Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 3 - Associating with a Terrorist Organisation

Item 1

This item defines 'associate'. It provides that a person associates with another person if the person meets or communicates with the other person. This definition is intended to include all modern forms of communication.

Item 2

This item defines 'close family member' as the person's spouse, de facto spouse or same-sex partner; parent, step-parent or grandparent; child, step-child or grandchild; brother, sister, step-brother or step-sister; guardian or carer. This definition is provided for the purpose of an exception to the application of the offence in the case of a person's association with close family members who may be members or who may promote or direct the activities of organisations specified in regulations as terrorist organisations.

Item 3 - New Section 102.8 of the Criminal Code

This item inserts a new section 102.8 "Association with a Terrorist Organisation" into Division 102 of the Criminal Code.

The new section 102.8 makes it an offence for a person to intentionally associate on two or more occasions, or on any occasion subsequent to a conviction for the same offence, with a person who is a member or who promotes or directs the activities of an organisation which is listed as a terrorist organisation under the Criminal Code Regulations 2002. Two or more occasions is a limitation found in the approach of courts and legislatures to the offence of consorting and related provisions (see section 100.A of the Crimes Act 1900 (NSW) No. 40.) and is a safeguard that only has relevance to the first offence.

A person who is convicted of an offence under the new subsection 102.8 (1) in relation to the person's conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place at the same time as that conduct or within 7 days before or after any of those occasions. This will avoid raising the prospect of a multiplicity of charges concerning the same course of conduct.

The amendment extends the application of Division 102 to persons who have links with a listed terrorist organisation or a person who is a member or who promotes or directs the activities of a listed terrorist organisation, but who themselves are not members of the organisation but through the association provide support to the organisation.

Strict liability applies to the element in paragraphs (1)(b) and (2)(g) (that the organisation is a terrorist organisation specified in regulations). Consequently, the prosecution would not have to prove that the person was aware that the organisation is a terrorist organisation specified in regulations. However, the prosecution must still prove that the person intentionally associated with a person who is a member or who promotes or directs the activities of the organisation, and that the person knew that the organisation was a terrorist organisation.

Application of paragraph 6.1(2)(b) of the Criminal Code (which concerns the rules that govern strict liability) means that the person would have a mistake of fact defence available under section 9.2 of the Criminal Code. In the case of the new subsections 102.8(1) and (2), this would mean that a person is not criminally responsible if before the time of the offending conduct the person considered whether or not the organisation was an organisation specified in regulations and the person was under a mistaken but reasonable belief that it was not such an organisation. The defendant bears the evidential burden in this case. If the person can point to evidence that they had such a mistaken belief then it is for the prosecution to prove beyond reasonable doubt that there was no mistaken belief.

In addition to the normal mistake of fact defence attaching to strict liability, subsection (5) also includes a recklessness exception. The offences in the new subsections 102.8(1) and (2) will not apply if the person is not reckless as to whether the organisation is a terrorist organisation specified in regulations. Application of subsection 13.3(3) of the Criminal Code means that the person bears an evidential burden in relation to this matter. If the person can point to evidence suggesting a reasonable possibility that the exception applies, then it is for the prosecution to prove beyond reasonable doubt that the exception has no application. This is consistent with proposed amendments to section 102.5 in the Anti-Terrorism Bill (terrorism training offence) which were acceptable to the Senate Legal and Constitutional Legislation Committee in its report on that Bill.

It is intended that the offence will apply in relation to the provision of support to the terrorist organisation as an entity, rather than with respect to the activities of the organisation. The offence is therefore designed to address the fundamental unacceptability of the organisation itself by making meeting or communicating ("associating") with the organisation in a manner which assists the continued existence or the expansion of the organisation illegal. This is an acknowledgement that because membership of such organisations is illegal, playing a role in supporting the existence or expansion of an illegal organisation should also be a crime.

The person must intend to help the organisation continue to exist or to expand on each occasion of associating with a person who is a member of the organisation. The person must know that the associate is a member of an organisation and that the organisation is a terrorist organisation.

Exceptions are provided for in the case of associations with 'close family members' relating to matters that could be regarded (taking into account the person's cultural background) as matters of family or domestic concern, and associations at a place being used for public religious worship which take place in the course of practicing a religion. These exceptions are based upon similar exceptions provided for in section 100A of the Crimes (Sentencing Procedure) Act 1999 No. 92 (NSW). Exceptions under the NSW law relating to education, employment and residence are not included because of the potential for misuse of these kinds of exception by those with links to a terrorist organisation.

Exceptions are also provided for in relation to associations only for the purpose of providing aid of a humanitarian nature and associations only for the purpose of providing legal advice or legal representation in connection with criminal proceedings or proceedings connected with criminal proceedings or proceedings relating to whether the organisation in question is a terrorist organisation. The exception in relation to humanitarian aid is intended to apply to persons undertaking humanitarian aid who, through the course of providing such humanitarian aid, associate with a person who is a member of a terrorist organisation or who promotes or directs the activities of a terrorist organisation. The exception in relation to legal advice and representation is designed to ensure that lawyers who provide advice to, or act on behalf of, a person who is a member of a terrorist organisation or who promotes or directs the activities of a terrorist organisation are not liable under the provision. It is important that even those suspected of associating with terrorists have adequate legal advice so that the courts can be sure there is an adequate array of evidence and argument in specific cases. The Government is committed to a trial process that identifies genuine cases of terrorist-related wrongdoing.

The amendment is by necessity wide-ranging in terms of the types of activities or persons who might be subject to it. For this reason, the new section 102.8 has been designed to avoid impugning the implied constitutional freedom of political communication. This exception can be established by the defendant if he or she establishes the evidential burden. If the person can point to evidence suggesting a reasonable possibility that the association was a purely political communication for the purposes of the Constitution, then it is for the prosecution to prove beyond reasonable doubt that the exception would have no application. For example, a journalist interviewing a terrorist for a documentary could make use of the exception.

The new section 102.8 will also provide an alternative charge with lower penalties than section 102.7 "Providing Support to a Terrorist Organisation" in the Criminal Code. Section 102.7 is concerned with more serious activities. Under section 102.7, it is an offence to provide support or resources to a terrorist organisation that would assist the organisation to engage in, prepare, plan, assist in or foster the doing of a terrorist act.

The existing ancillary offences dealing with the aiding and abetting, counselling or procuring the commission of an offence under section 11.2(1) of the Criminal Code, and the offence provisions designed to capture the facilitation of terrorist acts such as those in Division 101 of the Criminal Code, are more difficult to prove than the proposed offence because they contain a causal element that is linked to the commission of a terrorist act.