Bills Digest No. 15 2003-04
Australian Protective Service Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Australian Protective Service
Amendment Bill 2003
26 June 2003
Portfolio: Justice and Customs
The substantive provisions
commence 28 days after the date of Royal Assent
To amend the Australian Protective Service
Act 1987 (the Principal Act) to increase the powers of
protective service officers (or PSOs ) undertaking protective
Information about the history of the
Australian Protective Service (Protective Service) can be found in
Digest No. 152, 2001-2002 (dealing with the Australian
Protective Service Amendment Bill 2002).
The Australian Protective Service
Amendment Act 2002 transferred responsibility for the
Protective Service from the Secretary of the Attorney-General s
Department to the Australian Federal Police Commissioner. It is
intended that the Protective Service will become an operating
division of the Australian Federal Police (or AFP ). Further
legislation is expected to be introduced into Federal Parliament
later in 2003.(1)
The Protective Service has been described as
the Commonwealth Government s specialist protective security
provider .(2) It provides security services at
Parliament House, the office of the Prime Minister, the residences
of the Prime Minister, the Governor-General and other office
holders, sensitive defence establishments, foreign embassies and
the Australian Nuclear Science and Technology Organisation.
It has provided counter-terrorism first
response (CTFR) at security designated airports(3) in
Australia and also provides Air Security Officers (commonly
referred to as air marshalls ) for commercial aircraft. CTFR
capabilities at designated airports have recently been upgraded to
Advanced First Response level. This means that:
APS personnel will receive self-loading pistols
(instead of the current use of revolvers), upgraded bomb appraisal
equipment, and chemical, biological and radiological protective
equipment. The officers will also be required to achieve higher
levels of tactical training, skills and fitness.(4) The
Air Security Officer Program was established in December
Apart from the protective security services
mentioned above, the Protective Service operates competitively with
the private sector to provide such things as training, security
risk management surveys, secure Internet firewalls and other
services to government.(6) Where it has spare capacity,
its services can be contracted to the private sector. In addition
to its counter-terrorist role at major airports, a recent article
reports that the Protective Service provides a community policing
service involving directing disoriented passengers and public,
maintaining civil [order], removing intoxicated persons from
aircraft, bars and public areas and intervening in domestic
Under the Principal Act, the functions of the
Protective Service are to provide protective and custodial services
for and on behalf of the Commonwealth .(8) These
- protecting Commonwealth property or the property of a foreign
country or international organisation
- protecting certain Commonwealth officers(9) and
- protecting internationally protected persons(10),
- keeping persons in migration detention.
As stated above, the Principal Act makes the
Australian Federal Police Commissioner the head of the Australian
Protective Service.(11) The Director of the Protective
Service is responsible, under the AFP Commissioner, for the
administration and operations of the Protective
Service.(12) General Orders dealing with administrative
and operational matters can be issued by the Director with the
written approval of the AFP Commissioner and must be complied with
Powers conferred by the Principal
Act(14) on PSOs include power to arrest without warrant.
Such an arrest can be carried out if a PSO has reasonable
grounds for believing that certain offences have been or
are being committed in relation to persons, places or things
where the Protective Service is performing its functions.
Further, an arrest can only be made if the PSO believes on
reasonable grounds that it is necessary to:
- ensure the person s appearance in court
- prevent the offence continuing or another offence being
- prevent the destruction or loss of evidence, or
- preserve the person s safety or welfare
and that proceeding by way of summons would be
ineffective in achieving these goals.
The relevant offences in relation to which the
arrest without warrant powers can be exercised when a PSO is
performing protective security duties include:
- certain Crimes Act 1914 offences including sabotage,
escaping from custody, and trespassing on Commonwealth
- offences under the Crimes (Internationally Protected
Persons) Act 1976(16)
- offences under the Crimes (Aviation) Act
1991(17) such as hijacking, acts of violence
committed on board aircraft, or other offences affecting
- certain offences under the Defence (Special Undertakings)
- certain offences under the Public Order (Protection of
Persons and Property) Act 1971(19) such as
participating in assemblies (20) involving violence or
an apprehension of violence or property damage in a
Territory(21) or on Commonwealth
- certain offences under the Nuclear Non-Proliferation
(Safeguards) Act 1987(23) such as interfering with
a device used to contain nuclear material or possessing nuclear
- ancillary offences (such as being an accessory, attempt or
incitement in relation to the above offences)(24)
bombing offences under the Commonwealth Criminal
- terrorist act offences under the Commonwealth Criminal
- certain Commonwealth Criminal Code offences such as theft of
Commonwealth property, bribing Commonwealth public officials, and
harming or obstructing Commonwealth public
These offences are important in the context of
the Bill and, for convenience, they are referred to in the Main
Provisions section of this Digest as section 13 offences .
A person arrested by a PSO must be informed
why they have been arrested. If the PSO believes that the arrested
person has a disability or is not fluent in English then reasonable
steps must be taken forthwith to ensure that the person is provided
with an explanation of their arrest.(28)
Once a lawful arrest is made, protective
service officers can, in certain circumstances, search the person,
their clothing and any vessel, vehicle or property in their
immediate control and seize weapons and evidentiary
material.(29) If a search is made of the person or their
clothing then it must be conducted by a PSO of the same sex as the
arrested person unless a PSO of the same sex is not available. In
the latter case any other person who is of the same sex as the
arrested person can be asked by the PSO to conduct the search.
If a person is arrested by a PSO then he or
she must be handed over to a police officer forthwith to be dealt
with according to law.(30) However, an arrested person
who is in the custody of a PSO must be released if there are no
longer reasonable grounds for believing that they have committed an
offence.(31) In general, a PSO must wear a uniform and
identification number and produce an identity card if he or she is
not in uniform but is carrying out an arrest.(32)
Powers are also conferred on PSOs under other
Commonwealth laws. For instance, under the Crimes Act
1914, a protective service officer can require a person found
on prohibited Commonwealth land to provide his or her name and
address. Failure to do so is an offence.(33)
The Bill empowers PSOs to intervene earlier in
relation to potential security incidents when exercising their
protective service functions.
Item 1 inserts
proposed section 18A into the Principal Act.
- a PSO suspects on reasonable grounds a person has just
committed, might be committing or might be about to commit a
section 13 offence (34), and
- the person is in a place, or in the vicinity of a place, person
or thing where the PSO is performing functions under the Principal
then the protective service officer can
request the person to provide their name, residential address,
their reason for being where they are and evidence of their
identity [proposed subsection 18A(1)].
In the circumstances set out in
proposed subsection 18A(2) it will be an offence
not to comply with the request or to give a name or address that is
false in a material particular. Before an offence can occur,
certain substantive and procedural requirements must be met by the
PSO. These are that the PSO:
- makes the
request under subsection (1)
- informs the person of their authority to make the request
- tells the person that it may be an offence not to comply,
- is wearing their identity number (if in uniform) or, if not in
uniform, produces their identity card [new subsection 18A(2)].
The penalty for the offence is 20 penalty
A defence of reasonable excuse is available
[proposed subsection 18A(3)].
Proposed section 18B empowers
PSOs to stop, detain (for the purpose of searching) and search if
the officer suspects on reasonable grounds that a person has
something that is likely to cause or likely to be used to
- substantial damage to a place or thing in respect of which the
Protective Service is performing functions under the Principal Act,
- death or serious harm to a person in respect of whom the
Protective Service is performing functions under the Principal
in circumstances likely to involve the commission
of a section 13 offence.
A PSO can conduct ordinary searches and frisk
searches of people under proposed section 18B. An
ordinary search is a search of a person or articles in their
possession that includes requiring the person to remove their coat,
gloves, shoes and hat and examining those items [proposed
subsection 18B(8)]. A frisk search is defined as a quickly
running the hands over a person s outer garments and examining
anything worn or carried by the person that can be conveniently and
voluntarily removed [proposed subsection
Proposed subsection 18B(3)
deals with what happens if the PSO who detains a person in order to
search them is not the same sex as the detainee:
- if another PSO of the same sex as the detainee is reasonably
available that PSO conducts the search
- if another PSO of the same sex as the detainee is not
reasonably available a police officer or Customs officer (if such a
person is reasonably available) conducts the search
- otherwise another person of the same sex as the detainee who is
asked by the PSO to conduct the search.
When searching a person, a PSO cannot use more
force or subject to a person to more indignity than is reasonable
and necessary [proposed subsection 18B(5)]. When
searching a thing a PSO must not damage the thing by forcing it
open unless the detainee has been given a reasonable opportunity to
open it or it is not possible to give the person that opportunity
[proposed subsection 18B(7)].
Proposed section 18C empowers
PSOs to seize things found as a result of their search. Such things
can only be seized if they are likely to cause or be used to cause
harm or damage involving the commission of a section 13 offence.
Further, seized items must be given to a police officer as soon as
Within seven days after receiving the seized
item the police officer must give a seizure notice to the item s
owner or to the person from whom it was seized [proposed
subsection 18D(1)]. A seizure notice must:
- identify what was seized
- the date of the seizure
- the grounds on which it was seized, and
- state that the item will be forfeited to the Commonwealth if
the owner does not request its return within 90 days of the date of
the seizure notice [proposed subsection
A seizure notice need not be issued if:
- the owner of the thing cannot be identified and the item was
not seized from a person, or
- it is not possible to serve the owner or the person from whom
the item was seized [proposed subsection
If the owner requests the return of the thing,
the police officer must return it unless he or she has reasonable
grounds for suspecting that it is likely to cause or be used to
cause substantial damage to a place or thing or death or serious
harm to a person where the Protective Service is performing its
functions under the Principal Act in circumstances likely to
involve the commission of a section 13 offence [proposed
The thing is forfeited to the Commonwealth if
its owner does not request its return:
- within 90 days of the date of the seizure notice, or
- if a seizure notice could not be served, within 90 days of the
date on which it was handed into police custody [proposed
If the owner of the thing seized requests its
return in accordance with the statutory regime but the police
officer does not return it within 90 days, then within a further 5
days, the police officer must either return the item or ask a
magistrate for a section 18E order.
A magistrate conducting a hearing under
proposed section 18E must allow the owner of the
item to appear and be heard. If the magistrate is satisfied on
reasonable grounds that, if the thing is returned, it might cause
substantial damage to a place or death or serious harm to a person
where the Protective Service is performing its functions then the
magistrate can make an order:
- enabling the police to retain the thing for a specified
- forfeiting the thing to the Commonwealth
- for the sale of the thing and the return of the proceeds to the
- for the sale or disposal of the thing [proposed
If not so satisfied, the magistrate must order
that the thing be returned to its owner [proposed
The Australian Federal Police, the
Australian Federal Police Association and the Community and Public
Sector Union(35) support amendments contained in
the Bill. The AFP submission to the
Senate Legal and Constitutional Legislation Committee inquiry into
the Bill commented:
The Bill improves
and supports the capacities of PSOs to deliver a quality security
response that is commensurate with the variety of suspicious
circumstances that arise at the critical infrastructure,
installations and diplomatic premises where they function. It
reflects the rising national security demands faced by the APS
[Australian Protective Service] and the Australian Federal Police
(AFP) since 11 September 2001.
PSOs have the power to arrest without
warrant in relation to certain Commonwealth offences, however,
before that point is reached, they do not enjoy clear legislative
authority to act in suspicious circumstances. If a PSO is unable to
negotiate the consent of a person to enable action, then the
situation must deteriorate until the conditions for the exercise of
their arrest power is met. That is undesirable in the heightened
security environment since the terrorist attacks in the
USA on 11 September 2001
and Bali on 12 October
The proposed additional powers will allow
the APS to be proactive in preventing security incidents.
Importantly, they recognise that the early discovery and
interception of suspicious behaviours or things, significantly
increases the effectiveness of the AFP/APS to disrupt serious
threats (including terrorist threats) of harm to the public and
damage to critical Commonwealth infrastructure and
And the Government explains in
the Bill s Second Reading Speech
The enhanced powers will permit a graduated
response by protective service officers in circumstances that may
arise when performing protective service functions.
The powers will provide protective service
officers with the flexibility to act quickly in suspicious
circumstances that may arise when performing protective service
The powers are proactive, rather than
reactive or investigative.
Consistent with the proactive aim of the
enhanced powers, they are not as intrusive as the existing arrest
While perhaps not as intrusive as the
existing arrest power, the new powers given to PSOs can be
exercised after satisfying lower threshold tests. For instance, the
test is reasonable suspicion rather than reasonable belief .
Further, the existing power of arrest without warrant can only be
- the person has just committed or is
committing the offence, and
- the arrest is necessary to ensure the
person s appearance before a court or to stop the offence occurring
- proceeding by way of summons is not
In contrast, new powers to require a
person to provide their name, address, their reason for being where
they are and evidence of their identity can be exercised in
relation to section 13 offences that a person might have just
committed, might be committing or might be about to commit
Further, the amendments abrogate a
person s right to silence and in certain circumstances enable a
person to be detained (so that a search can be conducted) and
provide new powers of search and seizure.
The right to silence is a fundamental
common law rule which operates both when people are questioned by
the police and when they are on trial. Pre-trial, the right has
primary and secondary aspects, as indicated by the High Court in
Petty v. The Queen (1991) 173 CLR 95. In that
case, the High Court said:
A person who believes on reasonable grounds
that he or she is suspected of having been a party to an offence is
entitled to remain silent when questioned or asked to supply
information by any person in authority about the occurrence of an
offence, the identity of the participants and the roles which they
played. That is a fundamental rule of the common law which, subject
to some statutory modifications, is applied in the administration
of the criminal law in this country. An incident of that right to
silence is that no adverse inference can be drawn against an
accused person by reason of his or her failure to answer such
questions or provide information. To draw such an adverse inference
would be to erode the right to silence or to render it valueless
There may be practical as well as
in-principle reasons for supporting a general right to silence. As
one writer has observed:
The purpose of the right to silence is not
to deprive the state from gathering incriminating evidence or
useful intelligence, but rather to prevent abuses of state power.
It is a mark of a free society and an essential guarantee of human
dignity that individuals should have a meaningful choice whether or
not to speak to authorities.
there is a wealth of research suggesting
that due process safeguards may produce more efficient outcomes for
law enforcement. For example, the statutory requirement to tape
interviews protects suspects from the risk of fabricated
confessions ( verbals ), but also protects officers from the risk
of false accusations of brutality or impropriety in the course of
questioning that might lead to the exclusion of critical
The right to silence is also an integral
aspect of the presumption of innocence, ensuring that the
prosecution must, in general, prove a person s guilt.
In Petty, the High Court
referred to exceptions to the general right to silence under
criminal and regulatory statutes. Some of these exceptions are
found in Commonwealth law. For instance, under section 3V of the
Crimes Act 1914 (Cwlth) a constable who believes on
reasonable grounds that a person may be able to help in inquiries
related to an indictable offence can ask that person to provide his
or her name or address, or both. If a constable makes such a
request, informs the person why the request is being made and, if
asked, identifies himself or herself then a person cannot refuse to
provide the information without a reasonable excuse. Under section
89 of the Crimes Act 1914, after producing an
authorisation, certain persons, including PSOs can request a person
who is found on prohibited Commonwealth land to supply their name
and address.(42) Failure to comply is an offence
punishable on conviction by a maximum fine of 10 penalty units
The right to silence has been removed in
relation to some investigations by other authorised officers and
investigative agencies. For example, under the Road Transport
Reform (Dangerous Goods) Act 1995 (Cwlth) an authorised
officer can direct a person to answer questions in order to find
out whether the statute is being complied with. It is an offence to
fail to comply with such a direction, without reasonable excuse.
Bankruptcy investigations(43), Royal Commission
hearings(44) and investigations by bodies such as the
Australian Securities and Investments Commission(45) and
the Australian Crime Commission may involve compelled
evidence.(46) Most recently, the Australian Security
Intelligence Organisation has been empowered, under administrative
warrant, to compel suspects and non-suspects who may have
information about terrorism to provide answers to
The right to silence is abrogated in a
number of respects by the Bill. Not only
may a person be required to disclose their name and address but
also their reason for being where they are and evidence of their
identity. Statutory regimes which compel answers to questioning
often provide that information obtained directly from this process
cannot be used in legal proceedings. However, the Australian
Protective Service Amendment Bill 2003 places no restrictions on
the use that might be made of compelled information in legal
Next, while the Second Reading Speech
states that the new powers for PSOs are proactive not
investigative, the lines between police investigation and new PSO
powers under which a person may be required to provide information
about why they are where they are seem blurred.(48) At
present, AFP officers do not possess the powers proposed for the
Protective Service by the Bill. However,
it appears that equivalent powers are contemplated as part of a
legislative package designed to integrate and AFP and the
Additionally, it is noteworthy that a
person subject to the proposed legislative regime may have fewer
rights than a person who has been arrested by police an arrestee s
rights include a right of silence, a right to contact a lawyer, a
right to seek bail and limits on the time that they may be
detained. A person subject to the new regime may also have fewer
rights than a person arrested without warrant under the Principal
Act. For instance, under the Principal Act an arrested person must
be told why they have been arrested and released in specified
circumstances. While the Bill provides
where a person is detained it is for the purposes of search, there
are no express limits on such detention. Nor, at least at present,
are PSOs subject to a statutory complaints regime like the one that
exists for Australian Federal Police officers under the
Complaints (Australian Federal Police) Act
Under the Principal Act, PSOs have
powers relating to a range of very serious offences such as
terrorist acts, terrorist bombings and aircraft hijackings. The
Principal Act also gives them powers in relation to public order
offences of the sort that authorities are concerned may occur when
people exercise their right to protest .(50) Foreign
embassies, Parliament House, and other places at or in the vicinity
of which the Protective Service provides protective security may be
sites of public protest action.
There is a range of possible section 13
offences that a protective service officer, performing protective
security duties, may suspect that a person might have just
committed, might be committing or might be about to commit when
protest action is occurring. Some of these offences are relatively
minor, others more serious. For instance, the Public Order
(Protection of Persons and Property) Act 1971 creates offences
- participating in assemblies involving an
apprehension of violence or unlawful property damage in a Territory
or on Commonwealth premises(51)
- intentional acts of violence or property
damage while participating in an assembly in a Territory or on
- intentionally causing personal injury or
property damage while participating in an assembly in a territory
or on Commonwealth premises(53)
- causing unreasonable obstruction while
participating in an assembly in a Territory or on Commonwealth
- using weapons, missiles or destructive,
noxious or repulsive objects or substances in such an
- trespassing on Commonwealth
- causing unreasonable obstruction of, or
behaving in an offensive or disorderly manner on, Commonwealth
Under the Criminal Code, relevant offences
might include obstructing Commonwealth public
Questions may arise about how the powers to
require a person to give information and, in appropriate
circumstances, to detain, search and seize might be used and what
effect they might have on political protests.
An implied constitutional freedom of
political communication has been recognised by the High Court. The
Court has indicated that various forms of political communication,
including expressive conduct, may be protected by the implied
freedom.(59) In Lange v. Australian Broadcasting
Corporation(60), it set out a two-part test to be
applied to laws or actions which may infringe the constitutional
- does the law effectively burden freedom of
communication about government or political matters either in its
terms, operation or effect?
- if it does, is the law reasonably
appropriate and adapted to serve a legitimate end, the fulfilment
of which is compatible with the maintenance of representative and
responsible government as set out in the Constitution?
A law will only be unconstitutional if
the answers to these questions are yes and no
respectively.(61) Clearly, the freedom is not an
absolute one.(62) Laws prohibiting or restricting
political communication which serve some legitimate end, such as
the protection of life or the public interest. In Levy v.
Victoria, Chief Justice
while the speaking of words is not
inherently dangerous or productive of a tangible effect that might
warrant prohibition or control in the public interest, non-verbal
conduct may, according to its nature and effect, demand legislative
or executive prohibition or control even though it conveys a
political message. Bonfires may have to be banned to prevent the
outbreak of bushfires, and the lighting of a bonfire does not
escape such a ban by the hoisting of a political effigy as its
centrepiece. A law which prohibits non-verbal conduct for a
legitimate purpose other than the suppressing of its political
message is unaffected by the implied freedom if the prohibition is
appropriate and adapted to the fulfilment of that purpose. Such a
law prohibiting or controlling the non-verbal conduct, if it be
reasonable in extent, does not offend the constitutional
Attempts to overturn laws using freedom
of political communication arguments have so far been relatively
unsuccessful, as have attempts to argue constitutional protection
for freedom of movement and association.(64)
- See, for example, evidence before the Senate
Legal and Constitutional Legislation Committee inquiry into the
Australian Protective Service Amendment Bill 2003, 23 July 2003,
Committee Hansard, pp. L&C 15-16. In evidence before
the Committee, Federal Agent Fagan foreshadowed that legislation
being drafted to effect APS/AFP integration would give equivalent
powers to police.
- House of Representatives, Parliamentary
Debates (Hansard), Second Reading Speech, Australian
Protective Service Amendment Bill 2002.
designated airports are: Canberra, Sydney, Melbourne, Hobart, Brisbane,
Coolangatta, Cairns, Darwin, Alice
Springs, Perth and Adelaide.
Australian Federal Police. Submission to the Senate Legal
and Constitutional Legislation Committee Inquiry into the
Australian Protective Service Amendment Bill 2003.
- The Attorney-General s Portfolio,
Counter-terrorism measures , Budget 2002-2003, Fact Sheet
2, p. 1.
- Minister for Justice and Customs, Increased
commitment to air security , Media Release, Budget
2002-2003, 14 May 2002.
- See http://www.aps.gov.au (accessed 12
- Chris Chatterton, A history of the Australian
Protective Service 1917-2000 , AUSPOL: the Official Publication
of the Australian Federal Police Association and the ALAJA,
2001, pp. 15 18.
- Section 6, Principal Act.
- Such as the Governor-General, a Minister,
Senator or Member of the House of Representatives, or a High Court
judge. See the definition of office under the Commonwealth in
section 6 of the Principal Act.
- An expression defined with reference to the
Crimes (Internationally Protected Persons) Act 1976.
- Section 5, Principal Act.
- Section 11, Principal Act.
- Section 12, Principal Act.
- These statutory powers and duties are
additional to any powers or duties conferred by other Commonwealth,
State or Territory laws see section 21 of the Principal Act.
- See subparagraph 13(2)(a)(i), Principal
- See subparagraph 13(2)(a)(ii), Principal
- See subparagraph 13(2)(a)(ii), Principal
- See subparagraph 13(2)(a)(iii), Principal
- See subparagraph 13(2)(a)(iv), Principal Act.
Offences under section 11 of the Public Order (Protection of
Persons and Property) Act 1971 are excluded. These offences
relate to trespass on or unreasonable obstruction of premises in a
- An assembly consists of not less than three
persons assembled for a common purpose and includes the conduct in
connexion with that common purpose of all or any of the persons in
the assembly [subsection 4(1)].
- In general, the word Territory is defined in
the Act as the ACT, Jervis Bay Territory, Christmas Island or Cocos
(Keeling) Islands [subsection 4(1)].
- See subsection 6(1), Public Order
(Protection of Persons and Property) Act 1971. Commonwealth
premises are premises in a State or Territory which are occupied by
the Commonwealth or a Commonwealth public authority [subsection
- See subparagraph 13(2)(a)(v), Principal
- See paragraph 13(2)(b), Principal Act.
- See paragraph 13(2)(ba), Principal Act.
- See paragraph 13(2)(bb), Principal Act.
- See paragraph 13(2)(c), Principal Act.
- Section 15, Principal Act.
- Section 16, Principal Act.
- Section 17, Principal Act.
- Section 18, Principal Act.
- Section 20, Principal Act.
- Section 89, Crimes Act 1914.
- See the description of these offences in the
Background section of this Digest.
- The registered union for PSOs.
- Australian Federal Police,
Submission on the Australian Protective Service Amendment Bill
2003, 21 July 2003, pp. 1 2.
- Senator Ian Campbell, Second Reading Speech,
Australian Protective Service Amendment Bill 2003, House of
Representatives, Hansard, 26 June 2003, p. 12649.
- See subsection 13(1), Principal Act.
- See proposed paragraph 18A(1)(a).
- (1991) 173 CLR 95 at 99 per Mason CJ, Deane,
Toohey & McHugh JJ.
- Simon Bronitt, Constitutional rhetoric v
criminal justice realities: unbalanced responses to terrorism?
(2003) 14 Public Law Review, pp. 76 80.
- Section 89, Crimes Act 1914.
- Subsections 81(11), 81(11A) and 81(17),
Bankruptcy Act 1966.
- For example, sections 6 and 6A, Royal
Commissions Act 1902.
- Subsections 63(1) and 68(3), Australian
Securities Investment Commission Act 1989.
- New South Wales Law Reform Commission,
The Right to Silence, Report No. 95, July 2000.
- Australian Security Intelligence
Organisation Amendment (Terrorism) Act 2003.
- For a discussion of similar issues in the
context of recent amendments to the Australian Security
Intelligence Organisation Act 1979, see Bronitt, op. cit.
- See endnote 1.
- In 1997, the Joint Standing Committee on the
National Capital and External Territories reported on A Right
to Protest on national land and in the parliamentary zone. The
Committee s view, the combination of Australian democratic
traditions, implied constitutional guarantees and international
obligations provides a basis for accepting that such a right
Once it is
established that a right to protest is a basic tenet of Australian
society, it follows that the Australian people must be able to
exercise that right on national land. The Committee agrees with
those who, in submissions to the inquiry, suggested that there is
no more appropriate place to voice their opinions than in the
nation s capital.
that Australians have a right to protest on national land, it also
must be accepted that such a right carries with it certain
obligations. Democracy recognises the rights of individuals but
does not elevate the interests of the individual above all others.
Instead, it seeks to balance those interests with the interests of
the community as a whole.
obligation is to ensure that the right to protest on national land
is exercised with due regard to public safety and public order.
This necessitates appropriate legislative and administrative
arrangements which facilitate protest activity but do not allow the
rights of other users of national land to be infringed. (p.
- Subsection 6(1), Public Order (Protection of Persons and
Property) Act 1971. Maximum penalty 20 penalty units. As a
result of section 11 of the Parliamentary Precincts Act
1988, the Public Order (Protection of Persons and
Property) Act 1971 applies to the parliamentary precincts as
if they were Commonwealth premises within the meaning of the
latter. However, there appears to be some doubt about whether land
which is within the parliamentary zone but outside the precincts is
Commonwealth premises for the purposes of the Public Order
(Protection of Persons and Property) Act 1971. See
Attorney-General s Department, Submission to the Joint Standing
Committee on the National Capital and External Territories Inquiry
into The Right to Protest or Demonstrate on National Land,
28 June 1995.
- Subsection 6(2), Public Order (Protection
of Persons and Property) Act 1971. Maximum penalty 12 months
 Subsections 6(2) & 7(1),
Public Order (Protection of Persons and Property) Act
1971. Maximum penalties 5 years imprisonment in the case of
actual bodily harm; 3 years imprisonment for property damage.
- Subsection 9(1), Public Order (Protection
of Persons and Property) Act 1971. Maximum penalty 20 penalty
- Section 10, Public Order (Protection of
Persons and Property) Act 1971. Penalties ranging between 20
penalty units and 6 months imprisonment.
- Subsection 12(1) Public Order (Protection
of Persons and Property) Act 1971. Maximum penalty 10 penalty
- Subsection 12(2) Public Order (Protection
of Persons and Property) Act 1971. Maximum penalty 20 penalty
- Section 149.1, Criminal Code. Maximum penalty
imprisonment for 2 years. The expression Commonwealth public
official is defined in the Criminal Code and includes the
Governor-General, Ministers and Parliamentary Secretaries, Members
and Senators, Commonwealth judges, Commonwealth public servants,
and Australian Federal Police Officers.
- Levy v. Victoria (1997) 189
CLR 579 at 594 per Brennan CJ.
- (1997) 189 CLR 520.
- N. Hancock, Terrorism and the Law in
Australia: Legislation, Commentary and Constraints , Department of
the Parliamentary Library, Research Paper No. 12
2001-2002, p. 48.
- For further details see Max Spry, What is
political speech? Levy v. Victoria , Research
Note No. 2, 1997/98, Department of the Parliamentary
- (1997) 189 CLR 579 at 595.
- See Tony Blackshield & George Williams,
Australian Constitutional Law & Theory. Commentary &
Materials, 3rd ed, Federation Press, 2002.
14 August 2003
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