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4.37 Prior to the amendments to Division 102 made by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth), an organisation could be listed as a terrorist organisation only if it already had been formally declared as such by the United Nations Security Council, or if a dedicated piece of legislation had been passed by the Australian Parliament in the relevant case.
4.38 The Australian Government argued that this mechanism was too restrictive and cumbersome to meet Australia’s particular security needs. For example, the Security Council might be slow to act in the case of an organisation that mainly posed a regional, rather than an international, threat; or the Security Council might be influenced by political considerations that are not shared by Australia. As noted above, listing now proceeds through the making of a regulation, and no longer relies on prior Security Council resolutions.
4.39 Before these changes, it could have been argued that there was a need to retain the unlawful associations provisions in the Crimes Act, since the high bar of
identification as a ‘terrorist organisation’ by the Security Council made listing difficult, and therefore left gaps in the law which terrorists could exploit. However, the new listing procedures are not subject to the same constraints.
4.40 The Security Legislation Review Committee (the Sheller Committee), chaired by the Hon Simon Sheller AO, conducted a review of the operation and effectiveness of the counter-terrorism laws, including Divisions 101 and 102.53 The review was a statutory requirement of the Security Legislation Amendment (Terrorism) Act 2002 (Cth), and concluded in June 2006.54
4.41 The Sheller Committee—which comprised, among others, the Commonwealth Ombudsman, the Human Rights Commissioner and the Privacy Commissioner— looked in detail at the proscription of terrorist organisations and the associated offences. It found that—while to date there was no evidence of excessive or improper use of the provisions—some parts of the Criminal Code should be repealed or changed because of their potential impact on human rights.55
4.42 In particular, the Sheller Committee considered that the process by which an organisation is listed does not allow members of an organisation to know or answer in advance the allegations against the group. Given that, once an organisation is proscribed, its members are liable to serious criminal penalties, the Committee recommended that a fairer and more transparent process should be adopted. Some members of the Committee supported a judicial process (which would be similar to the process under the unlawful association provisions), whereby an application is made to the court. Other members considered that the process should remain an executive one, however, with the Attorney-General being advised about whether an organisation should be proscribed by an independent committee that would conduct public hearings and receive submissions.56
4.43 Other relevant recommendations were that:
• consideration should be given to amending the Code so that proscription is the only method by which an organisation may be declared a terrorist organisation;57 53 Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006).
54 Security Legislation Amendment (Terrorism) Act 2002 (Cth) s 4(1).
55 Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006), 4.
For a discussion of the recommendations of the Committee in relation to the treason offences, see Ch 11.
56 Ibid, Recs 3 and 4.
57 Ibid, Rec 10.
96 Fighting Words
• s 102.8, which creates an offence of ‘associating with terrorist organisations’, should be repealed;58 and
• s 102.7 should be amended so that ‘providing support to a terrorist organisation’ cannot be construed in any way to extend to the publication of views that appear to be favourable to the proscribed organisation and its stated objective.59 Submissions and consultations
4.44 In response to Issues Paper 30 (IP 30), a number of submissions shared the view that the terrorist organisation offences rendered the unlawful associations provisions unnecessary. The Australian Federal Police indicated that, in practice, they had not used the unlawful associations provisions, and expressed satisfaction with the framing of the terrorist organisation offences.60 The Commonwealth Director of Public Prosecutions agreed that the definition of a terrorist organisation was likely to be sufficiently broad to cover effectively the activities of any group that previously would have been considered for designation as an unlawful association.61
4.45 Victoria Legal Aid agreed that there is no longer any need to retain these provisions, ‘given that Division 102 now provides a simple procedure for protecting the safety of Australians—by proscribing terrorist organisations and criminalising specific conduct in relation to those organisations’.62
4.46 The New South Wales Council for Civil Liberties submitted that Part IIA of the Crimes Act now seems redundant given the powers enacted under the anti-terrorism legislation in the Criminal Code in recent years with regard to the proscribing of terrorist organisations.63 This view was shared by a number of other lawyers and commentators with whom the Inquiry consulted.64
4.47 ARTICLE 19 noted that:
While we have a number of concerns with the provisions relating to the proscription of ‘terrorist’ organisations introduced in 2002, we consider that these provisions [need] to be at least more causally linked to proscribing on the basis that an association may pose a threat to national security.
Furthermore, the scope of the unlawful association provisions have been progressively eroded by context-specific legislation which supersedes the latter’s 58 Ibid, Rec 15.
59 Ibid, Rec 14.
60 Australian Federal Police, Consultation, Canberra, 26 April 2006.
61 Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.
62 Victoria Legal Aid, Submission SED 43, 13 April 2006.
63 New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006.
64 R Connolly and C Connolly, Consultation, Melbourne, 5 April 2006; Human Rights Lawyers, Consultation, Sydney, 29 March 2006; D Neal, Consultation, Melbourne, 4 April 2006; M Weinberg, Consultation, Melbourne, 3 April 2006; B Saul, Submission SED 52, 14 April 2006.
4. Unlawful Associations 97 application, including the Workplace Relations Act 1996 (Cth) and the counterterrorism amendments to the Criminal Code in 2002.65
4.48 The Attorney-General’s Department noted that ‘circumstances have changed dramatically since the enactment of Part IIA. The terrorism provisions address contemporary threats to the Australian community’.66
4.49 In DP 71, the ALRC proposed that the unlawful association provisions should be repealed.67 Significant support was expressed for this proposal,68 and no dissenting or alternative view was expressed to the ALRC.
4.50 The ALRC concludes that the unlawful associations provisions are unnecessary and should be repealed. It is difficult to imagine a practical circumstance in which a group advocating the overthrow of the Constitution or the established government does not have an accompanying intention to advance a particular cause or coerce or influence a governmental authority. If such a case should arise, the ALRC agrees with the Gibbs Committee that existing criminal laws covering murder, assault, abduction, damage to property or conspiracy—or incitement to any of the above activities—would be sufficient to deal appropriately with offenders.69
4.51 In Chapter 2, the ALRC recommends that, due to its historical connotations, the term ‘sedition’ should be removed from the federal statute book. There is no sound reason to preserve an anachronistic definition of seditious intention in Part IIA of the Crimes Act.
4.52 Repeal of the unlawful associations provisions will not leave a gap in federal criminal law. Both the definition of a ‘terrorist act’ and a ‘terrorist organisation’ under the Criminal Code are sufficiently broad to cover the types of organisations that advocate or urge politically motivated violence. As outlined above, the Sheller Committee has made a number of recommendations to amend the terrorist organisation provisions of the Criminal Code to allow greater procedural fairness in the listing process and to limit the scope of the offences so it is clear that only persons who 65 ARTICLE 19, Submission SED 14, 10 April 2006.
66 Australian Government Attorney-General’s Department, Submission SED 31, 12 April 2006.
67 Australian Law Reform Commission, Review of Sedition Laws, DP 71 (2006), Proposal 11–1.
68 Support for the proposal was received from Media Entertainment and Arts Alliance, Submission SED 117, 3 July 2006; National Tertiary Education Union, Submission SED 118, 3 July 2006; R Douglas, Submission SED 87, 3 July 2006; Sydney PEN, Submission SED 88, 3 July 2006; Victoria Legal Aid, Submission SED 79, 3 July 2006; Law Institute of Victoria, Submission SED 70, 28 June 2006; Australian Press Council, Submission SED 66, 23 June 2006; Arts Law Centre of Australia, Submission SED 65, 6 June 2006; Public Interest Advocacy Centre, Submission SED 125, 7 July 2006.
69 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), [10.2].
98 Fighting Words provide actual ‘support’ to an organisation are guilty of an offence.70 Whether or not these recommendations are taken up by the Australian Government, the terrorist organisations provisions are a more modern and appropriate way to deal with organisations that advocate politically motivated violence, rather than the outdated definitions found under Part IIA.
Recommendation 4–1 Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA, 30FC, 30FD, 30G, 30H and 30R of Part IIA of the Crimes Act 1914 (Cth), concerning unlawful associations, should be repealed.
Other offences under Part IIA
4.53 Part IIA also contains three other offences that do not directly rely on the concept of an unlawful association.
4.54 Section 30C is another sedition-type provision, which makes it an offence punishable by imprisonment for up to two years for any person, ‘who by speech or
writing advocates or encourages’:
(a) the overthrow of the Constitution of the Commonwealth by revolution or sabotage;
(b) the overthrow by force or violence of an established government of the Commonwealth or of a State or of any other civilized country or of organized government; or (c) the destruction or injury of property of the Commonwealth or of property used in trade or commerce with other countries or among the States.
4.55 This provision is effectively another version of the sedition offence found in s 80.2(1) of the Criminal Code—albeit with a lesser penalty. In Chapter 9, the ALRC suggests that s 30C is redundant and recommends that it be repealed.71 Sections 30J and 30K
4.56 Sections 30J and 30K are more closely related to emergency or industrial powers than to the banning of unlawful associations. Reflecting the origins of Part IIA in the seamen’s union strike, s 30J provides that in the event of a ‘serious industrial disturbance prejudicing or threatening trade and commerce with other countries or among the States’, the Governor-General may issue a proclamation prohibiting persons from taking part in, inciting, urging, aiding or continuing, a strike or lock-out in
• employment in or connection with, the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the states;72
• employment in, or in connection with, the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth.73
4.57 It appears that such a proclamation only has been made once in Australia, in 1951.74
4.58 Section 30K deals with threats or boycotts affecting public services. A person who by violence, threats, intimidation or boycotts obstructs or hinders the performance of public services or hinders trade or commerce between the states or other countries is guilty of an offence. The maximum penalty for an offence under s 30K is imprisonment for one year.
4.59 The justification for ss 30J and 30K at the time of enactment was that the sanctions were needed ‘to prevent the dislocation of interstate and overseas trade and commerce and the working of Commonwealth services and authorities’.75 H P Lee notes that, unlike the state governments, the Commonwealth—largely for constitutional reasons—does not have comprehensive ‘emergency powers’ type legislation.76
4.60 The Gibbs Committee noted that the question of the appropriate wording and operation of ss 30J and 30K should be considered in the context of industrial relations legislation, rather than a review of the Crimes Act. The Committee also noted that ‘it may be convenient to remove sub-sections 30J and 30K from the Crimes Act and to include any amended substitution for them in legislation dealing with industrial relations’.77
4.61 In a modern context, serious industrial disputes of this nature almost certainly would be handled under the Workplace Relations Act 1996 (Cth), rather than the Crimes Act. The Australian Government’s amendments to the Workplace Relations Act, as part of the WorkChoices legislation introduced in 2005,78 include provisions under which industrial action may be terminated in certain circumstances. For 72 Crimes Act 1914 (Cth) s 30J(2)(a).
73 Ibid s 30J(2)(b).
74 Government Gazettes 1951, 623 and 802.
75 E Sykes and H Glasbeek Labour Law in Australia (1972), 541, cited in H Lee, Emergency Powers (1984), 166.
76 Ibid, 166.
77 H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), 29.
78 Workplace Relations Amendment (WorkChoices) Act 2005 (Cth).