Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014: Key Amendments

Thursday 25 September 2014 @ 10.52 a.m. | Crime

Yesterday, the Federal Government introduced the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 into the Senate.  The Bill introduces the second “tranche” of change to national security legislation, following on from the National Security Legislation Amendment Bill (No. 1) 2014.  The third tranche of legislation, relating to metadata retention, will reportedly be introduced before the end of this year.

The Foreign Fighters Bill makes a large number of amendments - for a complete list of the amended legislation, see TimeBase’s LawOne service.  Major amendments include the new “declared areas” criminal offence, increased powers for travel document suspension, increased detention powers for customs, and an expanded “control orders” scheme.

Entering, or remaining in, declared areas

One of the most discussed amendments in this piece of legislation is the creation of a new offence, “for entering, or remaining in, an area in a foreign country that is the subject of a declaration under new section 119.3”.  The Crimes (Foreign Incursions and Recruitment) Act 1978 would be wholly repealed and its provisions transplanted into the Commonwealth Criminal Code. Under the new section 119.3, the Foreign Affairs Minister:

“may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.”

The declaration could cover an entire country, and would last for three years unless revoked sooner.

A “complete defence” can be provided if the person enters, or remains in, the area solely for a “legitimate purpose”.  The listed purposes are:

  • providing aid of a humanitarian nature;
  • satisfying an obligation to appear before a court or other body exercising judicial power;
  • performing an official duty for the Commonwealth, a State or a Territory;
  • performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;
  • performing an official duty for the United Nations or an agency of the United Nations;
  • making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;
  •  making a bona fide visit to a family member; and
  • any other purpose prescribed by the regulations.

Travel Document Suspension

Amendments to the Australian Passports Act 2005 (Cth) would allow the Minister for Foreign Affairs to temporarily suspend a person’s travel documents where ASIO suspects on reasonable grounds that the person “may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country.  Currently ASIO must suspect on reasonable grounds that a person “would be likely to engage in conduct…”  However, the suspension would only be effective for 14 days.  It would be an offence to refuse to surrender a suspended passport if an officer demands it.

Customs’ Detention Powers

Sangeetha Pillai, writing for The Conversation, summarised the amendments to Customs Act 1901:

“the Bill enables Customs officers to detain a person when they feel satisfied on reasonable grounds that the person “is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country”. This considerably widens existing powers. Currently, Customs detention is allowed only where a person is reasonably suspected of having committed a serious Commonwealth offence, punishable by imprisonment of three years or more.”

Control Orders

The amendments to the Criminal Code expand the existing scheme for control orders, and will now:

“authorise an issuing court to make an interim control order in relation to a person where the court is satisfied on the balance of probabilities that the person has provided training to, received training from, or participated in training with a listed terrorist organisation, has engaged in a hostile activity in a foreign country or has been convicted in Australia or a foreign country of an offence relating to terrorism, a terrorist organisation or a terrorist act.”

Sangeetha Pillai notes that “a person need not be found guilty of an offence to be subjected to a control order.”

Cancellation of Welfare

The amendments to various pieces of social security legislation would allow the Attorney-General discretion to cancel welfare payments “for individuals whose passports have been cancelled or refused, or whose visas have been cancelled, on national security grounds.”  The Explanatory Memorandum for the Bill says:

“It is not intended that every person whose passport or visa has been cancelled on security grounds would have their welfare payments cancelled, but would occur only in cases where it is appropriate and justified.”

Other Amendments

  • Expanded definition of “terrorism offence” in the Crimes Act 1914 (Cth)
  • New Criminal Code offence of “advocating terrorism”
  • Expanding the definition of terrorist “training” in the Criminal Code

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