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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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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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Bill status
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Before the House of Representatives
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2.79 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.[111]
2.80 Item 5 of Schedule 1 to the bill introduces proposed section 80.2H, which seeks to provide that a person commits an offence if they intentionally cause a prohibited symbol to be displayed in a public place and certain circumstances apply. 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). 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.
2.81 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.
2.82 A person is taken to trade in goods if they sell or prepare for supply, transport, guard or conceal, or possess the goods with the intention of selling the goods. 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.
2.83 Additionally, proposed section 80.2M provides that a person commits an offence if a person is given a direction from a police officer 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. 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 would bear an evidential burden in relation to these defences and the maximum possible penalty applicable is 20 penalty units.
2.84 In Scrutiny Digest 9 of 2023, the committee requested 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.[112]
2.85 The Attorney-General advised that written descriptions of the prohibited symbols are provided in the explanatory memorandum and the bill defines the prohibited symbols. The Attorney-General advised that graphic depictions of each symbol were not included in the legislation as it would be contrary to the intent of the public display offence for the legislation to display the symbols.
2.86 The Attorney-General advised that the bill currently defines a public place as including any place to which the public or section of the public have access as of right or by invitation, whether express or implied and includes 'both physical and online spaces that otherwise meets the definition'.
2.87 Further, in relation to a police officer's discretion to determine a reasonable period of time to comply with a direction, the Attorney-General advised that a police officer is unable to provide a direction where it would not be possible or it would be dangerous for a person to take those steps. The Attorney-General advised that this will ensure the most appropriate person is directed by the officer to remove the public display of the symbol. The Attorney-General also undertook to consider amending the bill to address this issue in light of recommendations from the Parliamentary Joint Committee on Intelligence and Security (PJCIS) regarding the bill.
2.88 Finally, the Attorney-General advised that what constitutes 'reasonable steps' will depend on the circumstances and context in which the direction is issued but the explanatory memorandum could be amended to include some examples of reasonable and unreasonable steps.
2.89 The committee thanks the Attorney-General for this advice.
2.90 As the offence of publicly displaying a prohibited symbol includes symbols that so nearly resemble the Nazi hakenkreuz, the Nazi double sig rune and the Islamic State flag that it is likely to be confused with or mistaken for these symbols, the committee considers that including graphic depictions within the legislation would help minimise confusion as to what symbols specifically are prohibited and what symbols may be mistaken for them. However, the committee notes that, at a minimum, written descriptions of the prohibited symbols are provided in the explanatory memorandum, and the bill defines the prohibited symbols.
2.91 The committee welcomes the clarity provided by the Attorney-General that a police officer is unable to direct a person to take steps where it would not be possible or where it would be dangerous for a person to take those steps. However, it is unclear to the committee that this is a safeguard on a police officer's discretion to determine a reasonable period of time to comply with a direction to cease a public display of a prohibited symbol. The committee reiterates its concern that the only option available to a person provided a direction in this instance would be to contest reasonableness by waiting for a prosecution or by seeking a declaration.
2.92 The committee thanks the Attorney-General for advising that the explanatory memorandum can be amended to include examples of reasonable and unreasonable steps when a person is directed to cease public display of a prohibited symbol.
2.93 In relation to the issues of including graphic depictions of prohibited symbols within the legislation and the definition of 'displayed in a public place' the committee makes no further comment.
2.94 The committee draws to the attention of senators and leaves to the Senate as a whole the appropriateness of not including a safeguard on a police officer's discretion to determine a reasonable period of time for a person to comply with a direction to cease public display of a prohibited symbol.
2.95 The committee requests that an addendum to the explanatory memorandum containing examples of reasonable and unreasonable steps to be taken to cease public display of a prohibited symbol be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.96 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.[115] 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.
2.97 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.
2.98 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.
2.99 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.
2.100 Further, proposed subsection 80.2M(4) provides that for the purposes of the defence under proposed subsection 80.2M(3), it does not matter if the conduct referred to above is the conduct of the person given the direction.
2.101 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General's advice as to:
• why it is appropriate 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);
• whether it is possible to disapply section 13.3 of the Criminal Code Act 1995 (the Criminal Code) as an alternative to reversing the evidential burden of proof; and
• the Attorney-General's justification as to the application of absolute liability to proposed subsection 80.2J(5).[116]
2.102 The Attorney-General advised that the defences under proposed subsection 80.2H(10) are justified as most focus on the purpose for which the person engaged in the conduct, which is likely to be peculiarly within the defendant's knowledge. The Attorney-General advised that it would be relatively straightforward for a person to meet this threshold compared to the prosecution.
2.103 The Attorney-General advised that as the defendant's purpose in performing conduct is peculiarly within their knowledge, it is a matter that the defendant is best placed to establish. As a result, it would not be appropriate to disapply section 13.3 of the Criminal Code. The Attorney-General also undertook to consider amending the bill to address this issue in light of recommendations from PJCIS regarding the bill.
2.104 Finally, the Attorney-General advised that subsection 80.2J(5) is intended to exempt bona fide journalism from the offence of trading in goods that depict or contain a prohibited symbol. The Attorney-General advised that prosecution would be required to prove:
• the goods being traded contained one or more news reports or current affairs reports;
• that each prohibited symbol that the goods depict or contain 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 that disseminating the report is in the public interest.
2.105 The Attorney-General advised that a defendant's state of mind is not relevant to a determination of whether these circumstances exist as they relate to a what a reasonable person would consider.
2.106 The committee thanks the Attorney-General for this advice.
2.107 The committee reiterates its concerns that it is not appropriate for all the defences contained under proposed subsections 80.2H(10), 80.2J(6), 80.2J(7), 80.2J(8), 80.2M(3)(a) and (b) and 80.2M(4) to require the defendant to adduce evidentiary material that would relate to matters peculiarly within the defendant's knowledge.
2.108 For example, as noted by the committee in Scrutiny Digest 9 of 2023, in relation to the defence under proposed subsection 80.2M(3), it is not clear to the committee why a defendant should be required to provide evidence relating to the purpose or reason of the public display, given the purposes for which the public display is being made should be readily apparent. For example, it may be evident 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. This information could be ascertained from the context and features of the display. It therefore does not seem clear to the committee that such matters would be peculiarly within the defendant’s knowledge.
2.109 Additionally, proposed subsection 80.2M(4) provides that the conduct that forms the public display does not necessarily have to be the conduct of the person subject to the direction. It is therefore unclear to the committee how that person could have any knowledge of the purpose of the conduct at all and provide evidence relating to its purpose, and should therefore have to bear the reversed burden.
2.110 In the case of the defences available under proposed subparagraphs 80.2H(10)(a), 80.2H(10)(b), and 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. Any knowledge relating to the enforcement of a law could also be identified and disproved by the prosecution in the course of investigation.
2.111 The committee maintains similar concerns in relation to other defences available under proposed subsections 80.2H(10) and 80.2J(8), where public displays of prohibited symbols occur as a result of the course of a public official's duties. It is apparent that the duties of a public official would not be peculiar to a that official's knowledge. The committee also remains concerns that under proposed subsection 80.2J(6), a defendant would be required to prove that a prohibited symbol appearing in commentary is in the public interest. What is in the public interest is not peculiar to any person's knowledge and relies on an objective criteria.
2.112 The committee notes that while knowledge or information relating to these evidentiary matters may be more readily available to the defendant for the defendant to provide or establish, this does not necessarily mean that it is significantly more costly or difficult for prosecution to disprove those matters.
2.113 It remains unclear to the committee why it is appropriate to reverse the evidential burden of proof in relation to the abovementioned offence-specific defences, and by extension, why it is not appropriate to disapply section 13.3 of the Criminal Code.
2.114 The committee requests the Attorney-General's further 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)(a) and (b), 80.2J(6), 80.2J(7), 80.2J(8), and 80.2M(4).
2.115 The committee makes no further comment regarding the disapplication of section 13.3 of the Criminal Code Act 1995 as an alternative to specifying these abovementioned defences as offence elements.
2.116 The committee makes no further comment in relation to the issue of the application of absolute liability to proposed subsection 80.2J(5).
2.117 The bill seeks to create offences relating to the use of a carriage service[118] (such as an internet or mobile telephone service) for violent extremist material, including accessing, obtaining, distributing, possessing and controlling such material.[119] 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'.[120] 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.[121] A maximum penalty of five years imprisonment would apply to these offences[122].
2.118 In Scrutiny Digest 9 of 2023, the committee requested 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.[123]
2.119 The Attorney-General advised that the definition of 'violent extremist material' is provided under proposed subsection 474.45A(1). The Attorney-General further advised that the definition of 'serious violence' is provided by subsection 100.1(2) of the Criminal Code. Guidance on the intended application of the term 'violent extremist material' is provided in the explanatory memorandum. The Attorney-General undertook to consider amending the bill to address this issue in light of recommendations from PJCIS regarding the bill.
2.120 The Attorney-General further advised that the Criminal Code defines 'access' for the purpose of Part 10.6 of the Criminal Code, in which the new violent extremist material provisions will be located. This definition includes:
• the display of material by a computer or any other output of the material from a computer; or
• the copying or moving of the material to any place in a computer or to a data storage device; or
• in the case of material that is a program—the execution of the program.
2.121 Finally, the Attorney-General undertook to consider amending the bill to address this issue in light of recommendations from PJCIS regarding the bill.
2.122 The committee thanks the Attorney-General for this advice.
2.123 The committee considers that including in the explanatory memorandum the definition of 'access' under section 473.1 the Criminal Code that is applicable to the offences under Schedule 2 of the bill, would be helpful.
2.124 It remains unclear to the committee whether the definition of access provided by the Attorney-General could encompass inadvertently accessing violent extremist material that is displayed on a computer or some other output, such as through social media. The committee queries whether this would result in an individual committing an offence under proposed section 474.45B of the bill. The committee reiterates its concerns that it is unclear whether the broad definition of the term 'access' may result in ordinary people inadvertently accessing violent extremist material through everyday use of a computer or a carriage service.
2.125 The committee queries why the offence in proposed section 474.45B(1) is framed in a way that it may capture individuals inadvertently accessing violent extremist material through ordinary carriage service usage.
2.126 The committee makes no further comment on the definition of 'violent extremist material'.
2.127 The committee requests that an addendum to the explanatory memorandum including the definition of 'access' be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.128 The committee also requests the Attorney-General's further advice as to whether:
• the definition of 'access' provided under section 473.1 of the Criminal Code can include inadvertently accessing violent extremist material through the ordinary use of a computer or carriage service; and
• what, if any, safeguards are in place for persons who contravene proposed subsection 474.45B(1) by inadvertently accessing violent extremist material, including, for example, whether any specific defences are available for a defendant to rely on.
2.129 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.
2.130 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General's advice as to why it is proposed to reverse the legal burden of proof in relation to proposed subsection 474.45C(5).[125]
2.131 The Attorney-General advised that the explanatory memorandum provides why the reversal of the legal burden is necessary and appropriate in these circumstances. This includes that, often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical and can be circumstantial. The explanatory memorandum also provides that the element does not go to the substance of the offence or the person's culpability, but rather, is a jurisdictional element.
2.132 The committee thanks the Attorney-General for this advice.
2.133 The committee notes that in this instance, a reversed legal burden of proof requires the defendant to positively prove that they did not access violent extremist material through a carriage service, but by some other means. It would not be sufficient for the defendant to provide evidence that suggests a reasonable possibility that the defendant accessed violent extremist material by other means in these circumstances.
2.134 While the committee acknowledges the evidential material in relation to establishing the use of a carriage material may be peculiarly within the defendant's knowledge, and can be of a highly technical nature, the committee notes that a legal burden is a higher threshold for a defendant to meet and is not justified merely by the technical nature of the evidence. However, the committee notes the minister's advice that in this instance, the relevant element of the offence does not go to the defendant's culpability and is a jurisdictional element.
2.135 In light of the above information, the committee makes no further comment on this matter.
2.136 Item 3 of Schedule 2 of the bill seeks to create 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).
2.137 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.
2.138 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General's advice as to:
• why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in relation to offences under proposed subsections 474.45B(1) and 474.45C(1); and
• whether it is possible to disapply section 13.3 of the Criminal Code as an alternative to specifying these abovementioned defences as offence elements.[127]
2.139 The Attorney-General advised that the defences in relation to the offences listed under proposed section 474.45D recognise that the defendant's purpose for dealing with violent extremist material is uniquely within the defendant's knowledge. As such, the defendant is best placed to adduce evidence demonstrating their purpose. The Attorney-General advised that a 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.
2.140 Further, the Attorney-General advised that as the relevant matters are peculiarly within the defendant's knowledge, and are matters that the defendant is best placed to establish, it would not be appropriate to disapply section 13.3 of the Criminal Code to these matters. The Attorney-General undertook to consider amending the bill to address this issue in light of recommendations from PJCIS regarding the bill.
2.141 The committee thanks the Attorney-General for this advice.
2.142 The committee has articulated its concerns in relation to similar defences at paragraphs [2.106] to [2.116] above.
2.143 The committee reiterates its concerns that the matters relating to some of 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 Attorney General's Department's Guide to Framing Commonwealth Offences Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences).[128]
2.144 In relation to the defence under proposed paragraphs 474.45D(1)(a) and (b), it is not clear to the committee how evidentiary material required to prove that the defendant was possessing, controlling or accessing violent extremist material in the monitoring, compliance or enforcement of a law could be peculiarly within a defendant's knowledge. Any material relating to the monitoring, compliance or enforcement of a law cannot be peculiar to a person's knowledge and would be readily apparent to police in the course of investigation.
2.145 The committee maintains similar concerns in relation to the defence under proposed paragraph 474.45(1)(g). If violent extremist material is possessed, controlled or accessed in the course of a public official's duties, whether it reasonable in the circumstances, it is not apparent to the committee how evidentiary matter relating to this is peculiar to the defendant's knowledge. The committee also considers that it is possible for this information to be identified in the course of investigation and disproved by the prosecution.
2.146 The committee notes that while knowledge or information relating to these evidentiary matters may be readily available to the defendant, this does not necessarily mean that it is significantly more costly or difficult for prosecution to disprove those matters.
2.147 It remains unclear to the committee why it is appropriate to reverse the evidential burden of proof in relation to the abovementioned offence-specific defences, and by extension, why it is not appropriate to disapply section 13.3 of the Criminal Code.
2.148 The committee requests the Attorney-General's further detailed justification as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) under proposed paragraphs 474.45D(1)(a), (b) and (g).
2.149 The committee makes no further comment in relation to the issue of the disapplication of section 13.3 of the Criminal Code Act 1995 as an alternative to specifying these abovementioned defences as offence elements.
2.150 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.[130]
2.151 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.[131]
2.152 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General's advice as to:[132]
• whether the term 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.
2.153 The Attorney-General advised that the definition of 'advocates' under existing subsection 80.2C(3) would be expanded to including a third category of activity, which includes 'praising the doing of a terrorist act or the commission of a terrorism offence where such praise might have the effect of leading another person to engage in a terrorist act or to commit a terrorism offence'.
2.154 The Attorney-General advised that there is a wide range of conduct that may fall within the definition of advocates and the government does not consider it appropriate to limit the definition beyond the ordinary meaning of the words contained in the legislation. Rather, this should be a matter for a court to consider on a case-by-case basis.
2.155 The Attorney-General advised that the glorification of terrorism and violent extremism through praise has been of increasing concern to Commonwealth law enforcement and intelligence agencies in recent years. Such glorification and praise can incite others to imitate or seek to engage in similar behaviour, furthering radicalisation.
2.156 The committee thanks the Attorney-General for this advice. The committee notes, however, that it remains unclear why 'praise' is not already captured by the existing definition of 'advocates', which is inclusive of terms such as 'promotes' and 'engages'.
2.157 In light of the above information, the committee draws this matter to the attention of senators and leaves to the Senate as whole the appropriateness of the expansion of the definition of 'advocates' in this context.
2.158 Item 5 of Schedule 4 to the bill seeks to introduce proposed section 12, which amends the Legislation (Exemptions and Other Matters) Regulation 2015 (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.[134]
2.159 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General's advice as to what circumstances justify the exemption from sunsetting for regulations made under subsection 102.1(1) of the Criminal Code.[135]
2.160 The Attorney-General advised that regulations made under subsection 102.1(1) of the Criminal Code are part of a broader counter-terrorism legislative framework which operate in accordance with the Intergovernmental Agreement on Counter-terrorism Laws 2004 (IGA). The IGA supports a referral of powers to the Commonwealth, which provides the Commonwealth with the requisite power to legislate regarding terrorist organisation. The Attorney-General also advised that regulations proscribing an organisation as a terrorist organisation cannot be done unilaterally by the Commonwealth and can only be done with formal consultation with the states and territories. Regulations made under subsection 102.1(1) of the Criminal Code would meet the policy criteria to be exempt from sunsetting in accordance with subsection 50(1) of the Legislation Act 2003.
2.161 Further, the Attorney-General advised that there are other safeguards to ensure terrorist organisation listings can be reviewed to ensure they remain appropriate. These safeguards include expanded parliamentary oversight by empowering the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to conduct own-motion reviews into listings instruments and providing that an individual or organisation may make an application for an organisation to be de-listed under subsection 102.7(1) of the Criminal Code, which would require the AFP Minister to review whether an organisation continues to meet the legislative thresholds for listing. The Attorney-General also advised that an instrument made to proscribe an organisation as a terrorist organisation would be subject to disallowance.
2.162 The committee thanks the Attorney-General for this response.
2.163 The committee welcomes the inclusion of safeguards such as PJCIS being enabled to conduct own-motion reviews into listings and any individual or organisation being able to make an application for an organisation to be de-listed. However, the committee does not consider that these mechanisms are a substitute for proper parliamentary oversight.
2.164 The committee notes that given the instrument is exempt from sunsetting, there would only be one opportunity to disallow the instrument, following which the instrument would not be remade and therefore will not be reviewed in future. Further, the committee also does not consider that disallowance alone is a sufficient safeguard, as it is only one process, that when combined with other parliamentary processes, ensures appropriate parliamentary oversight.
2.165 The committee's concerns in this regard are heightened due to the significant impact that the regulations may have on individual rights and liberties and the seriousness of offences within this context. Sunsetting is an important tool providing the parliament with oversight of such significant matters in delegated legislation. In this instance, the committee does not consider the necessity of working within an intergovernmental framework to override the importance of parliamentary scrutiny.
2.166 In light of the above the committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of exempting regulations made under subsection 102.1(1) of the Criminal Code (including terrorist organisation listings that would not expire unless delisted by the Australian Federal Police minister) from the default 10-year sunsetting period.
2.167 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
[109] 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 13 of 2023; [2023] AUSStaCSBSD 215.
[110] 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).
[111] Schedule 1, item 5, proposed section 80.2E.
[112] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 1–4.
[113] The minister responded to the committee's comments in a letter dated 30 October 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 13 of 2023).
[114] 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).
[115] Schedule 1, item 5, proposed paragraph 80.2H(10)(a).
[116] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 5–10.
[117] 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).
[118] 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.
[119] Schedule 2, item 3, proposed section 474.45B.
[120] 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.
[121] Schedule 2, item 3, proposed subsection 474.45A(2); Criminal Code Act 1995, subsection 100.1(2).
[122] Schedule 2, item 3, proposed subsections 474.45B(1) and 474.45C(1).
[123] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 10–12.
[124] 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).
[125] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 12 – 13.
[126] 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).
[127] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 16-18.
[128] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p. 50.
[129] 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).
[130] Schedule 3, item 2, substituted section 80.2C(3).
[131] Schedule 3, item 1, substituted subparagraph 80.2C(1)(a).
[132] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 13 –16.
[133] 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).
[134] Explanatory memorandum, p. 66.
[135] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 18 –19.
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