NSW counter terrorism legislation
While there is only one specific terrorism offence in New South Wales (NSW), other legislation gives police special powers to deal with imminent threats of terrorist acts and to respond to terrorist acts. This legislation is called the Terrorism (Police Powers) Act 2002 (NSW). The term ‘terrorist act’ is defined in almost exactly the same way in both the Terrorism (Police Powers) Act 2002 (NSW) and the Criminal Code Act (Commonwealth).
Actions involving advocacy, protest, dissent or industrial action which are not intended to cause serious physical harm to a person or, a person’s death or endanger a person’s life (other than the person taking the action) or cause a serious risk to the health or safety of the public or a section of the public, do not fall within a terrorist act.
The Terrorism (Police Powers) Act 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 officer also has to ensure that 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. In the Act the person, vehicle or area is referred to as the target.
Once an authorisation is granted, police are able to use the special powers to:
- obtain disclosure of identity
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stop, search and detain a target person
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stop, search and detain a target vehicle
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stop, search and detain a person or vehicle in a target area
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enter and search premises and/or place a cordon around the target area to facilitate stop and search
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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 has a maximum duration of 14 days while an authorisation for investigating a terrorist act has a maximum duration of 48 hours.
The Terrorism (Police Powers) Act also allows police to take a person into custody and detain them for a short period to prevent an imminent terrorist act or to preserve evidence of a recent terrorist act. Before this can happen police must seek an order from the Supreme Court known as a Preventative Detention Order.
The Act contains very strict rules around obtaining and carrying out of Preventative Detention Orders so that the rights of the person detained are protected. Some of these rules include:
- Informing the detainee of the effect of the order as soon as practicable after the person is taken into custody
- Providing the detainee with a copy of the order and a summary of the grounds upon which the person is detained
- Allowing the person detained to disclose the fact that they are being detained
- No questioning of the person about the terrorist incident while detained.
- Fingerprints, photograph and samples of handwriting can only be taken for identification purposes
- Does not apply to persons under 16 years of age
- Oversight by a Superintendent of Police or an officer of higher rank who is not involved in the application for the Preventative Detention Order
- Maximum period for detention is 14 days
- Unless prohibited by the Supreme Court, the detainee is entitled to contact a family member, employer, Ombudsman, Police Integrity Commission and their lawyer
- Any person detained must not be subjected to cruel, inhumane or degrading treatment
- Any exercise of the powers relating to a Periodic Detention Order will be scrutinised by the Ombudsman
There are similar powers contained in Division 104 of the Commonwealth Criminal Code Act. In addition to Preventative Detention Orders Division 104 of the Commonwealth Criminal Code Act provides for Control Orders to be imposed on certain persons. Control Orders allow obligations, prohibitions and restrictions to be imposed on a person by conditions in the Control Order for the purpose of protecting the public from a terrorist act.
Unlike a Preventative Detention Order, a Control Order allows the person to be at large in the community rather than kept in custody. In addition, Control Orders are legislated under federal laws rather than state laws.
In addition to the powers mentioned above, the Terrorism (Police Powers) Act also provides police with power to undertake covert investigations in certain circumstances, when authorised by the Supreme Court.
Other legislation in NSW
In addition to the special powers detailed above, amendments have been introduced relating to terrorism in other NSW legislation including:
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Freedom of Information Act 1989 - Protection of the disclosure of documents, which could facilitate terrorist acts or prejudice counter terrorism activities
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Bail Act 1978, section 8A - A presumption against bail for people charged with terrorism offences
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Crimes Act 1900 - Increase of the maximum penalty for making or possessing an explosive, poison or other weapon that could be used for an attack
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Crimes Act 1900, Part 6B - Creation of a new offence of membership of a terrorist organisation, and of raising funds for those organisations
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Anti-Money Laundering and Counter Terrorism Financing Act 2006