Summary of Anti-Terrorism Legislation

Summary of Terrorism Offences under the Anti-Terrorism Act (No. 2) 2005 for Individuals involved in ANU Research

The provisions of the Anti-Terrorism Act (No. 2) 2005 (‘the Act’) introduces a number of measures to assist law enforcement agencies in responding to, and preventing, terrorist activities.

These measures may have an impact on your research activities where these activities are likely to generate information that is relevant to a terrorist act or an investigation into an actual or possible terrorist offence.

The provisions of the Act also apply to statements made by individuals, which may need to be considered when preparing publications. Where you are engaging in teaching activities, it may be useful for you to familiarise yourself with these provisions when making statements to students in your course.

To assist you in understanding the provisions of the Act, the Legal Office has prepared the following summary of the main provisions. This summary is not intended to be a substitute for reading the Act and you are encouraged to familiarise yourself with the provisions of the Act, which can be found at: http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/all/search/9249AE71DF443FDFCA2570D80024D5A0

Where you have been approached by the Australian Federal Police under this legislation or otherwise, you are encouraged to immediately contact the Deputy Vice-Chancellor and the Legal Office for assistance.

1. Sedition (Force or Violence)

The Act makes it an offence for a person to makes a statement where they urge:
(a) another person to overthrow the constitution, government or lawful authority of the government by force or violence;  and/or
(b) interference in Parliamentary elections by force or violence;  and/or
(c) violence within the community by urging a group or groups to use force or violence against another group or other groups, and as a result, threatening the peace and good government of the Commonwealth;  and/or
(d) another person to engage in conduct intended to assist an organization or country either at war with the Commonwealth (whether declared or not) or considered to be an enemy at war with the Commonwealth (except where aid is provision of humanitarian aid);  and/or
(e) another person to assist those engaged in armed hostilities against the Australian Defence Force (except where aid is provision of humanitarian aid). 

The emphasis here is the encouragement of the use of force or violence against the Government.

The maximum penalty for making a seditious statement is 7 years imprisonment.

There is a good faith defence for sedition. The defence is available where the person comments on a matter of public interest; points out errors made by the Government for the purposes of reform; urges a person to lawfully attempt to procure a change in law; or tries to show that certain persons (i.e. Sovereign; the Governor-General; the Governor of a State; the Administrator of a Territory; or an adviser of the above) were mistaken in any of their policies or actions.

These exceptions are relevant in the teaching context. For example, commenting on the arguments for and against terrorism would not fall within the definition of sedition. Studying case examples of terrorists, terrorist activities or the definition of ‘terrorism’ itself  would also fall outside the definition of sedition. The important point to note here is that sedition will only arise where the statements are made with the intent of encouraging the audience, in this case students, to actively use force or violence against the Government.

2. Power to Obtain Documents

Under this section, an Australian Federal Police officer may require you to provide the following information or documentation, where it is in your possession and control and is relevant to an investigation into a serious terrorist offence:
(a) details about whether a specified person travelled or will travel between specified dates or specified locations; and
(b) details about whether a specified person resides at a specified place or who resides at a specified place.

This might for example include information about colleagues or people you come into contact with during your research activities.

Please note that the documents you supply can not be used as evidence against you in criminal proceedings (except for prosecuting you for obstructing an AFP investigation or supplying misleading information/documents).

You will be given 14 days to comply with any notice issued. Failure to comply attracts a maximum fine of $3300.

It is an offence to disclose the existence or nature of a notice to produce information/documents unless it is reasonably necessary to do so to obtain the documents required or disclosure is made to obtain legal advice (i.e. from the Legal Office).

3. Measures Affecting Your Personal Liberties

The Act also introduces a number of measures which may require you to do certain things or refrain from certain actions, where it is reasonably necessary to prevent the commission of a terrorist offence.

These measures may impact the conduct of your research activities, as they can prevent you from contacting people or require you to remain in a specified place.

(a) Control Orders

An AFP Officer may apply to a court for an interim control order to be issued against you where he/she believes it is necessary to “substantially assist in preventing a terrorist act” or where you have “provided training to, or received training from, a listed terrorist organisation”. 

If an interim control order is issued against you, you may be required to do one or more of the following:
(a) not be at specified areas or places;
(b) leave Australia;
(c) remain at specified premises between specified times or on specified days;
(d) wear a tracking device;
(e) not communicate/associate with specified individuals;
(f) not have access to or use of specified forms of telecommunication or other technology (incl. internet);
(g) not possess or use specified articles or substances;
(h) not carry out specified activities;
(i)  report to specified persons at specific times and places;
(j) be photographed; and
(k) allow impressions of your fingerprints to be taken.

If an interim control order is taken out against you, you will be given a copy of the interim control order and provided with sufficient details to enable you to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order.  The interim order will specify its duration (which can not be more than 12 months) and the day on which you must attend court for either the confirmation, variation or revocation of the interim order. Your lawyer may obtain a copy of the interim order at a place designated in the interim order. A copy is not delivered to them.

After service, the AFP Officer must decide whether to apply to the court to have the interim order confirmed (i.e. made final). The decision must be made at least 2 days before you are required to attend court. If the AFP Officer decides not to have interim order confirmed, the order will cease to exist.

At the hearing to have the order confirmed, you (and your representative(s)) will permitted to make submissions and call evidence on whether the order should be declared void, revoked or varied.

If confirmed, the control order may remain in force for a period of time not exceeding 12 months after the day on which the interim order was first made.

The maximum penalty for contravening a control order is 5 years imprisonment.

(b) Preventative Detention Orders

A preventative detention order allows an AFP Officer to take you into custody for a short period of time where he/she believes it is necessary to prevent an imminent terrorist act occurring or preserve evidence of, or relating to, a recent terrorist act.

An AFP Office will apply to an issuing authority (i.e. Magistrate) for a preventative detention order if they are satisfied that there are reasonable grounds to suspect:
(a) you will engage in a terrorist act;
(b) you possess a thing that is connected a terrorist act;
(c) you have done an act in preparation for, or planning, a terrorist act; or
(d) a terrorist act has occurred within the last 28 days and it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act.

You may be detained for an initial 24 hour period. This period can be extended by the issuing authority for a further 24 hour period.
 
During detention, you cannot be questioned except to confirm your identity, or to enable safe detention.

You must be given a copy of the order with a summary of the grounds on which the order was made. Your lawyer will also able to obtain a copy of the order and a summary of the grounds for making the order.

During detention, you may contact a family member and the University solely for the purpose of letting them know you are safe but are not able to be contacted for the time being. You will not be permitted to disclose the details of the preventative detention order or the fact that you are being detained under the order.

(c) Prohibited Contact Order

In conjunction with a preventive detention order, an AFP Officer may apply to an issuing authority for a prohibited contact order to prevent you from contacting specified persons.

The AFP Officer may apply for a preventative contact order where he/she is satisfied that the order is reasonably necessary to:
(a) avoid action being taken related to a terrorist act;
(b) prevent serious harm to a person;
(c) preserve evidence of, or relating to, a terrorist act;
(d) prevent interference with the gathering of information about a terrorist act or its preparation; or
(e) avoid a risk to:
i. the arrest of a person who is suspected of having committed an offence related to a Control or Preventative Detention Order; or
ii. the taking into custody of a person in relation to whom a preventative detention order is in force or likely to be made; or
iii. the service on a person of a control order.