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Terrorism (Commonwealth Powers) Bill 2002
TERRORISM (COMMONWEALTH
POWERS) BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The object of the Bill is to refer certain matters relating to terrorist acts
to the Commonwealth Parliament in accordance with section 51 (xxxvii) of
the Commonwealth Constitution, so as to enable the Commonwealth
Parliament to make laws about those matters.
The Bill operates by reference to the text in Schedule 1 containing the
proposed text of the amendments to the Commonwealth Criminal Code.
Reasons for the objectives and how they will be achieved
Following the terrorist attacks of 11 September 2001 the Prime Minister
and State and Territory leaders agreed (on 5 April 2002) that a new national
framework was need to meet the challenge of combating terrorism and
trans-national crime.
Among other matters the Prime Minister, State and Territory Leaders
issued a communiqu� where they recorded their agreement:
... to take whatever action is necessary to ensure that terrorists can
be prosecuted under the criminal law, including a reference of
power of specific, jointly agreed legislation, including roll back
provisions to ensure that the new Commonwealth law does not
override State law where that is not intended and to come into
effect by 31 October 2002. The Commonwealth will have power
to amend the new Commonwealth legislation in accordance with
provisions similar to those that apply under Corporations
arrangements. Any amendment based on the referred power will
require consultation with and agreement of States and
Territories, and this requirement is to be contained in the
legislation.
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Terrorism (Commonwealth Powers) Bill 2002
A package of Commonwealth Bills to enhance the capacity of the
Commonwealth to deal with terrorism was passed by the Commonwealth
Parliament on 27 June 2002. Included in this package was the Security
Legislation Amendment (Terrorism) Act 2002.
The Security Legislation Amendment (Terrorism) Act 2002 inserted a
new Part 5.3 (Terrorism) into Chapter 5 of the Commonwealth Criminal
Code. Part 5.3 now includes a series of offences in relation to terrorism
which are all linked to the commission of a `terrorist act'. As the
Commonwealth Parliament does not have a specific constitutional power to
legislate for terrorism the new Part 5.3 relies on a `patchwork' of
Constitutional powers. However, any legal complexity or uncertainty may
become the focus for litigation into the effectiveness of the new
Commonwealth terrorism offences. Problems of this kind may be avoided
by removing doubts about the extent of the Commonwealth's constitutional
power to enact Federal terrorism offences by the States making a
constitutional `reference' to the Commonwealth Parliament in accordance
with section 51 (xxxvii) of the Constitution.
The effect of the Terrorism (Commonwealth Powers) Bill 2002 is to refer
certain matters relating to terrorist acts to the Commonwealth Parliament,
in accordance with section 51(xxxvii), to enable the Commonwealth
Parliament to make laws about these matters. The reference of power will
also enable the Commonwealth to amend the terrorism offences (and the
associated criminal responsibility provisions). An inter-Governmental
agreement will provide that the Commonwealth will not amend the
terrorism offences (or associated criminal responsibility provisions)
without the agreement of the majority of the States and Territories (with the
agreement of at least 4 States).
The Terrorism (Commonwealth Powers) Bill 2002 includes a termination
provision (clause 5) that permits the Governor to, at any time, by
proclamation published in the Gazette to fix a day on which references
under the Act may terminate. The proclamation can only take effect three
months after the publication of a proclamation.
The Terrorism (Commonwealth Powers) Bill 2002 follows the form of
the Corporations reference in that the State does not refer a general
`terrorism' power but refers the `text' of the proposed Commonwealth
legislation together with a power to amend those offences. The `text' of the
proposed Commonwealth legislation is annexed in schedule 1 of the Bill.
The proposed part 5.3 included in the Schedule essentially re-enacts the
present terrorism offences (passed 27 June 2002). The Commonwealth
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Terrorism (Commonwealth Powers) Bill 2002
have advised that when the first State passes reference legislation they will
re-enact these terrorism offences.
Administrative cost to Government of implementation
The Bill will not impose any additional financial burdens on the
Government.
Consistency with Fundamental Legislative Principles
Does the Bill have sufficient regard to the institution of Parliament?
This Bill permits the termination of the reference of power by the
Governor issuing a proclamation. Consequently, it is arguable that clause 5
of the Queensland Bill has insufficient regard to the institution of
Parliament because clause 5 contemplates the amendment of an Act (the
revocation of the reference) by an instrument other than an Act.
The Bill is drafted by the Parliamentary Counsel's Committee and is
consistent with other State reference legislation introduced in other State
Parliaments. The Legislative Assembly of Western Australia passed the
equivalent of the Queensland Bill on 26 November 2002. In that Bill
clause 5 was amended to provide that a proclamation could only be made if
a resolution recommending the proclamation was passed by both Houses of
Parliament of that State.
This amendment has not been incorporated into this Bill. The only
circumstances where it is envisaged a reference of this sort would be
terminated would be of such an extraordinary kind (for example, passing of
oppressive Commonwealth amendments to the terrorism offences) that it is
submitted the present terminating provision, permitting rapid Executive
action, is warranted.
CONSULTATION
This Terrorism (Commonwealth Powers) Bill 2002 was prepared through
the Standing Committee of Attorneys-General. Both the Special
Committee of Solicitors-General and the Parliamentary Counsel's
Committee have been consulted about the drafting of the Bill.
New South Wales and Western Australia have introduced Bills identical
to the Queensland Bill into their Parliaments. South Australia passed its
legislation (with amendment to clause 4) on 27 November 2002.
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Terrorism (Commonwealth Powers) Bill 2002
Tasmania passed its legislation (in the form of the Queensland Bill) on 28
November 2002. Victoria, after their State election, is also expected to
introduce State reference legislation.
When the original Security Legislation Amendment (Terrorism) Act 2002
was introduced into the Senate it was referred to the Legal and
Constitutional Legislation Committee for inquiry. That Senate Legal and
Constitutional Legislation Committee identified a number of significant
problems with the Bill, many of which were rectified by the
Commonwealth before the Act was finally passed by the Commonwealth
Parliament. This Committee received public testimony and submissions on
the proposed terrorism offences.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title and purpose of the Act.
Clause 2 provides for the commencement of the Act on a day fixed by
proclamation of the Governor.
Clause 3 defines terms used in the Act. In particular terrorism
legislation is defined to mean the provisions of Part 5.3 of the
Commonwealth Criminal Code enacted in the terms, or substantially the
terms of the text set out in Schedule 1 and in force from time to time.
Criminal responsibility legislation is defined to mean the provision of
Chapter 2 of the Commonwealth Criminal Code enacted in the terms, or
substantially in the terms, of the text set out in Schedule 1 and as in force
from time to time.
Clause 4 refers the following matters to the Parliament of the
Commonwealth:
(a) the matters to which the provisions of the text set out in Schedule
1 relate, but only to the extent of the making of laws with respect
to those matters by including those provisions in the
Commonwealth Criminal Code in the terms, or substantially in
the terms, of that text, and
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Terrorism (Commonwealth Powers) Bill 2002
(b) the matter of terrorist acts or of actions relating to terrorist acts,
but only to the extent of the making of laws with respect to that
matter by making express amendment of the terrorism legislation
or the criminal responsibility legislation.
Clause 5 enables the State to terminate the reference by proclamation at
any time (with three months notice).
SCHEDULE 1
This schedule contains the text of the proposed Commonwealth
legislation that is to be enacted in pursuance of the reference of powers
made by the States.
The main offences in proposed new Part 5.3 of the Commonwealth
Criminal Code are as follows:
(a) engaging in a terrorist act (proposed section 101.1) or doing any
act in preparation for or planning a terrorist act (proposed section
101.6),
(b) providing or receiving training connected with a terrorist act
(proposed section 101.2),
(c) possessing things connected with a terrorist act (proposed section
101.4),
(d) collecting or making documents likely to facilitate a terrorist act
(proposed section 101.5),
(e) directing the activities of a terrorist organisation (proposed
section 102.2)
(f) membership of a terrorist organisation (proposed section 102.3),
(g) recruiting for a terrorist organisation (proposed section 102.4),
(h) training, or receiving training from, a terrorist organisation
(proposed section 102.5),
(i) getting funds to or from a terrorist organisation (proposed section
102.6),
(j) providing support to a terrorist organisation (proposed section
102.7), and
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Terrorism (Commonwealth Powers) Bill 2002
(k) financing a terrorist act (proposed section 103.1).
The proposed offences carry penalties ranging from 10 years to life
imprisonment.
Proposed section 100.1 defines a terrorist act as an action or threat of
action done or made with the intention of advancing a political, religious
or ideological cause, and coercing or influencing by intimidation a
government or intimidating the public. Action falls within the definition if
it causes serious physical harm or death, serious damage to property,
endangers another person's life, creates a serious risk to the health or safety
of the public or a section of the public or seriously interferes with, disrupts
or destroys an electronic system. Action constituting advocacy, protest,
dissent or industrial action that is not intended to cause serious physical
harm or death, endanger another person's life or create a serious risk to the
health or safety of the public or a section of the public is excluded from the
definition.
� State of Queensland 2002