House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 2 - Terrorism

Overview

Schedule 2 includes amendments to Division 102 of the Criminal Code Act 1995 (Criminal Code). Division 102 of the Criminal Code contains the definition of a 'terrorist organisation', the process for proscribing terrorist organisations and the terrorist organisation offences.

Part 1 of Schedule 2 will:

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amend the definition of 'advocates' in paragraph 102.1(1A)(c) to clarify that an organisation advocates the doing of a terrorist act if the organisation directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person to engage in a terrorist act

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amend subsection 102.1(3) to extend the period of a regulation that lists a terrorist organisation from 2 to 3 years

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amend the terrorist organisation listing review provision in section 102.1A to reflect the current name of the Parliamentary Joint Committee on Intelligence and Security, and

Part 2 of Schedule 2 contains amendments to definitional provisions within Part 5.3 of the Criminal Code to implement the Government's policy of ensuring equality of same sex partnerships in Commonwealth legislation. The majority of this policy was implemented through the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 . The proposed amendments ensure that the definitions in the Acts Interpretation Act 1901 of de facto partner, child, step-parent and step-child apply or are replicated in the Criminal Code. These definitions are important in the Criminal Code as they apply to the terrorist organisation association offence in section 102.8 and to the preventative detention regime in Division 105 of Part 5.3 of the Criminal Code. These definitions form part of important safeguards within the terrorist organisation association offence and preventative detention regime. Part 3 of Schedule 2 contains a related amendment that is contingent upon another Bill that is before the Parliament.

Part 1 - Terrorism

Classification (Publications, Films and Computer Games) Act 1995

Item 1: paragraph 9A(2)(c)

This is a consequential amendment to mirror the change to the definition of 'advocates' in Division 102 of the Criminal Code in item 2.

Section 9A of the Classification (Publications, Films and Computer Games) Act provides that publications, films or computer games that advocate the doing of a terrorist act must be classified 'Refused Classification'. For the purpose of 'advocating the doing of a terrorist act', it uses the same terminology as in subsection 102.1(1A) of the Criminal Code.

Criminal Code Act 1995

Item 2: paragraph 102.1(1A)(c)

This item inserts the word 'substantial' before 'risk' in paragraph 102.1(1A)(c).

Paragraph 102.1(2)(b) of the Criminal Code provides that the Governor-General may make a regulation proscribing an organisation as a terrorist organisation if the Attorney-General is satisfied that the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

Currently, paragraph 102.1(1A)(c) of the Criminal Code provides that an organisation advocates the doing of a terrorist act if the organisation directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3) that the person might suffer) to engage in a terrorist act.

It has always been intended that the risk threshold within the definition of 'advocates' must be substantial. Accordingly, the inclusion of the word 'substantial' clarifies that the risk must be real and apparent on the evidence presented. This amendment is consistent with the language of the Criminal Code in relation to the concept of risk; for example, 'substantial risk' is used in the definition of 'recklessness' in section 5.4 of the Criminal Code.

Item 3: Subsection 102.1(3)

This item will replace the phrase 'second anniversary' with 'third anniversary' in subsection 102.1(3).

Currently under subsection 102.1(3) of the Criminal Code, the listing of an organisation ceases to have effect two years after its commencement, or if the Attorney-General ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, whichever occurs first.

The purpose of the automatic expiration is to ensure that if the Government wishes to continue the proscription, the Attorney-General has considered afresh all the relevant information and is satisfied that there is a sufficient factual basis to justify the proscription for a further period.

The proposed amendments to subsection 102.1(3) will provide that a regulation proscribing an entity as a terrorist organisation under the Criminal Code will automatically expire on the third anniversary of the day on which it took effect. This is consistent with a recommendation of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in its Inquiry into the Proscription of ' terrorist organisations' under the Australian Criminal Code (September 2007). The Committee, which is responsible for reviewing all listings of terrorist organisations (pursuant to section 102.1A of the Criminal Code), concluded that extending the period of a listing regulation from two to three years would offer an adequate level of oversight.

Item 4: Transitional - existing regulations specifying organisations

Item 3 will amend subsection 102.1(3) to extend the period of a regulation that lists a terrorist organisation from 2 to 3 years.

Item 4 will insert transitional provisions so that the proposed amendments to subsection 102.1(3) will apply to listing regulations which are in force at the time the amendment commences. However, the amendment will not apply to such a regulation that has ceased to have effect before the commencement of the section.

Item 5: Subsection 102.1A(1)

This item will update the name of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in subsection 102.1A(1).

In accordance with section 102.1A of the Criminal Code, when the Government decides to list an organisation as a terrorist organisation, that decision may be publicly reviewed by the PJCIS. Any person who wishes to raise any issues with the decision to list an organisation may submit their objections or concerns to the PJCIS.

At the time of enacting section 102.1A of the Criminal Code, the PJCIS was referred to as the Parliamentary Joint Committee on ASIO, ASIS and DSD.

The proposed amendment will update subsection 102.1A(1) to reflect the current name of the PJCIS.

Item 6: Subsection 102.1A(2)

This item will repeal subsection 102.1A(2).

Subsection 102.1A(2) of the Criminal Code required the PJCIS to conduct a review into the operation, effectiveness and implications of the terrorist organisation proscription provisions in Division 102 of the Criminal Code as soon as possible after the third anniversary of the commencement of the section. The PJCIS conducted this review in 2007 and tabled its report in September 2007. As the statutory review process provided for in subsection 102.1A(2) of the Criminal Code is now complete, the proposed amendment will repeal this provision.

Part 2 - Miscellaneous

Criminal Code Act 1995

Item 7: At the end of section 100.5

Currently, section 100.5 of the Criminal Code provides that the Acts Interpretation Act, as it was in force on the day Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003 commenced, applies to this part. As a result, no amendments to the Acts Interpretation Act made after that day apply to this Part.

Item 7 will add subsection 100.5(3) to recognise the new definition of 'de facto partner' which was inserted into the Acts Interpretation Act by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 . The new definition of 'de facto partner' encompasses members of both same-sex and opposite-sex de facto relationships. This amendment will implement the Commonwealth Government's policy to remove all discrimination against same-sex couples while the remainder of the Acts Interpretation Act as it was in force at that time will continue to apply.

Items 8 to 10: Definition of 'close family member'

Item 8: Subsection 102.1(1) (paragraph (a) of the definition of 'close family member')

Subsection 102.1(1) of the Criminal Code currently contains the definition of 'close family member'. This definition is important in the context of the terrorist organisation association offence in section 102.8 of the Criminal Code. Subsection 102.8(4) of the Criminal Code provides that the terrorist organisation association offence does not apply if the association is with a 'close family member' and relates only to a matter that could reasonably be regarded (taking into account the person's cultural background) as a matter of family or domestic concern (section 102.8).

Currently paragraph 102.1(1)(a) provides that a close family member consists of the 'person's spouse, de facto spouse or same-sex partner'.

Item 8 will remove the words 'de facto spouse or same sex partner' and replace them with an updated definition of 'de facto partner'. This amendment will align the Criminal Code with the Acts Interpretation Act. The definition of 'de facto partner' in the Acts Interpretation Act applies to de facto relationships whether the parties to the relationship are of the same-sex or opposite-sex.

Items 9 and 10: Subsection 102.1(1)

To avoid doubt, item 10 will insert subsection 102.1(19) to emphasise the definition of 'close family member' located in subsection 102.1(1).

The current definition of 'close family member' could be discriminatory as it may not extend to relationships between a child and their co-mother or co-father's relatives. The policy intention is to ensure same-sex parents and their families are recognised as part of the child's family consistently across Commonwealth legislation. This provision will ensure that the definition of 'close family member' includes relationships traced through the child-parent relationship and will thus ensure that same-sex parents and their families are recognised as 'relatives' of the child.

Item 9 will insert a note at the end of the definition of 'close family member' in subsection 102.1(1) to refer to proposed subsection 102.1(19).

Items 11 and 12: Definition of 'family member'

Item 11: Subsection 105.35(3) (paragraph (a) of the definition of 'family member')

Currently, subsection 105.35(3) of the Criminal Code contains the definition of 'family member'. This definition is important in the context of the preventative detention regime as section 105.35 contains an essential safeguard by ensuring that a person being preventatively detained has the right to contact family members.

Currently, paragraph 105.35(3)(a) provides that a family member consists of the 'person's spouse, de facto spouse or same-sex partner'.

This item will remove the words 'de facto spouse or same-sex partner' and replace them with an updated definition of 'de facto partner'. This amendment will align the Criminal Code with the Acts Interpretation Act. The definition of 'de facto partner' in the Acts Interpretation Act applies to de facto relationships whether the parties to the relationship are of the same sex or opposite sexes. This amendment will ensure that the Commonwealth Government's policy of ensuring equality of same-sex partnerships is replicated in the Criminal Code.

Item 12: At the end of section 105.35

This item will insert subsection 105.35(4) to ensure that the definition of 'family member' in subsection 105.35(3) includes relationships that are traced through the child-parent relationship.

The current definition of 'family member' could be discriminatory as it may not extend to relationships between a child and the child's co-mother or co-father's relatives. The policy intention is to ensure same-sex parents and their families are recognised as part of the child's family consistently across Commonwealth legislation.

Item 13: Subsections 272.3(2) and (3)

Items 21, 22 and 24 in Part 2 of Schedule 2 will insert the definitions of 'de facto partner', 'parent' and 'step-parent' into the Dictionary in the Criminal Code. Given the definition of 'de facto partner', 'parent' and 'step-parent' in this Bill will apply more generally to the Criminal Code, the definition of 'de facto partner,' 'parent' and 'step-parent' currently in section 272.3 will no longer be necessary. Accordingly, item 13 will delete the definitions of 'de facto partner', 'parent' and 'step-parent' in section 272.3.

Items 14 to 19: Subsection 390.1(1) (definitions of 'child', 'close family member', 'de facto partner', 'parent', 'stepchild' and 'step-parent')

Subsection 390.1(1) currently contains the definitions of 'child', 'de facto partner', 'parent,' 'stepchild' and 'step-parent'.

Items 20 to 24 will insert the definitions of 'child', 'de facto partner', 'parent', 'step-child' and 'step-parent' into the Dictionary of the Criminal Code. Given these definitions will apply more generally to the Criminal Code, items 14 and 16 to 19 will repeal these definitions in subsection 390.1(1) as they will no longer be necessary.

Subsection 390.1(1) also currently has a definition of 'close family member.' Item 15 will amend paragraph (c) of this definition to substitute the word 'stepchild' for 'step-child.' This is consequential to item 2 which will insert the definition of 'step-child' into the Dictionary of the Criminal Code.

Items 20 to 24: Dictionary in the Criminal Code

Item 20: New definition of 'child'

This item will insert the definition of 'child' in the Criminal Code dictionary. The effect of this definition will be that in addition to children within the ordinary meaning of the term, the provision will include a new class of children within the meaning of the Family Law Act 1975 as amended by the Family Law Act Amendment (De Facto Financial Matters and Other Measures) Act 2008 . The Family Law Act 1975 has rules about the parentage of children, including those born following artificial conception procedures. The meaning of 'child' in the Family Law Act 1975 includes children:

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born to a woman as the result of an artificial conception procedure while that woman was married to, or was a de facto partner of another person (whether of the same or opposite sex), and

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who are children of a person because of an order of a State or Territory court made under a State or Territory law prescribed for the purposes of section 60HB of the Family Law Act 1975, giving effect to a surrogacy agreement.

This will ensure that the children of same-sex couples are recognised consistently across Commonwealth laws.

Item 21: New definition of 'de facto partner'

This item will insert the definition of 'de facto partner' in the Criminal Code. The definition will have the meaning given by the Acts Interpretation Act.

Item 22: New definition of 'parent'

This item will insert a definition of 'parent' into the Criminal Code Dictionary.

Item 23: New definition of 'step-child'

This item will insert a definition of 'step-child' into the Criminal Code Dictionary. The ordinary meaning of 'step-child' is a 'child of a husband or wife by a former union'. As same-sex couples cannot marry, the child of one member of the couple by a former relationship cannot be considered to be the other member of the couple's step-child. This is also the case for children of opposite-sex de facto partners by a former relationship.

The proposed amendment will expand the definition of 'step-child' to include a child of an opposite-sex or same-sex de facto partner by a former relationship. This is achieved by providing that a 'step-child' includes a child who would be the step-child of a person who is the de facto partner of a parent of the child, except that the person and the parent are not legally married. It is not necessary to establish that the person and the parent are capable of being legally married. The definition is inclusive and does not limit who is a step-child for the purposes of the Criminal Code. The insertion of this definition ensures that step-children of both opposite-sex and same-sex de facto relationships are recognised for the purposes of the Criminal Code.

Item 24: New definition of 'step-parent'

This item will insert the definition of 'step-parent' into the Criminal Code dictionary. The ordinary meaning of 'step-parent' is a 'spouse of a parent of a child by a former union'. As same-sex couples cannot marry, a same-sex de facto partner of a parent cannot be considered to be a step-parent of a child born into a former relationship of the parent, de facto or otherwise. This also applies to opposite-sex de facto partners of parents of children who are born into a former relationship of the birth parent, de facto or otherwise.

The proposed amendment will expand the definition of 'step-parent' (where relevant) to include a same-sex or opposite-sex de facto partner of a parent of a child by a former relationship. This is achieved by providing that the partner is a 'step-parent' where that partner would be the child's step-parent, except that the partner and the parent are not legally married. It is not necessary to establish that the partner and the parent are capable of being legally married.

The definition is inclusive and does not limit who is a step-parent for the purposes of the Criminal Code. The insertion of this definition ensures that step-parents of children of both opposite-sex and same-sex de facto relationships are recognised for the purposes of the Criminal Code.