Independent National Security Legislation Monitor – annual report 7th November 2013

12 Dec 2013


Chapter II describes the not completely straightforward international setting in which Australia is obliged to have legislation to counter terrorism financing.

Chapter III deals with the important provisions of the Charter of the United Nations Act 1945 (Cth) (“UN Charter Act”), being part only of such legislation. The many detailed recommendations made in it are largely directed to enhancing powers (including offence provisions) so as to produce a better fit of these provisions with the other mainstream CT Laws.

Chapter IV deals with offences under the Criminal Code Act 1995 (Cth) (“Criminal Code”) concerned with financing etc terrorism, and in particular, the system of listing, designation or proscription of terrorist organisations. The system should be streamlined so as to permit the Attorney-General to act more expeditiously than is presently possible in light of practice under the relevant inter-governmental agreement. The controversial approach of listing only part of an organisation as terrorist should stop: an organisation has the character of being terrorist or it does not. Where there are presently partial listings, consideration should be given to replacing them with listings of the whole of those organisations as terrorist organisations.

Chapter V questions the design of the Criminal Code offences concerning associating with terrorist organisations. Exceptions based on close family or public religious associations should not be available to remove criminal liability. But the relevant provisions should provide an exception for humanitarian activities under the aegis of respected organisations such as the Red Cross.

Chapter VI doubts the efficacy of our terrorism financing legislation, not so much by reason of defects in design as because there are no persuasive empirical data. We do not really know whether any terrorist activities anywhere have been constrained by Australia’s rarely applied terrorism financing laws.

Chapter VII examines the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (“NSI Act”). On balance, it is a worthwhile contribution to meeting the perennial challenge of reconciling the public interest in the proper administration of justice and the public interest in national security. The improvements recommended, while considered valuable by the INSLM, are not fundamental – except that which recommends its extension to all classes of proceedings in which national security considerations with respect to Australia’s counter-terrorist activities may arise.

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