Terrorism (Police Powers) Act 2002 (NSW)

Terrorism (Police Powers) Act 2002 No 115 An Act to give special powers to police officers to deal with terrorist acts; to amend the State Emergency and Rescue Management Act 1989 to give police officers additional powers to protect people in emergencies; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Terrorism (Police Powers) Act 2002. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definition of "terrorist act" (1) General In this Act, terrorist act means an action where— (a) the action falls within subsection (2) and does not fall within subsection (3), and (b) the action is done with the intention of advancing a political, religious or ideological cause, and (c) the action is done with the intention of— (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country, or (ii) intimidating the public or a section of the public. (2) Action included Action falls within this subsection if it— (a) causes serious harm that is physical harm to a person, or (b) causes serious damage to property, or (c) causes a person's death, or (d) endangers a person's life, other than the life of the person taking the action, or (e) creates a serious risk to the health or safety of the public or a section of the public, or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to— (i) an information system, or (ii) a telecommunications system, or (iii) a financial system, or (iv) a system used for the delivery of essential government services, or (v) a system used for, or by, an essential public utility, or (vi) a system used for, or by, a transport system. (3) Action excluded Action falls within this subsection if it— (a) is advocacy, protest, dissent or industrial action, and (b) is not intended— (i) to cause serious harm that is physical harm to a person, or (ii) to cause a person's death, or (iii) to endanger the life of a person, other than the person taking the action, or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) Application In this section— (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside the State (including within or outside Australia), and (b) a reference to the public includes a reference to the public of another State or Territory or of a country other than Australia. Note— The above definition is in the same terms as those used in Part 5.3 of the Commonwealth Criminal Code (as inserted by the Security Legislation Amendment (Terrorism) Act 2002 of the Commonwealth), except that threats of terrorist acts are excluded since it is not necessary to refer to threats in the context in which the expression is used in this Act. 4 Other definitions (1) In this Act— exercise a function includes perform a duty. function includes a power or duty. impaired intellectual functioning, in relation to a person, means— (a) a total or partial loss of the person's mental functions, or (b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or (c) a disorder, illness or disease that affects the person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour. occupier of premises includes a person in charge of the premises. Police Minister means the Minister administering the Police Act 1990. premises includes a building, structure or place, whether built on or not. serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more. vehicle includes a vessel or an aircraft. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) (Repealed) (3) Notes included in this Act do not form part of this Act. 4A Extraterritoriality of terrorist act no barrier To avoid doubt, functions conferred by this Act in relation to a terrorist act may be exercised whether or not the terrorist act has been, is being, or is likely to be committed in New South Wales. Part 2 Special powers Division 1 Preliminary 4B Interpretation (1) In this Part— authorisation means an authorisation given under this Part in accordance with Division 2. target of an authorisation—see section 7 (2). (2) For the purposes of this Part— (a) a person in an area that is the target of an authorisation includes a person who is about to enter the area or who has recently left the area, and (b) a vehicle in an area that is the target of an authorisation includes a vehicle that is about to enter the area or that has recently left the area. Division 2 Authorisation to exercise special powers 5 Authorisation of special powers to prevent terrorist acts An authorisation for the exercise of the special powers conferred by this Part may be given in accordance with this Division if the police officer giving the authorisation— (a) is satisfied that there are reasonable grounds for believing that a terrorist act could occur at some time in the next 14 days, and (b) is satisfied that the exercise of those powers will substantially assist in preventing the terrorist act. 6 Authorisation of special powers to investigate terrorist act in the immediate period after its occurrence An authorisation for the exercise of the special powers conferred by this Part may also be given in accordance with this Division if the police officer giving the authorisation— (a) is satisfied that there are reasonable grounds for believing that a terrorist act has been committed, and (b) is satisfied that the exercise of those powers will substantially assist in apprehending the persons responsible for committing the terrorist act. 7 Persons, vehicles or areas targeted by authorisation (1) An authorisation may authorise the exercise of the special powers conferred by this Part— (a) for the purpose of finding a particular person named or described in the authorisation, or (b) for the purpose of finding a particular vehicle, or a vehicle of a particular kind, described in the authorisation, or (c) for the purpose of preventing a terrorist act in a particular area described in the authorisation (or apprehending in any such area the persons responsible for committing a terrorist act), or for any combination of those purposes. (2) The person, vehicle or area is referred to in this Part as the target of the authorisation. (3) Without limiting subsection (1) (a), a person may be described by the use of a photograph or drawing. 8 Who may give an authorisation (1) An authorisation may be given by the Commissioner of Police or by a Deputy Commissioner of Police. (2) If the Commissioner of Police or a Deputy Commissioner of Police is not able to be contacted when an authorisation is sought as a matter of urgency, a police officer above the rank of superintendent who is able to be contacted may give an authorisation in accordance with this Division. (3) In giving an authorisation, the Commissioner of Police, Deputy Commissioner of Police or other police officer is to be satisfied that the nature and extent of the powers to be conferred by the authorisation are appropriate to the threatened or suspected terrorist act. 9 Ministerial concurrence or confirmation (1) An authorisation may only be given with the concurrence of the Police Minister, except as provided by subsection (2). (2) An authorisation may be given without the concurrence of the Police Minister if he or she is not able to be contacted at the time it is given. (3) If the authorisation is given without the concurrence of the Police Minister— (a) the Police Minister is to be notified of the authorisation as soon as the Police Minister is available to be notified, and (b) in the case of an authorisation under section 5—the authorisation ceases to have effect if the Police Minister has not confirmed the authorisation within 48 hours after the authorisation was given. Note— The Police Minister may at any time direct that an authorisation be revoked—see section 12 (1). 10 Authorisation may be given orally or in writing (1) An authorisation may be given orally or by instrument in writing. (2) If the authorisation is given orally, it must be confirmed by instrument in writing as soon as it is reasonably practicable to do so. (3) An authorisation must— (a) state that it is given under this Part, and (b) describe the general nature of the threatened terrorist act or suspected terrorist act to which it applies, and (c) name or describe the person, vehicle or area targeted by the authorisation, and (d) specify the time it ceases to have effect. 11 Duration of authorisation (1) An authorisation given has effect, unless sooner revoked, during the period beginning at the time it is given and ending at the time specified in the authorisation. (2) The period an authorisation has effect must not exceed— (a) in the case of an authorisation under section 5—7 days beginning with the day on which it is given, or (b) in the case of an authorisation under section 6—24 hours beginning with the time at which it is given. (3) The period an authorisation has effect may be extended by the giving of a further authorisation, with the concurrence of the Police Minister, in accordance with this Division so long as the combined period does not exceed— (a) in the case of an authorisation under section 5—14 days beginning with the day on which it was first given, or (b) in the case of an authorisation under section 6—48 hours beginning with the time at which it was first given. 12 Revocation of authorisation (1) The police officer who gives an authorisation, or a police officer of a more senior rank, may revoke it at any time, and must revoke it if directed to do so by the Police Minister. (2) The cessation of an authorisation (by revocation or otherwise) does not affect anything lawfully done in reliance on the authorisation before it ceased to have effect. 13 Authorisation not open to challenge (1) An authorisation (and any decision of the Police Minister under this Division with respect to the authorisation) may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus. (2) For the purposes of subsection (1), legal proceedings includes an investigation into police or other conduct under any Act (other than the Law Enforcement Conduct Commission Act 2016). 14 Exercise of special powers conferred by authorisation by police officers (1) The special powers conferred by this Part may be exercised by any police officer. (2) A police officer may exercise those powers whether or not the officer has been provided with a copy of the authorisation or notified of all the terms of the authorisation. Note— The special powers of a police officer under this Part may also be exercised by a recognised law enforcement officer as referred to in Part 10B of the Police Act 1990. 14A Power to give directions to government agencies (1) The Commissioner of Police or other police officer referred to in section 8 may, for the purposes of facilitating the exercise of the special powers conferred by this Part, give a government agency directions with respect to the exercise of the powers or functions of the agency. (2) The government agency is authorised and required to comply with the direction. (3) In this section— government agency includes a government department, a public or local authority, a State owned corporation and any member or officer of any such department, authority or corporation, but does not include a parliamentary or judicial body or its members or officers. 14B Report to be given to Attorney General and Police Minister As soon as practicable after an authorisation given under this Act ceases to have effect, the Commissioner of Police is to furnish a report, in writing, to the Attorney General and the Police Minister— (a) setting out the terms of the authorisation and the period during which it had effect, and (b) identifying as far as reasonably practicable the matters that were relied on for giving the authorisation, and (c) describing generally the powers exercised pursuant to the authorisation and the manner in which they were exercised, and (d) specifying the result of the exercise of those powers. Division 3 Powers Note— Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 sets out safeguards relating to the exercise of powers under this Division. 15 Purposes for which special powers may be exercised The special powers under this Division may be exercised for the purposes for which an authorisation is given under this Part. Note— See section 7 for purposes of an authorisation. 16 Power to obtain disclosure of identity (1) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if— (a) the officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in suspicious circumstances in the company of the target of the authorisation), or (b) the person is in or on a vehicle that the officer suspects on reasonable grounds is the target of an authorisation, or (c) the person is in an area that is the target of an authorisation. (2) A person who is so required to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement. Maximum penalty—50 penalty units or 12 months imprisonment, or both. (3) A person must not, without reasonable excuse, in response to any such requirement— (a) give a name that is false in a material particular, or (b) give an address other than the person's full and correct address. Maximum penalty—50 penalty units or 12 months imprisonment, or both. (4) A police officer may request a person who is required under this section to disclose his or her identity to provide proof of his or her identity. 17 Power to search persons (1) A police officer may, without a warrant, stop and search a person, and anything in the possession of or under the control of the person, if— (a) the officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in suspicious circumstances in the company of the target of the authorisation), or (b) the person is in or on a vehicle that the officer suspects on reasonable grounds is the target of an authorisation, or (c) the person is in an area that is the target of an authorisation. (2) Division 4 of Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 extends to the search of a person conducted under this section. However, in addition to section 31 of that Act, a police officer may only strip search a person under this section if the police officer suspects on reasonable grounds that the person is the target of an authorisation. (3) A police officer must not detain a person for any longer than is reasonably necessary for the purpose of conducting a search under this section. 18 Power to search vehicles (1) A police officer may, without a warrant, stop, enter and search a vehicle, and anything in or on the vehicle, if— (a) the officer suspects on reasonable grounds that the vehicle is the target of an authorisation, or (b) the officer suspects on reasonable grounds that a person in or on the vehicle is the target of an authorisation, or (c) the vehicle is in an area that is the target of an authorisation. (2) A police officer must not detain a vehicle for any longer than is reasonably necessary for the purpose of conducting a search under this section. 19 Power to enter and search premises (1) A police officer may, without a warrant, enter and search any premises, if— (a) the officer suspects on reasonable grounds that a person who is the target of an authorisation may be in the premises, or (b) the officer suspects on reasonable grounds that a vehicle that is the target of an authorisation may be in the premises, or (c) the premises are in an area that is the target of an authorisation. (2) The police officer must do as little damage as possible. 19A Cordon around target area (1) A police officer may, for the purposes of stopping and searching under this Division persons, vehicles or premises in a target area, place a cordon around the target area or any part of it. (2) A cordon may include any form of physical barrier, including a roadblock on any road in or in the vicinity of the target area. 20 Power to seize and detain things (1) A police officer may, in connection with a search under this Division, seize and detain— (a) all or part of a thing (including a vehicle) that the officer suspects on reasonable grounds may be used, or may have been used, to commit a terrorist act, or (b) all or part of a thing (including a vehicle) that the officer suspects on reasonable grounds may provide evidence of the commission of a serious indictable offence (whether or not related to a terrorist act). (2) A power conferred by this section to seize and detain a thing includes— (a) a power to remove a thing from the place where it is found, and (b) a power to guard the thing in or on the place where it is found. 21 Use of force generally by police officers It is lawful for a police officer exercising a power under this Division in relation to a person or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the power. 22 Offence to obstruct or hinder search or other powers A person must not, without reasonable excuse, obstruct or hinder a police officer in the exercise of a power under this Division to stop and search a person, to stop, enter and search a vehicle, to enter and search premises or to seize and detain a thing. Maximum penalty—100 penalty units or imprisonment for 2 years, or both. 23 Statement regarding search The Commissioner of Police is to arrange for a written statement to be provided, on request made within 12 months of the search, to a person who was searched, or whose vehicle or premises were searched, under this Part stating that the search was conducted in pursuance of this Part. The written statement is to be provided within 30 days of the request being made. Division 4 Miscellaneous 24 Annual reports to be given to Attorney General and Police Minister (1) The Commissioner of Police must report annually on the exercise of powers under this Part by police officers. (2) Each report is to be provided, within 4 months after each 30 June, to the Police Minister and the Attorney General. (3) The report is to specify the following matters in relation to the year ended on that 30 June— (a) the number of authorisations given under this Part, (b) the powers exercised under each authorisation given under this Part. (4) The report may be combined with any other annual report of the NSW Police Force. (5) The report is to be tabled in each House of Parliament as soon as practicable after it is received by the Attorney General. Part 2AAA Police use of force—ongoing terrorist acts 24A Police Commissioner may declare this Part applies to terrorist act to which police are responding (1) If the Commissioner of Police is satisfied that— (a) an incident to which police officers are responding is or is likely to be a terrorist act, and (b) planned and coordinated police action is required to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty, the Commissioner may declare that it is a terrorist act to which this Part applies. (2) A declaration made under this Part applies to each location at which police officers are responding to the incident. (3) The Commissioner of Police is to notify the police officer in charge of the police officers responding to the terrorist act that a declaration has been made under this Part. (4) Before or as soon as practicable after a declaration is made under this Part, the Commissioner of Police is to notify the Minister for Police of the declaration. (5) A Deputy Commissioner of Police may make and notify a declaration under this Part on behalf of the Commissioner of Police if satisfied that the Commissioner is not able to be contacted when a declaration is sought as a matter of urgency. (6) A declaration may be made under this Part orally or by instrument in writing. If the declaration is made orally, it must be confirmed by instrument in writing as soon as it is reasonably practicable to do so. (7) The Commissioner of Police may at any time revoke a declaration made under this Part, and must do so if no further police response is required at the location concerned. The Commissioner or a Deputy Commissioner of Police may revoke a declaration made by the Deputy Commissioner on behalf of the Commissioner. 24B Use of force in relation to declared terrorist act (1) The police action that is authorised by this section when police officers respond to any incident that is declared to be a terrorist act to which this Part applies is authorising, directing or using force (including lethal force) that is reasonably necessary, in the circumstances as the police officer perceives them, to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty. (2) A police officer does not incur any criminal liability for taking any such police action for the purposes of a police action plan of the police officer in charge of the police officers responding to the terrorist act. (3) This section applies only to action taken by a police officer in good faith. (4) If a declaration under this Part is revoked, this section continues to apply to any action taken by a police officer before the earlier of the following— (a) when the police officer became aware of the revocation of the declaration, (b) when the police officer, acting reasonably, ought to have been aware of the revocation of the declaration. (5) If a court finds that a purported declaration under this Part was not validly made, this section continues to apply to any action taken by a police officer before the finding as if it were a valid declaration. (6) This Part does not limit the powers of police officers to deal with a terrorist act, and police officers may exercise those powers whether or not the Commissioner of Police has been requested or has declined to make a declaration under this Part in relation to the terrorist act. 25 Annual reports to be given to Attorney General and Police Minister (1) The Commissioner of Police must report annually on the number of declarations made under this Part in relation to each year ended on 30 June. (2) Each report is to be provided, within 4 months after each 30 June, to the Police Minister and the Attorney General. (3) The report may be combined with any other annual report of the NSW Police Force. (4) The report is to be tabled in each House of Parliament as soon as practicable after it is received by the Attorney General. Part 2AA Investigative detention powers Division 1 Preliminary 25A Object of Part 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. 25B Meaning of "terrorism suspect" (1) For the purposes of this Part, a person is a terrorism suspect if there are reasonable grounds for suspecting that— (a) the person has committed or will commit a terrorist act, or (b) the person is or has been involved in preparing or planning for a terrorist act, or (c) the person possesses a thing that is connected with the commission of, or the preparation or planning for, a terrorist act. (2) This section extends to a future terrorist act even if any of the following has not been identified— (a) the identity of the persons who will commit the terrorist act, (b) the kind of terrorist act that will be committed, (c) the place where or the time when the terrorist act will be committed. (3) This section extends to terrorist acts committed, and acts done in preparation or planning for terrorist acts, before the commencement of this Part. 25C Meaning of "investigative detention" (1) For the purposes of this Part, investigative detention is 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. (2) In this Part, responding to a terrorist act includes apprehending and prosecuting the persons involved in committing the terrorist act and preventing those persons and their associates from committing further terrorist acts. (3) A police officer who arrests a terrorism suspect for the purpose of investigative detention under this Part is not under an obligation to take the suspect before a court or an authorised officer (within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002) as soon as practicable to be dealt with according to law. 25D Other definitions In this Part— day means a period of 24 hours. detention warrant means a warrant issued by an eligible Judge under this Part that extends the maximum period of investigative detention of a terrorism suspect. eligible Judge means a Judge of the Supreme Court authorised to issue a covert search warrant under Part 3, but does not include any such Judge who has revoked consent to exercising functions under this Part by notice in writing to the Attorney General. juvenile justice officer has the same meaning as in the Children (Detention Centres) Act 1987. senior police officer means the Commissioner of Police, a Deputy Commissioner of Police or any other police officer of or above the rank of Superintendent. telephone includes fax, email or other electronic communication. Division 2 Investigative detention powers and detention warrants 25E Power to arrest terrorism suspects for investigative detention (1) A police officer may, without a warrant, arrest a terrorism suspect for the purpose of investigative detention under this Part if— (a) the terrorist act concerned occurred in the last 28 days, or (b) the police officer has reasonable grounds to suspect that the terrorist act concerned could occur at some time in the next 14 days, and the police officer is satisfied that the investigative detention will substantially assist in responding to or preventing the terrorist act. (2) A police officer may also arrest a terrorism suspect for the purpose of investigative detention under this Part if directed to do so by another police officer. That other police officer is not to give such a direction unless that other police officer may lawfully arrest the person without a warrant under this section. (3) A terrorism suspect is subject to investigative detention under this Part only if— (a) the police officer informs the terrorism suspect at the time of arrest that the terrorism suspect is being arrested for the purpose of investigative detention under this Part, and (b) the arrest has not been discontinued. (4) A police officer may discontinue an arrest under this section at any time. (5) An arrest under this section must be discontinued— (a) on the expiry of the maximum period of investigative detention under this Part, or (b) as soon as practicable after the police officer in charge of the investigation of the terrorism suspect ceases to be satisfied that the person is a terrorism suspect or ceases to be satisfied that continuing the investigative detention will substantially assist in responding to or preventing a terrorist act, or (c) if, following a review by a senior police officer under subsection (6), the senior police officer is satisfied that there are no reasonable grounds to suspect that the person is a terrorism suspect or is satisfied that there are no reasonable grounds to suspect that continuing the investigative detention will substantially assist in responding to or preventing a terrorist act. (6) A senior police officer is to review whether an investigative detention under this Part should be continued— (a) as soon as practicable after the terrorism suspect is arrested, and (b) every 12 hours after the arrest of the terrorism suspect. The senior police officer who conducts the review cannot be a police officer who is in charge of, or involved in the conduct of, the investigation. (7) A terrorism suspect cannot be arrested under this section on more than 1 occasion in connection with the same terrorist act. (8) However, subsection (7) does not prevent a further arrest under this section in reliance on information obtained after the end of the earlier period of investigative detention. In that case, the maximum period of investigative detention cannot exceed 24 hours unless authorised by a detention warrant. 25F No investigative detention of person under 14 years of age (1) A person under 14 years of age cannot be arrested or kept in investigative detention under this Part. (2) If— (a) a person is under investigative detention, and (b) the police officer in charge of the investigation is satisfied on reasonable grounds that the person is under 14 years of age, the police officer must discontinue the arrest as soon as practicable. (3) The person is to be released into the care of a parent or other appropriate person. 25G Questioning of terrorism suspects during detention (1) In this section, questioning of a person includes carrying out an investigation in which the person participates. (2) A terrorism suspect may, during investigative detention under this Part, be questioned— (a) in connection with the terrorist act for which the person was arrested, or (b) in connection with any other terrorist act that occurred within the last 28 days or that there are reasonable grounds to suspect could occur at some time in the next 14 days. (3) If there are reasonable grounds for suspecting that the terrorism suspect has committed a particular offence, the terrorism suspect may also be questioned while detained under this Part for the purpose of investigating whether the person committed the offence. The terrorism suspect may be so questioned only if there are reasonable grounds for suspectin