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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CRIMINAL CODE AMENDMENT (TERRORISM) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)
CRIMINAL CODE AMENDMENT (TERRORISM) BILL
2002
OUTLINE
The Criminal Code Amendment (Terrorism) Bill 2002
amends the Criminal Code Act 1995 (the Criminal Code) to re-enact federal
counter-terrorism offences and thereby give them comprehensive national
application.
The Bill would re-enact Part 5.3 of the Criminal Code (which
contains federal terrorism offences enacted in June 2002, and amended in October
2002) so that it would attract the support of State references of power in
accordance with section 51(xxxvii) of the Constitution.
The Bill will, in
effect, re-enact the terrorism offences as Commonwealth provisions capable of
operating throughout Australia, without any limitations arising from existing
limits on Commonwealth constitutional powers. The substance of the current
offences would not be affected. The re-enacted offences would be in the same
terms as the current offences, but for the constitutional ‘reading
down’ provisions.
The principal objective of this explanatory
memorandum is therefore to explain the differences between the Bill and the
current operation of the provisions in existing Part 5.3 of the Criminal Code.
Explanatory material for the Criminal Code offence provisions on which the Bill
is based may be found in the explanatory memoranda for the legislation that
enacted or amended those provisions.
Background to the
Bill
The current federal terrorism offences contained in Part 5.3 of
the Criminal Code commenced on 5 July 2002.
Those terrorism offences
were based on existing Commonwealth constitutional power. As the Commonwealth
Constitution does not give the Commonwealth Parliament power to make laws with
respect to ‘terrorism’ as such, the offences rely on a
‘patchwork’ of existing constitutional powers.
The patchwork
of existing Commonwealth constitutional powers is extensive but it is also
complex. It is impossible to rule out unforeseen gaps in constitutional support
and consequent gaps in the coverage offered by offences based on existing
powers. Any legal complexity or uncertainty may become a focus for litigation
about the effectiveness of the new federal terrorism offences.
Problems
of this kind may be avoided by removing doubts about the extent of the
Commonwealth’s constitutional power to enact the new federal terrorism
offences. States can remove those doubts by means of constitutional
‘references’ to the Commonwealth Parliament in accordance with
section 51(xxxvii) of the Commonwealth Constitution. (Similar considerations
were seen to justify the recent State references in support of the new
Commonwealth corporations legislation.) Under section 51(xxxvii) of the
Commonwealth Constitution, the Commonwealth Parliament may legislate with
respect to matters referred to it by the State parliaments. Suitable State
references would support comprehensive terrorism offences of national
application. They would remove any need to ‘read down’ the new
federal terrorism offences by reference to existing Commonwealth constitutional
powers. They would assist in ensuring that the new legislative framework is
fully effective by enabling comprehensive and national coverage.
The
Prime Minister and State and Territory Leaders have agreed on the importance of
comprehensive, national coverage of terrorism offences.
A Summit of
Commonwealth and State and Territory Leaders (Leaders’ Summit) was held in
Canberra on 5 April 2002 to consider enhanced national frameworks to deal with
transnational crime and terrorism. Leaders agreed to a range of initiatives.
In relation to counter-terrorism issues, Leaders agreed, amongst other things,
that State constitutional references would be sought to support federal
terrorism offences of national application.
The Bill is designed to
implement this agreement. It would, in effect, re-enact the terrorism offences
as Commonwealth provisions capable of operating nationally, partly in reliance
on referrals by the States under section 51(xxxvii) of the Commonwealth
Constitution.
The Bill assumes a two-fold reference by States. In
summary, the State reference legislation would refer the ‘text’ of
the new federal terrorism offences in Divisions 101 (terrorism – offences
based on terrorist acts), 102 (terrorist organisations) and 103 (financing
terrorism) of Part 5.3 of the Criminal Code, together with a power to amend
those offences. The first reference by each State of the text of the federal
legislation ensures, in effect, that the Commonwealth has power validly to enact
that text as a comprehensive law of national application. The second reference
– the amendment reference – ensures that the new federal
legislation, once enacted, could be amended from time to time by the
Commonwealth Parliament. This is to ensure that the legislation is not
‘frozen’ and remains responsive to an evolving security environment.
However, the Bill reflects an agreement between the Commonwealth and States and
Territories that future amendments will not be made without the approval of a
majority of the States and Territories (and of at least 4 States).
The
Bill is introduced on the assumption that all States will make suitable
references to the Commonwealth.
Financial Impact
Statement
The Bill does not have any financial
impact.
NOTES ON CLAUSES
Clause 1: Short
title
1. The short title of the Act will be the Criminal Code
Amendment (Terrorism) Act 2002.
Clause 2:
Commencement
2. The substantive parts of the Act will commence on a
day to be fixed by Proclamation. Due to the uncertain timing of the passage of
State reference legislation, this may not be within six months after the Bill
receives Royal Assent. The Bill therefore does not provide for commencement on
the earlier of proclamation or six months after Royal Assent.
Clause
3: Schedule(s)
3. Clause 3 provides that each Act specified in a
Schedule is amended or repealed as set out in the Schedule concerned.
Schedule 1 - Amendment of the Criminal Code Act 1995
Item 1 – The Schedule (Part 5.3 of the Criminal
Code)
4. This item repeals the existing Part 5.3 of the Criminal
Code and enacts a new Part 5.3 based on references of power from the
States.
Proposed section 100.1 – Definitions
5. The
proposed new section differs from the existing section 100.1
by:
• adding a new term, express amendment, to the
definitions for the purposes of proposed sections 100.2 and
100.8;
• adding a new term, referring State, to the
definitions (and defining it according to the meaning given to it by proposed
section 100.2); and
• renumbering the subparagraphs in subsection (2)
of the terrorist act definition.
Proposed section 100.2
– Referring States
6. This proposed new section sets out when a
State will be a referring State. A State will be a referring State if the
Parliament of the State has referred to the Parliament of the
Commonwealth:
• the matters that are necessary to enable the
Parliament of the Commonwealth to re-enact Part 5.3 of the Criminal Code;
and
• the matter of terrorist acts or actions relating to terrorist
acts, to the extent to making laws with respect to that matter by express
amendment of Part 5.3 (“Terrorism”) or Chapter 2 (“General
principles of criminal responsibility”) of the Criminal Code.
7. A
State ceases to be a referring State if the reference by the State Parliament to
the Commonwealth Parliament of either or both of the referred matters is
terminated (proposed subsection 100.2(5)). However, a State will not cease to
be a referring State simply because the State reference legislation provides
that the reference to the Commonwealth Parliament of either or both of the
matters referred is to terminate in particular circumstances (proposed
subsection 100.2(4)).
Proposed sections 100.3 and 100.4 –
Constitutional basis for the operation of Part 5.3 and application of
provisions
8. The operation of the new terrorism offences throughout
and outside Australia will depend on State references, as well as the powers
that the Commonwealth Parliament has apart from such references. Proposed
section 100.3 explains the operation of Part 5.3 of the Criminal
Code:
(1) in referring States (State references will supplement
the Commonwealth Parliament’s other powers by referring matters to the
extent to which they are not otherwise included in the Commonwealth
Parliament’s legislative powers);
(2) in non-referring
States (the Commonwealth Parliament’s existing legislative powers
support this application – proposed subsection 100.4(5) identifies
particular powers that are being relied on, in similar terms to the existing
section 100.2);
(3) in territories (the Commonwealth
Parliament’s existing legislative powers, particularly its power to make
laws with respect to territories under section 122 of the Constitution, support
this application); and
(4) outside Australia (the Commonwealth
Parliament’s existing legislative powers, particularly its power to make
laws with respect to external affairs under section 51 of the Constitution,
support this application).
9. Proposed section 100.4 in particular deals
with the possibility that one or more States may terminate a reference. In
particular it indicates that, in such circumstances, the application of the
offences to a “terrorist act” or a “preliminary act” in
a non-referring State will rely on the Commonwealth’s existing
constitutional powers, whereas the application of the offences to both terrorist
and preliminary acts in a referring State will attract referred powers.
“Terrorist act” continues to be defined in proposed section 100.1 to
cover specified actions and threats of action. “Preliminary acts”
is defined in proposed paragraph 100.4(1)(b) to cover all actions within the
scope of the current offences that relate to terrorist acts but do not
themselves constitute terrorist acts.
Proposed section 100.5 –
Application of Acts Interpretation Act 1901
10. The scope of
what is referred by a State Parliament is determined by that Parliament. As the
scope of the matters referred is in part determined by reference to a particular
text, proposed section 100.5 provides that the text referred is to be
interpreted in accordance with the Acts Interpretation Act 1901 of the
Commonwealth as in force on the day on which Schedule 1 of the Bill commences.
This is intended to preclude any argument that the matters referred differ from
State to State (as a result of differences in the local interpretation
legislation) or that the scope of the reference may change as a result of
amendments of the Acts Interpretation Act 1901. While the Bill applies
the Acts Interpretation Act 1901 as at the date of commencement of
Schedule 1, it is envisaged that changes to that Act could be applied to the
interpretation of the legislation by an appropriate amendment of section 100.5
in reliance on the amendment reference.
11. Other Commonwealth provisions
passed pursuant to existing Commonwealth constitutional power would continue to
apply in relation to the referred matters according to their terms. The
Commonwealth Parliament will have legislative power with respect to matters that
are incidental to the matters referred to the Commonwealth by the States
(subsection 51(xxxix) of the Constitution). Existing Commonwealth Acts such as
the Crimes Act 1914 and Evidence Act 1995 (as amended from time to
time) will therefore apply to the provisions once re-enacted.
Proposed
sections 100.6 and 100.7 – Interaction with State and Territory
laws
12. Section 109 of the Constitution provides that when a law of
a State is inconsistent with a law of the Commonwealth, the Commonwealth law
prevails and the State law, to the extent of the inconsistency, is invalid.
Proposed section 100.6 provides for the concurrent operation of State
legislation (ie where there is no indirect inconsistency). Proposed section
100.7 provides a regulation-making mechanism to ‘roll-back’ aspects
of the new Part 5.3 of the Criminal Code to accommodate certain State and
Territory legislation.
13. The new Part 5.3 is not intended to limit the
concurrent operation of any law of a referring State (proposed section 100.6).
Proposed section 100.6 is in terms similar to those of several other
Commonwealth provisions, such as section 5E of the Corporations Act
2001.
14. The new Part 5.3 will allow regulations to be made
modifying its operation so that the Part does not apply to a matter dealt with
by a State or Territory law, or is not inconsistent with the operation of a
State or Territory law specified in the regulations (proposed section 100.7).
15. The regulation-making power is intended to apply to laws of a State
or Territory in force (or proposed) immediately before the Bill commences, and
also to laws of a State or Territory proposed after the Bill commences. The
Bill will therefore allow regulations to be made narrowing the operation of Part
5.3 to make way for the existing or proposed State or Territory law to operate,
thus avoiding any inconsistency.
Proposed section 100.8 –
Approval for changes to or affecting this Part
16. Proposed section
100.8 reflects an agreement between the Commonwealth and the States and
Territories that amendments to:
• Part 5.3 of the Criminal Code,
and
• Chapter 2 of the Criminal Code where the amendments apply only to
Part 5.3 (and are not of general application to Commonwealth offences)
will
not be made without the approval of a majority of the States and Territories
(and of at least 4 States).
17. It is envisaged that the Commonwealth and
the States and Territories will enter into an inter-governmental agreement to
further support this understanding.
Proposed Divisions 101, 102 and
103 – re-enactment of terrorist act, terrorist organisations and financing
terrorism offences
18. This re-enacts, in the same terms, the
existing terrorism offences in Divisions 101 (terrorism – offences based
on terrorist acts), 102 (terrorist organisations) and 103 (financing terrorism)
of the Criminal Code. Explanatory material for the offence provisions may be
found in the explanatory memoranda for the legislation that enacted or amended
those provisions.
Proposed Division 106 – Transitional
provisions
19. Proposed section 106.1 provides a savings provision in
relation to regulations specifying an organisation as a “terrorist
organisation” for the purposes of the terrorist organisation offences in
Division 102. Any such regulations made under the existing legislation will
continue to have effect after commencement of the new provisions, as if they had
been made for the purposes of paragraph (b) of the “terrorist
organisation” definition in subsection 102.1(1), as in force after
commencement of this Bill.
Schedule 2 – Amendment of the Security Legislation Amendment (Terrorism) Act 2002
Item 1 – Subsection 4(1)
20. This item adds the Bill
to a list of Commonwealth counter-terrorism legislation that is subject to a
public and independent review mechanism concerning the operation, effectiveness
and implications of amendments made by the legislation.