territory
provides for a person who pleads guilty to a charge in proceedings for the person`s
commitment for trial on indictment to be committed to a higher court and dealt with
otherwise than on indictment will prevail over subsection 119.10(1).
119.11 Consent of Attorney-General required for prosecutions
923. New section 119.11 requires the consent of the Attorney-General in order to
commence proceedings against a person for offences against Division 119.
924. New subsection 119.11(1) provides that proceedings for the commitment of a person
for trial on indictment or for the summary trial for an offence against Division 119 or
section 6 of the Crimes Act to the extent that it relates to an offence against Division 119
must not be instituted without the written consent of the Attorney-General. This is designed
to ensure there is appropriate oversight of prosecutions.
925. New subsection 119.11(2) clarifies that certain steps may be taken without consent
having been given. Those steps are preliminary to the commencement of proceedings for the
commitment of a person on trial, and are limited to charging, arresting and remanding a
person in custody or on bail in relation to a relevant offence.
926. New subsection 119.11(3) provides that nothing in subsection (2) prevents the
discharge of the accused if proceedings are not continued within a reasonable time.
119.12 Declarations for the purposes of proceedings
927. New section 119.12 provides for Ministers to make declarations for the purposes of
the offences in Division 119.
928. New subsection 119.12(1) authorises the Foreign Affairs Minister to declare in
writing that a specified authority is in effective governmental control in a specified foreign
country or part of a foreign country or that a specified organisation is not an armed force, or
part of an armed force, of the government of a foreign country.
929. New subsection 119.12(2) authorises the Defence Minister to declare in writing that if
a specified person had done a specified act (being an act alleged to constitute an offence) the
person would not have been acting in the course of the person`s duty to the Commonwealth
in relation to the defence or international relations of Australia.
930. New subsection 119.12(3) provides that a declaration may be made in relation to a
specified day or period.
931. New subsection 119.12(4) provides that, in proceedings for an offence for which the
Attorney-General`s consent is required under Division 119, a certificate under this section is
prima facie evidence of the matters stated in the certificate. Accordingly, it is open to the
defence to provide information contrary to the matters stated in a declaration. In such a case,
it will be necessary for the prosecution to prove the relevant matter to the normal criminal
standards.
150
932. The INSLM has examined the executive evidential certificates created by section 11
of the Foreign Incursions Act. Recommendation III/8 of the INSLM`s fourth annual report
recommended that the evidential effect of the certificates concerning effective governmental
control in a specified foreign State or part thereof, and concerning the non-governmental
armed force character of a specified organisation (subsections 11(3) and 11(3A)) be amended
to be conclusive in effect rather than prima facie. The Government has considered this
recommendation and has resolved to maintain the current arrangements so that the evidential
effect of the executive certificates at section 119.12 be prima facie evidence of particular
matters. This ensures that it is the court that will ultimately have to be satisfied of the facts
relevant to proving the offence.
Customs Act 1901
Item 111 - Subsection 183UA(1) (definition of terrorist act)
933. This items repeals and substitutes the definition of terrorist act` in
subsection 183UA(1) of the Customs Act. The new definition will provide that this term has
the meaning given by section 100.1 of the Criminal Code. The purpose of this amendment is
to ensure that a consistent definition of terrorist act exists across all Commonwealth laws.
Item 112 - Subsections 183UA(4), (4A) and (5)
934. This item repeals subsections 183UA(4), (4A) and (5). These subsections contain
provisions for the purposes of the definition of terrorist act` in subsection 183UA(1). These
provisions are now redundant due to the repeal and substitution of this definition.
Item 113 - Subsection 228(7) (definition of terrorist act)
935. This item repeals and substitutes the definition of terrorist act` in subsection 228(7)
of the Customs Act. Section 228 sets out the circumstances in which ships and aircraft are
forfeited to the Crown. The new definition will provide that this term has the meaning given
by section 100.1 of the Criminal Code. The purpose of this amendment is to ensure that a
consistent definition of terrorist act exists across all Commonwealth laws.
Item 114 - Application of amendments
936. This item provides that the amendments to sections 183UA and 228 of the Customs
Act apply in relation to any terrorist act (whether occurring before or after this item
commences).
Foreign Evidence Act 1994
Items 115 to 126 - Amendments to provide greater discretion in deciding whether to
admit foreign material in terrorism-related proceedings
937. The primary purpose of these amendments to the Foreign Evidence Act is to provide
Australian judicial officers with greater discretion in deciding whether to admit foreign
material in terrorism-related proceedings, while still providing appropriate judicial protection
of the rights of the defendant.
151
938. Currently, pursuant to Part 3 of the Foreign Evidence Act, only foreign evidence
which is obtained as a result of a formal government-to-government request by or on behalf
of the Attorney-General to a foreign country (a mutual assistance request), and provided in a
particular form, may be adduced as evidence in proceedings in Australian courts. This
material is defined as foreign material`. Currently, with the exception of foreign business
records, foreign material which is adduced under the Foreign Evidence Act is subject to all
evidentiary rules and discretions which apply under the Commonwealth, state or territory law
governing proceedings in the relevant jurisdiction.
939. In the context of terrorism-related matters, obtaining foreign evidence through formal
mutual assistance channels may not always be practicable. This may be because there is no
functioning government to which a request may be made (for example when the alleged
terrorist activity takes place in countries in a severe state of conflict). Further, there are
circumstances where, although it is possible for Australia to make a mutual assistance request
to another country, experience has shown that some countries are not willing or able to
provide the requested evidence in response to a mutual assistance request from Australia, or
not willing or able to provide it in a form that meets the existing requirements in the Foreign
Evidence Act. Even where evidence can be obtained through a mutual assistance request,
this can often be a lengthy process and the evidence may not be available in time to assist
court proceedings.
940. In response to these difficulties, and in recognition of the seriousness of the conduct
to which these proceedings will relate, the Bill will amend the Foreign Evidence Act to insert
a new Part 3A, which will regulate the type of material that can be adduced and admitted as
evidence in terrorism-related proceedings and the process for adducing (offering of evidence)
and admitting (introduction of evidence into proceedings) this material whilst preserving the
primacy of the mutual assistance regime. Under Part 3A, in addition to foreign material
obtained as a result of a mutual assistance request to a foreign country, material received on a
police-to-police or agency-to-agency basis will be able to be adduced in terrorism-related
proceedings, as long as certain requirements are met, and subject to the exercise of a broad
judicial discretion.
941. As noted above, currently, with the exception of foreign business records, foreign
material which is adduced under the Foreign Evidence Act is subject to all rules of evidence,
including exclusionary discretions, which apply under the Commonwealth, state or territory
law governing proceedings in the relevant jurisdiction. Under Part 3A, the adducing of
material in terrorism-related proceedings will be subject only to the exercise of a broad
judicial discretion to prevent material from being adduced if the court is satisfied that
adducing the material would have a substantial adverse effect on the right of a defendant to
receive a fair hearing. The admissibility of material which is adduced in terrorism-related
proceedings will be subject only to a mandatory exception to admissibility for material
obtained directly as a result of torture or duress. The practical effect of this is that subject to
exclusion under this mandatory exception or the court`s discretion based on whether there is a
substantial adverse effect on the right of the defendant to receive a fair trial, the material can
be adduced in terrorism-related proceedings regardless of whether any other evidentiary rule
or discretion under Commonwealth, state or territory law would operate to exclude the
material.
942. These amendments are directed towards allowing the court greater discretion as to
whether to admit foreign evidence, taking into account the probative value of the evidence in
terrorism-related proceedings. The amendments aim to avoid a situation where evidence is
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automatically excluded on the basis of a technical rule of evidence that may have no
substantial bearing on the defendant`s right to a fair trial.
943. The INSLM stated in his Fourth Annual Report that as long as that safeguard remains
to protect the integrity of criminal proceedings for terrorist etc offences regarding the use of
foreign evidence, it justifies serious consideration being given to further liberalizing
availability of foreign information as admissible evidence.`
944. Furthermore, the INSLM stated that the discretion to exclude otherwise admissible
evidence if the court is satisfied that adducing foreign material would have a substantial
adverse effect on the right of a defendant to receive a fair hearing (as expressed in the current
section 25A of the Foreign Evidence Act), accords with common law fairness and the
requirements for the exercise of judicial power under the Constitution. The proposed
amendments will apply the discretion in section 25A to terrorism-related proceedings to
protect the integrity of these proceedings.
Items 115 to 121
945. Subsection 3(1) of the Foreign Evidence Act contains a number of definitions.
Items 115 to 121 will insert, amend or repeal definitions in subsection 3(1) to give effect to
amendments to be made by this Bill.
Items 115 to 118 - Subsection 3(1) (definition of designated offence)
946. Designated offence` is currently defined in subsection 3(1) to include a range of
national security and terrorism-related offences under a range of Commonwealth Acts,
including the Aviation Transport Security Act 2004, the Criminal Code, the Crimes (Aviation)
Act 1991 and the Crimes (Biological Weapons) Act 1976. This term will be used in the
definition of terrorism-related proceedings` which will be inserted by Item 121 and the
operation of new Part 3A, which will regulate the type of material that can be adduced and
admitted as evidence in terrorism-related proceedings and the process for adducing and
admitting this material. Paragraph (c) of the definition of designated offence` currently
refers to an offence against section 21 of the UN Charter Act, which is contained in part 4 of
that Act. Item 115 will replace current paragraph (c) of the definition of designated offence`
with a broader definition which will include any offence against Part 4 of the UN Charter Act
or Part 5 of that Act to the extent that it relates to the Charter of the United Nations
(Sanctions--Al Qaida) Regulations 2008.
947. Item 116 will amend the definition of designated offence` in subsection 3(1) of the
Foreign Evidence Act to include an offence against Subdivision B of Division 80 of the
Criminal Code (treason offences).
948. The amendments made by Items 115 and 116 reflect amendments made to the
definition of terrorism offence` in the Crimes Act (see items 35-37) and the Proceeds of
Crime Act 2002 (see item 136).
949. Item 117 will amend the definition of designated offence` in subsection 3(1) of the
Foreign Evidence Act to include an offence under Part 5.5 of the Criminal Code. Part 5.5
will be inserted into the Criminal Code through Item 110 of this Bill. Part 5.5 will contain
the offences currently contained in the Foreign Incursions Act, which will be repealed by
Item 145.
153
950. Paragraph (j) of the definition of designated offence` currently refers to an offence
against the Foreign Incursions Act. Item 118 will repeal paragraph (j) of the definition of
designated offence in subsection 3(1) of the Foreign Evidence Act. This is as a consequence
of the repeal of the Foreign Incursions Act.
Item 119 - Subsection 3(1)
951. Item 119 will insert a definition of duress`, foreign authority` and foreign
government material` into subsection 3(1) of the Foreign Evidence Act. The admissibility of
material which is adduced in terrorism-related proceedings will be subject to a mandatory
exception to admissibility for material obtained directly as a result of torture or duress.
Item 119 will insert the definition of duress` as having the meaning given by
subsection 27D(3).
952. A foreign authority` will be defined as an authority of a foreign country or of part of
a foreign country. A foreign authority may include, but is not limited to, a foreign
investigative or law enforcement authority, a foreign military force, a foreign security agency
or a foreign customs or immigration agency.
953. Foreign government material` will be defined as material provided by a foreign
authority to an authority of the Commonwealth. This definition will cover foreign evidence
provided on an agency-to-agency basis, as opposed to the provision of material through
formal mutual assistance processes (as defined in paragraph (a) of the definition of foreign
material` in subsection 3(1)).
954. Agency-to-agency assistance encompasses police-to-police assistance, which is
informal cooperation provided by police in one country and police in another country, and
cooperation between non-police agencies and their foreign counterparts overseas. Examples
of agency-to-agency assistance may include the provision of witness statements on a
voluntary basis and the provision of information or records to further an investigation. Other
material provided could include transcripts of interviews, analysis of phones, tablets,
computers, photos and videos, surveillance reports, items of forensic value and results of
forensic analysis.
955. These definitions are relevant to the new Part 3A to be inserted by Item 125, which
will regulate the type of material that can be adduced and admitted as evidence in
terrorism-related proceedings and the process for adducing and admitting this material.
Item 120 - Subsection 3(1) (paragraph (a) of the definition of foreign material)
956. Currently, for the purposes of Part 3 of the Foreign Evidence Act, foreign material`
means the testimony of a person that was obtained as a result of a request made by or on
behalf of the Attorney-General to a foreign country that complies with the requirements of
section 22 of the Foreign Evidence Act. These are that the testimony was taken under a legal
obligation or commitment to tell the truth, for example, under oath or affirmation, and that
the testimony is signed or certified by judge, magistrate or officer in or of the foreign country
to which the request was made. Item 120 will expand the application of existing
paragraph (a) of the definition of foreign material` to new Part 3A of the Foreign Evidence
Act, which will be introduced by Item 125.
154
957. The purpose of this amendment is to make clear that the requirements which currently
apply to foreign material for the purposes of Part 3 of the Foreign Evidence Act will also
apply to foreign material for the purposes of new Part 3A of the Foreign Evidence Act.
Item 121 - Subsection 3(1)
958. Item 121 will insert a definition of member of the Australian Federal Police` into
subsection 3(1) of the Foreign Evidence Act. This term will have the same meaning as in the
AFP Act.
959. Item 121 will also insert a definition of senior AFP member` into subsection 3(1) of
the Foreign Evidence Act. A senior AFP member` will be defined as the Commissioner or a
Deputy Commissioner of the AFP, an AFP member who is a senior executive AFP employee,
or an AFP member acting in one of those positions.
960. The definition of senior AFP member` is relevant to proposed paragraph 27B(1)(a)
inserted by Item 125, which will require foreign government material to be under cover of a
statement given by a senior AFP member for it to be able to be adduced in terrorism-related
proceedings. Limiting the class of AFP members who may provide the statement to a senior
AFP member` ensures that a sufficiently senior AFP member is attesting to the material. This
provision recognises the fact that the mutual assistance process remains the preferred method
for obtaining foreign evidence for use in Australian proceedings to safeguard the rights of the
defendant.
961. Item 121 will also insert a definition of substantial adverse effect` into
subsection 3(1) of the Foreign Evidence Act. Substantial adverse effect` will be defined to
mean an effect that is adverse and not insubstantial, insignificant or trivial.
962. This definition is currently contained at subsection 25A(4) of the Foreign Evidence
Act. Item 124 will repeal section 25A. This definition is relevant to the exercise of the
judicial discretion not to adduce material at section 27C, which will be introduced by Item
125.
963. Item 121 will also insert a definition of terrorism-related proceeding` into
subsection 3(1). Terrorism-related proceeding` means a criminal proceeding for a
designated offence, a proceeding under the Proceeds of Crime Act which relates to a
designated offence, or a proceeding under Division 104 of the Criminal Code (control order
proceedings). Designated offence` is defined in subsection 3(1) to include terrorism and
national security-related offences proscribed under a range of legislation. The definition of
designated offence` will be amended by Items 115 and 118.
964. This definition is relevant to Part 3A which will be inserted in the Foreign Evidence
Act by item 125 to introduce new rules for the adducing and admissibility of foreign evidence
in terrorism-related proceedings.
965. The admissibility of material which is adduced in terrorism-related proceedings will
be subject to a mandatory exception to admissibility for material obtained directly as a result
of torture or duress. Item 121 will insert the definition of torture` as having the meaning
given by subsection 27D(3).
155
Item 122 - After subsection 20(1)
966. Part 3 of the Foreign Evidence Act currently stipulates the basis upon which foreign
material may be adduced in proceedings. Section 20 of the Foreign Evidence Act identifies
the proceedings to which Part 3 of the Act applies including a criminal proceeding for an
offence against the law of the Commonwealth, a related civil proceeding and a proceeding
under proceeds of crime law. Section 22 then requires testimony attached to foreign evidence
to have been taken under a legal obligation or commitment to tell the truth, for example,
under oath or affirmation, and signed or certified by a judge, magistrate or officer in or of the
foreign country to which the request was made.
967. Item 122 will insert a new subsection (1A) into section 20. The new subsection
would outline that Part 3 of the Foreign Evidence Act would not apply to a terrorism-related
proceeding. A definition of terrorism-related proceeding will be inserted by item 121. The
rules that will apply to the adducing and admissibility of foreign evidence in terrorism-related
proceedings will be contained in new Part 3A to be inserted by item 125.
968. New subsection (1A) will also provide that testimony or an exhibit attached to
testimony can still be foreign material for the purposes of Part 3A. This is necessary because
the definition of foreign material in subsection 3(1) (as amended by item 120) requires the
foreign material to have been obtained as a result of a request of the kind referred to in
section 21 and comply with the testimony requirements in section 22.
969. As such, for foreign material to be adduced under new Part 3A (to be inserted by
item 125) the foreign material would still need to meet the requirements set out in sections 21
and 22 of the Foreign Evidence Act as set out above. The requirements for adducing foreign
government material` will be contained in section 27B of the Foreign Evidence Act which
will be inserted by item 125.
Item 123 - Subsection 25(1) (note)
970. Section 25 currently provides the court with the discretion to direct that foreign
material not be adduced in criminal and related civil proceedings notwithstanding that the
material may otherwise meet all rules of evidence relating to the adducing of evidence if
justice would be better served if the foreign material were not adduced as evidence.
971. The note following subsection 25(1) currently refers to section 25A which contains a
more limited discretion for designated offences`. This item will repeal the note following
subsection 25(1). This is as a consequence of item 124 which will repeal section 25A and
item 125 which will insert a new Part 3A.
Item 124 - Section 25A
972. Section 25A of the Foreign Evidence Act currently contains a discretion for the court
to prevent foreign material being adduced if the court is satisfied that adducing the material
would have a substantial adverse effect on the right of a defendant in the proceeding to
receive a fair hearing. This discretion applies only where the proceedings are for a
designated offence or proceeds of crime proceeding related to a designated offence
(compared with the discretion in section 25 which applies in all other criminal and related
civil proceedings).
156
973. This item would repeal existing section 25A. This is as a consequence of item 125
which will insert a new Part 3A which will contain a new set of rules that will apply to the
adducing and admissibility of foreign evidence in terrorism-related proceedings, including
replicating the existing discretion in section 25A.
Item 125 - After Part 3
974. The INSLM and the AFP have identified the difficulties in obtaining foreign evidence
in accordance with the existing requirements as an impediment to the effective investigation
and prosecution of terrorism-related offences. In particular, Recommendation IV of the
INSLM`s fourth Annual Report dated 28 March 2014 seeks to ensure existing provisions in
the Foreign Evidence Act do not unnecessarily limit the court's ability to consider whether or
not to admit foreign evidence.
975. The existing provisions in the Foreign Evidence Act currently do not contain the
flexibility necessary to adduce evidence that was not able to be obtained or provided in a way
that meets Australia`s evidentiary standards. This may be because the material originated in
a foreign country that has a different criminal justice system and evidentiary requirements.
These challenges are likely to be compounded in terrorism-related proceedings due to the
particular circumstances in which alleged terrorist activity is taking place, that is, in regions
in severe states of conflict, where there is no functioning government or where the legitimacy
of the government is not recognised by Australia.
976. Currently, pursuant to Part 3 of the Foreign Evidence Act, only foreign evidence
which is obtained as a result of a formal mutual assistance request, and provided in a
particular form, may be adduced as evidence in proceedings in Australian courts.
977. In the context of terrorism-related matters, obtaining foreign evidence through a
formal request by the Attorney-General may not always be possible or practicable because
there may be no effective Government to which a request can practicably be made. Further,
there are circumstances where, although it is possible for Australia to make a mutual
assistance request to another country, experience has demonstrated that some countries are
not willing or able to provide the requested evidence in response to a mutual assistance
request from Australia, or not willing or able to provide it in a form that meets the existing
requirements in the Foreign Evidence Act.
978. In response to these difficulties and in recognition of the seriousness of offences to
which these proceedings will relate and the need to protect the safety of the community,
Item 125 will insert Part 3A into the Foreign Evidence Act. This new Part will serve two
purposes.
979. Firstly, the new Part will enable foreign evidence obtained on an agency-to-agency
basis to be adduced in Australian terrorism-related proceedings (defined as foreign
government material as inserted by Item 119) in addition to material obtained through formal
mutual assistance (foreign material`). This material is the same material that would
otherwise be obtained through mutual assistance processes but for the reasons outlined above
cannot be in these circumstances.
980. In recognition of the fact that the mutual assistance process remains the preferred
method for obtaining foreign evidence for use in Australian proceedings and to safeguard the
rights of the defendant, there are a range of requirements that must be met before foreign
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government material is able to be adduced (contained in section 27B to be inserted by this
item).
981. Secondly, under Part 3A, a streamlined set of rules will apply to the process for
adducing and admitting foreign material and foreign government material in terrorism-related
proceedings.
982. Currently, under Part 3, the majority of foreign material which is adduced under the
Foreign Evidence Act is subject to the evidentiary rules and discretions which apply in the
court in which the proceeding are being heard. However, Part 3 of the Foreign Evidence Act
also recognises the issues that Australia`s evidentiary requirements raise in relation to
evidence obtained overseas. Specifically, under section 24 of the Foreign Evidence Act, the
hearsay evidentiary rule does not apply to the admissibility of foreign business records.
983. Under Part 3A, the adducing (offering of evidence) of both foreign material and
foreign government material will be subject only to the exercise of the broad judicial
discretion set out at section 27C inserted by Item 125. Further, the admissibility (introduction
of evidence into proceedings) of foreign material and foreign government material will be
subject only to the mandatory exception to admissibility set out at subsection 27D(2) and not
the rules of evidence that would otherwise apply in the court in which the proceedings are
being heard. The effect of these amendments will be that, subject only to these provisions, all
foreign material and foreign government material will be able to be adduced and admitted in
terrorism-related proceedings, subject to the court`s discretion on whether there would be a
substantial adverse effect on the defendant`s right to a fair trial, but regardless of whether any
other rules of evidence under Commonwealth, State or Territory law would ordinary apply to
exclude the material.
984. The rules contained in new Part 3A intend to address the difficulties prosecutorial
authorities face in seeking to adduce and admit foreign evidence in terrorism-related
proceedings due to the: circumstances in which foreign evidence may have been obtained;
process by which the evidence has been provided; or form in which the evidence is provided.
985. The amendments would enable investigating and prosecuting authorities to develop a
brief of evidence that is able to be considered by the court without a high risk of the majority
of the evidence being automatically excluded on the basis of detailed rules of evidence in
Australia. Rather the court is to determine whether the evidence is to be excluded on the basis
that adducing the material would have a substantial adverse effect on the defendant`s right to
a fair trial. This ensures that Australian authorities are better equipped to investigate and
prosecute terrorism-related offences which will directly contribute to increased public safety
and national security.
Section 27A
986. Item 125 will insert Section 27A which will set out the rules governing when foreign
material may be adduced in terrorism-related proceedings. Section 27A(1) will provide that
foreign material may be adduced in terrorism-related proceedings. Foreign material is
defined in subsection 3(1) for the purposes of Part 3 and Part 3A as the testimony of a person
that (i) was obtained as a result of a request of a kind referred to in section 21; and (ii)
complies with the requirements of section 22 and includes any exhibit annexed to such
testimony. Terrorism-related proceeding will be defined as a criminal proceeding for a
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designated offence, a proceeding under the Proceeds of Crime Act relating to a designated
offence or a proceeding under Division 104 of the Criminal Code (as inserted by item 121).
987. Note 1 to this provision will make clear that notwithstanding this provision,
section 27C will provide the court with the discretion to direct that foreign material not be
adduced. Note 2 will provide that section 27D will deal with the admissibility of foreign
material.
988. Subsection 27A(2) will provide that foreign material is not to be adduced as evidence
in terrorism-related proceedings if it appears to the court`s satisfaction that the person who
gave the testimony is in Australia and is able to attend the hearing. This provision mirrors the
requirement for adducing foreign material in criminal and related civil proceedings (in
paragraph 24(2)(a)). This is a mandatory ground on which the evidence must be excluded if
the conditions of the provision are met, that is, if the court is satisfied that the person who
gave the testimony is in Australia and able to attend the hearing. This recognises that
wherever possible, evidence should be given in person so the defendant has the opportunity
to challenge that evidence.
Section 27B
989. Item 125 will insert section section27B which will set out the rules governing when
foreign government material may be adduced in terrorism-related proceedings. Subsection
27B(1) will provide that foreign government material may be adduced in terrorism-related
proceedings if the material is:
annexed to a written statement by a senior AFP member that is given under oath
or affirmation and meets the requirements set out at subsection 27B(2), and
accompanied by a certificate of the Attorney-General given under
subsection 27B(3).
990. The purpose of these requirements is to ensure that sufficient information is provided
to the court regarding the origins and veracity, accuracy and reliability of the foreign
government material and the process by which it was obtained and subsequently provided to
the AFP for use in the investigation and proceeding.
991. A definition of senior AFP member` will be inserted by item 121.
992. Subsection 27B(2) will require the statement given by the senior AFP member to:
state what the material is, and
state to the best of the senior AFP member`s knowledge
o how the material, and any information contained in the material, was obtained
by the first foreign authority to obtain or produce the material or information,
and
o each step in the process by which the material or information came from that
foreign authority into the possession of the AFP.
993. The purpose of the statement is to provide the court with information sufficient to
satisfy the court as to what the material is, how the material was obtained and by whom and
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how the material was then provided to the AFP. In effect, the purpose of the statement is to
provide the court with the AFP`s assessment of the provenance and history of the material.
994. The reference to information contained in the material` ensures that it is not only the
physical object or document coming before the court that must be attested to, but also any
information that is contained in the object or document (where relevant). For example, if the
material being adduced is a transcript of an interview, then the statement from the senior AFP
member needs to outline to the best of the member`s knowledge, how the information in the
transcript was obtained. A further example is where the material being adduced is an
intelligence report from a foreign police force. In this example, the statement from the senior
AFP member needs to outline, to the best of the member`s knowledge, how the information
in the report was obtained, such as through interviews, informants and/or surveillance.
995. New paragraph 27B(2)(a) will also provide that the statement must only relate to the
foreign government material annexed to the statement. This is because of new section 27D
which will provide that the statement to which the foreign government material is annexed is
admissible in terrorism-related proceedings despite any other Australian law about evidence.
If the statement were able to contain information that did not relate to the foreign government
material, it would then also circumvent the normal laws of evidence. This would be contrary
to the intent of the amendments made by this Bill which solely relate to evidence obtained
overseas.
996. New subsection 27B(3) will enable the Attorney-General to certify that he or she is
satisfied that it was not practicable to obtain the foreign government material or the
information in the foreign government material as foreign material. That is, that it was not
practicable to obtain the material in response to a formal request through mutual assistance
channels. This certificate relates to new subsection 27B(1) which provides that foreign
government material can only be adduced in terrorism-related proceedings if accompanied by
a certificate of the Attorney-General.
997. Subsection 27B(3) requires the Attorney-General`s certificate to be in a form
prescribed under subsection (4). Subsection 27B(4) provides the Attorney-General with the
power to, by legislative instrument, prescribe a form for the certificate. Prescribing the form
to be used will ensure there is clarity and certainty for the Court as to what must be contained
in the certificate. The Attorney-General`s certificate issued under new subsection 27B(3) is
not a legislative instrument within the meaning of subsection 5 of the Legislative Instruments
Act.
998. The requirement for the Attorney-General to personally make this certification
recognises that the mutual assistance process remains the preferred method for obtaining
foreign evidence for use in Australian proceedings. It also recognises that the provisions
relating to foreign government material should not be used in circumstances where it may be
hard, difficult or challenging but still practicable for the material to be obtained through the
mutual assistance process.
999. The receipt of foreign government material under section 27B is not contingent on the
person to whom the material is attributable being unable to attend the hearing. There may be
multiple persons to whom the material is attributable, and an obligation to call the person`
may create confusion as to who should be called. It is contemplated that prosecutorial
practice and the best evidence rule would ensure that in practice an available witness would
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ordinarily be called, and that reliance on material in the absence of an available witness may
enliven the discretion in subsection 27C(2).
1000. The requirements outlined in new section 27B provide important safeguards on the
use of foreign government material in terrorism-related proceedings while still ensuring the
rights of the defendant to a fair hearing are appropriately protected.
Section 27C
1001. Item 125 will insert new section 27C. This section will contain a discretion mirrored
on existing section 25A to prevent foreign material or foreign government material being
adduced in a terrorism-related proceeding.
1002. Subsection 27C(1) outlines the circumstances in which the section will apply.
Specifically, it will apply in the following three situations which are the three components of
the definition of terrorism-related proceeding`:
i. when a prosecutor is seeking to adduce material in a criminal proceeding for a
designated offence`. Designated offence` is defined in subsection 3(1) of the
Foreign Evidence Act (and will be amended by Items 115-118) and includes, among
others, an offence against Part 5.3 of the Criminal Code and an offence against
Subdivision A of Division 72 of the Criminal Code (International terrorist activities
using explosive or lethal devices).
ii. when the responsible authority under the Proceeds of Crime Act seeks to adduce
material in a proceeding under that Act. The responsible authority would be either
the AFP or the CDPP.
iii. When a member of the AFP seeks to adduce material in a proceeding under
Division 104 of the Criminal Code which deals with control orders.
1003. Under the existing section 25A the court may direct that foreign material not be
adduced as evidence in a proceeding if the court is satisfied that adducing the foreign material
would have a substantial adverse effect on the right of the defendant in the proceeding to
receive a fair hearing. Section 25A will be repealed by item 124.
1004. This discretion will now be contained in the new subsection 27C(2) . It will now
apply to all terrorism-related proceedings and will enable the court to direct that foreign
material not be adduced as evidence in a proceeding if is satisfied that adducing the foreign
material would have a substantial adverse effect on the right of the defendant in the
proceeding to receive a fair hearing.
1005. Substantial adverse effect` will be defined in subsection 3(1) as an effect that is
adverse and not insubstantial, insignificant or trivial`. This mirrors the existing definition in
subsection 25A(4) which will be repealed by item 124. This provision allows the Court to
retain the capacity to protect its own processes from abuse and to ensure the defendant (and
other parties to the proceeding) the right to a fair hearing, while ensuring the prosecution is
not substantially impaired by excluding material in appropriate cases.
1006. In the 2014 INSLM Report, the INSLM suggests that the existing safeguard in
section 25A accords with common law fairness and the requirements for the exercise of
judicial power under Chapter III of the Constitution and is an appropriate safeguard for
defendants.
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1007. Moving this existing safeguard to new Part 3A will ensure that the court still has the
power to protect against any abuse or injustices that may otherwise result from adducing
foreign evidence in terrorism-related proceedings.
Section 27D
1008. Item 125 inserts section 27D which sets out when foreign evidence adduced in
terrorism-related proceedings is admissible.
1009. Subsection 27D(1) provides that the following material is admissible in
terrorism-related proceedings despite any other Australian law about evidence:
foreign material adduced under subsection 27A (foreign material is defined in
subsection 3(1) -material obtained through formal mutual assistance channels)
foreign government material adduced under subsection 27B(1) (a definition of
foreign government material will be inserted into subsection 3(1) by item 119 -
material obtained on an agency-to-agency basis)
the statement from a senior AFP member accompanying the foreign government
material (as provided for in paragraph 27B(1)(a)), and
the certificate from the Attorney-General certifying that it was not practicable to
obtain the foreign government material through formal mutual assistance
channels.
1010. The effect of this provision is that the standard rules governing the admissibility of
evidence (such as hearsay, opinion, identification and others however described) do not apply
to the admissibility of the material outlined above. This is appropriate in relation to the use
of foreign evidence in terrorism-related proceedings because experience has demonstrated
that regardless of whether the evidence is provided by the foreign country through formal
mutual assistance channels or on an agency-to-agency basis, some countries are not willing or
able to provide it in a form that meets the existing requirements in the Foreign Evidence Act.
This could be due to the circumstances in which the evidence was originally obtained,
differing legal systems, or a lack of domestic laws or procedures enabling that country to
respond to provide the evidence in a way or form that meets Australia`s stringent evidentiary
requirements.
1011. This subsection (and the other provisions contained in new Part 3A aims to enable the
investigating and prosecuting authorities to develop a brief of evidence that is able to be
considered by the court without the majority of the evidence being automatically excluded or
the basis that it fails to meet detailed rules of evidence in Australia. It recognises that the
majority of evidence for terrorism-related offences may be located overseas and unable to be
obtained in a way that would meet Australia`s evidentiary requirements.
1012. New subsection 27D(2) outlines the exceptions to admissibility in terrorism-related
proceedings. Under this subsection, the court must exclude the material if it is satisfied that
the material, or the information contained in the material, was obtained directly as a result of
torture or duress (defined in subsection 3(1) by reference to the definition of torture and the
definition of duress in subsection 27D(3)).
1013. Subsection 27D(2) will provide that an act or omission amounting to torture or duress
must be inflicted by a person who is:
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a public official
acting in an official capacity, or
acting at the instigation, or with the consent or acquiescence, of a public official or
person acting in an official capacity.
1014. The reference to a person acting in an official capacity` is intended to encompass
certain non-State actors who are exercising authority comparable to government authority.
For example, they may belong to a political organisation exercising de facto authority over a
particular region of a country.
1015. By providing an exception to admissibility for material obtained directly as a result of
torture, subsection 27D(2) will ensure Australia continues to fulfil its obligations under
Article 15 of the CAT, which was adopted by the UN General Assembly on
10 December 1984, and which entered into force for Australia on 26 June 1987. Article 15 of
the CAT relevantly states:
Each State Party shall ensure that any statement which is established to have been
made as a result of torture shall not be invoked as evidence in any proceedings...
1016. Subsection 27D(3) defines torture` consistently with Article 1(1) of the CAT for the
purpose of subsection 27D(2). It is intended that the definition of torture is interpreted
consistently with the Convention.
1017. The definition of torture` will provide that an act or omission amounting to torture
must inflict severe pain or suffering, whether physical or mental. The definition of torture`
in subsection 27D(3) will also list the purposes for which the relevant conduct must be
engaged in to constitute torture. In summary these purposes are:
obtaining from the other person or from a third person information or a
confession, or
punishing the other person for an act that the other person or a third person has
committed or is suspected of having committed, or
intimidating or coercing the other person or a third person, or
discrimination that is inconsistent with the Articles of the ICCPR.
1018. The reference to discrimination that is inconsistent with the Articles` of the ICCPR
will make clear that if discrimination is invoked as a relevant purpose, it must be
discrimination prohibited by international law on the enumerated grounds set out in articles
2(1) and 26 of the ICCPR.
1019. Subsection 27D(3) will make clear torture would not include an act or omission
arising only from, inherent in or incidental to lawful sanctions (i.e. conduct which is lawful
under domestic laws) that are not inconsistent with the Articles of the ICCPR.
1020. Subsection 27D(2) also provides a mandatory exception to admissibility for material,
or information contained in the material, directly obtained as a result of duress. The inclusion
of this exception recognises the seriousness of threats of the kind contained in the definition
of duress` and the inherent unreliability of material or information obtained in such a
manner.
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1021. The definition of duress` in subsection 27D(3) draws on the common law criminal
defence meaning of duress (cf. R v Hurley [1967] VR 526). Specifically, duress will exist in
circumstances where a person performs actions because of threats of death or serious injury
to themselves, or to family members, being threats of such a nature that a reasonable person
would have yielded to them. The party against which the material is adduced bears the
evidentiary burden of raising torture or duress as an issue and it is ultimately the decision of
the Court as to whether the exception applies.
1022. Subsection 27D(4) provides that if the foreign government material is not admissible,
neither the statement made under paragraph 27D(1)(a) or certificate described in paragraph
27D(1)(b) is admissible to the extent they relate to the excluded material. However, if the
statement or certificate relates to more than one item of foreign material, then so much of the
statement and certificate that relates to admissible foreign material would also be admissible.
Section 27E
1023. New section 27E explicitly states that Part 3A does not limit the ways in which a
matter may be proved or evidence adduced under other Parts of this Act or any other
Australian law.
Item 126 - Application of amendments
1024. Item 126 stipulates that the amendments made by this Bill apply to proceedings
instituted on or after the commencement of the amendments whether the evidence was
obtained before, on or after that commencement. This ensures that there is no ability to
adduce evidence under the amendments in proceedings that have already commenced.
Foreign Passports (Law Enforcement and Security) Act 2005
Item 127 - Subsection 5(1)
1025. This item omits the reference to subsection (1) because there are no other subsections
in the section.
Item 128 - Subsection 5(1)
1026. This item inserts the definition of ASIO (the Australian Security Intelligence
Organisation) into section 5. A definition of ASIO is required as it is the only authority that
can make a request from the surrender of a foreign passport under new section 15A and it is
currently not defined in the Act.
Item 129 - At the end of Division 1 of Part 2
1027. This item inserts new section 15A, which allows ASIO to make a request to the
Minister for an order under new section 16A for a person`s foreign travel documents to be
surrendered for 14 days. This section is designed to mirror those under the Passports Act that
enable a request for the suspension of a person`s Australian travel documents. This means
that if a request is made for the suspension of a person`s Australian travel documents under
new section 22A of the Passports Act, but the person also has foreign travel documents, a
request can also be made for the surrender of those documents to prevent the person from
travelling. The provision will also apply to a person who only has foreign travel documents.
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New section 15A and 16A are the main provisions that implement Recommendation V/5 of
the INSLM`s fourth annual report to introduce a power to suspend a person`s capacity to use
their foreign passport to travel in circumstances similar to those that would permit a
suspension of the person`s Australian passport.
1028. New subsection 15A(1) allows ASIO to make a request to the Minister for an order
under new section 16A for the surrender of a person`s foreign travel documents for a period
of 14 days. ASIO can make a request where it suspects on reasonable grounds that the person
may leave Australia to engage in conduct that might prejudice the security of a foreign
country and the person should be required to surrender their foreign travel documents to
prevent the person from engaging in the conduct. ASIO is the sole requesting authority as the
surrender mechanism is designed to target persons of security concern. The threshold for a
request under subsection 15A(1) is lower than that required for a longer-term surrender
request which already exists under section 15. The lower threshold will enable ASIO to
make a short-term surrender request on the basis of credible information that indicates a
person may pose a security risk. During the 14 day period ASIO will be afforded critical time
to further assess the extent and nature of the security risk to inform further security advice to
DFAT, which may result in a request to the Minister under section 15 for the longer term
surrender of a foreign travel document.
1029. New subsection 15A(2) allows ASIO to make an additional request in relation to the
person where it has new information that was not before it at the time of the surrender request
and during the 14-day period. The subsection allows ASIO to make a request where there is
genuinely new information before it. However, the amendment is not intended to allow for
consecutive rolling surrender requests, which would defeat the purpose of the limited 14-day
surrender period.
Item 130 - Section 16 (heading)
1030. This item amends the heading of section 16 to reflect that the section applies to
requests made under sections 13, 14 or 15 of the Act.
Item 131 - After section 16
1031. This item inserts new section 16A, which allows the Minister to order the 14-day
surrender of a foreign travel document. Under new subsection 16A(1), the Minister can order
the surrender of a person`s foreign travel document where ASIO has made a request under
section 15A. The order for the surrender of those documents will not affect the validity of the
documents.
1032. New subsections 16A(2)-(4) replicate the existing surrender and seizure provisions
contained in section 16 of the Act. If the Minister makes an order under new subsection
16A(1), an enforcement officer may demand that the person surrender to the officer the
person`s foreign travel documents under new subsection 16A(2). An enforcement officer is
already defined in section 5 of the Act. If the person does not immediately surrender the
person`s foreign travel documents the officer can seize those documents and any foreign
travel document of the person that is not in the possession or control of any person under new
subsection 16A(3). New subsection 16A(4) provides that an enforcement officer is not
authorised under subsection 16A(3) to enter premises the officer would not otherwise be
authorised to enter.
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1033. New subsection 16A(5) creates an offence in circumstances where a person to fails to
comply with a demand by an officer to surrender the person`s foreign travel documents. The
offence provision is necessary to give effect to the surrender order. The penalty for an
offence under this subsection is imprisonment for six months or ten penalty units, or both.
1034. Under new subsection 16A(6), a seized or surrendered foreign travel document must
be returned to the person at the end of 14 days after the Minister makes the surrender order.
This ensures that at the end of the short-term surrender period a person is able to exercise
their right to travel.
1035. New subsection 16A(7) provides an exception to subsection 16A(6) whereby a seized
or surrendered foreign travel document does not need to be returned to the person if the
Minister has made an order under section 16. This is required to ensure that the new
mechanism does not result in an undesirable situation where a passport must be returned to
the person at the end of the 14 day surrender period and then immediately seized again if the
Minister has made an order under section 16.
Intelligence Services Act 2001
Item 132 - Paragraph 29(1)(ba)
1036. Amending item 132 repeals a spent provision in section 29(1)(ba) which requires the
PJCIS to review, as soon as possible after the third anniversary of the date on which the
Security Legislation Amendment (Terrorism Act) 2002 received Royal Assent, provisions of
security and counter-terrorism legislation amended or inserted by that Act. That review was
completed by the PJCIS on 4 December 2006.
Item 133 - Paragraph 29(1)(bb)
1037. Amending item 133 is consequential to amending item 33. It amends a requirement
in section 29(1)(bb) of the Intelligence Services Act that the PJCIS conducts a review of
Division 3 of Part III of the ASIO Act by 22 January 2016. The review requirement will now
be extended with the PJCIS to conduct a review by 22 January 2026. The Government is of
the view that it is appropriate this review be conducted shortly before the extended sunset
provision expires in 2026.
National Health Security Act 2007
Item 134 - Paragraph 89(1)(c)
1038. This item inserts a reference to Part 5.5 after the reference to Part 5.3 in
paragraph 89(1)(c) which provides an authorisation to used information in certain
proceedings. This amendment authorises the disclosure of protected information to a court of
tribunal or a coronial inquiry in certain circumstances for the purposes of proceedings under
new Part 5.5 of the Criminal Code. This is consistent with the situation in relation to
proceedings under Part 3 of the National Health Security Act 2007, the Crimes (Biological
Weapons) Act 1976, Part 5.3 of the Criminal Code, or any other prescribed law of the
Commonwealth or of a State or Territory.
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Item 135 - Paragraph 92(c)
1039. This item inserts a reference to Part 5.5 after the reference to Part 5.3 in
paragraph 92(c) which provides a defence to the offence in section 90. This amendment
provides that the offence relating to protected information in subsection 90(1) does not apply
if the record, disclosure or other use of the information is required or authorised under new
Part 5.5 of the Criminal Code. This is consistent with the situation where the record,
disclosure or other use of the information is required or authorised under Part 3 of the
National Health Security Act 2007, the Crimes (Biological Weapons) Act 1976, Part 5.3 of
the Criminal Code, or any other prescribed law of the Commonwealth or of a State or
Territory.
Proceeds of Crime Act 2002
Item 136 - Section 338 (definition of terrorism offence)
1040. This item repeals the existing definition of terrorism offence` in section 338 and
replaces it with a cross-reference to the definition in the Crimes Act. Currently, the definition
of terrorism offence in the Proceeds of Crime Act 2002 is limited to an offence against
Part 5.3 of the Criminal Code.
Sea Installations Act 1987
Item 137 - Schedule
1041. This item omits the reference to the Crimes (Foreign Incursions and Recruitment)
Act 1978 and is consequential to the repeal of that Act. As the offence and other provisions
of that Act are being relocated to a new Part 5.5 of the Criminal Code, it is not necessary to
include a reference to the Criminal Code in the Schedule as relevant sea installations in
adjacent areas would already be covered under the Criminal Code.
Telecommunications (Interception and Access) Act 1979
1042. The amendments to the TIA Act update the meaning of serious offence` in
subparagraph 5D(1)(e) to include a breach of a control order, and offences against
Subdivision B of Division 80 and Division 119 of the Criminal Code. The effect of the
amendments is to permit telecommunications interception warrants to be sought to assist in
the investigation of these additional serious offences.
Item 138 - After subparagraph 5D(1)(e)(i)
1043. This item inserts new subparagraph 5D(1)(e)(ia) into the definition of serious offence
after subparagraph 5D(1)(e)(i). New subparagraph 5D(1)(e)(ia) extends the meaning of
serious offence for the purposes of the TIA Act to include offences against Subdivision 80 of
the Criminal Code. The inclusion of the treason offences from the Criminal Code in the
definition of serious offence` is consistent with the seriousness of those offences, and allows
interception warrants to be sought to assist in the investigation of those offences.
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Item 139 - At the end of paragraph 5D(1)(e)
1044. This item inserts new paragraph 5D(1)(f) into the definition of serious offence after
paragraph 5D(1)(e). New paragraph 5D(1)(f) extends the meaning of serious offence for the
purposes of the TIA Act to include offences against section 104.27 and Division 119 of the
Criminal Code. The inclusion of contravening a control order offence and the foreign
incursions offences from the Criminal Code in the definition of serious offence` is consistent
with the seriousness of these offences, and allows interception warrants to be sought to assist
in the investigation of those offences.
Terrorism Insurance Act 2003
Item 140 - Section 3 (definition of terrorist act)
1045. This item repeals the existing definition of terrorist act in section 3 and replaces it
with a cross-reference to the definition in the Criminal Code. Currently, the definition of
terrorist act in the Terrorism Insurance Act 2003 replicates the definition in the Criminal
Code. This amendment will ensure consistency across Commonwealth legislation, including
in the event the definition of terrorist act in the Criminal Code is amended.
Item 141 - Section 5
1046. This item repeals the meaning of terrorist act set out in existing section 5 and is
consequential to the amendment to the definition in section 3.
Item 142 - Paragraph 8(2)(b)
1047. This item omits the reference to section 5 in paragraph 8(2)(b) and replaces it with a
reference to section 100.1 of the Criminal Code. This amendment is consequential to the
amendment to section 3.
Item 143 - Application of amendments
1048. This item provides that the amendments to the Terrorism Insurance Act outlined
above apply in relation to any terrorist act, whether the act occurred before, on or after the
commencement of this amendment.
Part 2 - Repeals
Crimes (Foreign Incursions and Recruitment) Act 1978
Item 144 - The whole of the Act
1049. This item repeals the Foreign Incursions Act. Item 110 inserts new Part 5.5--
Foreign incursions and recruitment` into the Criminal Code. New Part 5.5 contains offences
and other provisions based on the Foreign Incursions Act.
Item 145 - Transitional provision
1050. This item provides that despite the repeal of section 11 of the Foreign Incursions Act,
that section continues to apply after this item commences in relation to any certificate that is
in force under that section immediately before that repeal.
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Schedule 2 - Stopping welfare payments
1051. This Schedule amends the Family Assistance Act, the PPL Act, the Social Security
Act and the Social Security (Administration) Act to provide that welfare payments can be
cancelled for individuals whose passports have been cancelled or refused, or whose visas
have been cancelled, on national security grounds. This is to ensure that the Government
does not support individuals who are fighting or training with extremist groups.
1052. Currently, welfare payments can only be suspended or cancelled if the individual no
longer meets social security eligibility rules, such as participation requirements, and
residence or portability qualifications. The new provisions will require the cancellation of a
person`s welfare payment when the Attorney-General provides a security notice to the
Minister for Social Services. The Attorney-General will have discretion whether to issue a
security notice where either:
the Foreign Affairs Minister has notified the Attorney-General that the individual
has had their application for a passport refused or had their passport cancelled on
the basis that the individual would be likely to engage in conduct that might
prejudice the security of Australia or a foreign country, or
the Immigration Minister has notified the Attorney-General that an individual has
had their visa cancelled on security grounds.
1053. The Foreign Affairs Minister and the Immigration Minister will also have a discretion
whether to advise the Attorney-General of the passport or visa cancellation.
1054. Welfare payments will only be cancelled in circumstances where the receipt of
welfare payments was relevant to the assessed security risk posed by the individual and the
cancellation of welfare would not adversely impact the requirements of security. This is to
ensure that those individuals assessed to be engaged in politically motivated violence
overseas, fighting or actively supporting extremist groups are captured. It is not intended that
every person whose passport or visa has been cancelled on security grounds would have their
welfare payments cancelled, but would occur only in cases where it is appropriate and
justified.
Part 1 - Main Amendments
A New Tax System (Family Assistance) Act 1999
Item 1 - Subsection 3(1)
1055. This item inserts new subsection 3(1) to explain that the Foreign Affairs Minister
means the Minister administering the Passports Act, the Immigration Minister means the
Minister administering the Migration Act and that a security notice means a notice under
section 57GJ.
Item 2 - At the end of Part 3
1056. This item inserts new Division 7 Loss of family assistance for individuals on security
grounds` into Part 3 Eligibility for Family Assistance` of the Family Assistance Act.
Division 7 sets out how the welfare cancellation process will operate for family assistance for
individuals. Family assistance` is defined in section 3 of the Family Assistance Act to mean:
169
family tax benefit or
stillborn baby payment; or
child-care benefit; or
child care rebate; or
family tax benefit advance; or
single income family supplement; or
schoolkids bonus.
1057. However, new section 57GQ makes it clear that this Division does not apply to the
child care benefit or child care rebate.
Section 57GH Simplified outline of this Division
1058. This item inserts new section 57GH which provides a simplified outline at the start of
Division 7 which states: Individuals who might prejudice the security of Australia or a
foreign country may lose family assistance.` Division 7 sets out how the welfare cancellation
process operates for family assistance for individuals.
1059. While simplified outlines are included to assist readers to understand the substantive
provisions, the outlines are not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions.
Section 57GI Loss of family assistance for individuals on security grounds
1060. This item inserts new section 57GI, which provides that where a security notice is
given to the Minister for Social Services the individual who is the subject of the notice will
not be eligible for family assistance.
1061. New subsection 57GI(1) provides that where the Attorney-General provides the
Minister for Social Services with a security notice under section 57GJ, then while the notice
is in force the individual is not eligible to be paid family assistance nor is the individual
eligible for family assistance. Note 1 explains that a security notice is notice under section
57GJ of the Family Assistance Act. Note 2 confirms that this Division does not apply in
relation to the child care benefit or child care rebate as provided by section 57GQ of the
Family Assistance Act.
1062. New subsection 57GI (2) provides that if the Attorney-General gives a security notice
to the Minister for Social Services, then any determination that the individual is entitled to be
paid family assistance, that is in force immediately before the day the notice comes into
force, ceases to be in force on that day. This means that the day the notice comes into force
an individual will no longer be eligible for family assistance as prescribed in the notice.
1063. New subsection 57GI (3) clarifies that if the security notice ceases to be in force, then
the individual is not eligible for any family assistance for any day the notice was in force.
However, new subsection 57GI(4) provides that if a security notice given to the Minister for
Social Services in relation to an individual recommends that payments of family assistance of
the individual be paid to a payment nominee of the individual under Part 8B of the A New
Tax System (Family Assistance) (Administration) Act 1999, and apart from subsections
170
57GI(1) to (3), the individual would be eligible for the whole or a part of that family
assistance, then that whole or part may be paid to a payment nominee of the individual under
that Part. Part 8B of the Family Assistance Administration Act provides for the appointment,
payment and responsibilities of nominees. This provision enables payment to be made on
behalf of the individual but ensures that the individual does not receive the money. Instead, a
payment nominee will receive and distribute the money for purposes according to a written
direction by the Secretary under subsection 57GI(6). This ensures that where possible,
children of the individual (and other concerns under family assistance law) are not
detrimentally affected because of the individual`s conduct.
1064. New subsection 57GI(5) provides that if a person is to be appointed as the payment
nominee of the individual, then paragraph 219TD(2)(b) of the Family Assistance
Administration Act does not apply in relation to that appointment. This means that the
Secretary of DSS does not have to take into account the wishes (if any) of the individual in
appointing a nominee to receive the payment on the individual`s behalf, but instead can
appoint a nominee without consulting the individual. This provision recognises that in
practice it may be very difficult to contact the individual. It would also defeat the objective
of the reforms if the individual was able to direct who should receive the payment on their
behalf.
1065. Under subsection 57GI (6) where a person is appointed as the payment nominee of the
individual, section 219TN of the Family Assistance Administration Act does not apply in
relation to the nominee. Instead, any amount paid to the nominee on behalf of the individual
is to be applied by the nominee in accordance with a written direction given by the Secretary
under this subsection. This means that the payment nominee is not under a legal obligation to
act in the best interests of the individual. This is a reasonable measure to implement the
objective of the reforms.
1066. New subsection 57GI (7) provides that where a security notice is given to the Minister
for Social Services in relation to an individual who is aged 19 or less on the day the notice is
given then for any day while the notice is or was in force, the individual cannot be a Family
Tax Benefit (FTB) child of another individual, cannot be a regular care child of another
individual and cannot be a client of an approved care organisation. This means that a person
cannot be paid family assistance on behalf of an individual aged 19 or less who has been
classified as a security risk.
1067. New subsection 57GI (8) clarifies that subsections 57GI (1) to (7) have effect despite
any other provision of the family assistance law.
1068. New subsection 57GI (9) provides that where an individual ceases to be eligible for
family assistance because of subsection 57GI (2), the Secretary must cause reasonable steps
to be taken to notify the individual of the cessation. In practice, notifying individuals who
may be participating in overseas conflicts may not be possible.
Section 57GJ Security notice from Attorney-General
1069. This item inserts new section 57GJ which sets out what comprises a security notice
from the Attorney-General. Subsection 57GJ(1) specifies that the Attorney-General may give
the Minister for Social Services a written notice requiring that Division 7 apply to a specified
individual.
171
1070. There are two alternative limbs that may lead to the Attorney-General issuing a
notice. Only one of the limbs need apply.
1071. The first limb is under paragraph 57GJ (1)(a) which provides that the Foreign Affairs
Minister may give the Attorney-General a notice under section 57GK in relation to the
individual.
1072. The second limb is under paragraph 57GJ (1)(b) which provides that the Immigration
Minister may give the Attorney-General a notice under section 57GL in relation to the
individual.
1073. Upon receipt of a notice from either the Foreign Affairs Minister or the Immigration
Minister, the Attorney-General has discretion whether to provide a security notice to the
Minster for Social Services, and would take into account the requirements of security in
making that decision.
1074. New subsection 57GJ (2) provides that a notice under this section may recommend
that payments of family assistance of the individual, to the extent set out in the notice, be paid
to a payment nominee of the individual under Part 8B of the Family Assistance
Administration Act. Part 8B of the Family Assistance Administration Act is concerned with
the appointment, payment and responsibilities of nominees. This provision enables payment
to be made on behalf of the individual`s family but ensures that the individual does not
receive the benefit of any family assistance. This ensures that where possible, children of the
individual are not detrimentally affected because of the individual`s conduct.
Section 57GK Notice from Foreign Affairs Minister
1075. This item inserts new section 57GK which provides that the Foreign Affairs Minister
may give the Attorney-General a written notice notifying the Attorney-General that they have
either refused to issue an individual an Australian passport under subsection 14(2) of the
Passports Act, or cancelled an individual`s Australian passport under section 22 of the
Passports Act. The refusal or cancellation must have been made in response to a competent
authority request under subsection 14(1) of that Act, and the request must have been made on
the basis of the matter referred to in subparagraph 14(1)(a)(i) of that Act, namely that the
person would be likely to engage in conduct that might prejudice the security of Australia or
a foreign country.
1076. It is not intended that every decision to refuse to issue an Australian passport under
subsection 14(2) or to cancel an Australian passport under section 22 of the Passports Act
will result in a notice being given to the Attorney-General. Rather, the Foreign Affairs
Minister has a discretion to give a notice. The decision to give a notice would be guided by
security advice.
Section 57GL Notice from Immigration Minister
1077. This item inserts new section 57GL which provides that the Immigration Minister
may give the Attorney-General a written notice notifying the Attorney-General that they have
cancelled an individual`s visa under section 116, 128, 134B or 501 (where ASIO has assessed
the individual is directly or indirectly a risk to security) of the Migration Act. It is not
intended that every decision to cancel a visa will result in a notice being given to the
172
Attorney-General under section 57GL. The Immigration Minister has discretion to give a
notice under this section. This decision would be guided by security advice.
Section 57GM Copy of security notice to be given to Secretaries
1078. This item inserts new section 57GM which provides that the Minister for Social
Services must give a copy of a security notice to the Secretary of the Department of Social
Services (DSS) and the Secretary of the Department of Human Services (DHS). This is to
ensure that welfare cancellation can occur as expeditiously as possible.
Section 57GN Period security notice in force
1079. This item inserts new section 57GN which provides that a security notices comes into
force on the day it is given to the Minister for Social Services and remains in force until
revoked. The criteria for revoking a notice are set out in section 57GO.
Section 57GO Revoking a security notice
1080. This item inserts new section 57GO which provides that the Attorney-General may
revoke a security notice they have given. The revocation must be in writing, and it takes
effect on the day it is made. The Attorney-General must provide written notice of a decision
to revoke a security notice to the Minister for Social Services who must then give a copy of
the notice to the Secretary of DSS and the Secretary of DHS. The Attorney-General`s
discretion to revoke a security notice would be guided by security advice. New subsection
57GO (4) provides that where a security notice has been revoked that the Secretary of DSS
must cause reasonable steps to be taken to notify the individual of the revocation.
Section 57GP Notices may contain personal information
1081. This item inserts new section 57GP which clarifies that a notice under Division 7 may
contain personal information (within the meaning of the Privacy Act 1988) about the
individual.
Section 57GQ This Division does not apply to child care benefit or child care rebate
1082. This item inserts new section 57GQ which clarifies that Division 7 does not apply to
the child care benefit or child care rebate. It is not the intention that payments that encourage
workforce participation, studying or training be included. These payments require that the
recipient satisfy the work, training, study test.
Section 57GR Certain decisions not decisions of officers
1083. This item inserts new section 57GR which provides that for the purposes of Part 5 of
the Family Assistance Administration Act, decisions under this Division, any decision under
Part 8B of the Family Assistance Administration Act that is, or is related to, a decision to pay,
or not to pay, an amount of family assistance as mentioned in new subsection 57GI (4) of the
Family Assistance Act, are taken not to be decisions of an officer under the family assistance
law. This means that the reviewability of decisions made under this Division is limited for
security reasons as decisions will not be reviewable under Part 5 of the Family Assistance
Administration Act.
173
Section 57GS Instruments not legislative instruments
1084. This item inserts new section 57GS which provides that a notice under this Division
or a direction under new subsection 57GI(6) is not a legislative instrument. This provision is
included to assist readers, as the instrument is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act.
Paid Parental Leave Act 2010
Item 3 - Section 6
1085. This item inserts at section 6 of the PPL Act, three definitions to explain that the
Foreign Affairs Minister means the Minister administering the Passports Act, the
Immigration Minister means the Minister administering the Migration Act and that security
notice` means a notice under section 278C.
Item 4 - At the end of Part 6-1
1086. This item inserts new Division 5 Loss of parental leave pay or dad and partner pay
for persons on security grounds` into Part 6-1 How this Act applies in particular
circumstances` of the PPL Act. Division 5 sets out the process for payment cancellation on
security grounds for parental leave pay or dad and partner pay. Parental leave pay` and dad
and partner pay` are defined in section 6 of the PPL Act.
Section 278A Simplified outline of this Division
1087. This item inserts new section 278A which provides a simplified outline at the start of
Division 5 which states: Persons who might prejudice the security of Australia or a foreign
country may lose parental leave pay or dad and partner pay.` Division 5 sets out how the
cancellation process operates for these payments.
1088. While simplified outlines are included to assist readers to understand the substantive
provisions, the outlines are not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions.
Section 278B Loss of parental leave pay or dad and partner pay for persons on
security grounds
1089. This item inserts new section 278B, which provides that where a security notice is
given to the Minister for Social Services the individual the subject of the notice will not be
eligible for parental leave pay or dad and partner pay.
1090. New subsection 278B(1) provides that if a security notice (as set out in section 278C
of the PPL Act) is provided by the Attorney-General to the Minister for Social Services, then
while the notice is in force the individual is not eligible for, and is not to be paid parental
leave pay or dad and partner pay. The Note explains that a security notice is a notice under
section 278C of the PPL Act).
1091. New subsection 278B(2) provides that if:
a security notice is given to the Minister, and
174
a payability determination providing the individual is entitled to be paid parental
leave pay or dad and partner pay is in force at the end of the day (the relevant day)
before the day the notice is given, and
the day the notice is given is in the person`s paid parental leave period, or dad and
partner pay period,
the determination is taken to be varied so that the person`s paid parental leave period or dad
and partner pay period ends at the relevant day. This means that parental leave pay or dad
and partner pay is only payable to the person for a shortened period which ends the day
before the security notice is given.
1092. New subsection 278B(3) clarifies that if the security notice ceases to be in force, then
the individual is not eligible for any parental leave pay or dad and partner pay for any day the
notice was in force.
1093. Subsection 278B(3) will also prevent payability in the future for a person who has not
claimed parental leave pay by the day the security notice is given. This is due to the
requirement that to be payable, primary claimants must be eligible on each day from the day
the child is born until the end of the PPL period.
1094. New subsection 278B(4) clarifies that subsections 278B(1) to (3) have effect despite
any other provision of the PPL Act.
1095. New subsection 278B(5) provides that where a payability determination is varied by
subsection 278B(2), the Secretary of DSS must cause reasonable steps to be taken to notify
the individual of the variation.
Section 278C Security notice from Attorney-General
1096. This item inserts new section 278C which specifies that the Attorney-General may
give the Minister for Social Services a written notice requiring that Division 5 apply in
relation to a specified person.
1097. There are two alternative limbs that may lead to the Attorney-General issuing a
notice. Only one of the limbs needs to apply.
1098. The first limb is under paragraph 278C(a) whereby the Foreign Affairs Minister may
give the Attorney-General a notice under section 278D in relation to the person.
1099. The second limb is under paragraph 278C(b) whereby the Immigration Minister may
give the Attorney-General a notice under section 278E in relation to the person.
1100. Upon receipt of a notice from the Foreign Affairs Minister or the Immigration
Minister, the Attorney-General has discretion as to whether to provide a security notice to the
Minster for Social Services or not, and would take into account the requirements of security
in making that decision.
Section 278D Notice from Foreign Affairs Ministers
1101. This item inserts new section 278D which provides that the Foreign Affairs Minister
may give the Attorney-General a written notice notifying the Attorney-General that they have
either refused to issue an individual an Australian passport under subsection 14(2) of the
175
Passports Act, or cancelled an individual`s Australian passport under section 22 of the
Passports Act. The refusal or cancellation must have been made in response to a competent
authority request under subsection 14(1) of that Act, and the request was made on the basis of
the matter referred to in subparagraph 14(1)(a)(i) of that Act, namely that the person would
be likely to engage in conduct that might prejudice the security of Australia or a foreign
country. It is not intended that every decision to refuse to issue an Australian passport under
subsection 14(2) or to cancel an Australian passport under section 22 of the Passports Act
will result in a notice being given to the Attorney-General. Rather, the Foreign Affairs
Minister has a discretion to give a notice. The decision to give a notice would be guided by
security advice.
Section 278E Notice from Immigration Minister
1102. This item inserts new section 278E which provides that the Immigration Minister may
give the Attorney-General a written notice notifying the Attorney-General that they have
cancelled an individual`s visa under section 116, 128, 134B or 501 (where ASIO has assessed
the individual is directly or indirectly a risk to security) of the Migration Act. It is not
intended that every decision to cancel a visa will result in a notice being given to the
Attorney-General under section 278E. The Immigration Minister has a discretion to give a
notice under this section. This decision would be guided by security advice.
Section 278F Copy of security notice to be given to Secretaries
1103. This item inserts new section 278F which provides that the Minister for Social
Services must give a copy of a security notice to the Secretary of DSS and the Secretary of
DHS.
Section 278G Period security notice in force
1104. This item inserts new section 278G which provides that a security notices comes into
force on the day it is given to the Minister for Social Services and remains in force until
revoked. The criteria for revoking a notice are set out in section 278H.
Section 278H Revoking a security notice
1105. This item inserts new section 278H which provides that the Attorney-General may
revoke a security notice they have given. The revocation must be in writing, and it takes
effect on the day it is made. The Attorney-General must provide written notice of a decision
to revoke a security notice to the Minister for Social Services who must then give a copy of
the notice to the Secretary of DSS and the Secretary of DHS. The Attorney-General`s
discretion to revoke a security notice would be guided by security advice. Subsection
278H(4) provides that where a person`s payability determination was varied by subsection
278B(2) and a security notice has been revoked, the Secretary of DSS must cause reasonable
steps to be taken to notify the individual of the revocation.
Section 278J Notices may contain personal information
1106. This item inserts new section 278J which clarifies that a notice under Division 5 in
relation to a person may contain personal information (within the meaning of the Privacy Act
1988) about the person.
176
Section 278K Decisions under Division not decisions of officers
1107. This item inserts new section 278K which provides that for the purposes of Chapter 5
of the PPL Act Review of decisions`, a decision under Division 5 is taken not to be a
decision of an officer under this Act. This means that the decision is not reviewable under
the provisions of the PPL Act.
Section 278L Notices not legislative instruments
1108. This item inserts new section 278L which provides that a notice under this Division is
not a legislative instrument. This provision is included to assist readers, as the instrument is
not a legislative instrument within the meaning of section 5 of the Legislative Instruments
Act.
Social Security Act 1991
Item 5 - Definitions
1109. This item inserts three definitions into subsection 23(1) of the Social Security Act to
explain that the Foreign Affairs Minister means the Minister administering the Passports Act,
the Immigration Minister means the Minister administering the Migration Act and that a
security notice` means a notice under section 38N.
Item 6 - After Part 1.3A of Chapter 1
1110. This item inserts new Part 1.3B Loss of social security payments and concessions for
persons on security grounds` into the Social Security Act.
Section 38L Simplified outline of this Part
1111. This item inserts new section 38L which provides a simplified outline at the start of
Part 1.3B that states: Persons who might prejudice the security of Australia or a foreign
country may lose social security payments or concession cards.` Part 1.3B sets out how the
welfare cancellation process operates for social security payments for individuals. Social
security payments are defined in section 23 of the Social Security Act to mean:
a social security pension; or
a social security benefit; or
an allowance under this Act; or
any other kind of payment under Chapter 2 of this Act; or
a pension, benefit or allowance under the 1947 Act.
1112. While simplified outlines are included to assist readers to understand the substantive
provisions, the outlines are not intended to be comprehensive. It is intended that readers
should rely on the substantive provisions.
177
Section 38M Loss of social security payments and concessions for persons on
security grounds
1113. This item inserts new section 38M which provides that where a security notice is
given to the Minister for Social Services the individual the subject of the notice may lose
social security payments or concession cards.
1114. New subsection 38M(1) provides that if a security notice (as set out in section 38N) is
provided by the Attorney-General to the Minister for Social Services in relation to a person,
then while the notice is in force no social security payment is to be paid to the person, they
are not qualified for a social security payment, a social security payment is not payable to the
person and they are not qualified for a concession card. The Note explains that a security
notice is a notice under section 38N.
1115. New subsection 38M(2) provides that if a security notice is given to the Minister in
relation to a person, then any social security payment of the person is taken to be cancelled on
the day the notice comes into force.
1116. New subsection 38M(3) provides that if a security notice is given to the Minister in
relation to a person, then any concession card the person holds is taken to be cancelled on the
day the notice comes into force.
1117. New subsection 38M(4) provides that for any day the security notice is in force the
person is not qualified for a social security payment, a social security payment is not payable
to the person and the person is not qualified for a concession card. New subsection 38M(5)
clarifies that subsections 38M(1) to (4) have effect despite any other provision of the social
security law.
1118. New subsection 38(6) provides that if a social security payment of a person is
cancelled by subsection 38M(2) or a person`s concession card is cancelled by subsection
38M (3), the Secretary of DSS must cause reasonable steps to be taken to notify the person of
the cancellation.
Section 38N Security notice from Attorney-General
1119. This item inserts new section 38N which sets out what comprises a security notice
from the Attorney-General. Section 38N specifies that the Attorney-General may give the
Minister for Social Services a written notice requiring that Part 1.3B apply in relation to a
specified person.
1120. There are two alternative limbs that may lead to the Attorney-General issuing a
notice. Only one of the limbs needs to apply.
1121. The first limb is under paragraph 38N(a) whereby the Foreign Affairs Minister may
give the Attorney-General a notice under section 38P in relation to the person.
1122. The second limb is under subsection 38N (b) whereby the Immigration Minister may
give the Attorney-General a notice under section 38Q in relation to the person.
1123. Upon receipt of a notice from the Foreign Affairs Minister or the Immigration
Minister, the Attorney-General has discretion as to whether to provide a security notice to the
178
Minster for Social Services or not, and would take into account the requirements of security
in making that decision.
Section 38P Notice from Foreign Affairs Minister
1124. This item inserts new section 38P which provides that the Foreign Affairs Minister
may give the Attorney-General a written notice notifying the Attorney-General that they have
either refused to issue an individual an Australian passport under subsection 14(2) of the
Passports Act, or cancelled an individual`s Australian passport under section 22 of the
Passports Act. The refusal or cancellation must have been made in response to a competent
authority request under subsection 14(1) of that Act, and the request was made on the basis of
the matter referred to in subparagraph 14(1)(a)(i) of that Act, namely that the person would
be likely to engage in conduct that might prejudice the security of Australia or a foreign
country. It is not intended that every decision to refuse to issue an Australian passport under
subsection 14(2) or to cancel an Australian passport under section 22 of the Passports Act
will result in a notice being given to the Attorney-General. Rather, the Foreign Affairs
Minister has discretion to give a notice. The decision to give a notice would be guided by
security advice.
Section 38Q Notice from Immigration Minister
1125. This item inserts new section 38Q which provides that the Immigration Minister may
give the Attorney-General a written notice notifying the Attorney-General that they have
cancelled an individual`s visa under section 116, 128, 134B or 501 (where ASIO has assessed
the individual is directly or indirectly a risk to security) of the Migration Act. It is not
intended that every decision to cancel a visa will result in a notice being given to the
Attorney-General under section 38Q. The Immigration Minister has discretion to give a
notice under this section. This decision would be guided by security advice.
Section 38R Copy of security notice to be given to Secretaries
1126. This item inserts new section 38R which provides that the Minister for Social
Services must give a copy of a security notice to the Secretary of DSS and the Secretary of
DHS.
Section 38S Period security notice in force
1127. This item inserts new section 38S which provides that a security notice comes into
force on the day it is given to the Minister for Social Services and remains in force until
revoked. The criteria for revoking a notice are set out in section 38T.
Section 38T Revoking a security notice
1128. This item inserts new section 38T which provides that the Attorney-General may
revoke a security notice they have given. The revocation must be in writing, and it takes
effect on the day it is made. The Attorney-General must provide written notice of a decision
to revoke a security notice to the Minister for Social Services who must then give a copy of
the notice to the Secretary of DSS and the Secretary of DHS. The Attorney-General`s
discretion to revoke a security notice would be guided by security advice. Subsection 38T(4)
provides that where a social security payment of a person is cancelled by subsection 38M (2)
179
and the Attorney-General revokes the security notice concerned, the Secretary of DSS must
cause reasonable steps to be taken to notify the individual of the revocation.
Section 38U Notices may contain personal information
1129. This item inserts new section 38U which clarifies that a notice under Part 1.3B in
relation to a person may contain personal information (within the meaning of the Privacy Act
1988) about the person.
Section 38V Decisions under Part not decisions of officers
1130. This item inserts new section 38V which clarifies that a decision made under Part
1.3B is taken not to be a decision of an officer under the social security law for the purposes
of Part 4 of the Social Security (Administration) Act Review of Decisions`. This is because
it is the Ministers, as part of the Executive Government, (and not government officials)
making the decision to require the cancellation of welfare payments.
Section 38W Notices not legislative instruments
1131. This item inserts new section 38W which provides that a notice under this Part is not a
legislative instrument. This provision is included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act.
Social Security (Administration) Act 1999
Item 7 - Before paragraph 123(1)(c)
1132. This item inserts a new ground into section 123 of the Social Security
(Administration) Act that provides that a determination that a person`s claim for a social
security payment is granted or a social security payment is payable to a person continues in
effect until the payment is cancelled under section 38M of the Social Security Act.
Part 2 - Other amendments
Administrative Decisions (Judicial Review) Act 1977
Item 8 - After paragraph (c) of Schedule 2
1133. This item amends Schedule 2 of the ADJR Act so that decisions made in relation to
welfare cancellation are reviewable, but section 13 of that Act will not apply to those
decisions. This means that the decisions of the Foreign Affairs Minister, Immigration
Minister and Attorney-General to issue notices will be reviewable under the ADJR Act, but
there will be no requirement to provide reasons for the decision. This is because the decision
to issue the notices will be based on security advice which may be highly classified and could
include information that if disclosed to an applicant may put Australia`s security at risk.
1134. Furthermore, given that any decision by the Attorney-General to cancel welfare
payments is triggered by the cancellation of a visa or the cancellation of, or refusal to issue an
Australian passport, an individual will be able to seek review of the decision to cancel a visa
or the cancellation of, or refusal to issue, a passport. This would include merits review under
AAT Act of an adverse security assessment made by ASIO in support of those decisions.
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1135. The exclusion of these decisions from ADJR Act review does not prevent the
decisions from being judicially reviewed under section 39B of the Judiciary Act 1903 or
paragraph 75(v) of the Constitution.
Part 3 - Application provisions
Item 9 - Application provisions
1136. This Part sets out the application provisions for the Bill. Items 1-3 relates to affected
payments and concessions. Items 4-5 relate to Ministerial notices.
1137. Item 1 provides that new section 57GI of the Family Assistance Act is to apply in
relation to any family assistance of a person, whether the person became eligible for that
assistance before, on or after the commencement of this item.
1138. Item 2 provides that new section 278B of the PPL Act is to apply in relation to
parental leave pay or dad and partner pay of a person, whether the person became eligible for
that pay before, on or after commencement of this item.
1139. Item 3 provides that new section 38M of the Social Security Act is to apply in relation
to a social security payment of a person, whether the person qualified for that payment
before, on or after the commencement of this item, and in regards to a concession card of a
person, whether that card was issued before, on or after the commencement of this item.
1140. Item 4 provides that new paragraphs 57GK(a) of the Family Assistance Act, 278D(a)
of the PPL Act and 38P(a) of the Social Security Act are to apply in relation to the refusal to
issue, or the cancellation of, a passport before, on or after the commencement of this item.
1141. Item 5 provides that new paragraphs 57GL(a) and (c) of the Family Assistance Act,
278E(a) and (c) of the PPL Act and 38Q(a) and (c) of the Social Security Act, are to apply in
relation to the cancellation of a visa, or an assessment made, before, on or after the
commencement of this item.
1142. The purpose of these provisions applying before, on and after commencement of this
Act is to ensure that the provisions apply to and appropriately capture those individuals who
have already had a visa cancelled or a passport refused or cancelled, and who may already be
fighting overseas in foreign conflicts.
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Schedule 3 - Customs' detention powers
Customs Act 1901
Item 1 - Section 219ZJA
1143. This item amends section 219ZJA to insert a new definition for the purposes of
Division 1BA of Part XII of the Customs Act. The definition is national security. This term
has the same meaning as in the National Security Information (Criminal and Civil
Proceedings) Act 2004 which is Australia's defence, security, international relations or law
enforcement interests.
Item 2 - Section 219ZJA (definition of serious Commonwealth offence)
1144. This item repeals and substitutes the definition of serious Commonwealth offence for
the purposes of Division 1BA of Part XII of the Customs Act. Currently this definition is
linked to the definition of this term in section 15GE of the Crimes Act, which is limited to
offences that relate to specified subject matters and that is punishable by imprisonment for 3
years or more. The new definition will mean an offence against a law of the Commonwealth
that is punishable on conviction by imprisonment for 12 months or more. Therefore, the
detention powers in section 219ZJB will be able to be exercised in relation to a greater range
of Commonwealth offences.
Item 3 - Paragraph 219ZJB(1)(b)
1145. This item amends paragraph 219ZJB(1)(b) by extending its operation to where a
person is intending to commit a serious Commonwealth offence.
1146. At present, section 219ZJB of the Customs Act empowers officers of Customs to
detain persons in a designated place (which includes an international airport or seaport) in
certain circumstances. Under section 219ZJB, a person can be detained if an officer has
reasonable grounds to suspect that a person has committed, or is committing, a serious
Commonwealth offence or a prescribed State or Territory offence.
1147. In exercising these powers, the current thresholds whereby an officer of Customs can
detain a person if the officer has reasonable grounds to suspect that the person has
committing or is committing a serious Commonwealth offence may result in situations where
despite information received from partner agencies or the behaviour or documentation
presented by the passenger, detention may not be possible.
1148. It is therefore proposed to extend the operation of section 219ZJB to include where an
officer has reasonable grounds to suspect that a person is intending to commit a serious
Commonwealth offence.
Item 4 - Subsection 219ZJB(3)
1149. This item amends subsection 219ZJB(3) to replace the statutory requirement that a
person detained under section 219ZJB be delivered into the custody of a police officer with
the requirement that the person be made available. This amendment reflects current practice
whereby the person is made available to a police officer from Customs` detention.
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Item 5 - Subsection 219ZJB(4)
1150. This item amends subsection 219ZJB(4) by extending its operation to where a person
is intending to commit a Commonwealth offence, as a consequence of the amendment in
item 3. Under subsection 219ZJB(4), an officer must release a person from detention
immediately where the original grounds for the detention cease. This amendment extends
this obligation to where an officer ceases to have reasonable grounds to suspect a person is
intending to commit a serious Commonwealth offence.
Item 6 - Subsection 219ZJB(5)
1151. This item amends subsection 219JZB(5) by increasing the time period mentioned in
this section from 45 minutes to 4 hours.
1152. Under current subsection 219ZJB(5), if a person is detained for a period of greater
than 45 minutes, the person has the right to have a family member or another person notified
of the person`s detention. However, under subsection 219ZJB(7) of the Customs Act, an
officer may refuse to notify a family member or other person if the officer believes on
reasonable grounds that the notification should not be made to safeguard law enforcement
processes or to protect the life and safety of another person.
1153. It is considered that there may also be vulnerabilities with regard to the time and
opportunity for the officer of Customs to undertake sufficient enquiries once a person is
detained, especially in order to determine whether the notification to a family member or
other person should or should not be made. Therefore, it is proposed to amend
subsection 219ZJB(5) to increase the timeframe from 45 minutes to 4 hours.
Item 7 - Paragraphs 219ZJB(7)(a) and 219ZJC(6)(a)
1154. As referred to above, under subsection 219ZJB(7) of the Customs Act, an officer may
refuse to notify a family member or other person if the officer believes on reasonable grounds
that the notification should not be made to safeguard law enforcement processes or to protect
the life and safety of another person.
1155. This item amends paragraph 219ZJB(7)(a) to include additional circumstances that an
officer may take into account in deciding whether the notification should or should not be
made. These are to safeguard national security (as defined above) or the security of a foreign
country.
1156. Under section 219ZJC of the Customs Act, an officer of Customs may detain a person
in a designated place if there is a warrant for the arrest of a person in relation to a
Commonwealth offence or prescribed State and Territory offence or the person is on bail in
relation to such an offence subject to a condition that prevents the person from leaving
Australia. This power may only be exercised if the officer of Customs has reasonable
grounds to suspect that the person intends to leave the designated place.
1157. Section 219ZJC contains similar provisions to section 219ZJB including the person
having the a right to have a family member or another person notified of the person`s
detention if a person is detained for a period of greater than 45 minutes. Similar to subsection
219ZJB(7), subsection 219ZJB(6) provides that an officer may refuse to notify a family
member or other person if the officer believes on reasonable grounds that the notification
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should not be made to safeguard law enforcement processes or to protect the life and safety of
another person.
1158. This item also amends paragraph 219ZJB(6)(a) to include additional circumstances
that an officer may take into account in deciding whether the notification should or should
not be made. These are to safeguard national security (as defined above) or the security of a
foreign country.
Item 8 - At the end of Subdivision B of Division 1BA of Part XII
1159. This item inserts new section 219ZJCA into Part XII of the Customs Act. This new
section sets out additional circumstances in which an officer of Customs can detain a person
in a designated place.
1160. The current detention powers in section 219ZJB and 219ZJC only apply in respect of
Commonwealth offences and prescribed State and Territory offences. However, recent
national security incidents have highlighted the need for a broader set of circumstances in
which a detention power can be exercised at the border environment. These broader
circumstances, which relate to national security issues, are set out in new section 219ZJCA.
1161. New subsection 219JZCA(1) provides that an officer of Customs may detain a person
if the person is in a designated place and the officer suspects on reasonable grounds that the
person is, or is likely to be, involved in an activity that is a threat to national security or the
security of a foreign country. National security is defined in the new definition in section
219ZJA.
1162. New subsection 219ZJCA(2) provides that the detaining officer must ensure that the
detainee made available, in person, to a police officer as soon as practicable to be dealt with
according to law.
1163. The remaining provisions of new section 219ZJCA are similar in operation to the
remaining provisions of section 219ZJB as proposed to be amended as set out above. For
example, subsection 219ZJCA(4) sets out the circumstances in which an detained person
must be released from detention by an officer. Also, under subsection 219ZJCA(5), if a
person is detained for a period of greater than 4 hours, the person has the right to have a
family member or another person notified of the person`s detention. However, under
subsection 219ZJCA(7), an officer may refuse to notify a family member or other person if
the officer believes on reasonable grounds that the notification should not be made to
safeguard national security (as defined above) or the security of a foreign country, law
enforcement processes or to protect the life and safety of another person.
Item 9 - At the end of subsection 219ZJD(1)
1164. This item amends subsection 219ZJD(1) to insert a new circumstance in which a
search of a detained person may be conducted under section 219ZJD. Under this section, a
frisk or ordinary search of a detained person may be undertaken as well as a search of any
clothing worn by the person and any property under the person`s immediate control.
However, these searches may only be undertaken if the officer believes on reasonable
grounds that the search is necessary for specified purposes.
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1165. This item will insert a new purpose in relation to a person detained under new section
219ZJCA, being to prevent the concealment, loss or destruction of material of interest for
national security or the security of a foreign country.
Item 10 - At the end of paragraph 219ZJD(3)(b)
1166. Under subsection 219ZJD(3), an officer may seize any relevant thing found as a result
of a search conducted under subsection 219ZJD(1).
1167. This item will insert a reference to anything that is of interest for national security or
the security of a foreign country, thus allowing these things to also be seized if found under
the new search power set out in item 9.
Item 11 - Subsection 219ZJD(4)
1168. Under subsection 219ZLD(4), anything that is seized under subsection 219ZJD(3)
must be delivered to the police officer into whose custody a detainee is required to be
delivered under subsections 219ZJB(3) or 219ZJC(3).
1169. This item will extend this requirement in relation to the new detention power under
section 219ZJCA, such that anything seized under new paragraph 219ZJD(3)(b) must be
made available the police officer to whom the person is required to be made available under
new subsection 219JZCA(2). This item will also reflect the changes made to section
219ZJB(3) above.
Item 12 - Subsection 219ZJF(1)
1170. Subsection 219ZJF(1) provides that a person detained under section 219ZJB or
219ZJC must be informed of the reason for their detention. The amendments in this item will
ensure that this obligation does not apply in relation to a person detained under new section
219ZJCA because it is not considered appropriate that a person be given reasons for their
detention under section 219ZJCA at this point.
Item 13 - Subparagraph 219ZJJ(1)(b)(iv)
1171. Subsection 219ZJJ(1) of the Customs Act sets out additional obligations in relation to
a detained person who is known or believed to be a minor. A minor is considered to be any
person under the age of 18 years. The amendment in this item will ensure that this obligation
does not apply in relation to a minor detained under new section 219ZJCA because it is not
considered appropriate that a person be given reasons for their detention under section
219ZJC at this point.
Item 14 - Paragraph 219ZJJ(2)(a)
1172. Under subsection 219ZJJ(1), one of the obligations is to inform the minor of the right
to have a parent or guardian notified of the minor`s detention.
1173. Similar to current subsection 219ZJB(6), subsection 219ZJJ(2) provides that an
officer may refuse to notify a family member or other person if the officer believes on
reasonable grounds that the notification should not be made to safeguard law enforcement
processes or to protect the life and safety of another person.
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1174. Similar to item 7 above, this item amends paragraph 219ZJJ(2)(a) to include
additional circumstances that an officer may take into account in deciding whether the
notification should or should not be made. These are to safeguard national security (as
defined above) or the security of a foreign country.
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Schedule 4 - Cancelling visas on security grounds
Part 1 - Amendment of the Migration Act 1958
Division 1 - Amendments
1175. This Schedule creates a new obligation on the Minister for Immigration to cancel a
visa held by a non-citizen who is outside Australia. These amendments will strengthen the
government`s capacity to proactively mitigate security risks posed by individuals located
offshore who may be seeking to travel to Australia and might be planning to engage in
activities of security concern.
1176. The obligation to cancel the visa will arise if the ASIO suspects that the person might
be a risk to security and recommends cancellation of the person`s visas. The power would be
used in circumstances where ASIO suspects that a person located offshore may pose a risk to
security but has either insufficient information and/or time to furnish a security assessment in
advance of the person`s anticipated travel. It will enable ASIO to furnish a security
assessment where it suspects the person might be, directly or indirectly a risk to security and
require the Minister to cancel the visa/s held by the person for a temporary and limited period
of 28 days.
1177. The visa cancellation would be revoked where ASIO, after further consideration,
recommends the cancellation be revoked or if ASIO does not provide an adverse security
assessment that the person is, directly or indirectly, a risk to security within the 28 day
period.
1178. The Migration Act currently permits or requires visa cancellation on a range of
grounds, including grounds related to character and behaviour. One basis for visa
cancellation is that the holder of a visa is assessed by ASIO to be a risk, directly or indirectly,
to security as defined in section 4 of the ASIO Act. Cancellation on this ground can occur
under section 116 and section 128, on the basis of the prescribed is a risk to security` ground
for cancellation at paragraph 2.43(1)(b) of the Migration Regulations. The visa could
potentially also be cancelled under the general character test` grounds in section 501.
1179. Under the existing provisions, the consequence of an ASIO assessment of is a risk to
security`, for a visa holder who is outside Australia, is that the Minister must cancel the visa.
Cancellation is mandatory for both temporary and permanent visas. For example, a
permanent visa holder may have resided in Australia for several years. If that person departs
Australia and, as a consequence of the person`s activities overseas, is assessed by ASIO to be
a risk to security, the visa must be cancelled. The visa can be cancelled with notice (under
section 116) or without notice (under section 128).
1180. The existing provisions do not adequately provide for a situation where ASIO has
information that indicates a person located outside Australia may be a risk to security but is
unable to furnish a security assessment that meets existing legal thresholds in the Migration
Act due to insufficient information and/or time constraints linked to the nature of security
threat.
1181. The Bill will insert new Subdivision FB - Emergency cancellation on security
grounds, providing for mandatory cancellation if ASIO suspects that the person might be,
directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act).
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The cancellation will be revoked where ASIO furnishes a security assessment within the 28
day period that recommends the Minister revoke the cancellation. The cancellation will also
be revoked at the end of the 28 day period unless ASIO issues an assessment that the person
is directly or indirectly a risk to security and that recommends that the person`s visa
cancellation not be revoked.
Item 1 - Subsection 5(1)
1182. This item inserts definitions of ASIO`, ASIO Act` and assessment`. ASIO` is
defined to mean the Australian Security Intelligence Organisation. ASIO Act` is defined to
mean the Australian Security Intelligence Organisation Act 1979. The definition of
assessment`, in relation to ASIO, is stated to be the same as the definition of assessment` in
section 35 of the ASIO Act.
1183. Section 35 of the ASIO Act defines assessment` as: a statement in writing furnished
by the Organisation to a Commonwealth agency expressing any recommendation, opinion or
advice on, or otherwise referring to, the question whether it would be consistent with the
requirements of security for prescribed administrative action to be taken in respect of a
person or the question whether the requirements of security make it necessary or desirable
for prescribed administrative action to be taken in respect of a person, and includes any
qualification or comment expressed in connection with any such recommendation, opinion or
advice, being a qualification or comment that relates or that could relate to that question.
Item 2 - Subsection 33(10)
1184. This item inserts a reference to Subdivision FB in existing subsection 33(10) of the
Migration Act. The purpose of this amendment is to exclude special purpose visas from the
new visa cancellation power in Subdivision FB. Special purpose visas are taken to have been
granted to a person who has a prescribed status. Examples include airline crew and members
of various armed forces and naval forces. Visa cancellation powers are not applicable to this
type of visa. If a security concern arose in relation to the holder of a special purpose visa, the
visa could be terminated by the Minister making a declaration under subsection 33(9) of the
Migration Act.
Item 3 - Before paragraph 118(d)
1185. This item inserts a new paragraph (cc) into existing section 118. New paragraph
118(cc) ensures that the new cancellation power in section 134B does not limit, and is not
limited by, any other cancellation power in the Migration Act.
Item 4 - Before Subdivision G of Division 3 of Part 2
1186. This item inserts a new Subdivision FB - Emergency cancellation on security
grounds. The Subdivision comprises sections 134A to 134F.
1187. New section 134A provides that the rules of natural justice do not apply to a decision
made under this Subdivision. The section puts beyond doubt that there are no natural justice
requirements applicable to the exercise of the emergency cancellation power in section 134B.
This is already apparent from the terms of section 134B, which provide that cancellation is
mandatory once ASIO issues an assessment for the purpose of the section.
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1188. New section 134B imposes a duty on the Minister to cancel all visas held by a person
who is outside Australia if ASIO provides an assessment, made for the purposes of the
section, which advises that ASIO suspects that the person might be, directly or indirectly, a
risk to security within the meaning of section 4 of the ASIO Act, and which recommends that
all visas held by the person be cancelled. The definition of security` in the ASIO Act
includes reference to the protection of Australians from such matters as espionage, sabotage,
politically motivated violence, promotion of communal violence, attacks on Australia`s
defence system and acts of foreign interference, as well as the protection of Australia`s
territorial and border integrity from serious threats.
1189. The key feature of the new cancellation power in section 134B is that the threshold
for visa cancellation on security grounds in paragraph 134B(b) (ASIO suspects that the
person might be a risk) is lower than the existing threshold in migration legislation (is a
risk).
1190. The existing threshold is set out at paragraph 2.43(1)(b) of the Migration Regulations,
where it is a prescribed ground for cancellation under section 116 and section 128 of the
Migration Act. The lower threshold is provided to cater for emergency situations where a
person may be planning to travel to Australia and might present a risk to security. Visa
cancellation under this power will allow ASIO further time to assess whether the person is a
risk, while the person remains outside Australia, rather than having to deal with the person in
Australia. The exclusive focus on visa holders outside Australia is reflected in paragraph
134B(d) which limits the cancellation power to visa holders who are outside Australia.
1191. New section 134C ensures that an emergency visa cancellation decision under section
134B will be revoked no later than 28 days after the visa is cancelled unless ASIO issues an
assessment during that period stating that the applicant is a risk, directly or indirectly, to
security, and that recommends that the cancellation not be revoked. If no assessment is
provided by ASIO within 28 days, the visa cancellation must be revoked, as soon as
reasonably practicable, at the end of that period. In addition, if ASIO recommends, during
the 28 day period, that the cancellation be revoked, that must occur as soon as reasonably
practicable after ASIO provides that advice. This provision will cater for situations where
ASIO finalises its investigation and assessment in less than 28 days, and determines that the
former visa holder is not a risk to security. The intention is that the visa cancellation decision
will be revoked at the earliest opportunity, to minimise the impact on visa holders.
1192. There is no provision for ASIO to seek an extension of the 28 day period in
circumstances where additional time is required to conclude an assessment. ASIO can,
however, issue a further assessment under section 134B, which would require the reinstated
visa to again be cancelled. This would restart the 28 day period. While it is not intended to
unreasonably fetter ASIO in the task of assessing security risks, it is also not intended that
this mechanism would be used in serial fashion to continue extending the period within which
ASIO must form an opinion about whether a person is a risk to security. The operation of the
emergency cancellation power will be monitored and reviewed within the established
framework of accountability measures applying to ASIO.
1193. New section 134C also has the effect that, if ASIO issues an adverse security
assessment (is a risk, directly or indirectly, to security) during the 28 day period
recommending the cancellation not be revoked, the Minister must not revoke the visa
cancellation. The visa remains cancelled on a permanent basis. A person in this situation
will be able to apply for a new visa in the future, but would need to meet the criteria in the
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Migration Regulations at the relevant time. There would be a number of criteria which might
be relevant to the grant of a visa, including a requirement for a further assessment by ASIO.
1194. New subsection 134D(1) provides that, if the cancellation of a visa is revoked under
section 134C, then, without limiting its operation before the cancellation, it has effect as if it
were granted on the revocation. This provision is in the same terms as existing subsection
133(1) of the Migration Act which deals with the revocation of cancellation decisions made
under section 128 of the Migration Act. The purpose of the provision is to make it clear that
revocation of a cancellation decision does not have the effect that the visa was held during the
period when the visa was cancelled.
1195. New subsection 134D(2) provides that, subject to subsection (1), if the cancellation of
a visa is revoked under section 134C, the Minister may vary the time the visa is to be in effect
or any period in which, or date until which, the visa permits its holder to travel to, enter and
remain in Australia, or to remain in Australia. This provision is in the same terms as existing
subsection 133(2) of the Migration Act which deals with the revocation of cancellation
decisions made under section 128 of the Migration Act. The purpose of the provision is to
give the Minister discretion to extend the validity of the visa to compensate the visa holder
for the time that was lost during the period that the visa was cancelled.
1196. New section 134E deals with notification of cancellation decisions under section
134B. The section requires notice to be given to a former visa holder, but only after ASIO
issue an assessment under subsection 134C(3) stating that that the former visa holder is a risk
to security, and recommending that the cancellation not be revoked. Further, the timing of
the notice will be determined by security requirements as advised by ASIO.
1197. The effect of section 134E is that notification is not required when the visa is first
cancelled. Except in cases where the former visa holder presents at an airport and attempts to
travel to Australia, the former visa holder will not become aware that the visa has been
cancelled. The purpose of this provision is to avoid disruption of investigations by
intelligence agencies. An immediate notification of the cancellation decision, even without
giving reasons for the cancellation, would be likely to alert a former visa holder to the
possibility that they are under investigation and surveillance, and notification may therefore
compromise intelligence gathering activity. In addition, notification of a decision not to
revoke the cancellation will be delayed in cases where ASIO advise that notification should
be withheld in the interests of the security of the nation. In those cases, notification would
occur as soon as reasonably practicable after receipt of advice from ASIO that it is no longer
essential to the security of the nation for notice not to be given.
1198. Subsection 134E(4) provides that failure to give notification of a decision does not
affect the validity of either the decision under section 134B to cancel the visa or the decision
under subsection 134C(3) to not revoke the cancellation. The purpose of this provision is to
ensure that, although there is a duty to notify under section 134E, a failure to notify does not
affect the validity or operation of either the initial decision to cancel under section 134B or
the decision not to revoke the cancellation under subsection 134C(3).
1199. New section 134F deals with the cancellation of visas held by persons who hold visas
only because the person whose visa is cancelled under section 134B held a visa. This
includes members of the family unit and persons who were sponsored by the person whose
visa was cancelled under section 134B. The Minister will have a discretionary power to
cancel visas held by those persons. Subsection 134F(1) provides that the consequential
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cancellation decisions can only be made after the Minister decides not to revoke the section
134B cancellation and notifies that decision under section 134E. This provision ensures that
consequential cancellation decisions are not made before the notification of the person who is
a risk to security. Notification to that person can be delayed on security grounds, as set out in
section 134E.
1200. Consequential cancellation decisions under subsection 134F, in relation to visa
holders who are in Australia at the time of cancellation, will be subject to merits review by
the Migration Review Tribunal or the Refugee Review Tribunal (in relation to protection
visas).
Division 2 - Application of amendments made by Part 1
Item 5 - Application of amendments made by Part 1
1201. This item provides that the amendments made by Part 1 of this Schedule apply to
visas granted before or after that commencement.
Part 2 - Amendment of the Australian Security Intelligence Organisation Act 1979
Items 6 & 7 - New subsection 36(2)
1202. These items insert new subsection 36(2) into the ASIO Act. Subsection 36(2)
provides that Part IV of the ASIO Act applies to a security assessment given for the purposes
of section 134C of the Migration Act in relation to a person who would have been the holder
of a valid permanent visa but for the emergency cancellation of that visa under section 134B
of the Migration Act.
1203. Currently Part IV of the ASIO Act, which includes provision for certain notice
requirements and review rights with respect to security assessments made by ASIO, does not
apply to a security assessment in respect of the exercise of powers or functions under the
Migration Act (other than an assessment made for the purposes of subsection 202(1) of the
Migration Act) in respect of a person who is not an Australian citizen, the holder of a valid
permanent visa, or a person who holds a special category visa or is taken to have been
granted a special purpose visa.
1204. Where a person who is the holder of a valid permanent visa is subject to an
emergency cancellation of their visa under section 134B of the Migration Act, and that
person is then the subject of an adverse security assessment made by ASIO under section
134C recommending that the cancellation not be revoked, new subsection 36(2) of the ASIO
Act will allow the person to seek a review of that adverse security assessment under Division
4 of Part IV of the ASIO Act.
1205. This will ensure that the rights of persons who had been permanent visa holders at the
time of emergency cancellation under section134B and whose visa cancellation, under
section 134C, is not revoked will be consistent with the rights available to valid permanent
visa holders whose visas are cancelled for reasons of security under other provisions of the
Migration Act.
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Schedule 5 - Identifying persons in immigration clearance
1206. Schedule 5 amends the Migration Act to:
Enhance DIBP`s ability to collect, access, use and disclose personal identifiers for
purposes of identification of persons who may be a security concern to Australia
or foreign country
Allow personal identifiers such as facial images to be obtained from Australian
citizens who enter or depart Australia or who travel on an overseas vessel between
ports within Australia (sections 166, 170 and 175 of the Act).
Ensure automated border processing systems such eGate may obtain personal
identifiers such as facial images.
Clarify that if a person presents or provides a document to a clearance authority
under Division 5 of Part 2 of the Migration Act, the clearance authority may
collect the information (including any personal identifiers) in the document.
Ensure that personal information collected under Division 5 of Part 2 of the
Migration Act can be accessed and disclosed in the same way as identifying
information as defined under Part 4A of the Migration Act.
Item 1 - Paragraph 5A(3)(g)
1207. This item repeals paragraph 5A(3)(g) of Part 1 of the Migration Act and substitutes
new paragraphs 5A(3)(g) and 5A(3)(ga).
1208. Subsection 5A(1) defines the meaning of personal identifier. Subsection 5A(3) sets
out the purposes that must be promoted before any new personal identifiers are prescribed
under paragraph 5A(1)(g). The purposes in subsection 5A(3) are also cross referenced in
paragraphs 336D(2)(a) and 336F(2) which provide for the access and disclosure of
identifying information which is relevantly defined in section 336A to mean any personal
identifier obtained by DIBP for one or more of the purposes referred to in subsection 5A(3).
1209. Paragraph 5A(3)(g) currently ensures that personal identifiers can be obtained,
accessed, used and disclosed for the purpose of enhancing DIBP`s ability to identify non-
citizens who have a criminal history or who are of character concern.
1210. New paragraph 5A(3)(g) is identical to repealed paragraph 5A(3)(g) except that it no
longer refers to non-citizens who are of national security concern. Persons of national
security concern are now addressed by new paragraph 5A(3)(ga) which provides that
personal identifiers may be obtained, accessed and disclosed to assist identifying, and
authenticating the identity of, persons who may be a security concern to Australia or a foreign
country.
1211. This ensures that personal identifiers may be obtained, accessed, used and disclosed
for the purposes of identifying both citizens and non-citizens who may be a security concern
to Australia or a foreign country.
Item 2 - Part 2 (heading)
1212. This item repeals the heading of Part 2 of the Migration Act, Control of arrival and
presence of non-citizens and substitutes it with a new heading Arrival, presence and
192
departure of persons. This amendment reflects broader amendments made to ensure that
identifying information about both citizens and non-citizens may be obtained, accessed, used
and disclosed for permitted purposes.
1213. These amendments support the objective of ensuring that the identity of persons
travelling in an out of Australia may be verified and to identify persons who may be of
security concern.
Item 3 - Paragraph 166(1)(c)
1214. This item repeals paragraph 166(1)(c) of Division 5 of Part 2 of the Migration Act and
substitutes new paragraphs 166(1)(c) and (d).
1215. New paragraph 166(1)(c) provides that a person, whether a citizen or non-citizen, who
enters Australia, must comply with any requirement made by a clearance officer to provide
one or more personal identifiers, to a clearance authority. The types of personal identifiers a
person can be required to provide are referred to in subsection (5) of section 166 of the
Migration Act.
1216. New paragraph 166(1)(c) is similar to repealed paragraph 166(1)(c) except that the
new paragraph:
is expanded to also apply to citizens
no longer requires the existence of prescribed circumstances before a clearance
officer can exercise their discretion to require a person to provide a personal
identifier
allows a clearance officer to require a person to provide a personal identifier to
either a clearance officer or an authorised system (due to the use of the term
clearance authority which is defined in section 165), and
clarifies that only a clearance officer (not an authorised system) can require a
person to provide a personal identifier under paragraph 166(1)(c).
1217. This item also inserts new paragraph 166(1)(d) into Division 5 of Part 2 of the
Migration Act. The effect of new paragraph 166(1)(d) is that if under paragraph 166(1)(a) a
person presents evidence to an authorised system, the person must also provide to the
authorised system a photograph or any other personal identifier referred to in subsection
166(5) that is prescribed by the regulations. Subsection 166(7) ensures that these personal
identifiers must be provided by way of an identification test.
1218. The purpose of this amendment is to ensure that authorised systems such as eGate can
collect and retain personal identifiers without having to require a person to provide those
personal identifiers. This reflects that facial images will always be collected and retained
when a person uses an authorised system and enables other personal identifiers, intended to
be collected by the authorised system, to be prescribed in the regulations in future.
Item 4 - Subsection 166(2)
1219. This item omits present evidence, or provide information and substitutes present or
provide evidence, information or personal identifiers in subsection 166(2) in Division 5 of
Part 2 of the Migration Act. The amendment is consequential to amendments made to
193
subsection 166(1) which ensure that personal identifiers may be provided to an authorised
system.
Item 5 - Subparagraph 166(2)(c)(i)
1220. This amendment removes the reference to the system from subparagraph
166(2)(c)(i).
1221. This amendment ensures that a person may only use an authorised system if, amongst
other requirements, a clearance officer does not require evidence to be provided to a
clearance officer.
1222. The effect is that s166(1) is only complied with by way of using an authorised system
so long as a clearance officer has not also required the person to present or provide evidence,
information or personal identifiers.
Item 6 - Subsection 166(3) (heading)
1223. This item makes a technical amendment to the heading in subsection 166(3) by
replacing the current heading Complying with paragraphs 1(a), (b) and (c)` and substituting
with new heading Complying with paragraphs (1)(a) and (b)' . This amendment reflects
that this heading now only covers subsections 166(3) and (4) which only refer to paragraphs
(1)(a) and (b). A new heading has been inserted before subsection (5) to cover
paragraph(1)(c) and new paragraph (1)(d).
Item 7 - Before subsection 166(5)
1224. This item inserts a new heading Personal identifiers provided under paragraph
(1)(c) or (d) before subsection 166(5) in Division 5 of Part 2 of the Migration Act.
1225. This amendment caters for the amendment of paragraph 1(c) and the insertion of
paragraph (1)(d) in section 166.
Item 8 - Subsection 166(5)
1226. This item omits paragraphs (1)(a) and (c), a person may only be required to present
or and substitutes paragraphs (1)(c) and (d), a person may only be required to in
subsection 166(5) of the Migration Act.
1227. This amendment ensures that the limitations in subsection 166(5) regarding the types
of personal identifiers that a person can be required to provide apply to new paragraphs
166(1)(c) and (d).
1228. This amendment also ensures that subsection 166(5) does not limit the evidence (such
as a passport) that a person must present under paragraph 166(1)(a) in circumstances where
that evidence contains a personal identifier that is not specified in subsection 166(5). This
ensures that a person must present their passport under paragraph 166(1)(a) even if their
passport contains a personal identifier that is not specified in subsection 166(5).
194
Item 9 - Paragraph 166(5)(c)
1229. This item makes a technical amendment to paragraph 166(5)(c) of the Migration Act
by inserting of a type after identifier in paragraph 166(5)(c).
1230. This amendment clarifies the intended purpose of paragraph 166(5)(c) which is to
allow a personal identifier of a type in a person`s passport to be collected by way of
identification test even if that type of personal identifier is not specified elsewhere in
subsection 166(5). For example, if a person`s passport contains a measurement of the
person`s height and weight then paragraph 166(5)(c) in conjunction with paragraphs
166(1)(c) and subsection 166(7) would allow a clearance officer to require the person to
provide a measurement of the person`s weight and height by way of an identification test
carried out by an authorised officer even if this type of personal identifier was not specified
elsewhere in subsection 166(5).
Item 10 - Subsection 166(6)
1231. This item repeals subsection 166(6) of Part 2 of Division 5 of the Migration Act. It is
considered redundant to provide that paragraph 166(1)(c) does not limit a clearance
authority`s power under subparagraph (1)(a)(ii) as the opening words of paragraph 166(1)(a)
clearly provide that a person must present evidence, which might include a personal
identifier.
1232. This is a technical change only and no substantive change to the operation of the
provisions is intended by the repeal of subclause (6).
Item 11 - Subsection 166(7)
1233. This item repeals subsection 166(7) (including the note) and substitutes new 166(7) in
Division 5 of Part 2 of the Migration Act.
1234. New subsection 166(7) provides that a person is taken not to have complied with a
requirement to provide a personal identifier under new paragraphs (1)(c) or (d) inserted in
item 3 above, unless the personal identifier is provided by way of one or more identification
tests carried out by an authorised officer or authorised system. New subsection 166(7) is
similar to repealed subsection 166(7) except that it:
expands the provision to apply to citizens as well as non-citizens (by referring to
persons)
adds in a reference to new paragraph 166(1)(d), and
refers to identification tests carried out by an authorised system, as well as by an
authorised officer.
1235. These amendments are consequential to amendments made to section 166(1) which
ensure that personal identifiers may also be obtained by an authorised system and may also
be obtained from citizens.
1236. The effect and purpose of these amendments is to ensure that the requirements to
provide personal identifiers in paragraphs 166(1)(c) and (d) cannot be met, by either a citizen
or non-citizen, unless they are provided by way of an identification test carried out by an
authorised officer or authorised system. This ensures that the requirements cannot be met by
195
providing personal identifiers already contained in a passport, for example, but must be
collected by an authorised officer or authorised system by way of an identification test.
1237. The amendment also repeals the note from beneath subsection 166(7) as it was
considered unnecessary. There is no change to the operation of section 5D or how it relates
to subsection 175(4) in relation to authorised officers. This is a technical change only.
Items 12 to 13 - Subsection 166(8) and paragraph 166(8)(a)
1238. Subsection 166(8) is amended to:
expand the provision to apply to citizens as well as non-citizens, by referring to
persons in subsection 166(8), and
refer to identification tests carried out by an authorised system, as well as by an
authorised officer, in paragraph 166(8)(a).
1239. These amendments are consequential to amendments made to section 166(1) which
ensure that personal identifiers may also be obtained by an authorised system and may also
be obtained from citizens.
Item 14 - Paragraphs 170(1)(a) and (b)
1240. This item replaces the reference to the officer or authorised system with a reference
to a clearance authority. Clearance authority is defined to mean a clearance officer or an
authorised system.
1241. This amendment simplifies the terminology as well as ensuring that the officer who
requires the personal identifiers does not have to be same officer as the officer to whom the
personal identifiers are provided.
Item 15 - At the end of subsection 170(1)
1242. This item adds new paragraphs 170(1)(c) and (d) to the end of subsection 170(1) of
the Migration Act and is similar to amendments at Item 3 which insert paragraphs 166(1)(c)
and (d).
1243. Paragraphs 170(1)(a) and (b) empower a clearance officer to require a person who
travels, or appears to intend to travel on an overseas vessel from a port to another port (in
Australia) to present certain evidence and provide certain information to the clearance officer
or an authorised system at either or both ports. Subsection 170(2) currently provides that if
prescribed circumstances exist, a non-citizen must be required by a clearance authority to
provide one or more personal identifiers referred to in subsection (2A) to a clearance officer
at either or both ports.
1244. New paragraph 170(1)(c) is similar to subsection 170(2) (which is repealed by the
amendments at Item 16 except that the new paragraph 170(1)(c):
is expanded to also apply to citizens,
no longer compels a clearance authority to require a personal identifier in
prescribed circumstances (instead a clearance officer is given a discretion to
require a person to provide a personal identifier),
196
allows a clearance officer to require a person to provide a personal identifier to
either a clearance officer or an authorised system (due to the use of the term
clearance authority which is defined in section 165).
1245. This item also inserts new paragraph 170(1)(d). The effect of new paragraph
170(1)(d) is that if under paragraph 170(1)(a) a person presents evidence to an authorised
system, the person must also provide to the authorised system a photograph or any other
personal identifier referred to in subsection 170(2A) that is prescribed by the regulations.
New subsection 170(4) ensures that these personal identifiers must be provided by way of an
identification test.
1246. The purpose of this amendment is to ensure that authorised systems such as eGate can
collect and retain personal identifiers without having to require a person to provide those
personal identifiers. This reflects that facial images will always be collected and retained
when a person uses an authorised system.
Item 16 - Subsection 170(2)
1247. This item repeals subsection 170(2) and substitutes new subsection 170(2).
Current subsection 170(2) provides that where prescribed circumstances exist, a non-citizen
who travels, or appears to intend to travel, on an overseas vessel from a port to another port
must be required by a clearance authority at either or both ports to provide one or more
personal identifiers referred to in subsection (2A) to a clearance officer.
1248. The effect of current subsection 170(2) has now been re-located to paragraphs (1)(c)
and (d) and amended slightly as explained in item 15 above.
1249. New subsection 170(2) provides a new heading `Complying with subsection (1)' and
provides that a person is to comply with subsection (1) in a prescribed way, similar to the
way that subsection 166(3) operates.
Item 17 - Subsection 170(2AA)
1250. This item omits present evidence, or provide information and substitutes present or
provide evidence, information or personal identifiers in subsection 170(2AA) in Division 5
of Part 2 of the Migration Act.
1251. The amendment is consequential to amendments made to section 170 which ensure
that personal identifiers may be provided to an authorised system.
Item 18 - Subparagraph 170(2AA)(c)(i)
1252. This amendment removes the reference to the system from
subparagraph 170(2AA)(c)(i).
1253. This amendment ensures that a person may only use an authorised system if, amongst
other requirements, a clearance officer does not require evidence to be provided to a
clearance officer.
1254. The effect is that s170(1) is only complied with by way of using an authorised system
so long as a clearance officer has not also required the person to present or provide evidence,
information or personal identifiers.
197
Item 19 - Subsection 170(2A) (heading)
1255. This item repeals the heading in subsection 170(2A) of the Migration Act and
substitutes Personal identifiers provided under paragraph (1)(c) or (d) to reflect
amendments made to subsection 170(1) above.
Item 20 - Subsection 170(2A)
1256. This item omits paragraph (1)(a) and subsection (2), a person may only be required
to present or and substitutes paragraphs (1)(c) and (d), a person may only be required to.
1257. This amendment is consequential to amendments made to subsections 170(1) and (2)
and ensures that subsection 170(2A) refers to the relevant provisions in light of those
amendments.
Item 21 - Paragraph 170(2A)(c)
1258. This item makes a technical amendment to paragraph 170(2A)(c) of Division 5 of Part
2 of the Migration Act and inserts the terms of a type after identifier in this paragraph.
1259. This amendment ensures that identifiers of a type found in a passport or travel
document may be collected by way of identification test.
Item 22 - Subsection 170(3)
1260. This item repeals subsection 170(3) of Part 2 of Division 5 of the Migration Act as it
is considered redundant. It is considered redundant to provide that subsection 170(2) does
not limit a clearance authority`s power under paragraph (1)(a) as paragraph 170(1)(a) clearly
provides that the evidence might include a personal identifier.
1261. This is a technical change only and no substantive change to the operation of the
provisions is intended by the repeal of subclause (3).
Item 23 - Subsection 170(4)
1262. This item repeals subsection 170(4) (including the note) and substitutes new 170(4) in
Division 5 of Part 2 of the Migration Act.
1263. New subsection 170(4) provides that a person is taken not to have complied with a
requirement to provide a personal identifier under new paragraphs (1)(c) or (d), unless the
personal identifier is provided by way of one or more identification tests carried out by an
authorised officer or authorised system.
1264. New subsection 170(4) is similar to repealed subsection 170(4) except that it:
expands the provision to apply to citizens as well as non-citizens (by referring to
persons)
adds in a reference to new paragraphs 170(1)(c) and (d), and
refers to identification tests carried out by an authorised system, as well as by an
authorised officer.
198
1265. These amendments are consequential to amendments made to section 170(1) which
ensure that personal identifiers may also be obtained by an authorised system and may also
be obtained from citizens.
1266. The effect and purpose of these amendments is to ensure that the requirements to
provide personal identifiers in paragraphs 170(1)(c) and (d) cannot be met, by either a citizen
or non-citizen, unless they are provided by way of an identification test carried out by an
authorised officer or authorised system. This ensures that the requirements cannot be met by
providing personal identifiers as already contained in a passport, for example, but must be
collected by an authorised officer or authorised system by way of an identification test.
1267. The amendment also repeals the note from beneath subsection 170(4) as it was
considered unnecessary. There is no change to the operation of section 5D or how it relates
to subsection 170(4) in relation to authorised officers. This is a technical change only.
Items 24 to 25 - Subsection 170(5) and paragraph 170(5)(a)
1268. Subsection 170(5) is amended to:
expand the provision to apply to citizens as well as non-citizens, by referring to
persons in subsection 170(5), and
refer to identification tests carried out by an authorised system, as well as by an
authorised officer, in paragraph 170(5)(a).
1269. These amendments are consequential to amendments made to section 170(1) which
ensure that personal identifiers may also be obtained by an authorised system and may also
be obtained from citizens.
Item 26 - Subsection 175(1)
1270. This item makes a technical amendment to replace the reference to to leave Australia
(whether or not after calling at places in Australia with a reference to due to depart from a
place in Australia to a place outside Australia (whether or not after calling at other places in
Australia.
1271. The amendment is to provide consistency with terminology in other sections in the
Act.
1272. This is a technical change only and no change to the operation of the provision is
intended.
Item 27 - Paragraphs 175(1)(a) and (b)
1273. This item replaces the reference to the officer or authorised system with a reference
to a clearance authority. Clearance authority is defined to mean a clearance officer or an
authorised system.
1274. This amendment simplifies the terminology as well as ensuring that the officer who
requires the personal identifiers does not have to be same officer as the officer to whom the
personal identifiers are provided.
199
Item 28 - At the end of subsection 175(1)
1275. This item adds new paragraphs 175(1)(c) and (d) to the end of subsection 175(1) of
the Migration Act and is similar to amendments at Item 3 which insert paragraphs 166(1)(c)
and (d).
1276. Paragraphs 175(1)(a) and (b) empower a clearance officer to require a person who is
on board, or about to board, a vessel that is due to depart from a place in Australia to present
certain evidence and provide certain information to the clearance officer or an authorised
system at either or both ports. Subsection 175(2) currently provides that if prescribed
circumstances exist, a non-citizen must be required by a clearance authority to provide one or
more personal identifiers referred to in subsection (2A) to a clearance officer at either or both
ports.
1277. New paragraph 175(1)(c) is similar to subsection 175(2) (which is repealed by the
amendments at Item 16 except that the new paragraph 170(1)(c):
is expanded to also apply to citizens,
no longer compels a clearance authority to require a personal identifier in
prescribed circumstances (instead a clearance officer is given a discretion to
require a person to provide a personal identifier),
allows a clearance officer to require a person to provide a personal identifier to
either a clearance officer or an authorised system (due to the use of the term
clearance authority which is defined in section 165).
1278. This item also inserts new paragraph 175(1)(d). The effect of new paragraph
175(1)(d) is that if under paragraph 175(1)(a) a person presents evidence to an authorised
system, the person must also provide to the authorised system a photograph or any other
personal identifier referred to in subsection 175(2A) that is prescribed by the regulations.
New subsection 175(4) ensures that these personal identifiers must be provided by way of an
identification test.
1279. The purpose of this amendment is to ensure that authorised systems such as eGate can
collect and retain personal identifiers without having to require a person to provide those
personal identifiers. This reflects that facial images will always be collected and retained
when a person uses an authorised system.
Item 29 - Subsection 175(2)
1280. This item repeals subsection 175(2) and substitutes new subsection 170(2).
1281. Current subsection 175 (2) provides that where prescribed circumstances exist, a non-
citizen who travels, or appears to intend to travel, on an overseas vessel from a port to
another port must be required by a clearance authority at either or both ports to provide one
or more personal identifiers referred to in subsection (2A) to a clearance officer.
1282. The effect of current subsection 175(2) has now been re-located to paragraphs (1)(c)
and (d) and amended slightly as explained in item 28 above.
200
1283. New subsection 175(2) provides a new heading `Complying with subsection (1)' and
provides that a person is to comply with subsection (1) in a prescribed way, similar to the
way that subsection 166(3) operates.
Item 30 - Subsection 175(2AA)
1284. This item omits present evidence, or provide information and substitutes present or
provide evidence, information or personal identifiers in subsection 175(2AA) in Division 5
of Part 2 of the Migration Act.
1285. The amendment is consequential to amendments made to section 175 which ensure
that personal identifiers may be provided to an authorised system.
Item 31 - Subparagraph 175(2AA)(c)(i)
1286. This amendment removes the reference to` the system` from subparagraph
175(2AA)(c)(i).
1287. This amendment ensures that a person may only use an authorised system if, amongst
other requirements, a clearance officer does not require evidence to be provided to a
clearance officer.
1288. The effect is that s175(1) is only complied with by way of using an authorised system
so long as a clearance officer has not also required the person to present or provide evidence,
information or personal identifiers.
1289. This item also makes a consequential amendment to remove the reference to
subsection (2) the effect of subsection (2) has now been subsumed into subsection (1) as
explained in item 27 above.
Item 32 - Subsection 175(2A) (heading)
1290. This item amends the heading to subsection 175(2A) as a consequence of
amendments made to restructure subsection 175(1). The amendment ensures that the heading
refers to the relevant provisions in subsection 175(1) after its amendment and to clarify what
this subsection is about.
Item 33 - Subsection 175(2A)
1291. This item amends subsection 175(2A) as a consequence of amendments made to
subsection 175(1). The amendment ensures that subsection 175(2A) refers to the relevant
provisions in subsection 175(1) after its amendment and that the terminology is consistent.
Item 34 - Paragraph 175(2A)(c)
1292. This item makes a technical amendment to paragraph 175(2A)(c) of Division 5 of Part
2 of the Migration Act and inserts the terms of a type after identifier in this paragraph.
1293. This amendment ensures that identifiers of a type found in a passport or travel
document may be collected by way of identification test
201
Item 35 - Subsection 175(3)
1294. This item repeals subsection 175(3) of Part 2 of Division 5 of the Migration Act as it
is considered redundant. It is considered redundant to provide that subsection 175(2) does
not limit a clearance authority`s power under paragraph (1)(a) as paragraph 175(1)(a) clearly
provides that the evidence might include a personal identifier.
1295. This is a technical change only and no substantive change to the operation of the
provisions is intended by the repeal of subsection (3).
Item 36 - Subsection 175(4)
1296. Subsection 175(4) currently provides that where there is a requirement for a non-
citizen to provide personal identifiers under certain provisions in section 175, the requirement
is taken not to have been met unless it was given by way of one or more identification tests
carried out by an authorised officer.
1297. This amendment adds a reference to an authorised system to ensure that the
requirement is met if the identification test was carried out by an authorised system as well as
by an authorised officer. This amendment is consequential to other amendments made that
ensure that an authorised system can collect personal identifiers by way of an identification
test.
1298. The amendment also replaces the reference to non-citizens with persons. The
effect and purpose of the amendment is to ensure that that the provision applies to both
Australian citizens and non-citizens. This amendment is consequential to other amendments
made to section 175 which ensure that personal identifiers may be collected from Australian
citizens when departing Australia, as well as from non-citizens.
1299. This amendment also replaces the reference to subsection 175(2) with a reference to
paragraphs 175(1)(c) and (d). These amendments are consequential to amendments made
which restructure subsections 175(1) and (2). It ensures that the relevant provisions are now
referred to in light of the amendments to subsections 175(1) and (2).
1300. The amendment also repeals the note from beneath subsection 175(4) as it was
considered unnecessary. There is no change to the operation of section 5D or how it relates
to subsection 175(4) in relation to authorised officers. This is a technical change only.
Item 37 - Subsection 175(5)
1301. The amendment replaces the reference to non-citizen with person. The effect and
purpose of the amendment is to ensure that that the provision applies to both Australian
citizens and non-citizens.
1302. This amendment is consequential to other amendments made to section 175 which
ensure that personal identifiers can be collected from Australian citizens, as well as from non-
citizens.
202
Item 38 - Paragraph 175(5)(a)
1303. This amendment adds a reference to an authorised system after an authorised
officer. The amendment is consequential to other amendments made to ensure that an
authorised system can collect personal identifiers.
Item 39 - At the end of Division 5 of Part 2
1304. This item inserts a new provision, section 175B, into Division 5 of Part 2 of the Act.
1305. The purpose of new subsection 175B(1) is to ensure that where a person presents a
document` (within the meaning set out in the Acts Interpretation Act 1901) to a clearance
authority, the information, including any personal identifiers, in the document may be
collected and retained by DIBP. It is intended that this would include copying or scanning
the document. It would also include collecting any information stored electronically in the
document.
1306. For example, where a passport is presented to a clearance authority, the clearance
authority may make a copy of, or scan, the passport, including collecting any information
stored electronically in the passport.
1307. The purpose of new subsection 175B(2) is to ensure that any personal information
collected under Division 5 of Part 2 of the Act may be accessed, used and disclosed in the
same way as identifying information, as defined in Part 4A of the Act, may be accessed, used
and disclosed. The offences provided in Part 4A do not apply to the access, use and
disclosure of personal information under this Division.
1308. For example, where information is collected from a passport, which contains both
personal identifiers (such as a photo and signature) and personal information (such as a name
and date of birth), this information may be accessed, used and disclosed together and in the
same way without having to identify separate authorisation under the Privacy Act for the
personal information
1309. The purpose of new subsection 175B(3) is to ensure that these provisions only relate
to information collected, accessed, used and disclosed under Division 5 of Part 2 of the Act
and do not impact on the interpretation of any other provision in the Act or instrument made
under the Act.
Item 40 - Section 258
1310. This item amends section 258 of the Migration Act by omitting all references to non-
citizens and substituting the word persons. This amendment is consequential to the
amendments at Items 3, 11, 15, 23, 28 and 36 which allow personal identifiers to be obtained
from Australian citizens as well as non-citizens under new paragraphs 166(1)(c) or (d),
paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as read with new subsections
166(7), 170(4) and 175(4).
1311. This amendment ensures that the Minister may make a determination under section
258 that a personal identifier is not required from certain Australian citizens and non-citizens.
203
Item 41 - Section 258A (heading)
1312. This item repeals the heading to section 258A of the Migration Act and substitutes a
new heading 258A When person cannot be required to provide personal identifier. This
amendment is consequential to the amendments at Items 3, 11, 15, 23, 28 and 36 which allow
personal identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4).
1313. The new heading uses the term person (instead of non-citizen) to ensure that the
prohibition on requiring a person to provide a personal identifier in certain circumstances
operates to prevent Australian citizens and non-citizens from being required to provide a
personal identifier in those circumstances.
Item 42 - Subsection 258B(1)
1314. This item amends subsection 258B(1) of the Migration Act by omitting the words
carrying out an identification test on a non-citizen and substituting the words an
authorised officer carries out an identification test on a person. This amendment is
consequential to the amendments at Items 3, 11, 15, 23, 28 and 36 which allow an authorised
officer or authorised system to obtain personal identifiers from Australian citizens as well as
non-citizens under new paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and
paragraphs 175(1)(c) or (d) as read with new subsections 166(7), 170(4) and 175(4).
1315. The reference to an authorised officer carrying out an identification test in amended
subsection 258B(1) ensures that section 258B does not apply to an identification test carried
out by an authorised system. Section 258B only applies to an identification test undertaken
by an authorised officer because it would be impractical for an authorised system such as
eGate to inform a person of the matters prescribed under section 258B as the person passes
through the gate. Although section 258 does not apply to identification tests carried out by an
authorised system, Australian Privacy Principle 5 of the Privacy Act 1988 will require
certain information to be provided as soon as practicable after a person provides a personal
identifier to an authorised system. The use of the word person (instead of non-citizen)
in amended subsection 258B(1) ensures that an Australian citizen must be informed of the
same matters as a non-citizen before an identification test is carried out by an authorised
officer.
Item 43 - Paragraphs 258B(1)(a) and (b)
1316. This item amends paragraphs 258B(1)(a) and (b) of the Migration Act by omitting the
words the non-citizen and substituting the words the person. This amendment is
consequential to the amendments at Items 3, 11, 15, 23, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4). The amendment ensures that an
Australian citizen must be informed of the same matters as a non-citizen before an
identification test is carried out by an authorised officer.
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Item 44 - Subsections 258B(2) and (3)
1317. This item amends subsections 258B(2) and (3) of the Migration Act by omitting all
references to the word non-citizen and substituting the word person. This amendment is
consequential to the amendments at Items 3, 11, 15, 23, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4).
The amendment ensures that an Australian citizen must be informed of the same matters as a
non-citizen before an identification test is carried out by an authorised officer.
Item 45 -- Section 258C (heading)
1318. This item repeals the heading to Section 258C of the Migration Act and substitutes a
new heading: 258C Information to be provided when identification tests not carried out.
This amendment is consequential to the amendments at Items 13, 25 and 38 which allow
either an authorised officer or authorised system to obtain personal identifiers under
amended subsections 166(8), 170(5) and 175(5) otherwise than by way of an identification
test. The heading no longer refers to an identification test carried out by an authorised
officer to reflect that either an authorised officer or authorised system can obtain
personal identifiers otherwise than by way of an identification test.
Item 46 - Section 258C
1319. This item amends section 258C of the Migration Act by omitting all references to the
word non-citizen and substituting the word person. This amendment is consequential to
the amendments at Items 12, 25 and 38 which allow personal identifiers to be obtained from
Australian citizens under amended subsections 166(8), 170(5) and 175(5) otherwise than by
way of an identification test.
The amendment ensures that an Australian citizen must be informed of the same prescribed
matters as a non-citizen before a personal identifier is provided otherwise than by way of an
identification test carried out by an authorised officer or authorised system.
Item 47 - Subsection 258D(1)
1320. This item repeals subsection 258D(1) of the Migration Act and substitutes a new
subsection 258D(1) which provides that the regulations may prescribe the manner in which
an identification test is to be carried out on a person under section 40, 46, 166, 170, 175, 188
or 192. This amendment is consequential to the amendments at Items 3, 11, 15, 23, 28 and
36 which allow an authorised officer or an authorised system to obtain personal
identifiers from Australian citizens as well as non-citizens under new paragraphs 166(1)(c) or
(d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as read with new subsections
166(7), 170(4) and 175(4). New subsection 258D(1) refers to an identification test (instead
of an identification test carried out by an authorised officer) to ensure that any regulations
made under subsection 258D(1) can prescribe the manner in which either an authorised
officer or authorised system carries out an identification test. New subsection 258D(1)
also uses the term person (instead of non-citizen) to ensure that any regulations made under
subsection 258D(1) can also prescribe the manner in which an identification test is carried out
on Australian citizens (as well as on non-citizens).
205
Item 48 - Subsection 258D(2)
1321. This item amends subsection 258D(2) of the Migration Act by omitting the word
non-citizen and substituting the word person. This amendment is consequential to the
amendments to subsections 166(8), 170(5) and 175(5) at Items 12, 24 and 37 which allow
Australian citizens and non-citizens to provide personal identifiers otherwise than by way of
an identification test. The use of the term person (instead of non-citizen) in subsection
258D(2) ensures that regulations can prescribe the procedure and requirements that apply to
both Australian citizens and non-citizens who provide a personal identifier otherwise than by
way of an identification test.
Item 49 - Subsection 258D(2)
1322. This item amends subsection 258D(2) of the Migration Act by omitting the words
carried out by an authorised officer. This amendment is consequential to the amendments
to subsections 166(7), 170(4) and 175(4) at Items 11, 23 and 36 which provide that a person
is taken not to have complied with a requirement to provide a personal identifier under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) or paragraphs 175(1)(c) or (d) unless
the personal identifier is provided by way of one or more identification tests carried out by an
authorised officer or authorised system.
1323. The amendment ensures that any regulations made under subsection 258D(2) can
prescribe the procedure and requirements that apply if a personal identifier is provided
otherwise than by way of an identification test carried out by either an authorised officer or
an authorised system.
Item 50 - Section 258E
1324. This item amends section 258E of the Migration Act by omitting all references to the
word non-citizen and substituting the word person. This amendment is consequential to
the amendments at Items 3, 11, 15, 23, 28 and 36 which allow an authorised officer or an
authorised system to obtain personal identifiers from Australian citizens as well as non-
citizens under new paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs
175(1)(c) or (d) as read with new subsections 166(7), 170(4) and 175(4). The amendment
ensures that an identification test carried out by an authorised officer to obtain a personal
identifier from an Australian citizen is subject to the same rules and safeguards that apply
when an authorised officer carries out an identification test to obtain a personal identifier
from a non-citizen.
1325. Section 258E does not apply to an identification test undertaken by an authorised
system because the safeguards in that section are ill-suited to authorised systems such as
eGate. For example, it is not possible for eGates to carry out an identification test to obtain a
facial image away from the view of other people because the systems are in public places
(subsections 258E(a) and (b) refer). Similarly, the rules limiting the amount of visual
inspection and the removal of clothing (subsections 258E(d) and (e) refer) are not relevant to
identification tests undertaken by authorised systems.
Item 51 - Subsection 261AL(1)
1326. This item amends subsection 261AL(1) of the Migration Act by omitting all
references to the word non-citizen and substituting the word person. This amendment is
206
consequential to the amendments at Items 3, 11, 15, 32, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4). The amendment ensures that all
persons under 15 years old (whether an Australian citizen or non-citizen) must not be
required to provide a personal identifier other than a measurement of their height and weight
or photograph or other image of their face and shoulders.
Item 52 - Paragraphs 261AL(1)(a) and (b)
1327. This item amends paragraphs 261AL(1)(a) and (b) of the Migration Act by omitting
all references to the word non-citizen and substituting the word person. This amendment
achieves the same result as the amendment to subsection 261AL(1) at Item 51.
Item 53 - Subsection 261AL(5)
1328. This item amends subsection 261AL(5) of the Migration Act by omitting all
references to the word non-citizen and substituting the word person. This amendment is
consequential to the amendments at Items 3, 11, 15, 32, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4). The amendment ensures that an
identification test carried out by an authorised officer to obtain a personal identifier from a
minor who is an Australian citizen, must be carried out in the presence of a parent or guardian
of the minor or an independent person. The effect of the amendment is that minors who are
Australian citizens are subject to the same safeguards as minors who are non-citizens.
Subsection 261AL(5) of the Migration Act does not apply to an identification test undertaken
by an authorised system. This is because it is not possible for more than one person to be
present in an eGate booth which is designed to only allow one person through at a time to
prevent other persons passing through the gates without authorisation.
Item 54 - Subsection 261AM(1)
1329. This item amends subsection 261AM(1) of the Migration Act by omitting all
references to the word non-citizen and substituting the word person. This amendment is
consequential to the amendments at Items 3, 11, 15, 32, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4).
1330. The amendment ensures that an incapable person who is an Australian citizen must
not be required to provide a personal identifier other than a measurement of their height and
weight or photograph or other image of their face and shoulders. The terms incapable
person is defined in subsection 5(1) of the Migration Act to mean a person who is
incapable of understanding the general nature and effect of, and purposes of, a requirement to
provide a personal identifier. The amendment ensures that incapable persons who are
Australian citizens are subject to the same safeguards as incapable persons who are non-
citizens.
207
Item 55 - Paragraphs 261AM(1)(a) and (b)
1331. This item amends paragraphs 261AM(1)(a) and (b) of the Migration Act by omitting
all references to the word non-citizen and substituting the word person. This amendment
is consequential to the amendment at Item 54 and achieves the same result.
Item 56 - Subsection 261AM(4)
1332. This item amends subsection 261AM(4) of the Migration Act by omitting all
references to the word non-citizen and substituting the word person. This amendment is
consequential to the amendments at Items 3, 11, 15, 32, 28 and 36 which allow personal
identifiers to be obtained from Australian citizens as well as non-citizens under new
paragraphs 166(1)(c) or (d), paragraph 170(1)(c) or (d) and paragraphs 175(1)(c) or (d) as
read with new subsections 166(7), 170(4) and 175(4). The amendment ensures that an
identification test carried out by an authorised officer to obtain a personal identifier from an
incapable person who is an Australian citizen, must be carried out in the presence of a
parent or guardian of the incapable person or an independent person. The effect of the
amendment is that incapable persons who are Australian citizens are subject to the same
safeguards as incapable persons who are non-citizens.
1333. Subsection 261AM(4) of the Migration Act does not apply to an identification test
undertaken by an authorised system. This is because it is not possible for more than one
person to be present in an eGate booth which is designed to only allow one person through at
a time to prevent unauthorised passage through the gate.
Item 57 - Paragraph 336D(2)(g)
1334. This item amends paragraph 336D(2)(g) of the Migration Act by repealing the
existing paragraph and substituting new paragraph 336D(2)(g). This amendment ensures that
the Secretary may authorise access to identifying information for the purpose of:
the Migration Act or instruments made under the Migration Act, or
the Citizenship Act or instruments made under that Act, or
the Customs Act or instruments made under that Act, or
any other law of the Commonwealth prescribed by regulations.
Item 58 - Subparagraph 336E(2)(a)(iii)
1335. This item amends paragraph 336E(2)(a) of the Migration Act by repealing existing
subparagraph 336E(2)(a)(iii) and substituting new subparagraphs 336E(2)(a)(iii) and (iiia).
1336. New subparagraph 336E(2)(a)(iii) is identical to repealed subparagraph
336E(2)(a)(iii) except that it no longer refers to non-citizens who are of national security
concern as the disclosure of identifying information regarding these persons is now
permitted by new subparagraph 336E(2)(a)(iiia).
1337. New subparagraph 336E(2)(a)(iiia) is similar to the amendment to paragraph 5A(3)(g)
at Item 1and ensures that it is permissible to disclose identifying information for the purpose
of data-matching in order to identify, or authenticate the identity of persons who may be a
security concern to Australia or a foreign country.
208
Item 59 - After paragraph 336E(2)(b)
1338. This item amends subsection 336E(2) of the Migration Act by inserting new
paragraph 336E(2)(ba) after paragraph 336E(2)(b). This amendment ensures that it is also
permissible to disclose identifying information for the purpose of:
the Migration Act or instruments made under the Migration Act, or
the Citizenship Act or instruments made under that Act, or
the Customs Act or instruments made under that Act, or
any other law of the Commonwealth prescribed by regulations.
Item 60 - After paragraph 366E(2)(eb)
1339. This item amends subsection 336E(2) of the Migration Act by inserting new
paragraphs 336E(2)(ec) and (ed) after paragraph 366E(2)(eb).
1340. New paragraph 336E(2)(ec) ensures that it is permissible to disclose identifying
information for the purpose of identifying non-citizens who have a criminal history or who
are of character concern. An identical ground for disclosure already exists in subparagraph
336E(2)(a)(iii), however, that paragraph only applies if the disclosure is also for the purpose
of data-matching. New paragraph 336E(2)(ec) ensures that identifying information may be
disclosed for the purpose of identifying non-citizens who have a criminal history or who are
of character concern in in circumstances where the disclosure is not for the purpose of data-
matching (for example when responding to case specific enquiries).
1341. New paragraph 336E(2)(ed) ensures that it is permissible to disclose identifying
information for the purpose of identifying persons who may be a security concern to
Australia or a foreign country in circumstances where the disclosure is not for the purpose of
data-matching. Similar disclosures grounds for data-matching purposes are permitted by new
subparagraph 336E(2)(a)(iii) which is inserted by the amendments at Item 58.
Part 2 - Application of amendments
Item 61 - Application of amendments
1342. Item 61 provides that the amendments to the Migration Act made by Part 1 of this
Schedule apply as follows:
The amendment made by Item 1 of this Schedule, as it affects section 336A, 336D
or 336F of the Migration Act, applies in relation to personal identifiers provided
before or after the commencement of this Schedule.
The amendment made item 39 of this Schedule applies in relation to (a)
documents or information presented or provided; or (b) personal information
collected before or after the commencement of this Schedule.
The amendments made by items 57 to 60 apply in relation to personal identifiers
and personal information collected before or after the commencement of this
Schedule.
209
Schedule 6 - Identifying persons entering or leaving Australia through
advanced passenger processing
Part 1 - Amendment of the Migration Act 1958
Division 1 - Amendments
Items 1 to 2 - Paragraph 5A(3)(c) and paragraph 5A(3)(ca)
1343. These items omit the words , including passenger processing at Australia`s border
from paragraph 5A(3)(c) and insert new paragraph 5A(3)(ca).
1344. Subsection 5A(1) defines the meaning of personal identifier. Subsection 5A(3) sets
out the purposes that must be promoted before any new personal identifiers are prescribed
under paragraph 5A(1)(g). The purposes in subsection 5A(3) are also cross referenced in
paragraphs 336D(2)(a) and 336F(2) which provide for the access and disclosure of
identifying information which is relevantly defined in section 336A to include any
personal identifier obtained by the Department for one or more of the purposes referred to in
subsection 5A(3).
1345. New paragraph 5A(3)(ca) provides that one of the purposes under paragraph 5A(2)(c)
is to improve passenger processing at Australia`s border. Purposes identified under
paragraph 5A(2)(c) are the purposes for which the Governor-General may prescribe an
identifier as a personal identifier under paragraph 5A(1)(g).
1346. Existing paragraph 5A(3)(c) provides that one purpose is to improve the integrity of
entry programs, including passenger processing at Australia`s border. The amended
paragraph 5A(3)(c) will omit the clarifying passage, as it would be redundant due to the
insertion of new paragraph 5A(3)(ca).
1347. In combination, these items ensure that personal identifiers may be obtained,
accessed, used and disclosed for the purposes of improving passenger processing at
Australia`s borders.
Item 3 - Paragraph 5A(3)(ca)
1348. This item inserts the words or from after the words voyage to in 245I(2)(b). This
amendment is a technical amendment and is consequential to the insertion of new
section 245LA by item 12.
Item 4 - Subsections 245J(3) and 245K(2)
1349. This item inserts the words (including personal identifiers) after the word
information in subsections 245J(3) and 245K(2).
1350. Current subsection 245J(3) requires that an instrument of approval of a system for
reporting on passengers or crew must specify the information about passengers and crew that
is to be reported by that system.
1351. Current subsection 245K(2) provides a similar requirement for instruments of
approval for fall-back reporting systems.
210
1352. The purpose of this amendment is to clarify that information that an approved system
may be required to report on can include personal identifiers.
Item 5 - Section 245L (heading)
1353. This item repeals the current heading 245L Obligation to report on passengers and
crew and substitutes the new heading 245L Obligation to report on persons arriving in
Australia.
1354. The purpose of this amendment is to provide greater clarity that section 245L deals
only with reports on arriving persons, not reports on all passengers and crew, which would
include departing persons. It also assists in distinguishing the function of section 245L from
new section 245LA.
Items 6 to 7 - Subsection 245L(1) and paragraphs 245L(2)(a) and (b)
1355. These items omit the words an airport or port from subsection 245L(1) and
paragraphs 245L(2)(a) and 245L(2)(b) and substitutes them with the words a place, in the
case of subsection 245L(1), and place in Australia, in the case of paragraphs 245L(2)(a)
and 245L(2)(b).
1356. Current subsection 245L(1) provides that section 245L applies to an aircraft or ship of
a kind to which Division 12B applies that is due to arrive at an airport or port in Australia
from a place outside Australia. Current subsection 245L(2) relevantly provides that the
operator of the aircraft or ship must report on each passenger and crew member who will be
on board the aircraft or ship at the time of its arrival at the airport or port.\
1357. The purpose of these amendments is to ensure that an aircraft or ship to which
Division 12B applies cannot avoid the reporting requirements under the Division by arriving
in Australia otherwise than at an airport or port. The equivalent provisions for departure
under section 245LA are similarly broad.
1358. It is intended that this consistency in reporting will provide a more complete picture
of who is arriving in and departing from Australia, which will aid in the management of the
departure from and arrival in Australia of persons of concern.
Item 8 - Subsection 245L(2) (note 1)
1359. This item omits the words (and the obligation in subsection (6)) from note 1 under
subsection 245L(2).
1360. This amendment is a technical amendment and is consequential to the repeal of
subsection 245L(6).
Item 9 - Paragraphs 245L(4)(a) and (b)
1361. This item omits the word airport (wherever occurring) and substitutes the word
place in paragraphs 245L(4)(a) and 245L(4)(b).
1362. Current paragraphs 245L(4)(a) and (b) provide timeframes for reporting based on an
aircraft`s likely time of arrival at the airport in Australia.
211
1363. This amendment is a technical amendment and is consequential to the broadening of
subsection 245L(1) to a place in Australia.
Item 10 - Paragraphs 245L(5)(a) and (b)
1364. This item inserts the words at the place in Australia after the word arrival in
paragraphs 245L(5)(a) and 245L(5)(b).
1365. Current paragraphs 245L(5)(a) and (b) provide timeframes for reporting based on the
period before a ship`s time of arrival.
1366. This amendment is a technical amendment and is consequential to the broadening of
subsection 245L(1) to a place in Australia.
Item 11 - Subsections 245L(6) and (7)
1367. This item repeals subsections 245L(6) and (7). This amendment is a technical
amendment and is consequential to the creation of new requirements in new section 245LB
that apply to both section 245L and new section 245LA.
Item 12 - Section 245LA
1368. This item inserts new section 245LA into Division 12B of the Act.
1369. New section 245LA is entitled 245LA Obligation to report on persons departing
from Australia. New section 245LA contains similar requirements to section 245L, but
where section 245L requires reports on persons arriving in Australia, section 245LA requires
reports on persons departing from Australia.
1370. New subsection 245LA(1) provides that section 245LA applies to an aircraft or ship
of a kind to which Division 12B applies that is due to depart from a place in Australia on a
flight or voyage to a place outside Australia, whether or not after calling at other places in
Australia.
1371. The phrase whether or not after calling at places in Australia`, which is included in
new subsection 245LA(1), but not subsection 245L(1), is included to reflect that a person
may board a flight or voyage that will depart Australia before that flight or voyage`s final
stop in Australia, and it may be desirable to receive a report about that person before they
board the aircraft or ship, rather than before the aircraft or ship departs Australia. This
reflects a fundamental difference between departing and arriving flights or voyages.
1372. Flights and voyages departing Australia may make stops in Australia, and reports on
persons on those parts of the flight or voyage may assist in managing the departure of the
flight and voyage regardless of whether the persons are present on the final departure part of
the flight or voyage. Arriving flights or voyages may also go on to make further stops in
Australia, however at that point they have already passed the point of arrival, so further
reports would be of no use in managing that arrival.
1373. However, under new subsection 245LA(3), regulations may limit the reporting
requirements to only the part of the flight or voyage where the aircraft or ship actually leaves
Australia.
212
1374. New subsection 245LA(2) provides that the operator of the aircraft or ship must,
using approved primary reporting systems, report on each passenger or crew member who is
on, or is expected to be on the flight or voyage including any part of the flight or voyage.
This subsection is similar to subsection 245L(2) in that they both require the operator of an
aircraft or ship to use an approved system to report on passengers and crew.
1375. New subsection 245LA(2) is broader than subsection 245L(2) as it extends to people
expected to be on` the flight or voyage. This is intended to address the different levels of
certainty on passenger information available at arrival and departure. While arriving aircraft
and ships can be definite about who is on board the vessel for several hours or longer prior to
arrival, departing aircraft and ships may be expecting passengers who do not eventually board
the aircraft or ship, or may not be expecting passengers who join the flight or voyage at the
last minute. It is intended that the term expected to be` will require reports on passengers
even if it cannot be definitely ascertained that they will be on the voyage.
1376. It is intended that the words expected to be` do not limit the operator`s responsibility
under new subsection 245LA(2) to report on passengers who are on a flight or voyage. For
example, failing to report on a stowaway on a ship would be failing to meet the requirements
of new subsection 245LA(2) despite the operator not expecting the stowaway to be on the
ship.
1377. To effectively manage the movement of persons of concern, it is necessary that DIBP
receive the reports with time to respond, and waiting for absolute certainty on passenger and
crew details on departing flights or voyages will not allow adequate response time.
1378. New subsection 245LA(2) is also broader than subsection 245L(2) because it includes
the words including any part of the flight or voyage. This is to clarify that, subject to the
operation of subsection 245LA(3), if a flight or voyage travels to multiple places in Australia
before departing Australia, then reports would need to be provided for persons on board each
leg of those trips, and that the prescribed times, events and periods in new subsection
245LA(5) may refer to these earlier parts of the flight or journey.
1379. Note 1 under new subsection 245LA(2) provides that the obligation to report under
subsection 245LA(2) must be complied with even if the information concerned is personal
information
1380. The purpose of this note is to clarify that disclosure by the operator of the aircraft or
ship of personal information under subsection 245LA is authorised by law, and so falls under
the exception provided by paragraph 6.2(b) of Australian Privacy Principle 6.
1381. New subsection 245LA(3) limits new subsection 245LA(2) by requiring that if:
on the flight or voyage, the aircraft or ship calls at one or more places in Australia
before departing to the place outside Australia and
the regulations prescribe that a report under subsection 245LA(2) must only relate
to the part of the flight or voyage that is from the last place in Australia to the
place outside Australia
then the report must be for each passenger or crew member who is on, or is expected to be
on, that part of the flight or voyage.
213
1382. The purpose of new subsection 245LA(2) is to ensure that in the situation where a
flight or voyage is calling in multiple places in Australia before departing Australia, there is
the flexibility to determine whether a report is necessary on every person on each part of the
flight or voyage; there is flexibility to prescribe reporting on every person who is or is
expected to be on the final part of the flight or voyage only under subsection 245LA(3).
1383. The intention behind enabling these requirements to be prescribed in regulation is to
provide flexibility to deal with a number of complex operating situations, for example in
cases where an aircraft or ship may be leaving a major airport or port, calling on a remote
place in Australia where reporting is limited and then departing Australia. In these cases it
may be desirable to receive reports on all persons on both parts of the voyage, rather than just
the part from the remote place.
1384. By prescribing the requirement in the regulations rather than in the Act it allows the
flexibility to modify the arrangements more easily to match changes in the operating
environment.
1385. While regulations made under new subsection 245LA(3) may only require a report on
the passengers who are on a specific part of the flight or voyage, paragraph 254LA(5)(b) is
intended to provide sufficient flexibility that a report on a passenger who will be travelling on
the specified part of the flight or voyage could be required from the point that they check in
for their flight or voyage, even if they are first travelling on a part of the flight or voyage on
for which a report is not required.
1386. New subsection 245LA(4) provides that a report under new subsection 245LA(2)
must include the information relating to a passenger or crew member specified in relation to
the relevant approved primary reporting system. The information required by an approved
primary reporting system is specified in an instrument made under subsection 245J(3).
1387. The purpose of new subsection 245LA(4) is to require information specified under the
relevant approved reporting system to be provided. Different reports may be required from
different modes of transport as well as from different types of flights and voyages, where
different systems may be used or different information may be specified.
1388. New subsection 245LA(5) provides that a report on a passenger or crew member
under subsection 245LA(2) must be provided:
if the regulations prescribe a period or periods before the aircraft`s or ship`s
departure from a place for the giving of a report under subsection 245LA(2) in
relation to the passenger or crew member--not later than that period or each of
those periods, and
if the regulations prescribe an event or events for the giving of a report under
subsection (2) in relation to the passenger or crew member--at the time of that
event or each of those events, and
if the regulations prescribe a time or times for the giving of a report under
subsection (2) in relation to the passenger or crew member--at that time or each
of those times.
1389. This provides the flexibility to match the deadline to the operating realities of the
different modes of transport, and the long-term flexibility to modify the deadline should those
214
realities change. It also explicitly allows for multiple periods, events and times to be
prescribed, and requires a report for each of those points.
1390. Additionally, given different transport modes may have different processes for
boarding passengers and crew, it is not possible to give a specific point in time at which a
person is a person expected to be on, any part of the flight or voyage` that would be
appropriate in all cases. Instead, new subsection 245LA(5) effectively provides that the
relevant point in time can be prescribed for each mode of travel.
1391. New subsection 245LA(6) provides that to avoid doubt, more than one report may be
required to be provided under subsection 245LA(2) in relation to a passenger or crew
member. This reflects the explicit reference to multiple periods, events and times that can be
prescribed for the purposes of new subsection 245LA(5).
1392. The purpose of explicitly providing for the requirement to provide multiple reports is
to ensure that an operator can be required to provide a later report even if they have provided
an earlier report. Again, this reflects the uncertainty that can exist on departure data up until
the point that the aircraft or ship actually departs. It is intended that when multiple reports
are required, the information will likely become increasingly accurate as the time of the
report gets closer to the time of departure.
1393. The purpose of the note under paragraph 245LA(6) is to provide an example that
further clarifies that if reports are required under multiple paragraphs of new
subsection 245LA(5), then all those reports must be made.
1394. The overall purpose of new section 245LA is to ensure that reports on departing
persons are can be required in a sufficient time in advance of the person`s departure from
Australia that DIBP can more efficiently manage the departure of persons from Australia,
particularly the departure of persons of concern.
Item 13 - Before section 245M
1395. This item inserts new section 245LB into Division 12B of the Act. The new section is
entitled 245LB Dealing with information collected under this Division etc.
1396. New subsection 245LB(1) provides that DIBP may collect information (including
personal identifiers) provided in a report provided under Division 12B.
1397. The purpose of new subsection 245LB(1) is to ensure that where an operator provides
a report required under section 245L or 245LA to DIBP, the information, including any
personal identifiers, in the report may be collected and retained by DIBP.
1398. New subsection 245LB(2) provides that the following provisions:
section 336D (which authorises access to identifying information)
section 336E (other than subsection 336E(1)) and section 336F (which authorise
disclosure of identifying information), and
a provision of an instrument made under section 336D or 336F
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apply to personal information (other than personal identifiers) collected under Division 12B
or under subsection 64ACA(11) or 64ACB(8) of the Customs Act in the same way as they
apply to identifying information.
1399. The purpose of new subsection 245LB(2) is to ensure that any personal information
collected under Division 12B may be accessed, used and disclosed in the same way as
identifying information, as defined in Part 4A of the Act, may be accessed, used and
disclosed. The offences provided in Part 4A do not apply to the access, use and disclosure of
personal information under this Division.
1400. For example, where a report included both identifying information (such as a photo or
signature) and personal information (such as a name or date of birth), this information may be
accessed, used and disclosed together and in the same way without having to identify
separate authorisation under the Privacy Act for the personal information.
1401. New subsection 245LB(3) provides that as soon as practicable after information is
reported under section 245L or 245LA, DIBP must provide the information to Customs. This
requirement mirrors and replaces the current requirement in subsection 245L(6) being
repealed by this bill in item 11, and extends that requirement to include information received
on departing persons under new section 245LA. This extension is consequential to the
creation of the new reporting requirements under section 245LA.
1402. The purpose of including the phrase including personal identifiers` is to clarify that
personal identifiers are not exempt from the requirement that information be provided to
Customs.
1403. New subsection 245LB(4) provides that 245LB does not, by implication, affect the
interpretation of any other provision of the Migration Act or an instrument made under the
Migration Act.
1404. The purpose of new subsection 245LB(4) is to ensure that these provisions only relate
to information collected, accessed, used and disclosed under Division 12B of Part 2 of the
Act and do not impact on the interpretation of any other provision in the Act or instrument
made under the Act.
Item 14 - Subsection 245M(2)
1405. This item omits the words Section 245L applies from subsection 245M(2) and
substitutes the words Sections 245L and 245LA apply.
1406. This amendment is a technical amendment and is consequential to the insertion of
new section 245LA by item 12.
Item 15 - Paragraph 245M(2)(a)
1407. This item omits the words paragraph 245L(2)(a) or (b) from paragraph 245M(2)(a)
and substitutes the words subsections 245L(2) and 245LA(2).
1408. This amendment is a technical amendment and is consequential to the insertion of
new section 245LA by item 12.
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Item 16 - Paragraph 245M(2)(b)
1409. This item omits the words subsection 245L(3) from paragraph 245M(2)(b) and
substitutes the words subsections 245L(3) and 245LA(4).
1410. This amendment is a technical amendment and is consequential to the insertion of
new section 245LA by item 12.
Item 17 - Subsections 245N(1), (2) and (4)
1411. This item inserts the words or 245LA(2) after 245L(2) in subsections 245N(1),
245N(2) 245N(4) and 245M(2)(b).
1412. This amendment is a technical amendment and is consequential to the insertion of
new section 245LA by item 12.
Division 2 - Application of amendments made by Part 1
Item 18 - Application of amendments made by Part 1
1413. Sub-item 18(1) provides that the amendments made by items 1 and 2 of this schedule,
as they affect section 336A, 336D or 336F of the Migration Act, apply in relation to personal
identifiers and personal information provided before, on or after the commencement of this
Schedule.
1414. The purpose of these sections is to ensure that after commencement, relevant personal
identifiers and personal information are able to be accessed and disclosed regardless of when
they are collected.
1415. Sub-item 18(2) provides that the amendments made by item 4 apply in relation to an
aircraft or ship arriving at a place in Australia on or after that commencement.
Sub-item 18(3) provides that sub-item 18(2) does not apply to the extent that it would require
a report given before that commencement to include a personal identifier.
1416. Sub-item 18(4) provides that the amendments made by items 6, 7, 9 and 10 apply in
relation to an aircraft or ship arriving at a place in Australia (whether or not an airport or a
port) on or after that commencement. However sub-item 18(5) provides that, if the aircraft or
ship arrives at a place that is not an airport or port, then sub-item 18(4) does not apply to the
extent that it would require a report in relation to that arrival to be given before that
commencement.
1417. Sub-item 18(6) provides that the amendments made by items 3,4,12,14,15,16 and 17
apply in relation to an aircraft or ship departing from a place in Australia on or after that
commencement. Sub-item 18 (7) provides however that, sub-item 18(6) does not apply to the
extent that it would require a report to be given before that commencement.
1418. The combined effect of sub-items 18(2) through 18(7) is to ensure that the new
reporting requirements consistently apply to all arrivals and departures from commencement
of the Schedule, but that they do not do so retrospectively to require reports from before
commencement under the new framework.
217
1419. It is intended that this may mean that in the departure context, where multiple reports
may be required under new subsection 245LA(5), that only the reports that fall due after
commencement would be required.
1420. Sub-item 18(8) provides that the amendment made by item 13 applies in relation to
information in reports provided on or after that commencement.
As reports under the new provision are only required from the time of commencement, it is
appropriate for item 13 to apply from time of commencement.
1421. Sub-item 18(9) provides that if:
an instrument was made for the purposes of a provision of the Migration Act, and
the instrument was in force immediately before the commencement of this
Schedule, and
the provision is amended by Schedule 6
then the instrument continues in force (and may be dealt with) as if it were made for the
purposes of that provision as amended.
1422. Sub-item 18(9) is a saving provision, the purpose of the sub-item is to ensure that
existing instruments, for example instruments made under 245J(1), continue in force on the
commencement of these provisions.
Part 2 - Amendment of the Customs Act 1901
Item 19 - Paragraphs 64ACA(12)(B) and 64ACB(9)(b)
1423. This item omits the words subsection 245L(6) and substitutes the words
section 245LB in paragraphs 64ACA(12)(b) and 64ACB(9)(b) of the Customs Act. This
substitution is consequential to the repeal of subsection 245L(6) and its replacement by the
similar but broader section 245LB.
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Schedule 7 - Seizing bogus documents
Part 1 - Amendment of the Migration Act 1958
Division 1 - Main amendments
Item 1 - Section 103
1424. Item 1 inserts , produce after the word present in section 103 of the Migration
Act.
Item 2 - Section 103
1425. Item 2 inserts , produced after the word presented in section 103 of the Migration
Act.
1426. Section 103 currently requires that a non-citizen must not give, present or provide
bogus documents or cause such documents to be given, presented or provided to an officer,
an authorised system, the Minister, or a tribunal performing a function or purpose under the
Migration Act.
1427. These amendments clarify that relevant documents must also not be produced or
caused to be produced to a person, system or body mentioned above.
1428. The purpose of these amendments is to clarify that a non-citizen may not use bogus
documents when dealing with DIBP, regardless of how the documents are brought to the
attention of DIBP.
1429. It is intended that a non-citizen who does so may have his or her visa cancelled under
section 109 of the Migration Act or visa application refused under section 65 of that Act, as
appropriate.
Item 3 - Before section 487 (heading)
1430. This item inserts a new Division 1, entitled Bogus documents, and a new heading of
Division 2 - Other into Part 9 of the Migration Act. New Division 1 contains new
sections 487ZI, 487ZJ, 487ZK and 487ZL. Division 2 contains the existing sections of
Part 9.
1431. The provisions in new Division 1 impose a penalty for the use of bogus documents by
any person; the penalty being that those documents are forfeited to the Commonwealth.
The provisions also set out the circumstances in which documents so forfeited would be
condemned as forfeited to the Commonwealth.
1432. The defined term bogus document is proposed to be re-located by the Migration
Amendment (Protection and Other Measures) Bill 2014 from section 97 of the Migration Act
into subsection 5(1) of that Act to ensure that the definition applies to the whole Act.
1433. Documents are automatically forfeited to the Commonwealth by operation of law
where those documents are bogus documents, under new subsection 487ZI(2). When
forfeiture takes place, the right to the possession of the forfeited documents rests with the
Commonwealth.
219
1434. Where the right to the possession of the forfeited document is not contested or a court
with competent jurisdiction does not support the release of the document to the relevant
person (including the owner), the Commonwealth`s right to the possession of the forfeited
document becomes exclusive. The relevant document is then condemned as forfeited to the
Commonwealth.
1435. New section 487ZI provides for a prohibition on a person giving, presenting,
producing or providing bogus documents (referred to in this Explanatory Memorandum, as
using the document), and for the forfeiture of such documents if used.
1436. New subsection 487ZI(1) provides that a person (whether a citizen or non-citizen)
must not give, present, produce or provide a bogus document to an officer, an authorised
system, the Minister, a tribunal or any other person or body performing a function or purpose
under, or in relation to, the Migration Act (the official), or cause such a document to be so
given, presented, produced or provided.
1437. Subsection 487ZI(1) partially mirrors the prohibition on the use of bogus documents
under section 103 of the Migration Act, but is broader than that provision as it also applies to
citizens and prohibits the provision of documents to a wider range of persons and bodies.
1438. New subsection 487ZI(2) provides that a bogus document given, presented, produced
or provided in contravention of subsection 487ZI(1) is forfeited to the Commonwealth.
1439. The purpose of this amendment is to remove bogus documents from circulation in the
community. By seizing and retaining documents that are bogus, DIBP will assist to prevent
such documents from being available to be used for further fraudulent purposes. Fraudulent
documents are a known facilitator of crime, including identity theft.
1440. In addition, the purpose is also to deter persons from using bogus documents by
imposing a penalty on the use of those documents; that penalty being the forfeiture of
relevant documents to the Commonwealth.
1441. When documents are forfeited to the Commonwealth, new section 487ZK sets out the
circumstances in which those documents are condemned as forfeited to the
Commonwealth. The forfeited documents may then be dealt with in accordance with new
section 487ZL.
1442. These provisions do not have any impact on the operation of provisions which permit
the refusal of a visa application or the cancellation of a visa where a bogus document has
been provided. It is not intended that such action would be dependent on the documents being
condemned as forfeited.
1443. New section 487ZJ concerns seizure of bogus documents.
1444. New subsection 487ZJ(1) provides that, if an officer reasonably suspects that a
document is forfeited under subsection 487ZI(2), then the officer may seize the document.
1445. The purpose of subsection 487ZJ(1) is to ensure that a document that is suspected to
be forfeited under new section 487ZI, may be seized.
220
1446. Providing an officer with discretion to decide whether or not to seize a document that
the officer reasonably suspects to be a bogus document, ensures that DIBP has the flexibility
to deal appropriately with the broad range of situations that may arise.
1447. New subsection 487ZJ(2) provides that, as soon as practicable after seizing the
document, the officer must give written notice of the seizure to the person who gave,
presented, produced or provided the document to the official under subsection 487ZI(1).
1448. New subsection 487ZJ(3) provides that the notice must:
identify the document, and
state that the document has been seized, and
specify the reason for the seizure, and
state that the document will be condemned as forfeited unless the person institutes
proceedings against the Commonwealth before the end of the period specified in
the notice:
o to recover the document, or
o for a declaration that the document is not forfeited.
1449. New subsection 487ZJ(4) provides that, for the purposes of paragraph 487ZJ(3)(d),
the period (being the period required to be specified in the notice under subsection 487ZJ(3))
must:
start on the date of the notice, and
end 90 days after that date.
1450. The purpose of subsections 487ZJ(2) to (4) is to provide that, when a document is
seized under new subsection 487ZJ(1), the relevant person must be notified and the notice
must meet the minimum requirements for notification.
1451. New section 487ZK concerns documents condemned as forfeited to the
Commonwealth.
1452. New subsection 487ZK(1) provides that, if a document is seized under
subsection 487ZJ(1), then:
the person who gave, presented, produced or provided the document to the official
under subsection 487ZI(1), and
if that person is not the owner of the document - the owner
may, subject to paragraph 487ZK(2)(b), institute proceedings in a court of competent
jurisdiction:
to recover the document, or
for a declaration that the document is not forfeited.
1453. New subsection 487ZK(2) provides that the proceedings:
may be instituted even if the seizure notice required to be given under
subsection 487ZJ(2) in relation to the document has not yet been given, and
221
may only be instituted before the end of the period specified in the seizure notice.
1454. Ensuring that court proceedings could be initiated at any time prior to the end of the
period specified in the seizure notice to contest the forfeiture of relevant documents, also
ensures that the rights of all affected persons can be considered and decided by a court before
those documents are condemned as forfeited to the Commonwealth.
1455. New subsection 487ZK(3) provides that if, before the end of the period specified in
the seizure notice, the person or owner does not institute the proceedings, the document is
condemned as forfeited to the Commonwealth immediately after the end of that period.
1456. New subsection 487ZK(4) provides that if, before the end of the period specified in
the seizure notice, the person or owner does institute the proceedings, the document is
condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
an order for the person or owner to recover the document, or
a declaration that the document is not forfeited.
1457. New subsection 487ZK(5) provides that, for the purposes of subsection 487ZK(4), if
the proceedings go to judgment, they end:
if no appeal against the judgment is lodged within the period for lodging such an
appeal--at the end of that period, or
if an appeal against the judgment is lodged within that period--when the appeal
lapses or is finally determined.
1458. New section 487ZK sets out the circumstance in which documents forfeited to the
Commonwealth under section 487ZI are condemned as forfeited to the Commonwealth, and
when that event is taken to have occurred.
1459. This amendment is made for two purposes. The first purpose is to provide people
with a mechanism to challenge the forfeiture of their documents and the second is to provide
certainty as to when the Commonwealth obtains exclusive ownership of the forfeited
documents.
1460. New section 487ZL is about dealing with a document after it is condemned as
forfeited to the Commonwealth.
1461. New subsection 487ZL(1) provides that if, under section 487ZK, a document is
condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including
by being given to another person) in accordance with the directions of the Minister made
under section 499 of the Migration Act.
1462. New subsection 487ZL(2) provides that, if the Minister considers that the document
may be relevant to proceedings in a court or tribunal, then the Minister:
must give a direction for the safe keeping of the document, and
must authorise access to the document for the purposes of those proceedings.
222
1463. The directions made under section 499 are not legislative instruments. That is, a
direction referred to in section 487ZL is not a legislative instrument as it does not determine
the law by its own force.
1464. The purpose of this new section is to provide the Minister with the authority to
specify directions on how to deal with documents that have been condemned as forfeited to
the Commonwealth. Allowing the process to be specified in directions rather than setting
them out in the Migration Act or prescribing them in the Migration Regulations, provides the
flexibility to deal appropriately with the broad range of documents and situations that may
arise.
1465. By requiring the Minister to direct for the safe keeping of documents condemned as
forfeited and authorising access to those documents where they are relevant to ongoing
proceedings in a court or tribunal, it ensures that the Commonwealth does not interfere with a
court or tribunal`s need to have all relevant evidence available for their consideration.
1466. It is intended that the directions may allow for documents that are condemned as
forfeited to be given to other government document issuing agencies or foreign issuing
authorities, where appropriate, to retain the documents for research or other purposes, or to
arrange for their destruction, subject to the application of the Archives Act 1983 (Archives
Act) and the action of subsection 487ZL(2).
Division 2--Other (heading)
1467. The purpose of this amendment is to distinguish the provisions in new Division 1--
Bogus documents from the existing provisions under Part 9 of the Migration Act.
Division 2 - Contingent amendments
Item 4 - Subsection 487ZI(1)
1468. Item 4 inserts (within the meaning of section 97) after the words bogus document
in new subsection 487ZI(1) of the Migration Act.
Item 5 - Subsection 487ZI(1)
1469. Item 5 omits the reference to (within the meaning of section 97) in new
subsection 487ZI(1) of the Migration Act.
1470. Currently, the term bogus document is defined in section 97 of the Migration Act.
This term is defined for the purposes of Subdivision C of Division 3 of Part 2 of the
Migration Act. However, the Migration Amendment (Protection and Other Measures)
Bill 2014 would repeal the definition in section 97 and create a new but identical definition in
subsection 5(1) of the Migration Act.
1471. The new definition in subsection 5(1) of the Migration Act would not be restricted to
Subdivision C of Division 3 of Part 2, and would apply to all uses of the term bogus
document in that Act.
1472. The purpose of these contingent amendments is to ensure that the term bogus
document referenced in the new Division inserted by item 3 has the meaning given to
bogus document by section 97 of the Migration Act while that definition remains in
223
section 97. In the event that the definition is relocated into subsection 5(1) the reference to
section 97 will no longer be relevant and will be removed by item 5. The commencement
provisions give effect to this.
1473. These amendments are consequential to the amendments in the Migration
Amendment (Protection and Other Measures) Bill 2014.
Division 3 - Application of amendments made by Part 1
Item 6 - Application of amendments
1474. This item provides that the amendments made by Part 1 of this Schedule apply to
documents given, presented, produced or provided to the official after the commencement of
item 1 of this Schedule.
Part 2 - Amendment of the Australian Citizenship Act 2007
Division 1 - Main amendments
Item 7 - Section 3
1475. This item inserts a definition of bogus document into section 3 of the Citizenship
Act.
1476. The Citizenship Act currently does not contain provisions relating to, or a definition
of bogus document.
1477. The new defined term bogus document is provided to have the same meaning as in
subsection 5(1) of the Migration Act.
1478. This is a consequential amendment as a result of the amendments made by item 8,
which insert a new Division that deals with bogus documents given under the Citizenship
Act.
Item 8 - Before section 46
1479. This item inserts a new Division 1, entitled Bogus documents, and a new heading of
Division 2 - Other into Part 3 of the Citizenship Act. New Division 1 contains new
sections 45A, 45B, 45C and 45D. Division 2 contains the existing sections of Part 3.
1480. The Citizenship Act currently does not contain requirements that bogus documents
can be prohibited, seized, forfeited or condemned to be forfeited to the Commonwealth.
1481. Similar to the amendments made by item 3 of this Schedule above, the provisions in
new Division 1 impose a penalty for the use of bogus documents by any person; the penalty
being that those documents are forfeited to the Commonwealth. The provisions also set out
the circumstances in which documents so forfeited would be condemned as forfeited to the
Commonwealth.
1482. Documents are automatically forfeited to the Commonwealth by operation of law
where those documents are bogus documents, under new subsection 45A(2). When forfeiture
224
takes place, the right to the possession of the forfeited documents rests with the
Commonwealth.
1483. Where the right to the possession of the forfeited document is not contested or a court
with competent jurisdiction does not support the release of the document to the relevant
person, the Commonwealth`s right to the possession of the forfeited document becomes
exclusive. The relevant document is then condemned as forfeited to the Commonwealth.
1484. While these provisions are substantially similar to those inserted by item 3 above,
there are some differences based on structural differences between the two Acts.
The Citizenship Act only provides for documents to be given, as a result the
sections inserted by this item only refer to documents that are given rather than
documents that are given, presented, produced or provided, however the same
meaning is intended.
Under the Citizenship Act the Minister is provided with powers, while under the
Migration Act, powers have been provided to a number of persons and bodies,
including the Minister, the Secretary and officers. As a result, the sections inserted by
this item only vest power in the Minister, although the Minister may still delegate
those powers.
1485. New section 45A provides for a prohibition on a person giving bogus documents, and
for the forfeiture of documents so given.
1486. New section 45A partially mirrors the prohibition on the use and the forfeiture of
bogus documents in new section 487ZI inserted into the Migration Act by item 3 of this
Schedule, but relevantly specifies that bogus documents must also not be given, or caused to
be given, to a person acting under a delegation or authorisation of the Minister.
1487. The purpose of this amendment is to remove bogus documents from circulation in the
community. By seizing and retaining documents that are bogus, DIBP will assist to prevent
such documents from being available to be used for further fraudulent purposes. Fraudulent
documents are a known facilitator of crime, including identity theft.
1488. In addition, the purpose is also to deter persons from using bogus documents by
imposing a penalty on the use of those documents; that penalty being the forfeiture of
relevant documents to the Commonwealth.
1489. When documents are forfeited to the Commonwealth, new section 45C sets out the
circumstances in which those documents are condemned as forfeited to the
Commonwealth. The forfeited documents may then be dealt with in accordance with new
section 45D.
1490. New section 45B concerns seizure of bogus documents and is substantially similar to
section 487ZJ inserted into the Migration Act by item 3 of this Schedule.
1491. The purpose of subsection 45B(1) is to ensure that a document that is suspected to be
forfeited under new section 45A, may be seized.
1492. The purpose of the remaining provisions, subsections 45B(2) to (4) is to provide that,
when a document is seized under subsection 45B(1), the relevant person must be notified and
the notice must meet the minimum requirements for notification.
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1493. New section 45C concerns documents condemned as forfeited to the Commonwealth
and substantially similar to section 487ZK inserted into the Migration Act by item 3 of this
Schedule.
1494. New section 45C sets out the circumstance in which documents forfeited to the
Commonwealth under section 45A are condemned as forfeited to the Commonwealth, and
when that event is taken to have occurred.
1495. This amendment is made for two purposes. The first purpose is to provide people
with a mechanism to challenge the forfeiture of their documents and the second is to provide
certainty as to the Commonwealth`s exclusive ownership of the forfeited documents.
1496. New section 45D concerns dealing with a document after it is condemned as forfeited
to the Commonwealth and is substantially similar to section 487ZL inserted into the
Migration Act by item 3 of this Schedule.
1497. The purpose of this amendment is to provide the Minister with the authority to specify
directions on how to deal with documents that have been condemned as forfeited to the
Commonwealth. Allowing the process to be specified in directions rather than setting them
out in the Citizenship Act or prescribing them in the Australian Citizenship Regulations 2007,
provides the flexibility to deal appropriately with the broad range of documents and situations
that may arise.
1498. It is intended that the directions may allow for documents that are condemned as
forfeited to be given to other government document issuing agencies or foreign issuing
authorities, where appropriate, to retain the documents for research or other purposes, or to
arrange for their destruction, subject to the application of the Archives Act and the action of
subsection 45D(2).
1499. In addition, the purpose of new subsection 45B(3) is to explain to the reader that a
direction under new subsections 45B(1) and (2) is not a legislative instrument within the
meaning of the Legislative Instruments Act. That is, new subsection 45B(3) merely declares
that a direction under subsections 45B(1) and (2) are not legislative instruments. A direction
made under new subsection 45B(3) is not a legislative instrument as it does not determine the
law by its own force.
Division 2 - Other
1500. The purpose of this amendment is to distinguish the provisions in new Division 1 -
Bogus documents from the existing provisions under Part 3 of the Citizenship Act.
Division 2 - Contingent amendments
Items 9 and 10 - Section 3
1501. These items and item 7 insert into the Citizenship Act a definition of bogus
documents that refers to the definition used in the Migration Act.
1502. Multiple items are necessary to achieve this as similarly to the amendments made by
items 4 and 5 of this schedule, these items provide for the term bogus documents to be
differently defined, contingent on the status of the Migration Amendment (Protection and
Other Measures) Bill 2014.
226
1503. The Migration Amendment (Protection and Other Measures) Bill 2014 proposes to
move the definition from section 97 of the Migration Act into subsection 5(1) of that Act.
1504. These amendments ensure that the definition in the Citizenship Act will correctly
refer to the definition in the Migration Act, regardless of the status of the Migration
Amendment (Protection and Other Measures) Bill 2014.
Division 3 - Application of amendments made by Part 2
Item 11 - Application of amendments
1505. This item provides that the amendments made by Part 2 of this Schedule apply to
documents given to the official after the commencement of item 1 of this Schedule.
227