Bills Digest No. 174 2002-03
Criminal Code Amendment (Terrorist
Organisations) Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Criminal
Code Amendment (Terrorist Organisations) Bill 2003
Date Introduced:
29 May 2003
House:
House of Representatives
Portfolio:
Attorney-General
Commencement:
Royal Assent.
To create a mechanism whereby organisations
can be listed as terrorist organisations, relying on the Attorney-General
rather than the United Nations Security Council.
An extensive background to the terrorist organisation
'listing' arrangements under the Criminal Code can be found in the Bills
Digests to the:
• Security Legislation Amendment (Terrorism)
Act 2002(1)
• Criminal Code Amendment (Terrorist Organisations)
Act 2002,(2) and
• Criminal Code Amendment (Hizballah) Bill
2003 (Hizballah Bill).(3)
For present purposes, it is sufficient to note that the
present Bill and the Hizballah Bill both
seek to amend Part 5.3 of the Commonwealth Criminal Code. Part 5.3 deals
with terrorism. It contains provisions creating terrorist act offences
(Division 101), terrorist organisation offences (Division 102) and financing
of terrorism offences (Division 103). Division 102 also contains provisions
which enable regulations to be made listing an organisation as a terrorist
organisation in certain circumstances.
As originally introduced in the Security Legislation
Amendment (Terrorism) Bill 2002, the 'listing' arrangements would have
enabled the Attorney-General to proscribe an organisation if he or she
was satisfied on reasonable grounds that:
• the organisation or one of its members had
committed or was committing a terrorist offence, irrespective of whether
a charge had been laid or conviction obtained, or
• the declaration was reasonably appropriate
to give effect to a United Nations Security Council (UNSC) decision that
it was an international terrorist organisation, or
• the organisation posed a danger to the security
or integrity of the Commonwealth or another country.
(1) The Attorney‑General may make
a declaration in writing that an organisation is a proscribed organisation
if the Attorney‑General is satisfied on reasonable grounds that
one or more of the following paragraphs apply in relation to the organisation:
(a) if the organisation is a body
corporate—the organisation has committed, or is committing, an offence
against this Part (whether or not the organisation has been charged with,
or convicted of, the offence);
(b) a member of the organisation
has committed, or is committing, an offence against this Part on behalf
of the organisation (whether or not the member has been charged with,
or convicted of, the offence);
(c) the declaration is reasonably
appropriate to give effect to a decision of the Security Council of the
United Nations that the organisation is an international terrorist organisation;
(d) the organisation has endangered,
or is likely to endanger, the security or integrity of the Commonwealth
or another country.
These arrangements were substantially altered in the
Bill's passage through Parliament. First, the ministerial declaration
process was replaced with a regulation making power, based on the satisfaction
of the Attorney-General as to the matters outlined above. The regulations
would have been subject to the usual disallowance
procedure set out in the Acts Interpretation Act 1901(4)
but contained an additional safeguard. Proposed subsection 102.1(4) provided
that regulations would not take effect until the disallowance period had
expired.(5) Second, the 'danger to security or integrity'
formula was removed from the regime.
The Government amendments in the Senate allowed for both
Ministerial and UNSC listing and took this form:(6)
terrorist organisation
means:
(a) an organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a terrorist
act (whether or not the terrorist act occurs); or
(b) an organisation that is specified
by the regulations for the purposes of this paragraph (see subsections
(2) and (4)); or
(c) an organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (3), (5) and (6)).
(2)
Before the Governor-General makes a regulation specifying an organisation
for the purposes of paragraph (b) of the definition of terrorist organisation
in this section, the Minister must be satisfied on reasonable grounds
that the organisation is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act (whether
or not the terrorist act has occurred or will occur).
(3)
Before the Governor-General makes a regulation specifying an organisation
for the purposes of paragraph (c) of the definition of terrorist organisation
in this section, the Minister must be satisfied on reasonable grounds
that:
(a) the Security Council of the United Nations has made a decision relating
wholly or partly to terrorism; and
(b) the organisation is identified in the decision, or using a mechanism
established under the decision, as an organisation to which the decision
relates; and
(c) the organisation is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act (whether
or not the terrorist act has occurred or will occur).
(4) Regulations for the purposes of paragraph (b) or (c) of
the definition of terrorist organisation in this section may not take
effect earlier than the day after the last day on which they may be disallowed
under section 48 of the Acts Interpretation Act 1901. That section
has effect subject to this subsection.
Third, the ministerial discretion was effectively removed,
forcing a reliance on decisions, or resolutions, by the UNSC on terrorism
or terrorist organisations. This regime was enacted and became section
102.1 of the Criminal Code:
terrorist organisation
means:
(a) an organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a terrorist
act (whether or not the terrorist act occurs); or
(c) an organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (3), (5) and (6)).
(3)
Before the Governor‑General makes a regulation specifying an organisation
for the purposes of paragraph (c) of the definition of terrorist
organisation in this section, the Minister must be satisfied on
reasonable grounds that:
(a) the Security Council of the United Nations has made a decision
relating wholly or partly to terrorism; and
(b) the organisation is identified in the decision, or using a
mechanism established under the decision, as an organisation to which
the decision relates; and
(c) the organisation is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act (whether
or not the terrorist act has occurred or will occur).
So, paragraph (b) of the definition of terrorist organisation
was removed, along with corresponding subsection (2), the ministerial
discretion provision. The provisions were not renumbered.
This left one way in which a regulation could be made
listing a terrorist organisation—if the Minister was satisfied on reasonable
grounds about three things. First, that the UNSC had made a decision relating
to terrorism; second, that the organisation was identified in that decision
as 'an organisation to which the decision relates'; and third that the
organisation was directly or indirectly involved in terrorist activity.(7)
The reason for removing 'paragraph (b)' was stated by
Senator Faulkner as follows:
In response to strong objections to the government's proposed
proscription regime … we have before the chamber now a proposal which
puts forward a regime with three alternative limbs … limb 1 is an organisation
found by a court to be engaged in a terrorist act, limb 2 is an organisation
which is the subject of a decision by the United Nations Security Council
that it is an international terrorist organisation, and limb 3 is an organisation
which the Attorney- General is satisfied on reasonable grounds is engaged
in a terrorist act. Of those, limbs 2 and 3 require that the Attorney-General
make a regulation and do not take effect until the disallowance period
has expired. The government has said that such a decision would also be
open to judicial review. I indicated earlier…the very serious concerns
the opposition has that the government's approach still includes an
executive discretion to proscribe organisations.(8)
Clearly, the focus of concern was the 'executive discretion
to proscribe organisations':
That proposal remains unacceptable to the opposition and
we are moving for it to be deleted. We do not support giving such wide
powers, such arbitrary powers, to any minister of any government. We say
… that such powers are open to abuse. While we do have a very strong in
principle objection to executive proscription, we have said that we are
prepared to accept listing of an organisation declared to be a terrorist
organisation by the United Nations Security Council. I want to point out
… that there is a fundamental need in the war against terrorism to have
international cooperation. We say that in the same way that this parliament
and the Australian people should expect Australia to cooperate with the
United Nations committee processes in relation to human rights issues,
whether it is refugee or environmental issues or the whole raft of other
important questions, Australia should cooperate as best as we can with
the international community and the United Nations effort to target and
destroy terrorist organisations. This is an international struggle, and
if the international community through the United Nations Security Council
declares an organisation to be a terrorist organisation we do accept that
such an organisation should be banned.(9)
Jemaah Islamyah
Section 102.1 of the Criminal Code did not remain in
its original form for long. The Criminal Code Amendment (Terrorist
Organisations) Act 2002, which commenced on 23 October 2002, repealed subsection
102.1(4). As a result, terrorist organisation regulations made by the
Governor-General no longer have their operation postponed to the end of
the disallowance period. They commence on gazettal or as otherwise specified.
The reason behind removing subsection 102.1(4) was stated
by the Attorney-General:
Under the act, in its present form, regulations made now
that list an organisation as a terrorist organisation will not come into
operation until after the parliamentary disallowance period has ended,
in 2003. This is because there are insufficient sitting days in the remainder
of the sitting schedule to satisfy the required waiting period.
This means that the government cannot … complete the listing
of a terrorist organisation—such as a terrorist organisation believed
to be involved in the Bali bombing—until next year.
As a result, even though there may be known members of a terrorist organisation
here in Australia,
this will limit the ability of authorities to investigate them and, if
there is enough evidence, to prosecute them, until well into 2003. This
is totally unacceptable. We need to be able to act swiftly …(10)
The Bills Digest to the Hizballah Bill
contains a discussion of the reference of State powers on terrorism to
the Commonwealth under section 51(xxxvii) of the Constitution.
In the process of referrals, and the subsequent re-enactment
of Part 5.3 of the Criminal Code under the Criminal Code Amendment
(Terrorism) Act 2003, section 102.1 was renumbered, such that paragraph
(c) is paragraph (b) and subsection (3) is subsection (2):
terrorist
organisation means:
(a) an organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a terrorist
act (whether or not the terrorist act occurs); or
(b) an organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (2), (3) and (4)).
(2)
Before the Governor‑General makes a regulation specifying an organisation
for the purposes of paragraph (b) of the definition of terrorist
organisation in this section, the Minister must be satisfied on
reasonable grounds that:
(a) the Security Council of the United Nations has made a decision
relating wholly or partly to terrorism; and
(b) the organisation is identified in the decision, or using a
mechanism established under the decision, as an organisation to which
the decision relates; and
(c) the organisation is directly or indirectly engaged
in, preparing, planning, assisting in or fostering the doing of a terrorist
act (whether or not the terrorist act has occurred or will occur). […]
Finally, it is necessary to trace through the machinery
provisions in section 102.1 which govern the duration and expiry of regulations
made under subsection 102.1(2):
(3)
Regulations for the purposes of paragraph (b) of the definition of
terrorist organisation in this section cease to have effect
on the second anniversary of the day on which they take effect. To avoid
doubt, this subsection does not prevent:
(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under subsection (4);
or
(c) the making of new regulations the same in substance as those regulations
(whether the new regulations are made or take effect before or after those
regulations cease to have effect because of this subsection).
(4)
A regulation specifying an organisation for the purposes of paragraph (b)
of the definition of terrorist organisation in this section
ceases to have effect when:
(a) the decision mentioned in paragraph (2)(a) ceases to have effect;
or
(b) the organisation ceases to be identified as described in paragraph (2)(b).
The regulation
does not revive even if the organisation is again identified as described
in paragraph (2)(b).
(5)
To avoid doubt, subsection (4) does not prevent:
(a) the repeal of a regulation; or
(b) the making of a regulation that is the same in substance as a regulation
that has ceased to have effect because of that subsection.
(6) For the purpose of making regulations
specifying an organisation for the purposes of paragraph (b) of the
definition of terrorist organisation in this section, it
does not matter whether the relevant decision of the Security Council
of the United Nations was made before or after 6 July 2002.
So, regulations which implement a decision of the United
Nations Security Council have a two-year sunset clause but may cease earlier
if the regulations are repealed or if the basis for the regulations, in
the decision of the United Nations Security Council, falls away. Otherwise,
the regulations can be remade at any time.
Regulations may also provide their own time limits or
expiry dates.
Hizballah Bill
For completeness, it is also worth noting that the present
Bill was introduced into the Parliament on the same day as the Criminal
Code Amendment (Hizballah) Bill 2003. The latter is designed to give the
Government a power to 'list' organisations as terrorist organisations
provided they fit the definition of 'Hizballah External Security Organisation',
or a derivative organisation, and provided the Attorney-General is satisfied
that the organisation is directly or indirectly engaged in terrorism.
While the Opposition has supported the Hizballah
Bill, the Government does not expect the present Bill
to pass the Parliament. The Attorney-General said in his Second Reading
Speech that:
… the opposition has indicated that it will not support the
[terrorist organisation] bill.
In such circumstances, the government is introducing a second
bill, the Criminal Code Amendment (Hizballah) Bill 2003 that will allow
the terrorist wing of Hezbollah to be listed in regulations, providing
the statutory criteria for listing is met.
…
This bill [the Terrorist Organisations Bill] is intended
to be complementary, not an alternative to the … [Hizballah] bill.
Together they create a legislative framework that deals with
the immediate issue of the security threat represented by the terrorist
wing of Hezbollah, and the longer term issue of how Australia
can act independently of the Security Council in relation to our domestic
criminal laws.
While we support the opposition's indication that it will
support the government's Hezbollah specific bill, the opposition has indicated
that it will continue to obstruct passage of our first bill.
The government intend to vigorously pursue passage of our
first bill.(11)
The fate of the present Bill is yet to be decided, so
whether it could become a double dissolution trigger is a matter of speculation.
It is noteworthy, however, that four potential double dissolution bills
already exist.(12) Should the Government wish to take all or
some of these to a double dissolution election, Parliament would have
to be dissolved by 11 August
2004.(13) The latest date for a double dissolution
election is 16 October 2004.(14)
UK,
US and Canada
In the United Kingdom,
United States
and Canada,
proscription is controlled by the Parliament or Executive.
Under the Prevention of Terrorism (Temporary Provisions)
Act 1974 (UK)
an organisation could be proscribed either by legislative amendment or
by legislative instrument. The Secretary of State was empowered to add
any organisation 'that appears to him to be concerned in terrorism
… or in promoting or encouraging it'.(15) Under the Terrorism
Act 2000 (UK) the Secretary of State is empowered to add any organisation
'if he believes that it is concerned in terrorism',(16)
subject to an application-based power to revoke(17) and a right
of appeal to a judicial review-based appeal body,(18) and,
by leave, to a superior court.(19)
Under the Anti-terrorism and Effective Death Penalty
Act of 1996 (US) the Secretary of State was empowered to designate
any foreign organisation 'if he finds that' it is engaged in terrorist
activity,(20) subject to a power to revoke,(21)
a codified judicial review process(22) and disallowance by
an Act of Congress.(23)
Under the Anti-Terrorism Act 2002 (CA) the Canadian Governor-in-Council
may proscribe an organisation if satisfied that there are 'reasonable
grounds to believe' that it is knowingly involved in terrorism or is knowingly
acting on behalf of or at the direction of or in association with such
an entity.(24) This is subject to an application based power
to revoke and a partially codified judicial review process.(25)
Thus, in the United Kingdom,
United States
and Canada,
while the Executive has a primary role, supervisory control is vested
in the Judiciary (to varying degrees). Clearly, attempts to establish
effective proscription processes have had to grapple with the need to
balance the roles of the Parliament, Executive and Judiciary.
New Zealand
The Terrorism
Suppression Act 2002 (NZ) enables organisations to be designated as
terrorist or associated entities. Among other things, is an offence to
participate in such groups or undertake financial dealings with such groups.
The Act enables the Prime Minister to make interim and
final designations that a group is a terrorist or associated entity. The
grounds on which such designations can be made and the procedure for making
them are set out in the Act. The designation must be publicly notified
and must be notified to the organisation if a representative of that organisation
is in New Zealand.
Designations expire 3 years after they have been made—unless earlier revoked
by the Attorney-General or have been successfully challenged on judicial
review grounds or have had their operation extended via a High Court decision.
In order for the High Court to extend the operation of the designation
the Attorney-General must apply to the Court for the designation to remain
in force. The application must be served on any person the Court directs
it to be served on.
The High Court cannot make an extension order unless
the grounds set out in section 37 are made out. These include that the
Attorney-General satisfies the Court on the balance of probabilities that
the organisation is the subject of domestic or international criminal
proceedings, has been convicted, or has acted knowingly in relation to
certain principal or ancillary terrorist offences (terrorist acts, facilitating
terrorist acts, or assisting such acts). These provisions also extend
to organisations that are, on the balance of probabilities, wholly owned,
or effectively controlled, directly or indirectly, by such an organisation.
Northern Territory
Also, it is worth noting the struggle played out in the
Northern Territory in respect
of the anti-terrorism provisions in the Criminal Code (NT). Originally,
these provisions applied to 'proscribed organisations'. These were identified
by the Administrator, acting on the advice of the Executive Council, with
a simple parliamentary tabling requirement.(26) Early drafts
of these provisions 'contained no criteria or procedures relating to such
proscription'.(27) As enacted, they simply required, in the
opinion of the Administrator, the organisation 'has as its object or one
of its objects the use of violence to achieve its end' or that the members
have 'demonstrated a propensity to use violence to achieve the organisation's
ends'. The power to 'proscribe organisations' was strongly criticised
on the basis that it had 'potential implications for interference with
a number of civil rights'(28) and, on that basis, should be
'the subject of impartial judicial consideration'.(29) The
response at the time was that an appeal to the courts would take a sensitive
issue out of the Parliament. It would be 'an extraordinary, novel and
dangerous precedent'(30) and would 'politicise the judiciary'.(31)
But, within a year the issue was reviewed and, pursuant to an agreement
between the Commonwealth and the Northern Territory,(32)
control was surrendered to the courts.(33)
Apart from obvious differences regarding the range of
terrorist organisations covered, the main provisions of the present Bill
correspond fairly closely to those of the Hizballah Bill.
Item 1 repeals subsection 102.1(2) of the Criminal
Code and replaces it with proposed subsection 102.1(2). The effect
of proposed subsection 102.1(2) is that the UNSC basis for listing
terrorist organisations is replaced by the ministerial discretion that
was once proposed by the Government in the Senate.
In effect, the version of 'paragraph (b)' of the definition,
and the corresponding subsection (2), that was removed by Opposition amendments
in the Senate in June 2002,(34) is reinstated and exiting 'paragraph
(c)', and corresponding subsection (3), is removed.
In short the original proposal is reinstated and the
connection with the UNSC is severed.
Item 2 deals with the machinery provisions.
Proposed subsection 102.1(4) effectively allows
a 'terrorist organisation' to be 'de-listed' if the Minister 'ceases to
be satisfied' that the organisation is directly or indirectly engaged
in or assisting in (etc) terrorist acts. The way that de-listing works
is that the Minister publishes a declaration in the Gazette. Once
the declaration is made, the regulations cease to have effect. The Minister's
de-listing is not subject to parliamentary review ie it is not a disallowable
instrument. An organisation that has been 'de-listed' can be re-listed
[proposed subsection 102.1(5)].
- Nathan Hancock, Security
Legislation Amendment (Terrorism) Bill 2002, Bills
Digest No. 126, 2001–02.
- Sudip Sen, Criminal Code Amendment (Terrorist Organisations)
Bill 2002, Bills Digest
No. 87, 2002–03.
- Jennifer
Norberry, Criminal Code Amendment (Hizballah) Bill
2003, Bills Digest
No. 170, 2002–03.
- The Acts Interpretation Act 1901 contains gazettal
and tabling requirements that apply to Commonwealth regulations and
contains disallowance provisions. These normally work in the following
way. Regulations made under a primary statute must be notified in the
Gazette and laid before each House of Parliament within 15 sitting
days of being made. If the tabling requirements are not complied with,
the regulations cease to have effect. There is then a further period
of 15 sitting days in which a notice of motion can be given to disallow
the regulation. If either House (normally the Senate) passes a resolution
within this timeframe disallowing the regulation, then it ceases to
have effect. Disallowance can also be deemed to have occurred. This
happens if a notice of motion, given within the 15 sitting day period,
is not withdrawn or called on within a further 15 sitting days. In this
case, the regulation is deemed to have been disallowed. In other words,
the disallowance period run for as little as 15 sitting days after tabling
to as much as 30 sitting days after tabling (if deemed disallowance
occurs).
- See: Senate Journals, 25
June 2002, pp. 469–71.
- Senator Chris
Ellison, Security Legislation Amendment (Terrorism)
Bill 2002, Senate, Debates, 25 June 2002, p. 2602.
- Subsection 102.1(3).
- Senator John Faulkner,
Security Legislation Amendment (Terrorism) Bill 2002, Senate, Debates,
25 June 2002, p. 2606 (emphasis
added).
- Senator John Faulkner,
Security Legislation Amendment (Terrorism) Bill 2002, Senate, Debates,
26 June 2002, p. 2624.
- Attorney-General, Second Reading Speech, Criminal
Code Amendment (Terrorist Organisations) Bill 2002, House of Representatives,
Debates, 23 October 2002, p. 8450.
- Attorney-General, Second Reading Speech, Criminal
Code Amendment (Terrorist Organisations) Bill 2003, House of Representatives,
Debates, 29 May 2003, pp. 14930–1.
- Workplace Relations (Fair Dismissal) Bill 2002 [No.
2]; Trade Practices Amendment (Small Business Protection) Bill 2002
[No. 2]; National Health Amendment (Pharmaceutical Benefits—Budget Measures)
Bill 2002 [No. 2]; and Workplace Relations (Secret Ballots for Protected
Action) Bill 2002 [No. 2].
- A double dissolution cannot occur less than 6 months
from the date of expiry of the House of Representatives (in the case
of the 40th Parliament—11 February 2005).
- See Rob Lundie, 'Timetable
for the Next Commonwealth
Election', Research Note, No. 37 2001-02, 14 May 2002.
- Subsection 1(3).
- Subsection 3(4).
- Section 4.
- Section 5. The body is the Proscribed Organisations
Appeal Commission.
- Subsection 6.
- Pub. L. 104-132,
section 302, inserting 8 U.S.C. 1189.
- 8 U.S.C. 1189(a)(6).
- 8 U.S.C. 1189(b).
- 8 U.S.C. 1189(a)(5).
- Anti-Terrorism Act (CA), section 4, inserting subsection
83.05(1) into the Criminal Code.
- Anti-Terrorism Act (CA), section 4, inserting subsection
83.05(5) into the Criminal Code.
- Criminal Code Act 1983 (NT), section 51 (amended).
- David Weisbrot, 'Criminal
Law: NT Prepares for War', Legal Service Bulletin, Vol. 7(4),
August 1982, p. 184.
- 'Concerns have been expressed that this section [original
section 51] has potential implications for interference with a number
of civil rights, which Australia has international obligations to protect
including the right to freedom of expression, the right to freedom of
association and the right to peaceful assembly': Letter from the Prime
Minister to the Chief Minister of the Northern Territory, 17 November
1983 reproduced in Senator Gareth Evans, 'Northern
Territory Criminal Code', Senate, Debates, 18 November 1983,
Answer to Question on Notice, p. 2856.
- 'The proscribing of organisations under the terrorism
provision in the code is in the hands of the executive and is thus a
political decision. In our view it is inappropriate that this be so.
Such decisions should be the subject of impartial judicial consideration':
Mr Bob Collins, MLA, Legislative Assembly of the Northern Territory,
Parliamentary Record, 31 August 1983, p. 981.
- Letter from the Chief Minister of the Northern
Territory to the Prime Minister tabled by Senator
Bernie Kilgariff in Adjournment, 'Northern
Territory Criminal Code-Presentation of Petitions', Senate, Debates,
15 December 1983, p. 3932.
- J.M. Robertson, MLA,
Legislative Assembly of the Northern Territory,
Parliamentary Record, 31
August 1983, p. 981.
- Senator Gareth Evans,
'Northern
Territory Criminal Code', Senate, Debates, 29
March 1984, Answer to Question Without Notice, p. 877.
- The provisions on 'proscribed organisations' were
replaced with the current provisions on 'unlawful organisations' by
section 5 of the Criminal Code Amendment Act 1984.
- For a fuller discussion see the Background section
of this Digest at p. 4.
Nathan Hancock
16 June 2003
Bills Digest Service
Information and Research Services
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