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Australia: Foreign Fighters Bill Introduced in Parliament

(Sept. 30, 2014) On September 24, 2014, the Australian Attorney-General, George Brandis, introduced the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 in the Senate. (Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Parliament of Australia website.)

Background and Related Bills

The introduction of the bill follows a comprehensive review of Australia’s counterterrorism legislation, which, Brandis said, showed that existing law “does not sufficiently address the emerging and unique domestic security threats posed by the return of Australians who have participated in foreign conflicts, trained with extremist groups, or people in Australia who provide support to those who may seek to do us harm.” (Press Release, Hon. George Brandis QC, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill (Sept. 23, 2014).)

This is the second national security-related bill introduced this year, following the National Security Legislation Amendment Bill (No.1) 2014, which focuses on the powers of the Australian intelligence agencies to gather intelligence for the purpose of protecting national security. That bill was passed by the Senate on September 25, 2014, and could be passed by the House of Representatives as early as this week. (National Security Legislation Amendment Bill (No.1) 2014, Parliament of Australia website; Ben Grubb, Terror Laws Clear Senate, Enabling Entire Australian Web to Be Monitored and Whistleblowers to Be Jailed, SYDNEY MORNING HERALD (Sept. 25, 2014).)

The 2013 report of the Parliamentary Joint Committee on Intelligence and Security on its “Inquiry into Potential Reforms of Australia’s National Security Legislation” also discussed a proposal for a mandatory data retention system, which will potentially be included in a third bill. (Parliamentary Joint Committee on Intelligence and Security, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (May 2013); Joint Press Conference, Hon. Tony Abbott MP, New Counter-Terrorism Measures for a Safer Australia; Racial Discrimination Act; Malaysia Airlines Flight MH17; Baby Gammy (Aug. 5, 2014).)

Provisions in the Foreign Fighters Bill

If enacted, the “foreign fighters” bill would amend a number of different laws, including federal criminal laws, passport and immigration laws, customs legislation, anti-money laundering and counterterrorism financing provisions, and the legislation governing the Australian Security Intelligence Organisation (ASIO). (Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014: Explanatory Memorandum 3 (last visited Sept. 26, 2014).) The following are among the key provisions in the bill:

Extension of Special Powers

  • The Australian Security Intelligence Organisation Act 1979 (Cth) would be amended to extend the availability of special powers relating to terrorism offenses for a further ten years. These powers include the ability to obtain special questioning warrants and questioning and detention warrants. (Id.; Australian Security Intelligence Organisation Act 1979 (Cth), pt 3 div 3; see also Lisa White, Australia: Terrorism Laws: Questioning Warrants, Law Library of Congress website (Oct. 2008).)
  • Special powers related to terrorist acts and terrorism offenses in the Crimes Act 1914 (Cth) would also be extended for ten years. These include stop-and-search powers, emergency entry to premises without a warrant, and the power to declare a certain area to be a prescribed security zone. (Explanatory Memorandum, supra, at 19; Crimes Act 1914 (Cth) pt IAA div 3A.) In addition, the bill would lower the threshold for arresting a person without a warrant for terrorism offenses from “believes” on reasonable grounds to “suspects” on reasonable grounds. (Explanatory Memorandum, supra, at 21 & 93.)
  • The application of the provisions in the Criminal Code Act 1995 (Cth) on control orders and preventative detention orders, which were due to expire in 2015, would also be extended for ten years, and aspects of these provisions would be amended to include additional safeguards and criteria. For example, the criteria for issuing a control order would be expanded to include that the person engaged in armed hostilities in a foreign state, had been convicted of an offense related to terrorism in Australia or a foreign country, or had received training from a terrorist organization. (Explanatory Memorandum, supra, at 5–6 & 31–38.)
  • Control orders can be used to impose obligations, prohibitions, or restrictions on persons in order to protect the public from terrorist acts. (Criminal Code Act 1995 (Cth) div 104, http://www.comlaw.gov.au/Series/C2004A04868 ; see also Lisa White, Australia: Terrorism Laws: Control Orders, Law Library of Congress website (Oct. 2008).)

Re-Enactment of Provisions on Foreign Incursion and Recruitment

The provisions in the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) would be re-enacted, with some amendments, as a new Part 5.5 of the Criminal Code Act 1995. The penalties for foreign incursion offenses would be aligned with those for terrorism offenses contained in Part 5.3 of the Criminal Code, and wording related to some offenses would also be aligned to ensure consistency. (Explanatory Memorandum, supra, at 6–7 & 43–46; Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).)

New Criminal Code Offenses

The Criminal Code Act 1995 would also be amended to include two new offenses: “advocating for terrorism” and entering a “declared area” in a foreign country. “Advocating for terrorism” would include intentionally counseling, promoting, encouraging, or urging the commission of a terrorist act and being reckless as to whether another person will engage in a terrorist act. (Explanatory Memorandum, supra, at 28.) The other new offense, entering or remaining in a “declared area,” allows the Minister of Foreign Affairs to designate a declared area in a foreign country for the purposes of the offense if he or she is satisfied that a terrorist organization listed under the Criminal Code Act is engaging in hostile activity in that area. A defense is available where an individual provides evidence that he or she had a listed legitimate purpose or purposes for entering or remaining in a declared area. (Id. at 46.)

New Power to Suspend Travel Documents

  • A new power would be added to the Australian Passports Act 2005 (Cth) to allow suspension of a person’s Australian travel documents f
    or 14 days if requested by ASIO. (Id. at 4 & 79.) ASIO currently has the ability to request that a person’s Australian passport be cancelled if it suspects on reasonable grounds that the person “is likely” to engage in conduct that might prejudice the security of Australia or a foreign country. The new provisions will allow a passport suspension request to be made where ASIO suspects that a person “may” leave Australia to engage in such conduct. (Id. at 11.)
  • New provisions would also allow for a person to not be notified of a decision to refuse or cancel his or her passport if that is needed to protect national security or ensure that an investigation of a terrorism offense is not adversely affected. (Id. at 4 & 12.)

New Emergency Visa Cancellation Power & Enhanced Access to Personal Identifiers

  • The Migration Act 1958 (Cth) would also be amended to include a new emergency visa cancellation power “where a non-citizen outside of Australia might be a direct or indirect threat to national security.” (Id. at 8 & 60.)
  • Various other amendments would enable personal identifiers to be obtained from all persons, including Australian citizens who enter or depart Australia, and to expand the purposes for which personal identifiers may be accessed and disclosed to ensure that these “can be used to assist in identifying and authenticating the identity of a person who may be of national security concern.” (Id. at 8 & 65–71.)

Human Rights Implications

The Explanatory Memorandum that accompanies the bill assesses the amendments in the light of rights protected under the International Covenant on Civil and Political Rights and other international treaties, including the rights to protection against arbitrary and unlawful interferences with privacy, freedom from arbitrary detention and arrest, freedom of expression, freedom of association, and freedom of movement. (Id. at 10–75.) It concludes that

[t]he Bill engages a range of human rights and is compatible with human rights because it promotes some rights and to the extent that it may limit particular rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective. (Id. at 75.)

Next Step

Following its introduction in the Senate, the bill was referred to the Parliamentary Joint Committee on Intelligence and Security. The Committee’s report on the bill is due by October 17, 2014. (Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Parliamentary Joint Committee on Intelligence and Security website.)