20.6 National security and anti-terrorism laws

Contributed by JulianMurphy and current to 1 September 2018

Since 2002, Commonwealth, State and Territory Governments have passed a range of anti-terrorism laws. Supporters of the new laws argue that they are necessary to protect the Australian public from international and domestic terrorism. Opponents of the laws, including human rights lawyers and community groups, argue that some of the laws go further than necessary. In fact, some critics of the laws argue that they threaten freedom of speech and association and are being used to unfairly target particular religious or ethnic groups.

What everyone can agree on is that Australia's new national security and anti-terrorism laws confer new powers on government officers, including police and intelligence officers. The laws also create new criminal offences.

Most of the criminal offences relating to terrorism and national security can be found in Commonwealth laws, which apply not just in the Northern Territory but across Australia (and sometimes outside of Australia). There are many such laws and they cannot be discussed in any detail here, however the most important is undoubtedly Commonwealth Criminal Code, specifically Division 101. Broadly speaking, there are three categories of criminal offences related to terrorism and national security:

• terrorist act offences;
• terrorist organisation offences;
• miscellaneous offences related to national security.

In addition to these criminal offences it is helpful to consider three further topics:

• control orders;
• preventative detention;
• other powers, including powers of search, seizure and arrest.

Before proceeding it is important to say that this area of law is highly tecnical, complicated and rapidly changing. Accordingly, there is a real chance that by the time you read this section, some of the information in it will already be out of date.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).

Terrorist act offences

It is a criminal offence to do any of the following things:

• commit a terrorist act;
• advocate terrorism;
• provide or receive training connected with terrorist acts;
• possess things connected with terrorist acts;
• collect or make documents likely to facilitate terrorist acts;
• finance terrorism.

It is also a criminal offence to attempt, prepare for, procure or conspire to commit one the acts listed above [see Commonwealth Criminal Code , ss11.1 - 11.5].

Committing terrorist acts

It is an offence to commit a terrorist act [Commonwealth Criminal Code, s101.1]. The maximum penalty is life imprisonment [Commonwealth Criminal Code, ss101.1(1)].

The term "terrorist act" is defined in the law to mean, essentially, an action that: [Commonwealth Criminal Code, s100.1].

1. harms a person, damages property, or interferes with an electronic system; and
2. is done with the intention of advancing a political, religious or ideological cause; and
3. is intended to intimidate the Government or the public.

However there is an important exception to this criminal offence which states that it is not a "terrorist act" to participate in an act of protest if that act was not intended to harm anyone or damage property or interfere with an electronic system [see Commonwealth Criminal Code , ss100.1].

Northern Territory law also makes it an offence to commit an act of terrorism. The maximum penalty is imprisoment for life [Criminal Code (NT), s54].

Advocating terrorism

It is an offence to advocate the doing of a terrorist act or a terrorist offence [Commonwealth Criminal Code, s80.2C(1)]. The maximum penalty is imprisonment for 5 years.

Someone "advocates" for a terrorist act or offence if, essentially, they encourage the doing of that act or offence [Commonwealth Criminal Code, s80.2C(3)]. However, there is a defence if a person has acted in good faith [Commonwealth Criminal Code, s80.3].

Training for terrorist acts

It is an offence to provide or receive training connected with terrorist acts [Commonwealth Criminal Code, s101.2]. The maximum penalty is imprisonment for 25 years.

Possessing things connected with terrorism

It is an offence to possess anything connected with preparation or assistance of a terrorist act [Commonwealth Criminal Code, s101.4]. The maximum penalty is imprisonment for 15 years.

But what does it mean to possess a thing "connected with" terrorism? Does a book about terrorism count? This has been discussed in a number of cases and will depend on the nature of the item in question, see Benbrika v The Queen [2010] VSCA 211 at [335] - [345]; R v Khazaal [2012] HCA 26 at [31]- [36], [80]-[93], [115]-[119]; DPP (Cth) v Karabegovic [2013] VSCA 380.

Northern Territory law also makes it an offence to obtain or supply a thing for use in connection with an act of terrorism. The maximum penalty is imprisoment for ten years [Criminal Code (NT), s55].

Collecting/making documents facilitating terrorism

It is an offence to collect or make any document connected with preparation or assistance of a terrorist act [Commonwealth Criminal Code, s101.5]. The maximum penalty is imprisonment for 15 years.

As was mentioned above, a number of cases have considered the necessary degree of connection between the document and the possible terrorist act. [see Benbrika v The Queen [2010] VSCA 211 at [335] - [345]; Khazaal v The Queen [2011] NSWCCA 129 at [87] - [105]] In the case of R v Lodhi [2006] NSWSC 691 Mr Lodhi was convicted of collecting maps in connection with a potential terrorist attack on the Sydney electrical supply system.

Financing terrorism

It is an offence to collect or provide funds that are used in a terrorist act or that might be used by another person to facilitate or engage in a terrorist act [Commonwealth Criminal Code, ss103.1, 103.2]. The maximum penalty is imprisonment for life.

Terrorist organisation offences

A number of criminal offences relate to "terrorist organisations". It is an offence to: [Commonwealth Criminal Code, ss102.2 - 102.7]

• direct the activities of a terrorist organisation;
• be a member of a terrorist organisation;
• recruit for a terrorist organisation;
  
• train or receive training from a terrorist organisation;
• acquire funds for, from, or to a terrorist organisation;
  
• provide support to a terrorist organisation.

The maximum penalty for these offences is 25 years' imprisonment.

It is also an offence to associate with terrorist organisations. [Commonwealth Criminal Code, s102.8]. Generally "association" means to knowingly meet and communicate with members of a terrorist organisation and provide them with support. There are exceptions to this offence, however, for family associations and associations during the course of religious workship in a public place, such as a church or mosque. The maximum penalty for associating with a member of a terrorist organisation is 3 years' imprisonment.

There are two categories of "terrorist organisation" under the law. The first category is 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)". The second category is an organisation that is named by the Government as a terrorist organisation. You can see the list of organisations in this second category on Australian Government's national security website here. As at 1 August 2018 there were 26 organisations listed.

Northern Territory law also makes it an offence to do certain things relating to organizations that uses or threatens violence in the Northern Territory to achieve its ends. The maximum penalty is imprisoment for two years [Criminal Code (NT), s51].

Miscellaneous offences related to national security

Treason

It is an offence punishable by up to seven years imprisonment to urge others to use force or violence: [Commonwealth Criminal Code, Div.80]

• to overthrow the Constitution or a government;
• to interfere with the parliamentary election process; or
• 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 [Commonwealth Criminal Code, 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.

Control orders cannot be made for persons under the age of 16.

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 [Commonwealth Criminal Code, Div105] .

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, however the detention order may last up to 14 days [Terrorism (Emergency Powers) Act 2003 (NT) s21K].

Other powers - search, seizure and arrest

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 Act 1914 (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].

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 can.

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

Further information

• Australian Government publication: Australia's counter-terrorism laws ;
• Anti-Terrorism Laws: ASIO, the Police and You (4th ed, 2017) published by the Australian Muslim Civil Rights Advocacy Network and the Muslim Legal Network (NSW).