109   At the end of Division 106 of the Criminal Code

Add:

106.5 Application provisions for certain amendments in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014

(1) The amendments of section 102.1, made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, do not affect the continuity of any regulations that are in force for the purposes of that section immediately before the commencement of this section.

(2) Section 104.2, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to requests for interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(3) Section 104.4, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to the making of orders requested after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, apply to the making of requests after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(4A) Section 104.23, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to variations of control orders, where the relevant interim control order is requested after that commencement.

(5) Section 105.4, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for preventative detention orders made after the commencement of this section.

(6) Section 105.7, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for initial preventative detention orders made after the commencement of this section.

(7) Section 105.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to initial preventative detention orders made after the commencement of this section.

(8) Section 105.12, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to continued preventative detention orders made after the commencement of this section, regardless of when the initial preventative detention order to which the continued order relates was made.

(9) Section 105.15, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the application for the preventative detention order to which the prohibited contact order relates was made.

(10) Section 105.16, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the preventative detention order to which the prohibited contact order relates was made.

110   At the end of Chapter 5 of the Criminal Code

Add:

Part 5.5 - Foreign incursions and recruitment

Division 117 - Preliminary

117.1 Definitions

(1) In this Part:

armed force does not include an armed force forming part of the Australian Defence Force.

Defence Minister means the Minister administering the Defence Force Discipline Act 1982.

engage in a hostile activity : a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b) the engagement, by that or any other person, in action that:

(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

(ii) if engaged in in Australia, would constitute a serious offence;

(c) intimidating the public or a section of the public of that or any other foreign country;

(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.

listed terrorist organisation has the meaning given by subsection 100.1(1).

military training means training in the use of arms or explosives, or the practice of military exercises or movements.

prescribed organisation is:

(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or

(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).

recruit includes induce, incite or encourage.

serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.

Prescribing organisations

(2) Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (a) of the definition of prescribed organisation in subsection (1), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:

(a) a serious violation of human rights; or

(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or

(c) a terrorist act (within the meaning of section 100.1); or

(d) an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.

117.2 Extended geographical jurisdiction - category D

Section 15.4 (extended geographical jurisdiction - category D) applies (subject to this Part) to an offence against this Part.

Division 119 - Foreign incursions and recruitment

119.1 Incursions into foreign countries with the intention of engaging in hostile activities

Offence for entering foreign countries with the intention of engaging in hostile activities

(1) A person commits an offence if:

(a) the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and

(b) when the person enters the country, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

Offence for engaging in a hostile activity in a foreign country

(2) A person commits an offence if:

(a) the person engages in a hostile activity in a foreign country; and

(b) when the person engages in the activity, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

Absolute liability element

(3) Absolute liability applies to paragraphs (1)(b) and (2)(b).

Note: For absolute liability, see section 6.2.

Exception

(4) Subsections (1) and (2) do not apply to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

(5) Paragraph (4)(a) does not apply if:

(a) the person intends to engage, or engages, in a hostile activity in a foreign country while in or with an organisation; and

(b) the organisation is a prescribed organisation at the following time:

(i) for subsection (1) - the time of the entry referred to in that subsection;

(ii) for subsection (2) - the time the person engages in the hostile activity referred to in that subsection.

119.2 Entering, or remaining in, declared areas

(1) A person commits an offence if:

(a) the person enters, or remains in, an area in a foreign country; and

(b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and

(c) when the person enters the area, or at any time when the person is in the area, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for 10 years.

Absolute liability element

(2) Absolute liability applies to paragraph (1)(c).

Note: For absolute liability, see section 6.2.

Exception - entering or remaining solely for legitimate purposes

(3) Subsection (1) does not apply if the person enters, or remains in, the area solely for one or more of the following purposes:

(a) providing aid of a humanitarian nature;

(b) satisfying an obligation to appear before a court or other body exercising judicial power;

(c) performing an official duty for the Commonwealth, a State or a Territory;

(d) performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;

(e) performing an official duty for the United Nations or an agency of the United Nations;

(f) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;

(g) making a bona fide visit to a family member;

(h) any other purpose prescribed by the regulations.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3).

Exception - entering or remaining solely for service with armed force other than prescribed organisation

(4) Subsection (1) does not apply if the person enters, or remains in, the area solely in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

(5) However, subsection (4) does not apply if:

(a) the person enters, or remains in, an area in a foreign country while in or with an organisation; and

(b) the organisation is a prescribed organisation at the time the person enters or remains in the area as referred to in paragraph (1)(a).

Note 1: For conduct for the defence or international relations of Australia, see section 119.9.

Note 2: Sections 10.1 and 10.3 also provide exceptions to subsection (1) of this section (relating to intervening conduct or event and sudden or extraordinary emergency respectively).

Sunset provision

(6) This section ceases to have effect at the end of 7 September 2018.

119.3 Declaration of areas for the purposes of section 119.2

(1) The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.

(2) A single declaration may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.

(2A) A declaration must not cover an entire country.

Requirement to brief Leader of the Opposition

(3) Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.

Cessation of declaration

(4) A declaration ceases to have effect on the third anniversary of the day on which it takes effect. To avoid doubt, this subsection does not prevent:

(a) the revocation of the declaration; or

(b) the making of a new declaration the same in substance as the previous declaration (whether the new declaration is made or takes effect before or after the previous declaration ceases to have effect because of this subsection).

Note: An offence committed in relation to the declared area before the cessation can be prosecuted after the cessation: see section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislative Instruments Act 2003.

(5) If:

(a) an area is declared under subsection (1); and

(b) the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area;

the Foreign Affairs Minister must revoke the declaration.

Note: The Foreign Affairs Minister may, for example, cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area if the organisation ceases to be specified in the regulations.

(6) To avoid doubt, subsection (5) does not prevent an area from being subsequently declared if the Foreign Affairs Minister becomes satisfied as mentioned in subsection (1).

Review of declaration

(7) The Parliamentary Joint Committee on Intelligence and Security may review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislative Instruments Act 2003.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts

(1) A person commits an offence if:

(a) the person engages in conduct (whether within or outside Australia); and

(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Accumulating weapons etc.

(2) A person commits an offence if:

(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and

(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Providing or participating in training

(3) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) providing military training to another person;

(ii) participating in providing military training to another person;

(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and

(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

(4) A person commits an offence if:

(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):

(i) allowing military training to be provided to himself or herself;

(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and

(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Giving or receiving goods and services to promote the commission of an offence

(5) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) giving money or goods to, or performing services for, any other person, body or association;

(ii) receiving or soliciting money or goods, or the performance of services; and

(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and

(c) when the person engages in the conduct, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).

Note: For absolute liability, see section 6.2.

Exception

(7) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

Disregarding paragraphs 119.1(1)(b) and (2)(b)

(8) A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.

119.5 Allowing use of buildings, vessels and aircraft to commit offences

Use of buildings

(1) A person commits an offence if:

(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and

(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and

(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and

(d) when the person permits the meeting to be so held, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Use of vessels or aircraft

(2) A person commits an offence if:

(a) the person is:

(i) an owner, charterer, lessee, operator, agent or master of a vessel; or

(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and

(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and

(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and

(d) when the person permits the use, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).

Note: For absolute liability, see section 6.2.

Exception

(4) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

119.6 Recruiting persons to join organisations engaged in hostile activities against foreign governments

A person commits an offence if:

(a) the person recruits, in Australia, another person to become a member of, or to serve in any capacity with, a body or association of persons; and

(b) the objectives of the body or association include any one or more of the objectives referred to in the definition of engage in a hostile activity in subsection 117.1(1).

Note: For conduct for the defence or international relations of Australia, see section 119.9.

Penalty: Imprisonment for 25 years.

119.7 Recruiting persons to serve in or with an armed force in a foreign country

Recruiting others to serve with foreign armed forces

(1) A person commits an offence if the person recruits, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Publishing recruitment advertisements

(2) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or promise of money or any other consideration; and

(b) the person is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or promise of money or any other consideration; and

(b) the advertisement or item of news contains information:

(i) relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or

(ii) relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Facilitating recruitment

(4) A person commits an offence if:

(a) the person engages in conduct in Australia; and

(b) the person engages in the conduct intending to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Exception

(5) This section does not apply in relation to service of a person in or with an armed force in circumstances if a declaration under subsection 119.8(2) covers the person and the circumstances of the person’s service in or with the armed force.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

Armed forces that are not part of the government of a foreign country

(6) A reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.

(7) Without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.

119.8 Declaration in relation to specified armed forces

Service

(1) The Minister may, by legislative instrument, declare that section 119.1 or 119.2 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the service of that person or class of persons in those circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified capacity.

Recruitment

(2) The Minister may, by legislative instrument, declare that section 119.7 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified capacity.

119.9 Exception - conduct for defence or international relations of Australia

This Division does not apply in relation to conduct engaged in by a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.

Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).

Note 2: See also section 119.12 (declarations for the purposes of proceedings).

119.10 Mode of trial

(1) A prosecution for any of the following offences is (subject to subsection (2)) to be on indictment:

(a) an offence against this Division;

(b) an offence against section 6 of the Crimes Act 1914, or an ancillary offence, that relates to an offence against this Division.

(2) If the law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person’s commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment, a person charged in that State or Territory with an offence referred to in subsection (1) may be dealt with in accordance with that law.

119.11 Consent of Attorney-General required for prosecutions

(1) Proceedings for the commitment of a person for the following must not be instituted without the written consent of the Attorney-General:

(a) the trial on indictment for an offence against the following provisions:

(i) this Division;

(ii) section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Division;

(b) the summary trial of a person for an offence referred to in paragraph (a).

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be charged with an offence referred to in paragraph (1)(a);

(b) a person may be arrested for an offence referred to in paragraph (1)(a), and a warrant for such an arrest may be issued and executed;

(c) a person so charged may be remanded in custody or on bail.

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

119.12 Declarations for the purposes of proceedings

(1) The Foreign Affairs Minister may, in writing, declare that:

(a) a specified authority is in effective governmental control in a specified foreign country or part of a foreign country; or

(b) a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.

(2) The Defence Minister may, in writing, declare that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.

(3) Without limiting subsection (1) or (2), a declaration under that subsection may be made in relation to a specified day or period.

(4) In proceedings for an offence referred to in paragraph 119.11(1)(a), a certificate under this section is prima facie evidence of the matters stated in the certificate.

Customs Act 1901

111   Subsection 183UA(1) (definition of terrorist act )

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the Criminal Code.

112   Subsections 183UA(4), (4A) and (5)

Repeal the subsections.

113   Subsection 228(7) (definition of terrorist act )

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the Criminal Code.

114   Application of amendments

The amendments of sections 183UA and 228 of the Customs Act 1901 made by this Schedule apply in relation to any terrorist act (whether occurring before, on or after the commencement of this item).

Foreign Evidence Act 1994

115   Subsection 3(1) (paragraph (c) of the definition of designated offence )

Repeal the paragraph, substitute:

(c) an offence against either of the following provisions of the Charter of the United Nations Act 1945:

(i) Part 4 of that Act;

(ii) Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions - Al-Qaida) Regulations 2008; or

116   Subsection 3(1) (after paragraph (d) of the definition of designated offence )

Insert:

(da) an offence against Subdivision B of Division 80 of the Criminal Code; or

117   Subsection 3(1) (after paragraph (f) of the definition of designated offence )

Insert:

(fa) an offence against Part 5.5 of the Criminal Code; or

118   Subsection 3(1) (paragraph (j) of the definition of designated offence )

Repeal the paragraph.

119   Subsection 3(1)

Insert:

duress has the meaning given by subsection 27D(3).

foreign authority means an authority of a foreign country or of part of a foreign country.

foreign government material means material provided by a foreign authority to an authority of the Commonwealth.

120   Subsection 3(1) (paragraph (a) of the definition of foreign material )

Omit “Part 3”, substitute “Parts 3 and 3A”.

121   Subsection 3(1)

Insert:

member of the Australian Federal Police has the same meaning as in the Australian Federal Police Act 1979.

senior AFP member means:

(a) the Commissioner of the Australian Federal Police; or

(b) a Deputy Commissioner of the Australian Federal Police; or

(c) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979) who is a member of the Australian Federal Police; or

(d) a member of the Australian Federal Police occupying a position in the Australian Federal Police that is equivalent to or higher than one of the positions mentioned in paragraphs (a), (b) and (c), whether or not a declaration under section 25 of that Act is in force in respect of the person.

substantial adverse effect means an effect that is adverse and not insubstantial, insignificantor trivial.

terrorism-related proceeding means:

(a) a criminal proceeding for a designated offence; or

(b) a proceeding under the Proceeds of Crime Act 2002 relating to a designated offence; or

(c) a proceeding under Division 104 of the Criminal Code.

torture has the meaning given by subsection 27D(3).

122   After subsection 20(1)

Insert:

(1A) However, this Part does not apply to a terrorism-related proceeding. This does not prevent testimony or an exhibit from being foreign material for the purposes of Part 3A.

Note: Part 3A deals with use of foreign material in terrorism-related proceedings.

123   Subsection 25(1) (note)

Repeal the note.

124   Section 25A

Repeal the section.

125   After Part 3

Insert:

Part 3A - Use of foreign material and foreign government material in terrorism-related proceedings

27A Foreign material may be adduced as evidence

(1) Foreign material may be adduced in a terrorism-related proceeding.

Note 1: The court has a discretion to direct that foreign material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).

Note 2: Section 27D deals with admissibility of foreign material adduced.

(2) However, foreign material is not to be adduced as evidence if it appears to the court’s satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing.

27B Foreign government material may be adduced as evidence

Adducing foreign government material

(1) Foreign government material may be adduced in a terrorism-related proceeding if the material is:

(a) annexed to a written statement by a senior AFP member that:

(i) is verified on oath or affirmation by the member; and

(ii) meets the requirements in subsection (2); and

(b) accompanied by a certificate of the Attorney-General given under subsection (3).

Note 1: The court has a discretion to direct that foreign government material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).

Note 2: Section 27D deals with admissibility of foreign government material adduced.

Content of statement by senior AFP member

(2) A statement by a senior AFP member for the purposes of paragraph (1)(a) must:

(a) relate only to foreign government material annexed to the statement; and

(b) state what the material is; and

(c) state, to the best of the senior AFP member’s knowledge:

(i) how the material, and any information contained in the material, was obtained by the first foreign authority to obtain or produce the material or information; and

(ii) each step in the process by which the material or information came from that foreign authority into the possession of the Australian Federal Police.

Attorney-General’s certificate

(3) The Attorney-General may certify, in a form prescribed under subsection (4), that he or she is satisfied that it was not practicable to obtain the foreign government material or the information in the foreign government material as foreign material.

(4) The Attorney-General may by legislative instrument prescribe a form for a certificate to be given under subsection (3).

(5) A certificate given under subsection (3) is not a legislative instrument.

27C Discretion to prevent material being adduced

(1) This section applies in relation to a terrorism-related proceeding described in an item of the following table if a person described in that item seeks to adduce foreign material or foreign government material in the proceeding.

(2) The court may direct that the material not be adduced as evidence in the proceeding if the court is satisfied that adducing the material would have a substantial adverse effect on the right of another party to the proceeding to receive a fair hearing.

27D Admissibility of material adduced

(1) The following are admissible in a terrorism-related proceeding, subject to subsection (2) but despite any other Australian law about evidence:

(a) foreign material adduced under subsection 27A(1) in the proceeding;

(b) foreign government material adduced under subsection 27B(1) in the proceeding;

(c) the statement to which the foreign government material was annexed as described in paragraph 27B(1)(a);

(d) the certificate that accompanied the foreign government material as described in paragraph 27B(1)(b).

Exception to admissibility

(2) Foreign material or foreign government material is not admissible if the court is satisfied that the material, or information contained in the material, was obtained directly as a result of torture or duress.

(3) In subsection (2):

duress means a threat that:

(a) is made explicitly or implicitly to a person; and

(b) is a threat to imminently cause one or both of the following unless material or information is provided:

(i) death or serious injury of the person, a member of the person’s family or a third party;

(ii) damage to, or loss by the person of, the person’s significant assets; and

(c) is a threat to which a reasonable person would respond by providing the material or information.

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act that the person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights done at New York on 16 December 1966;

but does not include an act or omission arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the Covenant.

Note: The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

(4) If foreign government material is not admissible, neither of the following is admissible, so far as it relates to the inadmissible foreign government material:

(a) the statement described in paragraph (1)(c);

(b) the certificate described in paragraph (1)(d).

27DA Warning and informing jury

(1) If foreign material or foreign government material is admitted in a terrorism-related proceeding conducted before a jury, and a party to the proceeding so requests, the judge is to:

(a) warn the jury that the material may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the material and the weight to be given to it.

(2) The judge need not comply with subsection (1) if there are good reasons for not doing so.

(3) It is not necessary that a particular form of words be used in giving the warning or information.

(4) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

27E Operation of other laws

This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law.

126   Application of amendments

(1) The amendments of the Foreign Evidence Act 1994 made by this Schedule apply in relation to adducing evidence in proceedings instituted on or after the commencement of the amendments, whether the evidence was obtained before, on or after that commencement.

(2) However, the repeal of paragraph (j) of the definition of designated offence in subsection 3(1) of the Foreign Evidence Act 1994 by this Schedule does not prevent an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 from being a designated offence for the purposes of proceedings instituted on or after that repeal.

Foreign Passports (Law Enforcement and Securit) Act 2005

127   Subsection 5(1)

Omit “(1)”.

128   Subsection 5(1)

Insert:

ASIO means the Australian Security Intelligence Organisation.

129   At the end of Division 1 of Part 2

Add:

15A Request for 14-day surrender relating to security risk

(1) The Director-General of Security may request the Minister to make an order under section 16A in relation to a person’s foreign travel documents if the Director-General suspects on reasonable grounds that:

(a) the person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country; and

(b) the person should be required to surrender the person’s foreign travel documents in order to prevent the person from engaging in the conduct.

(2) If the Minister has made an order under section 16A in relation to a person’s foreign travel documents, another request under subsection (1) of this section relating to the person must not be madeunless the grounds for suspicion mentioned in that subsection include information first obtained by the Director-General of Security or an officer or employee of ASIO more than 14 days after the Minister made the order.

(3) The Director-General of Security may, in writing, delegate his or her power under subsection (1) to a Deputy Director-General of Security (within the meaning of the Australian Security Intelligence Organisation Act 1979).

(4) In exercising power under a delegation, the delegate must comply with any directions of the Director-General of Security.

130   Section 16 (heading)

Repeal the heading, substitute:

16 Demand for surrender of foreign travel document ordered by Minister on request under section 13, 14 or 15

131   After section 16

Insert:

16A Demand for 14-day surrender of foreign travel document ordered by Minister on request under section 15A

(1) The Minister may, on request under section 15A relating to a person’s foreign travel documents, order the surrender of the documents.

(2) If the Minister has made an order under subsection (1), an enforcement officer may demand that the person surrender to the officer the person’s foreign travel documents.

(3) If the person does not immediately surrender the person’s foreign travel documents, the officer may:

(a) seize the person’s foreign travel documents; and

(b) seize any foreign travel document of the person that is not in the possession or control of any person.

(4) Subsection (3) does not authorise an enforcement officer to enter premises that the officer would not otherwise be authorised to enter.

(5) A person commits an offence if:

(a) an enforcement officer demands under subsection (2) that the person surrender the person’s foreign travel documents; and

(b) the officer informs the person that the Minister has ordered the surrender of the person’s foreign travel documents and that the officer is authorised to make the demand; and

(c) the officer informs the person that it may be an offence not to comply with the demand; and

(d) the person has possession or control of one or more of the person’s foreign travel documents; and

(e) the person fails to surrender those documents to the officer immediately.

Penalty: Imprisonment for 6 months or 10 penalty units, or both.

(6) A foreign travel document obtained by an enforcement officer under this section must be returned, to the person to whom it was issued, 14 days after the Minister made the order under subsection (1) relating to the document.

(7) However, subsection (6) does not apply if, within the 14 days described in that subsection, the Minister makes an order under subsection 16(1). In that case, subsections 16(6) and (7) apply in relation to the foreign travel document as if it had been obtained by an enforcement officer under section 16.

Independent National Security Legislation Monitor Act 2010

131A   After subsection 6(1A)

Insert:

(1B) The Independent National Security Legislation Monitor must complete the review under paragraph (1)(a) of the following counter-terrorism and national security legislation by 7 September 2017:

(a) Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 and any other provision of that Act as far as it relates to that Division;

(b) Division 3A of Part IAA of the Crimes Act 1914 and any other provision of that Act as far as it relates to that Division;

(c) Divisions 104 and 105 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those Divisions;

(d) sections 119.2 and 119.3 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those sections.

Intelligence Services Act 2001

131B   Section 3

Insert:

AFP means the Australian Federal Police.

132   Paragraph 29(1)(ba)

Repeal the paragraph, substitute:

(baa) to monitor and to review the performance by the AFP of its functions under Part 5.3 of the Criminal Code; and

(bab) to report to both Houses of the Parliament, with such comments as it thinks fit, upon any matter appertaining to the AFP or connected with the performance of its functions under Part 5.3 of the Criminal Code to which, in the opinion of the Committee, the attention of the Parliament should be directed; and

(bac) to inquire into any question in connection with its functions under paragraph (baa) or (bab) that is referred to it by either House of the Parliament, and to report to that House upon that question; and

133   Paragraph 29(1)(bb)

Omit “22 January 2016”, substitute “7 March 2018”.

133A   Paragraph 29(3)(g)

Omit “or ONA”, substitute “, ONA or AFP”.

133B   At the end of subsection 29(3)

Add:

; or (j) reviewing sensitive operational information or operational methods available to the AFP; or

(k) reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.

133C   At the end of section 30

Add:

; (d) the Commissioner of the AFP.

133D   Clause 1A of Schedule 1 (definition of agency )

Omit “or ONA”, substitute “, ONA or AFP”.

133E   Clause 1A of Schedule 1 (at the end of the definition of agency head )

Add:

; or (e) the Commissioner of the AFP.

133F   Clause 1A of Schedule 1 (definition of staff member )

After “employee of the agency,”, insert “a member or special member of the agency (within the meaning of the Australian Federal Police Act 1979),”.

133G   Application of amendments

The amendments of the Intelligence Services Act 2001 made by this Schedule apply in relation to the performance of the AFP of its functions under Part 5.3 of the Criminal Code, whether those functions are performed before or after this item commences.

National Health Security Act 2007

134   Paragraph 89(1)(c)

After “5.3”, insert “or 5.5”.

135   Paragraph 92(c)

After “5.3”, insert “or 5.5”.

Parliamentary Joint Committee on Law Enforcement Act 2010

135A   At the end of subsection 7(2)

Add:

; or (g) monitoring, reviewing or reporting on the performance by the AFP of its functions under Part 5.3 of the Criminal Code.

135B   Application of amendment

The amendment of the Parliamentary Joint Committee on Law Enforcement Act 2010 made by this Schedule applies in relation to the monitoring, reviewing, or reporting on, after this item commences, of the performance of the AFP of its functions under Part 5.3 of the Criminal Code (whether those functions are performed before or after this item commences).

Proceeds of Crime Act 2002

136   Section 338 (definition of terrorism offence )

Repeal the definition, substitute:

terrorism offence has the same meaning as in the Crimes Act 1914.

Sea Installations Act 1987

137   Schedule

Omit “Crimes (Foreign Incursions and Recruitment) Act 1978”.

Telecommunications (Interception and Access) Act 1979

138   After subparagraph 5D(1)(e)(i)

Insert:

(ia) Subdivision B of Division 80 of the Criminal Code; or

(ib) section 80.2C of the Criminal Code; or

139   At the end of paragraph 5D(1)(e)

Add:

(v) section 104.27 of the Criminal Code; or

(vi) Division 119 of the Criminal Code; or

Terrorism Insurance Act 2003

140   Section 3 (definition of terrorist act )

Repeal the definition, substitute:

terrorist act has the meaning given by section 100.1 of the Criminal Code.

141   Section 5

Repeal the section.

142   Paragraph 8(2)(b)

Omit “section 5”, substitute “section 100.1 of the Criminal Code”.

143   Application of amendments

The amendments of the Terrorism Insurance Act 2003 made by this Schedule apply in relation to any terrorist act (whether occurring before, on or after the commencement of this item).

Part 2   Repeals

Crimes (Foreign Incursions and Recruitment) Act 1978

144   The whole of the Act

Repeal the Act.

145   Transitional provision

Despite the repeal of section 11 of the Crimes (Foreign Incursions and Recruitment) Act 1978, that section continues to apply after this item commences in relation to any certificate that is in force under that section immediately before that repeal.

Schedule 2   Stopping welfare payments

Part 1   Main amendments

A New Tax System (Family Assistance) Act 1999

1  Subsection 3(1)

Insert:

Attorney-General’s Secretary means the Secretary of the Department administered by the Minister administering the Australian Security Intelligence Organisation Act 1979.

Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005.

Human Services Secretary means the Secretary of the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.

Immigration Minister means the Minister administering the Migration Act 1958.

security notice means a notice under section 57GJ.

2   At the end of Part 3

Add:

Division 7 - Loss of family assistance for individuals on security grounds

57GH Simplified outline of this Division

Individuals who might prejudice the security of Australia or a foreign country may lose family assistance.

57GI Loss of family assistance for individuals on security grounds

Security notice for recipient of family assistance

(1) If a security notice is given to the Minister in relation to an individual, then while the notice is in force:

(a) no family assistance is to be paid to the individual; and

(b) the individual is not eligible for family assistance.

Note 1: A security notice is a notice under section 57GJ.

Note 2: This Division does not apply in relation to child care benefit or child care rebate: see section 57GQ.

(2) If a security notice is given to the Minister in relation to an individual, then any determination that the individual is entitled to be paid family assistance, that is in force immediately before the day the notice comes into force, ceases to be in force on that day.

(3) If a security notice given to the Minister in relation to an individual ceases to be in force, then the individual is not eligible for family assistance for any day while the notice was in force.

(4) However, if:

(a) a security notice given to the Minister in relation to an individual recommends that payments of family assistance of the individual be paid to a payment nominee of the individual under Part 8B of the Family Assistance Administration Act; and

(b) apart from subsections (1) to (3), the individual would be eligible for the whole or a part of that family assistance;

then that whole or part may be paid to a payment nominee of the individual under that Part.

(5) For the purposes of subsection (4), paragraph 219TD(2)(b) of the Family Assistance Administration Act does not apply.

(6) For the purposes of subsection (4), section 219TN of the Family Assistance Administration Act does not apply. Instead, any amount paid to a payment nominee of the individual is to be applied by the nominee in accordance with a written direction given by the Secretary under this subsection.

Security notice for individual in respect of whom family assistance payable

(7) If:

(a) a security notice is given to the Minister in relation to an individual; and

(b) the individual is aged 19 or less on the day the notice is given;

then, for any day while the notice is or was in force, the individual cannot be an FTB child of another individual, cannot be a regular care child of another individual and cannot be a client of an approved care organisation.

Relationship with other provisions

(8) Subsections (1) to (7) have effect despite any other provision of the family assistance law.

Notification to individual

(9) If a determination in relation to an individual ceases to be in force because of subsection (2), the Secretary must cause reasonable steps to be taken to notify the individual of the cessation.

57GJ Security notice from Attorney-General

(1) The Attorney-General may give the Minister a written notice requiring that this Division apply in relation to a specified individual if:

(a) the Foreign Affairs Minister gives the Attorney-General a notice under section 57GK in relation to the individual; or

(b) the Immigration Minister gives the Attorney-General a notice under section 57GL in relation to the individual.

(2) A notice under this section may recommend that payments of family assistance of the individual, to the extent set out in the notice, be paid to a payment nominee of the individual under Part 8B of the Family Assistance Administration Act.

(3) Before giving a notice under this section, the Attorney-General must have regard to the following:

(a) the extent (if any) that any payments of family assistance of the individual are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, if the Attorney-General is aware of that extent;

(b) the likely effect of the operation of section 57GI on the individual’s dependants, if the Attorney-General is aware of those dependants.

(4) The Attorney-General’s Secretary must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (3)(b); and

(b) inform the Attorney-General of that advice.

(5) Subsection (3) does not limit the matters to which regard may be had.

57GK Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act 2005, the Foreign Affairs Minister refuses to issue an individual an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs Minister cancels an individual’s Australian passport; and

(b) the refusal or cancellation was because of a refusal/cancellation request made in relation to the individual under subsection 14(1) of that Act; and

(c) the request was made on the basis of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a written notice setting out those matters.

57GL Notice from Immigration Minister

If:

(a) the Immigration Minister cancels an individual’s visa under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the individual is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels an individual’s visa under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and decides not to revoke that cancellation under subsection 134C(3) of that Act; or

(c) the Immigration Minister cancels an individual’s visa under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the individual is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written notice setting out those matters.

57GM Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

57GN Period security notice is in force

A security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.

57GNA Annual review of security notice

Before the end of the following periods, the Attorney-General must consider whether to revoke a security notice (if it has not already been revoked):

(a) 12 months after it came into force;

(b) 12 months after the Attorney-General last considered whether to revoke it.

57GO Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister, revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a determination in relation to an individual ceases to be in force because of subsection 57GI(2); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be taken to notify the individual of the revocation.

57GP Notices may contain personal information

A notice under this Division in relation to an individual may contain personal information about the individual.

57GQ This Division does not apply to child care benefit or child care rebate

This Division does not apply in relation to child care benefit or child care rebate.

57GR Certain decisions not decisions of officers

For the purposes of Part 5 of the Family Assistance Administration Act, the following decisions are taken not to be decisions of an officer under the family assistance law:

(a) any decision under this Division;

(b) any decision under Part 8B of that Act to pay, or not to pay, an amount of family assistance as mentioned in subsection 57GI(4) of this Act;

(c) any decision under Part 8B of that Act that is related to a decision mentioned in paragraph (b).

57GS Instruments not legislative instruments

The following are not legislative instruments:

(a) a notice under this Division;

(b) a direction under subsection 57GI(6).

Paid Parental Leave Act 2010

3   Section 6

Insert:

Attorney-General’s Secretary means the Secretary of the Department administered by the Minister administering the Australian Security Intelligence Organisation Act 1979.

Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005.

Human Services Secretary means the Secretary of the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.

Immigration Minister means the Minister administering the Migration Act 1958.

security notice means a notice under section 278C.

4   At the end of Part 6-1

Add:

Division 5 - Loss of parental leave pay or dad and partner pay for persons on security grounds

278A Simplified outline of this Division

Persons who might prejudice the security of Australia or a foreign country may lose parental leave pay or dad and partner pay.

278B Loss of parental leave pay or dad and partner pay for persons on security grounds

(1) If a security notice is given to the Minister in relation to a person, then while the notice is in force:

(a) no parental leave pay or dad and partner pay is to be paid to the person; and

(b) the person is not eligible for parental leave pay or dad and partner pay; and

(c) parental leave pay or dad and partner pay is not payable to the person.

Note: A security notice is a notice under section 278C.

(2) If:

(a) a security notice is given to the Minister in relation to a person; and

(b) a payability determination that parental leave pay or dad and partner pay is payable to the person is in force at the end of the day (the relevant day ) before the day the notice is given; and

(c) the day the notice is given is in the person’s PPL period, or DAPP period, that is specified in that determination;

then that determination is taken to be varied so that the person’s PPL period or DAPP period, as the case requires, ends at the end of the relevant day.

(3) If a security notice given to the Minister in relation to a person ceases to be in force, then for any day while the notice was in force:

(a) the person is not eligible for parental leave pay or dad and partner pay; and

(b) parental leave pay or dad and partner pay is not payable to the person.

(4) Subsections (1) to (3) have effect despite any other provision of this Act.

(5) If a payability determination for a person is varied by subsection (2), the Secretary must cause reasonable steps to be taken to notify the person of the variation.

278C Security notice from Attorney-General

(1) The Attorney-General may give the Minister a written notice requiring that this Division apply in relation to a specified person if:

(a) the Foreign Affairs Minister gives the Attorney-General a notice under section 278D in relation to the person; or

(b) the Immigration Minister gives the Attorney-General a notice under section 278E in relation to the person.

(2) Before giving a notice under this section, the Attorney-General must have regard to the following:

(a) the extent (if any) that any payments of parental leave pay or dad and partner pay of the person are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, if the Attorney-General is aware of that extent;

(b) the likely effect of the operation of section 278B on the person’s dependants, if the Attorney-General is aware of those dependants.

(3) The Attorney-General’s Secretary must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (2)(b); and

(b) inform the Attorney-General of that advice.

(4) Subsection (2) does not limit the matters to which regard may be had.

278D Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act 2005, the Foreign Affairs Minister refuses to issue a person an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs Minister cancels a person’s Australian passport; and

(b) the refusal or cancellation was because of a refusal/cancellation request made in relation to the person under subsection 14(1) of that Act; and

(c) the request was made on the basis of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a written notice setting out those matters.

278E Notice from Immigration Minister

If:

(a) the Immigration Minister cancels a person’s visa under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels a person’s visa under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and decides not to revoke that cancellation under subsection 134C(3) of that Act; or

(c) the Immigration Minister cancels a person’s visa under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written notice setting out those matters.

278F Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

278G Period security notice is in force

A security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.

278GA Annual review of security notice

Before the end of the following periods, the Attorney-General must consider whether to revoke a security notice (if it has not already been revoked):

(a) 12 months after it came into force;

(b) 12 months after the Attorney-General last considered whether to revoke it.

278H Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister, revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a payability determination for a person is varied by subsection 278B(2); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be taken to notify the person of the revocation.

278J Notices may contain personal information

A notice under this Division in relation to a person may contain personal information (within the meaning of the Privacy Act 1988) about the person.

278K Decisions under Division not decisions of officers

For the purposes of Chapter 5, a decision under this Division istaken not to be a decision of an officer under this Act.

278L Notices not legislative instruments

A notice under this Division is not a legislative instrument.

Social Security Act 1991

5   Subsection 23(1)

Insert:

Attorney-General’s Secretary means the Secretary of the Department administered by the Minister administering the Australian Security Intelligence Organisation Act 1979.

Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005.

Human Services Secretary means the Secretary of the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.

Immigration Minister means the Minister administering the Migration Act 1958.

security notice means a notice under section 38N.

6   After Part 1.3A of Chapter 1

Insert:

Part 1.3B - Loss of social security payments and concessions for persons on security grounds

38L Simplified outline of this Part

Persons who might prejudice the security of Australia or a foreign country may lose social security payments or concession cards.

38M Loss of social security payments and concessions for persons on security grounds

(1) If a security notice is given to the Minister in relation to a person, then while the notice is in force:

(a) no social security payment is to be paid to the person; and

(b) the person is not qualified for a social security payment; and

(c) a social security payment is not payable to the person; and

(d) the person is not qualified for a concession card.

Note: A security notice is a notice under section 38N.

(2) If a security notice is given to the Minister in relation to a person, then any social security payment of the person is cancelled on the day the notice comes into force.

(3) If a security notice is given to the Minister in relation to a person, then any concession card the person holds is cancelled on the day the notice comes into force.

(4) If a security notice given to the Minister in relation to a person ceases to be in force, then for any day while the notice was in force:

(a) the person is not qualified for a social security payment; and

(b) a social security payment is not payable to the person; and

(c) the person is not qualified for a concession card.

(5) Subsections (1) to (4) have effect despite any other provision of the social security law.

(6) If a person’s social security payment is cancelled by subsection (2), or a person’s concession card is cancelled by subsection (3), the Secretary must cause reasonable steps to be taken to notify the person of the cancellation.

38N Security notice from Attorney-General

(1) The Attorney-General may give the Minister a written notice requiring that this Part apply in relation to a specified person if:

(a) the Foreign Affairs Minister gives the Attorney-General a notice under section 38P in relation to the person; or

(b) the Immigration Minister gives the Attorney-General a notice under section 38Q in relation to the person.

(2) Before giving a notice under this section, the Attorney-General must have regard to the following:

(a) the extent (if any) that any social security payments of the person are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, if the Attorney-General is aware of that extent;

(b) the likely effect of the operation of section 38M on the person’s dependants, if the Attorney-General is aware of those dependants.

(3) The Attorney-General’s Secretary must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (2)(b); and

(b) inform the Attorney-General of that advice.

(4) Subsection (2) does not limit the matters to which regard may be had.

38P Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act 2005, the Foreign Affairs Minister refuses to issue a person an Australian passport; or

(ii) under section 22 of that Act, the Foreign Affairs Minister cancels a person’s Australian passport; and

(b) the refusal or cancellation was because of a refusal/cancellation request made in relation to the person under subsection 14(1) of that Act; and

(c) the request was made on the basis of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Attorney-General a written notice setting out those matters.

38Q Notice from Immigration Minister

If:

(a) the Immigration Minister cancels a person’s visa under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(b) the Immigration Minister cancels a person’s visa under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and decides not to revoke that cancellation under subsection 134C(3) of that Act; or

(c) the Immigration Minister cancels a person’s visa under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

the Immigration Minister may give the Attorney-General a written notice setting out those matters.

38R Copy of security notice to be given to Secretaries

The Minister must give a copy of a security notice to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

38S Period security notice is in force

A security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.

38SA Annual review of security notice

Before the end of the following periods, the Attorney-General must consider whether to revoke a security notice (if it has not already been revoked):

(a) 12 months after it came into force;

(b) 12 months after the Attorney-General last considered whether to revoke it.

38T Revoking a security notice

(1) The Attorney-General may, by written notice given to the Minister, revoke a security notice.

(2) The revocation takes effect on the day it is made.

(3) The Minister must give a copy of a notice under subsection (1) to:

(a) the Secretary of the Department; and

(b) the Secretary of the Human Services Department.

(4) If:

(a) a person’s social security payment is cancelled by subsection 38M(2) or a person’s concession card is cancelled by subsection 38M(3); and

(b) the Attorney-General revokes the security notice concerned;

the Secretary of the Department must cause reasonable steps to be taken to notify the person of the revocation.

38U Notices may contain personal information

A notice under this Part in relation to a person may contain personal information (within the meaning of the Privacy Act 1988) about the person.

38V Decisions under Part not decisions of officers

For the purposes of Part 4 of the Administration Act, a decision under this Part is taken not to be a decision of an officer under the social security law.

38W Notices not legislative instruments

A notice under this Part is not a legislative instrument.

Social Security (Administration) Act 1999

7   Before paragraph 123(1)(c)

Insert:

(ba) the payment is cancelled by section 38M of the 1991 Act; or

Part 3   Application provisions

9   Application provisions

Affected payments and concessions

(1) Section 57GI of the A New Tax System (Family Assistance) Act 1999, as inserted by this Act, applies in relation to family assistance of an individual, whether the individual became eligible for that assistance before, on or after the commencement of this item.

(2) Section 278B of the Paid Parental Leave Act 2010, as inserted by this Act, applies in relation to parental leave pay or dad and partner pay of a person, whether the person became eligible for that pay before, on or after the commencement of this item.

(3) Section 38M of the Social Security Act 1991, as inserted by this Act, applies in relation to the following:

(a) a social security payment of a person, whether the person qualified for that payment before, on or after the commencement of this item;

(b) a concession card of a person, whether that card was issued before, on or after the commencement of this item.

Ministerial notices

(4) Paragraph 57GK(a) of the A New Tax System (Family Assistance) Act 1999, paragraph 278D(a) of the Paid Parental Leave Act 2010 and paragraph 38P(a) of the Social Security Act 1991, as inserted by this Act, apply in relation to the refusal to issue, or the cancellation of, a passport before, on or after the commencement of this item.

(5) Paragraphs 57GL(a) and (c) of the A New Tax System (Family Assistance) Act 1999, paragraphs 278E(a) and (c) of the Paid Parental Leave Act 2010 and paragraphs 38Q(a) and (c) of the Social Security Act 1991, as inserted by this Act, apply in relation to the cancellation of a visa, or an assessment made, before, on or after the commencement of this item.

Schedule 3   Customs' detention powers

Customs Act 1901

1   Section 219ZJA

Insert:

national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

2   Section 219ZJA (definition of serious Commonwealth offence )

Repeal the definition, substitute:

serious Commonwealth offence means an offence against a law of the Commonwealth that is punishable on conviction by imprisonment for 12 months or more.

3   Paragraph 219ZJB(1)(b)

Omit “or is committing,”, substitute “is committing or intends to commit”.

4   Subsection 219ZJB(3)

Omit “delivered, as soon as practicable, into the custody of”, substitute “made available, as soon as practicable, to”.

5   Subsection 219ZJB(4)

Omit “or was committing,”, substitute “was committing or was intending to commit”.

6   Subsection 219ZJB(5)

Omit “45 minutes”, substitute “2 hours”.

7   Paragraphs 219ZJB(7)(a) and 219ZJC(6)(a)

After “safeguard”, insert “national security, the security of a foreign country or”.

8   At the end of Subdivision B of Division 1BA of Part XII

Add:

219ZJCA Detention of person for national security or security of a foreign country

(1) An officer may detain a person if:

(a) the person is in a designated place; and

(b) the officer is satisfied on reasonable grounds that the person is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country.

(2) An officer who is detaining a person under this section must (subject to subsection (3)) ensure that the person is made available, as soon as practicable, to a police officer in person to be dealt with according to law.

(3) An officer who is detaining a person under this section must release the person from that detention immediately if:

(a) the officer ceases to be satisfied on reasonable grounds that the person is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country; or

(b) the person is made available to a police officer under subsection (2); or

(c) a police officer indicates that the police force to which the police officer belongs has no interest in the person.

(4) Subject to subsection (6), if a person is detained under this section for more than 2 hours, an officer who is detaining the person under this section must inform the person of the right of the person to have a family member or another person notified of the person’s detention.

(5) Where a person detained under this section wishes to have a family member or another person notified of the person’s detention, the officer must take all reasonable steps to notify the family member or the other person.

(6) An officer who is detaining the person under this section may refuse to notify a family member or another person of the person’s detention if the officer believes on reasonable grounds that such notification should not be made in order to:

(a) safeguard national security, the security of a foreign country or the processes of law enforcement; or

(b) protect the life and safety of any person.

Note: In relation to references in this section to family member, see also section 4AAA.

9   At the end of subsection 219ZJD(1)

Add:

; or (e) in the case of a person detained under section 219ZJCA - preventing the concealment, loss or destruction of material of interest for national security or the security of a foreign country.

10   At the end of paragraph 219ZJD(3)(b)

Add:

; or (iv) that is of interest for national security or the security of a foreign country.

11   Subsection 219ZJD(4)

Repeal the subsection, substitute:

(4) An officer who seizes a weapon or other thing under subsection (3) must ensure that it is made available to:

(a) the police officer to whom the person is made available under subsection 219ZJB(3) or 219ZJCA(2); or

(b) the police officer into whose custody the person is delivered under subsection 219ZJC(3).

12   Subsection 219ZJF(1)

Omit “this Division”, substitute “section 219ZJB or 219ZJC”.

13   Subparagraph 219ZJJ(1)(b)(iv)

After “detention”, insert “, unless the minor is detained under section 219ZJCA”.

14   Paragraph 219ZJJ(2)(a)

After “safeguard”, insert “national security, the security of a foreign country or”.

Schedule 4   Cancelling visas on security grounds

Part 1   Amendment of the Migration Act 1958

Division 1 - Amendments

1   Subsection 5(1)

Insert:

ASIO means the Australian Security Intelligence Organisation.

ASIO Act means the Australian Security Intelligence Organisation Act 1979.

assessment , in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.

2   Subsection 33(10)

Before “and H”, insert “, FB”.

3   Before paragraph 118(d)

Insert:

(cc) section 134B (emergency cancellation on security grounds); or

4   Before Subdivision G of Division 3 of Part 2

Insert:

Subdivision FB - Emergency cancellation on security grounds

134A Natural justice

The rules of natural justice do not apply to a decision made under this Subdivision.

134B Emergency cancellation on security grounds

The Minister must cancel a visa held by a person if:

(a) there is an assessment made by ASIO for the purposes of this section; and

(b) the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and

(c) the assessment contains a recommendation that all visas held by the person be cancelled under this section; and

(d) the person is outside Australia.

134C Decision about revocation of emergency cancellation

Application of section

(1) This section applies to a visa that is cancelled under section 134B.

First ground to revoke cancellation

(2) The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5).

(3) However, the Minister must not revoke the cancellation under subsection (2) if:

(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and

(b) the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and

(c) the assessment contains a recommendation that the cancellation not be revoked under subsection (2).

Second ground to revoke cancellation

(4) If:

(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and

(b) the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection;

then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made.

Period

(5) For the purposes of subsections (2), (3) and (4), the period is the period that:

(a) starts at the beginning of the day (the cancellation day ) the visa is cancelled; and

(b) ends at the end of the 28th day after the cancellation day.

134D Effect of revocation of cancellation

(1) If the cancellation of a visa is revoked under section 134C, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.

(2) However, the Minister may vary:

(a) the time the visa is to be in effect; or

(b) any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.

134E Notice of cancellation

(1) If:

(a) the Minister decides under section 134B to cancel a visa; and

(b) the Minister decides under subsection 134C(3) not to revoke the cancellation;

then the Minister must give the former holder of the visa notice of the cancellation.

(2) The notice must be given:

(a) if the assessment made by ASIO for the purposes of section 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section - as soon as reasonably practicable after ASIO advises the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; and

(b) otherwise - as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.

(3) The notice must:

(a) state that the visa was cancelled under section 134B; and

(b) be given to the person in the prescribed way.

(4) Failure to give the notice does not affect the validity of either:

(a) the decision under section 134B to cancel the visa; or

(b) the decision under subsection 134C(3) not to revoke the cancellation.

134F Effect of cancellation on other visas

(1) This section applies if:

(a) a visa held by a person (the relevant person ) is cancelled under section 134B; and

(b) the Minister decides under subsection 134C(3) not to revoke the cancellation; and

(c) the Minister has given a notice to the relevant person under section 134E about the cancellation.

(2) If another person holds a visa only because the relevant person held a visa, then the Minister may, without notice to the other person, cancel the other person’s visa.

Division 2 - Application of amendments made by Part 1

5   Application of amendments made by Part 1

The amendments made by Part 1 of this Schedule apply in relation to visas granted before, on or after that commencement.

Part 2   Amendment of the Australian Security Intelligence Organisation Act 1979

6   Section 36

Before “This Part”, insert “(1)”.

7   At the end of section 36

Add:

(2) Despite paragraph (1)(b), this Part applies to a security assessment in respect of a person if:

(a) the person was the holder of a valid permanent visa; and

(b) the visa was cancelled under section 134B of the Migration Act 1958; and

(c) the security assessment is made for the purposes of section 134C of that Act in relationto that cancellation.

Schedule 5   Identifying persons in immigration clearance

Part 1   Amendment of the Migration Act 1958

1   Paragraph 5A(3)(g)

Repeal the paragraph, substitute:

(g) to enhance the Department’s ability to identify non-citizens who have a criminal history or who are of character concern; and

(ga) to assist in identifying persons who may be a security concern to Australia or a foreign country; and

2   Part 2 (heading)

Repeal the heading, substitute:

Part 2 - Arrival, presence and departure of persons

3   Paragraph 166(1)(c)

Repeal the paragraph, substitute:

(c) comply with any requirement, made by a clearance officer before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers referred to in subsection (5) to a clearance authority; and

(d) if under paragraph (a) the person presents evidence to an authorised system - provide to the authorised system a photograph or other image of the person’s face and shoulders.

4   Subsection 166(2)

Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.

5   Subparagraph 166(2)(c)(i)

Omit “neither the system nor a clearance officer requires”, substitute “a clearance officer does not require”.

6   Subsection 166(3) (heading)

Repeal the heading, substitute:

Complying with paragraphs (1)(a) and (b)

7   Before subsection 166(5)

Insert:

Personal identifiers provided under paragraph (1)(c)

8   Subsection 166(5)

Omit “paragraphs (1)(a) and (c), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.

9   Paragraph 166(5)(c)

After “identifier”, insert “of a type”.

10   Subsection 166(6)

Repeal the subsection.

11   Subsection 166(7)

Repeal the subsection, substitute:

(7) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.

12   Subsection 166(8)

Omit “non-citizen”, substitute “person”.

13   Paragraph 166(8)(a)

After “authorised officer”, insert “or authorised system”.

14   Paragraphs 170(1)(a) and (b)

Omit “the officer or an authorised system”, substitute “a clearance authority”.

15   At the end of subsection 170(1)

Add:

; and (c) to comply with any requirement made by a clearance officer to provide one or more personal identifiers referred to in subsection (2A) to a clearance authority; and

(d) if under paragraph (a) the person presents evidence to an authorised system - to provide to the authorised system a photograph or other image of the person’s face and shoulders.

16   Subsection 170(2)

Repeal the subsection, substitute:

Complying with subsection (1)

(2) A person is to comply with subsection (1) in a prescribed way.

17   Subsection 170(2AA)

Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.

18   Subparagraph 170(2AA)(c)(i)

Omit “neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2)”, substitute “a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1)”.

19   Subsection 170(2A) (heading)

Repeal the heading, substitute:

Personal identifiers provided under paragraph (1)(c)

20   Subsection 170(2A)

Omit “paragraph (1)(a) and subsection (2), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.

21   Paragraph 170(2A)(c)

After “identifier”, insert “of a type”.

22   Subsection 170(3)

Repeal the subsection.

23   Subsection 170(4)

Repeal the subsection, substitute:

(4) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.

24   Subsection 170(5)

Omit “non-citizen”, substitute “person”.

25   Paragraph 170(5)(a)

After “an authorised officer”, insert “or authorised system”.

26   Subsection 175(1)

Omit “to leave Australia (whether or not after calling at places in Australia)”, substitute “due to depart from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia)”.

27   Paragraphs 175(1)(a) and (b)

Omit “the officer or an authorised system”, substitute “a clearance authority”.

28   At the end of subsection 175(1)

Add:

; and (c) comply with any requirement made by a clearance officer to provide one or more personal identifiers referred to in subsection (2A) to a clearance authority; and

(d) if under paragraph (a) the person presents evidence to an authorised system - provide to the authorised system a photograph or other image of the person’s face and shoulders.

29   Subsection 175(2)

Repeal the subsection, substitute:

Complying with subsection (1)

(2) A person is to comply with subsection (1) in a prescribed way.

30   Subsection 175(2AA)

Omit “present evidence, or provide information,”, substitute “present or provide evidence, information or personal identifiers”.

31   Subparagraph 175(2AA)(c)(i)

Omit “neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2)”, substitute “a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1)”.

32   Subsection 175(2A) (heading)

Repeal the heading, substitute:

Personal identifiers provided under paragraph (1)(c)

33   Subsection 175(2A)

Omit “paragraph (1)(a) and subsection (2), a person may only be required to present or”, substitute “paragraph (1)(c), a person may only be required to”.

34   Paragraph 175(2A)(c)

After “identifier”, insert “of a type”.

35   Subsection 175(3)

Repeal the subsection.

36   Subsection 175(4)

Repeal the subsection, substitute:

(4) A person is taken not to have complied with a requirement to provide a personal identifier under paragraph (1)(c) or (d) unless the personal identifier is provided by way of one or more identification tests carried out by an authorised officer or authorised system.

37   Subsection 175(5)

Omit “non-citizen”, substitute “person”.

38   Paragraph 175(5)(a)

After “an authorised officer”, insert “or authorised system”.

39   At the end of Division 5 of Part 2

Add:

175B Collection, access and disclosure of information

Collection of information

(1) If a person presents or provides a document to a clearance authority under this Division, the clearance authority may collect information (including personal identifiers) in the document.

Access to, and disclosure of, personal information

(2) The following provisions:

(a) section 336D (which authorises access to identifying information);

(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);

(c) a provision of an instrument made under section 336D or 336F;

apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.

Effect on interpretation

(3) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.

40   Section 258

Omit “non-citizens” (wherever occurring), substitute “persons”.

41   Section 258A (heading)

Repeal the heading, substitute:

258A When person cannot be required to provide personal identifier

42   Subsection 258B(1)

Omit “carrying out an identification test on a non-citizen”, substitute “an authorised officer carries out an identification test on a person”.

43   Paragraphs 258B(1)(a) and (b)

Omit “the non-citizen” (wherever occurring), substitute “the person”.

44   Subsections 258B(2) and (3)

Omit “non-citizen” (wherever occurring), substitute “person”.

45   Section 258C (heading)

Repeal the heading, substitute:

258C Information to be provided when identification tests not carried out

46   Section 258C

Omit “non-citizen” (wherever occurring), substitute “person”.

47   Subsection 258D(1)

Omit “the authorised officer is to carry out identification tests on the non-citizen”, substitute “an identification test is to be carried out on a person”.

48   Subsection 258D(2)

Omit “non-citizen”, substitute “person”.

49   Subsection 258D(2)

Omit “carried out by an authorised officer”.

50   Paragraphs 258E(a) and (e)

Omit “non-citizen”, substitute “person”.

51   Subsection 261AL(1)

Omit “non-citizen”, substitute “person”.

52   Paragraphs 261AL(1)(a) and (b)

Omit “non-citizen’s” (wherever occurring), substitute “person’s”.

53   Subsection 261AL(5)

Omit “non-citizen”, substitute “person”.

54   Subsection 261AM(1)

Omit “non-citizen”, substitute “person”.

55   Paragraphs 261AM(1)(a) and (b)

Omit “non-citizen’s” (wherever occurring), substitute “person’s”.

56   Subsection 261AM(4)

Omit “non-citizen”, substitute “person”.

57   Paragraph 336D(2)(g)

Repeal the paragraph, substitute:

(g) the purposes of:

(i) this Act or an instrument made under this Act; or

(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or

(iii) the Customs Act 1901 or an instrument made under that Act; or

(iv) any other law of the Commonwealth prescribed by the regulations;

58   Subparagraph 336E(2)(a)(iii)

Repeal the subparagraph, substitute:

(iii) identify non-citizens who have a criminal history or who are of character concern; or

(iiia) identify persons who may be a security concern to Australia or a foreign country; or

59   After paragraph 336E(2)(b)

Insert:

(ba) is for the purpose of:

(i) this Act or an instrument made under this Act; or

(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or

(iii) the Customs Act 1901 or an instrument made under that Act; or

(iv) any other law of the Commonwealth prescribed by the regulations; or

60   After paragraph 366E(2)(eb)

Insert:

(ec) is for the purpose of identifying non-citizens who have a criminal history or who are of character concern; or

(ed) is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or

Part 2 - Application of amendments

61   Application of amendments

(1) The amendment made by item 1 of this Schedule, as it affects section 336A, 336D or 336F of the Migration Act 1958, applies in relation to personal identifiers and personal information provided before or after the commencement of this Schedule.

(2) The amendment made by item 39 of this Schedule applies in relation to:

(a) documents presented or provided; or

(b) personal information provided;

before or after the commencement of this Schedule.

(3) The amendments made by items 57 to 60 apply in relation to personal identifiers and personal information provided before or after the commencement of this Schedule.

(4) If:

(a) an instrument was made for the purposes of a provision of the Migration Act 1958; and

(b) the instrument was in force immediately before the commencement of this Schedule; and

(c) the provision is amended by this Schedule;

then the instrument continues in force (and may be dealt with) as if it were made for the purposes of that provision as amended.

Schedule 6   Identifying persons entering or leaving Australia through advance passenger processing

Part 1   Amendment of the Migration Act 1958

Division 1 - Amendments

1   Paragraph 5A(3)(c)

Omit “, including passenger processing at Australia’s border”.

2   After paragraph 5A(3)(c)

Insert:

(ca) to improve passenger processing at Australia’s border; and

3   Paragraph 245I(2)(b)

After “voyage to”, insert “or from”.

4   Subsections 245J(3) and 245K(2)

After “information”, insert “(including personal identifiers)”.

5   Section 245L (heading)

Repeal the heading, substitute:

245L Obligation to report on persons arriving in Australia

6   Subsection 245L(1)

Omit “an airport or port”, substitute “a place”.

7   Paragraphs 245L(2)(a) and (b)

Omit “airport or port”, substitute “place in Australia”.

8   Subsection 245L(2) (note 1)

Omit “(and the obligation in subsection (6))”.

9   Paragraphs 245L(4)(a) and (b)

Omit “airport” (wherever occurring), substitute “place”.

10   Paragraphs 245L(5)(a) and (b)

After “arrival”, insert “at the place in Australia”.

11   Subsections 245L(6) and (7)

Repeal the subsections.

12   After section 245L

Insert:

245LA Obligation to report on persons departing from Australia

Aircraft and ships to which section applies

(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to depart from a place in Australia on a flight or voyage to a place outside Australia (whether or not after calling at other places in Australia).

Obligation to report on passengers and crew

(2) The operator of the aircraft or ship must, in accordance with this section:

(a) report to the Department, using the approved primary reporting system for passengers, on each passenger who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage); and

(b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage).

Note 1: This obligation must be complied with even if the information concerned is personal information.

Note 2: Section 245N contains an offence for failure to comply with this subsection.

(3) However, if:

(a) on the flight or voyage, the aircraft or ship calls at one or more places in Australia before departing to the place outside Australia; and

(b) the regulations prescribe that a report under subsection (2) must only relate to the part of the flight or voyage that is from the last place in Australia to the place outside Australia;

then the report must be on each passenger or crew member who is on, or is expected to be on, that part of the flight or voyage.

Information to be reported

(4) A report on a passenger or crew member under subsection (2) must include the information relating to the passenger or crew member that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.

Deadline for providing a report

(5) A report on a passenger or crew member under subsection (2) must be provided:

(a) if the regulations prescribe a period or periods before the aircraft’s or ship’s departure from a place for the giving of a report under subsection (2) in relation to the passenger or crew member - not later than the start of that period or each of those periods; and

(b) if the regulations prescribe an event or events for the giving of a report under subsection (2) in relation to the passenger or crew member - at the time of that event or each of those events; and

(c) if the regulations prescribe a time or times for the giving of a report under subsection (2) in relation to the passenger or crew member - at that time or each of those times.

(6) To avoid doubt, more than one report may be required to be provided under subsection (2) in relation to a passenger or crew member.

Note: For example, if regulations made for the purposes of subsection (5) prescribe a period of 48 hours before the aircraft’s or ship’s departure from a place on the flight or voyage and also prescribe an event of the passenger or crew member checking-in for the flight or voyage, then 2 reports would be required to be provided under this section in relation to the passenger or crew member.

13   Before section 245M

Insert:

245LB Dealing with information collected under this Division etc.

Collection of personal information

(1) The Department may collect information (including personal identifiers) in a report provided under this Division.

Access to, and disclosure of, personal information

(2) The following provisions:

(a) section 336D (which authorises access to identifying information);

(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);

(c) a provision of an instrument made under section 336D or 336F;

apply to personal information (other than personal identifiers) collected under this Division, or under subsection 64ACA(11) or 64ACB(8) of the Customs Act 1901, in the same way as they apply to identifying information.

(3) As soon as practicable after information is reported under section 245L or 245LA, the Department must disclose the information (including personal identifiers) to the Australian Customs and Border Protection Service.

Effect on interpretation

(4) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.

14   Subsection 245M(2)

Omit “Section 245L applies”, substitute “Sections 245L and 245LA apply”.

15   Paragraph 245M(2)(a)

Omit “paragraph 245L(2)(a) or (b)”, substitute “subsections 245L(2) and 245LA(2)”.

16   Paragraph 245M(2)(b)

Omit “subsection 245L(3)”, substitute “subsections 245L(3) and 245LA(4)”.

17   Subsections 245N(1), (2) and (4)

After “245L(2)”, insert “or 245LA(2)”.

Division 2 - Application of amendments made by Part 1

18   Application of amendments made by Part 1

Access and disclosure of identifying information etc.

(1) The amendments made by items 1 and 2 of this Schedule, as they affect section 336A, 336D or 336F of the Migration Act 1958, apply in relation to personal identifiers and personal information provided before, on or after the commencement of this Schedule.

Reports about arrivals including personal identifiers

(2) The amendments made by item 4 apply in relation to an aircraft or ship arriving at a place in Australia on or after that commencement.

(3) However, subitem (2) does not apply to the extent that it would require a report given before that commencement to include a personal identifier.

Reports about arrivals at a place in Australia

(4) The amendments made by items 6, 7, 9 and 10 apply in relation to an aircraft or ship arriving at a place in Australia (whether or not an airport or a port) on or after that commencement.

(5) However, if the aircraft or ship arrives at a place that is not an airport or port, then subitem (4) does not apply to the extent that it would require a report in relation to that arrival to be given before that commencement.

Reports about departures

(6) The amendments made by items 3, 4, 12, 14, 15, 16 and 17 apply in relation to an aircraft or ship departing from a place in Australia on or after that commencement.

(7) However, subitem (6) does not apply to the extent that it would require a report to be given before that commencement.

Dealing with information

(8) The amendment made by item 13 applies in relation to information in reports provided on or after that commencement.

Saving

(9) If:

(a) an instrument was made for the purposes of a provision of the Migration Act 1958; and

(b) the instrument was in force immediately before the commencement of this Schedule; and

(c) the provision is amended by this Schedule;

then the instrument continues in force (and may be dealt with) as if it were made for the purposes of that provision as amended.

Part 2   Amendment of the Customs Act 1901

19   Paragraphs 64ACA(12)(b) and 64ACB(9)(b)

Omit “subsection 245L(6)”, substitute “section 245LB”.

Schedule 7   Seizing bogus documents

Part 1   Amendment of the Migration Act 1958

Division 1 - Main amendments

1   Section 103

After “present”, insert “, produce”.

2   Section 103

After “presented”, insert “, produced”.

3   Before section 487

Insert:

Division 1 - Bogus documents

487ZI Prohibition on, and forfeiture of, bogus documents

(1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official ), or cause such a document to be so given, presented, produced or provided.

(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.

487ZJ Seizure of bogus documents

(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.

(2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).

(3) The notice must:

(a) identify the document; and

(b) state that the document has been seized; and

(c) specify the reason for the seizure; and

(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:

(i) to recover the document; or

(ii) for a declaration that the document is not forfeited.

(4) For the purposes of paragraph (3)(d), the period must:

(a) start on the date of the notice; and

(b) end 90 days after that date.

487ZK Document condemned as forfeited

(1) If a document is seized under subsection 487ZJ(1), then:

(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and

(b) if that person is not the owner of the document - the owner;

may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:

(c) to recover the document; or

(d) for a declaration that the document is not forfeited.

(2) The proceedings:

(a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and

(b) may only be instituted before the end of the period specified in the seizure notice.

(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.

(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:

(a) an order for the person or owner to recover the document; or

(b) a declaration that the document is not forfeited.

(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:

(a) if no appeal against the judgment is lodged within the period for lodging such an appeal - at the end of that period; or

(b) if an appeal against the judgment is lodged within that period - when the appeal lapses or is finally determined.

487ZL Dealing with a document after it is condemned as forfeited

(1) If, under section 487ZK, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister under section 499.

(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:

(a) must give a direction under section 499 for the safe keeping of the document; and

(b) must authorise access to the document for the purposes of those proceedings.

Division 2 - Other

Division 2 - Contingent amendments

4   Subsection 487ZI(1)

After “bogus document”, insert “(within the meaning of section 97)”.

5   Subsection 487ZI(1)

Omit “(within the meaning of section 97)”.

Division 3 - Application of amendments made by Part 1

6   Application of amendments

The amendments made by Part 1 of this Schedule apply to documents given, presented, produced or provided to the official on or after the commencement of item 1 of this Schedule.

Part 2   Amendment of the Australian Citizenship Act 2007

Division 1 - Main amendments

7   Section 3

Insert:

bogus document has the same meaning as in subsection 5(1) of the Migration Act 1958.

8   Before section 46

Insert:

Division 1 - Bogus documents

45A Prohibition on, and forfeiture of, bogus documents

(1) A person (whether a citizen or non-citizen) must not give a bogus document to the Minister, a person acting under a delegation or authorisation of the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official ), or cause such a document to be so given.

(2) A bogus document given in contravention of subsection (1) is forfeited to the Commonwealth.

45B Seizure of bogus documents

(1) If the Minister reasonably suspects that a document is forfeited under subsection 45A(2), then the Minister may seize the document.

(2) As soon as practicable after seizing the document, the Minister must give written notice of the seizure to the person who gave the document to the official under subsection 45A(1).

(3) The notice must:

(a) identify the document; and

(b) state that the document has been seized; and

(c) specify the reason for the seizure; and

(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:

(i) to recover the document; or

(ii) for a declaration that the document is not forfeited.

(4) For the purposes of paragraph (3)(d), the period must:

(a) start on the date of the notice; and

(b) end 90 days after that date.

45C Document condemned as forfeited

(1) If a document is seized under subsection 45B(1), then:

(a) the person who gave the document to the official under subsection 45A(1); and

(b) if that person is not the owner of the document - the owner;

may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:

(c) to recover the document; or

(d) for a declaration that the document is not forfeited.

(2) The proceedings:

(a) may be instituted even if the seizure notice required to be given under subsection 45B(2) in relation to the document has not yet been given; and

(b) may only be instituted before the end of the period specified in the seizure notice.

(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.

(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:

(a) an order for the person or owner to recover the document; or

(b) a declaration that the document is not forfeited.

(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:

(a) if no appeal against the judgment is lodged within the period for lodging such an appeal - at the end of that period; or

(b) if an appeal against the judgment is lodged within that period - when the appeal lapses or is finally determined.

45D Dealing with a document after it is condemned as forfeited

(1) If, under section 45C, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister.

(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:

(a) must give a direction for the safe keeping of the document; and

(b) must authorise access to the document for the purposes of those proceedings.

(3) A direction given under this section is not a legislative instrument.

Division 2 - Other

Division 2 - Contingent amendments

9   Section 3

Insert:

bogus document has the same meaning as in section 97 of the Migration Act 1958.

10   Section 3 (definition of bogus document )

Omit “section 97”, substitute “subsection 5(1)”.

Division 3 - Application of amendments made by Part 2

11   Application of amendments

The amendments made by Part 2 of this Schedule apply to documents given to the official on or after the commencement of item 1 of this Schedule.

[Minister’s second reading speech made in -

Senate on 24 September 2014

House of Representatives on 30 October 2014