Last updated 3 March 2020
In addition to the criminal offences set out above, significant powers have been given to federal police and the Australian Security Intelligence Organisation (ASIO) to investigate and prevent terrorist acts.
Preventative detention orders
The law relating to Preventative Detention Orders (PDOs) is set out in div 105 of the Criminal Code Act 1995 (Cth) (Criminal Code). These orders allow the Australian Federal Police (AFP) to detain individuals for up to 48 hours in order to prevent a terrorist act or preserve evidence relating to a terrorist act. The period of detention can be extended up to 14 days under state legislation. A PDO cannot be issued in relation to a person under the age of 16, and special protections apply where a PDO is issued in relation to a person between the ages of 16 and 18.
For a PDO to be issued, a senior member of the AFP must apply to an issuing authority (usually a judge or retired judge). The AFP member must suspect on reasonable grounds that the person:
- will engage in a terrorist act
- possesses a thing connected with preparation for a terrorist act
- has done an act in preparation for a terrorist act (s 105.4(4) Criminal Code).
In any of these cases, the terrorist act must be imminent and expected to occur within the next 14 days. Alternatively, the AFP member may be satisfied that a terrorist act has occurred within the last 28 days, and it is reasonably necessary to detain the person to preserve evidence relating to the terrorist act (s 105.4(6) Criminal Code). The issuing authority must then be satisfied of the reasons for which the order was sought. No questioning of the person by police is permitted under a PDO (s 105.42 Criminal Code).
Division 104 of the Criminal Code enables a senior member of the AFP, after seeking consent from the Home Affairs Minister, to apply to a federal court for a control order. A control order imposes restrictions on an individual’s liberty such as requiring the person to remain in their home during specified times of day, report to police at regular intervals or wear an electronic monitoring bracelet. The restrictions are similar to those available for conditional release on bail or parole, but they do not require evidence of criminal behaviour or the person to be charged with an offence.
The senior AFP member may apply for a control order if they suspect on reasonable grounds that the order would substantially assist in preventing a terrorist act, or the support or facilitation of terrorism. This means that the person may (but need not necessarily) be suspected of involvement in terrorism. The grounds on which a control order may be sought include reasonable suspicion that the person has (s 104.4(1)(c) Criminal Code):
- provided, received or participated in training with a listed terrorist organisation
- engaged in hostile activity in a foreign country
- been convicted in Australia of a terrorism offence
- been convicted of an offence in a foreign country for conduct that would have constituted a terrorism offence if prosecuted in Australia.
For a control order to be issued, the issuing court must be satisfied on the balance of probabilities that one or more of these grounds are satisfied. The issuing court must also be satisfied that each of the conditions contained in the order is proportionate and reasonable necessary.
Powers of the Australian Security Intelligence Organisation
Under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), ASIO, Australia’s domestic intelligence collection agency, has many intelligence-gathering powers that can assist in preventing terrorism. these include powers to search private premises (s 27D), inspect postal articles (s 27) and install listening devices (s 26C).
One of ASIO’s most controversial powers allows it to detain people for questioning. A person may be questioned in eight-hour blocks up to a maximum of 24 hours (s 34R ASIO Act) where this would substantially assist the collection of intelligence that is important in relation to a terrorism offence (s 34E ASIO Act). A person may be detained for up to a week for questioning where there are reasonable grounds to believe that they will alert another person involved in a terrorism offence, not appear for questioning, or destroy evidence (s 34G ASIO Act).
It is an offence punishable by five years imprisonment to fail to answer ASIO’s questions (s 34L ASIO Act). There is no requirement that the person themselves be suspected of terrorism, meaning that a questioning and detention warrant could be issued in relation to non-suspects, family members of terrorist suspects and innocent bystanders. These warrants can be issued against children as young as 16, though extra procedural protections apply to children between the years of 16 and 18.