Submission to the NSW Attorney-General's review of Terrorism (Police Powers) Act 2002 NSW


11 February 2005

Mr Lloyd Babb
Director
Criminal Law Division
NSW Attorney-General’s Department
GPO Box 6
Sydney NSW 2001

Dear Mr Babb

I refer to the letter to me of 23 December 2004 from Mr John Feneley, Acting Director General of the Attorney-General's Department in which he invites me to make a submission to the Attorney-General's review of the Terrorism (Police Powers) Act 2002 (NSW) ( the Act). The letter advises that the review is being conducted pursuant to s 36 of the Act which requires a 12 monthly review of the Act. The Minister is to review the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

The Human Rights and Equal Opportunity Commission (the Commission) wishes to make a submission to the review. The Commission principally wishes to comment on the issue of judicial oversight of the exercise of powers contained in the Act. The submission of the Commission is set out below.

The Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). The Commission is Australia's national Human Rights Institution.

The Commission's functions include those set out in section 11(1) of the (HREOC Act). Section 11(1)(g) of the HREOC Act confers upon the Commission the function of promoting an understanding and acceptance, and the public discussion, of 'human rights' in Australia.

'Human rights' are defined for the purpose of the HREOC Act to mean 'the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument' which are relevantly:

  • International Covenant on Civil and Political Rights (ICCPR);
  • International Labour Organisation Discrimination (Employment) Convention (ILO 111);
  • Convention on the Rights of the Child (CRC);
  • Declaration of the Rights of the Child;
  • Declaration on the Rights of Disabled Persons;
  • Declaration on the Rights of Mentally Retarded Persons; and
  • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Although NSW is not a direct signatory to the international instruments to which Australia is a party, the obligations undertaken by the Commonwealth are nonetheless applicable to NSW. For example, Article 50 of the ICCPR provides that its guarantees 'extend to all parts of federal States without any limitations or exceptions.' The Commonwealth is required to guarantee that the laws and activities of State and Territory governments conform with the ICCPR. Furthermore, a violation of the ICCPR has been found by the United Nations Human Rights Committee[1] where the impugned law was a Tasmanian law rather than a Commonwealth law.[2] Whilst any breach is attributed to the Commonwealth, it is directly referable to the actions of a State.

The most relevant of the instruments referred to above for the purposes of this submission are the ICCPR and CRC. The relevant fundamental principles contained in those instruments are:

ICCPR Art 2(1) - the obligation for the state party to ensure to all individuals the rights recognised in the ICCPR;

ICCPR Art 3- the right to an effective remedy for any person whose rights or freedoms contained in the ICCPR are violated;

ICCPR Art 9- the prohibition on arbitrary arrest and detention[3] ;

ICCPR Art 12- the right to freedom of movement (subject only to restrictions provided by law necessary to protect national security, public order, public health or morals or the rights and freedoms of others); and

ICCPR Art 17- the prohibition against arbitrary or unlawful interference with a person's privacy, family, home or correspondence.

CRC Art 3 - in all actions concerning children undertaken by administrative authorities or legislative bodies the best interests of the child shall be a primary consideration;

CRC Art 16 - the prohibition against arbitrary or unlawful interference with a child's privacy, family, home or correspondence; and

CRC Art 37 - the prohibition on arbitrary arrest and detention.

The scheme of the Act

The Commission notes at the outset that the Act has wide application and is subject to limited oversight.

In essence the purpose of the Act is to authorise the use by police of special powers for the purpose of finding a 'target' person or 'target' vehicle or to prevent a terrorist act in the 'target' area (or apprehending in any such area the persons responsible for the terrorist act) (s 7). These special powers, which are outlined below, are wide ranging and, if misused, have the potential to contravene the human rights indicated above.

Special powers

Power to demand name, address and proof of identity

A police officer may request that a person gives their name and address (and proof of identity) if the officer reasonably suspects the person is a target person (or the person is found in suspicious circumstances in the company of the target person) (s 16(1)(a)), if the person is in or on a vehicle that the officer suspects on reasonable grounds is a target vehicle (s 16(1)(b)), or if the person is in a target area (s 16(1)(c)).[4]

It is an offence to fail to comply, without reasonable excuse, to such a request (s16(2)).

Power to stop and search

A police officer may, without a warrant, stop and search a person and anything in their possession or under their control if the officer reasonably suspects the person is a target person (or the person is found in suspicious circumstances in the company of the target person) (s 17(1)(a)), if the person is in or on a vehicle that the officer suspects on reasonable grounds is the target vehicle (s 17(1)(b)) or if the person is in a target area (s 17(1)(c)).

Schedule 1 provides for the carrying out of 'ordinary' searches, 'frisk' searches and 'strip' searches (in the case of a target person) and sets outs the rules for conduct of such searches. The Commission notes in particular that children 10 years and over may be the subject of a strip search.

A police officer may without warrant search a vehicle (including a vessel or aircraft) if the officer reasonably suspects it is a target vehicle, that a target person is in or on the vehicle or the vehicle is in a target area (s 18).

A police officer may without warrant enter and search premises if the officer reasonably suspects that a target person or target vehicle may be in the premises or the premises are in a target area (s 19).

Exercise of the powers

In respect of the exercise of the special powers, the Commission notes that the special powers may be exercised by any police officer whether or not the officer has been provided with or notified of the terms of the authorisation (s 14).

It is lawful for police to use such force as is necessary to exercise a special power (s 21).

Oversight of the operations of the Act

There is limited oversight of the authorisation to exercise the special powers or the exercise of the powers themselves.

The Act provides that the Commissioner or Deputy Commissioner of Police may authorise the exercise of special powers (s 8(1)). Should they be uncontactable and the matter is urgent, a police officer above the rank of superintendent may issue the authorisation (s 8(2)). Such authorisation may only be given with the concurrence of the Police Minister (s 9(1)) unless, however, the Police Minister is uncontactable (s 9 (2)). In the latter case, the Police Minister is to be notified as soon as he or she is available. In the case of an authorisation relating to a threat of a terrorist act the authorisation ceases to have effect if the Police Minister has not confirmed it within 48 hours of its issue (s 9(3)). The Police Minister may revoke the authorisation (s 12(1)).

The authorisation may be given if the police officer giving the authorisation is satisfied that there are reasonable grounds for believing that there is a threat of a terrorist act occurring in the near future and the police officer is satisfied the exercise of the powers will substantially assist in preventing the terrorist act (s 5). A 'terrorist act' is defined in s 3 of the Act. An authorisation may also be given if the police officer is satisfied there are reasonable grounds for believing that a terrorist act has been committed and that the exercise of the powers will substantially assist in apprehending the persons responsible or committing the terrorist act (s 6).

The Act provides that an authorisation 'may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus' (s 13).

The Act provides for the Commissioner of Police to provide a report to the Attorney-General and the Police Minister as soon as practicable after an authorisation ceases to have effect. Essentially, the written report is to set out the terms of the authorisation, the matters relied on for the authorisation, the powers exercised pursuant to the authorisation and the result of the exercise of those powers (s 26).

Judicial Oversight

The Act provides for wide ranging powers. For example, there is a power to stop and search not only a target person but a person in their company or any person in a target area. A child may be strip searched, albeit subject to certain rules. In certain circumstances an authorisation may be granted by any police officer above the rank of superintendent, even without the concurrence of the Police Minister. Further, any police officer, even if not notified of the terms of the authorisation may exercise the special powers.

There is limited oversight of the exercise of these wide powers. The authorisation is not open to challenge or review. Under the terms of s 26 a report setting out the terms of the authorisation and certain other matters is to be provided to the Attorney-General and Police Minister. However, the report need only describe generally the powers exercised and the manner of their exercise. The Act does not provide for independent monitoring of the issue of an authorisation or the exercise of the powers.

Bearing in mind the exercise of the powers, if misused, has the potential to infringe the fundamental human rights set out above, the Commission is concerned about the absence of independent judicial oversight.

The need for judicial oversight of the implementation of counter terrorism measures has been recognised by expert bodies.

The Berlin Declaration of the International Commission of Jurists entitled The ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism (adopted 28 August 2004) relevantly states:

2. Independent judiciary: In the development and implementation of counter-terrorism measures, states have an obligation to guarantee the independence of the judiciary and its role in reviewing state conduct.

9. Remedy and reparation: States must ensure that any person adversely affected by counterterrorism measures of a state, or of a non-state actor whose conduct is supported or condoned by the state, has an effective remedy and reparation and that those responsible for serious human rights violations are held accountable before a court of law. An independent authority should be empowered to monitor counter-terrorism measures.

The Declaration notes in relation to the judiciary that:

Judges play a primary role in ensuring that national laws and the acts of the executive relating to counter-terrorism conform to international human rights standards, including through judicial consideration of the constitutionality and legality of such norms and acts.

The Advisory Council of Jurists[5] has noted that:

While there may be justification for restricting the right to privacy in light of the threat to national security posed by terrorism and a willingness by citizens to accept restrictions in such circumstances, any information gathering powers must be clearly defined and be subject to judicial oversight. They must also be necessary and proportional in order to respond to the threat to national security.[6]

And

It is important that all searches, including those conducted pursuant to interception warrants, be subject to judicial oversight and review.[7]

The Commission acknowledges the Act is structured to allow rapid action in situations of urgency. In those situations time would not permit judicial oversight of the authorisation in advance of the exercise of the special powers in the traditional way that occurs with the grant of many kinds of warrants. However, the Commission submits that where time does permit - in cases where the urgency of the situation does not dictate to the contrary - the Act should provide that the authorisation for the exercise of a special power should be approved in advance by a judicial officer.

In cases where the urgency does not allow time for this to occur, the Act should provide that the authorisation may, on the application of a person affected by the exercise of the special power, be judicially reviewed after the event. If on review it is found that the exercise of the special power was not in accordance with the requirements in the Act that condition the exercise of the power, remedial orders should be available. At the least the Act should provide for an order declaring that the exercise of the special power was not in accordance with the Act, so that, for example, the declaration would establish (as a defence after the event) a "reasonable excuse" for not complying with a request to give one's name and address under s16, or to establish an entitlement to the return of property improperly seized under s20.

The prospect of judicial review after the event would provide a potent check on the risk of an improper or excessive exercise of power under the Act. It would also fulfil Australia's obligations under ICCPR Art 3.

Thank you for providing the Commission with this opportunity to comment on the legislation.

Yours sincerely

John von Doussa QC
President


  1. The Human Rights Committee hears complaints under the First Optional Protocol to the ICCPR.
  2. Toonen v. Australia (488/92), 31 March 1994 at para. 16.36.
  3. The Human Rights Committee has explained that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law”. See Albert Womah Mukong v Cameroon (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D458/1991, at 9.8.
  4. Section 4(2) provides that a person or vehicle in a target area includes a person or vehicle about to enter, or has recently left the area.
  5. The Advisory Council of Jurists advises the Council of the Asia Pacific Forum of National Human Rights Institutions (APF) on the interpretation and application of international human rights standards. The Advisory Council is comprised of eminent jurists who have held high judicial office or senior academic or human rights appointments.
  6. Reference on the Rule of Law in Combating Terrorism, Final Report May 2004, p 59. http://www.asiapacificforum.net/jurists/terrorism/final.doc
  7. Page 58.
Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 16 August 2005.