Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)Outline
This Bill implements a package of reforms to Australia's national security legislation, announced by the Government in August 2009. The package of reforms was subject to extensive public consultation through a Discussion Paper on the proposed amendments. Public consultation on the proposed reforms concluded in October 2009.
Many of the proposed reforms in this Bill will implement the Government's response to several independent and bipartisan parliamentary committee reviews of Australian national security and counter-terrorism legislation, which was tabled in Parliament on 23 December 2008. These reviews are:
- •
- Inquiry by the Hon John Clarke QC into the case of Dr Mohamed Haneef (November 2008)
- •
- Inquiry into the proscription of 'terrorist organisations' under the Australian Criminal Code by the Parliamentary Joint Committee on Intelligence and Security (September 2007)
- •
- Review of Security and Counter-Terrorism Legislation by the Parliamentary Joint Committee on Intelligence and Security (December 2006), and
- •
- Review of Sedition Laws in Australia by the Australian Law Reform Commission (July 2006).
The Bill will primarily amend the Criminal Code Act 1995 (the Criminal Code), the Crimes Act 1914 (the Crimes Act), the Charter of the United Nations Act 1945 (the Charter Act), the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act), and the Inspector-General of Intelligence and Security Act 1986 (the IGIS Act).
Schedule 1 contains proposed amendments to the treason and sedition offences in Division 80 of the Criminal Code in response to recommendations from various reviews.
Schedule 2 includes proposed amendments to Division 102 of the Criminal Code that will:
- •
- amend the definition of 'advocates' in paragraph 102.1(1A)(c) to clarify that an organisation advocates the doing of a terrorist act if the organisation directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person to engage in a terrorist act
- •
- amend subsection 102.1(3) to extend the period of a regulation that lists a terrorist organisation from 2 to 3 years
- •
- amend the terrorist organisation listing review provision in section 102.1A to reflect the current name of the Parliamentary Joint Committee on Intelligence and Security, and
- •
- make miscellaneous amendments to definitional provisions within Part 5.3 to implement the Government's policy of ensuring equality of same sex partnerships in Commonwealth legislation.
Schedule 3 will amend Part 1C of the Crimes Act which sets out the investigation powers of law enforcement officers when a person has been arrested for a Commonwealth offence. The amendments will clarify and improve the practical operation of Part 1C, including addressing issues raised by the findings of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November 2008).
Schedule 4 contains proposed amendments that will amend Part 1AA of the Crimes Act to provide police with a power to enter premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public.
Schedule 5 contains proposed amendments that will modify the search warrant provisions in Part 1AA of the Crimes Act so that, in emergency situations, the time available for law enforcement officers to re-enter premises under a search warrant can be extended to 12 hours, or, where authorised by an issuing authority in exceptional circumstances, a longer time not exceeding the life of the warrant.
Schedule 6 will amend the Crimes Act to include a specific right of appeal for both the prosecution and the defendant against a decision to grant or refuse bail for a person charged with terrorism or other national security offences.
Schedule 7 will amend the Charter Act to implement the Australian Government's response to recommendation 22 of the Parliamentary Joint Committee on Intelligence and Security's Report Review of Security and Counter-Terrorism Legislation , tabled in Parliament in December 2006, to improve the standard for listing a person, entity, asset or class of assets. The Schedule will also amend the Charter Act to provide for the regular review of listings under the Charter Act.
Schedule 8 contains amendments to the NSI Act to improve its practical operation and ensure the appropriate protection and disclosure of national security information in criminal and civil proceedings.
Schedule 9 contains proposed amendments to enable the Prime Minister to request the Inspector-General of Intelligence and Security (IGIS) to inquire into an intelligence or security matter relating to any Commonwealth department or agency. This reflects the increasing interaction between a range of Commonwealth departments and agencies and the Australian Intelligence Community on intelligence and security matters. To fully consider an intelligence or security matter, it may sometimes be necessary for the IGIS to consider the role played by a non-AIC department or agency in relation to that matter.
Schedule 10 contains consequential amendments that arise as a consequence of the Parliamentary Joint Committee on Law Enforcement Bill 2010 , which will establish the Parliamentary Joint Committee on Law Enforcement. This new committee will replace the current Parliamentary Joint Committee on the Australian Crime Commission, and will be responsible for oversight of the Australian Crime Commission and the Australian Federal Police.