Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 1 - Definition of terrorist organisation etc.
This Schedule adds a further ground for listing terrorist organisations in regulations made under the Criminal Code , and makes other minor amendments.
Crimes (Foreign Incursions and Recruitment) Act 1978
This item removes a reference to the definition of terrorist organisation in subsection 102.1(1) in the Criminal Code , from paragraph 6(7)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 .
Criminal Code Act 1995
This item provides that advocate has the meaning provided in new subsection 102.1(1A). This definition applies only to the new definition of terrorist organisation in section 102.1. Details on the meaning of advocate are provided under item 9 below.
These items repeal the definition of Hamas organisation, Hizballah organisation and Lashkar-e-Tayyiba organisation in subsection 102.1(1).
These three organisations are listed as terrorist organisations under separate Regulations under the Criminal Code Amendment Regulations 2005. Accordingly, the definitions are no longer required.
This item is an interpretative amendment to the existing definition of terrorist organisation in section 102.1 of the Criminal Code .
This item clarifies that, when determining whether an organisation satisfies the definition of a terrorist organisation, it is not necessary to prove the organisation is preparing, planning, assisting in or fostering 'the' particular terrorist act. It will be sufficient if the prosecution can show the organisation is preparing, planning, assisting in or fostering 'a' terrorist act.
This item makes a technical amendment to paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
This item repeals paragraphs (c), (d) and (e) from the definition of terrorist organisation in subsection 102.1(1), which refer to a Hizballah organisation, a Hamas organisation or a Lashkar-e-Tayyiba organisation. These three organisations are listed as terrorist organisations under separate Regulations under the Criminal Code Amendment Regulations 2005.
This item inserts a new subsection (1A) after subsection 102.1(1). This new subsection inserts a definition of advocates as part of a new offence of ' advocates the doing of a terrorist act'.
The definition is designed to cover direct or indirect advocacy by an organisation, in the form of counselling, urging and providing instruction on the doing of a terrorist act. It also covers direct praise of a terrorist act. 'Organisation' is defined at existing subsection 100.1(1) of the Criminal Code . It mentions a body corporate or an unincorporated body whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a larger organisation. A 'terrorist act' is defined in the same subsections as an action or threat of action, such as causing death or serious harm, that is done with the intention of advocating a political, religious or ideological cause, and done with the intention of coercing government or a section of the public. The advocacy would need to be about such an act, not generalised support of a cause.
The definition of advocates is not restricted in terms of the manner in which the advocacy occurs. It covers all types of communications, commentary and conduct.
The definition recognises that such communications and conduct are inherently dangerous because it could inspire a person to cause harm to the community. This could be the case where it may not be possible to show that the organisation intended that a particular terrorism offence be committed or even intended to communicate the material to that particular person. Accordingly, the definition is not limited to circumstances where a terrorist act has in fact occurred, but is available whether or not a terrorist act occurs.
An organisation may advocate the doing of a terrorist act without being a terrorist organisation, as this new definition captures statements and conduct in support of previous terrorist acts as well as any prospective terrorist acts.
Existing subsection 102.1(2) of the Criminal Code provides that the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (that is, the organisation satisfies paragraph (a) of the definition of terrorist organisation ) before the Governor-General can make a regulation specifying the organisation as a terrorist organisation.
This item amends subsection 102.1(2) of the Criminal Code by providing that the Minister must be satisfied on reasonable grounds that the organisation either is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act, whether or not a terrorist act has occurred or will occur (that is, the organisation satisfies either paragraph (a) of the definition of terrorist organisation or the new definition of advocating in subsection 102.1(1A)) before the Governor-General can make a regulation specifying the organisation as a terrorist organisation.
Advocacy may only be a ground for listing an organisation. Unlike other grounds upon which it can be proved in court in the context of a prosecution that an organisation is a terrorist organisation, it will not be possible to prove an organisation is a terrorist organisation on the grounds of 'advocacy' unless the organisation is listed in the regulations.
Existing paragraph 102.1(4)(b) of the Criminal Code provides that if an organisation is specified in regulations as a terrorist organisation and the Minister ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (that is, that the organisation satisfies paragraph (a) of the definition of terrorist organisation ), the Minister must publish a notice in the Gazette to the effect that the Minister has ceased to be so satisfied.
This item amends paragraph 102.1(4)(b) of the Criminal Code by providing that if an organisation is specified in regulations as a terrorist organisation and the Minister ceases to be satisfied that that the organisation is either directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act (that is, that the organisation satisfies paragraph (a) of the definition of terrorist organisation or the new definition of advocating in subsection 102.1(1A)), the Minister must publish a notice in the Gazette to the effect that the Minister has ceased to be so satisfied.
This item makes a technical amendment to correct an outdated cross-reference to section 50 of the Acts Interpretation Act 1901 , and replaces it with the correct reference to section 15 of the Legislative Instruments Act 2003 .
Existing subsections 102.1(7) to (16) of the Criminal Code provide for the circumstances where regulations may specify a Hizballah, Hamas or Lashkar-e-Tayyiba organisation as a terrorist organisation under paragraphs (c), (d) and (e) of the definition of a terrorist organisation . Consistent with the repeal of these paragraphs, this item repeals subsections 102.1(7) to (16) of the Criminal Code .
These items make technical amendments by deleting references to provisions that have been repealed.
Existing paragraph 102.1(17)(c) of the Criminal Code provides that if an application is made to de-list a terrorist organisation, the Minister must consider the de-listing application if it is made on the grounds that there is no basis for the Minister to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (that is, the organisation satisfies paragraph (a) of the definition of terrorist organisation ).
This item amends paragraph 102.1(17)(c) of the Criminal Code to provide that if an application is made to de-list a terrorist organisation, the Minister must consider the de-listing application if it is made on the grounds that there is no basis for the Minister to be satisfied that the organisation is either directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act (that is, that the organisation satisfies paragraph (a) of the definition of terrorist organisation or the new definition of advocating in subsection 102.1(1A)).
These items make technical amendments by deleting references to provisions that have been repealed.
This item inserts new section 106.2 which provides that regulations made before the commencement of the section which were in force before commencement, continue to have effect after commencement.
A note to this item amends the heading of section 106.1 of the Criminal Code consistent with the amendments made by this item.
This item inserts a new section 106.3 which provides that the amendments made by Schedule 1 to the Anti-Terrorism Act 2005 apply to offences committed whether before or after the commencement of this section. This is justified because the provision merely clarifies what was originally intended. It is necessary because it will otherwise create an incorrect implication.
Customs Act 1901
This item makes a technical amendment to subparagraph 203DA(1)(c)(i) of the Customs Act 1901 by omitting a reference to 'the terrorist act' and substituting 'a terrorist act'.