The context in which the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) was created is important to understanding its application to federal criminal proceedings. This Act is one of over thirty-five that have been passed by federal Parliament in the legislative response to the threats posed by terrorist organisations since the terrorist attack on the World Trade Centre on September 11, 2001. A full list may be accessed from Parliamentary Library of the Parliament of Australia, entitled Chronology of Legislative and Other Legal Developments since 11 September 2001 (including a list of Federal legislation relating to terrorism as at 11 September 2001). Undoubtedly, in the words of Andrew Lynch and George Williams, ‘[t]he development of a specific and coordinated policy had … become a priority’ (see Lynch and Williams, What price security? Taking Stock of Australia’s Anti-Terror Laws (2006)).

Following a Leaders’ Summit in Canberra on 5 April 2002, all Australian states and territories agreed to refer legislative power pursuant to s 51(xxxvii) of the Commonwealth Constitution to the Commonwealth Parliament, in order to provide for a coordinated counter-terrorism response. The referral of power provided for the making of laws, and the amendment of laws by the Commonwealth in relation to terrorist acts and actions relating to terrorist acts, limited to Part 5.3 of the Commonwealth Criminal Code (‘Terrorism’). The concurrent operation of laws of states and territories was expressly provided for.

All Commonwealth criminal offences are heard and resolved in state and territory courts, exercising federal jurisdiction. Local rules relating to arrest and custody apply, under s 79 of the Judiciary Act 1903 (Cth) as do the local laws relating to procedure and evidence ‘except as otherwise provided by the Constitution or the laws of the Commonwealth.’ The parts of the Commonwealth Act relating to criminal proceedings therefore applies in state and Territory courts and supplements and replaces relevant local procedures.

The Criminal Code Act 1995 (Cth) (‘the Code’) now also contains offences of treason and sedition, offences relating to espionage and similar activities. Trials upon these allegations of espionage are inherently likely to involve sensitive information, now attracting the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

The other offences likely to invoke the provisions of the National Security Act are offences of terrorism, as incorporated into Part 5.3 of the Code. Section 100.3 of the Code indicates that the purported constitutional basis for the Part is the referral of power from referring States, or where there has not been a referral, the heads of power contained in s 51 of the Constitution. The latter is moot, as all Australian states have referred power. Application in the Territories is based upon ss 122 and 51 (other than s 51(xxxvii)) of the Constitution.

Terrorism offences include direct involvement in or commission of acts preparatory to a terrorist act, providing or receiving training connected with a terrorist act, and possessing things connected with a terrorist act, and collecting or making documents likely to facilitate a terrorist act.

‘Terrorist act’ is defined by s 100.1(1) of the Code as meaning action or a threat of action which either causes serious physical harm, death, or endangerment to another person’s life, causes serious damage to property, creates a serious risk to public health and safety, or seriously interferes with, disrupts or destroys an electronic system. The mental element of the definition requires that the action be performed or the threat made with the intention of advancing a political, religious or ideological cause, and also the intention of coercing or influencing a government by intimidation, or intimidating the public or a section of the public.

Actions of advocacy, protest, dissent, or industrial action, and not intended to cause physical harm, death, endangerment, are excluded from the definition of a terrorist act.

The Code also includes offences of directing the activities of a terrorist organisation, membership, recruitment, training, or receiving training in respect of such an organisation, associating with, or providing funding or assistance to an organisation. A terrorist organisation is one that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs), or one specified by the regulations. Financing terrorism, or a terrorist, is also a criminal offence under the Code.

Author Bio: Dr Martine Marich is a criminal lawyer practising in Melbourne Australia and is the only Australian lawyer to be both an accredited specialist in criminal law (Victoria) and have a doctorate in law. She also lectures in criminal law. See http://www.martinemarich.com.au

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