The Hon Daryl Williams,AM QC MP
4 June 2002
The Government has finalised its amendments to the counter-terrorism package of legislation following the report of the Senate Legal and Constitutional Legislation Committee.
This very important legislation will provide our security and law enforcement agencies with the tools they need to combat terrorism.
The horrifying events in the United States last September drew Australia, and the rest of the world, into a new and largely unpredictable security environment.
It is crucial that we are able to identify, prevent and, if necessary, punish those who would harm, or threaten to harm, to our families, our friends and our communities.
In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system. We think the legislation does just that.
It is important that we get this legislation right. The amendments reflect extensive and considered deliberation of the legislation by the Senate Legal and Constitutional Affairs Committee and discussions with Coalition members and senators.
The counter-terrorism package considered by the Committee is comprised of the Security Legislation Amendment (Terrorism) Bill 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002; Suppression of the Financing of Terrorism Bill 2002; Border Security Legislation Amendment Bill 2002; and the Telecommunications Interception Legislation Amendment Bill 2002. On the whole the Committee’s recommendations are reflected in the proposed Government amendments.
The Government’s amendments include:
- Amending the definition of “terrorist act’ to include the additional element of intended intimidation or coercion;
- Removing the limited reversal of the onus of proof, which requires the defendant to disprove fault, from the offences of possessing a “thing’ connected with a terrorist act and collecting or making a document connected with a terrorist act, and the maximum penalty for these offences being lowered to 15 years’ imprisonment;
- Replacing the reverse onus terrorist training offence with three different levels of offence carrying different fault elements of negligence, recklessness and knowledge and carrying graduated penalties from 10 to 25 years’ imprisonment;
- Replacing the existing “proscribed organisation’ provisions with a new definition of “terrorist organisation’ as:
- an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act; or
- an organisation that the Security Council of the United Nations has decided is an international terrorist organisation, and a regulation has been made listing an organisation as such; or
- an organisation that is listed by regulation as a terrorist organisation, based on evidence of the organisation’s terrorist activities.
An organisation would only be treated as a terrorist organisation for the purpose of the latter two limbs of the definition once the parliamentary disallowance period has passed. Regulations made under these two limbs will sunset two years after they are made unless the regulations are remade.
- Adding a new section detailing offences relating to terrorist organisations, carrying graduated penalties for negligence, recklessness and knowledge. These offences cover activities including directing the activities of terrorist organisations, recruiting for them, training with them or supporting their activities. In the case of membership of an organisation, only the “knowledge’ offence would be available. Further, a person can only be found guilty of being a member of a terrorist organisation if the prosecution first proves in a court that the organisation is a terrorist organisation in accordance with the first limb of the definition (see above). The prosecution will not be able to rely on a regulation made under either the second or third limbs of the definition in prosecuting people alleged only to be members of a terrorist organisation. The membership offence will also be subject to the defence that the person took all reasonable steps to cease to be a member as soon as practicable after the person knew the organisation was a terrorist organisation;
- Providing for a review of the terrorism package of legislation by the Parliamentary Joint Committee on ASIO after three years;
- Amending the treason offence to include a defence that a person’s conduct relates to the provision of humanitarian aid;
- Ensuring that it is clear that the fault element of intention in the financing of terrorism offence is fully explained as applying to the provision or collection of funds;
- Provide for regulations setting out procedures for the freezing of assets and for notifying those whose assets are frozen; and
- Excluding the financing of terrorism offences from the definition of "political offence" in the Extradition Act 1988 and, by reference, the Mutual Assistance in Criminal Matters Act 1987 to implement Article 14 of the International Convention for the Suppression of the Financing of Terrorism.
The Government will not be adopting the Senate Committee’s recommendations in relation to the Telecommunications (Interception) Act 1979 provisions but will review these issues as part of the ongoing review of that act by the Interception Consultative Committee.
The current Bill clarifies the existing law in relation to access to stored data by means other than an interception warrant.
Contrary to suggestions by some critics, the proposed change does not allow law enforcement agencies to read e-mails and SMS messages at whim. Rather, it recognises that an interception warrant is not appropriate for a situation in which no interception is necessary and that other lawful means, such as a search warrant would be more useful.
We have emerged from this consultative process with a strong and effective package of legislation. I thank the members of the Senate Committee and the Government for their contribution to that process.
We will be discussing these amendments with the Opposition and I look forward to their support of these Bills, which strengthen Australia’s ability to deter and protect against terrorism.
It is expected that the counter-terrorism package will be debated by the Senate during this sitting period.