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Arrest and terrorism offences

Both Victorian and Commonwealth laws are in place to deal with acts of 'terror'. In 2005 all state and commonwealth governments met to discuss ways of dealing proactively with terrorism threats. They agreed to (temporarily) refer powers to commonwealth to enable a national approach to alleged offences.

Due to Constitutional restrictions, it was also necessary for states to increase the powers of their police forces to enable them to stop, question, search and detain suspects for up to 14 days to prevent a terrorist attack from taking place.

Preventative detention orders under Victorian law

Police have been given increased powers to detained a person if they think that this is necessary to prevent a terrorist attack. Authorised members of police force may apply to Supreme Court if they have a reasonable suspicion that it is necessary:

  • to prevent an act of terror from taking place (within next 14 days) or
  • to preserve evidence of an act of terror (must have occurred within last 28 days).

See ss. 13C, 13E(4)—Terrorism (Community Protection) Act 2003 (Vic).

Applications to Supreme Court

Police must apply to the Supreme Court for an order. The court may make an interim order pending further hearing if it is not satisfied that the order is warranted.

The suspected person has a right to appear in court and to have legal representation. The court may order Victoria Legal Aid to represent a person who does not have their own solicitor.

Time person can be held

The length of time that someone can be held depends on the kind of order that has been made and whether the person is an adult:

  • Interim orders can't be for longer than 48 hours.
  • An order can be for up to 14 days.

This time excludes any period of interim detention and police may apply for an extension of an order.

See s. 13G—Terrorism (Community Protection) Act 2003 (Vic).

An arrested person may be released to ASIO

The laws relating to terrorism are complex. Investigations may involve state or federal police or members of ASIO if they have a warrant that orders this. They may also release a person into the custody of a member of Australian Security and Intelligence Organisation for detention and questioning if this has been ordered in a warrant.

Use of force

Police can use reasonable force to enter premises to carry out the preventative detention order. Police are also able to require a person to provide their name and address if they believe that they may be able to assist them to locate a person who is subject to a preventative detention order. Police are also able to conduct a search person taken into preventative detention custody.

More information

Legislation

Main Commonwealth Acts

Criminal Code Act 1995 (Vic)

  • Part 5.3—Terrorism
  • Part 5.3—Division 100—terrorist acts
  • Part 5.3—Division 102—terrorist organisations
  • Part 5.3—financing terrorism
  • Part 5.3—Division 104—control orders
  • Part 5.3—Division 105—Preventative detention orders

See Criminal Code Act 1995 (Cth).

Australian Security Intelligence Organisation Act 1979 (Cth)

  • Pt. 3 Div 3—special powers relating to terrorism suspects and offences
  • s. 4—refers to criminal code for definition of terrorist acts—Div 72 and Pt 5.3
  • s. 34F—detention of persons
  • s. 34HC—person may not be detained for more than 168 hours continuously

See Australian Security Intelligence Organisation Act 1979 (Cth).

Victorian Acts

Terrorism (Community Protection) Act 2003 (Vic)

  • Pt. 2A—preventative detention orders
  • s. 13C—application for preventative detention orders
  • s. 13E—preventative detention orders (when an order can be made)
  • s. 13G—duration of preventative detention orders

See Terrorism (Community Protection) Act 2003 (Vic).

Terrorism (Commonwealth Powers) Act 2003 (Vic)

  • Schedule 1 Part 5.3—Terrorism (extracted from Commonwealth Criminal Code)

See Terrorism (Commonwealth Powers) Act 2003 (Vic).

Muslim Legal Network

This organisation is a network of volunteers dedicated to preventing the erosion of civil rights of all Australians. The site provides a Muslim perspective on civil rights matters.

The site links to a publication, Anti-terror laws: ASIO, the police and you, produced in association with the Australian Muslim Civil Rights Advocacy Network.

See Muslim Legal Network.

Updated