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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CRIMINAL CODE AMENDMENT (TERRORIST
ORGANISATIONS) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Attorney-General,
the Honourable Daryl Williams AM QC MP)
CRIMINAL CODE AMENDMENT
(TERRORIST
ORGANISATIONS)
GENERAL OUTLINE
The Criminal Code Amendment (Terrorist Organisations)
Bill 2003 (the Bill) amends the Criminal Code Act 1995 (the Criminal
Code) to enhance the Commonwealth’s ability to combat terrorism.
The Bill removes the requirement that an organisation be first identified in,
or pursuant to, a decision of the United Nations Security Council relating
wholly or partly to terrorism, or using a mechanism established under the
decision, as a condition precedent to specifying the organisation in regulations
as a terrorist organisation. It will still be a requirement for the Minister to
be satisfied that the organisation is engaged in terrorist activity.
The
Bill inserts a provision which, in the event that the Minister ceases to be
satisfied that an organisation is directly or indirectly engaged in terrorist
activity, provides for a declaration to be made to that effect with the result
that the listing of the organisation will cease to have
effect.
Financial Impact
It is not expected that the Bill
will have a direct financial impact.
NOTES ON
CLAUSES
Clause 1: Short Title
This clause is a formal
provision specifying the short title of the Bill
Clause 2:
Commencement
The Bill commences on the day on which it receives the Royal
Assent.
Clause 3: Schedule(s)
Clause 3 provides that each
Act specified in a Schedule is amended as set out in the Schedule
concerned.
Schedule 1 – Amendments
Item 1 – The Schedule (subsection 102.1(2) of the Criminal
Code)
Item 1 repeals subsection 102.1(2) of the Criminal Code and
substitutes a new subsection 102.1(2).
Proposed subsection 102.1(2)
enables an organisation to be specified in regulations as a terrorist
organisation if the Minister is satisfied of certain matters in relation to the
organisation. The requirement that the organisation be identified in, or
pursuant to, a decision of the United Nations Security Council relating wholly
or partly to terrorism, or using a mechanism established under the decision, is
removed, allowing an organisation other than one identified in, or pursuant to,
a decision of the United Nations Security Council relating wholly or partly to
terrorism, as an organisation to which the decision relates, to be specified in
Regulations.
This amendment enables the Government to independently identify organisations
that are a threat to Australia’s national security as terrorist
organisations – thereby attracting the full weight of the criminal law
– without reference to the United Nations Security Council. The
requirement to refer to decisions of the United Nations Security Council when
listing organisations operated as a significant restriction upon the efficacy of
the legislation, as the United Nations Security Council identifies only
organisations with a link to the Taliban or Al Qaida. Many organisations whose
activities and ambitions represent a threat to Australia have no apparent
relationship to Al Qaida. It will remain a requirement for the Minister (the
Attorney-General) to be satisfied that the organisation is engaged in terrorist
activity. The Minister will form this opinion on the basis of information
relevant to security provided to him by the Australian Security Intelligence
Organisation.
Item 2 – The Schedule (subsections 102.1(4),
(5) and (6) of the Criminal Code)
Item 2 repeals subsections
102.1(4), (5) and (6) which are made redundant by the repeal of paragraph
102.1(2)(b) relating to the requirement for those organisations specified in
regulations to be listed by the United Nations Security Council, and inserts new
subsections 102.1(4)-(6).
Proposed Subsection 102.1(4)
Proposed subsection 102.1(4) inserts a mechanism making ineffective the listing of an organisation in the event that the Minister ceases to be satisfied of certain matters, colloquially referred to as ‘de-listing’. In the event that the conditions specified in paragraphs (a) and (b) are satisfied, subsection 102.1(4) obliges the Minister to make a declaration, to be published in the Gazette, detailing the matters described in those paragraphs. Paragraph (a) makes clear that subsection 102.1(4) applies to organisations specified in Regulations as provided for in paragraph 102.1(1)(b) (definition of ‘terrorist organisation’). Paragraph (b) identifies the matters about which the Minister must have ceased to be satisfied in order for subsection 102.1(4) to operate.
Regulations will cease to have effect from the date of that declaration. This does not prevent authorities from investigating and, if appropriate, prosecuting for offences committed in relation to a terrorist organisation (membership of a terrorist organisation; directing activities of a terrorist organisation etc.) where those offences occurred prior to the de-listing of that organisation.
The provision provides the Minister with the ability to make a determination about the suitability of continuing to specify an organisation in Regulations, which is independent of the initial decision to specify the organisation in Regulations, and to “de-list” the organisation where such a course of action is determined by the Minister to be appropriate.
Proposed Subsection 102.1(5)
Proposed subsection 102.1(5) provides that an organisation that has been de-listed under subsection 102.1(4) may be subsequently specified in regulations (“re-listed”). This provision takes account of the changing nature of organisations in terms of such factors as leadership, organisational aspirations, activity, etc.
Proposed Subsection 102.1(6)
Proposed subsection 102.1(6) provides that, if a Regulation ceases to have
effect as a result of this section, section 50 of the Acts
Interpretation Act 1901 applies. This means that, in the
event a Regulation ceases to have effect pursuant to this section, certain
matters, consequent upon the operation of the Regulation while in force and
necessary for the proper operation of the Regulation, will not be affected
despite the Regulation subsequently ceasing to have effect.