CHAPTER 2
Overview of the bills
2.1
This chapter briefly describes some of the main provisions in the NS
Bill and the LE Bill.
National Security Legislation Amendment Bill 2010
2.2
The NS Bill comprises 10 schedules of amendments. Each schedule
addresses a specific set of reforms and these are:
- Schedule 1 – treason and urging violence;
- Schedule 2 – terrorism;
-
Schedule 3 – investigation of Commonwealth offences;
- Schedule 4 – powers to search premises in relation to terrorism
offences;
- Schedule 5 – re‑entry of premises in an emergency
situation;
- Schedule 6 – amendments relating to bail;
- Schedule 7 – listings under the Charter of the United Nations
Act 1945;
- Schedule 8 – amendments relating to the disclosure of national
security information in criminal and civil proceedings;
- Schedule 9 – functions of the Inspector‑General of
Intelligence and Security; and
- Schedule 10 – consequential amendments relating to the
establishment of the PJC‑LE.
2.3
Some of these provisions are lengthy and quite detailed. Accordingly,
Chapter 2 highlights only the background, objectives and key amendments of
those schedules subsequently discussed in Chapters 3 and 4.
Treason and urging violence
2.4
Part 1 of Schedule 1 repeals existing offences in the Crimes Act and amends
existing treason and sedition (now called 'urging violence') offences in
Division 80 of the Criminal Code. Part 2 of Schedule 1 inserts new offences of
urging violence against groups and members of groups into the Criminal Code.
2.5
The proposed amendments are the Australian Government's response to the
recommendations from various reviews[1]
and take into account input received as a result of public consultation on the exposure
draft NS Bill.[2]
Summary of key amendments
2.6
The key amendments to be made under Part 1 of Schedule 1 are the:
- insertion of new section 80.1AA of the Criminal Code, creating
new offences for treason (for example, materially assisting enemies);
- repeal and replacement of subsection 80.2(1) of the Criminal Code,
creating the offence of urging the overthrow of the Constitution or government
by force or violence;
- repeal and replacement of subsection 80.2(3) of the Criminal Code,
creating the offence of urging interference in parliamentary elections or
constitutional referenda by force or violence; and
-
addition of new subsection 80.3(3) of the Criminal Code, providing
additional matters to which a court may have regard when considering a defence
under subsection 80.3(1) to the urging violence offences in Subdivision C
(Urging Violence) of Division 80.[3]
2.7
The key amendments to be made under Part 2 of Schedule 1 are the:
-
insertion of new section 80.2A of the Criminal Code, creating new
offences for urging violence against groups; and
-
insertion of new section 80.2B, creating new offences for urging
violence against members of groups.[4]
Terrorism
2.8
Parts 1-2 of Schedule 2 primarily amend Part 5.3 (Terrorism) of the
Criminal Code. Part 1 focuses on Division 102 (Definitions), and Part 2 focuses
on definitions in Division 105 (Preventative detention orders), Division 390
(Criminal associations and organisations) and the Dictionary of the Criminal
Code. Part 3 of Schedule 2 contains a related amendment that is contingent upon
enactment of the LE Bill.
2.9
The proposed amendments in Parts 1‑2 comprise the Australian Government's
response to a recommendation from the Parliamentary Joint Committee on
Intelligence and Security[5]
and amendments agreed by the majority of state and territory governments in the
Inter‑governmental Agreement on Counter‑Terrorism Laws.[6]
2.10
The Explanatory Memorandum to the NS Bill additionally explains that the
Part 2 amendments implement the Australian Government's policy of ensuring
equality of same-sex partnerships in Commonwealth legislation:
The proposed amendments ensure that the definitions in the Acts
Interpretation Act 1901 of de facto partner, child, step‑parent and
step‑child apply or are replicated in the Criminal Code. These
definitions are important in the Criminal Code as they apply to the terrorist
organisation association offence in section 102.8 and to the preventative
detention regime in Division 105 of Part 5.3 of the Criminal Code.[7]
Summary of key amendments
2.11
The key amendment to be made under Part 1 of Schedule 2 is the amendment
of subsection 102.1(3) to extend the period of a regulation listing a terrorist
organisation from two to three years.[8]
2.12
The key amendments to be made under Part 2 of Schedule 2 are the:
- addition of new subsection 100.5(3) of the Criminal Code,
enabling application of the Acts Interpretation Act 1901 to the Part;
- amendment of the definition of 'close family member' to align
paragraph 102.1(1)(a) of the Criminal Code with the Acts Interpretation Act
1901;
- amendment of the definition of 'family member' to align paragraph
105.35(3)(a) of the Criminal Code with the Acts Interpretation Act 1901;
and
- repeal of the definitions of 'child', 'de facto partner',
'parent', 'step‑child' and 'step‑parent' in subsection 390.1(1) of
the Criminal Code and insertion of new definitions into the Dictionary of the
Criminal Code.[9]
Investigation of Commonwealth
offences
2.13
Schedule 3 amends Part 1C (Investigation of Commonwealth offences) of
the Crimes Act. The amendments are the Australian Government's direct response
to the findings of the Inquiry by the Hon. John Clarke QC into the case of
Dr Mohamed Haneef.[10]
2.14
According to the Explanatory Memorandum to the NS Bill, the proposed
amendments will clarify the original policy intent of the terrorism
investigation powers, which were inserted into the Crimes Act by the Anti‑Terrorism
Act 2004, and will improve the practical operation of Part 1C of the Crimes
Act by:
- clarifying the interaction between the power of arrest without
warrant under section 3W and the powers of investigation under Part 1C;
- setting a maximum seven day limit on the amount of time that can
be specified by a magistrate and disregarded from the investigation period when
a person has been arrested for a terrorism offence;
- clarifying how the investigation period and time that is
disregarded from the investigation period are calculated; and
- clarifying the procedures that apply when making an application
to extend the period of investigation or apply for a period of specified
disregarded time, including the enhancement of safeguards.[11]
Summary of key amendments
2.15
The key amendments to be made to Part 1C of the Crimes Act are:
- insertion of new Subdivision A (Non‑terrorism offences) and
new Subdivision B (Terrorism offences) into Division 2, creating two distinct
categories of Commonwealth offences;[12]
- repeal and replacement of subsection 23C(7), by replicating the existing
categories of time that may be disregarded from the investigation period (maximum
12 hours), reinforcing that the time may only be disregarded if it is a
reasonable period during which questioning of the person is suspended or
delayed, and clarifying how disregarded time may be calculated;[13]
- repeal and replacement of sections 23CA to 23E, covering:
in relation to non‑terrorism
offences
- applications to extend the investigation period and extension of
the application period, with the key differences between the existing and new
process being that only a magistrate (as opposed to a magistrate, justice of
the peace or bail justice) will be able to grant an extension of the
investigation period and the inclusion of several amendments to ensure that
sufficient procedural safeguards are in place;[14]
and in relation to
terrorism offences
- the period of investigation if arrested, which is modelled on
existing section 23CA with some modifications, including proposed subsection
23DB(11) which sets a cap of seven days on the amount of time that can be
disregarded for the investigation period under proposed paragraph 23DB(9)(m);
- the time during which suspension or delay of questioning may be
disregarded (both the application process and the time period) which are
modelled on existing section 23CB with some modifications; and
- applications may be made for extensions of investigation periods,
and magistrates may extend investigation periods, which are similar to the non‑terrorism
provisions but include the additional requirement for a written application and
the written approval of an authorising officer.[15]
Powers to search premises in
relation to terrorism offences
2.16
Schedule 4 amends Division 3A of Part 1AA (Search, Information Gathering,
Arrest and Related Powers) of the Crimes Act. The proposed amendments will provide
police with a new power to enter premises without a warrant in emergency
circumstances relating to a terrorism offence where there is material present that
may pose a risk to the health or safety of the public.
2.17
In the second reading speech, the Attorney‑General stated:
This is not a general search warrant power. The provisions
are appropriately limited in terms of what police may do once they have entered
the premises.[16]
Summary of key amendments
2.18
The key amendment to be made under Schedule 4 is the insertion of new
section 3UEA which includes provisions:
- enabling a police officer to enter premises without a warrant providing
strict criteria are met;
- limiting the proposed power to searching the premises for a
particular thing and seizing a particular thing;
- allowing a police officer to secure the premises for a period
that is reasonably necessary to apply for a search warrant over the premises if,
in the course of searching for a particular thing, the police officer finds
another thing that they reasonably suspect is relevant to an indictable offence
or a summary offence;
- allowing a police officer to seize another thing, or do anything
necessary to make the premises safe, if, in the course of searching for a particular
thing, the police officer suspects on reasonable grounds that it is necessary
to do so to protect a person's life, health or safety and without the authority
of a search warrant because the circumstances are serious and urgent; and
- providing that a police officer may use assistance in exercising
a power under the new section, including the use of force against persons and
things.[17]
Amendments relating to bail
2.19
Schedule 6 amends section 15AA (Bail not to be granted in certain cases)
of the Crimes Act. The new provisions will ensure that both the prosecution and
the defendant have a right to appeal the decision to grant or refuse bail for
persons charged with terrorism or other national security offences.
2.20
At present, the relevant state and territory laws governing bail proceedings
apply in Commonwealth criminal matters (through the application of the Judiciary
Act 1903). The objective of the Schedule 6 amendments is therefore to:
...establish a nationally consistent right of appeal to
overcome limitations and inconsistencies under state and territory bail laws.[18]
Summary of key amendments
2.21
The key amendments to be made by Schedule 6 are the insertion of:
- new subsection 15AA(3A), providing a specific right of appeal for
both the prosecution and the defence;
- new subsection 15AA(3C), providing for a stay of the court order
granting bail if the prosecution formally indicates an intention to appeal the
bail decision immediately after the decision is made; and
- new subsection 15AA(3D), providing that the stay will only last
until a decision on the appeal is made, or the prosecution notifies the court
they do not intend to pursue an appeal, or until 72 hours has passed, whichever
is the least period of time.[19]
Amendments relating to the
disclosure of national security information in criminal and civil proceedings
2.22
Schedule 8 amends Parts 1 (Preliminary), 2 (Interpretation), 3
(Protection of Information whose Disclosure in Federal Criminal Proceedings is Likely
to Prejudice...National Security), 3A (Protection of Information whose Disclosure
in Civil Proceedings is Likely to Prejudice...National Security), 4 (Security
Clearances) and 5 (Offences) of the NSI Act.
2.23
According to the Explanatory Memorandum to the NS Bill, the proposed
amendments aim to improve the practical operation of the NSI Act and ensure the
appropriate protection and disclosure of national security information in
criminal and civil proceedings.[20]
These provisions fall into five general categories:
-
application of the NSI Act to legal representatives
Several provisions clarify
the application of the NSI Act to the defendant's legal representative in
criminal proceedings and a party's legal representative in civil proceedings,
including:
- amendments to ensure that the requirement to give notice to the
Attorney‑General about the possible disclosure of national security
information in a proceeding applies to a defendant's or party's legal
representative; and
-
amendments to clarify the application of the NSI Act to a
defendant's or party's legal representative;
- the role of the Attorney‑General under the NSI Act
Some provisions clarify
that the Attorney‑General, or representative of the Attorney‑General:
-
has the ability to attend and be heard during federal criminal or
civil proceedings; and
-
be able to be a party to consent arrangements made in relation to
the protection of national security material;
- flexibility and efficiency in the conduct of court proceedings
A number of the
provisions clarify court procedures to ensure processes are flexible and
efficient, including:
-
clarification that the NSI Act does not exclude or modify the
general power of a court to uphold a claim of public interest immunity, to make
an order under section 93.2 of the Criminal Code or to make other protective
orders such as closed hearings and non‑publication orders;
- clarification that pre‑trial hearings may be held at any
stage of a proceeding, and that pre‑trial hearings may be used to
consider issues relating to the disclosure, protection, storage, handling or
destruction of national security information;
- clarification the application of the NSI Act to proceedings once
the NSI Act has been invoked; and
-
defining 'court official' to clarify who can be present as a
court official in closed hearings under sections 29 and 38I of the NSI Act;
- facilitation of agreements under sections 22 and 38B
Agreements under
sections 22 and 38B of the NSI Act concern arrangements about the disclosure of
national security information in proceedings. The proposed provisions are
intended to facilitate better agreement‑making by clarifying:
- the policy intention behind the NSI Act: that is, if possible, that
it is preferable that parties enter into a section 22 arrangement, compared to
the court issuing a certificate;
- who is permitted to enter into a section 22 arrangement; and
- section 22 arrangements cover the disclosure of national security
information and may also cover the protection, storage, handling and
destruction of national security information;
- avoidance of unnecessary procedures
A number of
amendments are designed to streamline procedures and minimise unnecessary
processes, including clarification that:
- for the pnly necessary to adjourn those parts of the proceedings
which may involve a disclosure of national security information.[21]
Parliamentary Joint Committee on Law Enforcement Bill 2010
2.24
The LE Bill comprises three Parts: Part 1 deals with preliminary
matters; Part 2 contains the substantive provisions of the bill; and Part
3 sets out one miscellaneous provision. For the purposes of the inquiry, only
Part 2 of the LE Bill is examined in detail.
Key provisions of the LE Bill
2.25
There are five key provisions in Part 2 of the LE Bill:
- clause 5, setting out the administrative arrangements for
establishing the PJC-LE and its membership for each Parliament;
- clause 6, providing for all matters relating to the powers and
proceedings of the PJC-LE to be determined by resolution of both Houses of
Parliament;
-
clause 7, setting out the functions of the PJC-LE and identifying
the limitations on its functions;[22]
- clause 8, requiring the Chief Executive Officer of the ACC (CEO) to
comply with a request from the PJC-LE to provide information in relation to ACC
operations and investigations, including those which have been concluded. Upon
request, and at such other times as appropriate, the CEO must also inform the
PJC-LE about the general performance of the ACC's functions. Subclause 8(2)
provides the CEO with discretion not to comply with a request from the PJC-LE
if satisfied that the information is 'sensitive information' (as defined) and
the public interest in giving the information to the PJC-LE would be outweighed
by certain prejudicial consequences;
- clause 9, replicating clause 8 in relation to the Commissioner of
the AFP; and
- clause 10, providing that the PJC-LE must meet in private at
least once in each calendar year to receive a briefing from the Commonwealth Ombudsman
about the involvement of the ACC and AFP in controlled operations under Part
IAB of the Crimes Act 1914.
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