Last updated 22 August 2016
In addition to the criminal offences set out above, significant powers have been given to federal police and the Australian Security Intelligence Organisation 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.
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. 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.
Division 104 of the Criminal Code enables a senior member of the AFP to apply to a federal court (after seeking the Attorney-General’s consent) for a control order to be issued. A control order imposes a range of significant restrictions on an individual’s liberty, including requirements that the person remains in their home during specified times of day, reports to police at regular intervals, does not associate with specified individuals and wears an electronic monitoring bracelet.
The 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. This means that the person themselves need not be suspected of any involvement in terrorism. Alternatively, a control order may be sought on a range of other grounds relating to the person’s possible involvement in terrorism. The grounds on which a control order may be sought include reasonable suspicion that the person has:
- 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.
A control order may also be sought where the AFP member reasonably suspects that the order would substantially prevent the support or facilitation of terrorism, or that the person has provided support for or facilitated hostile activity in a foreign country.
For a control order to be issued, the issuing court must be satisfied on the balance of probabilities of the grounds for which the order was sought. The issuing court must also be satisfied that each of the conditions contained in the order is proportionate to a specified purpose for which a control order can be sought (e.g. to protect the public from a terrorist act, or to prevent the support or facilitation of a terrorist act or hostile activity overseas).
Powers of the Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation (ASIO), Australia’s domestic intelligence collection agency, may apply for a warrant to coercively question individuals and to detain them for that purpose. A person may be questioned in eight-hour blocks up to a maximum of 24 hours where this would substantially assist the collection of intelligence that is important in relation to a terrorism offence. 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 before ASIO for questioning, or destroy a record or thing that may be requested under the warrant.
It is an offence punishable by five years imprisonment to fail to answer ASIO’s questions. 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 also be issued against children as young as 16, and extra procedural protections apply to children between the years of 16 and 18.