20.6 National security and anti-terrorism laws

07 Sep 2016 - 16:44 | Version 5 |

This section is based in part on Anti-Terrorism Laws: ASIO, the Police and You (2nd ed, 2005), Australian Muslim Civil Rights Advocacy Network.

Since 2002, both Commonwealth and State/Territory Governments have passed a range of anti-terrorism laws as part of a national campaign to guarantee Australia's security and comply with Australia's international obligations.

Enacted with the purpose of preventing terrorism, these laws substantially enhance the capacity of the State to pursue, prosecute and punish terrorists and their supporters. Advocates of the laws argue that they are necessary to prevent a repetition in Australia of terrorist attacks in recent years - including those against Australians - overseas. These laws are seen by many to be doing their job: at the time of writing there have been no actual terrorist attacks on Australian soil, and a number of people have been caught, prosecuted and dealt with under our anti-terrorism laws. On the other hand, many human rights lawyers assert that by creating offences which criminalise a broad range of seemingly innocuous activities, and by radically expanding the powers of police and other security agencies, these laws threaten freedom of speech and association, are being used to unfairly target particular ethnic and religious groups, and put Australia in breach of our human rights treaty obligations.

The limits of these new laws and how they can be used are still unclear. As is often the case with an emerging area of law, the judicial system is given the job of authoritatively establishing just what those limits are, when people aggrieved by powers exercised and orders made against them under the anti-terrorism laws take their complaints to the courts. At the same time, governments can be expected to continue to enact more such laws, both in the event of any successful court challenges to their operation, and in response to any further perceived terrorist threats.

This is therefore an area of the law which operates in an environment of uncertainty, change and controversy. Accordingly, please bear in mind there is a real chance that by the time you read this section, some of the information in it will already be out of date. If you need specific legal advice about Australian anti-terrorism laws, see a lawyer (see Contact points).

Australia's Anti-Terrorism Laws

Most of Australia's anti-terrorism laws are Commonwealth enactments which apply throughout Australia. Examples of Commonwealth legislation enacted or amended in recent years which now incorporate anti-terrorism provisions are:
  • Anti-Money Laundering and Counter-Terrorism Financing Act 2006
  • Anti-Terrorism Act 2004
  • Australian Security Intelligence Organisation Act 1979
  • Aviation Transport Security Act 2004
  • Border Security Act 2002
  • Crimes Act 1914
  • Crimes (Foreign Incursions and Recruitment) Act 1978
  • Criminal Code Act 1995
  • Financial Transaction Reports Act 1988
  • International Transfer of Prisoners Act 1997
  • Maritime Transport Security Act 2003
  • National Security Information (Criminal Proceedings) Act 2004
  • Suppression of the Financing of Terrorism Act 2002
  • Surveillance Devices Act 2004
  • Telecommunications (Interception and Access) Act 1979
The Criminal Code (Cth) defines a terrorist act to include an act or threat anywhere in the world (other than political action not intended to cause serious personal harm or to create a serious risk to health or safety):
  • which is politically, religiously or ideologically motivated
  • which is intended to coerce a government, or to intimidate the public anywhere in the world
  • which causes serious physical harm or danger to life, serious danger to property, serious risk to public health or safety, or serious disruption to an information, telecommunications, financial, essential services or transport system.
Engaging in a terrorist act is an offence punishable by up to life imprisonment.

Terrorist Organisations

It is an offence to become a member of, support or receive training from a terrorist organisation.

A 'terrorist organisation' is defined as either:
  • any organisation 'directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)'; or
  • any organisation prescribed by the Commonwealth Government to be a terrorist organisation.
The list of prescribed terrorist organisations is constantly being revised according to world events and intelligence. At the time of writing (accessed on 8 September 2007 at http://www.nationalsecurity.gov.au/agd/WWW/NationalSecurity.nsf/Page/What_Governments_are_doingListing_of_Terrorism_Organisations), the listed organisations were as follows:
  • Abu Sayyaf Group
  • Al Qa'ida
  • Al-Zarqawi
  • Ansar Al-Sunna
  • Armed Islamic Group
  • Asbat al-Ansar
  • Egyptian Islamic Jihad
  • Hamas's Izz al-Din al-Qassam Brigades
  • Hizballah External Security Organisation
  • Islamic Army of Aden
  • Islamic Movement of Uzbekistan
  • Jaish-e-Mohammed
  • Jaimat ul-Ansar
  • Jemaah Islamiyah
  • Kurdistan Workers Party
  • Lashkar-e Jhangvi
  • Lashkar-e-Tayyiba
  • Palestinian Islamic Jihad
  • Salafist Group for Call and Combat

Sedition

It is an offence [Criminal Code 1995 (Cth) Div.80 ] punishable by up to seven years imprisonment to urge others to use force or violence:
  • to overthrow the Constitution or a government
  • to interfere with the parliamentary election process
  • against others in the community in a manner which would threaten the peace, order and good government of Australia.
It is also an offence to urge others to engage in conduct intended to assist an organisation or country which is at war or engaged in armed hostilities with Australia.

However, these offences do not apply to persons who can prove that their conduct was genuinely intended to be political or industrial action or comment undertaken in the public interest.

Control Orders

With the consent of the Commonwealth Attorney-General, the Australian Federal Police (AFP) can apply to a Federal Magistrate or Judge to make a control order against a person in order to protect the public from a terrorist act [Criminal Code 1995 (Cth) Div.104].

The court can only make a control order if it is satisfied that the order would substantially assist in preventing a terrorist act, or that the person has trained with a terrorist organisation.

A control order can impose a wide range of prohibitions, restrictions and obligations on a person, such as:
  • being under house arrest
  • wearing a tracking device
  • not accessing the internet
  • not communicating or associating with specified individuals (including, in some cases, their lawyer)
  • undertaking specified education or counselling (if the person agrees).
The court must be satisfied that each of the controls imposed is reasonably necessary, appropriate and adapted for the purpose of protecting the public from a terrorist act.

Control orders can be made for up to three months for 16 and 17 year olds, and for up to 12 months for people over 18. When they expire, they can be renewed.

Preventative Detention

A Preventative Detention Order (PDO) can be made by the AFP to prevent an imminent terrorist attack, or to preserve evidence of a recent terrorist attack [Criminal Code 1995 (Cth) Div.105].

A PDO empowers the AFP to apprehend a person over 16 years of age and detain them for up to 24 hours. A court can extend the PDO for a further 24 hours.

A person being detained or taken into custody under a PDO must be treated with humanity and respect for human dignity and must not be subject to cruel, inhuman or degrading treatment. A person can only be questioned while under a PDO to confirm their identity or enable safe detention. Any questioning must be audio taped and videotaped. A person who is under a PDO must be given a copy of the PDO which includes the grounds of making the order.

The detained person may contact a lawyer. The detained person has limited rights to contact family members and employers to let them know they are safe, but must not tell them that they have been detained or that they are under a PDO. If the person detained is under 18 they are entitled to have contact with a parent or guardian for at least two hours each day. Any contact the person detained has with another person, including a lawyer, can be monitored by police.

Northern Territory police have similar powers under Northern Territory law [Terrorism (Emergency Powers) Act 2003 (NT) Pt.2B].

Stop and Search Powers

In an area controlled by the Commonwealth government (for example, airports and shipping ports), a police officer who reasonably suspects that a person might have just committed, might be committing, or might be about to commit a terrorist act, can stop that person, ask for the person's name, address and proof of identity, and search the person, the person's vehicle and anything under the person's control [Crimes Act1914 (Cth) Pt.1AA Div.3A].

In addition, the Attorney General can declare an area controlled by the Commonwealth government to be a 'prescribed security zone' for up to 28 days, for the purpose of preventing a terrorist act occurring, or in responding to a terrorist act that has occurred. Police may stop and search anyone at all within a prescribed security zone, whether or not they have a reasonable suspicion.

Similarly, the Northern Territory Commissioner of Police can declare an airport, railway station, bus station, ship or ferry terminal, the site of a special event, or a public place where people gather in large numbers, to be a 'special area', giving police stop and search powers like those that apply within a Commonwealth prescribed security zone [Terrorism (Emergency Powers) Act 2003 (NT) Pt.2A].

Other Measures

Other measures in the anti-terrorism laws give police extensive powers to require the production of personal and private documents such as financial records and travel details.

Further Information

What to do if you have contact with the police

  • Be polite and stay calm.
  • Ask for an interpreter if you need one.
  • Request to see a copy of any orders made against you.
  • Ask to see a lawyer and to contact a member of your family if you have been detained.
  • Seek legal advice as soon as you are able to.

Useful contacts

  • Northern Territory Legal Aid Commission: 1800 019 343
  • Human Rights and Equal Opportunities Commission: 1300 656 419
  • Northern Territory Anti-Discrimination Commission: 8999 1444 or 1800 813 846

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