House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 5 - Powers to stop, question and search persons in relation to terrorist acts

This Schedule amends the Crimes Act to introduce a regime of police stop, question and search powers for the purposes of investigating and preventing terrorism and other serious offences. These provisions will dovetail with equivalent State and Territory stop, question and search powers, but will provide a common approach for police operating in Commonwealth places throughout Australia.

Crimes Act 1914

Item 1

This item repeals the existing heading to Part IAA of the Crimes Act and inserts a new heading 'Search, information gathering, arrest and related powers' which reflects the new provisions in this Part.

Item 2

This item inserts a definition of serious offence in subsection 3C(1) of the Crimes Act to mean an offence that is punishable by imprisonment for 2 years or more that is a Commonwealth offence, an offence against a State law that has a federal aspect or an offence against a Territory law. Serious terrorism offences, a new term also to be defined in subsection 3C(1), are excluded from this definition.

Item 3

This item inserts a definition of serious terrorism offence in subsection 3C(1) of the Crimes Act to mean a terrorism offence (other than an offence against section 102.8 or Division 104 or 105 of the Criminal Code ), an offence against a State law that has a federal aspect that has the characteristics of a terrorism offence (other than the characteristics of an offence against section 102.8 or Division 104 or 105) or an offence against a Territory law that has the characteristics of a terrorism offence (other than the characteristics of an offence section 102.8 or Division 104 or 105).

Items 4 to 9

These items amend section 3D of the Crimes Act as a consequence of the insertion of new Division 3A in Part IAA by item 10. Section 3D sets out the application of Part IAA of the Crimes Act , and these amendments are required to ensure that new Division 3A does not limit or exclude the operation of another law of the Commonwealth, or a law of Territory, that relates to the search of premises, arrest and related matters, the stopping, detaining or searching of conveyances or persons, the seizure of things or the requesting of information or documents from persons.

Item 10

This item inserts a new Division 3A into Part IAA of the Crimes Act dealing with Powers to stop, question and search persons in relation to terrorist acts.

New Division 3A - Powers to stop, question and search persons in relation to terrorist acts

New Subdivision A - Definitions

New section 3UA - Definitions

New section 3UA defines the terms Commonwealth place, police officer, prescribed security zone, serious offence related item, terrorism-related item, terrorist act and vehicle for the purposes of the new powers in new Division 3A.

A Commonwealth place means a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970 . A Commonwealth place is defined in section 3 of the Commonwealth Places (Application of Laws) Act 1970 as a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.

police officer means a member or special member of the AFP (within the meaning of the Australian Federal Police Act 1979) or a member of a police force of a State or Territory.

prescribed security zone means a zone in respect of which a declaration under section 3UJ is in force. New section 3UJ provides for the making of declarations by the Minister.

serious offence related item means a thing that a police officer conducting a search under section 3UD reasonably suspects may be used in a serious offence, is connected with the preparation for, or the engagement of a person in a serious offence, or is evidence of, or relating to, a serious offence. A definition of the term serious offence is inserted into subsection 3C(1) of the Crimes Act by the Bill, and means an offence that is punishable by imprisonment for 2 years or more that is a Commonwealth offence, an offence against a State law that has a federal aspect or an offence against a Territory law.

terrorism related item means a thing that a police officer conducting a search under section 3UD reasonably suspects may be used in a terrorist act, is connected with the preparation for, or the engagement of a person in, a terrorist act, or is evidence of, or relating to, a terrorist act.

terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code .

vehicle means any means of transport and includes a vessel and an aircraft. These examples are not intended to limit the generality of this definition.

New Subdivision B - Powers

Subdivision B contains a number of new powers for police officers to stop, question and search persons in relation to terrorist acts.

New section 3UB - Application of Subdivision

New section 3UB provides that the powers under new Subdivision B may be exercised by a police officer in relation to a person who is in a Commonwealth place, if either the officer suspects on reasonable grounds that the person has just committed, might be committing or might be about to commit a terrorist act, or where the person is in a prescribed security zone. New Subdivision C sets out the procedure for places to be declared as a prescribed security zone under section 3UJ.

New section 3UC - Requirement to provide name etc.

New subsection 3UC(1) provides a police officer with the power to ask a person for their name, residential address, their reason for being in a Commonwealth place and evidence of their identity.

New subsection 3UC(2) provides that if a police officer makes a request of a person under new subsection 3UC(1) and informs the person of the officer's authority to make such a request and that it may be an offence not to comply with the request, the person commits an offence if he or she fails to comply with the request, or gives a name or address which is materially false. This offence carries a maximum fine of 20 penalty units, which under section 4AA of the Crimes Act is equivalent to $2200.

The note to new subsection 3UC(2) indicates that the more serious offence of obstruction, hindering or intimidating a Commonwealth official, including a designated person, in the execution of his or her functions, which is found in section 149.1 of the Criminal Code , and which carries a maximum penalty of imprisonment for 2 years, may also apply.

New subsection 3UC(3) provides a reasonable excuse defence to the offence created by new subsection 3UC(2). What is regarded as a reasonable excuse will depend not only on the circumstances of the individual cases but also the purpose of the provision to which the defence is an exception. An example of a reasonable excuse might be that the person is unable to comply because of illness. The defendant bears the evidential burden in relation to subsection 3UC(3), in accordance with section 13.3(3) of the Criminal Code .

New section 3UD - Stopping and searching

New subsection 3UD(1) provides a police officer with the power to stop and detain a person for the purpose of searching for a terrorist related item on that person. This search may constitute an ordinary search or a frisk search of the person, a search of any thing that the officer suspects on reasonable grounds is in the person's immediate control, a search of a vehicle operated or occupied by the person, or a search of any thing that the officer suspects on reasonable grounds that the person has brought into the Commonwealth place. The terms ordinary search and frisk search are defined in section 3C of the Crimes Act .

New subsection 3UD(2) provides that a police officer, while in the process of conducting a search under new subsection 3UD(1), must not use more force, or subject the person to greater indignity, than is reasonable and necessary for the search to be conducted. Therefore, in the course of searching a person, a police officer must not do any act that is likely harm the person being searched, unless the officer believes on reasonable grounds that his or her act is necessary to undertake the search.

New subsection 3UD(3) provides that a person must not be detained under new subsection 3UD(1) for longer than is reasonably necessary for a search to be conducted.

New subsection 3UD(4) provides that when conducting a search of a thing (including a vehicle) under new subsection 3UD(1) a police officer may use such force as is necessary and reasonable in the circumstances. However the police officer must not cause damage to the thing being searched by forcing it, or a part of it, open, unless the owner or person in possession of the thing has been given a reasonable opportunity to open the thing or it is not possible for the police to give the person the opportunity to do so. An example of this may apply to circumstances where the person cannot be located or has abandoned the thing, or where the person refuses to cooperate with the officer.

New section 3UE - Seizure of terrorism related item and serious non-terrorism offence related items

New section 3UE provides that a police officer may seize a terrorism related item or a serious offence related item found during a search pursuant to section 3UD.

New section 3UF - How seized things are to be dealt with

New section 3UF establishes how, and the timeframes in which, seized items are to be dealt with. This provision is in similar terms to section 14L of the Australian Federal Police Act 1979 .

New subsection 3UF(1) requires a police officer who is responsible for the seized thing to serve a seizure notice on the owner of the thing or, if the owner can not be identified after reasonable inquiries, on the person from whom the thing was seized, within 7 days of the thing being seized.

New subsection 3UF(2) provides that the seizure notice provision under new subsection 3UF(1) does not apply if the owner of the thing cannot be identified after reasonable inquiries and the thing was not seized from a person, or if it is not possible to serve the person required to be served under new subsection 3UF(1). This latter scenario may occur where the thing seized had been abandoned or if a false name and address has been provided when requested by a police officer under new subsection 3UC(1).

New subsection 3UF(3) provides that a seizure notice must identify the thing seized, the date on which it was seized, the ground or grounds on which it was seized and state that if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.

New subsection 3UF(4) provides that the owner of the thing may request the return of a thing seized. New subsections 3UF(5), (6) and (7) provide that the police officer responsible for the seized thing must return the thing if requested by the owner, unless there are reasonable grounds to suspect that, if the thing is returned to the owner, it is likely to be used by the owner or another person in the commission of a terrorist act or serious offence, or if the thing is evidence of, or relates to, a terrorist act or serious offence.

New subsection 3UF(8) provides that if the owner of the thing does not request the return of the thing within 90 days of the seizure notice, the thing will be forfeited to the Commonwealth. Where no seizure notice was served under new subsection 3UF(1) due to the application of new subsection 3UF(2), the thing will be forfeited to the Commonwealth if the owner has not requested the return of the thing within 90 days of the day that the thing was seized.

New subsection 3UF(9) provides that where the owner of the thing requests the return of the thing under subsection 3UF(4), the police officer responsible for the thing does not return the thing, and a period of 90 days has elapsed since the date of the seizure notice or the seizure day as applicable, the police officer must, within five more days, either return the thing to the owner or apply to a magistrate for an order under new section 3UG.

New section 3UG - Application to magistrate

New section 3UG applies where the owner of the seized thing has requested the return of the thing under new subsection 3UF(4), and the police officer responsible for the thing has not returned, and does not intend to return, the thing to the owner. In this scenario, new subsection 3UG(1), read with new subsection 3UF(9), provides that the police officer must make an application to a magistrate for an order in relation to the thing.

New subsection 3UG(2) provides that the owner of the thing must be allowed to appear and to heard by the magistrate in considering the application.

New subsection 3UG(3) provides that if the magistrate is satisfied that the thing is evidence of, or relating to, a terrorist act or serious office, the magistrate must make an order that the thing be retained by the police officer for the period of time specified in the order.

New subsection 3UG(4) provides that if the magistrate is satisfied there are reasonable grounds to suspect that if the seized thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act or serious offence, the magistrate may order the police officer to retain the thing for a specified period, the thing to be forfeited to the Commonwealth, the thing to be sold and the proceeds given to the owner, or the thing to be otherwise sold or disposed of.

New subsection 3UG(5) provides that if the magistrate is not satisfied that the conditions of new subsection (3) or (4) are met, he or she must order that the thing be retuned to the owner.

New section 3UH - Relationship of Subdivision to other laws

New section 3UH provides that the powers and duties in new Subdivision B are additional to, and do not lessen, any powers and duties police officers have under Commonwealth law or the law of a State or Territory. It also specifies that these powers and duties do not exclude or limit the operation of any other law of the Commonwealth or a State or Territory insofar as these other laws are capable of operating concurrently with the new laws.

New Subdivision C - Prescribed security zones

New Subdivision C sets out the procedure for declaring a place to be a prescribed security zone for the purpose of this new Division.

New Section 3UI - Applications for declarations

New section 3UI provides that a police officer may make an application to the Minister for a declaration that a Commonwealth place be declared to be a prescribed security zone.

New Section 3UJ - Minister may make declarations

New subsection 3UJ(1) provides that the Minister may declare, in writing, a specified Commonwealth place to be a prescribed security zone if the Minister considers that such a declaration would substantially assist in either preventing a terrorist act occurring or responding to a terrorist act which has occurred. This regime is designed to dovetail with State and Territory legislation authorising similar declarations.

New subsection 3UJ(2) provides that a declaration made under new subsection (1) has immediate effect. New subsection 3UJ(3) provides that the declaration ceases to have effect 28 days after the declaration is made, unless the declaration is earlier revoked by the Minister under new subsection (4).

New subsection 3UJ(4) provides that if the Minister is satisfied that the grounds for making the declaration under new subsection (1) no longer exist, such that the declaration is no longer required, the Minister must revoke the declaration in writing

New subsection 3UJ(5) provides that if the Minister makes or revokes a declaration under subsection (1) or (4), the Minister must arrange for a statement to be prepared which specifies that a declaration has been made or revoked and identifies the prescribed security zone. This statement must be broadcast by television or radio so as to be capable of being received within the prescribed security zone, and published in the Gazette and on the Internet. New subsection 3UJ(6) provides that a failure to comply with new subsection (5) does not have the effect of making the declaration or its revocation ineffective.

New subsection 3UJ(7) ensures that despite the publication requirements, a declaration or revocation made under new subsection (1) or (4) is not a legislative instrument. This reflects the fact that given the security nature of this declaration, it is not appropriate for its operation to be uncertain due to the possibility of disallowance.

New Subdivision D - Sunset provision

New section 3UK -Sunset provision

New subsection 3UK(1) provides that a police officer must not exercise powers or perform duties under new Division 3A after the end of 10 years after the day on which the Division commences. The exceptions relating to powers and duties under sections 3UF and 3UG acknowledges the machinery type provisions that must continue in operation despite the intention that this new Division should cease to have effect at the end of 10 years. These provisions deal with how seized items are to be dealt with and must continue to operate beyond the end of the 10 year period.

New subsection 3UK(2) provides that, if a declaration under new section3UJ is in force at the end of 10 years after the day on which the Division commences, such declaration ceases to be in force at that time.

New subsection 3UK(3) prohibits a police officer from applying for, and a Minister from making, a declaration after the end of 10 years after the day on which the Division commences