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Chapter 2 - Background to the bill
2.1
This chapter briefly outlines the background and the
main provisions of the Bill in relation to
amendments to:
-
the Passports
Act 1938 (Passports Act);
-
the Australian
Security Intelligence Organisation Act 1979 (ASIO Act);
-
Division 102 of the Criminal Code Act 1995 (Criminal Code);
-
the Transfer
of Prisoners Act 1983 (Transfer of Prisoners Act) and the Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act); and
-
the Crimes
Act 1914 (Crimes Act).
Key provisions of the Bill
2.2
The Bill seeks to
strengthen Australia's
counter-terrorism legal framework.[4] Its
key provisions, prior to amendment, are set out below.
Amendments to the Passports Act
1938
2.3
Schedule 1 of the Bill amends the Passports Act to
provide that those subject to a warrant for an indictable offence or serious
foreign offence, prevented from travelling internationally by force of an order
of a court, a law of the Commonwealth or a condition of parole, or suspected of
engaging in harmful conduct (such as terrorist activities), are prevented from
leaving Australia on a foreign passport.[5]
2.4
The Bill creates powers to demand, confiscate and
seize foreign travel documents so that those suspected of serious offences or
harmful conduct are prevented from leaving Australia on a foreign travel document. Part 3 of
Schedule 1 inserts new offences for:
-
making
false or misleading statements in relation to foreign travel document
applications;
-
giving
false or misleading information in relation to foreign travel document
applications;
-
producing
false or misleading documents in relation to foreign travel document
applications;
-
improper
use or possession of a foreign travel document;
-
possessing,
making or providing false foreign travel documents;
-
failure
to surrender a suspicious foreign travel document; and
-
failure
to surrender a foreign travel document when required to do so.[6]
Amendments to the Australian
Security Intelligence Organisation Act 1979
2.5
Schedule 2 of the Bill contains amendments to the ASIO
Act to create a power for the Australian Security Intelligence Organisation
(ASIO) to demand the surrender of a person's passports (both Australian and
foreign) to prevent that person from leaving Australian, where the person is
subject to a request by the Director-General of ASIO to the Minister for
consent to apply for a questioning warrant.[7]
2.6
The Bill will create new
offences under the ASIO Act for failure to comply with a demand for the
surrender of a person's passport and for leaving Australia
when a person is subject to a request for consent to apply for a questioning
warrant.[8]
Amendments to Division 102 of the
Criminal Code Act 1995
2.7
Schedule 3 of the Bill
inserts a new subsection 102.8(1),
'Association with a Terrorist Organisation', in Division 102 of the Criminal
Code. This makes it an offence to intentionally associate with a person who is
a member or who promotes or directs the activities of a listed terrorist
organisation where that association provides support that would help the
terrorist organisation to continue to exist or to expand. The offence would
only apply to organisations which are listed as terrorist organisations under
the Criminal Code Regulations 2002 and where the person knew that the
organisation was a listed terrorist organisation.[9]
2.8
Exceptions
to the offence are provided for in relation to:
-
associations
with close family members (spouses, de facto spouses or same sex partners;
parents, step-parents or grandparents; children, step-children or
grandchildren; brothers, sisters, step-brothers or step-sisters; guardians or
carers);
-
associations
for the purpose of public religious worship;
-
associations
for the purpose of the provision of aid of a humanitarian nature; and
-
associations
for the purpose of providing legal advice or representation in criminal
proceedings, or related proceedings, or proceedings relating to whether the
organisation in question is a terrorist organisation.[10]
Amendments to the Transfer of Prisoners Act 1983 and the Administrative
Decisions (Judicial Review) Act 1977
2.9
Schedule 4 of the Bill
amends the Transfer of Prisoners Act to include security as a third ground for
transfer between state or territory prisons for Commonwealth, state and
territory prisoners, as well as for persons charged with and remanded in
custody for an offence. The amendments to the Transfer of Prisoners Act will
also provide for the return transfer of such persons, as well as the transfer
of such persons for court proceedings.[11]
2.10
Schedule 4 also amends the ADJR Act to make decisions
of the Attorney-General under Part IV of the Transfer of Prisoners Act, as well
as any decision of the Attorney-General under the Transfer of Prisoners Act on the grounds of security, exempt from
the application of the ADJR Act.[12]
Amendments to the Crimes Act 1914
2.11
Schedule 5 of the Bill
contains amendments to the forensic procedure provisions in the Crimes Act to
facilitate effective disaster victim identification in the event that a
disaster causing mass casualties (such as a terrorist attack or an aircraft
disaster) were to occur within Australia.[13]
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