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.
The Anti-Terrorism Bill 2004
currently before Parliament will amend this by increasing the maximum penalty
from 14 years to 20 years, and by specifying that the defence of fighting with
the armed forces does not apply if the armed forces are a ˇĄterroristˇ¦
organisation (see Part 2.2.1 for the definition of a ˇĄterroristˇ¦
organisation).
There are two main
organisations empowered under the anti-terrorism legislation.
The Australian
Security Intelligence Organisation (ASIO) is an agency that gathers
intelligence relating to security, but it is not responsible for law
enforcement.
ASIO has the power
to question you to gather intelligence, and even to detain you for
questioning. However, ASIO officers do
not carry guns, and they do not have the power to arrest you.
The other agency
is the Australian Federal Police (AFP), which is the federal police
force. The AFP investigates federal
crimes, like terrorism, and enforces federal criminal law. AFP officers have general police powers of
search, arrest and detention. It is the
AFP who would normally arrest you if you were suspected of committing a
terrorism-related offence.
It is very
important to understand the differences between ASIO and the AFP. For example,
ASIO officers can only search, question or detain you if they have a warrant to
do so. ASIO must obtain the Attorney-Generalˇ¦s
consent before getting a warrant from a Federal Magistrate or Judge, and they
must reasonably believe that it would substantially help with the collection of
intelligence about a security matter.
AFP or state police officers
also need to obtain a warrant to do certain things, but they can also detain
you immediately without a warrant if they reasonably suspect that anything in your control or operation
will cause death or serious
harm to a person, or substantial damage to a place or a thing. However, you should never talk to the
police unless your lawyer is present or until you talk to your lawyer.
Both agencies
sometimes work together. For example,
the AFP may take you into detention for questioning by ASIO, or they may be
asked by ASIO to help gain entry into premises to help minimise the risk to
ASIO officers conducting a search.
See Part 5.1 for
more detail on what ASIO powers are to detain and question people, and Part 5.2
for information about AFP powers to arrest, detain and question.
The next section
talks about the searching powers of both ASIO and AFP.
ASIO can only search your house if they have a
warrant. If the warrant specifies that
they can only enter your premises at a certain time, you do not have to allow
them access at other times. Make sure
you check precisely what the warrant permits the ASIO officer to search.
A warrant may
enable ASIO to search for any record or thing that they consider relevant to a
security matter. They may search through any computer, electronic equipment,
safe, box, drawer, parcel, envelope or other container. They may inspect, examine, copy and remove
any record or thing.
The AFP, as distinct from ASIO, may also
obtain a warrant to search a place or vehicle if they have reasonable grounds
to suspect that evidence of a federal crime can be found at that moment, or at
some time in the next three days.
A warrant to
search premises allows the police to enter the place or car to search for and
record fingerprints and other samples of things, to take photographs, and to
record the search on video.
ASIO is not allowed to search without a warrant.
However, the AFP
may search without a warrant if they reasonably suspect that some evidence that
needs to be seized urgently is in a car, and that it is likely to be hidden,
lost or destroyed if it is not taken. In
this case, then the officer may stop, detain and search the car for that
evidence. If they find other evidence
during the search, they may also take that away. During the search the police may examine any
containers, such as boxes or suitcases, in or on the vehicle.
However, when a
police officer searches a car without a warrant, he or she must:
·'MichaelˇP
perform the search in a
public place;
·'MichaelˇP
not detain the car once the
search is complete;
·'MichaelˇP
not damage any container when
opening it, unless you refused to help open it.
Any item taken
during a search without a warrant must be returned to you within 60 days unless
it is to be used as evidence or a magistrate orders that it be retained.
If you are the occupier of the
place or car, or if you represent the occupier, you are entitled to see a copy
of the warrant. If the officer has a
warrant to search those premises then they can enter, whether or not you are
the owner of the premises.
ASIO can remove and retain
for a reasonable time any record or thing relevant to a security matter that
they find in the course of their search under a valid warrant. Your passport can only be taken during a
search if it was somehow relevant to a security matter, for the purpose of
inspecting, examining or copying it, but not in order to prevent you from
leaving the country.
The AFP may take away anything that they think might be evidence
of any offence and which they
reasonably believe might be hidden, lost, destroyed or used to commit an
offence in the future. They may also
take away anything that they reasonably believe is a dangerous item or that
might help you escape.
If the AFP take any items away, they must give you a receipt for
them. They must also tell you where they
are taking the item and allow you to be there when it is examined at that
place. The item must be returned within
three days, unless a magistrate or other authorised person gives an
extension. They must tell you if an
extension is applied for and you also have the right to say why you think it
should be returned immediately. If during the search the police seize any item
that can be easily copied, such as a document, film, computer file or computer
disk, then you can ask for a copy of that item and the police must give you a
copy as soon as practicable.
If they have a
warrant, ASIO can gain access your computer or other electronic
equipment for the purpose of obtaining data believed to be relevant to
security. This type of warrant is only
valid for six months. They may inspect
and examine any data, including printing the data, removing it, and copying it,
and they may add, delete or alter other data in order to achieve that
purpose.
You should be cooperative as an ASIO warrant
also authorises them to use force that is necessary and reasonable to do the
things specified in the warrant.
When dealing with
the AFP, you should also remain calm.
It is a crime to harm, or threaten to harm, a police officer. You could be sent to prison for up to 13
years if you harm a police officer, or up to 9 years
if you threaten to harm a police officer.
It is also a crime punishable by up to two years imprisonment to
obstruct, hinder, intimidate or resist a police officer who is performing his
or her duties.
Yes. Generally search warrants do not allow them
to detain you in any way, unless that is also authorised in the warrant. You are free to move about and they cannot
stop you from being there in the same room they are searching, as long as you
do not try to disrupt the search. You
are also free to leave if you wish.
You have the right
to observe the search unless you are under arrest or if you try to interfere
with the search. However, the police can
still search in more than one place on the premises at one time.
When the law talks about
searching a person, it specifies three different types of search:
·'MichaelˇP
frisk
search: a search of a
person where the officer quickly runs his or her hands over the personˇ¦s outer
garments. You can be asked to remove any
clothing or hand over any items you are carrying for examination. However, the removal of clothing and handing
over of items is voluntary and you do
not need to comply with this request during a frisk search.
·'MichaelˇP
ordinary
search: you may be asked
to remove items like your overcoat, coat, jacket, gloves, shoes or hat to be
examined. You must cooperate when asked
to remove these items.
·'MichaelˇP
strip
search: you may be asked
to remove all of your clothes so an officer can determine whether you have a
dangerous item or something that you could use to escape. The officer can examine your clothes and your
external body, but not
your body cavities. A strip search must
be done in private and by an officer of the same gender. With the exception of a medical doctor and
family member, people of the opposite gender are not allowed to view the strip
search. The officer must not remove more
clothes, or look at you for longer than is necessary.
ASIO and the AFP do not have the power to
conduct a strip search under a warrant to search your premises, and you should
not give your consent to a strip search.
They can only conduct a strip search if you have been detained (see Part
5 for information on Arrest, Detention and Questioning). However, the warrant may authorise ASIO and
the AFP to conduct a frisk search or an ordinary search on you if you are at,
or near, the premises where a search warrant is being executed. If they find anything, they may also have the
power to inspect or examine the thing, make copies, or remove the thing from
you altogether.
The law says that ordinary and
frisk searches must, if practicable, be conducted by a person of the same gender. A strip search must only be conducted by
someone of the same gender.
As stated above,
AFP are a traditional police force with investigative and arrest powers, while
ASIO may only question or detain you to gather intelligence if they have a
warrant. With respect to detention and
questioning, the powers and responsibilities of the ASIO and the AFP are much
more different than in other areas, and so they are discussed separately in
this booklet. We first look at ASIOˇ¦s
detention and questioning powers, and then we will look at the AFPˇ¦s arrest,
detention and questioning powers.
Detention by ASIO is different to detention or arrest
by AFP. ASIO has no power to arrest you,
but they are allowed to question you and detain you if they believe it would
help them gather intelligence in relation to a ˇĄterrorismˇ¦ offence.
As with searching,
ASIO needs a warrant in order to detain you. The warrant may require you to
present yourself immediately or at a specific time for questioning, or it may
authorise ASIO to take you into custody immediately for questioning. The warrant may also specify other things,
for example, that you are not allowed to leave
If you have been
taken into custody under a warrant, you should be immediately brought before a
ˇĄprescribed authorityˇ¦ for questioning. A ˇĄprescribed authorityˇ¦ is a former or
serving senior Judge or the President or Deputy President of the Administrative
Appeals Tribunal. This person acts as an independent person and is there to ensure
that the questioning is conducted properly.
Remember, any
questioning must occur before this prescribed authority. If you are
alone in a room with an ASIO officer, you do not have to answer any
questions.
During the
questioning process they may ask you to provide information, or produce records
or other things. They are allowed to
make copies of any documents you provide. Your questioning will be
video-recorded. They must let you know
when any recording has started.
When you are first brought
before the prescribed authority, he or she must explain:
·'MichaelˇP
his or her
role and the reason for his or her presence and the presence of anybody else
questioning you;
·'MichaelˇP
how long you
can be detained;
·'MichaelˇP
what the
warrant authorises ASIO to do;
·'MichaelˇP
that it is
an offence not to cooperate with them;
·'MichaelˇP how long the warrant is in force;
·'MichaelˇP your right to make an oral or
written complaint to the Inspector‑General of Intelligence and Security (IGIS)
in relation to ASIO (for further information on IGIS please see Part 7);
·'MichaelˇP
your right to apply to the federal court to review your warrant or to
seek a remedy relating to their treatment of you under the warrant (which must
be repeated to you once in every 24 hours);
·'MichaelˇP
whether the warrant permits you to contact others
and, if so, whom you may contact and when.
If you are unsure about
anything, do not hesitate to ask the prescribed authority to explain it
to you, as he or she must make sure that you understand the explanations.
If you require an interpreter, you may request one, and the prescribed
authority has to arrange for an interpreter unless he or she reasonably
believes that you are able to communicate well in English.
If you are allowed
to have an interpreter, do not say anything until the interpreter arrives as
the questioning cannot commence until your interpreter is present.
Even though the
warrant must specify that you are able to contact a lawyer if you are detained,
the prescribed authority can prevent you from contacting your lawyer if
he or she believes that your contacting that particular lawyer may alert
another person that a terrorism offence is being investigated, or some document
that you are required to produce may be destroyed, damaged or altered. If you are allowed to contact a lawyer, this
contact may be monitored. Your lawyer
must be provided with a copy of the warrant.
A lawyer may be
allowed to be with you when you are being questioned, but they are not allowed
to intervene in the questioning process except to ask for clarification of an
ambiguous question. During breaks in
questioning, ASIO must provide a reasonable opportunity for your lawyer to
provide advice to you.
Your lawyer may be
removed if ASIO think your lawyer is unduly disrupting the questioning. If this
happens, you may contact another lawyer.
You do not have the right to silence if you
are detained for questioning by ASIO.
This means that you are required by law to give any information ASIO
requests under the warrant, even if the answer is self-incriminating. If you do not answer their questions, you
could face a maximum penalty of five years imprisonment.
Any information or
evidence you provide to ASIO is not admissible as evidence against you in
criminal proceedings. It is different to
the situation where you have been arrested by the AFP for committing an
offence, in which case the police must caution you that anything you say or do
may be used in evidence against you (see Part 5.3.10 for comparison).
ASIO can question you for eight hours at a time and they may request
permission from the prescribed authority to question you for two further
8-hour blocks. This means that the
maximum period of time they can question you is 24 hours. If the prescribed authority does not
give permission for further questioning, they must release you
immediately. However, you must not be questioned continuously for
more than 4 hours without being offered a break, and
the breaks must be at least 30 minutes.
They may continue to question you if you consent, but it is best to ask
for a break.
If
you are being questioned with an interpreter, the maximum period of time they
can question you is 48 hours. If they are not allowed by the prescribed
authority to ask you further questions, they must release you
immediately.
A warrant permits your detention
for up to 48 hours, but they can seek permission from the prescribed authority
to detain you for longer, but no more than seven days in total. However, there is nothing to stop ASIO from
applying for further warrants after your release.
ASIO may conduct an ordinary
search (see Part 4.8 for definition
of ˇĄordinary searchˇ¦).
They can also conduct a strip
search, but only if they suspect you have an item that could present a danger
or which could be used to help you escape.
Anything taken must be returned to you when you are released. They may ask a doctor to be present, and they
may use reasonable force if necessary.
If a strip search is necessary,
it must be conducted by a police officer of the same gender, in a private area,
out of the view or presence of a person of the opposite gender and people whose
presence is unnecessary. If they take
away your clothing, you must be provided with some adequate clothing.
If a strip search is being
conducted, then only a female officer can require you to remove your head
veil. The law is not clear whether an
ordinary search which allows the officer to ask you to remove your hat for
examination also includes a Muslim womanˇ¦s head covering. If so, then the search will be conducted by
someone of the same gender if practicable.
You are not
allowed to contact anyone at any time while you are detained. You do not have
the right to contact a lawyer or family member unless such contact is
specifically allowed by the warrant.
However, you may contact the Inspector-General of Intelligence and
Security (IGIS) or the Commonwealth Ombudsman if you want to make a complaint
(for more information on complaints see Part 7).
If you have a warrant for
questioning, it is an offence to not appear, punishable by a maximum of five
years imprisonment. During questioning
it is an offence to give false or misleading answers, punishable by a maximum
of five years imprisonment.
While the warrant is still in
force, it is an offence to tell anyone, including the media, anything that
reveals that the warrant has been issued, whatˇ¦s in it, or any facts relating
to how the warrant is executed. This
offence carries a maximum penalty of five years imprisonment.
During the period of the
warrant and also within two years from the date of its expiry, it is an offence
to tell anyone any ˇĄoperational informationˇ¦.
Operational information includes any information that ASIO has, where
ASIO gets their information from, or an operational capability, method or plan
that ASIO uses in its investigations.
If you are the
person detained or questioned, or a lawyer representing or advising a person
who has been detained or questioned, you would be guilty of the offence even if
you did not know that the information is ˇĄoperational informationˇ¦, and were
not reckless as to whether or not it was.
If you are not the person detained or questioned, you would only be
guilty of the offence if the prosecution can show you were reckless as to
whether or not it was ˇĄoperational informationˇ¦.
There are special
rules that apply to you if you are under 18 years of age. Further, the rules are different again if you
are under 16.
If you are under
16 years old, you cannot be detained or questioned by ASIO. If you are forcibly taken into custody, you
should let the prescribed authority know as soon as possible that you are under
16. They must not question you and you
must be released immediately.
If you are between
16 and 17, a warrant may be issued if ASIO believe that you will commit, are
committing, or have committed a terrorism offence. The warrant must allow you to contact your
parents or guardians, or if they are not acceptable to ASIO, anyone who is able
to represent your interests. You can
contact them at any time while you are in detention.
You must only be
questioned in the presence of your parent or guardian. You should not answer
any questions until they arrive.
However, if your
parent or guardian is being unduly disruptive during questioning, they may be
asked to leave. If they are, you can ask
for another person to be present, and you can contact that person. If this happens, you should not answer any
questions until the person arrives.
Yes, they may conduct both an ordinary and a strip
search on you. A strip search must be conducted with your parent or guardian in
the room, or someone who can represent your interests. The same rules that apply for general
strip-searching also apply (see Part 4.8 for
definition of ˇĄstrip searchˇ¦).
You cannot be
questioned for more than 2 hours at a time without a break. A warrant allows for your detention for 48
hours only, but it may be extended up to 7 days.
If the AFP
reasonably suspect that you can help with their
inquiries into a crime, then the officers can ask you for your name and
address. If they tell you why they need
your name and address, you must give it to them unless you have a reasonable
excuse.
You should also
ask the officers for their name and place of duty. If they are in uniform, they must show their
identification number on the front of their uniform. You should also write down that number and
keep it. If the officers are not in
uniform, you may ask for proof that they are really police officers. Police officers must comply with this request. It is important that you take the time to
write down the names or identification numbers of the officers so that if there
is a need to follow-up with the police again or to make a complaint, the
process can go smoothly.
You do not have to
go with a police officer to answer questions, unless you are under arrest. If a police officer asks you to go with them
to answer some questions, you should ask the officer if you are under arrest. If they say ˇĄnoˇ¦, then you do not have to
go with them. If they say ˇĄyesˇ¦, then
you should go with them. However, you
should never say anything to the police unless you talk to your lawyer
first.
The AFP may get a
warrant to arrest you if they have a reasonable suspicion that you have
committed or are about to commit a crime.
The warrant must
name or describe the person to be arrested and briefly state the reasons for
the arrest. If you are arrested under a
warrant, you must be brought before a magistrate as soon as possible. A warrant to arrest you only expires when you
are arrested.
The AFP can arrest you without a warrant if they
reasonably believe that you have committed, are committing, or are likely to
commit an offence. As soon as the police
officer ceases to have reasonable grounds to believe that you committed the
offence, you must be released.
Whether the police
have a warrant or not, they can enter premises if they reasonably suspect the
person to be arrested is on the premises.
The officer should not try to enter a house (or anywhere where people
sleep at night) to search for or arrest a person between 9 pm and 6 am. However, if the police believe that the
person to be arrested is only in the house during those hours, or if they
believe that evidence might be hidden, lost or destroyed unless they act
immediately, then the police may enter premises at anytime of the day or night
to search for or arrest a person.
When arresting a
person, the AFP can only use reasonable force, so they should not harm you if
you do not resist arrest. The police
officer should also tell you why you are being arrested.
If you are being
arrested at your home or work, the police can also take away any item that is
in plain view if they reasonably suspect that it is evidence of a crime.
The police can
frisk search you when you are being arrested, if they reasonably believe you
have a dangerous item or an item that might help you escape (see Part 4.8 for definition of
ˇĄfrisk searchˇ¦). If they find such an
item on you, they can take it from you.
If you are taken
to a police station, the police can, if they have not already, perform an
ordinary search on you.
At the police
station, the police can also perform a strip search if they reasonably suspect
that you have evidence or an item that is dangerous or that might help you
escape. A strip search must be
authorised by a senior police officer.
Any evidence or dangerous item found during the strip search can be
seized. For the definitions of
ˇĄordinary searchˇ¦ and ˇĄstrip searchˇ¦, please see Part 4.8.
If
you are under arrest, or if an officer reasonably suspects that you have
committed a crime, then he or she must ˇĄcautionˇ¦ you before asking you any
questions. This means that they must tell you that ˇ§you
do not have to say or do anything, but anything you say or do may be used in
evidenceˇ¨.
Once the AFP has
arrested you, they can detain you for questioning for a limited period without
charging you with any offence. When
questioning you they must record on tape or video any questions that they ask
and the answers that you give. The
police must give you or your lawyer a copy of the tape of any interviews within
seven days.
Anything you say
may be used against you in court, which is why you have the right to remain
silent. This means that you do not have
to answer any questions, and your choice to be silent cannot be used against
you in court. Therefore it is
extremely important that you do not say anything unless you get advice from
your lawyer first.
You have the right
to contact a lawyer to ask them to be present when you are questioned. The AFP can only refuse this if they
reasonably believe that:
·'MichaelˇP
your accomplices might hide
from the police if they hear that you are in custody;
·'MichaelˇP
evidence might be hidden,
made up or destroyed;
·'MichaelˇP
witnesses might be intimidated;
·'MichaelˇP
the lives of people are in
imminent danger and so questioning must start immediately.
If your lawyer is
too slow in arriving, then the police must offer you another lawyer.
However, you must give a police officer your name and
address if you are asked. An officer can
make a note of any actions you make, like laughing or shrugging your
shoulders. So remain calm at all times
and do not react to their questions if you choose to be silent.
You have the right to contact
a friend or relative to let them know where you are. You also have the right to an interpreter,
unless the police think that your English is good enough.
If you are not an
Australian citizen, you have the right to contact your embassy or consulate.
The police cannot start questioning you until they have allowed you to attempt
to contact the consulate.
As at 16 June
2004, the AFP can only hold you for a maximum of four hours. The police can
apply to a magistrate or other authorised person to extend your detention by a
maximum of eight hours. They can only
ask for an extension once. An extension
can only be granted if it is necessary to protect or to get further evidence,
or to complete the investigation.
However, the
period of detention does not include ˇĄdead timeˇ¦, i.e. the time it takes:
·'MichaelˇP
to drive you to the place of
detention;
·'MichaelˇP
for you to contact a lawyer,
friend, relative, parent or interpreter;
·'MichaelˇP
for your lawyer, friend,
relative, parent or interpreter to arrive;
·'MichaelˇP
for you to receive medical
help;
·'MichaelˇP
for you to sober up, if you
are drunk;
·'MichaelˇP
to organise and conduct an
identification parade;
·'MichaelˇP
for the police to get an
order from a magistrate to undertake a forensic procedure on you;
·'MichaelˇP
for the police to get an
extension of the time they can keep questioning you;
·'MichaelˇP
for the police to inform you
of your rights about forensic procedures;
·'MichaelˇP
for you to rest and recover
during the questioning;
·'MichaelˇP
to carry out a forensic
procedure on you
However, the
length of time they can detain you may soon change. The Anti-Terrorism Bill 2004 proposes
that the investigation period be allowed to be extended multiple times for up
to 20 hours in total. Under the Bill,
this period would also exclude the time it takes to get information from
overseas, but this ˇĄdead timeˇ¦ must not exceed the time difference between
After the time
limit for holding you has expired, the police must either:
·'MichaelˇP
let you go unconditionally;
·'MichaelˇP
let you go on bail; or
·'MichaelˇP
take you before a magistrate
or other authorised person to apply for bail.
If the police let
you go, but arrest you again within two days for the same crime, then the maximum time they can hold you the
second time is four hours minus the
amount of time they detained you the first time.
If they have a warrant, ASIO can
use a listening device to record your communications. The warrant must
not exceed a period of 6 months, although a new warrant can be issued once an
old warrant has expired.
Under the warrants, both ASIO and the AFP may enter
your premises and install, test, maintain, or remove a listening device. They may record your conversations, with or
without your permission.
The AFPˇ¦s powers to use listening devices may
soon be increased to include the use of data surveillance, optical surveillance
and tracking devices. The Surveillance Devices Bill 2004 also proposes
that the police be able to use optical surveillance
devices such as binoculars and video cameras without a warrant if it did not
involve entering onto premises. Under
certain circumstances, the police could also use a listening or tracking device
without a warrant if they have the permission of the Commissioner of Police,
Deputy Commissioner of Police or senior member of the AFP.
The AFP can only intercept live communications,
such as telephone calls, facsimiles, or internet chat sessions, if they have a
telecommunications interception warrant (a ˇĄTI warrantˇ¦). This warrant can also allow an officer to
enter premises to install equipment for monitoring telecommunications, even
without your permission.
A TI warrant is valid for up to 90 days, but the AFP
can apply for another warrant if it expires.
The warrant also expires immediately when the police no longer
reasonably suspect you of committing a terrorist offence.
The Telecommunications
(Interception) Amendment Act 2004 recently
introduced allows the AFP to intercept ˇĄstored communicationsˇ¦ without
obtaining a TI warrant, if they have the network ownerˇ¦s consent or if they
have lawful access to the equipment on which it is stored, for example, under another
warrant. This means that the AFP can
gain access to voicemail, SMS, MMS or e-mail if it is stored on an Internet
server, or in a telecommunications system, even if they do not have a TI
warrant.
If they have a warrant, ASIO can have access to any
postal parcel or any delivered parcel.
This type of warrant will remain valid for 3 months. They may be authorised by a warrant to inspect,
make copies of the articles, make copies of the cover of the articles, open the
articles, and inspect and make copies of the contents. This may apply to items posted or delivered
by you or being received by you.
If they have a warrant, ASIO can use tracking devices to
track a person or an object, including a car, an aircraft, a vessel, and
clothing. This type of warrant will
remain valid for 6 months. A warrant may
authorise ASIO to enter your premises to attach a tracking device, and to
maintain that tracking device. The warrant will also authorise any force
necessary and reasonable, and will also specify the time of day that they can
enter your premises.
It is a good idea
to talk to your lawyer, or contact your local Community Legal Centre first,
before making a complaint. A complaint
about ASIO can be made orally or in writing to the Inspector‑General of
Intelligence and Security (IGIS) within one year of the incident. The role of the IGIS is to monitor
intelligence and security agencies, including ASIO, to conduct inquiries, and
to investigate complaints. It is there
to protect the rights of citizens and residents against possible excesses by
agencies. For this reason, the IGIS may sometimes be present during questioning
by ASIO.
If the IGIS
is not present, and you wish to make a complaint while you are in detention,
you have the right to be given the facilities for contacting IGIS. When making a complaint, you must be allowed
to do so in private and not in front of any of the officers. The contact details of the IGIS can be found
in Part 9 of this booklet. You also have
the right to ask the Federal Court to review a warrant or their treatment of
you under the warrant.
If there has been
a warrant issued against you, you must be treated humanely, and with respect
and dignity. This relates to every
aspect of the warrant including the point of contact, and the process through
which you are taken into detention. You
may complain about injury you may have sustained, damage to property, any
improper conduct or activities of ASIO and its officers, any action or practice
that is inconsistent with, or breaches any human right, or constitutes
discrimination, in particular, on the basis of sex or race.
Therefore it is
important that you note down the names of the officers who contact you, and the
date, time and circumstances of that contact, so that you would be in a better
position to make a complaint later if there is a need. However, keep in mind that, as discussed in
Part 5.1.11, it is unlawful to disclose any operational information of
ASIO. This means that you would have to
keep this information confidential, and only use this information in complaint
situations.
In relation to
detention and questioning, you may make a complaint if the officers do not
ensure that:
·'MichaelˇP
interactions with you are humane and courteous, and
that they do not speak to you in a demeaning manner. You must not be questioned in an unfair or
oppressive manner;
ˇP if you are
to be transported, the transportation is safe and dignified, with adequate
ventilation or lighting, and does not expose you to unnecessary physical
hardship;
·'MichaelˇP
you have access to fresh drinking water, toilet and
sanitary facilities at all times. These
facilities must be clean;
·'MichaelˇP
you are allowed to bathe or shower daily, in private,
and that you are provided with other toilet articles for health, cleanliness
and the maintenance of self-respect;
·'MichaelˇP
the place of detention and questioning has adequate
fresh air ventilation, floor space, lighting and adequate climate control;
·'MichaelˇP
you are provided with three meals a day at the usual
hours. If you are fasting, they have to
provide you with food at the appropriate times;
·'MichaelˇP
you are provided with food appropriate for your
religious beliefs; you have the right to request halal food if you are
Muslim. They must also accommodate any
other dietary or medical needs;
·'MichaelˇP
you are allowed to engage in religious practices such
as prayers subject to safety and security requirements;
·'MichaelˇP
you are provided with a separate bed in a separate
room or cell, with clean bedding. You
must be allowed a minimum of eight hours continuous undisturbed sleep in any 24
hour period of detention; and
·'MichaelˇP
you are provided medical or health care when
required.
You may complain by letter, telephone, fax, in person
or online to:
·'MichaelˇP
any AFP office;
·'MichaelˇP
the Commonwealth Ombudsman; or
·'MichaelˇP AFP Internal Investigations Division.
Again, it is a good idea to talk to your lawyer or
local Community Legal Centre first before you make a complaint.
You have the right to complain about the conduct or
actions of individual AFP members. Your complaint may concern:
·'MichaelˇP
action taken by an AFP officer that involves discourtesy, rudeness or
abruptness to you;
·'MichaelˇP
action that arises out of a misunderstanding of the law, of the policy
or procedures of the AFP;
·'MichaelˇP
serious ill-treatment by an AFP officer; or
·'MichaelˇP assault by an AFP officer.
You should first make your complaint to the AFP, whether the complaint involves
allegations of minor or serious misconduct.
The complaint will either be dealt with by AFPˇ¦s Workplace Resolution
Program through a conciliation process, or the AFP Internal Investigations Division.
This process is monitored by the Ombudsman's Office.
In every case, a report detailing the actions taken by
Internal Investigations must be forwarded to the Ombudsmanˇ¦s office for
independent scrutiny. If the Ombudsman
is not satisfied with the AFP's investigation of your complaint, he or she can
ask the AFP to reconsider its recommendations, require Internal Investigations
to investigate further, or conduct his or her own investigation.
While you are entitled to complain to the Ombudsman at any time, he or she will
usually only intervene in the matter if you have already raised the complaint
with the AFP directly. If you are being
detained, you have the right to be provided with facilities to make a complaint
to the Ombudsman.
If you have a
grievance, you should make the complaint as soon as possible, within one year
of the incident. The contact details
for the Ombudsman can be found in Part 9 of this booklet.
In addition to the
Australia-wide laws, there are specific laws in some States which only apply to
those States. We discuss some of the
terrorism-specific laws for NSW,
The Terrorism (Police Powers) Act 2002 gives police special powers when
a special ˇĄauthorisationˇ¦ is made by a senior police officer if there is an
imminent threat of a terrorist act or immediately after a terrorist act. This gives ordinary police officers special
powers to force people to identify themselves, and special powers to search
people, vehicles, premises and the right to seize things. It also authorises strip searches, but just
like under the federal laws, a strip search must take place in a private place
and be conducted by a person of the same gender.
The Terrorism
(Community Protection) Act 2003 gives police special powers to enter
premises covertly, i.e., without the occupierˇ¦s knowledge, and search for,
seize, replace, copy, photograph or record any thing or document. This type of
warrant lasts for 30 days.
In
a situation where it is suspected that a terrorist act has or may have occurred
and that area may have been exposed to chemical, biological or radiological
contamination, a senior police officer may authorise police officers to direct
people to enter or leave the area, detain a person, and direct a person to
submit to decontamination procedures.
The maximum period of time that the authorisation will have effect is 8
hours, but they may request an extension for up to 16 hours.
The Terrorism
(Community Safety) Amendment Act 2004 increases the power of the police and
the Crimes and Misconduct Commission (CMC) to investigate terrorism-related
crimes with further surveillance powers.
The Act introduces a sabotage or threatened
sabotage crime ˇV it is an offence punishable by a maximum penalty of 25 years
imprisonment to destroy or damage a public facility with the intention of
causing major economic loss, or major disruption to government functions and
the use of services by the public.
The CMC can inspect
and seize financial records or passports in the course of their investigations,
and has the power to require a person to give information about the property,
financial transactions or movement of money and assets by another person being
investigated.
The CMC and the
police also have extended power to obtain a covert search warrant to conduct an
undercover search for evidence related to terrorism crimes.
In the event of an
actual terrorist act, the police and emergency officers also have public safety
powers to respond to incidents involving chemical, biological or radiological
substances.
If you would like
to find out more about this area of the law, keep updated with the latest
changes, or would like to get involved in working against these laws, you can
visit one of these websites:
Australian Muslim Civil Rights Advocacy Network
http://amcran.org
Civil Rights Network
http://www.civilrightsnetwork.org/
NSW Council for Civil Liberties
http://www.nswccl.org.au
Victorian Council for Civil Liberties (
http://libertyvictoria.org.au/index.asp
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Legal Aid Commission ˇV NSW Ground Floor Tel: (02)
9219 5000 http://www.legalaid.nsw.gov.au |
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Legal Aid Hotline for under 18s Tel: 1800 101
810 |
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Your local Community Legal
Centre See
http://www.nswclc.org.au |
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Law Society
of NSW (for
referral to private lawyers) Tel: (02)
9926 0333 http://www.lawsociety.com.au/ |
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Tel: (03)
9269 0234 http://www.legalaid.vic.gov.au/ |
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Your local Community Legal
Centre See:
http://www.austlii.edu.au/au/other/clc.OLD/clc_tocs.html |
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Law Institute for Tel: (03) 9607 9311 http://www.liv.asn.au/ |
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Legal Aid Commission ACT Tel: 1300 654 314 |
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Your local Community Legal Centre |
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The Law Society of the Tel: (02) 6247 5700 http://www.lawsocact.asn.au/ |
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Legal Aid Tel: 1300 65
11 88 http://www.legalaid.qld.gov.au/gateway.asp |
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Your local Community Legal Centre |
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Tel: (07) 3842 5888 Fax: (07) 3842 5999 http://www.qls.com.au/ |
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Inspector-General of Intelligence
and Security
3-5 National
Circuit Barton ACT
2600 Tel: (02)
6271 5692 Fax: (02)
6271 5696 http://www.igis.gov.au info@igis.gov.au
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AFP National
Headquarters Tel: (02)
6256 7777 |
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AFP Tel: (02)
9286 4000 |
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AFP Victoria Headquarters
Tel: (03)
9607 7777 |
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AFP Queensland Headquarters
Spring Hill QLD 4000 Tel: (07) 3222 1222 |
An online complaint form available at:
www.comb.gov.au/complaints_investigations/default.htm
Complaints may be made for the cost of a local call from anywhere in
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National
Office & Australian Capital Territory Level 6, Tel: (02)
6276 0111 Fax: (02)
6249 7829 |
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Level 7,
North Wing Sydney
Central Tel: (02)
9218 3000 Fax: (02)
9211 4402 |
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Level 10, Tel: (03)
9654 7355 Fax: (03)
9654 7949 |
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25th Floor, Tel: (07)
3005 7000 Fax: (07)
3229 4010 |
Produced
by
Australian
Muslim Civil Rights Advocacy Network (AMCRAN)
in partnership with
NSW
Council for Civil Liberties
and
UTS
Community Law Centre
Production Coordinator
Agnes Chong, Co-Convenor, AMCRAN
Legal Research and Writing
Randa Abdel-Fattah
Agnes Chong, Co-Convenor, AMCRAN
Leah Friedman, NSW Council for Civil Liberties
Dale Mills, Civil Rights Network
Michael Walton, NSW Council for Civil Liberties
Legal Reference Group
Adam Houda, Barrister & Solicitor, Murphyˇ¦s Lawyers
Dr Jude McCulloch, Senior Lecturer,
Joo Cheong Tham, Associate Lecturer, La
Professor George Williams, Director, Gilbert + Tobin Centre of Public
Law at UNSW
Asmi Wood,
Community Reference Group
Iqtedar Abdi
Amal Awad
Angela Chong
Abla Kadous
Dr Waleed Kadous, Co-Convenor, AMCRAN
Dr Zachariah Matthews, President, Australian Islamic
Dale Mills, Civil Rights Network
Ahmed Youssef, President,
Layout and Typesetting
Dr Zachariah Matthews
Special thanks to
Civil Rights Network
Ighsaan Jacobs, Global Islamic Youth Centre
Anthony Kelly, Fitzroy Legal Service
Damien Lawson, Office of Greens Senator Kerry Nettle
Andrew Macpherson
Cameron Murphy, President, NSW Council for Civil Liberties
Vicki Sentas, Coordinator, UTS Community Law Centre