Anti-Terrorism Act (No. 2) 2005 (144 of 2005)
Schedule 5 Powers to stop, question and search persons in relation to terrorist acts
Crimes Act 1914
10 After Division 3 of Part IAA
Insert:
Division 3A - Powers to stop, question and search persons in relation to terrorist acts
Subdivision A - Definitions
3UA Definitions
In this Division:
Commonwealth place means a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member (within the meaning of that Act); or
(c) a member, however described, of a police force of a State or Territory.
prescribed security zone means a zone in respect of which a declaration under section 3UJ is in force.
serious offence related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a serious offence; or
(b) is connected with the preparation for, or the engagement of a person in, a serious offence; or
(c) is evidence of, or relating to, a serious offence.
terrorism related item means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a terrorist act; or
(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist act.
terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.
vehicle includes any means of transport (and, without limitation, includes a vessel and an aircraft).
Subdivision B - Powers
3UB Application of Subdivision
A police officer may exercise the powers under this Subdivision in relation to a person if:
(a) the person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act; or
(b) the person is in a Commonwealth place in a prescribed security zone.
3UC Requirement to provide name etc.
(1) A police officer may request the person to provide the officer with the following details:
(a) the person's name;
(b) the person's residential address;
(c) the person's reason for being in that particular Commonwealth place;
(d) evidence of the person's identity.
(2) If a police officer:
(a) makes a request under subsection (1); and
(b) informs the person:
(i) of the officer's authority to make the request; and
(ii) that it may be an offence not to comply with the request;
the person commits an offence if:
(c) the person fails to comply with the request; or
(d) the person gives a name or address that is false in a material particular.
Penalty: 20 penalty units.
Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
3UD Stopping and searching
(1) A police officer may:
(a) stop and detain the person for the purpose of conducting a search under paragraph (b); and
(b) conduct one of the following searches for a terrorism related item:
(i) an ordinary search or a frisk search of the person;
(ii) a search of any thing that is, or that the officer suspects on reasonable grounds to be, under the person's immediate control;
(iii) a search of any vehicle that is operated or occupied by the person;
(iv) a search of any thing that the person has, or that the officer suspects on reasonable grounds that the person has, brought into the Commonwealth place.
Conditions relating to conduct of search of person
(2) A police officer who conducts a search of a person under this section must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search.
(3) A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.
Other conditions relating to conduct of search of person or thing
(4) In searching a thing (including a vehicle) under subsection (1), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless:
(a) the person has been given a reasonable opportunity to open the thing or part of it; or
(b) it is not possible to give that opportunity.
3UE Seizure of terrorism related items and serious offence related items
If a police officer:
(a) conducts a search under section 3UD; and
(b) finds, in the course of the search, a thing that is:
(i) a terrorism related item; or
(ii) a serious offence related item;
the officer may seize the thing.
3UF How seized things must be dealt with
Seizure notice to be served
(1) A police officer who is for the time being responsible for a thing seized under section 3UE must, within 7 days after the day on which the thing was seized, serve a seizure notice on:
(a) the owner of the thing; or
(b) if the owner of the thing cannot be identified after reasonable inquiries - the person from whom the thing was seized.
(2) Subsection (1) does not apply if:
(a) both:
(i) the owner of the thing cannot be identified after reasonable inquiries; and
(ii) the thing was not seized from a person; or
(b) it is not possible to serve the person required to be served under subsection (1).
(3) A seizure notice must:
(a) identify the thing; and
(b) state the date on which the thing was seized; and
(c) state the ground or grounds on which the thing was seized; and
(d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.
Return of thing seized
(4) The owner of a thing seized under section 3UE may request the return of the thing.
(5) A police officer who is for the time being responsible for a thing seized under section 3UE must return the thing to its owner if:
(a) the owner requests the return of the thing; and
(b) neither subsection (6) nor (7) applies.
(6) This subsection applies if the police officer suspects, on reasonable grounds that, if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act or serious offence.
(7) This subsection applies if the thing is evidence of, or relating to, a terrorist act or serious offence.
Forfeiture of thing seized
(8) A thing is forfeited to the Commonwealth if the owner of the thing does not request its return:
(a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or
(b) if subsection (2) applied in relation to the thing so that a seizure notice was not served - before the end of the 90th day after the day on which the thing was seized.
Application to magistrate
(9) If:
(a) the owner of a thing requests the return of the thing:
(i) within 90 days after the date of the seizure notice in relation to the thing; or
(ii) if subsection (2) applied in relation to the thing so that a seizure notice was not served - within 90 days after the day on which the thing was seized; and
(b) the thing has not been returned to the owner by the end of the 90th day;
the police officer who is for the time being responsible for the thing must, before the end of the 95th day:
(c) return the thing to the owner; or
(d) apply to a magistrate for an order under section 3UG.
3UG Application to magistrate
(1) If subsection 3UF(9) applies, the police officer may apply to a magistrate for an order in relation to the thing.
(2) The magistrate must, in determining an application by a police officer under subsection (1), allow the owner of the thing to appear and be heard.
(3) If the magistrate is satisfied that the thing is evidence of, or relating to, a terrorist act or serious offence, the magistrate must order that the thing be retained by the police officer for the period specified in the order.
(4) If the magistrate is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act or serious offence, the magistrate may make any of the following orders:
(a) that the thing be retained by the police officer for the period specified in the order;
(b) that the thing is forfeited to the Commonwealth;
(c) that the thing is to be sold and the proceeds given to the owner;
(d) that the thing is to be otherwise sold or disposed of.
(5) If the magistrate is not satisfied as mentioned in subsection (3) or (4), the magistrate must order that the thing be returned to the owner.
3UH Relationship of Subdivision to other laws
(1) The powers conferred, and duties imposed, by this Subdivision on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory.
(2) This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Subdivision.
Subdivision C - Prescribed security zones
3UI Applications for declarations
A police officer may apply to the Minister for a declaration that a Commonwealth place be declared as a prescribed security zone.
3UJ Minister may make declarations
Declaration
(1) The Minister may declare, in writing, a Commonwealth place to be a prescribed security zone if he or she considers that a declaration would assist:
(a) in preventing a terrorist act occurring; or
(b) in responding to a terrorist act that has occurred.
Declaration has effect
(2) A declaration under this section has effect accordingly.
Duration of declaration
(3) A declaration ceases to have effect at the end of 28 days after it is made, unless the declaration is revoked by the Minister before then.
Revocation of declaration
(4) The Minister must revoke a declaration, in writing, if he or she is satisfied that:
(a) in the case of a declaration made on the ground mentioned in paragraph (1)(a) - there is no longer a terrorism threat that justifies the declaration being continued; or
(b) in the case of a declaration made on the ground mentioned in paragraph (1)(b) - the declaration is no longer required.
Gazettal and publication of declaration
(5) If a declaration of a Commonwealth place as a prescribed security zone under this section is made or revoked, the Minister must arrange for:
(a) a statement to be prepared that:
(i) states that the declaration has been made or revoked, as the case may be; and
(ii) identifies the prescribed security zone; and
(b) the statement to be:
(i) broadcast by a television or radio station so as to be capable of being received within the place; and
(ii) published in the Gazette; and
(iii) published on the Internet.
Effect of failure to publish
(6) A failure to comply with subsection (5) does not make the declaration or its revocation ineffective to any extent.
Declaration or revocation not legislative instruments
(7) A declaration or revocation made under this section is not a legislative instrument.
Subdivision D - Sunset provision
3UK Sunset provision
(1) A police officer must not exercise powers or perform duties under this Division (other than under sections 3UF and 3UG) after the end of 10 years after the day on which the Division commences.
(2) A declaration under section 3UJ that is in force at the end of 10 years after the day on which this Division commences ceases to be in force at that time.
(3) A police officer cannot apply for, and the Minister cannot make, a declaration under section 3UJ after the end of 10 years after the day on which this Division commences.