seeks to achieve an appropriate balance between the Government's responsibility to protect Australia, its people and its interests and instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way.The Explanatory Memo is here.
The forthcoming Act reflects recommendations of the July 2006 Review of Sedition Laws in Australia by the Australian Law Reform Commission, the November 2008 Inquiry by the Hon John Clarke QC into the Case of Dr Mohamed Haneef, the December 2006 Review of Security & Counter-Terrorism Legislation by the Parliamentary Joint Committee on Intelligence & Security and the same Committee's September 2007 Inquiry into the proscription of 'terrorist organisations' under the Australian Criminal Code.
The Act will primarily amend the Criminal Code Act 1995 (Cth), the Crimes Act 1914 (Cth), the Charter of the United Nations Act 1945 (Cth), the National Security Information (Criminal & Civil Proceedings) Act 2004 (Cth) and the Inspector-General of Intelligence and Security Act 1986 (Cth). Schedule 9 features amendments to enable the Prime Minister to request the Inspector-General of Intelligence & Security (IGIS) to inquire into an intelligence or security matter relating to any Commonwealth department or agency. This
reflects the increasing interaction between a range of Commonwealth departments and agencies and the Australian Intelligence Community on intelligence and security matters. To fully consider an intelligence or security matter, it may sometimes be necessary for the IGIS to consider the role played by a non-AIC departmentor agency in relation to that matter.Mr McClelland indicated that the legislation "has been the subject of extensive public consultation and contains significant amendments" including -
* expanding the 'urging violence' offence so that it applies to individuals as well as groups who incite violence on the basis of race, religion, nationality, national or ethnic origin or political opinionUsing the standard rhetoric, the Attorney-General states that -
* amending the National Security Information (Criminal & Civil Proceedings) Act 2004 (Cth) so that national security and counter-terrorism court proceedings may be expedited
* establishing a Parliamentary Joint Committee on Law Enforcement to extend parliamentary oversight to both the Australian Federal Police and the Australian Crime Commission
* extending the role of the Inspector-General of Intelligence & Security (IGIS) to inquire into an intelligence or security matter relating to any Commonwealth Department or agency
* extending the expiration period of regulations proscribing a terrorist organisation from two to three years
* new powers for police to enter a premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public
* extending the time available for police to re-enter a premises under a search warrant from one hour to 12 hours in emergency circumstances
* establishing a maximum seven day limit on the detention period that may be disregarded when a person has been arrested for a terrorism offence
* including a specific right of appeal for both the prosecution and the defendant against a bail decision relating to terrorism and serious national security offences.
These measures are designed to give the Australian community confidence that our law enforcement and security agencies have the tools they need to fight terrorism, while ensuring the laws and powers are balanced by appropriate safeguards and are accountable in their operation. ...From an identity perspective the Bill is of interest regarding the 'treason' changes. The Explanatory Memo indicates that -
The passage of this legislation is significant as an effective legal framework relating to national security and counter-terrorism is fundamental to our ability to address Australia's security environment.
Requiring an allegiance element
The traditional underpinning of the concept of treason is a breach of a person's obligation to the Crown and loyalty to Australia. Currently, the treason offences under paragraphs 80.1(1)(e) and (f) of the Criminal Code can be committed by anyone acting anywhere in the world. The 2006 PJCIS Report noted that these offences apply to people who have no allegiance and do not benefit from the protection of the Australian State.
The proposed new paragraphs 80.1AA(1)(f) and (4)(e) of the Criminal Code provide for an allegiance or duty requirement within the treason offence. In order for a person to commit the offences in proposed new section 80.1AA of the Criminal Code, the person must be a citizen of Australia or a resident of Australia, or must have voluntarily placed himself or herself under the protection of the Commonwealth, or must be a body corporate incorporated under a law of a State or Territory or the Commonwealth.
Proposed subsections 80.1AA(3) and 80.1AA(5) will make it clear that the fault element for paragraphs 80.1AA(1)(f) and 80.1AA(4)(e) of the Criminal Code is 'intention', as defined in subsection 5.2(2). In order to make out the offence, it would therefore be necessary to prove that, at the time of committing the offence, the person intended to, rather than simply being reckless as to the fact: be an Australian citizen or resident; voluntarily place himself or herself under the protection of the Commonwealth; or to be a body corporate incorporated under a law of a State or Territory or the Commonwealth.
Clarifying providing assistance to the enemy
Both the PJCIS and ALRC noted it was possible that the term 'assist' in the treason offence could be given a broad interpretation and that this was not appropriate, given the seriousness of the offence. This item will qualify the treason offences at proposed new paragraphs 80.1AA(1)(d) and (e) and 80.1AA(4)(c) and (d) of the Criminal Code, to the effect that the offences will only apply when a person provides material assistance to the enemy. This will clarify that the conduct standard in the proposed new offences in section 80.1AA of the Criminal Code must be conduct that will materially assist the enemy. It reflects the intended operation of the offence by making it clear that, in order to commit the offence, a person must provide assistance to the enemy that is real or concrete.
