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TERRORISM (COMMONWEALTH POWERS) BILL 2003

         Terrorism (Commonwealth Powers) Bill

                            Circulation Print

                EXPLANATORY MEMORANDUM


                                    General
The purpose of the Bill is to refer certain matters relating to terrorist acts to
the Commonwealth Parliament, under section 51(xxxvii) of the
Commonwealth Constitution, to enable the Commonwealth Parliament to
make laws about those matters.
The Commonwealth Constitution does not give the Parliament express
powers to regulate terrorist acts. It derives the authority to make such laws
from a patchwork of constitutional powers. Using its existing powers the
Commonwealth Parliament enacted a series of offences, in 2002, relating to
terrorism which are all linked to the commission of a "terrorist act".
These offences are located in Part 5.3 of the Commonwealth Criminal Code.
The patchwork of existing Commonwealth constitutional powers supporting
these terrorism offences is extensive and complex but may result in
unforeseen gaps in their constitutional support. The States may eliminate
doubts about the extent of the Commonwealth's constitutional power to enact
the terrorism offences by referring matters to the Commonwealth Parliament.
Section 51(xxxvii) of the Commonwealth Constitution gives the Parliament
power to legislate with respect to "matters referred to the Parliament of the
Commonwealth by the Parliament or Parliaments of any State or States...".
All other States have passed comparable Bills.

                                 Clause Notes
Clause 1    sets out the purpose of the Bill.

Clause 2    provides for the commencement of the Bill on the day after it
            receives Royal Assent.

Clause 3    defines certain words and expressions used in the Bill.

Clause 4    provides for the reference of matters to the Commonwealth
            Parliament.
            Sub-clause (1) makes the references. The matters referred are
            limited to those necessary to provide support for the

                                         1
551001                                            BILL LC CIRCULATION 28/2/2003

 


 

Commonwealth Parliament to re-enact Part 5.3 of the Commonwealth Criminal Code (set out in Schedule 1 to the Bill) and to make amendments to that Part and Chapter 2 of the Commonwealth Criminal Code as necessary. Sub-clause (1)(a) refers to the Commonwealth Parliament the matters to which the current text of Part 5.3 of the Commonwealth Criminal Code relates but only to the extent of enabling the Commonwealth Parliament to make laws with respect to those matters by including the text of Part 5.3 in the Commonwealth Criminal Code in, or substantially in, the terms of that text. Sub-clause (1)(b) refers the matter of terrorist acts and actions relating to terrorist acts but only to the extent of enabling the Commonwealth Parliament to amend Part 5.3 and Chapter 2 of the Commonwealth Criminal Code. Sub-clause (2) makes it clear that both references have effect only to the extent that the matters referred are not otherwise within the legislative power of the Commonwealth Parliament and are within the legislative power of the State Parliament. Sub-clause (3) dispels any argument that either of the references may be limited by the other. Sub-clause (4) clarifies certain matters in the Bill. Sub-clause (4)(a) confirms that the State Parliament does not intend the Bill to impede the power of the Commonwealth Parliament to amend or otherwise alter the operation of Part 5.3 or Chapter 2 of the Commonwealth Criminal Code based on the legislative powers the Commonwealth Parliament has apart from the referred matters. Sub-clause (4)(b) confirms that instruments authorised by Part 5.3 or Chapter 2 of the Commonwealth Criminal Code may alter the operation of that legislation. Sub-clause (5) provides for the period during which the references have effect. Clause 5 provides for the termination of the references. Sub-clause (1) provides that the Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day on which the references are to terminate. Sub-clause (2) provides that the day fixed for the termination of the references, referred to in sub-clause (1), must be at least three months after the day that the proclamation is published. 2

 


 

Sub-clause (3) provides that the Governor may revoke a proclamation, referred to in sub-clause (1), by publishing a proclamation in the Government Gazette. Sub-clause (4) provides that a revoking proclamation has effect only if published before the day fixed under sub-clause (1). Sub-clause (5) provides that the revocation of a proclamation made under sub-clause (1) does not preclude the subsequent termination of the references by the procedure provided for in sub-clause (1). Schedule 1 contains the text of Part 5.3 of the Commonwealth Criminal Code which it is proposed the Commonwealth Parliament will re-enact and which may be amended with the support of the references. The offences in Part 5.3 of the Commonwealth Criminal Code are-- · engaging in a terrorist act (proposed section 101.1) or doing any act in preparation for or planning a terrorist act (proposed section 101.6); · providing or receiving training connected with a terrorist act (proposed section 101.2); · possessing things connected with a terrorist act (proposed section 101.4); · collecting or making documents likely to facilitate a terrorist act (proposed section 101.5); · directing the activities of a terrorist organisation (proposed section 102.2); · membership of a terrorist organisation (proposed section 102.3); · recruiting for a terrorist organisation (proposed section 102.4); · training, or receiving training from, a terrorist organisation (proposed section 102.5); · getting funds to or from a terrorist organisation (proposed section 102.6); 3

 


 

· providing support to a terrorist organisation (proposed section 102.7); · financing a terrorist act (proposed section 103.1). Proposed section 100.1 of Schedule 1 defines a terrorist act as an action or threat of action done or made with the intention of advancing a political, religious or ideological cause and coercing or influencing by intimidation a government or intimidating the public. Action falls within the definition if it causes serious physical harm or death, serious damage to property, endangers another person's life, creates a serious risk to the health or safety of the public or a section of the public or seriously interferes with, disrupts or destroys an electronic system. Action constituting advocacy, protest, dissent or industrial action that is not intended to cause serious physical harm or death, endanger another person's life or create a serious risk to the health or safety of the public or a section of the public is excluded from the definition. 4

 


 

 


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