And Then There Were Three Tranches: Counter-Terrorism Legislation Amendent (No. 1) 2014

Thursday 30 October 2014 @ 11.48 a.m. | Crime

The next step to tougher security powers, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 was introduced into the Senate by the Federal Attorney-General, Senator George Brandis (the AG) on 29 October 2014 and has reached second reading stage, where it has been referred to the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) for inquiry and report back to the Parliament by 17 November 2014.

Bill Proposes Amendments in Three Key Areas

The legislation proposed to be amended by the Bill is the Criminal Code Act 1995 (Cth)  (the Criminal Code) and Intelligence Services Act 2001 (Cth)(the IS Act) .

The amended legislation will see three key areas of amendment as indicated by the AG in his second reading speech, namely:

  • facilitating the Australian Secret Intelligence Service (ASIS) supporting and cooperating with the Australian Defence Force (ADF) on military operations;
  • enhancing the arrangements for the provision of emergency Ministerial authorisations to IS Act agencies to undertake activities in the performance of their statutory functions; and
  • enhancing the control order regime to allow the Australian Federal Police (the AFP) to seek control orders in relation to a broader range of individuals of security concern and to streamline the application process.

But Wait There is More: Tranche Three

It is reported by The Australian that the AG told the Senate that:

". . . there was an 'urgent' need to pass the new measures, primarily because of the Australian Defence Force mission in Iraq against Islamic State."

The AG's statement was to indicate that a central and key component to the Bill is a proposed expanded power for ASIS to share information with ADF personnel about terror suspects. Under the new Bill, security agency heads would be given the power to make “limited emergency authorisations” to collect intelligence if the minister is unavailable, but the authorisations would last for only 48 hours.

The AG explained at second reading that the proposed amendments were being raised in a separate Bill (a third tranche) to the two major tranches of national security legislation already introduced and in the Spring sittings:

". . . to ensure that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has an opportunity to conduct a review of them, and report to the Parliament on its findings.
(A report as already stated due 17 November 2014)."

The previous two tranches are:

  • the National Security Legislation Amendment Bill (No 1) 2014 (which was passed on 1 October and received Royal Assent on 2 October 2014); and
  • the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (introduced on 24 September 2014, presently before the Parliament and expected to pass with the next week).

(For more on these first two tranches see our previous posts at New Anti-Terrorism Laws Pass the Senate and Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014: Second Tranche of National Security Legislation).

Amendments to the Criminal Code

The amendments proposed to the Criminal Code are said by the AG to further strengthen the control order regime and enhance the capacity of law enforcement agencies to protect the public from terrorist actions.

The amendments are said to allow the AFP to request, and an issuing court to make, a control order in relation to those who "enable" and those who "recruit". A measure said by the AG to target individuals who though they may not directly participate in terrorist acts through their conduct in:

". . . supporting and facilitating terrorism through the provision of funds and equipment, or by recruiting vulnerable young people to champion their cause – and even to die for it – [are] instrumental to carrying out terrorist conduct."

This amounts to an expansion of the control order regime and according to the AG is intended to:

". . . help disrupt terrorism at an earlier stage, keeping Australia and Australians safe and secure".

The amendments to the control order regime are also said by the AG to "streamline the application process" reducing the volume of material that must be provided to the AG when seeking consent to request an interim control order, and extend the time for obtaining the AG's consent when making an urgent request to an issuing court without first obtaining the AG's consent.

Finally, the Criminal Code amendments will require the AG to advise the PJCIS before amending a regulation that lists a terrorist organisation by adding an alias or removing a former name and to allow the PJCIS to review any proposed change during the disallowance period.

Reaction and Comment

As The Australian reports on the ever increasing powers going to ASIO, ASIS and other agencies:

"The new [latest/third] counter-terrorism Bill appears likely to spark a debate over the scale of the security powers because it gives ASIO and ASIS chiefs the ability to make 'emergency authorisations' to collect vital intelligence when ministers are unavailable to issue the approvals required under existing law."

The other area of concern is the extension of AFP power with respect to "control orders" to cover individuals "who do not directly participate":

"It also allows the AFP to request a control order from the courts to target individuals who “enable” terrorism or “recruit” suspects, so their movement can be restricted even if they do not directly participate in an attack."

Certainly the fear of "homegrown terrorism" is a matter requiring response and not to be treated lightly but it might be equally as valid to fear the effect of over-reaction on a country where freedom of speech, opinion and religion are held to be core values.

The Australian reported on the passing of the Foreign Fighters Bill saying that:

"Concerns about the new Foreign Fighters Bill, including its impact on freedom of speech and freedom of movement, were put aside yesterday when the ­ Coalition, Labor, the Palmer United Party and others voted together in the upper house to approve the new powers."

Perhaps it should be hoped that concerns for the impacts on freedom of speech and movement are not put aside too long.

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