When terrorist incidents have occurred in the past, existing law was used to deal with the offenders after the event. Given the increase in the number and seriousness of terrorist incidents around the world, Australia has now developed specific laws to prevent terrorist attacks and deal appropriately with those involved in terrorism. These include special powers to enable law enforcement agencies to effectively prevent and deter terrorism.
Criminal offences covering terrorism are primarily dealt with under the Criminal Code Act 1995 (Cth) which is intended to be comprehensive and uniform across Australia. This applies to NSW through the Terrorism (Commonwealth Powers) Act 2002 (NSW).
The role of the NSW Police Force in relation to counter terrorism is to gather evidence and present it to the court. The court makes the ultimate decision on whether a person is guilty or not.
What is a terrorist act?
A 'terrorist act' is defined in the Criminal Code Act as an action or threat of action which:
- causes serious physical harm to a person; or
- causes serious damage to property; or
- causes a persons death; or
- endangers a person's life, other than the life of the offender committing the terrorist act; or
- creates a serious risk to the health or safety of the public or a section of the public; or
- seriously interferes with, disrupts, or destroys, an electronic system including, but not limited to:
- information system; or
- telecommunication system; or
- financial system; or
- system used for the delivery of essential government services, essential public utilities, or transport systems.
The above action must be taken or the threat made with the intention of advancing a political, religious or ideological cause, and it must be done either with the intention of:
- coercing, or influencing by intimidation, the government of Commonwealth or a State, Territory, or foreign country; or
- intimidating the public or section of the public.
This definition captures conduct where a terrorist act occurs in Australia and was directed towards a foreign government.
What is not a terrorist act?
Holding a protest, rally or some other form of industrial action where you are exercising your right to freedom of speech, and there is no intention to
- cause serious physical harm to a person; or
- causes a person's death; or
- endanger a person's life, other than the life of the person taking the action; or
- creates a serious risk to the health or safety of the public or a section of the public.
What is a terrorism offence?
Below is a summary of what constitutes a terrorism offence in NSW:
- Committing a terrorist act. This is where a person actually commits an act of terrorism as defined above. The prosecution must prove that a person actually committed the act. This carries a maximum penalty of life imprisonment.
- Providing or receiving training in connection with a terrorist act. It is an offence for a person to train for a terrorist act. Training might include shooting targets, evasive driving techniques, physical fitness or rehearsing for an attack. The prosecution must prove that each activity is linked to a planned terrorist act.
- Possessing 'things' connected with a terrorist act. Any innocent item may be regarded as a 'thing' under this offence. However, it must be proven that this 'thing' is connected to an act of terrorism. For example possessing a chemical is not an offence. However, possessing certain chemicals along with other items that might be used to make a bomb, combined with direct evidence that a person was preparing for a terrorist act, could make the possession of this thing an offence.
- Possessing 'documents' connected with a terrorist act. This relates to possessing documents such as maps, diagrams or photographs, which could be used to assist in undertaking a terrorist act. This also includes the downloading of material from Internet sites. Once again though, the prosecution must prove that these documents are directly linked to a terrorist act.
- Financing terrorism. Unlike other terrorism offences, this offence requires a lower test to establish the 'intention' of a person. A person commits an offence if they provide or collect funds and are reckless as to whether or not those funds would be used to facilitate a terrorist act.
- Other preparatory acts for committing terrorist acts. A person commits an offence if they undertake preparation or planning for a terrorist act. This can include: gathering intelligence, storing weapons or explosives or convening and attending meetings. As always, the prosecution must prove that this activity is linked to a terrorist act.
- Terrorist organisations.There are a number of offences linked to terrorist organisations including:
- directing or leading a terrorist organisation
- being a member of a terrorist organisation
- recruiting other people to join a terrorist organisation
- training or receiving training from a terrorist organisation
- funding from or to a terrorist organisation
- supporting a terrorist organisation, such as providing intelligence or logistical support
- associating with terrorist organisations.
Committing a terrorist act overseas
Under the Criminal Code Act 1995 (Cth) it is an offence under Australian Law to travel overseas to commit a terrorist act.
Under Australian law, NSW Police can arrest any person who has committed a terrorism offence overseas and bring them before the courts.
Special legislation in NSW
The Terrorism (Police Powers) Act 2002 (NSW) gives police special powers to deal with imminent threats of terrorist acts and to respond to terrorist acts. In the past few years, the Act has been amended to clarify the Police's use of force when responding to terrorist acts, and also, to give police investigative detention powers.
The Terrorism (Police Powers) Act 2002 provides for the Commissioner or Deputy Commissioner of Police to authorise police to exercise special powers to deal with terrorist acts. The officer needs to be satisfied that:
- there are reasonable grounds to believe there is a threat of a terrorist act, or one has already occurred, and
- the use of the powers will substantially assist in preventing the terrorist act or in apprehending the persons responsible for the terrorist act
- the nature and extent of the powers are appropriate to the threatened or suspected terrorist act.
These special powers can only be used if the Minister for Police agrees.
The special powers allow police to find a particular person, a particular vehicle, to prevent a terrorist act in a particular area and/or to apprehend the persons responsible for the terrorist act in a particular area.
Once an authorisation is granted, police are able to use the special powers to:
- obtain disclosure of identity
- stop, search and detain a target person
- stop, search and detain a target vehicle
- stop, search and detain a person or vehicle in a target area
- enter and search premises and/or place a cordon around the target area to facilitate stop and search
- seize and detain certain things, and to remove and guard those things.
Police may use such force as is reasonably necessary when exercising the powers under the authorisation.
An authorisation to prevent a terrorist act can only be in existence for a short period of time with a maximum duration of 14 days. An authorisation to investigate a terrorist act that has occurred has a maximum duration of 48 hours.
The Terrorism (Police Powers) Act 2002 allows law enforcement agencies to detain a person where there are reasonable grounds for suspecting that they committed a terrorist act in the last 28 days, or they are involved in planning to commit a terrorist act in the next 14 days. This occurs under Part 2AA of the Act, known as the Investigative Detention Powers.
Under the investigative detention powers, a person can be detained for an initial four days (reviewed every twelve hours by a separate, senior Police officer). Following the initial four days, an Eligible Judge will consider extending the detention in increments up to seven days, to a maximum period of detention of 14 days.
In extending the detention, the Eligible Judge must be satisfied that:
- the investigation is being conducted, and without unnecessary delay
- there are reasonable grounds for suspecting that the person continues to be a terrorism suspect
- there are reasonable grounds for suspecting that any future terrorist act could occur (or so occur, where the suspect is released) in the next 14 days
- the extension will substantially assist in responding to or preventing the terrorist act concerned.
These provisions can apply to persons aged 14 years and over, however, additional safeguards are put in place for persons aged under 18 years.
As a result of the Coroner's Report, Inquest into the deaths arising from the Lindt Café Siege, the Terrorism (Police Powers) Act 2002 was amended in June 2017 to clarify that Police may use force, including lethal force, when the Commissioner of Police is satisfied that an incident is likely to be a terrorist act, and police action is required to defend people, or to prevent their unlawful deprivation of liberty. The Commissioner will make a declaration when this is in effect.
Police officers who use lethal force will not incur criminal liability if they are acting in accordance with a police action plan, and in good faith.
The Commissioner of Police is to revoke the declaration if no further police response is required at the location concerned.
The Commonwealth has enacted specific anti-terrorism laws which can be found in Part 5.3 (Terrorism) of the Commonwealth Criminal Code Act 1995 (Cth). In 2002, the NSW Government, along with the other states and territories, referred legislative powers for terrorism to the Federal Government under the Terrorism (Commonwealth Powers) Act 2002 (NSW). This referral has worked to ensure that criminal offences covering terrorism are primarily dealt with under the Criminal Code Act 1995 (Cth), so that the arrangements are comprehensive and uniform across Australia, where possible.
Under the Commonwealth Criminal Code Act 1995 (Cth), a number of special powers can be accessed in response to a possible or actual terrorist threat. These include:
Preventative detention orders
Under the 'preventative detention order in the Criminal Code Act 1995 (Cth), police may detain a person without charge:
- where there is a threat of an imminent terrorist attack and the order might help prevent; or
- immediately after a terrorist act if it is likely vital evidence will be lost.
A person can be detained for a maximum of 48 hours under Commonwealth law. There are a number of safeguards in the legislation to ensure there is appropriate judicial oversight on the use of these powers.
Under the Criminal Code Act 1995 (Cth), a person can be subject to a control order if it substantially helps prevent a terrorist attack, or the person has:
- provided training to, received training from or participated in training with a listed terrorist organisation
- engaged in a hostile activity in a foreign country, or
- been convicted:
- in Australia of an offence relating to terrorism, a terrorist organisation or terrorist act, or
- overseas for an offence that would, if occurred in Australia, be a terrorism offence within the definition of the Crimes Act.
- provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country
- the order will help prevent a person from providing support for or the facilitation of a terrorist act
Purposes of a control order
A control order can stop a person from:
- being in certain areas or leaving Australia
- communicating or associating with certain people
- owning or using certain things
- carrying out certain activities, including work
- accessing certain forms of technology, including the internet.
A control order can require a person to:
- wear a tracking device
- live with a curfew
- report to police on a regular basis.
There are a number of safeguards in the legislation to ensure there is appropriate judicial oversight on the use of these powers.
Listed Terrorist Organisations
For an effective counter terrorism regime, it is vital that laws target the organisations that plan, finance and carry out acts of terrorism. In 2002, a range of terrorist organisation offences were introduced into the Criminal Code Act 1995 (Cth). Under the Criminal Code 1995, there are two ways for an organisation to be identified as a terrorist organisation:
- either an organisation may be found to be such an organisation by a court as part of the prosecution for a terrorist offence, or
- it may be specified in Regulations, known as 'listing'. For a listing to be effective, the processes set out in the legislation must be followed.
Currently there are 20 organisations listed as terrorist organisations in Australia pursuant to the Criminal Code Regulations.