Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Notes on Clauses
General
Unless otherwise indicated, any reference to a 'section', 'subsection' or 'paragraph' in these notes is a reference to a section, subsection or paragraph in the Criminal Code Act 1995 (the Criminal Code ).
This is a formal clause which provides for the citation of the Bill. This clause provides that the Bill when passed, may be cited as the Anti-Terrorism Act (No. 2) 2005 .
This clause set out when the various parts of the Bill commence.
Sections 1 to 4 of the Bill (the short title, the commencement, the schedules provision and the review of anti-terrorism laws provision) and anything in the Bill not covered elsewhere in the table in clause 2 will commence on the day the Act receives Royal Assent. This is necessary to ensure the laws are available during the long Summer holiday period.
Schedules 1 and 3 to the Bill amend offences and definitions in the Criminal Code . Schedule 4 to the Bill amends offences and definitions, and inserts new powers and offences into the Criminal Code , and Schedules 5 and 6 to the Bill insert new definitions, powers and offences into the Crimes Act . Items 1 to 21 and item 23 of Schedule 1 and Schedules 3, 4, 5 and 6 to the Bill commence on the day after the day the Act receives Royal Assent. This is to ensure these important new powers, that are designed to prevent the commission of a terrorist act or other serious offence, can be exercised immediately. It is important to have these powers available during the holiday period which is a time when there are many mass gatherings.
Item 22 of Schedule 1 to the Bill commences on a single day to be fixed by Proclamation or, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. It is appropriate that this provision commence by proclamation in the usual way.
Schedule 2 to the Bill renumbers the provisions in Division 104 in Part 5.4 of the Criminal Code , so a new Division 104 can be inserted into Part 5.3 of the Criminal Code . It commences on the day the Act receives Royal Assent. This will ensure there is no confusion about the section numbers for the existing provisions in Division 104 and the new provisions to be inserted into the new Division 104.
Schedule 7 repeals an existing offence in the Crimes Act 1914 (the Crimes Act ) and replaces it with a new sedition offence in the Criminal Code , and Schedule 8 would provide a head of power for the use of optical surveillance devices at airports and on board aircraft. These Schedules commence on the 28th day after the day the Act receives Royal Assent. This is to ensure that there is some prior notice before these new provisions, which include offence provisions, commence.
Items 1, 2, 6, 8, 9, 14, 15 and 18 to 24 of Schedule 9 to the Bill, which amend the Financial Transaction Reports Act 1988 (the FTR Act ) to introduce a 'disclosure when asked' system for persons who carry negotiable bearer instruments into or out of Australia, commence on Proclamation, or if any of the provisions do not commence within the period of 12 months beginning on the day the Act receives Royal Assent, they commence on the expiry of 12 months and one day from the date of Royal Assent.
The reason for the potential delay of 12 months for the commencement of these provisions is to allow for a public education campaign to raise awareness about the implications of the amendments and to enable the Australian Customs Service and Australian Transaction Reports and Analysis Centre (AUSTRAC) to put in place appropriate training and system upgrades.
Items 3, 4 and 7 of Schedule 9 to the Bill, which make minor technical and clarifying amendments to the FTR Act , commence on the day the Act receives Royal Assent.
Items 5, 10 to 13, 16 and 17 of Schedule 9 to the Bill, which amend the FTR Act to require customer information to be included with international fund transfer instructions and provide for the registration of remittance service providers, commence on Proclamation, or if any of the provisions do not commence within the period of 6 months, beginning on the day the Act receives Royal Assent, they commence on the expiry of 6 months and one day from the date of Royal Assent.
The reason for the potential delay of 6 months for the commencement of these provisions is to allow for industry to develop processes to meet the inclusion of customer information requirements with international funds transfer instructions and for AUSTRAC to implement appropriate systems to raise public awareness of the new register requirements and to manage this information.
Items 1 to 25 and 29 to 32 of Schedule 10 to the Bill, which amend the Australian Security Intelligence Organisation Act 1979 (the ASIO Act ) and customs and migration legislation to give greater powers for security and intelligence purposes, commence on the day the Act receives Royal Assent. This is to enable these important new powers to be exercised immediately if necessary.
Items 26 to 28 of Schedule 10make consequential amendments to the ASIO Act related to the amendments made by Schedule 4 to the Bill, and therefore commence at the same time, being the day after the day the Act receives Royal Assent.
This clause makes it clear that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.
Clause 4: Review of anti-terrorism laws
This clause provides for a review of the amendments made by Schedules 1, 3, 4 and 5 after five years.
Subclause 4(1) provides that the Council of Australian Governments (COAG) agreed on 27 September 2005 to undertake this review. It was also agreed that certain equivalent State laws would also be reviewed.
Subclause 4(2) provides that if a copy of a report of this review is made available to the Attorney-General, he or she must cause a copy of the report to be laid before each House of Parliament within 15 sitting days after the report is received.
This clause ensures that the COAG agreement to a five-year review of these new laws is enshrined in the legislation. It also ensures that any report on the review of these new laws will be made public.