TERRORISM (POLICE POWERS) AMENDMENT (INVESTIGATIVE DETENTION) BILL 2016

11 May 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 11:56 ): I lead for the Opposition on the Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016. The Opposition does not oppose the bill. The object of the bill is to amend the Terrorism (Police Powers) Act 2002, the principal Act, to authorise the arrest, detention and questioning of a person who is suspected of being involved in a recent or an imminent terrorist act for the purposes of assisting in responding to or preventing the terrorist act. Additionally, the bill extends by three years the sunset date until which membership of a terrorist organisation is also a State criminal offence. 

New South Wales already has a regime of detention without charge. It is set out in the principal Act and has existed for more than a decade. It has been used very sparingly and the Ombudsman suggested not long ago that the provisions be rescinded as they had never been used. However, more recent events have meant that that suggestion has not been explored further.

This bill proposes two major differences to the current regime. One is not to restrict the regime to those aged 16 years and over. If this bill is enacted the regime will apply to those aged 14 years and over. The proposal for extension has been supported by Bret Walker, the former Independent Monitor of National Security Legislation, someone whose views on these issues the Opposition takes very seriously. The second major change is to allow suspects to be questioned while being detained. The bill does not simply amend the principal Act by altering the regime but inserts a new Part 2AA into the principal Act entitled “Investigative detention powers”. New section 25A provides:

The object of this Part is to authorise the arrest, detention and questioning of a person who is suspected of being involved in a recent or imminent terrorist act for the purposes of assisting in responding to or preventing the terrorist act. 

The powers are directed against a terrorism suspect. A terrorism suspect is defined widely and extends to a person who possesses a thing that is connected with the commission or preparation of or planning for a terrorist act. It extends to a future terrorist act, even if the identity of the person committing the terrorist act, the kind of act or timing or location of the act has not been established.

New section 25C defines investigative detention as:

… the detention of a terrorism suspect for investigation into a past or future terrorist act for the purposes of assisting in responding to or preventing the terrorist act.

New section 24E deals specifically with the power to arrest. Arrest without warrant for investigative detention may occur if the relevant terrorist act has occurred within the past 28 days, or if the police have reasonable grounds to suspect the terrorist act could occur at some time within the next 14 days. The suspect must be advised at the time of the arrest that he or she is arrested for the purposes of investigative detention. A senior police officer must review every 12 hours whether the detention should be continued.

New section 25F provides that a person under 14 years of age cannot be arrested or kept under investigative detention. This is a departure. Persons under the age of 16 years can already be charged with terrorism offences and detained if bail is refused. The evidence that might lead to preventative detention might well be enough to ground criminal charges. There is then a sense in which the investigative detention for under 16-year-olds allowed by this bill is not such a dramatically different path granted the capacity for those persons to be charged already. I have noted the comments of Bret Walker on radio on 4 May in support of this position. 

The other departure is new section 25C, which allows suspects to be questioned while detained. That is not allowed in the current regime. New section 25G (4) provides that questioning may occur only if the suspect is given the opportunity to rest for a continuous period of at least eight hours in any period of 24 hours of detention. The suspect must also have reasonable breaks during any period of questioning; however, I note the caveat in section 25G (4) that: 

This subsection does not prevent questioning that a senior police officer determines is necessary and reasonable because of the exceptional circumstances of the case. 

The maximum period of detention without a warrant is four days. With a warrant the maximum is 14 days. Warrants are obtained by application to an eligible judge in the capacity of being a persona designata—that is, someone not acting in a judicial capacity but an administrative capacity or as part of the executive. A detention warrant may extend the maximum period of investigative detention by a period not exceeding seven days. This may be extended by a detention warrant on more than one occasion, providing the total period does not exceed 14 days. The eligible judge must be satisfied that the investigation is being conducted diligently and without unnecessary delay, that there are reasonable grounds for suspecting that the person continues to be a terrorism suspect, that there are reasonable grounds for suspecting that any future terrorist act concerned should occur in the next 14 days or occur if the suspect is released, and that the extension will substantially assist in responding to or preventing the terrorist act concerned. 

An application for a detention warrant can be made in person or by phone. The application by phone is only if the warrant is required urgently and it is not practicable to do it in person. An affidavit must follow within one day. The judge must cause a record to be made if an application for a warrant is refused. The police may request that the judge determine some material criminal intelligence, which means it can be withheld from the suspect. The police can monitor all contact between the suspect and his or her family and others, but not including legal practitioners. The police can request a prohibited contact direction in the warrant. That may include a prohibition on contacting a particular legal representative. 

The provisions come from a Council of Australian Governments process, with agreement finally being reached in April. When originally floating legislation of this kind the Premier talked about providing for detention of up to 28 days, which has not emerged in this bill. The maximum periods remains 14 days. At the time that the 28 day proposition was floated the Labor Opposition expressed its scepticism about its necessity. That seems to have been borne out in the contents of the bill. The final provision in this bill is to extend the sunset clause for the offence of section 310J of the Crimes Act—being a member of a terrorist organisation. This is done by amending section 310L of the Crimes Act so that the sunset clause is extended by three more years—from 13 September 2016 to 13 September 2019. I note that in his second reading speech the Premier said: 

This amendment will ensure that suspects may continue to be arrested for the New South Wales version of the offence until the extended sunset date. 

That seems to imply that people have in fact already been arrested and charged under section 310J. We ask the Government to clarify in reply how many people have been charged with that offence. As at September 2015 there had been no convictions in New South Wales under section 310J. Likewise there have been no convictions in New South Wales under the counterpart Commonwealth legislation. We would appreciate a reply from the Government on that point. The Opposition has received a letter from the Law Society of New South Wales dated 10 May raising some issues that the Government should address in its reply. The opening paragraph of the letter reads: 

The Law Society of NSW writes to you to raise serious concerns in respect of the Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016 …While some safeguards have been built into the Bill, the Law Society does not consider them to provide a sufficient safeguard of individual rights and freedoms.

The Law Society notes that the legal profession has not been consulted on this Bill prior to its introduction. 

I regard that as unfortunate. As we noted last week in this place during debate on serious crime prevention orders and public safety orders issued by police, this Government appears to be establishing a pattern of embarking upon serious law reform that is impacting upon the democratic rights and freedoms that people used to have in New South Wales without engaging with expert legal bodies. I think that is regrettable. Whatever course of action the Government chooses to take should be informed at least by the technical competence of those expert bodies. 

As I said, the Law Society has raised a number of concerns. Some of them are matters of principle opposing preventative detention but others are specific concerns that it would seem appropriate to address. One is a concern that the preventative detention framework has no exemption for persons with cognitive impairments. The Law Society notes that the powers of arrest under new section 25E are extraordinary “in that they may be exercised by any police officer (rather than those defined as ‘senior police officers’) and they do not require the approval of a judicial officer unless the police seek to detain the person for more than four days.” 

We would welcome an explanation by the Government as to why the power rests with all police officers rather than with senior police officers. That seems to us to be a reasonable point for the Government to address in reply. We also note that the Law Society is concerned about the provision relating to lawyers. In part the letter states: 

In relation to lawyers, it is very concerning that the framework does not provide for alternative arrangements to be made to enable the terrorism suspect to access legal representation. 

We would welcome the Government’s response on this matter. The final point on which we seek a response from the Government about the Law Society’s submission relates to the portion of its letter that reads: 

Clause 25P provides for the Commissioner of Police to provide annual reports on the exercise of power by police officers. Clause 25P(4) outlines the matters that should be included in these reports. The Law Society considers that additional matters should be included in this list, including: 

The age of the individuals detained under these provisions; 

The number of no contact orders made under the provisions, and whether or not they were applied to minors; and 

The number of times a terrorism suspect was denied access to his or her lawyer under the provisions. 

It seems to the Opposition that clarification on those points would be of assistance. With those observations, the Opposition will not be opposing the legislation.