Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, search and seize powers

National security Terrorism Counter-terrorism Australia
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This is one of three reports provided simultaneously to the Prime Minister as required by s 6(1B) of the INSLM Act. Each report concerns counter-terrorism legislation which, unless renewed, is due to expire by 7 September 2018.

The INSLM Act requires me to provide reports of these reviews by 7 September 2017 so that the PJCIS can undertake its own review of the same laws within six months (s 6(1B)).

Each report is self-contained, although there are some common chapters concerning the national security and counter-terrorism landscape, relevant human rights and other obligations, and constitutional and inter-governmental arrangements.

My recommendations can only be fully understood by considering each report as a whole; however for the convenience of readers, I now provide a brief summary of the conclusions of my review detailed in this report.

This review concerns certain ‘stop, search, and seize powers’ contained in the pt IAA div 3A of the Crimes Act, which, except for a stand-alone power of emergency entry to premises without warrant, can only be exercised over ‘Commonwealth places’ and where there is a genuine emergency caused by terrorist threats or acts.

Although the powers have, fortunately, never been used, the operational imperatives that resulted in the powers in div 3A being enacted have not receded – indeed, strong police capabilities are perhaps all the more essential to respond to current and reasonably foreseeable terrorism threats.

For the reasons which follow, I recommend these laws be continued, subject to the addition of new safeguards in the form of reporting requirements (akin to the existing requirements for delayed notification search warrants under the Crimes Act) to the relevant minister, the Commonwealth Ombudsman, the PJCIS and my Office so that each such body can review any exercise of div 3A powers.

Provided those safeguards are implemented, I recommend that the laws be continued for a further period of five years. I do so in substance because, as to the matters in s 6(1)(a) of the INSLM Act, I conclude that the laws have the capacity to be effective (noting that the laws have not operated in that they have not been used) and the laws are truly ‘emergency’ powers.

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