Terrorism
Laws: ASIO, the Police and You
Copyright © 2004, Australian Muslim
Civil Rights Advocacy Network (AMCRAN).
Permission to copy this
booklet or parts of this booklet, in electronic, mechanical or any other form,
is granted without fee, on condition that the document is attributed to AMCRAN.
Disclaimer
If you find yourself in a
difficult situation, you should always seek advice from a lawyer. This book is not intended as legal advice,
and should not be relied on as a substitute for legal advice. AMCRAN and its partners exclude liability for
any loss suffered by any person resulting in any way from the use of, or
reliance on, this material or its text.
The information in this booklet reflects the law as it stands on 16 June
2004. The law may have changed since
then. You should check with your lawyer
for changes to the law. You could also
check our website regularly for updates, translations and more:
http://amcran.org.
Australian Muslim Civil
Rights Network
Maroubra NSW 2035
Tel: (02) 9349 7186 Fax: (03) 9300 1335
E-mail: amcran@amcran.org
Website:
http://amcran.org
Table of Contents
What do I do if ASIO or the AFP visit me?
2.1 Crimes related to terrorist acts
2.2 Crimes related to ˇĄterroristˇ¦
organisations
2.3 Other terrorism-related Offences
3. Organisations that have powers under
anti-terrorism legislation
5. Arrest, detention and questioning
5.1 ASIO detention and questioning powers
5.2 ASIO powers of detention and questioning
of minors
5.3 AFP arrest and detention powers
6. What else can ASIO or the AFP do?
8. State anti-terrorism legislation
If
you are contacted by ASIO, or an Australian Federal Police officer,
·'MichaelˇP Remain calm;
Do not say anything to the AFP or
state police unless you have talked to your lawyer first.
·'MichaelˇP If possible, contact a lawyer or ask someone in the house to contact a
lawyer immediately;
·'MichaelˇP If they do have a warrant, ask
to see it;
·'MichaelˇP Check that the warrant has not expired;
·'MichaelˇP Check if there are any restrictions or conditions to what the officers
can do;
·'MichaelˇP Make a photocopy of the warrant and keep it if you can. If you do not have access to a copier, ask
for a copy;
·'MichaelˇP Keep a record of the names of the officers visiting you, the date and
the time;
·'MichaelˇP Keep a detailed record of any contact, touching, harassment or
intimidation shown to you by any officer.
Since 2002, the Australian
government has introduced a raft of anti-terrorism legislation, ostensibly as
part of its campaign to guarantee Australiaˇ¦s security and to comply with
Australiaˇ¦s international obligations. Regardless of the intention and the
application of the law, the legislation has a disproportionate effect on one
particular group within the Australian populace. There is little doubt that the
Muslim community bears the brunt of the legislation; indeed, evidence of this
is already apparent. At the time of publication, all people arrested under the
legislation have been Muslim, and all of the 17 proscribed terrorist
organisations are linked to Muslim organisations. This is different to, say,
the
This booklet
attempts to answer peopleˇ¦s general questions about anti-terrorism
legislation. It also talks about the
extended powers and functions of the Australian Security Intelligence
Organisation (ASIO) and the Australian Federal Police (AFP).
Though
their powers are broad, ASIO and the AFPˇ¦s actions are not beyond scrutiny.
There are avenues of redress for people affected by the exercise of these
powers, some of which are outlined in this booklet.
The law in this
area is complex, but we strongly advise that you read the booklet fully and
carefully, in order to understand your rights.
This area of law
is also developing very rapidly. Please
check our website regularly (http://amcran.org) for updates, translations and
new editions. God-willing, the booklet
will be available in different languages soon.
If you have any suggestions, or other questions you would like to be included
in future editions of the booklet, we would be more than happy to hear from
you.
You should not
rely on this booklet as a substitute for legal advice because it is only
intended as general information only. If
you find yourself in a difficult situation you should contact your lawyer
immediately for legal advice. Some organisations
that might assist you are included at the end of the booklet.
There are two main types of
ˇĄterroristˇ¦ offences under Australian law: crimes related to ˇĄterroristˇ¦
acts, and crimes related to ˇĄterroristˇ¦ organisations.
To be a terrorist act, there
must be an intention to coerce or influence the public or any government by
intimidation. There must also be an
intention to advance a political, religious or ideological cause. It must also do, plan to do, or threaten to
do, one of the following things:
a.ˇP
cause
serious physical harm or death to a person;
b.ˇP
cause
serious damage to property;
c.ˇP
endanger
another person's life;
d.ˇP
create
a serious health or safety risk ; or
e.ˇP
seriously
interfere with, disrupt, or destroy infrastructure, like the phone system or
electricity
However, it may not be a
terrorist act if the action is advocacy, protest, dissent or industrial
action.
Even if you did
not actually know that what you were doing was connected to preparing for,
engaging in, or assisting in a terrorist act, you may still be found guilty of
an offence if you were reckless, i.e.
there was a chance that it was connected to a terrorist act but you didnˇ¦t
know for sure or didnˇ¦t check.
The crimes are listed in the
table below. Note that the law does not
just prohibit acts such as bombing, it also makes it
an offence to do things in preparation of doing a terrorist act, or even just
possessing things connected with preparing for a terrorist act. We have included the different penalties that
apply if a person knowingly or recklessly committed the acts.
|
Offence |
Maximum penalty |
|
|
Knowing |
Reckless |
|
|
Engaging
in a terrorist act |
Life
imprisonment |
|
|
Other
acts done in preparation for, or planning, terrorist acts |
Life
Imprisonment |
|
|
Financing
a terrorist act, whether the act occurs or does not occur, with money,
weapons or equipment |
Life
Imprisonment |
|
|
Providing
or receiving training connected with preparing for, engaging in, or assisting
in terrorist acts |
25
years |
15
years |
|
Possessing
things connected with preparing for, engaging in, or assisting in terrorist
acts |
15
years |
10
years |
|
Collecting
or making documents likely to facilitate terrorist acts |
15
years |
10
years |
For most of the
offences, it does not matter whether or not a terrorist act actually happens,
or that the activity was not performed in
There are two main
types of ˇĄterroristˇ¦ organisations according to Australian law. The
first type is a proscribed organisation, which is an organisation
classified by the Australian government as terrorist organisation.
The government can proscribe an organisation if it is satisfied that the
organisation is directly or indirectly involved in a ˇĄterrorist actˇ¦.
As at June 2004,
organisations proscribed as terrorist organisations are as follows:
|
ˇP
Hizballah
|
|
The second type of
terrorist organisation is any organisation that is directly or indirectly
engaged in preparing, planning, assisting or fostering the doing of a ˇĄterroristˇ¦ act, whether or not any
ˇĄterroristˇ¦ act actually occurs. This
means that even if an organisation is not on the proscribed list, it could
still be considered a terrorist organisation, but the government has to prove
that it is a terrorist organisation in a court of law.
Just like
terrorist acts, different penalties apply depending on whether you knew the
organisation you were involved in was a terrorist organisation, or if you were
recklessly involved, i.e., you thought there might be some chance it was a
terrorist organisation, but you did not investigate further. The offences are as follows:
|
Offence |
Maximum penalty |
|
|
Knowing |
Reckless |
|
|
Directing the activities of a terrorist
organisation |
25 years |
15 years |
|
Intentionally recruiting for a terrorist
organisation. This also includes
inducing, inciting or encouraging other people to join or participate |
25 years |
15 years |
|
Training a terrorist organisation or receiving
training from a terrorist organisation |
25 years |
15 years |
|
Directly or indirectly getting funds to or from a
terrorist organisation |
25 years |
15 years |
|
Providing support or resources to a terrorist
organisation to help them engage in terrorist activities |
25 years |
15 years |
|
Membership of a terrorist organisation. It is an offence to be a member of a
terrorist organisation, even informally.
You are also regarded as a member if you have taken steps to try to
become a member. If you find out that an organisation is a terrorist
organisation, you should take all reasonable steps to cancel your membership
as soon as possible |
10 years |
- |
The Anti-Terrorism Bill 2004 currently being
considered by Parliament seeks to amend the offence of training or receiving
training from a terrorist organisation.
It proposes to increase the penalty for recklessly training with a
terrorist organisation from 15 years to 25 years. It also proposes to make it an offence
punishable by a maximum penalty of 15 years imprisonment to train with a terrorist
organisation that has been listed by the government, even if you did not know
that it was one, and you were not reckless.
It is an offence to deliver, place, discharge or
detonate a device in or against a public place, a government facility, a public
transport system or an infrastructure facility, intending to cause death or
serious harm to people, or to cause extensive destruction to that place,
facility or system. The penalty for this
offence is life imprisonment.
The Charter of the United Nations Act 1945
allows for certain people, entities or assets to be proscribed as being linked
to terrorist activities. The Foreign
Minister must list a person if he is satisfied that the person commits
terrorist acts; he must also list entities owned or controlled by that person,
and anyone acting on behalf of that person.
The legislation allows for the freezing of the assets
of these people or entities that are listed.
It is an offence punishable by a maximum penalty of 5 years imprisonment
to deal with these freezable assets in any way.
It is also an offence with a maximum penalty of 5 years imprisonment to
give any asset to a proscribed person or entity.
For more information and a full list of current
proscribed people or entities, visit:
http://www.dfat.gov.au/icat/freezing_terrorist_assets.html.
Currently, Australian
citizens and residents are prohibited from preparing to engage in hostile
activities overseas, including recruiting other people. It is also an offence to engage in hostile
activities overseas to overthrow the government of that country, causing death
or injury to the head of state, or unlawfully destroying or damaging any
property of the government of that country.
This offence carries a maximum penalty of 14 years imprisonment. However, a defence to these charges may be
that you were fighting with the armed forces of that foreign country.