Terrorism Laws: ASIO, the Police and You

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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

PO Box 1240

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?. 3

1. Introduction. 4

2. ¡¥Terrorism¡¦ offences. 4

2.1 Crimes related to terrorist acts. 4

2.3 Other terrorism-related Offences. 6

3. Organisations that have powers under anti-terrorism legislation. 7

4. Searching. 8

5. Arrest, detention and questioning. 11

5.1 ASIO detention and questioning powers. 11

5.2 ASIO powers of detention and questioning of minors. 14

5.3 AFP arrest and detention powers. 14

6. What else can ASIO or the AFP do?. 17

7. Lodging a complaint 18

7.1 Complaints about ASIO.. 18

7.2 Complaints about the AFP.. 20

8. State anti-terrorism legislation. 20

8.1 New South Wales. 21

8.2 Victoria. 21

8.3 Queensland. 21

9. Where to go for help. 21

9.1 General Information. 21

9.2 Legal Advice. 22

9.3 Complaints. 23

What do I do if ASIO or the AFP visit me?

If you are contacted by ASIO, or an Australian Federal Police officer,

~~·'Michael~~¡P Remain calm;

You should ask them to explain what they want to search;
If they are ASIO officers and they do not have a warrant, you do not need to comply with their requests. You may co-operate in these circumstances only if you are comfortable doing so;
If they are AFP officers, they may search or question you even if they don¡¦t have a warrant, and you would need to co-operate with them. But remember:

Do not say anything to the AFP or state police unless you have talked to your lawyer first.

~~·'Michael~~¡P If possible, contact a lawyer or ask someone in the house to contact a lawyer immediately;

If you need to, you may request that a friend sit in with you;
If you have any trouble understanding anything they say, always ask for an interpreter. In the mean time do not say anything, except to confirm your name and address;

~~·'Michael~~¡P If they do have a warrant, ask to see it;

~~·'Michael~~¡P Check that the warrant has not expired;

Take note of exactly what the warrant authorises the officers to do; you do not have to do any more than what is stated on the warrant;

~~·'Michael~~¡P Check if there are any restrictions or conditions to what the officers can do;

~~·'Michael~~¡P 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;

~~·'Michael~~¡P Keep a record of the names of the officers visiting you, the date and the time;

~~·'Michael~~¡P Keep a detailed record of any contact, touching, harassment or intimidation shown to you by any officer.

1. Introduction

Since 2002, the Australian government has introduced a raft of anti-terrorism legislation, ostensibly as part of its campaign to guarantee Australia¡¦s security and to comply with Australia¡¦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 United States, where less than 60 per cent of the organisations listed are linked to Islamic groups.

This booklet attempts to answer people¡¦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 AFP¡¦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.

2. ¡¥Terrorism¡¦ offences

There are two main types of ¡¥terrorist¡¦ offences under Australian law: crimes related to ¡¥terrorist¡¦ acts, and crimes related to ¡¥terrorist¡¦ organisations.

2.1 Crimes related to terrorist acts

2.1.1 What is a terrorist act?

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.¡P cause serious physical harm or death to a person;

b.¡P cause serious damage to property;

c.¡P endanger another person's life;

d.¡P create a serious health or safety risk ; or

e.¡P 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.

2.1.2 What if I unknowingly end up involved in a terrorist act?

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 didn¡¦t know for sure or didn¡¦t check.

2.1.3 What are the different types of terrorist act crimes and the penalties for them?

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
Offence	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

2.1.4 What if the act occurs overseas?

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 Australia.

2.2 Crimes related to ¡¥terrorist¡¦ organisations

2.2.1 What organisations are considered ¡¥terrorist¡¦ organisations?

There are two main types of ¡¥terrorist¡¦ 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 ¡¥terrorist act¡¦.

As at June 2004, organisations proscribed as terrorist organisations are as follows:

¡P Hizballah

~~·'Michael~~¡P Hamas

~~·'Michael~~¡P Lashkar-e-Tayyiba

~~·'Michael~~¡P Al Qaeda or Islamic Army

~~·'Michael~~¡P Jemaah Islamiyah

~~·'Michael~~¡P Abu Sayyaf Group

~~·'Michael~~¡P Harakat Ul-Mujahideen

~~·'Michael~~¡P Armed Islamic Group

~~·'Michael~~¡P Salafist Group for Call and Combat/ GSPC

~~·'Michael~~¡P Ansar al-Islam

~~·'Michael~~¡P Al-Jihad / Egyptian Islamic Movement

~~·'Michael~~¡P Asbat Al-Ansar

~~·'Michael~~¡P Islamic Army of Aden

~~·'Michael~~¡P Islamic Movement of Uzbekistan

~~·'Michael~~¡P Jaish-I-Mohammed

~~·'Michael~~¡P Lashkar-I-Jhangvi

~~·'Michael~~¡P Palestinian Islamic Jihad

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 ¡¥terrorist¡¦ act, whether or not any ¡¥terrorist¡¦ 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.

2.2.2 What are the offences relating to ¡¥terrorist¡¦ organisations?

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
Offence	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.

2.3 Other terrorism-related Offences

2.3.1 Planting a bomb, an explosive or other lethal device

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.

2.3.2 Freezing of assets linked to terrorist activity

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.

2.3.3 Engaging in hostile activities overseas

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.