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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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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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2.2 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.
2.3 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.
2.4 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.
2.5 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.
2.6 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.
2.7 In Scrutiny Digest 13 of 2023 the committee requested that the Attorney-General table 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).[80]
2.8 In a letter dated 27 November 2023, the Attorney-General confirmed that the Government will table an addendum to the explanatory memorandum to the bill including examples of reasonable and unreasonable steps to be taken to cease public display of a prohibited symbol.
2.9 In light of the above the committee makes no further comment on this matter.
2.10 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. 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.
2.11 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.
2.12 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.
2.13 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.
2.14 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.
2.15 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), and 80.2M(3) and 80.2M(4).[83] In response, the Attorney-General advised that the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences) provides guidance on when offence-specific defences are appropriate, and that the offence-specific defences in the proposed subsections are consistent with this as they include matters 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.[84]
2.16 In Scrutiny Digest 13 of 2023, the committee noted that for a number of the offences the matters did not appear to be peculiarly within any person’s knowledge, and while knowledge or information relating to these evidentiary matters may be more readily available to the defendant, this does not necessarily mean that it is significantly more costly or difficult for prosecution to disprove. The committee requested the Attorney-General’s further 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).[85]
2.17 The Attorney-General reiterated his advice that the Guide to Framing Commonwealth Offences provides guidance on when offence-specific defences are appropriate. The Attorney-General also stated that the offence-specific defences in the proposed subsections are consistent with this as they include matters 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. The Attorney-General noted the relevant parts of the explanatory memorandum and statement of compatibility which justify the inclusion of these offence-specific defences.
2.18 The committee expresses its concern regarding the lack of engagement with the concerns the committee has raised in relation to these particular provisions. The committee reiterates its position that reversing the burden of proof interferes with the common law right to be presumed innocent and the ordinary duty of the prosecution to prove all elements of an offence.
2.19 Any reversal of the burden of proof should be adequately justified, and in this case the Attorney-General’s response did not provide any further information, and therefore has not satisfied the committee that these offence-specific defences are appropriate.
2.20 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing 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) rather than including these matters as elements of the offence.
2.21 The bill seeks to create offences relating to the use of a carriage service[88] (such as an internet or mobile telephone service) for violent extremist material, including accessing, obtaining, distributing, possessing and controlling such material.[89] 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'.[90] 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.[91] A maximum penalty of five years imprisonment would apply to these offence.[92]
2.22 In Scrutiny Digest 9 of 2023, the committee requested the Attorney-General’s advice as to whether the bill can be amended to, amongst other things, include clarity as to what is meant by ‘accessing’ violent extremist material.[93] The Attorney-General advised that the Criminal Code Act 1995 (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.
2.23 In Scrutiny Digest 13 of 2023, the committee considered that including in the explanatory memorandum the definition of ‘access’ under section 473.1 of the Criminal Code that is applicable to the offences under Schedule 2 of the bill would be helpful. As it remained unclear to the committee whether the definition of access could encompass inadvertently accessing violent extremist material that is displayed on a computer or some other output, such as through social media, the committee also requested 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.[94]
2.24 The Attorney-General advised that the government will table an addendum to the explanatory memorandum which includes information on the applicable definition of ‘access’.
2.25 The Attorney-General further advised that the new offence would not criminalise inadvertent access of violent extremist material because new paragraph 474.45B(2)(b) would provide that the fault element attached to paragraph 474.45B(1)(c) is recklessness. By operation of this fault element, a person who accidentally comes across violent extremist material on the internet without any warning from the context would not be caught by the offence, because they would not have been aware of a substantial risk that the material was violent extremist material. Further, the Attorney-General advised that section 474.45D sets out the defences that would be available in relation to this offence.
2.26 The committee thanks the Attorney-General for this response and for clarifying that the new offence would not criminalise inadvertent access of violent extremist material.
2.27 The committee welcomes the Attorney-General’s undertaking to
table an addendum to the explanatory memorandum, while retaining
its scrutiny
concerns in relation to the broad scope of this offence provision.
2.28 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).
2.29 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.
2.30 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 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.[97] The Attorney-General advised the matters are uniquely within the defendant’s knowledge and as such the defendant is best placed to adduce evidence demonstrating their purpose.
2.31 In Scrutiny Digest 13 of 2023, the committee considered that the matters relating to some of these defences are not of a nature that is peculiar to the defendant’s knowledge, for example as 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. The committee requested 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).[98]
2.32 The Attorney-General advised that the Guide to Framing Commonwealth Offences provides guidance on when offence-specific defences are appropriate. Further, that the offence-specific defences in the proposed subsections are consistent with this as they include matters 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. The Attorney-General noted the relevant parts of the explanatory memorandum and statement of compatibility which justify the inclusion of these offence-specific defences.
2.33 As with the Attorney-General’s response in relation to the reversal of the evidential burden of proof in particular provisions in Schedule 1 to the bill, the committee expresses its concern regarding the lack of engagement with the scrutiny issues the committee has raised in relation to proposed paragraphs 474.45D(1)(a), (b) and (g).
2.34 The committee reiterates its position that reversing the burden of proof interferes with the common law right to be presumed innocent and the ordinary duty of the prosecution to prove all elements of an offence. Any reversal of the burden of proof should be adequately justified, and in this case the Attorney-General’s response has not satisfied the committee that these offence-specific defences are appropriate.
2.35 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof under proposed paragraphs 474.45D(1)(a), (b) and (g) rather than including these matters as elements of the offence.
[78] 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 15 of 2023; [2023] AUSStaCSBSD 237.
[79] 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).
[80] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 57–60.
[81] The Attorney-General responded to the committee's comments in a letter dated 27 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023).
[82] 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).
[83] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 5–10.
[84] The Attorney-General 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).
[85] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 60–64.
[86] The Attorney-General responded to the committee's comments in a letter dated 27 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023).
[87] 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).
[88] 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.
[89] Schedule 2, item 3, proposed section 474.45B.
[90] Schedule 2, item 3. An 'intimidatory act' is defined in proposed subsection 474.45A(3) as 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.
[91] Schedule 2, item 3, proposed subsection 474.45A(2); Criminal Code Act 1995, subsection 100.1(2).
[92] Schedule 2, item 3, proposed subsections 474.45B(1) and 474.45C(1).
[93] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 10–12.
[94] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 64–66.
[95] The Attorney-General responded to the committee's comments in a letter dated 27 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023).
[96] 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).
[97] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 16–18.
[98] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 68–70.
[99] The Attorney-General responded to the committee's comments in a letter dated 27 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023).
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