Supplementary Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison, MP)Outline and financial impact
Outline
Schedule 4 to the Border Security Legislation Amendment Bill 2002 (the Bill), as introduced into the House of Representatives, amends the Customs Act 1901 to require goods that are in transit through Australia to be reported to Customs, to allow in transit goods to be examined, and to allow certain in transit goods to be seized.
In particular, item 20 of Schedule 4 to the Bill provides that a judicial officer may issue a warrant to seize goods that are in transit through Australia, if the officer is satisfied by information on oath that the Minister has reasonable grounds for suspecting that the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether the terrorist act has occurred, is occurring or is likely to occur.
Items 14 and 15 of Schedule 4 to the Bill insert a definition of terrorist act into Division 1 of Part XII of the Customs Act. That definition is the same as that contained in other bills in the counter terrorism package of bills.
The Senate Legal and Constitutional Committee (the Committee) in its report on those bills recommended that the definition of terrorist act be amended to include a third element, namely that the action or threat of action is designed to influence government by undue intimidation or undue coercion, or to unduly intimidate the public or a section of the public.
The purpose of the amendments is to tighten the definition of terrorist act in response to Recommendation 2 of the Committee. The amendments also limit the inclusion of actions involving serious harm to a person in the definition of terrorist act to actions involving serious physical harm and clarify that the definition of terrorist act includes causing death.
Financial impact statement
The amendments have no financial impact.
Notes on amendments
Amendment (1)
This amendment would amend item 14 of Schedule 4 to the Bill as introduced to tighten the definition of terrorist act by clarifying the exemption for advocacy, protest, dissent and industrial action and inserting an additional limb into the definition.
The definition of terrorist act would be amended to specify that actions falling within proposed subsection 183UA(4A) (to be inserted by amendment 4 of the Government amendments) are excluded from the definition. This would ensure that advocacy, protest, dissent or industrial action will not be covered by the definition unless it is intended to cause serious harm to, or the death of, a person, endanger a persons life or create a serious risk to health or safety. For example, a protest which only causes property damage would not constitute a terrorist act.
The definition of terrorist act would also be amended to insert an additional requirement that an action be done, or a threat of action be made, with the intention of coercing, or influencing by intimidation, a government or intimidating the public or a section of the public. This amendment will ensure that the definition of terrorist act reflects the terms of the United Kingdom Terrorism Act 2000 and Article 2 of the International Convention for the Suppression of the Financing of Terrorism. The amendment responds to Recommendation 2 of the Committee report on the counter terrorism package of bills.
Amendment (2)
This amendment would amend item 15 of Schedule 4 to the Bill as introduced to modify the definition of terrorist act so that actions involving serious harm to a person are only covered by the definition where they involve serious physical harm. This will ensure that actions involving harm only to a persons mental health do not constitute a terrorist act.
Amendment (3)
This amendment would amend item 15 of Schedule 4 to the Bill as introduced to clarify that a terrorist act includes an act which causes a persons death. Although the existing reference to actions involving serious harm to a person would cover actions which cause the death of a person, the inclusion of a specific reference to death will ensure consistency with offences in the Criminal Code.
Amendment (4)
This amendment would amend item 15 of Schedule 4 to the Bill as introduced to insert proposed subsection 183UA(4A). Actions falling within proposed subsection 183UA(4A) would be excluded from the definition of terrorist act (see amendment 1). This would ensure that advocacy, protest, dissent or industrial action would not be covered by the definition unless it is intended to cause serious harm that is physical harm to, or the death of, a person, endanger a persons life or create a serious risk to health or safety. For example, a protest which causes property damage would not constitute a terrorist act.
Amendment (5)
This amendment would amend item 15 of Schedule 4 to the Bill as introduced to make it clear that in subsection 183UA(4A) (as inserted by amendment 4) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia and a reference to the public includes a reference to the public of a country other than Australia.