Overview of the provisions
Division 3A of Part IAA of the Crimes Act provides the Australian Federal Police (AFP) and State and Territory police officers with a number of powers that can be exercised if:
a person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit a terrorist act, or
a person is in a Commonwealth place in a prescribed security zone.
In these circumstances, a police officer may
request the person to provide the officer with the person’s name, residential address, reason for being in that particular Commonwealth place, and evidence of the person’s identity. The person commits an offence if the person fails to comply or provides a false name or address, and
stop and detain the person for the purpose of conducting a search of the person (including searching anything the person has under their control or any vehicles operated or occupied by the person) for a terrorism-related item. Such items, or any other serious offence items, may be seized. The police officer conducting the search must not use more force, or subject the person to greater indignity, than is reasonable and necessary, nor detain the person for longer than necessary.
The Crimes Act provides that the Minister may, upon application from a police officer, declare, in writing, a Commonwealth place to be a ‘prescribed security zone’ if the Minister considers that a declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act that has occurred. A declaration may last for 28 days, and must be revoked earlier if there is no longer a terrorism threat that justifies the declaration being continued or if the declaration is no longer required.
Additionally, regardless of whether it is a Commonwealth place or a prescribed zone, section 3UEA enables a police officer to enter premises without a warrant in an emergency if the police officer suspects, on reasonable grounds, that it is necessary to search the premises for a thing and seize it in order to prevent that thing from being used in connection with a terrorism offence, and it is necessary to do so without a search warrant because there is a serious and imminent threat to a person’s life, health or safety.
The stop, search and seizure powers are to sunset on 7 September 2018.
Reviews in 2013, 2014 and 2017 considered the stop, search and seizure powers.
Council of Australian Government’s review
In its 2013 review, the Council of Australian Government’s (COAG) Committee found that the stop, search and seizure powers were a proportionate legislative response and not arbitrary, as the exercise of the powers required the existence of the connection to a perceived terrorist threat. It added:
While, operationally, this may result in a wider scope of persons questioned and searched in exercise of these powers, the existence of the connection to a perceived threat satisfies the Committee that these provisions are a proportionate legislative response and are not arbitrary.
The COAG Committee recommended that the legislation be amended to require the police authorities exercising powers under section 3UEA (emergency entry to premises without warrant) to report annually to the Commonwealth Parliament on the use of this power. The COAG Committee also recommended that if the provisions were continued beyond their sunset date, a further sunset date of five years should be adopted, and that the relevant legislation should, with the exception of the machinery provisions, cease to exist at the expiry of that period.
These recommendations were not implemented.
Parliamentary Joint Committee on Human Rights review
In 2014, during its review of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook an assessment of whether the stop, search and seizure powers were compatible with human rights. The PJCHR concluded that:
the stop, question, search and seizure powers are likely to be incompatible with a number of human rights including: the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom of movement; the right to privacy; the right to be treated with humanity and dignity; and the rights to equality and non-discrimination.
In his 2017 review, INSLM Renwick concluded that the stop, search and seizure powers are necessary and proportionate to the current threats of terrorism and to national security, and consistent with Australia’s human rights, counter-terrorism and international security agreements, and intergovernmental agreements within Australia.
The INSLM recommended the addition of new safeguards in the form of reporting requirements to the relevant Minster, the Ombudsman, the Committee and the INSLM, to allow those bodies to review any exercise of the powers, including the making of a ministerial declaration. Provided that those safeguards are implemented, INSLM Renwick recommended the provisions be continued for a further five year period:
I do so in substance because … I conclude that the laws have the capacity to be effective (nothing that the laws have not operated in that they have not been used) and the laws are truly ‘emergency’ powers.
Use of the provisions
The stop, search and seizure powers have not been used since their introduction in 2005.
Necessity of the provisions
In a joint submission, the AFP and the Attorney-General’s Department suggested that the value of Division 3A was that it provides a set of nationally consistent counter-terrorism powers that apply to all Commonwealth places, regardless of the State in which the place is located. They continued:
At the time of introduction, the Government acknowledged the powers would provide a common approach for police operating in Commonwealth places throughout Australia. This approach ensures that AFP officers located at Commonwealth places have access to powers which are familiar and well understood. While States and Territories have special counter-terrorism powers, they differ from jurisdiction to jurisdiction.
When the legislation was introduced, the Government indicated the Division 3A powers were intended to dovetail with equivalent State and Territory stop, question and search powers.
The AFP argued that although the stop, search and seizure powers have not been used to date, non-use of the powers does not mean that they are not necessary. According to the AFP:
They fill a critical, albeit narrow, gap in state and territory emergency counter-terrorism powers, by enabling the AFP to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place.
Addressing non-use of the powers, the AFP advised that:
Since the powers were introduced in December 2005, the AFP has not responded to any attacks that have been carried out on a Commonwealth Place. Given the narrow geographical remit of the powers, and given that they are to be used only in very limited circumstances, the AFP would not anticipate frequent use of these powers.
There have, however, been recent threats to Commonwealth places:
To date, there have been three disrupted attacks on Commonwealth places (a planned attack on Holsworthy Barracks in 2009; a planned attack on Garden Island Defence Precinct in 2015; and a planned attack on a flight departing Sydney Airport in July 2017). In each of these instances police were able to disrupt the attacks before it became necessary to exercise powers at the target location (the Commonwealth place).
In the current security environment, the Department and AFP advised that an attack on a Commonwealth place ‘is not unlikely’.
The AFP explained that the purpose of the stop, search and seize powers is so that
police can stop, search and seize either because the area has been declared as a prescribed security zone by the minister or because police have a suspicion, essentially, of a terrorism act. So it just gives police that power to actually do the ‘stop and go through bags’ at an airport scenario. If you get last-minute intelligence you want to make sure you are actually able to stop, search and seize things in that place and act pretty quickly. You won't have time to get a warrant in those situations. That is how it would come about, and that's what it allows police to do effectively.
Jacinta Carroll of the National Security College submitted that the powers were a necessary component of Australia’s counter-terrorism laws:
Stop, search and seizure powers provide police the ability to quickly act in the field where there is concern about terrorism. While this is an intrusive power that is not to be used lightly, it is a necessary element of Australia’s laws, necessitated by the short-turnaround times involved in current threats—typically requiring intervention by first responders rather than investigators— and the reasonable public expectation that authorities act quickly where there is a possible threat and where they encounter persons of concern. That these powers are yet to be used speaks to a mature understanding of these powers by police. These powers have significant value for use in the event of a serious and imminent terrorist threat.
Ms Carroll noted that the powers were not unique to Australia:
The power to stop and search in relation to terrorism is a power found in other comparable jurisdictions, such as the UK, and also in other liberal democracies, such as France. The UK powers, under the Anti-Terrorism Act 2000, have been reviewed and subject to legal proceedings on occasion since their inception, including with reference to their use and the changing terrorist threat environment, including revision in 2011.
Other submitters questioned the need for the powers. The Australian Lawyers Alliance submitted:
They have been available for use for 12 years and during that period numerous raids have been conducted as a part of Australia’s counter-terrorism efforts. As such, we question the need to maintain these extraordinary powers.
Their lack of use also means that there has been no opportunity to test the implementation of these powers, and whether it has been limited to those circumstances where the powers are necessary and proportionate to the threat to which they are responding.
Similarly, the joint councils for civil liberties submitted that the AFP’s observation that State and Territory police officers are likely to be the first responders at any terrorism incident ‘is central to the questioning of the necessity for these extraordinary powers’. The joint councils explained that its
continued opposition to the provisions is based on lack of any solid evidence that there is a dangerous gap in available powers that can justify the continuation of these extraordinary powers which significantly breach rights and extend arbitrary power.
The Human Rights Commissioner, Mr Edward Santow, argued that the suggestion that these powers have a deterrence value is misguided:
It’s difficult … to make an argument that they serve a useful and important deterrence function because they are, of their very nature, police powers. Deterrence has generally been understood to be best achieved through criminal offences as distinct from powers.
Acknowledging the increased threat from lone-actor-type terrorist attacks, the Human Rights Commissioner advised the Committee that
the best way of meeting those threats is to have legislation and other measures that specifically respond to those threats. In a human rights sense, to meet the proportionality requirement there needs to be targeting, clear calibration, as I said at the start, between the specific threat and the specific counterterrorism measure that is designed to address that threat.
In its submission, the Australian Human Rights Commission suggested that in determining whether the powers are a proportionate response to the legitimate need to protect public safety, the Committee should consider whether there is sufficient evidence of their effective use. If the powers are rarely or if ever used then, in the view of the Commission, this would indicate that the pre-existing stop, search and seizure powers at the Federal, State and Territory level are sufficient to prevent terror attacks.
The Committee asked the AFP for an explanation as to the interrelationship between these powers and those of state and territory law enforcement agencies. In response the AFP outlined:
Division 3A was inserted by the Anti-Terrorism Act (No. 2) 2005 following the 2005 COAG decision to strengthen Australia’s counter-terrorism laws. Division 3A expanded the powers of the AFP and State and Territory police forces in relation to terrorist acts. To ensure the AFP had the ability to prevent and respond effectively to a terrorist act, Division 3A extended within Commonwealth jurisdictional limitations the AFP’s powers to stop, question and search people.
While States and Territories have their own special counter-terrorism powers to stop, question and search people, these powers differ from jurisdiction to jurisdiction. Noting the significance of Commonwealth places, and their enduring attraction as targets for terrorist activity, the Government noted, at the time of introducing Division 3A, that there is benefit in having a common approach for policing in Commonwealth places throughout Australia. This ensures that AFP officers, located at Commonwealth places, have access to familiar, well understood and nationally consistent powers when safeguarding Commonwealth places, such as airports.
The Committee also asked the AFP and the Department for hypothetical examples, realistic in the current threat environment, in which each of the powers in Division 3A would be used. The examples provided in response are as follows:
Box 2.1: Hypothetical examples
Garden Island Navy base
‘AFP provides a Uniformed Protection Function at Garden Island Defence Precinct (NSW). The AFP’s function in that regard is to provide for the safety and security of the Precinct and its population along with providing a first response capability in the event of a critical incident.
In this hypothetical example, intelligence indicates that an unidentified person is planning to commit an edged weapon terrorist attack at Garden Island Navy base. A suspect is identified loitering in the public area for a prolonged period of time, constantly keeping his hands in his pocket and trying to secret himself from view of CCTV cameras with a black and white flag visible in his rear pocket. In this scenario reasonable grounds to suspect the person might be about to commit a terrorist act exist to exercise powers under Division 3A. The suspect is approached and required to provide their name and reason for being at the Defence Precinct under section 3UC. The person provides their name and shows a NSW driver’s licence. Intelligence checks identify that they are an associate of a known terrorism suspect. Meanwhile, police search the person under section 3UD, and seize a knife and Islamic State flag found in their possession. The person is arrested on suspicion of planning a terrorist act.’
‘As per subsection 3UB(2), the emergency entry power in relation to terrorism (section 3UEA) is not limited to Commonwealth places. In this hypothetical example, the National Security Hotline receives a tip off about an improvised explosive device hidden in a large shopping centre in Sydney central business district. The device is believed to be controlled by a remote detonator and could be detonated at any moment.
The NSW JCTT must act immediately to prevent the device from exploding. This is a serious and imminent threat to lives in the shopping centre. A delay for the purpose of obtaining a section 3E search warrant (even as an urgent telephone application) would potentially take too long.
The NSW JCTT radios the closest NSW police units to the shopping centre, who exercise emergency entry powers under section 3UEA (noting the Division 3A powers may be exercised by State and Territory police officers, as well as AFP members). Using subsection 3UAE(6), police use reasonable force against persons and things obstructing entry, including breaking doors to enter non-public parts of the shopping centre.
The device is located and secured by NSW police first responders (and the shopping centre evacuated). A police bomb response team is deployed to disable the device, which is then seized under subsection 3UEA(2)(b). Within 24 hours of entry, police notify the occupier of the shopping centre that entry has taken place and provide notice of the item seized.’
Sydney (Kingsford-Smith) Airport
‘The AFP is the primary law-enforcement agency at Sydney Kingsford Smith Airport. AFP Airport Operations officers provide immediate response to policing matters within the airport precincts as well as a coordinated approach to the deterrence of and response to terrorist threats.
In this hypothetical example, the AFP has received credible intelligence indicating that a group of individuals is planning to detonate an improvised explosive device on an international plane departing Sydney Airport in the next few hours. Police only have a general description of the perpetrators and do not know their exact whereabouts. As a result of that intelligence, the Minister makes a declaration under section 3UJ covering Sydney Airport.
Using section 3UM, police systematically approach persons located at Sydney Airport to confirm their identities. Because the airport is now a prescribed security zone, police do not need to establish reasonable suspicion to use the powers in Division 3A.
When approached by police at the check-in counter, one person makes comments about ISIS and infidels. The person is arrested on suspicion of planning a terrorist act. A person-search on arrest reveals the improvised explosives device.’
As noted earlier, INSLM Renwick concluded that the stop, search and seizure powers are necessary and proportionate, stating:
I am persuaded by the information and submissions provided by the AFP and AGD as to the ongoing utility and importance of the powers in div 3A. The fact the powers have not been exercised is a reflection of their limited (but nevertheless important) application. I accept the observation of ASPI [Australian Strategic Policy Institute] that there is a reasonable public expectation that law enforcement authorities will be properly empowered to respond swiftly to a terrorist situation.
The Committee supports the intention of the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914. The ability for the AFP to be able to prevent a terrorist act through the timely use of powers is an essential part of the terrorism prevention framework.
The Committee acknowledges the view expressed by some participants in the inquiry that the non-use of these powers to date indicates that there is no need for their continuation. However, the Committee notes the AFP’s evidence that stop, search and seizure powers ‘fill a critical, albeit narrow, gap in state and territory emergency counter-terrorism powers, by enabling the AFP to act immediately in the event of a terrorist threat to, or terrorism incident within, a Commonwealth place’.
The Committee considers that emergency powers such as these can only be expected to be used in rare and exceptional circumstances. The fact that such circumstances have not yet arisen does not mean that the powers should be discontinued. Should such emergency circumstances arise in the future, it would not be acceptable for AFP officers to be required to rely on state and territory powers for which there is inconsistency across jurisdictions and for which there may be doubt about whether the powers can be used in the particular moment.
A number of plots against Commonwealth places have been disrupted in recent years, which shows that there is a current and real threat to the facilities that these powers are intended to protect. If a terrorist plot developed to the point where, for example, perpetrators had an explosive device at an airport and the relevant AFP officers were not able to, or were not confident in their legal right to, stop a suspect, and search for and seize any device, then the outcome could be dire.
The Committee therefore considers that the stop, search and seizure powers in the Crimes Act should continue in their current form, subject to the additional reporting requirements discussed below.
The Committee recommends that the stop, search and seizure powers provided for under Division 3A of Part IAA of the Crimes Act 1914 be continued.
Prescribed security zones
To date, the AFP has not applied to the Minister for a Commonwealth place to be declared as a prescribed security zone.
The AFP explained the effect of a prescribed security zone as follows:
Where there's a declaration in place, you don't have to have any further suspicion. It just means that it's been recognised externally that this zone is a problem and you can go in and search anything in that zone, whereas for each person who needs to be stopped and searched and there are items seized, the individual officer has to have the suspicion about the terrorism act.
The Committee asked the AFP and the Department to provide an example of a situation in which a prescribed security zone may be declared. In response, the AFP and Department provided the following:
The AFP anticipates that it would apply to the Minister to declare a prescribed security zone in a situation where there is strong intelligence of an imminent terrorism threat directed at a Commonwealth place, or where an attack on a Commonwealth place has just occurred.
For example, if there was an attack at a Commonwealth place, the AFP would consider applying to the Minister for a declaration under section 3UJ. Such a declaration would enable police to systematically stop and search individuals within the relevant Commonwealth place, and request evidence of their identity. These powers would be critical in enabling police to contain the scene of the attack, locate perpetrators, and preserve evidence.
The Law Council of Australia recommended that there should be an obligation on the Minister to periodically review the necessity of a declaration of a prescribed security zone within the 28 day period the declaration is in place. The Law Council submitted:
The broad power of the Minister to declare an area to be a ‘prescribed security zone’ and thus engage the special search and seizure powers has the potential to impact upon the liberty and security of individuals. Moreover, there is no ongoing obligation on the Minister to review the necessity of a declaration within the 28 day period the declaration is in force. This may lead to situations where the liberty of an individual is unnecessarily compromised. In the absence of a mechanism requiring the Minister to consciously decide whether to revoke or extend a declaration, the period imposes a potentially unnecessary and disproportionate intervention upon liberty and security.
In a similar vein, the Australian Human Rights Commission expressed concerns with what it considered to be the lack of meaningful review of the ministerial powers to prescribe a security zone. The Commission recommended that there be consideration as to ‘whether the retention of broad unfettered ministerial powers to prescribe security zones can be justified’. The Commission added:
The breadth of the Ministerial prescription power in Division 3A is not insignificant. It is unclear what matters a Minister will take into account in prescribing a security zone, or indeed to revoke a prescription. The concentration of unfettered power compares unfavourably, for example, when considering the detailed scrutiny a court undertakes in judicially reviewing administrative decision-making, where a specified range of detailed information about the decision-making process is considered.
In response to these concerns, the AFP and the Department noted that:
The duration of 28 days for a declaration is subject to an important safeguard. Under subsection 3UJ(4), the Minister must revoke a declaration made under paragraph 3UJ(1)(a) or (b) if he or she is satisfied there is no longer a terrorism threat justifying the declaration being continued or, where the declaration is no longer required. This ensures that declarations last no longer than necessary to mitigate the risk posed by a terrorist threat, or mitigate the threat to the community in the aftermath of a terrorist act.
The AFP advised the Committee that, if it had to provide a daily briefing to the Minister to allow the daily review of a declaration, ‘it would be invariably [re]source-intensive, particularly in a situation where you’re dealing with a terrorist incident. We have many other challenges to deal with, so I think that would be a challenge for us.’
In response to a suggestion that the Minister be required to review a declaration periodically (weekly for example), the AFP stated:
A requirement to periodically consider a declaration may undermine the purpose of the prescribed security zone declaration which is intended to last 28 days. If the Minister had to formally review the declaration regularly, this may require agencies to provide the same detailed briefing and assessments that initially prompted the making of a prescribed security zone declaration. This may cause delays that prevent law enforcement agencies from acting swiftly to prevent terrorist acts, and divert resources from law enforcement and intelligence agencies whose principal focus during this period will be the prevention of a terrorist act.
The AFP went on to say that:
if the AFP has information that would support revocation of a declaration, a brief outlining that information would be provided to the Minister. The AFP would consider amending relevant internal governance to make clear the AFP’s obligation in this regard. Compliance with internal governance is part of the AFP’s professional standards integrity framework.
INSLM Renwick addressed the suggestion that the Minister powers were unfettered, stating:
I consider that the existing power in s 3UJ is not unfettered; it is clear as to its purpose and the matters which the Attorney-General would take into account in declaring, and where appropriate revoking, a prescribed security zone. Furthermore, the Attorney-General’s exercise of power would be the subject of parliamentary and committee scrutiny by reason of the requirements to publish a statement on any such declaration. Furthermore, the Attorney-General’s decision(s) could be subject to scrutiny in court proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by a person aggrieved by such a decision, although I accept that it is unlikely that any such court challenge could be heard and determined during the period in which the declaration was in effect.
The Committee asked the Department and the AFP whether there were any factors, in addition to those required under the legislation, which the Minister would need to consider before declaring a prescribed security zone. They responded:
Subsection 3UJ(1) does not outline other specific criteria that the Minister must consider when determining whether to declare a Commonwealth place to be a prescribed security zone.
In briefing the Minister to make a decision under section 3UJ, the AFP would provide the Minister with a brief outlining all operational information relevant to the question of whether a declaration would assist:
in preventing a terrorist act occurring, or
in responding to a terrorist act that has occurred.
The content of that information would depend on the circumstances of the threat or attack, but could include information relating to:
the seriousness of the threat or attack,
the credibility of the threat,
the imminence of the attack, and
the nature of the intelligence relied on.
In its 2013 review, the COAG Committee considered whether the Minister should be required to issue reasons for any declaration of a prescribed security zone, concluding that it was ‘not persuaded’:
In this regard, the Committee is conscious of the fact that disseminating operational information can endanger its sources and undermine policing efforts. There is, in the Committee’s view, a sufficient signal generated by the making of a declaration of itself that the nature or scale of an event to occur in a Commonwealth place has invited additional security precautions to mitigate any terrorist threat.
The joint councils on civil liberties argued that the ability of police officers to stop and search people ‘freely and randomly’ significantly undermined a person’s right to privacy and movement. The councils recommended the Committee give consideration to reducing the duration of the declaration from 28 days to 14 days with the capacity for renewal if necessary. The councils added that it was not apparent why a decision to apply for an extension ‘could not be made in good time before the expiry of the initial period so as to avoid any delay or interruption to ongoing police activity.’ They continued
A declaration will continue for 28 days. A state of emergency does not continue in a particular Commonwealth place for that kind of length of time. From the description of what they want the powers for, it sounds like something is about to happen and we need to control this zone more actively for a period of hours. If it were a power that was restricted to 12 or 24 hours, if a declaration in respect of a zone had that kind of time limit on it, then that would be much more consistent with the kind of use that the police are talking about for it. But to have a declaration for 28 days doesn't match what they are saying.
INSLM Renwick, in response to a similar recommendation, stated that
In its review of s 3UJ, the COAG Review Committee recognised that there might be merit in reducing the duration of a declaration, but was cautious about recommending any such change in the absence of evidence to suggest the 28 day period was unreasonable. I have arrived at the same conclusion, including because of the current nature and extent of the terrorist threat. Again, though, if the PJCIS is to be given jurisdiction to review operational matters, it should also be able to review the basis of the minister’s declaration.
The AFP and the Department stated that a reduction of the period for which a declaration is in force to 14 days ‘may prove insufficient for the purposes of mitigating a terrorist threat. If the Minister is required to make a further declaration for another 14 days, this may cause a delay which prevents law enforcement agencies from acting swiftly to prevent, or respond to, terrorist threats and terrorist acts.’ Further,
There may be instances when a terrorist threat in relation to a Commonwealth place could last for an extended duration, which requires the Minister to make a declaration that a Commonwealth place be a prescribed security zone for up to 28 days.
Seeking successive 14 day declarations may cause delays that prevent the police from acting swiftly to prevent, or respond to, terrorist threats and terrorist acts. It may require a diversion of resources from operational agencies whose priority during this period will be the prevention of a terrorist act.
Noting the ongoing attractiveness of Commonwealth places as a target for a terrorist act, especially those which are locations of mass gathering, a declaration that lasts up to 28 days, which is subject to ongoing review by the Minister, is not unreasonable.
The joint councils disputed this argument, saying
What we actually say in our submission is that it’s difficult to conceive of how, really, having to go and apply for an extension is going to make a serious impact on what they’re doing. We have all sorts of electronic means and methodologies of doing things these days, and there’s more than one person doing it, presumably.
The Committee acknowledges calls by some submitters for the maximum duration of prescribed security zones declarations to be reduced, or for a periodic review requirement to be added. The Committee notes that no such declarations have been made to date.
The Committee does not consider a maximum 28 day period for a declaration to be unreasonable. Legislation must be adaptable to a range of emergency situations of variable duration, and the legislation contains a clear requirement for the Minister to revoke the declaration when it is no longer required or justified. Given the likely public and media interest in any declarations—and associated terrorism threat—there would also be a public expectation for the Minister to revoke any declaration that is no longer required. The Committee therefore does not consider a formal requirement for the Minister to periodically review each declaration to be necessary, noting that such a review would have the potential to divert scarce police resources during an emergency situation.
The Committee does not consider the Minister is likely to declare a prescribed security zone without compelling evidence concerning the safety of people and infrastructure within that zone. Any retrospective declaration can occur only after a terrorist act has occurred, and up to 28 days is a reasonable timeframe for the AFP to then exercise its powers to preserve evidence and help prevent any follow-up attacks or threats as perceived.
The Committee agrees with INSLM Renwick and the COAG Review Committee that the Minister’s declaration power is not unfettered, and that it would be subject to external scrutiny when exercised. The Committee considers that a requirement for formal notification to oversight bodies regarding the exercise of these powers is warranted. This requirement is discussed further later in this chapter.
Standard of belief/suspicion
Under section 3UB, a police officer may exercise any of the stop, search and seizure powers if the person is in a Commonwealth place and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act.
The joint councils for civil liberties argued that ‘reasonable grounds to suspect’ is too low a standard, and should be amended to provide that an officer must have a ‘reasonable belief’ prior to exercising powers under Division 3A. The councils added:
Amending the standard of proof to ‘reasonable belief’ would require objective evidence before the exercise of the power. This standard would still permit extraordinary stop, search, and entry in to premises and seizure without warrant if necessary.
It suggested that, given the seriousness of the consequences of the declaration, the higher threshold ought to apply.
INSLM Renwick considered this recommendation at length in his review. INSLM Renwick explained that
When a statute prescribes that there must be ‘reasonable grounds’ for suspecting, it requires facts which are sufficient to induce that state of mind in a reasonable person.
The facts which reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. Where a suspicion arises from idle speculation and has no foundation on the facts, it is not a reasonable one.
INSLM Renwick continued:
the COAG Review Committee declined to recommend that the threshold of ‘reasonable suspicion’ be raised to ‘reasonable belief’ as there was no empirical evidence that this distinction had led to the misuse of police powers, nor that it had operationally altered police behaviour. I agree. Furthermore, I consider the very purpose of the powers in div 3A, requiring swift action in an emergency situation, makes the existing test in s 3UB appropriate. Accordingly, I recommend that this test be retained.
The Committee asked the Attorney-General’s Department and AFP for their views on what the practical implications would be if the ‘reasonable grounds to suspect’ threshold was to be strengthened to ‘reasonable belief’, as recommended by the joint councils. In response, they submitted
The threshold for the exercise of Division 3A powers needs to be considered in light of the purpose of the power. The powers in Division 3A are not directed toward the collection of evidence for offences generally, but are intended to enable the prevention of a terrorist attack which may involve a large number of casualties. For this purpose the threshold is set at an appropriate level.
Currently, the police may exercise stop, search and seize powers in Subdivision B of the Division 3A where an individual is in a Commonwealth place, and the police officer ‘suspects on reasonable grounds’ that the person might have just committed, might be committing, or might be about to commit, a terrorist act (paragraph 3UB(1)(a)).
The powers authorised under Division 3A are designed to be exercised swiftly in response to emergency scenarios, which makes the threshold of ‘suspects on reasonable grounds’ appropriate. In emergency scenarios, it may not be appropriate or in the public interest for police to delay the exercise of stop, search and seize powers in Commonwealth places (particularly places of mass gathering) until sufficient information has been obtained to meet the higher threshold of ‘believes on reasonable grounds’.
State and Territory stop, search and seize power regimes also apply the threshold of ‘suspects on reasonable grounds’ or ‘reasonably suspects’. It is appropriate that the same threshold be applied in relation to the use of these emergency powers in Commonwealth places. In the current operational environment, where low capability techniques may be employed to carry out terrorist acts in a short timeframe, the ability of police officers to respond swiftly to prevent terrorist acts is critical. The effectiveness of the emergency powers in Division 3A may be undermined by increasing the threshold for application to ‘reasonable grounds to believe’.
The Committee supports the intention of the stop, search and seizure provisions to allow police to respond rapidly to terrorism incidents. Police therefore need to be in a position to deploy these powers as required and to do so swiftly. The application of the ‘reasonable grounds to suspect’ standard allows police to act in the most expeditious manner when a threat is suspected.
The Committee notes that the proposal to raise the required standard to ‘reasonable grounds to believe’ has been considered and rejected by the COAG Review Committee and INSLM Renwick on separate occasions. In particular, the Committee notes INSLM Renwick’s conclusion that the current test is appropriate for enabling swift action in an emergency situation. The Committee agrees that the existing threshold should be retained.
Emergency entry to premises powers
The AFP explained the need for the warrantless search entry power in section 3UEA of the Crimes Act as follows:
In general—where investigators have sufficient warning of a terrorism plot prior to it being carried out—the AFP must obtain a search warrant. In urgent operations, the AFP is able apply for a warrant by telephone, under section 3R. The section 3UEA power can only be used in circumstances where the immediacy of the threat is such that there is not even enough time to make a telephone warrant application. To date, the AFP has not been faced with a situation warranting the use of the power under section 3UEA. However, this is not an indication that section 3UEA is unnecessary.
The AFP considers the power would be of critical use in a situation where police have no prior warning of an attack and immediate action is required to protect an individual or the public.
Australian Lawyers for Human Rights considered fundamental rights to liberty and privacy are undermined by the ability of police officers to enter premises without warrant:
The underlying rationale for search and seizure warrants is to authorise officers of the executive to invade a person’s privacy and property on the grounds of reasonable suspicion that the person may commit a crime. The law has kept the exercise of such powers subject to grave vigilance such that fundamental, and indeed defining, democratic institutions including fundamental rights to liberty and privacy are not unnecessarily or arbitrarily abrogated, or placed in a vulnerable position. This is why the separation of powers safeguard enshrined in judicial oversight of the issue of warrants has remained a mostly unmovable rule of law in law enforcement in western democracies throughout history.
The Australian Lawyers Alliance similarly suggested that the powers ‘undermine individuals’ right to privacy by allowing police officers to examine their person or property without a warrant, or indeed any suspicion of wrongdoing.’
The Law Council submitted that, as a matter of principle, it was preferable to review the existing avenues to obtain a warrant to enter a premises and ensure those processes are effective and may be obtained in times of emergency, rather than using these emergency powers:
The Law Council maintains that the existing avenues to obtain a warrant should first be scrutinised and carefully examined by the [Committee], to ensure that they are effective and may be obtained in times of emergency. This will minimise the possibility of use of the emergency powers without a warrant in Division 3A, Part IAA of the Crimes Act. In the Law Council’s view, if the existing avenues of obtaining a warrant to enter a premises and search and seize a thing are time consuming, then regard should be had to streamlining the procedures, given the breadth of the powers. The warrant system ensures that police search and seizure powers are subject to independent and external supervision and may only be satisfied when prescribed statutory criteria are satisfied. Circumventing this process is a significant matter that should not be lightly permitted by the law.
The Australian Lawyers Alliance supported the Law Council’s approach, arguing that warrants must be required before any search takes place. The Alliance added that
warrants must be required before any search takes place. Ex post facto validation is inadequate. While we support increased reporting requirements in line with the COAG recommendation, we also believe that this is inadequate to properly protect the rights that warrants protect. If there is any reform required to facilitate urgent searches, the appropriate reform should ensure that safeguards can also be implemented in a timely fashion, should an urgent need arise. Such reforms might include providing funding for judges to be able to authorise urgent warrants, rather than doing away with essential rights.
Legal Aid New South Wales stated that the ability to enter premises without a warrant was in contrast to the ordinary requirement that law enforcement officers obtain a warrant from a judge or magistrate to exercise such powers. It continued:
The requirement to obtain a warrant ensures that police search and seizure powers are subject to independent scrutiny and reduces the risk that the powers will be misused. In light of the ability to obtain a warrant by telephone in urgent cases, and the fact that the section 3UEA powers have not been used in five years, retention of these powers is not justified.
In its support for the warrantless entry powers, the 2013 COAG Committee noted that it
places particular emphasis on the fact that these are emergency powers intended for use in only genuine emergency situations. In the context of terrorism, we do not consider that there is a need for evidence to justify the conclusion that emergency situations may arise where it is simply impossible or impracticable to obtain a warrant before seizing material that is to be used in connection with a terrorism offence. One has only to contemplate intelligence suggesting the presence of explosives in a house to realise that this is so.
In his review, INSLM Renwick considered, on the basis of recommendations from submitters to his review, whether it would be appropriate for police officers to seek ex post facto authorisation of the emergency entry powers. Such a regime would provide that the legality of the exercise of the powers would be conditional on subsequent authorisation. However, INSLM Renwick was not persuaded that such a regime was necessary:
A warrantless search is able to be scrutinised during a criminal trial where a challenge may be made to the legality of the exercise of power under which any evidence was seized. Section 138 of the Evidence Act 1995 provides the court with the discretion to exclude improperly or illegally obtained evidence, and where evidence obtained during a search is found to be beyond power, the discretion is usually exercised to exclude any such evidence. Furthermore, alleged unlawful entry into premises by a police officer can be challenged in a civil action for trespass. So I do not recommend a regime for ex post facto authorisation.
The Committee notes the extraordinary nature of the provisions in section 3UEA of the Crimes Act, which allow police entry onto premises in order to search for and seize an item—activities that would usually only be lawful under warrant.
Given the purpose of the powers—preventing an imminent attack—it is appropriate that police have access to this power immediately. While a warrant may be available relatively quickly via telephone, this process will inevitably take some time and may not facilitate a response that is fast enough to protect life. The Committee notes that police may only exercise the powers under section 3UEA where it is necessary to do so without a search warrant because there is a serious and imminent threat to a person’s life, health or safety.
The Committee agrees with INSLM Renwick that an ex post facto warrant authorisation framework is not appropriate. Police are required to notify the occupier of the premises within 24 hours after entry under section 3UEA, and there are a range of potential remedies to affected and aggrieved parties should they wish to challenge the lawfulness of the entry.
Instead, the Committee believes that in depth post-event reporting and scrutiny is the most effective means of ensuring the powers are used solely for their intended purpose.
Therefore, the Committee recommends that the emergency entry to premises powers continue, but with increased requirements for notification and reporting after they are exercised, as discussed below.
Oversight and accountability
Presently there is no formal reporting requirement for the exercise of Division 3A powers by the AFP.
Submitters raised concerns about a paucity of oversight. The Australian Lawyers Alliance submitted that ‘there are no safeguards included in the existing legislation to ensure that these powers are not exercised discriminatorily or in bad faith, other than the requirement for suspicion on reasonable grounds … Their absence is a cause for concern’.
The joint councils for civil liberties submitted ‘that the exercise of these powers, especially given the low standard of proof required, must be subject to strong and independent oversight to prevent misuse’.
INSLM Renwick considered oversight issues in his review, and concluded that
it would be both sound and appropriate for div 3A to be amended to require annual reporting to the Minister and oversight by the Commonwealth Ombudsman in the same manner as for delayed notification search warrants. If the powers are not used, no report will be required. The reports should be copied to the INSLM and to the PJCIS.
I note that the PJCIS is currently precluded from considering operational matters such as the exercise of power under div 3A. When that legislation is reviewed, it may be that the PJCIS is to be given a role to consider operational matters by law enforcement and intelligence agencies. If an operational review function is given to the PJCIS, as is recommended in the 2017 Independent Intelligence Review report, the PJCIS should be able to review a Ministerial declaration of a prescribed security zone and powers used following that declaration. In the meantime, I recommend the report should still be copied to the PJCIS.
The Australian Human Rights Commission and Legal Aid New South Wales supported INSLM Renwick’s recommendation that, in the event the powers are retained, oversight by the Commonwealth Ombudsman and annual reporting to the Minister be implemented. The joint councils for civil liberties also endorsed the proposal that the Committee be able to review a ministerial declaration of a prescribed security zone and powers used following that declaration, ‘with a caveat that the reporting should be as transparent to the public as is compatible with operational security’.
The Committee sought the views of the Department and the AFP of INSLM Renwick’s recommendation. They responded:
The additional reporting requirements suggested by the INSLM are proposed to be modelled on reporting obligations that apply in respect of the delayed notification search warrant (DNSW) regime under Part IAAA of the Crimes Act 1914.
These extensive oversight requirements are tied to the covert nature of the DNSW regime. For instance, the DNSW regime can allow for up to 6 months delayed notification of the execution of a warrant so as to not compromise ongoing operations. In such instances, the Commonwealth Ombudsman’s oversight is important to ensure the fair and appropriate application of these powers by the AFP.
In contrast, the powers in Division 3A can only be exercised overtly. Even where premises are entered without a warrant under the emergency entry powers in section 3UEA, the occupier of the premises must be notified within 24 hours of the entry. A further distinction between the DNSW regime and Division 3A is that while the powers under the DNSW regime can only be exercised by the AFP, the powers under Division 3A may be exercised by the AFP, and State and Territory police.
There are also existing oversight mechanisms that operate generally in relation to the actions of police, such as the AFP. For instance, if there was a concern about the use of Division 3A powers by the AFP, this could be investigated by the Commonwealth Ombudsman or the Australian Commission for Law Enforcement Integrity. Similarly, the use of these powers by State and Territory police can be reviewed by the appropriate jurisdictional oversight bodies, such as State and Territory Ombudsman.
In addition, the Independent National Security Legislation Act 2010 (INSLM Act) already provides the INSLM with the mandate to review the operation of counter-terrorism legislation. This includes the power to request information or produce documents for the purposes of performing the INSLM’s function (section 24 of the INSLM Act). This enables the INSLM to seek information and review documents associated with the exercise of powers by the AFP under Division 3A.
Accordingly, while there may be merit in requiring reporting on the use of the powers under Division 3A to enhance transparency, the DNSW regime may not be the most suitable model for determining reporting requirements. Given that it is not anticipated that the powers under Division 3A will be utilised frequently, it may be appropriate that, in addition to the annual report requirement … the AFP must also provide a report to the AFP Commissioner as soon as practicable where they have exercised Division 3A powers. The AFP Commissioner could then provide a copy of the report to the Minister, the Commonwealth Ombudsman and the INSLM.
The AFP would not object to a requirement to publicly report on the number of times that each power under Division 3A is used, for example in an annual report, with appropriate safeguards for sensitive information and ongoing operations.
In addition, the AFP advised at the public hearing:
Reporting after the fact would be fine—we’re happy to make that very transparent. We thought the model that the INSLM was proposing was quite onerous in terms of ombudsman inspections and was modelled off a regime that’s more for the use of powers that happen more frequently and more regularly. Where it’s an extraordinary power, we report on it. If there are any concerns about that power, the Ombudsman would be able to look at what had happened anyway. But we felt that the model itself might be a little bit of overkill.
INSLM Renwick formed the view that continuing the legislation with a sunset provision for a further five years was appropriate.
The joint councils for civil liberties disagreed with the INSLM’s recommended five year timeframe, arguing that lengthy sunset clauses ‘bring a high risk of “extraordinary” provisions becoming “normal” provisions’ and that ‘the longer extraordinary provisions exist under sunset clauses, the less likely they are to be rolled back by governments or parliaments’. As a result, it submitted that, if the powers are to continue, the legislation should incorporate a sunset period no longer than two years ‘to ensure regular review of the necessity and effectiveness of the provision and to ensure the powers continue to be recognised as targeted, extraordinary and temporary’.
The Committee shares the concerns of submitters regarding the lack of oversight for the potential use of Division 3A powers. While there are existing review mechanisms in place—including the INSLM and the Ombudsman, as outlined above—the lack of direct reporting to oversight bodies may hamper the effectiveness of these mechanisms.
The Committee therefore supports in-principle INSLM Renwick’s recommendation for additional reporting requirements in relation to Division 3A, including to the relevant minister, the INSLM and the Committee, subject to operational sensitivities. The Committee accepts the AFP’s concern that the delayed notification search warrant scheme may not be the most appropriate model for these reporting requirements, but considers that any notifications should be made as soon as practicable, taking into account operational priorities. Additionally, the Committee believes that the AFP should be required to report annually on any occasions where Division 3A powers are exercised.
Committee oversight of the stop, search and seizure powers will be in line with other review and oversight functions that the Committee exercises regarding counter-terrorism functions. Under paragraphs 29 (baa) and (bab) of the Intelligence Services Act 2001, it is currently a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code and to report its findings to the Parliament. In order to enable ongoing oversight of stop, search and seizure powers by the Committee, it will be necessary for this provision to be extended to encapsulate Division 3Aof Part IAA of the Crimes Act. The Committee considers that the AFP should be required to brief the Committee, when requested, following any exercise of Division 3A powers.
The Committee notes the INSLM’s comments (paragraph 2.80) regarding the Committee’s ability to consider operational matters in relation to the stop, search and seizure powers, including the potential for the Committee to review a Minister’s declaration of a prescribed security zone. Schedule 1 to the Intelligence Services Act 2001 provides that the Committee must not require a person or body to disclose operationally sensitive information. This clause does not, however, preclude agencies from providing operationally sensitive information when it is relevant to the Committee’s functions. The Committee notes that its work has benefitted from the provision of such information in the past, in cooperation with agencies. In the context of a new role in monitoring and reviewing the AFP’s exercise of stop, search and seizure powers, the Committee expects that it will continue to be provided with sufficient operational information in order to perform this new function.
The Committee recommends that the Australian Federal Police (AFP) be required to provide a report to the AFP Commissioner as soon as practicable after any powers under Division 3A of Part IAA of the Crimes Act 1914 are exercised. A copy of the report should be provided to the responsible minister, the Independent National Security Legislation Monitor and the Committee as soon as practicable. The AFP should brief the Committee when requested.
The Committee further recommends that the Australian Federal Police be required to report annually to the Parliament on the exercise of any powers under Division 3A.
The Committee recommends that the Intelligence Services Act 2001 be amended to enable the Parliamentary Joint Committee on Intelligence and Security to monitor and review the performance by the Australian Federal Police of its functions under Division 3A of Part IAA of the Crimes Act 1914 (the stop, search and seizure powers), including the basis of the Minister’s declaration of a prescribed security zone under section 3UJ. The Committee should be provided with sufficient operational information to enable it to perform this new function.
The Committee considers there is a clear ongoing need for the Division 3A emergency powers in the current volatile security environment, and suggests that they will continue to be required for a number of years into the future. INSLM Renwick recommended that the powers continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will be well positioned to examine the continued need and appropriateness of the Division 3A powers, and how they fit within the security and counter-terrorism framework at that future point.
The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review prior to the sunset date into the operation, effectiveness and implications of the stop, search and seizure powers in Division 3A of Part IAA of the Crimes Act 1914, with the provisions sunsetting after three years.