House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 1

Items 1 to 5 - Parliamentary Joint Committee on Intelligence and Security review

78. Items 1 to 5 implements Recommendation 8 of the of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing authority for the Committee to review each instrument made under section 102.1AA of the Criminal Code listing an alias of a terrorist organisation or removing a former name of a terrorist organisation.

Item 1 - Subsection 102.1A(1)

79. This item repeals subsection 102.1A(1) of the Criminal Code and replaces it with a revised subsection and a new subsection 102.1A(2).

80. Revised subsection 102.1A(1) provides that section 102.1A applies in relation to two types of disallowable instruments:

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a regulation that specifies an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1 of the Criminal Code, and

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an instrument made under section 102.1AA of the Criminal Code.

81. Section 102.1AA provides that the Attorney-General may add an alias and/or remove a former name from a regulation prescribing a terrorist organisation by legislative instrument.

82. New subsection 102.1A(2) provides that the Parliamentary Joint Committee on Intelligence and Security may review the disallowable instrument as soon as possible after the making of the instrument and report the Committee's comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

Item 2 - Subsection 102.1A(3) (heading)

83. This item repeals the existing heading 'Review of listing regulation-extension of disallowance period' and replaces it with a new heading 'Review of disallowable instrument-extension of disallowance period'. This item is consequential to the amendments to subsection 102.1A(1).

Item 3 - Subsection 102.1A(3)

84. This item removes the first instance of the word 'regulation' in subsection 102.1A(3) of the Criminal Code and replaces it with the term 'disallowable instrument'. This item is consequential to the amendments to subsection 102.1A(1).

Item 4 - Subsection 102.1A(3)

85. This item amends subsection 102.1A(3) of the Criminal Code by omitting the following words:

then whichever of the following provisions is applicable:

(c)

subsections 48(4), (5) and (5A) and section 48B of the Acts Interpretation Act 1901;

(d)

Part 5 of the Legislative Instruments Act 2003;

have or has effect, in relation to that regulation and that House, as if each period of 15 sitting days referred to in those provisions were extended in accordance with the table:

86. These words are replaced by the following words:

then Part 5 of the Legislative Instruments Act 2003 has effect, in relation to that disallowable instrument and that House, as if each period of 15 sitting days referred to in that Part were extended in accordance with the table.

87. The amendments to this subsection removing reference to sections 48 and 48B of the Acts Interpretation Act 1901 have been made as these sections of that Act no longer exist.

Item 5 - Subsection 102.1A(4)

88. This item repeals subsection 102.1A(4) of the Criminal Code and replaces it with a revised subsection. The revised subsection removes reference to paragraph 48(1)(c) of the Acts Interpretation Act 1901 as section 48 of that Act no longer exists.

Items 6 to 30 - Enhancing the control order regime

Item 6 - Subdivision A of Division 104 of the Criminal Code

89. This item repeals existing Subdivision A of Division 104 of the Criminal Code and replaces it with a revised Subdivision. This amendment expands the objects of the Division by replacing the existing heading for Subdivision A and section 104.1.

90. The revised heading 'Subdivision A-Objects of this Division' acknowledges that Division 104 now has more than one object.

91. Revised section 104.1 sets out each of the objects of the Division. The objects still include protecting the public for a terrorist act. The new objects are preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

92. These amendments reflect the importance of being able to place appropriate controls on all individuals assessed as representing a threat to the security of Australia by not only engaging in terrorism themselves, but also engaging in facilitating or supporting conduct that could result in the commission a terrorist act.

93. The Criminal Code uses the terms 'support' and 'facilitation' but does not define them. This is exactly how the Bill uses these terms. That is, these terms have their ordinary meaning and are appropriately left for the courts to determine. The ordinary meaning of the word 'support' includes 'to aid the cause of interests of, to strengthen, or to give aid or strength to'. The ordinary meaning of the word 'facilitate' includes 'to make easier or less difficult, to help forward, or to assist the progress of'. In its report on the Bill, the Parliamentary Joint Committee on Intelligence and Security recommended that, to the extent possible, the terms 'supports' and 'facilitates' in the proposed amendments to the control order regime be based on language in the existing Criminal Code.

94. Defining these terms for the purposes of Division 104 could undermine the operation of the provisions by removing the flexibility to request a control order to prevent different types of conduct which may amount to support or facilitation. In addition, given those expressions are used elsewhere in the Criminal Code, defining them for the purposes of the control order regime could have unintended consequences for the interpretation of those terms in other Criminal Code offences. For example, these words are used in a number of terrorism offences, including: intentionally providing to an organisation support or resources that would help the organisation engage in a terrorist act or activities preparatory or ancillary to a terrorist act (section 102.7); providing or collecting funds, reckless as to whether the funds will be used to facilitate or engage in a terrorist act (section 103.1); or making funds available to another person reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act (section 103.2). It also includes offences for conduct unrelated to terrorism, including organising or facilitating the entry of another person into a foreign country (section 73.1) and making, providing or possessing a false travel or identity document with the intention that the document will be used to facilitate the entry of another person into a foreign country (section 73.8).

Item 7 - At the end of subsection 104.2(2) of the Criminal Code

95. This item inserts two new paragraphs 104.2(2)(c) and (d) into subsection 104.2(2). The new paragraphs provide two new grounds upon which a senior AFP member can seek the Attorney-General's consent to request an interim control order.

96. New paragraph 104.2(2)(c) authorises a senior AFP member to seek the Attorney-General's consent to request an interim control order where the member suspects on reasonable grounds that the order in the terms requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act. This amendment reflects the expansion of the objects of the Division in paragraph 104.1(b) and the fact that the provision of support and the facilitation of terrorist acts represent a real threat to the safety and security of Australians because without that support and facilitation, it may be impossible for the intended perpetrator to undertake the terrorist act.

97. New paragraph 104.2(2)(d) authorises a senior AFP member to seek the Attorney-General's consent to request an interim control order where the member suspects on reasonable grounds that the order in the terms requested would substantially assist in preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. This amendment reflects the expansion of the objects of the Division in paragraph 104.1(c) and supplements the existing ground for making an interim control order on the basis that the person has participated in training with a terrorist organisation and the new ground in subparagraph 104.4(1)(c)(v). It is appropriate to include this additional ground on the basis that a person who has actually provided support or facilitated a hostile activity in a foreign country has not only a demonstrated ability but also a demonstrated propensity to engage in conduct in support or facilitation of conduct akin to a terrorist act.

98. For the reasons noted in item 6, the terms 'support' and 'facilitation' in this item have their ordinary meaning and are appropriately left for the courts to determine.

Item 8 - Subsections 104.2(3) to (4) of the Criminal Code

99. This item repeals existing subsections 104.2(3), (3A) and (4) of the Criminal Code and replaces them with revised subsections.

100. Revised subsection 104.2(3) requires a senior AFP member to provide the following material when seeking the Attorney-General's consent to request an interim control order:

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a draft of the interim control order to be requested

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a statement of the facts relating to why the order should be made, and, if the member is aware of any facts relating to why the order should not be made-a statement of those facts

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information (if any) the member has about the person's age, and

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a summary of the grounds on which the order should be made.

101. This differs from existing subsection 104.2(3), which requires all material that will eventually be provided to an issuing court when requesting an interim control order to first be provided to the Attorney-General when seeking consent to make a request. It is not necessary for the Attorney-General to consider all material when determining whether to consent to such a request. The role of the Attorney-General is to be satisfied that it is appropriate for an application for an interim control to be made, rather than to exercise the same role as the issuing court in considering the application.

102. This amendment provides greater flexibility when seeking the Attorney-General's consent. In the event the information provided to the Attorney-General is not sufficient to satisfy the threshold for providing consent, it is open to the AFP member to provide additional information or documents to ensure the Attorney-General is satisfied that the threshold for giving consent has been met. The inclusion of the requirement to provide the Attorney-General with a statement of facts, including any known reason the interim control order should not be made, implements the Government's response to recommendation 3 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill.

103. The note to subsection 104.2(3) is a reminder that an interim control order cannot be requested in relation to a person under the age of 16 years (see section 104.28).

104. Revised subsection 104.2(3A) is consequential to the amendment to subsection 104.2(3). It replicates existing subsection 104.2(3A) but replaces the cross reference to paragraph 104.2(3)(f), which currently refers to the summary of grounds, with a cross reference to revised paragraph 104.2(3)(c), which now refers to the summary of grounds. This amendment continues the operation of the protection for information that is likely to prejudice national security within the meaning of the NSI Act by providing that the summary of grounds is not required to include such information.

105. Revised subsection 104.2(4) provides that, when giving consent, the Attorney-General may require the AFP member to make changes to the draft of the interim control order to be requested. This differs from existing subsection 104.2(4), which provides that the Attorney-General's consent may be subject to changes being made to the draft request. This revision clarifies that, in practice, the Attorney-General does not physically make those changes, but may require the AFP to make changes before making a request to an issuing court.

Item 8A - Subsection 104.2(6) of the Criminal Code

106. This item amends subsection 104.2(6) to correct a cross-referencing omission that occurred during drafting of the Foreign Fighters Act by removing the cross-reference to 'paragraphs (2)(a) and (b)' replacing it with a cross-reference to 'subsection (2)'.

107. The Foreign Fighters Act amended section 104.2 of the Criminal Code by adding new subsection 104.2(6). Subsection 104.2(6) provides that, for the purposes of seeking the Attorney-General's consent to request an interim control order under either paragraph 104.2(2)(a) or (b), a reference to a terrorist act includes a terrorist act that does not occur, a specific terrorist act, and more than one terrorist acts.

108. Item 7 of the Foreign Fighters Act added new paragraphs 104.2(2)(c) and (d) which provided for new grounds for seeking the Attorney-General's consent to request an interim control order. However, the Act inadvertently fails to include an amendment listing those additional paragraphs for the purposes of subsection 104.2(6). To address this omission and simplify the provision, the cross-reference to the specific paragraphs has been replaced with a cross-reference to subsection 104.2(2).

Item 9 - Section 104.3 of the Criminal Code

109. This item repeals existing section 104.3 of the Criminal Code and replaces it with a revised section. This amendment is consequential to the amendment to subsection 104.2(3) that reduces the amount of documentation that must be provided to the Attorney-General when seeking consent to request an interim control order.

110. Revised subsection 104.3(1) provides that, when requesting an interim consent order from an issuing court, a senior AFP member must provide:

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a request sworn or affirmed by the member

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the draft interim control and summary of grounds provided to the Attorney-General when seeking his or her consent to request an interim control order as amended to incorporate any changes to the order required by the Attorney-General

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an explanation as to why the each of the proposed obligations, prohibitions or restrictions should or should not be imposed on the person

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the outcomes and particulars of all previous requests for interim control orders and variations of control orders made in relation to the person

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the outcomes of all previous applications for revocations of control orders made in relation to the person

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the outcomes and particulars of all previous applications for preventative detention orders in relation to the person

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information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law, and

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a copy of the Attorney-General's consent.

111. This requirement reflects the information currently required to be provided to both the Attorney-General when seeking consent and an issuing court when requesting an interim control order. Maintaining the existing requirement under subparagraphs 104.2(d)(i) and (ii) and paragraph 104.3(a), that a senior AFP member is to provide the court with an explanation of 'each' obligation, prohibition and restriction as well as information regarding why 'any of those' obligations, prohibitions or restrictions should not be imposed, implements the Government's response to recommendation 6 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill.

112. The note to subsection 104.3(1) is a reminder that it is an offence if the draft request is false or misleading (see sections 137.1 and 137.2).

Item 10 - Subparagraph 104.4(1)(c)(v) of the Criminal Code

113. This item omits the word 'and' at the end of subparagraph 104.4(1)(c)(v) as amended by the Bill and replaces it with the word 'or'. This amendment is consequential to the insertion of two new subparagraphs after subparagraph 104.4(1)(c)(v).

Item 11 - At the end of paragraph 104.4(1)(c) of the Criminal Code

114. This item amends paragraph 104.4(1)(c) by adding two new subparagraphs after subparagraph 104.4(1)(c)(v). This amendment expands the grounds upon which an issuing court can make an interim control order consistent with the expanded grounds set out in revised section 104.1 of the Criminal Code and the additional grounds upon which a senior AFP member can request an interim control order in subsection 104.2(2).

115. New subparagraph 104.4(1)(c)(vi) authorises an issuing court to make an interim control order where the court is satisfied on the balance of probabilities that making the order would substantially assist in preventing the provision of support for of the facilitation of a terrorist act. This amendment reflects the fact that the provision of support and the facilitation of terrorist acts represent a real threat to the safety and security of Australians because without that support and facilitation, it may be impossible for the intended perpetrator to undertake the terrorist act.

116. New subparagraph 104.4(1)(c)(vii) authorises an issuing court to make an interim control order are where the court is satisfied on the balance of probabilities that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country. This amendment supplements the existing grounds for making an interim control order on the basis that the person has participated in training with a terrorist organisation, been convicted in Australia of an offence relating to terrorism, a terrorist organisation or been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism. It is appropriate to include this additional ground on the basis that a person who has actually provided support or facilitated a hostile activity in a foreign country has not only a demonstrated ability but also a demonstrated propensity to engage in conduct in support or facilitation of conduct akin to a terrorist act.

117. For the reasons noted in item 6, the terms 'support' and 'facilitation' in this item have their ordinary meaning and are appropriately left for the courts to determine.

Item 12 - Paragraph 104.4(1)(d) of the Criminal Code

118. This item repeals and replaces existing paragraph 104.4(1)(d) of the Criminal Code.

119. The revision to paragraph 104.4(1)(d) is consequential to the expansion of the objects of Division 104.

120. For the reasons noted in item 6, the terms 'support' and 'facilitation' in this item have their ordinary meaning and are appropriately left for the courts to determine.

Item 14 - After subsection 104.5(1A) of the Criminal Code

121. This item inserts new subsection 104.5(1B) into the Criminal. New subsection 104.5(1B) provides that, when specifying a day for the purposes of a confirmation hearing, the issuing court must take into consideration the fact that the person the subject of the interim control order, the AFP, or another party, may need time to prepare in order to adduce evidence or make submissions, as well as any other matter the court considers relevant.

122. This amendment affords an additional protection to a person the subject of an interim control order who may need to obtain the assistance, for example, of an interpreter to fully understand the terms of the order or a legal representative to fully understand the implications of the order. It would also allow sufficient time for the person to contact other individuals to adduce evidence or make submissions, including where those persons might be located overseas.

Item 15 - Subsection 104.6(2) of the Criminal Code (note)

123. This item removes the words '4 hours' and replaces them with '8 hours' in the note to existing paragraph 104.6(1)(b) of the Criminal Code. This amendment is consequential to the amendment to section 104.10, which extends the time for seeking the Attorney-General's consent after obtaining an urgent interim control order from an issuing court by telephone, fax, email or other electronic means from four hours to eight hours. Extending period of time for seeking the Attorney-General's consent after obtaining an urgent interim control order to eight hours, rather than 12 hours, implements the Government's response to recommendation 4 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill.

Item 16 - Paragraph 104.6(4)(a) of the Criminal Code

124. This item repeals existing paragraph 104.6(4)(a) and replaces it with a revised paragraph. This amendment is consequential to the amendment to subsection 104.2(3), which reduces the amount of documentation that must be provided to the Attorney-General when seeking consent to request an interim control order. This amendment provides that the same documents that would be provided to the Attorney-General when requesting an interim control order in ordinary circumstances must be provided to the issuing court when making a request for an interim control order in urgent circumstances by telephone, fax, email or other electronic means (without the Attorney-General's prior consent).

Item 17 - Subsection 104.8(1) of the Criminal Code (note)

125. This item removes the words '4 hours' and replaces them with '8 hours' in the note to existing subsection 104.8(1) of the Criminal Code. This amendment is consequential to the amendment to section 104.10, which extends the time for seeking the Attorney-General's consent after obtaining an urgent interim control order from an issuing court in person from four hours to eight hours. Extending period of time for seeking the Attorney-General's consent after obtaining an urgent interim control order to eight hours, rather than 12 hours, implements the Government's response to recommendation 4 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill.

Item 18 - Paragraph 104.8(2)(a) of the Criminal Code

126. This item repeals existing paragraph 104.8(2)(a) and replaces it with a new paragraph. This amendment is consequential to the amendment to subsection 104.2(3), which reduces the amount of documentation that must be provided to the Attorney-General when seeking consent to request an interim control order. This amendment provides that the same documents that would be provided to the Attorney-General when requesting an interim control order in ordinary circumstances must be provided to the issuing court when making a request for an interim control order in urgent circumstances in person (without the Attorney-General's prior consent).

Item 19 - Section 104.10 of the Criminal Code (heading)

127. This item repeals the heading to existing section 104.10 and replaces it with a new heading '104.10 Obtaining the Attorney-General's consent within 8 hours'. This amendment is consequential to the amendment to section 104.10, which extends the time for seeking the Attorney-General's consent after obtaining an urgent interim control order from an issuing court from four hours to eight hours. Extending period of time for seeking the Attorney-General's consent after obtaining an urgent interim control order to eight hours, rather than 12 hours, implements the Government's response to recommendation 4 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill.

Item 20 - Subsections 104.10(1) and (2) of the Criminal Code

128. This item removes the words '4 hours' and replaces them with '8 hours' in existing subsections 104.10(1) and (2) of the Criminal Code.

129. The amendment to subsection 104.10(1) provides that, where an urgent interim control order has been requested without the Attorney-General's consent, the senior AFP member who made the request must seek the Attorney-General's consent within 12 hours of making the request. The amendment extends the existing timeframe of four hours, and reflects the fact that it may not always be practical or even possible to seek the Attorney-General's consent within four hours of making a request for an urgent interim control order. For example, the Attorney-General may be in transit between the east and west coasts of Australia and unable to be contacted for a period of more than four hours.

130. The amendment to subsection 104.10(2) provides that, where an urgent interim control order has been requested without the Attorney-General's consent, if the Attorney-General refuses to consent or has not given consent within eight hours of making the request, any urgent interim control that was made by the issuing court immediately ceases to be in force. The amendment extends the existing timeframe of four hours, and reflects the fact that it may not always be practical or even possible for the Attorney-General to consider a request and give consent within four hours of making a request for an urgent interim control order.

Item 21 - Subsection 104.10(2) of the Criminal Code (note)

131. This item removes the words 'vary the request and' from the note to subsection 104.10(2). The note advises that, where the Attorney-General has not consented within 12 hours of making the request to the issuing court, the senior AFP member may seek the Attorney-General's consent to request a new interim control order. This amendment is consequential to the amendments to subsections 104.10(1) and (2), and reflects the fact that subsection 104.2(5) authorises the making of a new request in relation to a person where a previous request has been made. Accordingly, it would not be necessary to vary the request.

Item 22 - Subparagraph 104.12A(2)(a)(ii) of the Criminal Code

132. This item amends subparagraph 104.12A(2)(a)(ii) of the Criminal Code, which provides for the confirmation of an interim control order.

133. This item omits the reference to paragraphs '104.2(3)(b) and (c)' from subparagraph 104.12A(2)(a)(ii) and replaces them with a reference to paragraphs '104.2(3)(aa) and 104.3(d)'. This amendment is consequential to the amendment to subsection 104.2(3), which reduces the amount of documentation that must be provided to the Attorney-General when seeking consent to request an interim control order.

Item 25 - At the end of subsection 104.23(1) of the Criminal Code

134. This item repeals subsection 104.23(1) which relates to varying a control order and replaces it with a revised subsection. Revised subsection 104.23(1) provides that the Commissioner of the AFP may apply to an issuing court to add one or more obligations, prohibitions or restrictions to a confirmed control order where the Commissioner suspects on reasonable grounds that either:

•

the varied order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act, or

•

the person the subject of the order has either:

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participated in training with a terrorist organisation

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engaged in or support for or otherwise facilitated engagement in a hostile activity in a foreign country

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been convicted of a terrorism related offence in Australia, or

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been convicted of a terrorism related offence overseas.

135. This amendment reflects the amendments expanding the objects and grounds on which an interim control order can be requested and made.

136. For the reasons noted in item 6, the terms 'support' and 'facilitation' in this item have their ordinary meaning and are appropriately left for the courts to determine.

Item 28 - Paragraph 104.24(1)(b) of the Criminal Code

137. This item repeals existing paragraph 104.24(1)(b) of the Criminal Code and replaces it with a revised paragraph. Revised paragraph 104.24(1)(b) authorises an issuing court to vary a confirmed control order on application by the Commissioner provided the court is satisfied on the balance of probabilities that each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the one of the purposes set out in new section 104.1, specifically:

•

protecting the public from a terrorist act

•

preventing the provision of support for or the facilitation of a terrorist act, or

•

preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

138. This amendment reflects the amendments expanding the objects and grounds on which an interim control order can be requested.

139. For the reasons noted in item 6, the terms 'support' and 'facilitation' in this item have their ordinary meaning and are appropriately left for the courts to determine.

Item 30 - At the end of Division 106 of the Criminal Code

140. This item adds new section 106.6 at the end of Division 106 of the Criminal Code. New section 106.6 sets out the application provisions for certain amendments to Divisions 104 made by the Counter-Terrorism Legislation Amendment Act (No. 1) 2014.

141. New subsection 106.6(1) provides that the amendment to section 104.1 made by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 2014 only applies in relation to control orders where the relevant interim control order is requested after that commencement.

142. New subsection 106.6(2) provides that the amendments to sections 104.2, 104.3, 104.10 and 104.12A made by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 2014 apply to requests for interim control orders made after the commencement of section 106.6 where the conduct in relation to which the request is made occurs before or after that commencement.

143. New subsection 106.6(3) provides that amendments made to section 104.4 and subsection 104.5(1B) made by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 2014 apply to the making of interim control orders requested after the commencement of section 106.6 where the conduct in relation to which the request is made occurs before or after that commencement.

144. New subsection 106.6(4) provides that the amendments to sections 104.6 and 104.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 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.

145. New subsection 106.6(5) provides that the amendment to section 104.14 made by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 2014 applies to confirmations of control orders where the relevant interim control order is requested after that commencement.

146. New subsection 106.6(6) provides that the amendments to sections 104.20, 104.23 and 104.24 made by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No. 1) 2014 apply to variations of control orders where the relevant interim control order is requested after that commencement.