Supplementary Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Notes on amendments
Amendment 1 - Application provisions
Clause 2 of the Bill stipulates that the Act would commence on the day after the Act receives Royal Assent. Proposed amendment 1 would insert into clause 4 of the Bill new application provisions clarifying the operation of the proposed presumption against bail and proposed minimum non-parole periods for sentences for terrorism offences.
Proposed subclause 4(1A) would make clear that the proposed presumption against bail for certain federal offences would not apply retrospectively. It would only have application to bail matters, whether in relation to a person charged with, or convicted of, a relevant offence, that arise for determination after the commencement of the Act.
Proposed subclause 4(1B) would make clear that the proposed minimum non-parole periods would only apply to persons who are convicted of certain federal offences on or after the commencement of the Act, whether the offences were or are committed before, on or after that commencement.
Amendment 2
This proposed amendment would insert new items 1A, 1B, 1C, 1D and 1E into the Bill.
Item 1A - definition of 'terrorism offence'
Proposed new item 1A is a definition of 'terrorism offence' in section 3(1) of the Crimes Act 1914. The definition will then apply throughout the Crimes Act 1914. The definition is relevant to the proposed new investigatory framework for terrorism offences to be inserted in Part 1C, the proposed presumption against bail and the proposed minimum non-parole periods for sentences for certain federal offences, which includes terrorism offences.
'Terrorism offence' is defined to mean any offence against Division 72 or Part 5.3 of the Criminal Code. Division 72 of the Criminal Code contains offences targeting international terrorist activities using explosive or lethal devices, giving effect to Australia's international obligations under the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997. Part 5.3 of the Criminal Code contains a suite of federal terrorism offences, including offences targeting persons engaging in terrorist acts, providing or receiving training connected with terrorist acts, and directing the activities of a terrorist organisation. This is the same definition that applies to the new investigatory framework for terrorism offences to be inserted into Part 1C of the Crimes Act by this Bill.
Item 1B - Presumption Against Bail in Certain Cases
Proposed section 15AA would provide a nationally consistent approach to bail for persons charged with certain federal offences, including terrorism offences.
At present, bail for persons charged with federal offences is dealt with under State and Territory bail laws, which are applied by subsection 68(1) of the Judiciary Act 1903 (Cth). Proposed section 15AA would affect the way in which subsection 68(1) of the Judiciary Act applies the State and Territory bail laws to certain federal offenders.
Proposed subsection 15AA(1) stipulates that bail should not be granted to persons charged with, or convicted of, offences covered by subsection 15AA(2) unless the court is satisfied that exceptional circumstances exist to justify bail.
The effect of this 'exceptional circumstances' bail provision is to reverse the presumption in favour of bail that is typical under State and Territory bail laws that apply to federal offenders via subsection 68(1) of the Judiciary Act. Therefore, persons charged with, or convicted of, a relevant offence would be required to demonstrate to a bail authority that 'exceptional circumstances' exist justifying their release on bail pending trial, the hearing of an appeal, or the handing down of a sentence. Failure to persuade the court that 'exceptional circumstances' exist would lead to a refusal to grant bail.
The formula 'charged with, or convicted of,' is important. The typical bail situation that would be covered by the 'exceptional circumstances' presumption against bail is where a person is charged with a relevant offence and is then subject to a bail hearing to determine whether they should be released on bail or placed on remand pending trial. The 'charged with' limb of the formula addresses these situations. However, bail is sometimes given to persons after conviction pending, for example, the outcome of an appeal against that conviction or a sentencing hearing. The 'or convicted of' limb of the formula addresses these situations so that the presumption against bail would continue to apply.
The phrase 'exceptional circumstances' is not defined. This approach is consistent with similar provisions under State and Territory bail laws. The courts of bail authorities can exercise judicial discretion in determining whether 'exceptional circumstances' exist.
Proposed subsection 15AA(2) sets the parameters for the operation of the proposed presumption against bail by identifying the list of offences that 'trigger' the presumption.
The most important category of offences is outlined in proposed paragraph 15AA(2)(a) - terrorism offences. As proposed in item 1A of proposed amendment 2, the definition of 'terrorism offence' is to be inserted into section 3(1) of the Crimes Act 1914. It will pick up all the terrorism offences in Part 5.3 and Division 72 of the Criminal Code.
Proposed paragraph 15AA(2)(b) picks up another category of very serious federal offences that would be subject to the presumption against bail. The offences described by reference to proposed subparagraph 15AA(2)(b)(i) are those that contain a physical element of engaging in conduct that caused the death of a person. Subparagraph 15AA(2)(b)(ii) makes clear that it does not matter what fault element attaches to the person's conduct that caused the death of a person.
In other words, proposed paragraph 15AA(2)(b) covers federal offences that equate with the traditional offences of murder and manslaughter that exist under State and Territory law. Examples of federal offences covered by this provision include the killing of Australians overseas in Part 5.4 of the Criminal Code (sections 104.1 and 104.2), and instances of genocide, crimes against humanity and war crimes involving killing in Division 268 of the Criminal Code (sections 268.3, 268.8, 268.9 and 268.24).
Proposed paragraph 15AA(2)(c) covers additional serious federal offences that could also be terrorism-related. Division 80 of the Criminal Code contains the federal treason offence. Division 91 of the Criminal Code contains a series of espionage related offences. Section 24AA of the Crimes Act 1914 contains the federal treachery offences. Because these offences cover a broad range of conduct, the presumption against bail is proposed to apply only to persons charged with, or convicted of, these offences only if the commission of the offence allegedly resulted in the death of person or led to a substantial risk of causing the death of a person. For example, a person may be charged with an espionage offence in relation to the alleged disclosure of the identity of an Australian secret agent to a foreign government. If that disclosure placed that agent in grave danger or culminated in that agent's murder, the person would be covered by proposed paragraph 15AA(2)(c) and the presumption against bail would apply. However, if the disclosure did not result in the death of the agent or give rise to a substantial risk of death, the presumption against bail would not apply. It would be up to the bail authority to determine whether a substantial risk of death was created by the alleged conduct attributed to the charged person.
Proposed paragraph 15AA(2)(d) also covers the related offences of treason, espionage and treachery in some other circumstances (for example, attempted espionage or conspiring to commit treason). This is necessary because of the 'causing death or a substantial risk of death' limitation that applies to the primary offences of treason, espionage and treachery in proposed paragraph 15AA(2)(c). An example illustrates the point. A person may be charged with allegedly inciting treachery on the part of Australian Defence Force officers. The treachery did not occur because authorities intervened prior to the planned action. Therefore, proposed paragraph 15AA(2)(c) cannot be made out because the death of a person has not been caused. Further, it is very unlikely that a substantial risk of the death of a person could be said to have existed merely because of the incitement. Proposed paragraph 15AA(2)(d) would then operate to ensure that the presumption against bail would apply to the person charged on the basis that if the alleged incitement plot had resulted in actual treachery there would have been a substantial risk that the conduct would have caused the death of a person.
The interactions of proposed paragraphs 15AA(a) and (b) to the ancillary offences in the Criminal Code is discussed in the consideration of proposed paragraph 15AA(3) below.
Under section 11.6 of the Criminal Code any reference to a federal offence in federal law includes a reference to the related ancillary offences of attempt, incitement and conspiracy found in Part 2.4 of the Criminal Code (sections 11.1, 11.4 and 11.5). This means that the presumption against bail applies to the offences of attempting, inciting or conspiring to commit a terrorism offence (covered by proposed paragraph 15AA(2)(a)) or an offence covered by proposed paragraphs 15AA(2)(b) or (c). Charges or convictions that draw upon the complicity and common purpose or innocent agency provisions of Part 2.4 of the Criminal Code (sections 11.2 and 11.3) in relation to terrorism offences (covered by proposed paragraph 15AA(2)(a)) or an offence covered by proposed paragraphs 15AA(2)(b) or (c) will also be subject to the proposed presumption against bail. This is because a person to whom those provisions would apply is taken to have committed the primary offence.
In this light, proposed subsection 15AA(3) merely clarifies that the express mention of ancillary offences in proposed paragraph 15AA(2)(d) should not be taken as an indication that sections 11.1 (attempt), 11.2 (complicity and common purpose), 11.3 (innocent agency), 11.4 (incitement), 11.5 (conspiracy) and 11.6 (references to offences) are not to operate normally with respect to the offences covered by proposed paragraphs 15AA(2)(a) - (c).
Proposed section 15AA will interface with the State and Territory bail laws via the operational of subsection 68(1) of the Judiciary Act 1903, which applies these laws to federal offenders. Proposed subsection 15AA(4) makes clear that for federal offenders charged with, or convicted of, federal offences that are not covered by proposed subsection 15AA(2) the operation of the State and Territory bail laws via the Judiciary Act 1903 will remain unaffected. It also makes clear that the operation of the State and Territory bail laws to State or Territory offenders is not affected by proposed section 15AA.
Proposed subsection 15AA(5) contains important definitions for section 15AA.
The terms ancillary offence and primary offence are defined by reference to their definitions in the Dictionary of the Criminal Code.
The term bail authority is defined in general terms because persons, in addition to courts, empowered to consider matters of bail vary across the States and Territories. In some jurisdictions, there are specially designated bail justices or persons are employed by the courts with power to consider bail matters.
Item 1C - Minimum Non-parole Period
Proposed section 19AG would provide that where a court imposes a sentence of imprisonment on a person charged and convicted of a specified minimum non-parole offence, the court must also specify a minimum non-parole period of three-quarters of the sentence for that minimum non-parole offence. At present, courts have discretion in imposing the length of the non-parole period and consider such matters as the circumstances of the offence.
Proposed subsection 19AG(1) stipulates that section 19AG applies where a person is convicted of a minimum non-parole offence and a court imposes a sentence for the offence.
Proposed subsection 19AG(1) lists the federal offences which are minimum non-parole offences for the purposes of proposed section 19AG. A minimum non-parole offence is an offence against section 24AA of the Crimes Act (treachery), a terrorism offence or an offence against Division 80 of the Criminal Code (treason) or Division 91 of the Criminal Code (offences relating to espionage and similar activities). A terrorism offence is defined as meaning an offence against Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code. Division 72 of the Criminal Code provides for offences about international terrorist activities using explosive or lethal devices and Part 5.3 of the Criminal Code, includes offences such as committing terrorist acts, providing or receiving terrorist training and being a member of a terrorist organisation. Consequently, the requirement for a court to fix minimum non-parole periods will only apply to persons convicted of these specified offences.
'Sentence' is defined in section 16 of the Crimes Act 1914 as meaning, for the purposes of sections 16B to 19AZD of the Crimes Act, a sentence of imprisonment. The effect of 'sentence' is to ensure that the section only applies if a person is convicted of a minimum non-parole offence and the court imposes a sentence of imprisonment.
The interactions of proposed subsection 19AG(1) to the application of provisions of Part 1B of the Crimes Act 1914 is discussed in the consideration of proposed subsections 19AG(2) through to (5).
Proposed subsection 19AG(2) then provides for the consequences of a person being convicted of a minimum non-parole offence and being sentenced to imprisonment for that offence. Under proposed subsection 19AG(2) the court must fix a single non-parole period of at least three-quarters of the sentence for the minimum non-parole offence or if 2 or more sentences of imprisonment have been imposed on the person for minimum non-parole offences - the aggregate of those sentences. The three-quarters non-parole period is a minimum and proposed section 19AG does not prevent the court from imposing a non-parole period equal to the head sentence for the minimum non-parole offence.
Proposed subsection 19AG(2) also clarifies that the court is only required to set one non-parole period for all offences, irrespective of whether they are minimum non-parole offences or other Commonwealth criminal offences, as required under the Crimes Act. Section 19AG does not require a non-parole period of at least three-quarters to be imposed by the court for offences that are not specified in proposed subsection 19AG(1) as minimum non-parole offences.
The effect of this provision is, for example, where a person is charged with an offence not specified in proposed subsection 19AG(1) and with a minimum non-parole offence (one specified under proposed subsection 19AG(1)), the court when setting the single non-parole period for both offences must ensure that the non-parole period reflects, at least, the minimum non-parole period for the minimum non-parole offence. If the court imposed a head sentence of 10 years for the minimum non-parole offence, three-quarters of the non-parole period would be seven and a half years. The court would then need to ensure that when fixing the single non-parole period for all federal offences that it was at least a non-parole period of seven and a half years to reflect the minimum non-parole offence.
Proposed subsection 19AG(3) clarifies the application of proposed subsections 19AG(1) and (2) where a person is sentenced to life imprisonment for a minimum non-parole offence. Proposed paragraph 19AG(3)(a) provides that a sentence of imprisonment for life is taken to be a sentence of imprisonment for thirty years. The Crimes Act 1914 does not specify a numerical value for life imprisonment. To ensure that a person sentenced to life imprisonment receives a longer non-parole period than say, someone sentenced to twenty-five years imprisonment, a life sentence has been set at thirty years.
Whilst this is an arbitrary determination it is necessary to enable the court to calculate a non-parole period of three-quarters of the life sentence as required by proposed subsection 19AG(2). Consequently, three-quarters of thirty years is twenty-two and a half years imprisonment.
Proposed subsections 19AG(3)(b)(i) and (ii) clarify that the three-quarter non-parole period applies to all minimum non-parole offences whether or not the sentences were imposed at the same sitting or whether or not the convictions giving rise to those sentences were at the same sitting.
Proposed subsection 19AG(3)(b)(iii) stipulates that proposed subsection 19AG(2) will apply to all minimum non-parole offences even if the person is convicted and sentenced for other offences not specified in proposed subsection 19AG(1).
Proposed subsection 19AG(4) provides that a non-parole period fixed under proposed section 19AG will supersede any earlier recognizance release order. It also remedies an anomaly that arises under section 19AE of the Crimes Act 1914. Section 19AE applies where a person is subject to a recognizance release order and the court imposes a further federal sentence. Where this section applies, the court has a number of options including making or confirming existing recognizance release orders. These options are not available because of the operation of proposed section 19AG. One other option under section 19AE is that the further federal sentence results in the person serving a sentence or sentences which exceed three years and the court decides to fix a non-parole period. It then fixes a single non-parole period in respect of all sentences the person is to complete.
The effect of subsection 19AG(4) is that where the sentence exceeds three years or does not exceed three years a person convicted of a minimum non-parole offence and sentenced to imprisonment must have a non-parole period set of three-quarters of the head sentence of the minimum non-parole offence.
Proposed subsection 19AG(5) stipulates that the effect of sections 19AB (requirements for court consideration when fixing non-parole periods), 19AC (requirements on the court when fixing recognizance release orders), 19AD (rules that apply to people who are already subject to a non-parole period), 19AE (rules that apply to people who are already subject to recognizance releases orders) and 19AR (rules that apply where parole or licence is automatically revoked) of the Crimes Act 1914 is subject to the application of proposed section 19AG. The specifying of these provisions does not remove the application of other provisions in the Crimes Act 1914 governing Commonwealth sentencing, including the fixing of non-parole periods. For example, sections 19AF (rules that apply where the person is the subject of a remitted sentence) and 19AH (the effect of a failure to fix a non-parole period or make a recognizance release order) of the Crimes Act 1914 will still apply to issues of sentencing involving minimum non-parole offences despite the application of proposed section 19AG.
Proposed subsection 20(6) stipulates that paragraph 20(1)(b) of the Crimes Act 1914 does not apply in relation to a minimum non-parole offence mentioned in proposed section 19AG, or offences that includes one or more such minimum non-parole offences.
Paragraph 20(1)(b) of the Crimes Act 1914 enables the court, upon sentencing the person to imprisonment, to order that the person be released on giving security either forthwith or after serving a period of imprisonment. In effect, paragraph 20(1)(b) provides for wholly or partially suspended sentences. This is contrary to proposed section 19AG, as where a court is imposing a sentence of imprisonment the court must then fix a non-parole period.
Proposed subsection 20(6) also clarifies that a court is not to make a recognizance release order under paragraph 20(1)(b) even where it is required or permitted to do so by another section. Without this provision, requiring a court to fix a non-parole period may not prevent the court from making a recognizance release order especially in the circumstances where it is required to do so because the prison sentence (or aggregate) does not exceed three years as required in section 19AC of the Crimes Act 1914.
Proposed subsection 20AB(6) stipulates that subsection 20AB(1) of the Crimes Act 1914 does not permit a court to pass a sentence or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in proposed section 19AG.
Subsection 20AB(1) currently enables a court to impose on federal offenders a sentence or order where that court could, under the law of a participating State, make such sentence or order. Such sentences or orders can be made to the extent that relevant State laws are not inconsistent with Commonwealth legislation. At present the court has a number of sentencing options available under subsection 20AB(1) including, sentences of periodic detention, weekend detention and community service orders.
Proposed subsection 20AB(6) will ensure that a person sentenced to serve detention in custody or imprisonment cannot be ordered to serve that sentence of imprisonment or detention by way of the additional sentencing alternatives under subsection 20AB(1) of the Crimes Act 1914. For example, the NSW Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment for not more than three years may make a periodic detention order directing that the sentence be served by way of periodic detention rather than by full time imprisonment.
Where a state or territory law enables a court to make an order or pass a sentence, where a sentence of imprisonment or detention is not imposed, the court may still make that order or sentence under section 20AB, despite the operation of proposed section 19AG.
Amendment 3 - definition of 'terrorism offence'
This proposed amendment omits item 2 of the Bill. This item inserted a definition of 'terrorism offence' for the purposes of the new investigatory framework for terrorism offences to be inserted in Part 1C of the Crimes Act 1914. That same definition of 'terrorism offence' is integral to the proposed presumption against bail and minimum non-parole periods for sentences for certain offences, which includes terrorism offences (that is, any offence against Division 72 or Part 5.3 of the Criminal Code). Accordingly, the same definition as included in item 2 is omitted from Part 1C and re-inserted as a general definition in section 3(1) of the Crimes Act 1914 (see item 1B of proposed amendment 2). This will ensure that the definition applies throughout the Crimes Act 1914.
Amendments 4 - 6 - Dead time
Amendment 4 - Paragraph 23CA(8)(h)
This proposed amendment ensures that the time taken to make or dispose of an application for terrorism-specific 'dead time' in accordance with proposed new section 23CB should itself be 'dead time'. This is consistent with the Bill, which also includes the time taken to make or dispose of an application for extending the investigation period as 'dead time' and with existing section 23C in the Crimes Act.
Amendment 5 - Paragraph 23CA(8)(m)
This proposed amendment deletes the current version of paragraph 23CA(8)(m) in the Bill and substitutes a new version that incorporates a general category of 'dead time' that may be available during investigations for terrorism offences. This general category of 'dead time' is required to be judicially authorised pursuant to section 23CB.
Proposed paragraph 23CA(8)(m) contains two important qualifiers.
Firstly, any suspension or delay of questioning in accordance with proposed section 23CB must be reasonable. A suspension or delay would, for example, be unreasonable if relevant information necessary to inform the questioning of an arrested person could be obtained without delay. A suspension or delay of questioning may also be unreasonable if information sought be investigating officials has little relevance to the questioning of the person detained.
The second qualifier in proposed paragraph 23CA(8)(m) is that the period for which questioning is suspended or delayed must also be reasonable and is capped so that the dead time cannot exceed the period judicially authorised under proposed section 23CB.
Both these qualifiers flow through to each and every period of 'dead time' authorised pursuant to proposed section 23CB.
Amendment 6 - New Section 23CB
This proposed amendment sets out a framework that is to apply when investigating officials apply for additional 'dead time' in relation to events not already covered in proposed section 23CA. It predicates the availability of additional 'dead time' on judicial authorisation. As with all the amendments to Part 1C of the Crimes Act 1914 in the Bill, proposed section 23CB is only relevant when a person is arrested for a terrorism offence (as defined in proposed subsection 3(1) of the Crimes Act 1914, to be inserted by proposed item 1A of proposed amendment 2 to the Bill). It has no application to the investigation of federal offences other than terrorism offences.
The effect of proposed section 23CB in combination with proposed section 23CA is that while a person arrested for a terrorism offence may be detained for a fixed period only, prescribed events will not count as questioning time. Proposed paragraphs 23CA(8)(a) - (l) prescribe these events. These are the same as existing paragraphs 23C(7)(a) - (j) in the Crimes Act and prescribe important safeguards as 'dead time', such as the time taken for an arrested person to communicate with a legal practitioner or interview friend or for the arrested person to rest during bouts of questioning. Proposed paragraph 23CA(8)(m) then interfaces with proposed section 23CB to facilitate additional 'dead time' but only if judicially authorised.
The application and authorisation procedure laid for additional 'dead time' closely tracks the procedure that would regulate applications for extension to the investigation period. There are two main reasons for this.
Firstly, the safeguards that regulate the extension of an investigation period are equally important to the 'dead time' context. 'Dead time' results in prolonging an arrested person's detention and so should be carefully regulated. Examples of these safeguards include the requirement that a sufficiently senior judicial officer must authorise 'dead time' whenever practicable and permitting the arrested person, or their legal representative, to make representations about a 'dead time' application.
Second, a 'dead time' application may often be made at the same time that an investigating official is seeking an extension of the investigation period. It makes sense to streamline both processes as much as possible.
This provision clarifies that the mechanism for authorising 'dead time' in section 23CB only applies when a person is detained for the purpose of investigating whether that person committed a terrorism offence. This ensures that section 23CB complements the investigatory framework for terrorism offences contained in proposed section 23CA at item 5 of the Bill.
Proposed subsection 23CB(2) stipulates that an application for additional 'dead time' can be made by an investigating official at or before the end of the investigation period, the time limit for which is provided in proposed subsection 23CA(4) or, if one or more extensions have already been granted, in the written authority provided by the granting judicial officer..
Proposed subsection 23CB(3) replicates proposed subsection 23DA(2), as well as the mechanism for making applications to a judicial officer for an extension of the investigation period currently used for all serious federal offences under existing section 23D. It stipulates that, whenever practicable, a 'dead time' application should be made to a magistrate and only to less senior judicial officers if a magistrate is unavailable. This ensures that 'dead time' applications are considered by judicial officers with relevant experience in dealing with these important issues of investigatory process.
Proposed subsection 23CB(4) replicates proposed subsection 23DA(3), as well as the mechanism for making applications to a judicial officer for an extension of the investigation period currently used for all serious federal offences under existing section 23D. Importantly, it stipulates that the arrested person must be informed that he or she, or his or legal representative, may make representations to the magistrate, justice of the peace or bail justice about the 'dead time' application.
Proposed subsection 23CB(5) prescribes the information that must be included in a 'dead time' application.
Proposed paragraphs 23CB(5)(a) and (b) give effect to the recommendation of the Senate Legal and Constitutional Legislation Committee that an investigating official inform a judicial officer whether the arrested person is a minor or an Aboriginal person or Torres Strait Islander when seeking additional 'dead time'.
Part 1C was carefully drafted to respond to the historical vulnerabilities of minors, Aboriginal persons and Torres Strait Islanders in the criminal justice process. Proposed subsection 23CB(5) continues this approach and is consistent with existing safeguards in Part 1C for vulnerable persons.
Proposed paragraph 23CB(5)(c) requires an investigating official to set out his or her reasons for seeking additional 'dead time'.
The complexity and probable large magnitude of terrorism investigations means that it is impossible to accurately predict every category of event where 'dead time' might be needed to ensure a proper pre-charge interview takes place. Accordingly, proposed subsection 23CB(5)(c) sets out an indicative list of examples that may support a 'dead time' application.
Collating and analysing material, including material obtained from overseas authorities, before presenting it to a suspect during questioning or waiting for overseas jurisdictions to respond to requests for critical information from the Australian Federal Police are the types of events that could be specified as 'dead time' during terrorism investigations. This may be important where the suspect may not be an Australian citizen and the country in which the suspect may have been a citizen (or resident or transited through) has to undertake domestic inquiries to compile a profile of the suspect before responding to requests of the Australian Federal Police. These types of events will often arise in the terrorism context, as many terrorism investigations have an international aspect. Proposed subparagraphs 23CB(5)(c)(i) and (ii) represent these two typical events.
Proposed subparagraph 23CB(5)(c)(iii) incorporates the current subsection 23CA(8)(m) in the Bill into the proposed consolidated judicially authorised 'dead time' mechanism. Time zone differences between countries impose constraints on investigations with an international aspect, as investigators may need to obtain information from overseas critical to informing interviews with suspects. It is possible that during terrorism investigations, halting the questioning of an arrested suspect will be necessary so that investigators can obtain relevant information from overseas authorities in other time zones. The availability of relevant officers may be difficult to secure at night and information that must be obtained from business premises may also be difficult to obtain out of hours.
Proposed subsection 23CB(5)(c)(iv) is a complement to the indicative events described above. Translating material received pursuant to events (i) - (iii) above, including the time to prepare and translate questions for overseas authorities and to translate responses when received, is also likely to be involve time when the questioning of a suspect cannot realistically proceed. This is another probable 'dead time' event.
Importantly, the investigating official making the application does not have to show that 'dead time' is justified because all of the events in subparagraph 23CA(5)(c)(i) - (iv) have simultaneously created difficulties in questioning a suspect. Only one of these events may form the basis of a 'dead time' application. Further, a different reason not contained in this indicative list may be given by an investigating official in support of a 'dead time' application.
Proposed paragraph 23CB(5)(d) stipulates that the investigating official making the 'dead time' application is required to propose the period of 'dead time' he or she believes is justified. Investigating officials are best placed to nominate a period of time that responds to the particular 'event' or difficulty the officials are experiencing in conducting a fully informed pre-charge interview. Nominating a specific time will provide the background for a dialogue between the investigating official, the arrested person (for example, through his or her legal representative) and the judicial officer about the amount of 'dead time' that may be reasonable.
Proposed subsection 23CB(6) contains an important safeguard that flows from the requirement in proposed subsection 23CB(4) that an investigating official must inform the arrested person that he or she, or his or legal representative, may make representations to the magistrate, justice of the peace or bail justice about the 'dead time' application. Proposed subsection 23CB(6) then enshrines the arrested person's right to be heard, wither in person or through his or her legal representative, on the question of whether additional 'dead time' should be authorised.
Proposed subsection 23CB(7) outlines a set of criteria that the judicial officer must be satisfied of before specifying a period of additional 'dead time'. All of the criteria that regulate a judicial officer's decision about whether to extend the investigation period in proposed subsection 23DA(4) of the Bill are replicated in proposed paragraphs 23CB(7)(b) - (e). (In turn, these replicate the criteria for extending the investigation period for offences other than terrorism offences currently contained in section 23D of the Crimes Act.) Additional criteria are included in proposed paragraph 23CB(7)(a), which link back to the statements required to be included in the application pursuant to proposed subsection 23CB(5). The judicial officer is required to weigh up the representations made by the arrested person or his or her legal representative as well as any other relevant factors. Other relevant factors could include reasons provided by the investigating official for the application that are not included in the indicative list of events in proposed subparagraphs 23CB(5)(c)(i) - (iv) or the circumstances surrounding the alleged commission of the terrorism offence by the arrested person.
Proposed subsection 23CB(8) is analogous to proposed subsection 23CA(5) and existing the provisions of section 23D, both of which apply to the document issued by a judicial officer regarding an extension of the investigation period for terrorism offences and other federal serious offences. Importantly, the instrument must contain the reasons that the judicial officer had for authorising a period of additional 'dead time'.
Proposed subsection 23CB(9) requires the judicial officer to give the investigating official a copy of the instrument as soon as practicable after signing it, or if the instrument resulted from a telephone, telex, fax or other electronic application, inform the investigating official of the terms of the instrument.
Proposed subsections 23CB(10) - (12)
These proposed subsections contain important evidentiary provisions for situations when the 'dead time' application was made by telephone, telex, fax or other electronic means. These proposed provisions mirror similar provisions applicable to extending the investigation period currently used for all serious federal offences under sections 23D and 23E.
Amendments 7 and 8 - Prescribed organisations
Amendment 7 - Listing current terrorist organisations
Proposed paragraph 6(7)(b) in Item 15 of the Bill would ensure that the defence in section 6(4)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 is not available to a person if he commits a hostile activity while serving in the armed forces of the government of a foreign state where the armed forces in question are listed as a terrorist organisation in the Criminal Code Regulations. This exclusion from the defence was originally applied only to terrorist organisations listed in the Criminal Code Regulations pursuant to paragraph 102.1(1)(b) of the Criminal Code.
It is proposed to now extend the exclusion so that the defence is not available to organisations listed pursuant to paragraphs 102.1(1)(c), (d), and (e) of the Criminal Code. This would result in the defence in paragraph 6(4)(a) being unavailable to a person who commits hostile activities while serving in any capacity in or with a terrorist organisation listed pursuant to paragraph 102.1(b) of the Criminal Code or to a Hizaballah, Hamas, or a Lashkar-e-Tayyiba organisation listed in the Criminal Code Regulations.
Amendment 8 - Prescription Criteria
The amendments contained in Item 15 remove the defence available in section 6(4)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (whereby a person is not guilty of an offence if he committed a hostile activity while serving in or with the armed forces of the government of a foreign state) in circumstances where an armed force or organisation has been prescribed either in regulations to the Act (proposed paragraph 6(7)(a)) or as a terrorist organisation in the Criminal Code Regulations (proposed paragraph 6(7)(b)).
Proposed subsection 6(8) of the Act would include specific criteria regulating the Attorney-General's decision to prescribe particular organisations. It is proposed that organisations may be prescribed where the Attorney-General is satisfied on reasonable grounds that an organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
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- a serious violation of human rights; or
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- armed hostilities against the Commonwealth or a foreign State allied or associated with the Commonwealth;
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- a terrorist act (as defined in section 100.1 of the Criminal Code); or
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- an act prejudicial to the security, defence, or international relations of the Commonwealth.
As a result of this amendment, an organisation may be prescribed either where the Attorney-General is satisfied on reasonable grounds that an organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering one of the above four types of activities or where an organisation is listed as a terrorist organisation in the Criminal Code Regulations.
This proposed amendment gives effect to the Senate Legal and Constitutional Legislation Committee recommendation that the Bill include criteria by which organisations may be prescribed under the Crimes (Foreign Incursions and Recruitment) Act 1978 for the purposes of proposed paragraph 6(7)(a).
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