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The Project on National Security Reform (PNSR) is a nonpartisan non-profit organization government structures need to be more agile and efficient in order to combat new threats such as terrorism, transnational crime, and rogue states.
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That is, they are the very type of convict — not just suspect — against whom restraints after expiry of sentence are justifiable. One factor that seems to have influenced the different recommendation of the COAG Review Committee is the weight it accorded a submission from, and discussions with, the AFP and possibly other agencies.

The report includes the following quote from the AFP submission:. The AFP considers that control orders remain a necessary and proportionate preventative measure and form an important part of the counter-terrorism toolkit. The removal of the control order regime would create a substantial vacuum in counterterrorism options, reducing the tools available to police to respond to the evolving trends of terrorist planning and modes of attack and increase the risk to community safety. It also accepted that aspects of the two COs that have been made were problematic.

However, it considered that those obstacles did not tell the whole story:. The real thrust of the UK control order system was the inability, for whatever reason, to prosecute the person who posed a terrorism risk in the community. That, as we see it, is essentially the same basis that underlines and frames the Australian legislation. That is, there is, other than by way of criminal prosecution, a need to protect the community from attack and prevent the carrying out of a terrorist act on these shores.

The offence of associating with terrorist organisations was inserted into the Criminal Code by the Anti-terrorism Act No. The evidence does not persuade the Committee of the need for the offence in the first place, given the already wide ambit of terrorism offences under current law in Australia, the breadth of the definition of 'terrorist organisation' contained in the Criminal Code , and other existing laws such as the law of conspiracy and accessory liability.

It went on to make six recommendations in relation to the association offence, two of which were addressed through amendments. The Sheller Review recommended the association offence be repealed. The Government does not support this recommendation. The Government considers that there is no justification for removing the offence nor is there evidence that the offence is being misused to capture legitimate activities.

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The Government does, however, consider that the fault elements could be clarified, first by applying strict liability to the question of whether the organisation is a proscribed or listed organisation and secondly by introducing a new offence that the person was reckless as to the nature of the organisation. The PJCIS shared the concerns of the Sheller Review, and recommended that the offence be re-examined, taking into account the recommendation of the earlier review. The Government supports recommendation The Government will refer the matter for examination by the new National Security Legislation Monitor once appointed.

The majority of the Committee has significant problems with the very existence of the association offence in section The majority of the Committee is persuaded by the submissions received, however, that section Fundamentally, the criminalisation of mere association is a troubling concept. It is perfectly plain that, where mere association transmutes into an action or actions in preparation for a terrorist act with the need to prove the statutory intentions and purposes inherent in that legislative phrase , prosecution will be an appropriate consideration.

There is no empirical evidence, however, to demonstrate that the presence of the association offence has had either of these effects. At the same time, there is no empirical evidence to show that the mere presence of the offence has offended Muslim sensibilities, at least to any significant extent. Ultimately, however, the majority consider that the section is neither necessary nor effective Rather, the report focuses specifically on the appropriateness of the exceptions to it. Essentially, the INSLM argues that the exception concerning close family associations is illogical—that meeting with a family member intending thereby to assist a terrorist organisation to expand or continue to exist could never reasonably be regarded as a matter of family or domestic concern.

Further, several of the recommendations made by those reviews have been made previously and not taken up by the Government of the day. The following table outlines recommendations made by the INSLM and the COAG Review that accord with or contradict recommendations of earlier reviews, the content of earlier recommendations and information on any relevant government responses. The Committee notes that, in the criminal law context, an officer is not necessarily required to demonstrate that information can be obtained another way.

However, there is a persuasive argument that, in the context of extraordinary and coercive powers that are to be used as a measure of last resort, the issuing authority should be independently satisfied that other methods of collection would not be effective. This will require ASIO to provide a factual basis to their claim that other methods of intelligence gathering would not be effective.

It will also act as a strong safeguard against potential misuse of coercive questioning powers, for example, to lay the groundwork for charge of false and misleading information, where the information is already known to the agency. In its response , the Government rejected this recommendation partly on the basis that issuing authorities are not in a position to make such an assessment: The Committee recommends that the penalty for disclosure of operational information be similar to the maximum penalty for an official who contravenes safeguards.

When considering an appropriate penalty for the secrecy offences, the INSLM compared them to others in the ASIO Act and elsewhere and concluded that a maximum penalty of two years would be consistent. Controlled operations are covert operations carried out for the purpose of obtaining evidence that may lead to prosecution for a serious offence.

Under the scheme, participants in a controlled operation who may be law enforcement officers or other authorised participants such as informants are protected from criminal liability for engaging in conduct in the course of, and for the purposes of, the controlled operation. There are also a range of safeguards within the scheme, including restrictions on the particular conduct that may be authorised and the duration of operations.

So, for example, under such a scheme if DSD was to intercept the communications of an Australian person outside Australia a ministerial authorisation might be required. However, if ASIS or ASIO was to ask an agent what they know about an Australian person who may be allegedly involved in terrorist activity or to task an agent to try to find out if any Australian persons are present at a terrorist training camp, specific ministerial authorisation would not be required. The case for a special terrorism law regime is made out on the basis that terrorism is qualitatively different from other types of serious crime.

Terrorist violence is typically directed toward the public to create fear and promote political, religious or ideological goals. We believe that terrorist violence is seen by the public as something distinctive from other serious crime. A serious criminal offence committed for personal reasons, no matter how heinous, does not fall into that category and should be prosecuted under separate offence provisions.

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It was not devised or used for the purpose of defining elements of a criminal offence requiring to be proved by the prosecution. The Government agrees that the way in which the threat of terrorist action is dealt with in the Criminal Code should be given further consideration. Any change to the definition of terrorist act will need to take into account the impact that change would have on those provisions and any relevant powers to inquire into terrorist activity.

The Government notes that there is operational experience to support the need for threat offences either in their current or a modified form , particularly from the point of view of early intervention. As the Sheller Review and PJCIS review both raised issues in relation to the concept of threat within the definition, a clarification to the definition would assist in making it clear that the threats of action relate to damage which is likely to be caused as a result of the terrorist threat as opposed to damage which is actually caused by a terrorist act.

The Committee recommends that an additional offence be inserted into Part 5. Recommendation 13 The Committee recommends that a separate hoax offence be adopted but that penalties reflect the less serious nature of a hoax as compared to a threat of terrorism. Two recent incidents, involving the use of the postal service to carry a hoax explosive device, and the use of the internet to make a hoax threat to use chemical weapons on public utilities, have demonstrated that existing hoax offences that apply in other contexts may not be as effective for investigating and prosecuting elaborate terrorist hoax offences.

The Governments considers that hoaxes relating to terrorist activity should be distinguished from other types of hoax incidents because of the potential to cause significant alarm and disruption in the community, and to divert valuable law enforcement, emergency services and related resources in responding to those hoaxes. The Criminal Code currently contains offences for the commission of hoaxes that are made either via the post or a telecommunications network. However, if a terrorist-related hoax is committed without the use of the post or a telecommunications network, it will not be captured by the offence.

Counter-terrorism and national security legislation reviews: a comparative overview

Given the potential for a terrorist-related hoax to cause significant alarm to the community and to divert valuable law enforcement and emergency services, the creation of a terrorist-related hoax offence is warranted. Recommendation 9 The Committee recommends that psychological harm not be included in the definition of a terrorist act.

Alternatively, that the Government consult with the States and Territories on this issue and give consideration to the question in light of other amendments to the definition. While there is general appeal in aligning the notion of harm with the Criminal Code , popular notions of terrorism involve, for example, terrorist bombings intended to kill and cause serious physical harm.

The issue is more problematic than seeking a simple internal consistency with the Criminal Code , and in our view, requires more consideration.

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The Government supports the alternative option in this recommendation to consult the States and Territories to give consideration to including psychological harm within the definition of terrorist act. Psychological harm can be just as damaging as physical harm. Fear associated with the threat of terrorism or the implications associated with the commission of a terrorist act manifest beyond tangible physical harm.

The intention here is to extend the notion of harm to include psychological harm. This is a form of injury now well recognised in the medical field. It has a particular resonance in relation to harm suffered by participants in warfare and victims of mass casualty attacks. It would also extend to the harm suffered by hostages, which we will next address.

The Committee recommends that subsection The Committee recommends that the definition of terrorism recognise that international organisations may be the target of terrorist violence. The Government supports recommendation 11 to recognise that international organisations, such as the United Nations, may be the target of terrorist violence.

The Committee does not recommend that the present method of proscription of a terrorist organisation be changed. Recommendation 3 The SLRC recommends that the process of proscription be reformed to meet the requirements of administrative law. The process should be made more transparent and should provide organisations, and other persons affected, with notification, unless this is impracticable, that it is proposed to proscribe the organisation and with the right to be heard in opposition.

In this case there should be built into that process a method for providing a person, or organisation affected, with notification, if it is practicable, that it is proposed to proscribe the organisation and with the right to be heard in opposition. An advisory committee, established by statute, should be appointed to advise the Attorney-General on the case that has been submitted for proscription of an organisation. The committee would consist of people who are independent of the process, such as those with expertise or experience in security analysis, public affairs, public administration and legal practice.

The role of the committee should be publicized, and it should be open to the committee to consult publicly and to receive submissions from members of the public. The Government considers that the current process of proscription conforms with administrative law and provides for sufficient accountability mechanisms. Under the AD JR Act this is a review as to whether the decision to specify an organisation was made in accordance with the law. This enables a court, for example, to determine whether the decision that the Attorney-General is satisfied that an organisation is assisting in the doing of a terrorist act, was not made in bad faith or at the direction or behest of another person or is so unreasonable that no reasonable person could have so exercised the power.

The Government considers that the providing notice prior to listing could adversely impact operational effectiveness and prejudice national security. The Government is not persuaded that advance notification would provide any greater transparency to the existing process and considers that such notification could lead to confusion with the listing process. Allowing for a right to be heard in opposition would necessarily involve advance notice as a pre-condition.

Once an organisation is listed, the legislation does allow for a case to be put to the Attorney-General outlining why the organisation should be de-listed. The Government considers that the current listing process contains sufficient safeguards, including judicial review and parliamentary oversight including a power to disallow a regulation proscribing a terrorist organisation , and that it is more appropriate for the proscription power to be vested with the Executive.

The Government considers that opening up that advisory process to a public committee would be inappropriate given the sensitivity of the information. It would also unnecessarily complicate review processes. See comments on recommendation 3 in relation to the provision of advance notification and right to be heard in opposition.

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The Government notes that the SLRC made this recommendation only in the context of the possible adoption of recommendation 3. As noted above, the Government does not support a reform of the proscription process as set out in recommendation 3. To date, all of the charges for offences related to terrorist organisations have, or will be, prosecuted on the basis that the organisation was a terrorist organisation within paragraph a of the definition. At the time the offences where committed none of the respective organisations were proscribed organisations. If the definition was limited to proscribed terrorist organisations it would have prevented those charges being laid, and would prevent future prosecutions for offences associated with new or emerging terrorist organisations that had not yet been identified or proscribed.

Operational experience also supports the need for the dual definition, particularly as recent activities such as Operation Pendennis , and current investigations, dealt or are dealing with terrorist organisations that would fall within paragraph a of the definition. This subsection deals with a situation where an organisation directly praises the doing of a terrorist act. The SLRC recommends that paragraph c of section The grounds for proscribing an organisation were expanded by the Anti-Terrorism Act No.

The Government does not support this recommendation and considers that amendments at this time would be premature as the legislation has only recently been enacted and has yet to be tested by the courts.

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In addition, the Government has some concerns that elevating the requirement in paragraph c to a substantial risk could undermine the operational effectiveness of the provision which is aimed at early intervention and prevention of terrorism. Advocacy as a basis for being listed as a terrorist organisation was also considered by the PJCIS in its inquiry. The PJCIS recognised the concerns raised about the breadth of the paragraph in the context of the Sheller Review and evidence to its own inquiry, but was not convinced of an immediate need for repeal. The Committee recommends that the Government give consideration to postponing commencement of a listing until after the Parliamentary disallowance period has expired.

The Committee recommends that the Government give consideration to reverting to the initial legislative approach of postponing commencement of a listing until after the disallowance period has expired. The Committee recognises that the Attorney-General should, in exceptional cases, retain the power to begin the commencement of a listing on the date the instrument is lodged with the Federal Register of Legislative Instruments where the Attorney-General certifies that there are circumstances of urgency and the immediate commencement of the listing is required for reasons of national security.

In making its recommendation, the PJCIS noted that all of the listings that had so far been made could have commenced after the disallowance period without any prejudice to national security. Such methods should be effectively responsive and personal to the specific information needs of ethnic and religious communities.

It also noted it would make information about listings available in the eight most commonly spoken languages in Australia. The Committee recommends that section The redraft should make it an element of the offence either that the training is connected with a terrorist act or that the training is such as could reasonably prepare the organisation, or the person receiving the training, to engage in, or assist with, a terrorist act.

The SLRC recommends that the scope of the offence should be extended to cover participation in training. The SLRC recommends that neither the offence nor any element of it should be of strict liability. Recommendation 16 The Committee recommends that the training offence be redrafted to define more carefully the type of training targeted by the offence.

Alternatively, that the offence be amended to require that the training could reasonably prepare the individual or the organisation to engage in, or assist with, a terrorist act. The Government supports part of this recommendation and agrees that the scope of the offence should be extended to cover participation in training. The Government does not support the recommendation that the training be specifically connected with a terrorist act or preparing the organisation or individual to engage in, or assist with, a terrorist act.

The offences in relate to terrorist organisations. Those organisations by definition are engaged in terrorist acts. It is appropriate that providing training to, or receiving training from, such organisations is an offence without the training itself having to be connected to a terrorist act. Recent operational experience has highlighted the risk that training with terrorist organisations can equip persons with capabilities for use in Australia.

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