Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021
Officials recommended that the Select Committee for the CT Bill not relitigate issues from the TSA process unless policy had become inconsistent. Officials also acknowledged that the Bill included some offences that were not required by international law.71 The CT Bill received 24 public submissions before passing on 21 October 2003.72
Thirdly, while MFAT was the lead agency for the TSA, Justice took on a joint lead role for subsequent legislative developments. Any critique on the appropriateness of MFAT leading on criminal justice provisions was somewhat mitigated by Justice’s involvement in the CT Bill, which was based on a comprehensive review and had an express mandate to correct the TSA if required. Fourthly, officials recommended the inclusion of a sunset or review provision for aspects of the TSA that related to the implementation of UNSC resolution 1373.73 Section 70 consequently required government to review and report on such provisions by 1 December 2005. Commentary from the CT Bill informs that the review provision’s inclusion was largely the consequence of “the problems inherent in trying to define what is meant by [a] terrorist act.”74 This strongly infers that in 2002, Government appreciated the dynamic nature of terrorist threats, the pace in which it was legislating, and that adjustments may be required to ensure the definition was fit for purpose. Likely due to the short time-period between the TSA and CT Bill, the definition of terrorism was not considered by the CT Bill, although officials responded to submissions on the issue. They noted that the centrality of a “terrorist act” to UNSC resolution 1373 justified Section 5 of the TSA as it was “difficult, if not impossible, to implement provisions” without a definition.75 Ultimately however, no amendments to the existing definition of terrorism were recommended in 2003 given that “so far, officials are not aware of any difficulties arising from that definition”.76 Lastly, Justice intended the TSA to function as the principal legislative instrument in relation to terrorist offending; “states are required to make reports on the implementation of UNSC resolution 1373. … It is therefore necessary to ensure that the implementation is done in a way that will withstand expert scrutiny at the international level. Amalgamation with existing criminal law provisions can make the extent of compliance obscure.”77
The Terrorism Suppression Amendment Bill (No. 2) 2005 was developed for two reasons: Firstly, to ensure compliance with international standards deriving from the Financial Action Task Force on Money Laundering (FATF).78 Secondly, to provide urgent extensions to terrorist designations which would otherwise expire before the statutory review, thereby contravening international obligations.79 The Bill was uncontroversial, passing with 97 votes to 10.
The 2005 Review of the TSA largely focused on the designation process and extension procedure at the heart of the No. 2 Act.80 However, the Review’s efficacy is unclear; the analysis of the report was only eight pages long, likely due to time constraints on Select Committee caused by the urgent No. 2 legislation, the general election, and the requirement to report findings by 1 December 2005.