Australia’s criminal laws were revised to include a number of Terrorism Offences in the wake of the September 11 terrorist attacks. Prior to 2001, only conventional criminal law provisions, such as murder, bombing, or hijacking of an airplane, could be used to prosecute acts of terrorism. The Commonwealth Criminal Code first included terrorism-related criminal offenses in 2002. These included engaging in terrorist acts as well as a number of offenses related to participating in acts that were terrorist acts’ preludes. Since 2002, a number of additional changes to Australian law have been implemented in an effort to fight terrorism even more effectively.
Law enforcement officials have justified these measures as being required to fight terrorism and safeguard the public, but attorneys and human rights organizations are worried that the rules are gradually eroding our civil liberties.
The main developments in counter-terrorism laws since 2001 are summarized below.
Terrorism offences under the Criminal Code Act
If someone performs a terrorist act, they are in violation of the 2002 legislative revisions and subject to a maximum sentence of life in prison (Section 101.1). In order to further a political, religious, or ideological goal, a terrorist act is defined as “an act or a threat to act that intended to coerce or influence the public or any government by intimidation AND that causes any of the following:
- Death, significant injury, or personal risk;
- Major property damage;
- A major threat to the public’s health or safety;
- Serious disruption of, or damage to, key infrastructure, such as a telecommunications or electrical network.
The Criminal Code now also includes a number of terrorism offences that involve actions leading up to a terrorist act, such as supervising the operations of a terrorist group (Section 102.2), joining a terrorist group (Section 102.3), and lending support to a terrorist group (Section 102.7).
The 2002 amendments also gave the government the authority to designate a group as a terrorist organization if it encourages terrorism by offering advice or prodding people to commit terrorist acts, teaching people how to commit terrorist acts, or praising the commission of terrorist acts in situations where doing so might motivate someone to commit a terrorist act.
Amendments to the ASIO Act
The Commonwealth government controversially amended the ASIO Act in 2003, giving ASIO broad authority to detain and interview suspects of terrorist offenses, including youngsters. The modifications included a clause that permits a 16- to 18-year-old to be held without being charged for up to seven days. This marked a significant change from the Commonwealth Crimes Act’s earlier rules, which only permitted the detention of juvenile suspects for a maximum of two hours. The Human Rights Commission and other human rights organizations criticized the revisions for placing a higher priority on counterterrorism than adhering to human rights documents like the Convention on the Rights of the Child.
Two new criminal offenses involving the publication of information about the detention or interrogation of a suspect under the ASIO Act were added as a result of the modifications to the ASIO Act. After the warrant’s expiration, such a disclosure is currently forbidden for a period of two years. This means that regardless of whether the arrest or custody conditions violate the ASIO Act, media, human rights organizations, and lawmakers are not allowed to discuss them.
Additionally, as a result of the modifications, suspects who are being questioned do not have the same right to remain silent as they would in a typical criminal inquiry and may face charges if they refuse to cooperate. For modifying and limiting the role of attorneys in an investigation, the modifications drew criticism. Suspects are allowed to ask for a counsel, but they must specifically designate the attorney, and there are limitations on what the attorney can say and do while the suspect is being questioned. Lawyers are not permitted to intervene or counsel clients during interrogation, for example.
Introduction of Control Orders and Preventative Detention
Control orders and preventative detention orders were added to the Criminal Code Act in 2005 after yet another amendment. Control orders are directives to limit someone’s freedom in order to safeguard the public from a terrorist threat. Electronic tagging, curfews, house arrest, bans on interacting with particular people, and reporting obligations are just a few of the restrictions that a court may impose as part of a control order. The law regulating control orders was expanded to include teenagers 14 years old and older in 2016.
Since Control Orders can be issued and maintained indefinitely without the subject ever being charged with a terrorism offences, their introduction concerned human rights advocates. Early in 2018, more worries were raised when a number of ministers, including the assistant minister for home affairs, were given the authority to approve requests for control orders.
Preventative Detention Orders (PDOs), which were also created in 2005, permit a person to be held for up to 48 hours in order to stop a terrorist act from happening or to protect evidence related to a recent terrorist incident (Section 105.1). Persons older than 16 can be the subject of PDOS.
High Risk Terrorism Offenders
A plan for the extended detention of high risk terrorist offenders who are judged to pose an unacceptable danger of committing additional terrorism offences at the end of their jail sentence was established in 2016 as a result of another amendment to the Criminal Code. To support this plan, changes were also introduced to the Telecommunications (Interception and Access) Act and the Surveillance Devices Act.
Within a year of a terrorist offender’s sentence expiring, the Attorney General may petition the Supreme Court for a continuing detention order (Section 105A.5). If the offender poses an unacceptably high risk of committing a major crime if released into the community and there is no less stringent measure that will mitigate the danger, the court may issue a continued custody order (section 105A.7). Periodically reviewing an offender’s continued incarceration is required (Section 105A.10).
Australian legal rules that permit the secret detention of suspects without access to counsel have drawn criticism from other countries. To make it clearer who may be charged under these provisions, the UN has proposed that the Criminal Code Act’s loose definition of “terrorist act” be made more specific.
The usage of Control Orders has been sparse, and debates over whether the system should be kept, expanded, or eliminated, as well as whether the orders are an effective use of resources, are raging. In Sydney, the first Preventative Detention Orders were issued in 2014 against three males, and one of them was later charged with terrorist offenses.
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