Division 3A of Part IAA of the Crimes Act 1914
2.1
This chapter discusses the powers available to the Australian Federal Police (AFP) in relation to terrorist acts and terrorism offences under Division 3A of Part IAA of the Crimes Act 1914 (Cth) (‘Crimes Act’).
Overview of the stop, search, seizure and entry powers
2.2
The Crimes Act provides that the relevant Minister may declare a Commonwealth place a ‘prescribed security zone’ following an application from a police officer for the purpose of preventing a terrorist attack, or in response to a terrorist attack. A prescribed security zone may be in place for a period of 28 days, but must be revoked if there is no longer a terrorist threat justifying the existence of a prescribed security zone.
2.3
A police officer may exercise a range of powers when there are suspicions on reasonable grounds that the suspected person may have, or be about to commit, a terrorist offence.
2.4
A police officer may:
request a person’s name, address, their reasons for being that place and for evidence of identity (stop powers) where an individual commits an offence if they fail to comply or provide a false identity;
conduct a search for a terrorism related item. Such a search could be a standard search or frisk of a person, a search of a vehicle owned or operated by the person, a search of any item under the immediate control of said person, including an item they have bought into a Commonwealth place (search powers); and
seize an item which is found in the course of the searches described above, provided the item is a terrorism related item or an item related to a serious offence (seizure powers); and,
In carrying out these powers, an officer is not permitted to use more force or subject the individual to more indignity than is reasonable and necessary, nor detain the individual for longer than necessary to give effect to the intention of the powers.
2.5
Regardless of whether a Commonwealth place has been declared a prescribed security zone, a police officer may enter premises without a warrant if the officer suspects on reasonable grounds that it is necessary to enter premises to seize an item in order to prevent a terrorism offence from occurring and it is necessary to do so due to an imminent and serious threat to a person’s life and safety (entry powers).
2.6
The powers have not been used since their introduction.
Prior reviews
2.7
As discussed in Chapter 1, the stop, search and seizure powers have been reviewed by the Committee and the Independent National Security Legislation Monitor (INSLM) previously, and on each occasion the continuation of the powers was recommended.
2.8
Additionally, the powers were considered by the Council of Australian Governments (COAG) and the Parliamentary Joint Committee on Human Rights (PJCHR).
Council of Australian Governments review
2.9
In 2013, the COAG considered counter-terrorism powers, including the stop, search and seizure provisions.
2.10
The COAG considered that the nexus of the intrusive stop, search and seizure powers was an imminent or executed terrorist act, and that the powers were therefore proportionate to the threat posed.
2.11
In relation to the entry powers that were not tied to the establishment of a prescribed security zone, COAG said there were exceptional circumstances in which the powers would be used:
In overall response to the criticisms advanced, the Committee 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.
2.12
The COAG recommended that the powers be extended for an additional five years, but should cease to exist at that time. The COAG also recommended additional reporting requirements for use of the powers.
Parliamentary Joint Committee on Human Rights review
2.13
The PJCHR considered the compatibility of the stop, search and seizure powers with human rights when scrutinising the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘Foreign Fighters Bill’).
2.14
The PJCHR said that the stop, search and seizure powers were intrusive and touched on a number of human rights considerations. The PJCHR said that the powers had been introduced prior to the establishment of the PJCHR and therefore, there had been no prior scrutiny of the proportionality of the intrusion on human rights.
2.15
The PJCHR said that there was a lack of evidence-based consideration of why the continued threat of terrorism necessitated the existence of the intrusive powers. The PJCHR also said that the statement of compatibility with human rights included as part of the Foreign Fighters Bill did not include the appropriate evidence base to justify the continuation of the powers.
2.16
The PJCHR concluded that the stop, search and seizure powers were likely to be incompatible with human rights:
…the committee considers 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.
2.17
In addition, the PJCHR also recommended that the powers not be expanded until reviewed by the Committee and by the INSLM. As discussed in Chapter 1, following review of the stop, search and seizure powers, the Committee and the INSLM concluded that the powers were necessary, proportionate and appropriate and should be continued.
Necessity of powers
2.18
As mentioned above, the Division 3A powers have not been used since their introduction. The former INSLM said in his 2017 report that the powers are designed for narrow circumstances that have not yet arisen, where:
the powers can only be used in a Commonwealth place (with the exception of a 3UEA); and
they are complementary to State and Territory schemes where it would be anticipated that those powers would be more likely to be enlivened if required.
2.19
The AFP said that lack of use does not indicate a ‘lack of utility’ and said that these powers ‘fill a gap’ that exists in respective state and territory emergency frameworks and ensure that police ‘can respond immediately in the event of a terrorist threat’ in Commonwealth places.
2.20
The joint submission provided by the Attorney-General’s Department, the AFP and the Department of Home Affairs (‘Joint-agency submission’) said that the current threat environment necessitated the continued existence of the powers:
This need continues in the current threat environment, with plots likely to materialise with little forewarning, and a heightened risk of terrorism at places within Commonwealth jurisdictions, notably airports. The potentially catastrophic consequences of a terrorist attack on places of national significance, or in places of mass gathering, provides a proper basis for the continued existence of these unique powers.
2.21
The Muslim Legal Network of New South Wales (MLN NSW) recommended the stop, search and seizure powers be allowed to sunset, ‘in light of the other available State and Federal police powers that deal with the threat of terrorism.’ Further, the MLN NSW said that:
…the threat of terrorism, whether it be from foreign sources or based on home-grown ideologies, such as the Australian far-right extremist responsible for the Christchurch terrorist attack in 2019, is a serious threat to the community however, our counter-terrorism laws should not result in the weakening of the legal protections which are fundamental to our democratic society.
2.22
The Law Council of Australia did not oppose the continuation of the powers for a period of no more than three years, contingent on amendments to address aspects of the powers.
2.23
The Australian Human Rights Commission (AHRC) recommended that the warrantless emergency entry powers be repealed, but considered that the Committee may find the powers to be consistent with Australia’s human rights obligations:
In the context of the current security environment, the Commission considers that it would be open to the Committee to find that the stop, search and seize powers that are limited to Commonwealth places are consistent with Australia’s human rights obligations, subject to a reduction in the maximum duration of a declaration of a prescribed security zone.
Statutory safeguards for stop, search, seizure and entry powers
2.24
The Australian National University - Law Reform and Social Justice Research Hub (ANU-LRSJ) raised concerns about the lack of safeguards for journalists. It compared the Crimes Act to the Telecommunications (Interception and Access) Act 1979 (Cth) which requires the decision-maker to take into account whether public interest in a possible breach of confidentiality of sources outweighs the public interest in issuing the warrant itself, when deciding to issue a warrant against a journalist.
2.25
The ANU-LRSJ said that lacking similar protections, the Crimes Act could be used to avoid similar restrictions in other Acts and ‘erode the freedom of journalists to investigate issues in the public interest.’
2.26
The ANU-LSRJ said the Division 3A powers were an important means to combat national security threats:
When the powers contained in this division are used in conjunction with the powers in relation to terrorist acts and terrorism offences in Division 3A, they provide an important means for law enforcement agencies to combat national security threats.
2.27
Section 3UEA gives a police officer the power of emergency entry to premises without a warrant if the police officer reasonably suspects that:
a) it is necessary to exercise a power under subsection (2) in order to prevent a thing that is on the premises from being used in connection with a terrorism offence; and
b) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety.
2.28
The police officer may search for and seize the thing they reasonably believe was being used in connection with a terrorism offence.
2.29
This section’s powers extend to allowing an police officer to secure premises for the purposes of obtaining a warrant under Part IAA if they find an item, not the item originally looked for, which the officer reasonably suspects to be relevant to anther offence. The premises may not be secured for longer than reasonably necessary to obtain the warrant.
2.30
The AFP said that these powers were necessary and ensured that police can ‘respond immediately’ to extreme circumstances:
Though the section 3UEA emergency entry powers are not restricted to Commonwealth places, they are limited to circumstances where it is necessary to enter premises without the authority of a search warrant to prevent a thing being used in connection with a terrorism offence and there is a serious and imminent threat to a person’s life, health or safety. The AFP continues to consider that this power is appropriate given the extreme circumstances contemplated for its use.
2.31
The AFP reiterated that these powers have not been used since their introduction, however argued that this did not reflect their usefulness or provide validity to calls for this powers to be repealed:
Operational circumstances have allowed the AFP to obtain a search warrant or, where urgent, apply for the warrant through the section 3R application process. The section 3UEA power is restricted to circumstances where the immediacy of the threat is such that there is no alternative beyond an immediate response.
2.32
The AHRC said that warrantless anti-terrorism powers were used by Victorian police officers during Operation Rising in 2015. The AHRC said that a warrant was sought and issued under s 3E of the Crimes Act 1914, but noted general comments from the judge in civil action arising from the conduct:
These measures conferred on police, and other law enforcement agencies, extensive powers to interfere with the liberty, privacy and personal integrity of suspected terrorists. …
It is imperative that police exercise these powers with care and discretion, and only when the conditions for their exercise exist.
2.33
A number of submitters raised concerns that these powers severely impacted the rights to home and privacy without judicial oversight.
2.34
A submission received from a group of legal academics (the Academic Submission) said the warrantless search powers violated the rights to home and privacy:
Searches of private property violate the rights to home and privacy. For this reason, and in order to limit the potential for misuse of power by a police officer, it is important that searches are subject to judicial oversight. In each case, it should be for a magistrate or judge to weigh any evidence of a criminal offence having been committed, or being imminent, and determine whether that evidence is sufficiently strong to justify a violation of the rights to home and privacy.
2.35
The Academic Submission said that a ‘compelling justification’ should be demonstrated ‘before a police officer is permitted to conduct a search of private property without judicial supervision’. Their submission acknowledged the justifications provided by the National Security Legislation Discussion Paper released prior to passage of the legislation, which detailed the operational issues caused by the process of obtaining a warrant, however said that:
In our opinion, the AFP should only be given the power to conduct warrantless searches as a last resort. We note that police officers are already able to obtain a search warrant by a variety of means (including phone and fax) at short notice. Another option that might be explored in preference to warrantless searches is the establishment of a duty judge system whereby applications for search warrants could be received and considered on an expedited basis. There is no evidence that such a system would be insufficient to respond to McClelland’s concerns.
2.36
The ANU-LRSJ said it was concerned about this power:
We accept that warrant schemes need to be efficient, but contend that efficiency should not come at the cost of fundamental common law rights or rule of law values. As noted in earlier submissions, ‘searches of private property violate the rights to home and privacy’. In this context we agree that searches should be subject to independent judicial oversight. This step allows an appropriate balancing of considerations by a trained judicial officer.
2.37
The ANU-LRSJ further considered the implications of the recent court ruling in Smethurst v Commissioner of Police and its potential impact in future cases of warrantless entry:
As outlined above, even where a warrant is not validly issued, the Smethurst case allows the AFP to retain collected materials for further investigation. It is not clear how this ruling would apply to warrantless search powers if such powers were exercised in circumstances that do not meet the test set out in s 3EUA of the Act. In effect, it is possible that the finding the Smethurst case significantly weakens the (already limited) protection afforded by notifying an individual of a search as even where they are able to successfully challenge the search they may not be able to recover the material and may still be subject to further investigation. In the case of warrantless searches, this could in effect grant the AFP a very broad search power, which even if used incorrectly may allow them to keep collected material.
2.38
Subsection 3UEA of Division 3A provides that no more than 24 hours after entry, a police officer must notify the occupier of the premises of entry, or where not possible to do so, to leave a written notice of entry. However there is no requirement for a warrant to be sought after the fact. The Academic Submission recommended the Act be amended to provide for the inclusion of a the requirement to obtain an ‘ex post facto’ warrant as soon as possible after the search has been conducted:
Such a warrant would be issued on the basis that there were some reasonable grounds for the member to suspect that: (a) a thing is on the premises that is relevant to a terrorism offence, whether or not the offence has occurred; (b) it is necessary to exercise the warrantless search power in order to prevent the thing from being used in connection with a terrorism offence; and (c) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person’s life, health or safety. If an ex post facto search warrant is not granted, this should have the consequence that any evidence identified by the police officer in the course of the search is inadmissible in court. The effect of this amended regime would be to place the onus of justifying the search upon the police officer, as opposed to requiring the occupier of the premises to prove that it was invalid.
Prescribed security zones
2.39
Subdivision C of Part IAA enables the Minister to declare a Commonwealth place a ‘prescribed security zone’ if they consider that the declaration would assist in preventing or responding to a terrorist act. This declaration lasts for 28 days, unless it is revoked by the Minister before then.
2.40
This power effectively allows a police officer to utilise any of the stop, search or seizure powers contained in Division 3A without any requirement to hold a reasonable suspicion that a person is, or may be, involved in a terrorist act.
2.41
In its submission, the Department of Home Affairs outlined the criteria required to declare a prescribed security zone:
The AFP Minister may declare a Commonwealth place to be a prescribed security zone if he or she considers that a declaration would assist in preventing a terrorist act occurring, or in responding to a terrorist act that has occurred.
2.42
The Department of Home Affairs said that in an international context, the powers provided to the AFP related to prescribed security zones are proportionate:
UK legislation also provides for the equivalent of ‘prescribed security zone’ powers, which have greater scope and lower thresholds than those set out in the Australian Crimes Act.
2.43
A number of submitters raised concerns in relation to prescribed security zones, the level of ministerial discretion, their proportionality and their impact on human rights.
2.44
The Law Council said it was concerned regarding the level of ministerial discretion afforded in the existing legislation, where the Minister only needs to consider if a declaration would ‘assist’ in preventing or responding to a terrorist act:
The Law Council is concerned that this is a disproportionately low threshold, given the highly intrusive nature of the warrantless powers of stop, search and seizure in a prescribed security zone, which are not subject to any suspicion-based threshold.
2.45
The Law Council said that a range of administrative considerations and recommendations may be considered by the Minister, however argued that there is no statutory obligation imposed on the Minister to do so:
The Minister is under no statutory obligation to accept the administrative or policy-based factors advanced by security agencies. Those factors are also susceptible to unilateral amendment or removal. Unlike a list of statutory considerations, a list of administrative or policy-based factors may not be available, or readily accessible, to the public.
2.46
In its submission, the Law Council said the word ‘substantially’ should be included in the Minister’s considerations of assistance in response to, or to prevent, a terrorist attack.
2.47
The Academic Submission also raised concerns about the Minister’s powers. This submission said that there was a ‘lack of clarity about what a Minister will take into account in prescribing a security zone, or indeed to revoke a prescription’ and noted that the absence of a legislated list was ‘particularly anomalous’.
2.48
The Academic Submission said that whilst they acknowledged that the Minister could not divulge the specific reasons for their decision; there was no reason that a list of matters which must be taken into account could not be included into Division 3A.
2.49
The Law Council said there were a number of matters they believed should be considered by the Minister before making a declared area provision. These included:
the identified impacts on third party rights would be reasonable and proportionate to the purpose of preventing, or responding to, a terrorist act;
the availability and effectiveness of alternative powers;
an appropriate duration of such a declaration (within the maximum 28 days); and
the impact of successive declarations and whether they are proportionate.
2.50
The Australian Human Rights Commission (AHRC) expressed concerns with regard to the 28 day period and the impact that this would have on human rights. They suggested an alternative model to reduce the period for which a security zone could be provided, a suggestion which had been previously recognised by the Council of Australian Governments (COAG) Review Committee and the former INSLM Dr James Renwick CSC SC:
Unless some unique circumstances can be identified that are particular to the Australian environment, it would be reasonable for the PJCIS to conclude that the maximum period for a prescribed security zone under the Crimes Act should also be 14 days.
Reporting Provisions
2.51
Section 3UJA provides that the Commissioner, ‘as soon as practicable after the exercise of a power’ afford by Subdivision B must report to the Minister, the INLSM and the Committee. The Minister must also, ‘as soon as practicable after each 30 June’ prepare a comprehensive report containing the use of all powers during the year ended on that 30 June.
Sunset provisions
2.52
The recent passage of the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021 provides for the stop, search and seizure powers under 3UK to cease after 7 December 2022. This is an extension from 7 September 2021.
2.53
In its submission provided prior to the extension of the sunset provisions, the Law Council said there should be a further three-year sunset extension in relation to Division 3A powers;
The extraordinary nature of the Division 3A powers, in departing from the usual warrant-based authorisation requirements, means that their continued necessity must be reviewed regularly. The Law Council notes that a three-year period of effect is preferable to any longer period of operation. The Committee’s reasons for preferring a three-year sunset period in its 2018 review remain compelling in the present circumstances. It is especially important to take a cautious approach to the continuation of the Division 3A powers, given that existing warrant regimes provide for the application and issue of warrants in emergency circumstances (including through oral means). The need for regular review of the Division 3A powers also militates against any proposal to remove the sunset provision entirely.
2.54
Alternatively, the MLN (NSW) said that these powers should not be extended following the expiration of the current sunset date:
In light of the limited use of the power over an extensive period of time, the question arises as to whether the powers are necessary, especially in light of the other available State and Federal police powers that deal with the threat of terrorism. The MLN (NSW) submits that the sunset clause under Division 3A should be allowed to expire rather than renewed.
Committee Comment
2.55
The Committee supports the intention of the stop, search and seizure powers invested in the AFP and maintains that these are an important part of the Australian counter-terrorism response framework.
2.56
As these powers have not been used since their introduction, the Committee is limited to examining hypothetical scenarios to consider necessity and proportionality of the powers. The Committee also recognises that the threat level has remained at ‘probable’ since 2014 and that there is a continued need for these powers.
2.57
The Committee also acknowledges concerns regarding the impact of human rights and civil liberties and notes the evidence of the AFP relating to the limited circumstances the powers can be used and has necessitated a reserved approach in using the powers. The Committee considers that these powers are extraordinary in their nature and are only to be used in specific circumstances where the timeliness of the response is a critical feature.
2.58
The Committee considers that amendments to stop, search and seizure powers relating to the notification process, parliamentary oversight and a person’s right to make a complaint are appropriate.
2.59
The Committee recommends that Division 3A of the Crimes Act 1914 be amended so that:
the Australian Federal Police must notify the Commonwealth Ombudsman, the Independent National Security Legislation Monitor and the Parliamentary Joint Committee on Intelligence and Security of any declaration of a ‘prescribed security zone’ as soon as practicable, but no later than 72 hours after the Minister has made the declaration;
the Minister of Home Affairs must ensure that the PJCIS is given a written statement of reasons for the making of the declaration of a ‘prescribed security zone’ to enable the Committee to perform its function under subparagraph 29(1)(bba)(ii) of the Intelligence Services Act 2001 to monitor and review the basis of the Minister’s declaration of prescribed security zones; and
police officers exercising Division 3A powers to inform a person being stopped and detained for the purpose of a search of their right to make a complaint to the Commonwealth Ombudsman or applicable State or Territory police oversight body or bodies, unless this is not reasonably practicable because of circumstances of urgency.
2.60
The Committee acknowledges the concerns raised by some submitters with regard to prescribed security zones. The Committee also noted that no such declarations have been made to date.
2.61
The Committee recognises the contributions of submitters who recommended a list of matters that a Minister should consider when declaring and re-evaluating a prescribed security zone. The Committee does not believe that there would be a time where a prescribed security zone is unnecessarily imposed, however, a list of particular matters for consideration may aid in what would likely be a time of heightened uncertainty for the public and responding agencies. A list of particular matters may also assist in the bureaucratic process and enable briefing agencies, namely the AFP and ASIO, to quickly and effectively prepare ministerial advice for consideration.
2.62
The Committee recommends that the Crimes Act 1914 be amended to provide a list of particular matters the Minister must consider before declaring a prescribed security zone, including:
the identified impacts on third party rights would be reasonable and proportionate to the purpose of preventing, or responding to, a terrorist act
the availability and effectiveness of alternative powers
an appropriate duration of such a declaration (within the maximum 28 day period)
the impact – and proportionality - of successive declarations
2.63
The Committee does not consider that a maximum of 28 days is an unreasonable length of time. The 28 day timeframe is the maximum of which a declaration can be made and allows the Minister to assign a time that is reasonable and adaptable to a situation. Further, the legislation maintains a requirement for the Minister to revoke the declaration when it is no longer deemed necessary.
2.64
The Committee shares the views of submitters that these powers are extraordinary and require consistent monitoring for their effectiveness, as well as oversight of their impact on human rights.
2.65
The Committee notes the extension of the sunset provision until December 2022, however, considers that a longer sunset period would be appropriate. The new sunset date should be an additional three years from December 2022 in order to allow for further examination of these matters.
2.66
The Committee recommends that the stop, search and seizure powers under Subsections 3UK(1), (2) and (3) of the Crimes Act 1914 be extended to 7 December 2025.
2.67
The Committee considers that it is appropriate for the Committee to have the option to review the powers again prior to the sunset date. This review would enable the Committee to continue to ensure that these powers remain an appropriate part of the national response to respond and prevent terrorism attacks.
2.68
The Committee recommends that the Intelligence Services Act 2001 be amended to provide the Committee with the option 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
2.69
The Committee recognises that warrantless entry powers have not been used since their introduction, and notes the significant concerns raised by submitters in relation to the powers. The Committee notes that these powers are extraordinary, and notes the example provided by the AHRC in relation to the possible risk of disproportionate use of the powers. However, at a time where terrorism and the threat it poses continues at a heightened level, it is vital that police are provided with powers that can combat imminent threats that arise without warning. The Committee therefore supports the extension of the warrantless entry powers in Division 3UEA as part of the renewal of the Division 3A powers.
2.70
The Committee considered the recommendation provided by the Academic Submission with regard to the duty judge system. The Committee agrees that legitimate circumstances may arise where it is not possible to seek a telephone application to enable disruption of an imminent terrorist activity, and the Committee expects that an appropriate warrant will be sought wherever possible. To facilitate this, the Committee considers that a duty judge system may provide necessary assurance any warrantless entry powers exercised will be in response to extraordinary circumstances. Therefore, the Committee recommends the Government consider the appropriateness of a duty judge system. Such a review should, among other matters, consider:
the potential cost of introducing such a system
international comparisons
how long it takes to apply for a warrant on an expedited basis presently
2.71
The Committee recommends that the Attorney-General’s Department consider the appropriateness of the implementation of a duty judge system where applications for search warrants could be received and considered on an expedited basis.
2.72
In addition, the Committee notes the concerns contained within the academic submission regarding the requirement to provide notification of searches to provide an avenue for the occupier of the premises to contest the validity of a warrantless search.
2.73
As mentioned above, the Committee considers there is a role for warrantless entry powers in emergency situations. However, the Committee also considers that requiring the AFP to seek a warrant following the execution of warrantless entry powers will provide a clear avenue for contestation of the basis of entry and ensure the powers have been exercised appropriately. The Committee recommends that section 3UEA of the Crimes Act 1914 be amended to require the AFP and any agency that enters premises in accordance with section 3UE to obtain an ex post facto warrant as soon as possible following the use of warrantless entry powers.
2.74
The Committee recommends an amendment to section 3UEA of the Crimes Act 1914 requiring any agency that enters premises in accordance with section 3UE to obtain an ex post facto warrant as soon as possible following the use of warrantless entry powers.