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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.
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Purpose
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This bill seeks to amend the Criminal Code Act 1995 to further
strengthen Australia’s counter-terrorism legislative framework to respond
to new and evolving national security
threats, including the complex
motivations, strategies and tactics of violent extremists.
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 14 June 2023
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1.2 This bill seeks to introduce new criminal offences relating to the public display and trading of prohibited symbols. A 'prohibited symbol' is defined as the Islamic State flag, the Nazi hakenkreuz, the Nazi double sig rune, and something that so nearly resembles these things that it is likely to be confused with, or mistaken for, that thing.[3]
1.3 Item 5 of Schedule 1 to the bill introduces proposed section 80.2H, which provides that a person commits an offence if they intentionally[4] cause a prohibited symbol to be displayed in a public place and certain circumstances apply.[5] A prohibited symbol is 'displayed in a public place' if it is capable of being seen by a member of the public who is in a public place or the prohibited symbol is included in a document, such as a newspaper or magazine, film, video or television program, that is available or distributed to the public or a section of the public (including via the internet).[6] Proposed subsection 80.2H(9) provides that the offence would not apply where a reasonable person would consider that the public display of the prohibited symbol is for a religious, academic, educational, artistic, literary or scientific purpose and not contrary to the public interest; or for the purposes of making a news report or a current affairs report that is in the public interest and made by a professional journalist.[7] Proposed subsection 80.2H(10) sets out various defences to the offence, such as where the conduct is necessary for enforcing, monitoring compliance with, or investigating contravention of, a law.[8] The defendant bears an evidential burden in relation to these defences.
1.4 Proposed section 80.2J provides that a person commits an offence if they trade in goods that depict or contain a prohibited symbol; the person knows that, or is reckless as to whether, the prohibited symbols are associated with Nazi ideology or global jihadist ideology; and one or more jurisdictional requirements apply. A person trades in goods if they sell or prepare for supply, transport, guard or conceal, or possess the goods with the intention of selling the goods.[9] There are also several defences to the offence, such as if the traded goods contain commentary on public affairs, the prohibited symbol only appears in the commentary and the making of the commentary is in the public interest.[10]
1.5 The maximum penalty applicable for the offences of publicly displaying and trading in prohibited symbols is 12 months imprisonment.
1.6 Additionally, proposed section 80.2M provides that a person commits an offence if a person is given a direction under subsection 80.2K(1) to cease displaying a prohibited symbol in a public place and the direction is not complied with before the time specified in the direction.[11] Proposed subsections 80.2M(3)–(5) set out a number of defences to this offence, such as where the recipient takes all reasonable steps to cause the prohibited symbol to cease to be displayed or there are no such steps that can be taken by the recipient. The defendant bears an evidential burden in relation to these defences. The maximum penalty applicable is 20 penalty units.
1.7 The committee considers that there is a lack of clarity in some of these provisions. Without clear definitions in the bill, there may be substantial variation in the way the legislation is interpreted and applied in practice. This lack of clarity may unduly trespass on an individual's rights and liberties, as it is uncertain what an individual is and is not able to do. The committee considers that any offence provisions should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence and the explanatory memorandum should explain what key terms mean and how they are intended to operate.
1.8 The committee considers that it is unclear exactly what symbols may be prohibited in practice, noting that the bill does not define each of the prohibited symbols or provide a graphic depiction of the symbols. Rather, a description of the symbols is contained in the explanatory memorandum. It states that the legislation is not intended to be so prescriptive as to exclude variations in the ways in which the prohibited symbols are depicted.[12] This lack of clarity may further cause difficulties for the police who are empowered to issue directions to persons to cease displaying a prohibited symbol.
1.9 The committee also considers that there is a lack of clarity regarding the full range of circumstances that would be captured by the phrase 'displayed in a public place'. The explanatory memorandum provides some guidance as to conduct that constitutes displaying a prohibited symbol in a public space such as the wearing of a hat containing a Nazi double rig rune symbol as part of a party costume and the display of a symbol on a website that is publicly available.[13] However, the committee notes that it is not clear whether a symbol posted on a social media platform, including on a private account, would be taken to be displayed in a public place.
1.10 With respect to the offence relating to a direction to cease displaying a prohibited symbol, the committee considers that the use of the term 'reasonable' in relation to the period of time by which the prohibited symbol must cease being displayed and the steps that must be taken to cause the symbol to cease being displayed, creates uncertainty as to the practical operation of the offence. The committee has concerns regarding the lack of clarity in the term 'reasonable'.
1.11 The committee notes that while the explanatory memorandum provides some guidance as to the meaning of 'reasonable', there is no guidance in the text of the bill as to how a police officer issuing a direction is to determine what is a 'reasonable' period of time to comply with a direction or whether 'reasonable steps' have been taken by the recipient to comply with the direction. As there is no guidance as to how 'reasonable' may be understood and may vary based on factual circumstances, it is the committee's understanding that a person is only able to contest reasonableness by either waiting for a prosecution or by seeking a declaration. The bill currently does not allow for a person to contest the understanding of 'reasonable' by any other means.
1.12 As noted, the committee considers that any offence provisions should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence. The committee considers that insufficiently defined terms and concepts contained within offence provisions may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles. This is particularly so when the offence provisions contain a custodial penalty, as is the case with respect to the above offences. Given the substantial penalties that would apply to the offences of publicly displaying and trading in prohibited symbols, the committee considers that it would be appropriate to clarify with a higher level of precision the above matters.
1.13 The committee further notes that the offences seek to restrict forms of expression and as such, would trespass on the right to freedom of expression. The committee notes that the Parliamentary Joint Committee on Human Rights is considering this issue in detail and as such makes no further comment on this aspect of the bill.[14]
1.14 In light of the above, the committee requests the Attorney-General's advice as to:
• whether the bill can be amended to include a written description of the symbols that are sought to be prohibited (such as that contained in the explanatory memorandum) and a graphic depiction of the symbols;
• whether the meaning of 'displayed in a public place' can be clarified further;
• whether the bill can be amended to include a safeguard on the exercise of a police officer's discretion to determine a reasonable period of time to comply with a direction, such as allowing an affected person opportunity to give an explanation as to why compliance is not possible in a proposed period of time; and
• whether the explanatory memorandum can be amended to include guidance as to what would constitute 'reasonable steps' in the context of a person causing the prohibited symbol to cease to be displayed.
1.15 Proposed subsection 80.2H(10) provides a number of defences to the offence under proposed subsection 80.2H(1), which include causing a public display of a prohibited symbol if it is necessary for enforcing a law of the Commonwealth, a State or Territory, a foreign country or part of a foreign country.[16] This can also include conduct that is necessary for monitoring compliance with or investigating a contravention of a law of the same. Other defences under proposed subsection 80.2H(10) include:
• a person engaging in the conduct for the purposes of proceedings in a court or a tribunal;
• a person engaging in the conduct in connection with performance by a public official of the official's duties and functions and engaging in conduct that is reasonable in the circumstances for the purpose of the public official performing that duty or function;
• a person engaging in the conduct in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions and engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; and
• a person displays a hate symbol or something that so nearly resembles a symbol and genuinely engages in this conduct for the purpose of opposing global jihadist ideology, Nazi ideology, fascism or a related ideology.
1.16 Similarly, proposed section 80.2J of the bill also provides that it is an offence to trade in goods that depict or contain a prohibited symbol which the person knows to be or is reckless as to being a prohibited symbol. Proposed subsections 80.2J(6), 80.2J(7) and 80.2J(8) provide various defences to this offence, including the following:
• under proposed subsection 80.2J(6), if the goods traded contain commentary on public affairs, that the prohibited symbols only appear in the commentary and if the trade is in relation to the commentary in which a prohibited symbol appears, making the commentary in the public interest; and
• under proposed subsection 80.2J(7), if the trading is for the purpose of enforcing, monitoring compliance with or investigation of a contravention of a law of the Commonwealth, a State or Territory, or a foreign country; and
• under proposed subsection 80.2J(8), if the trading is in connection with the performance of a public official's duties or functions and is reasonable in the circumstances for the purpose of the public official performing that duty or function.
1.17 Additionally, absolute liability applies to proposed paragraph 80.2J(1)(e), which requires proposed subsection 80.2J(5) to not apply in order for the offence of trading in prohibited symbols to be made out.
1.18 Under general principles of the criminal law, for each physical element of an offence a fault (mental) element must be proved before a person can be found guilty of the offence. This ensures that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have. When a bill provides that an offence is one of absolute liability, this removes the requirement for the prosecution to prove the defendant's fault. The application of absolute liability also prevents the defence of honest and reasonable mistake of fact from being raised, a defence that remains available where strict liability is applied.
1.19 As the application of absolute liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of absolute liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.[17] In this instance, the explanatory memorandum states:
The public interest requirement and the requirement that the journalist is working in a professional capacity are intended to operate to exclude goods that have been traded by organisations for the purpose of, for example, inciting violence or promoting hatred, while purporting to be journalism. The offence would not apply where a reasonable person would consider that the dissemination of the report as a whole is in the public interest, rather than a particular aspect of the report being in the public interest. Public interest is intentionally not defined, as what is in the public interest will be informed by the circumstances of the particular dissemination.[18]
1.20 The committee welcomes the clarity on the operation of the element but considers that this explanation does not sufficiently justify the need to apply absolute liability in accordance with the requirements of the Guide to Framing Commonwealth Offences. It is not apparent to the committee that this element of the offence (that the traded goods contain one or more news reports or current affairs reports and each prohibited symbol appearing only appears in such a report, and that a reasonable person would consider that the report was made by a person working in a professional capacity as a journalist and was disseminating the report in the public interest) is a jurisdictional element and does not relate to the accused's culpability. Further, it is unclear to the committee why the prosecution is not required to prove the accused was reckless as to the news or current affairs reports bearing prohibited symbols being prepared by someone other than a person working in a professional capacity as a journalist or was distributed for a reason other than in the public interest.
1.21 Proposed section 80.2M provides that it is an offence if a person fails to comply with a direction to cease the display of a prohibited symbol in public. Proposed subsection 80.2M(3) provides that it is a defence to this offence if:
• the conduct that caused the public display of the prohibited symbol was engaged for a purpose that is religious, academic, educational, artistic, literary or scientific; or
• the conduct was engaged in for the purpose of making a news report or current affairs report that is in the public interest and is made by a person working in a professional capacity.
1.22 Further, proposed subsection 80.2M(4) provides that for the purposes of the defence under proposed subsection 80.2M(3), it does matter if the conduct referred to above is the conduct of the person given the direction.
1.23 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions, such as in these defences, that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
1.24 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:
• it is peculiarly within the knowledge of the defendant; and
• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.[19]
1.25 It is not clear to the committee that, in this instance, the matters are peculiarly within the knowledge of the defendant and are significantly more difficult and costly for the prosecution to disprove.
1.26 In the case of the defences available under proposed subparagraphs 80.2H(10)(a) and 80.2H(1)(b), as well as proposed subsection 80.2J(7), it is not apparent to the committee that the public display of a hate symbol being made in order to enforce a law would be peculiar to the defendant's knowledge as any requirement to comply with a law cannot be peculiar to a defendant's knowledge. With regard to this, the explanatory memorandum states:
a police officer may need to publicly display a knife inscribed with the Nazi double sig rune for a short period of time after confiscating it from a dangerous individual to allow other law enforcement personnel or witnesses to examine it, before they are able to cover or remove it from public display.[20]
1.27 The committee considers that in this instance, it would be apparent that the public display was in the course of enforcing a law and would not necessarily be peculiar to the defendant's knowledge.
1.28 It is also the committee's understanding that while the information relating to these defences may not always be readily available to prosecution, it is still possible for the prosecution to ascertain these matters in the course of investigation. If a public display is caused in the course of enforcing a law of the Commonwealth, State, Territory or a foreign country or is in the course of a public official's duties or functions if that is reasonable in the circumstances, the committee considers that it is possible for this information to be identified and disproved by the prosecution.
1.29 The committee maintains similar concerns in relation to other defences available under proposed subsections 80.2H(10) and 80.2J(8). It is the committee's understanding that where public displays of prohibited symbols occur as a result of the course of a public official's duties, as the duties of a public official are not peculiar to a defendant's knowledge and can be identified by prosecution in the course of investigation, it is not appropriate to reverse the burden of proof.
1.30 The committee maintains similar concerns in relation to the defences under proposed subparagraphs 80.2H(10)(f), 80.2H(10)(g) and 80.2J(6). The explanatory memorandum, in relation to proposed subparagraph 80.2H(10)(f) states:
New paragraph 80.2H(10)(f) would provide that the offence in subsection 80.2H(1) does not apply if the conduct involves the public display of the Islamic State flag, or something that so nearly resembles the Islamic State flag that it is likely to be confused with or mistaken for the Islamic State flag, and the person genuinely engages in the conduct for the purpose of opposing global jihadist ideology or a related ideology. This defence is intended to ensure that prohibited symbols can continue to be used and displayed for the purpose of opposing the harmful ideologies that the Islamic State flag represents, consistent with the implied constitutional freedom of political communication.[21]
1.31 Although the committee acknowledges the necessity of using prohibited symbols for the purpose of opposing global jihadist or Nazi ideology, the committee considers that this explanation does not address the requirements of the Guide to Framing Commonwealth Offences and does not justify the need for reversing the evidential burden of proof with regard to whether the knowledge is peculiarly within the defendant's mind and whether the matter is significantly more difficult and costly for prosecution to disprove than for the defendant to establish.
1.32 The explanatory memorandum states:
The offence in new subsection 80.2H(1) carries a low maximum penalty (12 months imprisonment) relative to those that apply to the other offences in Division 80 of the Criminal Code (5-7 years imprisonment).[22]
1.33 The committee notes that the maximum penalty is not high but reiterates that this is not sufficient as a justification for reversing the evidential burden of proof in relation to the defences outlined above.
1.34 The committee maintains similar concerns in relation to the defence under subsection 80.2M(3). Where a direction is being provided to cease the display of a public symbol, it is the committee's understanding that it may be readily available to the officer providing the direction that the display may be for a religious, academic, educational, artistic, literary, or scientific purpose or is for the purpose of making a news report or current affairs report that is in the public interest.
1.35 Further, the committee notes that under proposed subsection 80.2M(4), the conduct that forms the public display does not need to have been caused by the person who is the subject of the direction. The committee queries how any information relating to the purpose of the display that forms the bases of the defences under 80.2M(3) can therefore be peculiarly in the knowledge of the person required to provide evidence.
1.36 The committee notes that rather than reversing the evidential burden of proof in accordance with section 13.3 of the Criminal Code, it is possible to disapply section 13.3.[23] In such an instance, it is the committee's understanding that although a provision may be drafted as a defence, the evidential burden of proof does not shift to the defendant.
1.37 As the explanatory materials do not adequately address this issue, the committee requests the Attorney-General's detailed justification as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) under proposed subsections 80.2H(10), 80.2J(6), 80.2J(7), 80.2J(8), 80.2M(3) and 80.2M(4). The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[24]
1.38 The committee suggests that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. However, the committee also requests the Attorney-General's advice as to whether it is possible to disapply section 13.3. of the Criminal Code as an alternative to specifying these abovementioned defences as offence elements.
1.39 The committee also requests the Attorney-General's detailed justification as to the application of absolute liability to proposed subsection 80.2J(5). The committee's consideration of the appropriateness of a provision to which absolute liability is applied is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[25]
1.40 The bill seeks to create offences relating to the use of a carriage service[27] (such as an internet or mobile telephone service) for violent extremist material, including accessing, obtaining, distributing, possessing and controlling such material.[28] Violent extremist material includes, for example, material that describes, depicts, supports or facilitates 'serious violence' and is intended to advance a political, religious or ideological cause, and assist, encourage or induce a person to engage in, plan or prepare for an 'intimidatory act'.[29] The term 'serious violence' encompasses a range of actions, including actions that cause serious physical harm or death to a person; cause serious damage to property; or seriously interfere with, disrupt or destroy an electronic system.[30] A maximum penalty of five years imprisonment would apply to these offences[31].
1.41 The committee considers that the term 'violent extremist material' could conceivably cover a broad range of material. The explanatory memorandum states that the offence is intended to capture 'extremist' material that depicts conduct so serious as to engender public harm purely through its possession or distribution.[32] The examples provided in the explanatory memorandum are of an extremist nature, such as images and videos depicting terrorist incidents such as violent extremist manifestos and propaganda.[33] If the intention is to cover only 'extremist' material, it is unclear why the term 'serious violence' has been attributed such a broad meaning.
1.42 The committee also considers that the circumstances in which dealing with violent extremist material would be an offence are also drafted in broad terms. The explanatory memorandum states that the offences are intended to cover a broad range of activities that a person could undertake in relation to violent extremist material, such as sending an electronic link that can be used to access the material.[34] The term 'access' in this context is to take its ordinary meaning, which includes obtaining or acquiring data or gaining access to a system or network.[35] The committee considers that the full scope of activities that may fall within the meaning of 'access' is unclear.
1.43 As noted above at paragraph [1.6], the committee considers that offence provisions should be drafted with precision and clarity. The committee's concerns are heightened in this instance given the significant penalties that apply to these offences and considers that it would appropriate to clarify with a higher level of precision the material that the offence is intended to cover and the circumstances in which accessing such material would constitute an offence.
1.44 The committee further notes that the offences seek to restrict forms of expression and access to certain ideas and information, and as such, would trespass on the right to freedom of expression. The committee notes that the Parliamentary Joint Committee on Human Rights is considering this issue in detail and as such makes no further comment on this aspect of the bill.[36]
1.45 In light of the above, the committee requests the Attorney-General's advice as to:
• whether the bill can be amended to include clarity as to what material is intended to be captured by the term 'violent extremist material' so as to constitute the offences under proposed subsections 474.45B(1) and 474.45C(1); and
• whether the bill can be amended to include clarity as to what is meant by 'accessing' violent extremist material.
1.46 In relation to the proposed offence of possessing or controlling violent extremist material, proposed subsection 474.45C(5) provides that if the prosecution proves possession or control of violent extremist material in the form of computer data, a presumption applies that the person used a carriage service to obtain or access the material, unless the defendant proves to the contrary. A legal burden of proof is proposed to be placed on the defendant to rebut this presumption, requiring the defendant to prove, on the balance of probabilities, that they did not use a carriage service to obtain or access the material. The explanatory memorandum states that a defendant could rebut this presumption, for example, by producing evidence that proved they obtained or accessed the material from a portable data storage device that another person physically gave them.[38]
1.47 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove one or more elements of an offence, interfere with this common law right.
1.48 As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of people affected being the paramount consideration. In this instance, the explanatory memorandum states:
The purpose of this presumption would be to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical. Such evidence can be circumstantial, including for example that the defendant’s computer had chat logs saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard drive. A presumption in this instance is appropriate, given it is not an element that goes to the substance of the offence or to the person’s criminal culpability. Rather, it is a jurisdictional element; that is, an element marking a boundary between matters that fall within the legislative power of the Commonwealth, and those that do not.[39]
1.49 The committee considers that the explanatory memorandum has provided a justification as to why the evidential burden of proof needs to be reversed but has not established why it is necessary to reverse the legal burden of proof. It would appear that if the facts relating to how the material was obtained are peculiarly within the knowledge of the defendant, it would be sufficient to require the defendant to raise evidence that suggests a reasonable possibility that the material was obtained by means other than a carriage service, and the prosecution could then be required to disprove the matters that had been raised beyond reasonable doubt.
1.50 As the explanatory materials do not sufficiently justify this matter, the committee requests the minister's advice as to why it is proposed to reverse the legal burden of proof in relation to proposed subsection 474.45C(5).
1.51 This bill seeks to amend the existing offence of advocating terrorism by expanding the definition of 'advocates' to include the additional conduct of:
• providing instruction on the doing of a terrorist act or the commission of a terrorism offence; and
• praising the doing of a terrorist act or the commission of a terrorism offence in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or to commit a terrorism offence.[41]
1.52 The bill retains the current definition for 'advocates' under existing subsection 80.2C(3), which includes the counselling, promoting, encouraging or urging the doing of a terrorist act or the commission of a terrorism offence. The bill also seeks to increase the maximum penalty for the offence of advocating terrorism from 5 years to up to 7 years.[42]
1.53 The committee considers that there is some ambiguity as to the meaning of key terms, such as 'praises', 'substantial risk' and 'might' (in the context of whether praising a terrorist act would lead another person to engage in terrorism). There is also uncertainty as to the scope of conduct that would be covered by the amended definition of 'advocates'.
1.54 The explanatory memorandum states that the term 'praises' is to have its ordinary meaning.[43] As to whether 'praise' has occurred in circumstances where there is a substantial risk that it might lead to another person committing terrorism, the explanatory memorandum states that it is a matter to be considered on a case-by-case basis and the legislation is intentionally silent on how this is to be determined to give the court maximum discretion in making this assessment.[44] The committee considers that without clearer guidance as to how these terms should be interpreted, it appears that they could conceivably cover a broad range of conduct from relatively minor actions to more serious conduct.
1.55 The committee's concerns regarding the use of imprecise terms are heightened by the fact that the actions to which the conduct of praising would relate are also very broad. That is, actions that constitute a terrorist act or terrorism offence include a wide range of conduct such as serious damage to property and seriously interfering with electronic systems.[45] The committee's concerns regarding imprecise and ambiguous definitions of offence provisions have been detailed above at paragraph [1.6].
1.56 In this instance, the explanatory memorandum states:
The increase in penalty would more appropriately account for the potential severity of offending under section 80.2C, which would be broadened further by the addition of instructing on, and praising, terrorism at new paragraphs 80.2C(3)(b) and (c) to the list of conduct that may constitute the offence. Increasing the maximum penalty would also allow courts greater discretion to impose longer sentences where the circumstances of the offending fall short of imposing the maximum penalty, but are nonetheless very serious.[46]
1.57 The explanatory memorandum further states that the increased penalty reflects the fact that the offence of advocating terrorism is of equivalent seriousness to other offences in Division 80 of the Criminal Code, such as urging violence against groups and advocating genocide.[47]
1.58 The committee considers that given the significant penalties that apply to the offence of advocating terrorism, it would be more appropriate to clarify with a higher level of precision the scope of conduct that the term 'praises' is intended to cover and the circumstances in which there is likely to be a 'substantial risk' that such praise 'might' lead another person to engage in terrorism. The committee considers that further clarification on these key terms would assist people in prospectively knowing the scope of their potential criminal liability.
1.59 Further, the committee considers that the offences seek to restrict forms of expression, such as praising and instructing, and as such, would engage the right to freedom of expression.[48]
1.60 The committee notes that when the offence of advocating terrorism was first introduced, the committee raised scrutiny concerns with respect to the breadth of the definition of 'advocates' and its consequential impact on personal rights and liberties. The committee stated that given the substantial custodial penalty, the offence may have a chilling effect on the exercise of the right of free expression.[49] The committee considers that these same scrutiny concerns are applicable with respect to this bill. Further, the committee refers to its previous comments that the Criminal Code appears to include other offences which may cover the conduct intended to be captured by the offence of advocating terrorism.[50] The committee notes that this appears to remain the case, raising questions as to the necessity of this proposed amendment.
1.61 In light of the above, the committee requests the Attorney-General's advice as to:
• whether ‘advocates’ may be able to be defined with more specificity;
• whether the explanatory memorandum can be amended to include guidance with respect to the interpretation of key terms, including 'praises' and whether there is a 'substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or commit a terrorism offence'; and
• what conduct is intended to be captured by the amended offence that is not already captured by current offences.
1.62 Item 3 of Schedule 2 of the bill creates two offences in relation to the use of a carriage service to access, possess or control violent extremist material. These offences include:
• using a carriage service to access violent extremist material, which carries a maximum penalty of 5 years (Division 474.45B of the Criminal Code); and
• possessing or controlling violent extremist material obtained or accessed using a carriage service, which carries a maximum penalty of 5 years (Division 474.45C of the Criminal Code).
1.63 Proposed section 474.45D provides various defences in respect of both offences. These defences include:
• that the conduct is necessary for enforcing, monitoring compliance with or investigation of a contravention of a law of the Commonwealth, a State or Territory, or a foreign country; or
• the conduct is necessary for conducting scientific, medical, academic or historical research, and is reasonable in the circumstances for the purpose of conducting such research; or
• the conduct is in connection with the performance of a public official's duties or functions and is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
• the conduct is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice.
1.64 The committee's concerns in relation to reversing the evidential burden of proof have been detailed above at paragraphs [1.22] and [1.23]. As detailed above, the committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences.
1.65 The committee's concerns are heightened in this instance due to the significant penalties attaching to the offences under proposed subsections 474.45B(1) and 474.45C(1), which include a maximum of 5 years imprisonment.
1.66 In relation to the defences under proposed section 474.45D, the explanatory memorandum generally outlines their operation and states:
The offence-specific defences in section 474.45D recognise that the defendant’s purpose in dealing with violent extremist material is uniquely within the knowledge of the defendant. The defendant is best placed to adduce evidence demonstrating their purpose. For example, if the defendant is employed as a law enforcement officer and was investigating radicalised persons or terrorists who had dealt with violent extremist material, the defendant could readily adduce evidence that they used a carriage service for violent extremist material, or possessed or controlled such material in the course of their employment. Information of this nature is unlikely to be readily available or able to be obtained by the prosecution.[52]
1.67 As these defences are of a similar nature to the defences outlined above (under Schedule 1), the committee reiterates its concerns that the matters relating to these defences are not of a nature that is peculiar to the defendant's knowledge or would be significantly more difficult or costly for prosecution to disprove than for the defendant to establish. The committee also considers that the need to reverse the burden of proof in relation to the defences under Schedule 2 of the bill has not sufficiently been justified with reference to the requirements in the Guide to Framing Commonwealth Offences.
1.68 The committee considers that in relation to the defence under proposed paragraphs 474.45D(1)(a) and (b), it would be apparent that the violent extremist material was accessed, possessed, controlled or obtained in the course of enforcing a law and would not necessarily be peculiar to the defendant's knowledge as any requirement to comply with a law cannot be peculiar to a defendant's knowledge.
1.69 The committee further considers that if violent extremist material is possessed, controlled, accessed or obtained in the course of enforcing a law of the Commonwealth, State, Territory or a foreign country or is in the course of a public official's duties or functions if that is reasonable in the circumstances, it is possible for this information to be identified and disproved by the prosecution.
1.70 The committee maintains similar concerns regarding the defence under proposed paragraphs 474.45D(d), 474.45(e) and 474.45(h). Where violent extremist material is possessed, controlled, accessed or obtained, it is the committee's understanding that it may be readily available to the officer investigating to determine its purpose.
1.71 As the explanatory materials do not adequately address this issue, the committee requests the Attorney-General's detailed justification as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in relation to an offence under proposed subsections 474.45B(1) and 474.45C(1). The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.
1.72 The committee suggests that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. However, the committee also requests the Attorney-General's advice as to whether it is possible to disapply section 13.3. of the Criminal Code as an alternative to specifying these abovementioned defences as offence elements.
1.73 Item 5 of Schedule 4 to the bill seeks to introduce proposed section 12, which amends the Legislation (Exemptions and Other Matters) Regulation 2015 (the LEOM) by inserting table item 18C. Table item 18C has the effect of exempting regulations made under subsection 102.1(1) of the Criminal Code from the default 10-year sunsetting period. Instruments that would be exempt from sunsetting as a result of this amendment include terrorist organisation listings that would not expire unless delisted by the Australian Federal Police minister.[54]
1.74 Sunsetting plays a key role in ensuring legislative instruments are regularly reviewed to determine whether they are still fit for purpose. Once they have sunset, instruments must be remade and tabled in the Parliament, which promotes parliamentary oversight and scrutiny through debate and discussion. Where exemptions to sunsetting are created, such as through proposed amendments to the LEOM or primary legislation, the committee expects the explanatory memorandum to outline the circumstances that justify the limit on parliamentary oversight and scrutiny.
1.75 In this instance, the explanatory memorandum only provides an outline of the anticipated effect and does not provide a justification for the exemption from sunsetting itself. It is not apparent to the committee why regulations made under subsection 102.1(1) of the Criminal Code must be exempt from sunsetting under section 12 of the LEOM and therefore exempt from being regularly reviewed every 10 years. The committee also notes that the Senate Standing Committee for the Scrutiny of Delegated Legislation has commented on this matter, stating that:
Given the passage of time, few instruments would not benefit from amendments to take regard of events and developments in the intervening years, if they are in fact remade after this time.
The committee is of the view any exemption from sunsetting must be established in primary legislation and justified in the bill’s explanatory memorandum, and in the explanatory statement for the instrument itself.[55]
1.76 The committee requests the Attorney-General's detailed advice as to what circumstances justify the exemption from sunsetting for regulations made under subsection 102.1(1) of the Criminal Code.
[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023, Scrutiny Digest 9 of 2023; [2023] AUSStaCSBSD 138.
[2] Schedule 1, item 5, proposed sections 80.2H, 80.2J and 80.2M. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[3] Schedule 1, item 5, proposed section 80.2E.
[4] Section 5.6 of the Criminal Code Act 1995, the fault element of intention would apply to the conduct in paragraph 80.2H(1)(a). See also explanatory memorandum, p. 29.
[5] Schedule 1, item 5, new section 80.2H. The circumstance elements of the offence are set out in subsections 80.2H(3), (4) or (7) (as referred to in paragraph 80.2H(1)(c)). See explanatory memorandum, pp.29–34.
[6] Schedule 1, item 5, proposed section 80.2F.
[7] Schedule 1, item 5, proposed subsection 80.2H(9).
[8] Schedule 1, item 5, proposed subsection 80.2H(10).
[9] Schedule 1, item 5, proposed section 80.2G.
[10] Schedule 1, item 5, proposed subsections 80.2J(6)–(8).
[11] Schedule 1, item 5, proposed section 80.2M.
[12] Explanatory memorandum, pp. 24–26.
[13] Explanatory memorandum, p. 26–27.
[14] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 28–45.
[15] Schedule 1, item 5, proposed subsections 80.2H(10), 80.2J(6), 80.2J(7), 80.2J(8), 80.2M(3) and 80.2M(4). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[16] Schedule 1, item 5, proposed paragraph 80.2H(10)(a).
[17] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.
[18] Explanatory memorandum, p. 40.
[19] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p. 50.
[20] Explanatory memorandum, p. 34.
[21] Explanatory memorandum, p. 35.
[22] Explanatory memorandum, p. 36.
[23] See for example: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, subsection 122.5(12).
[24] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) pp. 50–52.
[25] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) pp. 23.
[26] Schedule 2, item 3, proposed sections 474.45B and 474.45C. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[27] Carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy: Telecommunications Act 1997, section 7 and Criminal Code Act 1995, Dictionary.
[28] Schedule 2, item 3, proposed section 474.45B.
[29] Schedule 2, item 3. An 'intimidatory act' is defined in proposed subsection 474.45A(3) as a violent action, or threat of violent action, where the action is done, or the threat is made, with the intention of coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country (or part of the government); or intimidating the public or a section of the public.
[30] Schedule 2, item 3, proposed subsection 474.45A(2); Criminal Code Act 1995, subsection 100.1(2).
[31] Schedule 2, item 3, proposed subsections 474.45B(1) and 474.45C(1).
[32] Explanatory memorandum, pp. 52–53.
[33] Explanatory memorandum, p. 55.
[34] Explanatory memorandum, p. 56.
[35] Explanatory memorandum, p. 56. See Oxford English Dictionary.
[36] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 28–45.
[37] Schedule 2, item 3, proposed subsection 474.45C(5). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[38] Explanatory memorandum, p. 60.
[39] Explanatory memorandum, p. 59.
[40] Schedule 3, item 1, proposed subsection 80.2B(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[41] Schedule 3, item 2, substituted section 80.2C(3).
[42] Schedule 3, item 1, substituted subparagraph 80.2C(1)(a).
[43] Explanatory memorandum, p. 64.
[44] Explanatory memorandum, p. 64.
[45] Criminal Code Act 1995, subsections 80.2C(2) and (3). Terrorism offence is defined in subsection 3(1) of the Crimes Act 1914 and terrorist act is defined in section 100.1 of the Criminal Code Act 1995.
[46] Explanatory memorandum, p. 63.
[47] Explanatory memorandum, p. 63.
[48] The committee notes that the Parliamentary Joint Committee on Human Rights is also considering this issue in detail. See Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 28-45.
[49] Senate Standing Committee for the Scrutiny of Bills, Report relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2013 (23 October 2014) p. 47.
[50] For example, section 80.2 (urging violence against the Constitution, etc.), section 80.2A (urging violence against groups), section 80.2B (urging violence against members of groups), section 101.5 (collecting or making documents likely to facilitate terrorist acts), and section 102.4 (recruiting for a terrorist organisation).
[51] Schedule 2, item 3, proposed section 474.45D. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[52] Explanatory memorandum, pp. 61–62.
[53] Schedule 4, item 3, proposed section 12, table item 18C. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[54] Explanatory memorandum, p. 66.
[55] Scrutiny of Delegated Legislation Committee, Exemption of delegated legislation from parliamentary oversight: Final report (March 2021) p. 112.
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