COAG Response to the COAG Review of Counter-Terrorism Legislation
Recommendations 1-7:
Definition of a ‘terrorist act’ (Criminal Code 1995 (Cth) s 100.1)
Rec 1: ‘threat of action’
The Committee recommends that “threat of action” be removed from the definition and a separate offence of ‘threatening to commit a terrorist act’ be created. / Support in part
The COAG Review Committee endorsed the findings of previous independent reviews that the definition of a terrorist act in s 100.1 of the Criminal Code 1995 (Cth) is ambiguous as to the requisite causal nexus between threats of action and the form of harm or damage specified in s 100.1(2). Inparticular, the Review Committee observed that it is unclear whether the threat must, itself, cause a specified form of harm or damage; or whether the threat, if carried out, would cause such harm or damage.
Amendments are supported to remove the risk that any perceived ambiguity may result in the non-commencement or discontinuation of prosecutions under Part 5.3 of the Criminal Code 1995 (Cth) in relation to threats of action. However, a different form of amendment is preferred to a separate threat offence. Rather than removing threats of action from the definition of a terrorist act, the preferred approach is to clarify the relationship between threats and harm within the definition.
This recognises that serious and credible threats of action which satisfy the elements of the definition can be as culpable as, or comparably culpable to, actions constituting a terrorist act. In particular, this approach will ensure that all of the powers and offences in Part 5.3 of the Criminal Code 1995 (Cth), which are based on the concept of a terrorist act, are available in respect of threats of action.
Rec 2: hoax offence
The Committee recommends that an additional offence be inserted in Part 5.3, Criminal Code, to provide for a “hoax threat” to commit an act of terrorism. / Support
A terrorism-specific hoax offence would appropriately recognise and denounce the potential for such a hoax to cause significant alarm and serious disruption to the community, and to divert valuable law enforcement and emergency services.
Rec 3: meaning of ‘harm’
The Committee recommends that ‘harm’ in section 100.1(2) be amended to allow the harm contemplated by the Act to extend to psychological harm, together with any consequential amendment, for example, to section 100.1(3)(b)(i). / Support
This proposal would align the definition with general principles of criminal responsibility in relation to harm. The general definition of ‘harm’ in the Criminal Code 1995 (Cth) includes harm to a person’s mental health, recognising that psychological harm can be equally damaging as physical harm and equally deserving of criminal sanction.
Given that a defining characteristic of terrorism is an intention to coerce, influence or intimidate, in furtherance of a political, religious or ideological cause, it is appropriate to recognise that the harm associated with a terrorist act can manifest beyond serious physical harm, and can include serious mental harm.
Rec 4: hostage taking
The Committee recommends that “hostage-taking” be included in section 100.1(2). / Not supported
The definition of a terrorist act in s 100.1 of the Criminal Code 1995 (Cth) applies to actions and threats of action. It is intentionally non-prescriptive as to particular types of actions or threats. Accordingly, acts of hostage taking are covered by the definition, provided they are committed with the necessary intention under paragraphs (b) and (c) and cause the necessary harm under subsection (2).
Hostage taking is also covered under a range of other offences in Commonwealth, State and Territory criminal laws, including the Crimes (Hostages) Act 1989 (Cth), which implements Australia’s obligations under the International Convention Against the Taking of Hostages. State and Territory criminal laws also include offences in the nature of kidnapping.
Rec 5: coverage of United Nations bodies
The Committee recommends that section 100.1(1)(c)(i) extend to include reference to the United Nations, a body of the United Nations, or a specialised agency of the United Nations. / Support
It is appropriate to extend the coverage of Part 5.3 of the Criminal Code 1995 (Cth) to United Nations entities, so that they are afforded the same protection as Australian and foreign governments. (That is, recognising as terrorist acts those actions which are done, or threats which are made, with the intention of coercing or influencing by intimidation a UN entity.) Such recognition is appropriate, given the international governmental functions performed by these agencies, and evidence that UN agencies have been the target of terrorist acts abroad.
Rec 6: interaction with the law of armed conflict
The Committee recommends that consideration be given to incorporating in the legislation an amendment to the effect that Part 5.3 of the Criminal Code will not apply to acts committed by parties regulated by the law of armed conflict. / Not supported
An express exclusion of acts committed in an armed conflict governed by international law would introduce an inappropriate element of complexity in the conduct of prosecutions under Part 5.3 of the Criminal Code 1995 (Cth).
In particular, the prosecution would be required to establish, as an element of each offence charged, that the relevant conduct was not governed by the law of armed conflict. Rather than creating a clear separation of the law of armed conflict and domestic counter-terrorism laws, this recommendation may require courts to determine the content and application of international law as a matter of course in counter-terrorism prosecutions.
It is preferable that the Commonwealth continues to monitor relevant international developments on this issue and re-assess this position if necessary.
Rec 7: exemption for Australian forces
The Committee recommends that consideration be given to excluding from the definition an act done by a person in the course of, and as part of, his or her service in any capacity with the Australian armed forces. / Support
While conduct as part of a person’s service with the Australian Defence Force (ADF) could be material to a defence of lawful authority under s 10.5 of the Criminal Code 1995 (Cth), the inclusion of an exemption along the lines of recommendation 7 would remove the possibility that such matters could be referred for prosecution. This would ensure that ADF personnel are not exposed to a terrorism prosecution in relation to their service to the defence of Australia.
Such an exemption would be consistent with similar provisions in other Commonwealth laws implementing sectoral anti-terrorism conventions to which Australia is a party. For example, s38A of the Nuclear NonProliferation (Safeguards) Act 1987 (Cth) and s72.2 of the Criminal Code 1995 (Cth).
Recommendations 8-11:
Preparatory offences (Criminal Code 1995 (Cth), Div 101)
Rec 8: s 101.2 – Providing or receiving training connected with terrorist acts
The Committee does not recommend any change to this section. / Support
The Review Committee confirmed that these preparatory offences are operating in the manner intended, and that completed prosecutions have demonstrated their necessity and effectiveness.
Rec 9: s101.4 – Possessing things connected with terrorist acts
The Committee recommends that section 101.4(1)(a) be amended to make it clear that “a thing”, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act. / Support
The existence of the requisite connection between a ‘thing’ and preparatory conduct is a decision for the court in individual cases, based on the evidence before it. Recommendation 9 would provide statutory guidance in the making of such decisions. It would confirm the policy intention that it should be open to a court to find that a thing is, by its very nature, capable of being connected with the commission of a terrorist act or preparatory conduct. Recommendation 9 would further confirm the policy intention that s101.4 be interpreted consistently with the reasoning of the High Court in R v Khazaal in respect of s 101.5.
Rec 10: s101.5 – Collecting or making documents
The Committee recommends that section 101.5 be amended to make clear that a ‘document’ by its very nature is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act. / Support
Recommendation 10 would give statutory expression to the decision and reasoning of the High Court in R v Khazaal that it is open to a court to find that a document is, by its very nature, capable of being connected with the commission of a terrorist act or preparatory conduct. This position reflects the policy intent in respect of s 101.5.
Rec 11: s101.6 – Doing an act in preparation for, or planning, a terrorist act
The Committee does not recommend any change to this section. / Support
Per response to recommendation 8.
Recommendations 12-23:
Terrorist organisations (Criminal Code 1995 (Cth), Div 102)
Rec12: s102.1 – Proscription of terrorist organisations
The Committee does not recommend that the present method of proscription of a terrorist organisation be changed. / Support
The Review Committee recognised that the executive, operating under Parliamentary oversight, is best placed to make listing decisions given the security nature of the considerations involved.
Rec 13: s102.1(1A) – Definition of ‘advocates’
The Committee recommends that section 102.1(1A) be amended to omit (c). This subsection deals with a situation where an organisation directly praises the doing of a terrorist act. / Not supported
The ‘praise’ component of the definition of ‘advocacy’ in s 102.1(1A)(c) recognises that such communication and conduct is inherently dangerous because it could inspire a person to cause serious harm to the community. Removing this ground would create an unacceptable gap in the listing regime, in relation to organisations which engage in this conduct.
This ground is also subject to considerable safeguards in s 102.1(1A), including the high risk threshold in relation to praise. (That is, the praise must carry a substantial risk of leading a person to engage in a terrorist act). In addition, the praise must be made by a terrorist organisation. (That is, a person who is capable of committing the organisation to a position.)
Rec 14: s102.1A – Commencement of listing a terrorist organisation
The Committee recommends that the Government give consideration to postponing commencement of a listing until after the Parliamentary disallowance period has expired. / Support in principle
This approach is currently adopted as a matter of practice. The Commonwealth Government presently considers delaying the commencement of new listings on a case-by-case basis. This is consistent with a recommendation of the Parliamentary Joint Committee on Intelligence and Security in its 2007 inquiry into the listing regime in Division 102 of the Criminal Code 1995 (Cth).
A case-by-case approach is preferable to a statutory rule, as security considerations may require individual listings to commence immediately.
Rec 15: Communication of proscription decisions
The Committee recommends that the Attorney-General’s Department should adopt improved communication methods to ensure that communities are more effectively notified when an organisation has been proscribed. Such methods should be more effectively responsive and personal to the specific information needs of ethnic and religious communities. / Support in principle
Governments are committed to the continuous improvement of communications and community outreach strategies in respect of listing decisions.
The Commonwealth Government has taken a number of steps to raise awareness of the terrorist organisation offences and the listing process. Following the listing of a terrorist organisation, the Attorney-General issues a media release, attaching a statement of reasons for the listing. This is disseminated to all major media outlets and is published on the Australian Government national security website, www.nationalsecurity.gov.au.
In specific instances, a more targeted public information campaign may be undertaken if the listing has particularly serious implications for a sector of the community. For example, the Commonwealth Attorney-General’s Department, in collaboration with the Australia-New Zealand Counter-Terrorism Committee, has developed fact sheets to provide communities with information about the conflict in Syria.
The Commonwealth Attorney-General’s Department has also published broader material on counter-terrorism laws, including a pamphlet printed in eight different languages. This is distributed by Departmental officers at forums they attend and is available online, including through the Department’s Living Safe Together website, www.livingsafetogether.gov.au, which supports communities in understanding and tackling violent extremism. In 2009, the Department published specific guidance for non-profit organisations, which includes guidance on the listing process and conducting due diligence in relation to listed organisations. The Parliamentary Joint Committee on Intelligence and Security also publicly advertises its inquiries into listing decisions, and calls for submissions from community members.
Rec 16: s102.5 – Training unconnected with terrorist activities
The Committee recommends that section 102.5 be amended to include specific exemptions for providing training to or receiving training from a terrorist organisation for purposes unconnected with the commission of terrorist acts. / Not supported
This recommendation is contrary to the policy intention underlying s 102.5, and Division 102 of the Criminal Code 1995 (Cth) more broadly, to eradicate terrorist organisations by isolating them. The terrorist organisation offences in Division 102 are intended to create an incentive for members of the community to cease, or avoid in future, any affiliation with such organisations.
It is not appropriate to introduce a statutory distinction between related and unrelated activities, given that apparently innocuous activities such as teaching English or financial literacy skills can be used by the recipients of such training to advance the cause of a terrorist organisation. While training provided in the context of humanitarian activities raises unique policy considerations, the practical difficulties of implementing a wholesale exemption in favour of such aid remain significant.
Rec17: s102.5 – ‘Participation’ in training
The Committee recommends the offence in section 102.5 be amended to include ‘participation’ in training. / Support
Extending s 102.5 to cover participation in training would prevent unintended gaps arising in the coverage of these offences, which could occur if there are no formally defined teaching and learning roles in a training session.
Rec18: s102.5 – Strict liability in respect of proscribed terrorist organisations