Inside Australia's Anti-Terrorism Laws and Trials by Andrew Lynch

Author:Andrew Lynch
Language: eng
Format: epub
Publisher: NewSouth

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Police powers

Australian police have traditionally been given broad powers to investigate criminal offences. These include arrest, search and seizure, and questioning, as well as more modern developments such as the power to intercept telecommunications and to install surveillance devices. In the aftermath of September 11, these powers were extended to the investigation of terrorism-related activities. For example, the Telecommunications (Interception and Access) Act 1979 (Cth) was amended to include the terrorism offences within the definition of a ‘serious offence’, thereby enabling the interception of telecommunications to assist with the investigation of terrorism offences.

This chapter does not attempt to survey each and every investigative power that the police possess and how these apply in the terrorism context. Rather, it focuses upon the expanded or special powers they have been given to combat the threat of terrorism specifically. There are three sets of powers that are particularly striking in how they deviate from the traditional principles of the Australian criminal justice system, including the presumption of innocence, the notion that detention should only occur after a finding of criminal guilt, and judicial oversight of intrusive police powers. These are: preventative detention orders; pre-charge detention; and modifications to the traditional search warrants system.

Preventative detention orders

The preventative detention regime was part of a suite of legal changes introduced in response to the London bombings of July 2005. Under Division 105 of the Criminal Code Act 1995 (Cth), a preventative detention order (PDO) enables a person to be taken into custody and detained by the AFP for an initial period of up to 24 hours (‘initial PDO’). There is then the option for the AFP to apply to an issuing authority for the order to be continued for a total period not exceeding 48 hours (‘continued PDO’). The time-frame for a PDO at the Commonwealth level is thus relatively limited. This is because the government had concerns about whether a longer period of executive-based detention would be consistent with the strict separation of judicial power under the Australian Constitution. This requires that – with some exceptions – the detention of a citizen in custody may result only from a finding of criminal guilt by a court.

At a Council of Australian Governments meeting in September 2005, the premiers and chief ministers of the states and territories agreed to supplement the Commonwealth preventative detention regime. They did so by enacting legislation which extends the potential period of detention under a PDO to a maximum of 14 days. The state and territory schemes share much in common with Division 105 of the Criminal Code, but there are some important differences, particularly as concerns the applicable safeguards. For example, the legislation in the Australian Capital Territory is especially rigorous in that it adopts what might be called a ‘minimal intrusion’ requirement. The applicant for an order must demonstrate that it is ‘the least restrictive way of preventing the terrorist act’ or that it is the ‘only effective way of preserving the evidence’.1

Who issues an order?

Under the Criminal Code, a member of the AFP may apply to an ‘issuing authority’ for a PDO.

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