Contents
Foreword
Membership of the Committee
Terms of reference
List of abbreviations
List of recommendations
Chapter 1
Background
Chapter 2
Rationale and Accountability
Chapter 3
Effectiveness and Implications: Impact on Arab and Muslim Australians
Chapter 4
Treason
Chapter 5
International Terrorism
Chapter 6
Suppression of the Financing of Terrorism
Chapter 7
Border Security
Appendix A – COUNTER TERRORISM TREATIES
Appendix B - List of Submissions
Appendix C – List of Witnesses appearing at Public Hearings
Foreword
I present the report of the Committee’s review of the first package of anti-terrorism and security legislation passed by the Commonwealth Parliament in 2002.
On behalf of the Committee, I would like to express our particular gratitude to Mr Simon Sheller AO QC and the Sheller Committee, which reported on the legislation under review in April this year. The Sheller Report reflected the views of major stakeholders and has provided a valuable contribution to our own deliberations.
Since 2001, a series of terrorist events have served as a reminder of the risk and consequences of terrorist violence. Australia is not immune from these influences. Like the Sheller Committee, we have concluded that a special terrorism law regime is justifiable and forms an important, although not exclusive, tool in Australia’s counter-terrorism strategy. Much of the report deals with the detail of legislative provisions. It proposes a series of modest refinements to improve specificity, clarity and fairness in a way that we believe is consistent with Australia’s anti-terrorism objectives.
It is clear that Australia now has a highly developed legal framework and stronger institutional capacities to deal with the threat of terrorism. The terrorism law regime is, essentially, a preventive model, which differs in many respects from our earlier legal traditions. Bearing in mind the significance of these changes and the importance of terrorism policy into the future, we have recommended the appointment of an Independent Reviewer to provide comprehensive and ongoing oversight. The Independent Reviewer, if adopted, will provide valuable reporting to the Parliament and help to maintain public confidence in Australia’s specialist terrorism laws.
I commend the report to the Government and the Parliament and thank my fellow Committee members and the Secretariat for their contributions, which have made the review possible.
The Hon David Jull MP
Chair
Membership of the Committee
Chair |
The Hon David Jull MP |
|
Deputy Chair |
Mr Anthony Byrne MP |
|
Members |
The Hon Duncan Kerr SC MP |
Senator Alan Ferguson |
|
Mr Stewart McArthur MP |
Senator the Hon Robert Ray |
|
Mr Steven Ciobo MP |
Senator the Hon John Faulkner |
|
|
Senator Fiona Nash |
Committee Secretariat
Secretary |
Ms Margaret Swieringa |
Inquiry Secretary |
Ms Jane Hearn |
Administration Officer |
Mrs Donna Quintus-Bosz |
Terms of reference
29 Functions of the Committee
(1) The functions of the Committee are:
(ba) to review, as soon as possible after the third anniversary of the day
on which the Security Legislation Amendment (Terrorism)Act 2002 receives the Royal Assent, the operation, effectiveness and implications of amendments made by that Act and the following Acts:
(i) the Border Security Legislation Amendment Act 2002;
(ii) the Criminal Code Amendment (Suppression of Terrorist
Bombings) Act 2002;
(iii) the Suppression of the Financing of Terrorism Act 2002.
List of abbreviations
ADF |
Australian Defence Forces |
ADJR |
Administrative Decision Judicial Review Act 1975 |
AFP |
Australian Federal Police |
AGD |
Attorney-General’s Department |
ALRC |
Australian Law Reform Commission |
AMCRAN |
Australian Muslim Civil Rights Network |
ASIO |
Australian Security Intelligence Organisation |
ATA |
Anti-Terrorism Act 2005 (No. 2) (Cth) |
AUSTRAC |
Australian Transaction Reports and Analysis Centre |
BSLA |
Border Security Legislation Amendment Act 2002 |
CDPP |
Commonwealth Director of Public Prosecutions |
COAG |
Council of Australian Governments |
COUNA |
Charter of the United Nations Act 1945 |
DFAT |
Department of Foreign Affairs and Trade |
DIMA |
Department of Immigration and Multicultural Affairs |
EC |
European Community |
ECJ |
European Court of Justice |
EU |
European Union |
FATF |
United Nations Financial Transaction Task Force |
FBI |
Federal Bureau of Investigation ( United States of America) |
GSMG |
FN Herstal General Support Machine Gun |
HREOC |
Human Rights and Equal Opportunity Commission |
ICRC |
International Committee of the Red Cross |
IGIS |
Inspector-General of Intelligence and Security |
IISCA |
Islamic Information and Support Centre of Australia |
ISYS |
International Sikh Youth Federation |
MCRG |
Muslim Community Reference Group |
MOU |
Memorandum of Understanding |
MRG |
Muslim Reference Group |
PAU |
Passenger Analysis Unit |
PJCIS |
Parliamentary Joint Committee on Intelligence and Security |
PNR |
Passenger Name Record |
POAC |
Proscription of Organisations Appeals Commission |
SFTA |
Suppression of the Financing of Terrorism Act 2002 |
SLCLC |
Senate Legal and Constitutional Legislation Committee |
SLR |
Security Legislation Review (the Sheller Report) |
UK |
United Kingdom |
UN |
United Nations |
UNSC |
United Nations Security Council |
UNSCR |
United Nations Security Council Resolution |
List of recommendations
2 Rationale and Accountability
Recommendation 1
The Committee recommends that the Government support/sponsor a study into the causes of violent radicalisation in Australia to inform Australia’s counter terrorism strategy.
Recommendation 2
The Committee recommends that:
- the Government appoint an independent person of high standing as an Independent Reviewer of terrorism law in Australia;
- the Independent Reviewer be free to set his or her own priorities and have access to all necessary information;
- the Independent Review report annually to the Parliament;
- the Intelligence Services Act 2001 be amended to require the PJCIS to examine the reports of the Independent Review tabled in the Parliament.
3 Effectiveness and Implications: Impact on Arab and Muslim Australians
Recommendation 3
The Committee recommends that Australian police forces review their media policies to ensure that official statements do not prejudice the right to fair trial and are sensitive to the wider implications for the community.
Recommendation 4
The Committee recommends that AGD increase its effort to ensure that comprehensive information about the terrorism law regime is available to the public in appropriate community languages.
Recommendation 5
The Committee recommends that Australia’s counter terrorism strategy encompass:
- a commitment to the rights of Muslims to live free from harassment and enjoy the same rights extended to all religious groups in Australia;
- wide dissemination of information about mechanisms for complaint or redress in relation to law enforcement, intelligence agencies and the media; and
- a statement on the importance of informed and balanced reporting to promote social cohesion.
4 Treason
Recommendation 6
The Committee recommends that:
- the offence of treason be restructured so that conduct constituting treason apply only to persons who owe allegiance to Australia or who have voluntarily placed themselves under Australian’s protection;
- the conduct of others, which falls within the scope of paragraphs 80.1(1) (a)(b)(c), should be dealt with separately;
- the offence of assisting the enemy under paragraph 80.1 (e) and (f) be clarified to cover ‘material assistance’;
- paragraph 80.1 (f) be amended to require knowledge of the existence of armed hostilities.
5 International Terrorism
Recommendation 7
The Committee recommends that the requirement that the person intends to advance a political, religious or ideological cause be retained as part of the definition of terrorism.
Recommendation 8
The Committee recommends that the current exemption for advocacy, protest, dissent and industrial action be retained as part of the definition of terrorism.
Recommendation 9
The Committee recommends that psychological harm not be included in the definition of a terrorist act. Alternatively, that the Government consult with the States and Territories on this issue and give consideration to the question in light of other amendments to the definition.
Recommendation 10
The Committee recommends that ‘threat’ of terrorist acts be removed from the definition of terrorism and be dealt with as a separate offence.
Recommendation 11
The Committee recommends that the definition of terrorism recognise that international organisations may be the target of terrorist violence.
Recommendation 12
The Committee recommends that to remove doubt the definition of terrorism be amended to include a provision or a note that expressly excludes conduct regulated by the law of armed conflict.
Recommendation 13
The Committee recommends that a separate hoax offence be adopted but that penalties reflect the less serious nature of a hoax as compared to a threat of terrorism.
Recommendation 14
The Committee does not recommend the repeal of ‘advocacy’ as a basis for listing an organisation as a terrorist organisation but recommends that this issue be subject to further review.
The Committee recommends that ‘risk’ be amended to ‘substantial risk’.
Recommendation 15
The Committee recommends that the Government consider:
- replacing the membership offence with an offence of participation in a terrorist organisation; and
- whether ‘participation’ should be expressly linked to the purpose of furthering the terrorist aims of the organisation.
Recommendation 16
The Committee recommends that the training offence be redrafted to define more carefully the type of training targeted by the offence. Alternatively, that the offence be amended to require that the training could reasonably prepare the individual or the organisation to engage in, or assist with, a terrorist act.
Recommendation 17
The Committee recommends that:
- it be a defence to the offence of receiving funds from a terrorist organisation that those funds were received solely for the purpose of the provision of representation in legal proceedings; and
- that the legal burden be reduced to an evidential burden.
Recommendation 18
The Committee recommends that the offence of providing support to a terrorist organisation be amended to ‘material support’ to remove ambiguity.
Recommendation 19
The Committee recommends that the offence of ‘associating with a terrorist organisation’ be re-examined taking into account the recommendations of the Sheller Committee.
Recommendation 20
The Committee recommends that strict liability provisions applied to serious criminal offences that attract the penalty of imprisonment be reduced to an evidential burden.
6 Suppression of the Financing of Terrorism
Recommendation 21
The Committee recommends that:
- section 103.1 be amended by inserting ‘intentionally’ after ‘the person’ in paragraph (a) and removing the note;
- that recklessness be replaced with knowledge in paragraph (b).
The Committee recommends that paragraph 103.2(1)(b) be redrafted to make clear that the intended recipient of the funds be a terrorist.
Recommendation 22
The Committee recommends that:
- external merit review of a decision to list a person, entity or asset under section 15 of the COUNA should be made available in the Administrative Appeal Tribunal;
- section 15 and regulation 6 be amended so that the Minister must be satisfied on reasonable grounds that the person, entity, asset or class of assets falls within the scope of UNSCR 1373;
- COUNA should be amended to provide that a person or entity listed by regulation is entitled to seek review as a step in the process of review by the Sanctions Committee.
7 Border Security
Recommendation 23
That the Customs Act be amended to specify that access to passenger information for the purpose of another law of the Commonwealth is limited to the investigation of serious crimes prescribed by regulation.
Recommendation 24
The Committee recommends that:
- the Customs Act be amended to specify that retention of passenger information be permitted for a limited time in order to conduct analysis;
- that the Minister for Customs report to the Parliament on the status of negotiations with European States in relation to passenger information.
Recommendation 25
The Committee recommends that the Privacy Commissioner retain an ongoing oversight role in relation to passenger name records, which includes biannual monitoring of the Passenger Analysis Unit.
Recommendation 26
The Committee recommends that:
- the subject of a seizure warrant involving entry to premises should be provided with a statement of rights and obligations;
- that Customs bear the onus of proving the basis of the seizure.