Northern Territory Second Reading Speeches

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TERRORISM (EMERGENCY POWERS) BILL 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bills be now read a second time.

In relation to the Terrorism (Northern Territory) Request Bill, firstly the purpose of this bill is to request the Commonwealth to legislate to the Territory in respect to national counter-terrorism offences. Whilst it is not constitutionally necessary for the Territory to refer this power, it is common practice for the Territory to request the Commonwealth to legislate. This ensures consistency among jurisdictions. This bill requests the Commonwealth to enact legislation in the same terms as referred by New South Wales and refers to the entire text of the Commonwealth amendments to the Criminal Code Act 1995, the Commonwealth Act.

Madam Speaker, turning to the Terrorism (Emergency Powers) Bill 2003, the purpose of this bill is to provide members of the police force with special powers to deal with terrorist acts or threats of imminent terrorist acts. Unfortunately, the events of September 11, the Bali bombings and, more recently, the terrorist attacks in Mombasa, Kenya on 28 November last year, shows that Australia and the Northern Territory are not sufficiently prepared to prevent a determined terrorist attack.

We cannot afford complacency in our counter-terrorist precautions, and this government will not allow terrorists to threaten our way of life. This bill forms part of a national framework towards the protection against terrorist acts. It adopts a position which, as far as possible, avoids unnecessary intrusions into our civil liberties but enables the police to act effectively in responding to a terrorist act or a threat of an imminent terrorist act.

Clearly, these powers will only be exercised in exceptional circumstances. They are intended to allow the police to act quickly on relatively short notice in response to a terrorist act or prevent such an act based on credible intelligence. Primarily, police need to act swiftly to catch the terrorists and collect the evidence required to bring these people to justice.

Madam Speaker, I now turn to the bill, which is presented in six parts. Part 1 contains the critical definitions of the bill. The foundation for the power is the definition of a ‘terrorist act’. For the benefit of jurisdictional conformity we have adopted the Commonwealth and New South Wales definitions. This definition means an action with the intention of coercing or influencing by intimidation, the government or the public or a section of the public in circumstances where any such action causes:

· serious physical harm or death to a person;

· serious damage to property’

· creates a serious risk to the health or safety of the public; or

· seriously interferes with an electronic system

regardless of whether the terrorist intended that result or not.

The definition has been drafted widely to capture all types of terrorist attacks and thus is not intended to be interpreted restrictively.

Part 2 of the bill provides special powers to members of the police force. Before these powers may be exercised, the Commissioner must make an authorisation. The powers sanctioned in the making of an authorisation permit a member of the police force to:

· find a particular person, a ‘target person’;

· find a particular vehicle, a ‘target vehicle’;

· prevent a terrorist act in a particular area, a ‘target area’; and/or

· minimise the risk to public health or public safety.

An authorisation may also be used to target a specific premise, or a number of premises when used in combination with a target person or area.

The decision to make an authorisation is to be non-reviewable. The reasons for this are two fold. Firstly, an authorisation will, in the majority of cases, be sought as a matter of urgency and it would be prejudicial to the public health and safety if a person was able to prevent police exercising their special powers swiftly.

Secondly, it is well recognised that a bulk of police intelligence is received from informants. If a person were able to have the Commissioner’s decision reviewed, this information would be subject to disclosure. The identity of and information provided by informants has, as a matter of public policy, long been protected against disclosure by the courts. Primarily, the rationale is that, if the identity or the information is liable to be disclosed in court, the sources of information would dry up and police would be hindered in their capacity to prevent and detect offences of this kind. This does not mean that the police are not accountable. If a police officer, or a person assisting an officer purports to exercise a power under the authorisation unlawfully, his or her actions could be the subject of legal recourse, including disciplinary procedures under the Police Administration Act.

Under the common law, a person does not have the right to an appeal. That right is given by parliament. Various jurisdictions, including the Territory, have adopted non-reviewable decisions in their taxation legislation. Primarily, these decisions go to whether any material facts are, or are not, taken to be a tax avoidance scheme. They protect the revenue base. In this case, the decision to make an authorisation is protected, as far as is possible, to ensure the expedient response of the police to the threat.

The bill also provides a number of other key safeguards. The first measure is that an authorisation may only be given with the agreements of the police minister, unless the minister could not be contacted and is thought to be a matter of urgency, in which case the minister must be notified of the authorisation as soon as is possible. If the minister was not available at the time, ratification must occur within 48 hours or else the authorisation ceases to have effect.

Secondly, as soon as is practicable after the authorisation ceases to have effect, the Commissioner must provide a comprehensive report to the police minister and the Attorney-General.

Thirdly, an authorisation may only be made for a period of seven days, although further extensions may be granted.

Lastly, the authorisation may be revoked by the Commissioner of Police or a person authorised at any time. The powers granted under an authorisation allow a police officer, without a warrant, to search a person, vehicle or enter and search premises. Further, a police officer may use a premise for a surveillance activity or to protect the health or safety of a person.

Some of the powers are new, and other already exist under the Police Administration Act. For example, a member of the police force will have the power to make a person disclose his identity and residential address and give proof of identity. A member of the police force may currently request a person to furnish him with the information under the Police Administration Act. Likewise, a police officer may already undertake an immediate search, without warrant, in cases of such seriousness or urgency.

In times of extreme emergency it is not practicable for a police office to obtain a warrant, or a number of warrants, to search a target person, vehicle or premises. Moreover, a warrant requires the police officer to identify the kind of thing which he or she reasonably believes may be found during the search. In a terrorist situation it is highly unlikely police would have such detailed intelligence in their possession. The making of an authorisation remedies these constraints and gives the police the tools to effectively deal with all potential scenarios.

As I have noted, these powers are not for general use.

Part 3 of the bill provides for complimentary powers. One important power is the ability to quarantine and decontaminate people in limited circumstances. Without these measures, people exposed to a contamination may unintentionally expose others. For example, in the subway terrorist attack in Tokyo in 1995 most of the casualties occurred by people becoming contaminated through touching an exposed person, rather than through any direct exposure to the contaminant gas.

History has shown that terrorists are prepared to use any chemical or biological weapons at their disposal to further their cause. Therefore, where a police officer suspects on reasonable grounds a person may have come into contact with contaminants used or released by terrorists, he or she may direct the person to remain at a place to be decontaminated. A time limit of 48 hours is provided. It will be an offence not to comply with the direction. The Chief Health Officer may extend the quarantine period for as long as is necessary to provide decontamination treatment. Decontamination provisions also apply to premises and other things.

Part 4 of the bill provides for a number of other powers which may be exercised without the making of an authorisation. These powers allow police to, amongst other things, secure the crime scene and seize evidence for the purpose of assisting in their investigations.

In addition, the bill recognises that other law enforcement agencies have specialist officers whose expertise would be invaluable in an emergency.

The appointment of interstate law enforcement officers is for a period of 14 days. However, the police minister may extend their term. Appointed officers remain under the command and control of the police office of which he or she is a member.

Part 5 of the bill provides for the duties under the act. Two of the more important provisions are the rules relating to the search of a person and for the return of seized things to the owner of the property. The search procedures are contained in the schedule of the bill. This part also provides that an acquisition of property is to be on just terms.

Part 6 of the bill contains miscellaneous provisions dealing with the bill’s relationship with other acts, and clarifies that the making of an authorisation is a relevant ground for forming a reasonable suspicion a terrorist act has occurred or is imminent.

Legislation of this type is new both in the Northern Territory and in other jurisdictions in Australia. In order to test the legislation in an operational environment it will be the subject of vigorous review and scenario testing, including the conduct of anti-terrorism exercises. In the event that deficiencies or gaps are identified in the bill, these will be the subject of further submissions by police for consideration of government.

The anticipated passage of the ASIO bill at the Commonwealth level will further provide a further opportunity for jurisdictions, including the Northern Territory, to review complementary counter-terrorism arrangements and legislation. This ongoing process of refinement is aimed at providing the Northern Territory with the best possible protection against the threat of terrorism.

Madam Speaker, these bills balance the need for the police to swiftly respond to any given threat against, as far as is possible, the preservation of our civil liberties and lifestyle. As such, I commend these bills to the House.

Debate adjourned.

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