8 / 3 / 2022

Extraordinary AFP Powers for Terrorism Offences

A police officer in the ACT that suspects on reasonable grounds that a person intends, or has the capacity, or is preparing to commit a ‘terrorist act’, is permitted to rely on new and additional powers not available for standard offences. These additional powers could be described as ‘extraordinary’, as is made clear by the aptly-named Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT).

The definition of a “terrorist act” has three limbs. First, it must be an act that either:

  • causes serious physical harm or death to a person;
  • causes serious damage to property;
  • endangers the life of someone other than the person committing the act;
  • creates a serious risk to public health or safety; or
  • seriously interferes with, disrupts or destroys an electronic system.

Secondly, it must be done with the intention of advancing a political, religious or ideological cause.

Lastly, it must be done with the intention of either:

  • coercing or intimidating a government, whether it be an Australian federal, state or territory government or a foreign government; or
  • intimidating the public.

When these three factors are present, the additional powers provided in the Act are available to police.


Preventative detention orders

Preventative detention orders, if granted by a court, allow police to arrest and detain a person in order to prevent a terrorist act being committed. This is the case whether police suspect a person intends, has the capacity, or is preparing to commit a terrorist act. The person may be detained for up to 7 days and the Court has the power to either extend the order or grant another order, meaning the person could spend even longer in custody without being suspected of actually having committed an offence.


Special powers authorisation

There are two types of special powers available: preventative and investigative. Both may be granted if the chief police officer believes on reasonable grounds that a terrorist act will happen some time within the next 14 days, and is satisfied that the authorisation would substantially assist in preventing a terrorist act, in apprehending a suspect or investigating a terrorist act. While preventative detention orders extend the police’s power to arrest and detain, a special powers authorisation, when granted, extends their power to require personal details, to search people and vehicles, to enter and search premises, to seize things and to cordon off certain target areas.


‘Extraordinary’ powers?

There are two reasons the powers contained in the Act are extraordinary. First, if an order or authorisation is granted, powers which usually only arise after an offence is committed can be exercised pre-emptively. This is unlike usual arrest powers where the police must have a reasonable suspicion that an offence has already been committed. Secondly, all that is required is a reasonable suspicion that a person has the capacity or has an intention to commit a terrorist act, meaning the powers arise before the person has actually done anything. If police suspected a person had such a capacity or intention, they could detain them for 7 days and enter and search that person’s premises and seize property while they were in custody prior to that person physically doing anything wrong.

While these powers may be useful in some cases, there is no doubt that the powers to arrest, detain, search, seize and enter premises must be granted with caution.

Section 52 provides that a person subject to a preventative detention order must be given an opportunity to speak to a lawyer privately. Exercising this right is advisable in all cases.


Thomas Tiffen

Law Graduate