Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

PART 2 - CONSEQUENTIAL AMENDMENTS

Aboriginal and Torres Strait Islander Act 2005

Item 26

1147. The Aboriginal and Torres Strait Islander Act 2005 refers to the offence at section 28 of the Crimes Act (Interference with political liberty) in the definition of 'undue influence' at subclause 1(1) of Schedule 4.

1148. Section 28 will be repealed by Item 43 of Schedule 1. Item 8 will insert a new offence of 'Interference with political rights and duties' in section 83.4 of the Criminal Code.

1149. Item 26 will amend subclause 1(1) of the Schedule 4 to remove the reference to section 28 of the Crimes Act and substitute a reference to the new offence at section 83.4 of the Criminal Code.

Australian Citizenship Act 2007

Item 27

1150. Paragraph (a) of the definition of 'national security offence' in section 3 of the Australian Citizenship Act 2007 refers to Part II of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

1151. Item 8 of Schedule 1 inserts new Division 83 into Part 5.1 of the Criminal Code which creates new offences replacing Part II of the Crimes Act.

1152. Item 27 amends paragraph (a) of the definition of national security offence in section 3 to omit the reference to Part II of the Crimes Act. Item 28, below, inserts a reference to Part 5.1 into the definition of 'national security offence' in section 3, which will ensure the new offences in Division 83 are covered by the definition.

Item 28

1153. Paragraph (c) of the definition of 'national security offence' in section 3 of the Australian Citizenship Act 2007 refers to Parts 5.1, 5.2 or 5.3 of the Criminal Code.

1154. Item 28 repeals these references and replace them with references to:

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an offence against Part 5.1 of the Criminal Code (treason and related offences) other than section 83.4 (interference with political rights and duties)

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an offence against Division 91 of the Criminal Code (espionage), and

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an offence against Part 5.3 (terrorism) of the Criminal Code.

1155. This amendment ensures that the definition of 'national security offence' continues to cover espionage, treason and other threats to security following the enactment of the new offences in Schedule 1.

1156. The offence at section 83.4 of the Criminal Code (interference with political rights and duties) is excluded from the definition of 'national security offence'. This is because including the offence at section 83.4 in the definition would require the Minister for Home Affairs to refuse a citizenship application in certain circumstances if the person has been convicted of this offence. The offence at section 83.4 will be carved out to minimise inconsistency with Australia's obligations under the 1961 Convention on the Reduction of Statelessness, which provides that member states shall grant nationality to a person who would otherwise be stateless if, among other conditions, the person has not been convicted of an offence against national security. There is a risk that the offence of 'interference with political rights and duties' may be regarded as not being sufficiently connected to national security in every case.

1157. The remaining offences in Part 5.1 of the Criminal Code are sufficiently connected to national security and will continue to fall within the definition of 'national security offence' in section 3 of the Australian Citizenship Act.

Items 29 and 30

1158. Section 35A of the Australian Citizenship Act 2007 empowers the Minister to determine in writing that a person ceases to be an Australian citizen where the person is convicted of one of the prescribed offences and has been sentenced to a period of imprisonment of at least six years, or periods of imprisonment that total at least six years, and the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination, and the Minister is satisfied that:

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the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia, and

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it is not in the public interest for the person to remain an Australian citizen.

1159. In determining whether it is not in the public interest for the person to remain an Australian citizen the Minister is to have regard to the following factors:

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the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences

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the degree of threat posed by the person to the Australian community

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the age of the person

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if the person is aged under 18-the best interests of the child as a primary consideration

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the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person

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Australia's international relations, and

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any other matters of public interest.

1160. Subparagraph 35A(1)(a)(ii) refers to sections 80.1 (Treason), 80.1AA (Treason - materially assisting enemies etc.) and section 91 (Espionage) of the Criminal Code. These Following the amendments to these offences made by Schedule 1, Item 29 will repeal these references and replace them with references to:

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a provision of Subdivision B of Division 80 of the Criminal Code (treason)

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a provision of Division 82 of the Criminal Code (sabotage) other than section 82.9 (preparing for or planning sabotage offence)

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a provision of Division 91 of the Criminal Code (espionage), and

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a provision of Division 92 of the Criminal Code (foreign interference).

1161. Subparagraph 35A(1)(a)(v) refers to sections 24AA (Treachery) and 24AB (Sabotage) of the Crimes Act. These offences will be repealed by Item 43 of Schedule 1. Item 4 of Schedule 1 will create a new Treachery offence in section 80.1AC of the Criminal Code. Item 8 of Schedule 1 will create new sabotage offences in Division 82 of the Criminal Code.

1162. Item 30 repeals subparagraph 35A(1)(a)(v) to remove the references to sections 24AA and 24AB of the Crimes Act. The new offences created by Items 4 and 8 of Schedule 1 will be covered by new subparagraphs (ii) and (iia), inserted by Item 28.

1163. The offence at section 82.9 of the Criminal Code (preparing for or planning a sabotage offence) will be carved out from the scope of section 35A so that a conviction in relation to that offence is not a conviction that could empower the Minister to determine that the convicted person ceased to be an Australian citizen under section 35A. The offences which fall within the scope of section 35A are those that evince a serious threat to Australia and Australia's interests. The offence at section 82.9 is a preparatory offence and is not sufficiently connected to national security to fall within the scope of section 35A.

1164. The new offences against Division 92 of the Criminal Code (foreign interference) will be included within the scope of section 35A. The offences specified in section 35A are those that prima facie indicate that a person has acted contrary to his or her allegiance to Australia for example, offences involving terrorism and/or other serious threats to Australia and Australia's interests. The foreign interference offences in Division 92 are also of this nature and the PJCIS has recommended that they fall within the scope of section 35A.

Australian Federal Police Act 1979

Items 31, 32, 33 and 34

1165. The definition of 'protective service offence' in section 4 of the Australian Federal Police Act 1979 refers to section 24AB (sabotage) and section 28 (interfering with political liberty) of the Crimes Act, and section 91.1 (espionage) of the Criminal Code.

1166. Following the amendments made to those offences by Schedule 1, Items 31, 32, 33 and 34 will make minor amendments to update these references.

1167. Items 31 and 34 repeal references to section 24AB (sabotage) and section 28 (interfering with political liberty) of the Crimes Act and section 91.1 (espionage) of the Criminal Code. Item 32 replaces these references with references to:

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Division 82 of the Criminal Code (sabotage)

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Division 91 of the Criminal Code (espionage), and

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Section 132.8A of the Criminal Code (damaging Commonwealth property).

1168. Item 33 will make a minor grammatical change to accommodate the above amendments.

Commonwealth Electoral Act 1918

Item 35

1169. Item 35 updates the meaning of 'undue influence' in subsection 352(1) of the Commonwealth Electoral Act 1918 to reflect the new offence of interference with political rights and liberties at section 83.4 of the Criminal Code (inserted by Item 8 of Schedule 1)

1170. If the Court of Disputed Returns finds that an elected candidate has committed or attempted to commit bribery or undue influence, the election of the candidate will be declared void under section 362 of the Commonwealth Electoral Act. Bribery means a contravention of section 326 of the Commonwealth Electoral Act.

1171. Convictions for bribery or undue influence also disqualify a person from candidature for either federal House of the Parliament for two years under section 386 of the Commonwealth Electoral Act.

1172. In the context of the Commonwealth Electoral Act, convictions under section 83.4 that relate to electoral matters (such as the right to vote, the right to stand as a candidate and the right to support or oppose a candidate, group of candidates or party, would be relevant for the purposes of the definition of 'undue influence'.

Item 36

1173. Section 386 of the Electoral Act provides that convictions for bribery or undue influence (or their attempt) disqualify a person from candidature for either federal House of the Parliament for two years from the date of the conviction.

1174. Item 36 updates the reference in subparagraph 386(a)(i) of the Commonwealth Electoral Act 1918 to refer to new section 83.4 of the Criminal Code (to be inserted by Item 8 of Schedule 1).

Crimes Act 1914

Item 37

1175. Section 4J of the Crimes Act deals with offences that may be dealt with summarily. Subsection 4J(7) provides that offences against: section 24AA (treachery), section 24AB (sabotage) and subsections 79(2) and (5) (secrecy) of the Crimes Act and Division 80 (treason) and section 91.1 (espionage) of the Criminal Code may not be dealt with summarily.

1176. Following the amendments to these offences made by Schedule 1, Item 37 updates subsection 4J(7) of the Crimes Act to refer to the new offences against:

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subsections 79(2) or (5) of the Crimes Act

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Division 80 of the Criminal Code (treason, urging violence and advocating terrorism or genocide)

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Division 82 of the Criminal Code (sabotage)

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Division 91 of the Criminal Code (espionage), and

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Division 92 of the Criminal Code (foreign interference).

1177. The effect of this is that offences against these provisions may not be dealt with summarily. This is appropriate due to the seriousness of these offences.

1178. Item 5 of Schedule 2 will repeal subsections 79(2) and (5) from the Crimes Act. Item 4 of Schedule 2 will therefore repeal the reference to these subsections from the subsection 4J(7). As Schedule 2 commences on a single day to be set by Proclamation, this item ensures that subsection 4J(7) continues to cover the offences in subsection 79(2) and (5) until such time as they are repealed.

Items 38 and 39

1179. Section 15AA of the Crimes Act provides that bail must not be granted to a person charged with, or convicted of, an offence listed in subsection 15AA(2) unless exceptional circumstances exist. Subsection 15AA(2) refers to existing Subdivision C of Division 80 (urging violence and advocating terrorism or genocide) and Division 91 (offences relating to espionage and similar activities) of the Criminal Code and section 24AA (treachery) of the Crimes Act.

1180. Item 38 repeals these references and updates them with references to the new provisions in Division 80 (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code. The existing espionage, treason and treachery offences are currently listed in subparagraph 15AA(2)(c) of the Crimes Act - inclusion of offences in Division 80 and 91 merely updates subparagraph 15AA(2)(c) given that the existing offences are being repealed. For these offences, consistent with subparagraphs 15AA(2)(c)(i) and (ii), the presumption against bail will only apply if the person's conduct is alleged to have caused the death of a person or carried a substantial risk of causing the death of a person.

1181. Item 39 will add the new foreign interference offences in subsection 92.2(1) and subsection 92.3(1) of the Criminal Code to section 15AA(2) of the Crimes Act, but only where the death of a person is alleged to have been caused by the relevant conduct, or the relevant conduct carried a substantial risk of causing the death of a person. Expanding section 15AA(2) in this way is appropriate given that the conduct is similar in nature to that of an espionage offence. However, it is appropriate that a person being prosecuted for a foreign interference offence against section 92.2(1) and 92.3(1) should only be subject to a presumption against bail in circumstances when there is actual or substantial risk of the death of a person. This limitation recognises the significant consequences for an individual's personal safety and mental health if the conduct involves the actual or substantial risk of death.

1182. The presumption against bail will limit the possibility of further harmful offending, the communication of information within the knowledge or possession of the accused, interference with evidence and flight out of the jurisdiction.

Items 40 and 41

1183. Part IAE of the Crimes Act deals with the use of video link evidence in proceedings for terrorism and related offences. The purpose of the video link provisions is to facilitate the prosecution of terrorism and related offences by ensuring that, in the absence of compelling reasons to the contrary, important evidence from overseas witnesses who are unable to travel to Australia can be put before the court using video link technology.

1184. Existing section 24AA (treachery) and section 24AB (sabotage) are included as proceedings to which Part IAE applies under paragraph 15YU(1)(g).

1185. Items 40 and 41 make minor amendments to section 15YU of the Crimes Act to update these references with references to Subdivision B of Division 80 (Treason) and Division 82 (sabotage) of the Criminal Code.

Item 42

1186. Paragraph 19AG(1)(a) of the Crimes Act, which deals with minimum non-parole periods, currently refers to section 24AA (treachery) of the Crimes Act.

1187. Section 24AA is being repealed by Item 43 of Schedule 1.

1188. Item 42 will repeal section 19AG(1)(a). The offence replacing section 24AA (section 80.1AC of the Criminal Code, to be inserted by Item 4 of Schedule 1), will be covered by the existing reference to Division 80 of the Criminal Code in subsection 19AG(1)(c).

Items 42A and 42B

1189. Item 42A removes the reference to Division 91 (espionage) from paragraph 19AG(1)(c) of the Crimes Act, which deals with minimum non-parole periods, and Item 42B inserts a new paragraph 19AG(1)(d) which applies the minimum non-parole period to an offence against new subsections 91.1(1) or 91.2(1) of the Criminal Code.

1190. The PJCIS report states (at paragraphs 10.123 and 10.124):

The Committee acknowledges the important role the Court plays in determining an appropriate sentence for each offender, taking into account a range of circumstances including the nature of the offence and the offender's personal circumstances. Section 19AG of the Crimes Act limits this judicial discretion. The Committee notes that while the Bill does not propose to amend section 19AG directly, the Bill will extend its operation by expanding the scope of the espionage and treachery offences that are subject to it (see Chapters 6 and 9).

It would be appropriate for the operation of section 19AG to be limited to the most serious espionage offences in the Bill. Accordingly, the Committee considers that the operation of section 19AG should be limited to:

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proposed section 91.1(1)-'dealing with information etc. concerning national security which is or will be made available to a foreign principal', with intention as to national security, and

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proposed section 91.2(1)- 'dealing with information etc. which is or will be made available to a foreign principal', with intention as to national security.

Item 43

1191. Item 43 repeals Part II of the Crimes Act. The offences within this Part are moved to the Criminal Code (see Division 83, inserted by Item 4 of this Schedule) as indicated by the following table

Criminal Code Act 1995

Items 43A and 43B

1192. These items amend paragraphs 5(2)(d) and (e) of the Criminal Code to replace the reference to 'Part 5.1 (treason, urging violence and advocating terrorism or genocide)' with 'Part 5.1 (treason and related offences)' and the reference to 'Part 5.2 (offences relating to espionage and similar activities)' with 'Part 5.2 (espionage and related offences)'.

1193. Subsection 5(2) of the Criminal Code provides that the Minister with portfolio responsibility for the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of specified provisions of the Criminal Code, including Part 5.1 and Part 5.2.

1194. As the heading of Part 5.1 will be renamed 'treason and related offences' (see Item 1, Schedule 1 of the Bill) and the heading of Part 5.2 will be renamed 'espionage and related offences' (see Item 9 of Schedule 1 of the Bill), the references to the headings of Parts 5.1 and 5.2 in paragraph 5(2)(d) and (e) of the Criminal Code Act 1995 should be updated, accordingly.

Foreign Evidence Act 1994

Item 44

1195. Item 44 amends the definition of 'designated offence' in section 3 of the Foreign Evidence Act 1994 to refer to the new sabotage offences in Division 82 of the Criminal Code, to be inserted by Item 8 of Schedule 1.

1196. The definition of 'designated offence' under section 3 of the currently refers to the sabotage offence in section 24AB of the Crimes Act 1914 (paragraph (g)), which is being repealed by item 43 of this Schedule.

1197. Item 44 amends section 3 to insert a new paragraph referring to an offence against Division 82 (sabotage).

1198. Part 3A of the Foreign Evidence Act provides that evidence from other countries can be used in Australian criminal and civil terrorism-related proceedings. It establishes procedures for enabling authenticated foreign testimony and exhibits to such testimony to be admissible, subject to appropriate safeguards. 'Terrorism-related proceedings' is defined in section 3 of the Foreign Evidence Act to include 'designated offences.' For the purposes of Part 3A, 'foreign material' includes testimony of a person and associated exhibits, and 'Foreign government material' includes material provided by a foreign authority to the Commonwealth.

1199. This item will ensure the definition of 'designated offence' in the Foreign Evidence Act includes the new proposed sabotage offences. It will mean that material received from foreign countries, including on an agency-to-agency basis (for example, through police or intelligence channels), can be adduced by prosecutors and responsible authorities in sabotage-related proceedings, in accordance with Part 3A of the Foreign Evidence Act. It is appropriate that material obtained overseas relating to these new offences can be provided to a court as evidence in terrorism-related proceedings.

1200. There are strict safeguards in the Foreign Evidence Act for how material is dealt with in terrorism-related proceedings. Subsection 27C(2) of the Foreign Evidence Act provides the Court with a broad judicial discretion to prevent material from being adduced if it would have a substantial adverse effect on the right of another party to the proceeding to receive a fair hearing. Subsection 27D(2) provides an exception to admissibility if the material or information contained in the material was obtained directly because of torture or duress. In accordance with section 27DA, following a request by a party, the presiding judge in a terrorism-related proceeding in which foreign material has been admitted, can warn the jury about the reliability of that evidence.

Item 45

1201. Item 45 repeals paragraph (g) of the definition of 'designated offence' in section 3 of the Foreign Evidence Act 1994, to remove references to section 24AA (treachery) and section 24AB (sabotage) of the Crimes Act, which will be repealed by Item 43 of Schedule 1.

1202. Treachery and sabotage offences will continue to be captured under the definition of 'designated offence' in the Foreign Evidence Act. Item 44 inserts a reference to the proposed sabotage offences at Division 82 of the Criminal Code. The updated treachery offence (section 80.1AC of the Criminal Code) will be captured through paragraph (da) of the definition of 'designated offence.'

Migration Act 1958

Items 46, 47 and 48

1203. Section 203 of the Migration Act 1958 deals with deportation of non-citizens who are convicted of certain serious offences.

1204. Under subparagraph 203(1)(c), offences against sections 24AA (treachery), 24AB (sabotage), 25 (inciting mutiny) and 26 (assisting prisoners of war to escape) of the Crimes Act are listed. These offences will all be repealed by Item 43 of Schedule 1. Following the amendments to these offences by Schedule 1 of the Bill, Items 46, 47 and 48 will repeal these references from subparagraph 203(1)(c)(i) and replace them with references to:

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Division 82 (sabotage) of the Criminal Code

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section 83.1 (advocating mutiny) of the Criminal Code, and

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section 83.2 (assisting prisoners of war to escape) of the Criminal Code, and

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a provision of Subdivision B of Division 80 of the Criminal Code.

1205. The reference to section 24AA(treachery) will not be replaced, as the new treachery offence in section 80.1AC (to be inserted by Item 4 of Schedule 1) is covered by the reference to Division 80 of the Criminal Code that already exists in subparagraph 203(1)(c)(ia).

Item 48A

1206. This item replaces the reference to subparagraphs 203(1)(c)(i) or (ia) in paragraph 203(1)(iia) of the Migration Act 1958 with a reference to subparagraphs 203(1)(c)(ia) or (ib).

1207. This amendment is consequential to Items 46 and 48 of the Bill which repeals subparagraph 203(1)(c)(i) and inserts a new subparagraph 203(1)(c)(ib), respectively.

Surveillance Devices Act 2004

Items 49 and 50

1208. Section 30 of the Surveillance Devices Act 2004 deals with emergency authorisation procedures for use of a surveillance device. Under this provision, where a law enforcement officer reasonably suspects that the use of a surveillance device is immediately necessary to prevent the loss of any evidence relevant to an investigation of a specified offence and it is not practicable to obtain a warrant from an eligible judge or nominated AAT, that officer may apply for an emergency authorisation. Subparagraph 30(a)(vi) contains a reference to section 91.1 (espionage and similar activities) of the Criminal Code as one of the offences to which an emergency authorisation is available.

1209. Items 49 and 50 amend subparagraph 30(1)(a)(vi) of the Surveillance Devices Act to ensure that this power is available to the extended range of espionage related offences in Division 91 of the Criminal Code.

1210. It is important that law enforcement officers be able to obtain evidence of the commission of espionage-related activity in an efficient manner. Given the nature of these offences, it is often difficult to investigate them by other means, particularly as offenders habitually attempt to conceal any wrongdoing. In these circumstances the urgent deployment of a surveillance device will be necessary to prevent loss of evidence. Emergency authorisations must be retrospectively approved by an eligible Judge or nominated AAT member within 48 hours of issue.