Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)

Outline, financial impact statement and notes on items

Outline

The Bill contains, in Schedule 3 amendments to the Schedule of the Criminal Code Act 1995 ('the Criminal Code'); and in Schedule 4 amendments to the Administrative Decisions (Judicial Review) Act 1977 and to the Transfer of Prisoners Act 1983. The proposed amendments improve Australia's counter-terrorism legal framework.

The objects of this Bill are:

a.

to amend the Criminal Code Act 1995 to strengthen the counter-terrorism legislation by extending the application of offence provisions under Division 102 of the Code to people whose associations with a listed terrorist organisation, or with a person who is a member or who promotes or directs the activities of such an organisation, assists the organisation to continue to exist or to expand.

b.

to amend the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, 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.

c.

To amend the Administrative Decisions (Judicial Review) Act 1977 to make decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act 1983, as well as any decision of the Attorney-General under the Act on the grounds of security, exempt from the application of the Act.

Division 102 of the Criminal Code

The Bill would insert a new offence provision, "Association with a Terrorist Organisation", in Division 102 of the Criminal Code which would make 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. Exceptions to the offence are provided for in relation to associations with close family members; 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.

The provision draws on concepts from the offence of consorting (which is a State and Territory offence aimed against criminal gangs), and fairly recently enacted New South Wales legislation which provides for the use of non-association orders as part of sentencing (Crimes (Sentencing Procedure) Act 1999 (NSW) No. 92.). Just as consorting offences can be used to break up criminal gangs, the proposed offence can be used to break up terrorist groups.

Transfer of Prisoners Act 1983

Schedule 4 amends the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, 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.

Financial impact statement

The Bill is not expected to have a significant financial impact.

Notes on items

Clause 1 - Short Title

It is proposed that the short title of the Act will be the Anti-terrorism (No. 2) Act 2004.

Clause 2 - Commencement

Item 4 of the table provides that Schedule 3 commences on the day after the day on which this Act receives the Royal Assent.

Item 5 of the table provides that Schedule 4 commences on the day on which this Act receives the Royal Assent.

Clause 3 - Schedule(s)

This clause provides that Acts specified in Schedule 3 (Criminal Code Act 1995); and in Schedule 4 (Administrative Decisions (Judicial Review) Act 1977 and Transfer of Prisoners Act 1983) are amended as set out in each case.