Terrorism Legislation Amendment
(Warrants) Bill 2005

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are as follows:

(a) to amend the Terrorism (Police Powers) Act 2002 to enable the covert entry
and search of premises, under the authority of a special covert search warrant,
by specially authorised police officers or staff of the New South Wales Crime
Commission for the purposes of responding to or preventing terrorist acts
(including getting evidence of the proposed State offence of membership of a
terrorist organisation),

(b) to amend the Listening Devices Act 1984 to extend from 21 days to 90 days the
maximum period during which a warrant issued under that Act for the use of
a listening device remains in force if the warrant is issued in connection with
certain Commonwealth terrorism offences, and the proposed State offence,

(c) to amend the Crimes Act 1900 to create a State offence that is equivalent to the
Commonwealth offence of membership of a terrorist organisation.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of most of the proposed Act on a day or
days to be appointed by proclamation. It provides for the commencement of clause 6
on the second anniversary of the commencement of clause 5. (See explanation of
effect of clauses 5 and 6 below.)
Clause 3 is a formal provision that gives effect to the amendments to the Terrorism
(Police Powers) Act 2002 set out in Schedules 1 and 2.

Clause 4 is a formal provision that gives effect to the amendments to the Listening
Devices Act 1984 set out in Schedule 3.

Clause 5 is a formal provision that gives effect to the amendments to the Crimes Act
1900 set out in Schedule 4. These amendments create a State offence that is
equivalent to the Commonwealth offence of membership of a terrorist organisation.

These amendments are to be repealed on the second anniversary of their
commencement.

Clause 6 provides for the repeal of those amendments and of the amendments to
proposed section 27A (2) of the Terrorism (Police Powers) Act 2002, which defines
terrorist act to include the proposed State offence.

Schedule 1 Principal amendments to Terrorism
(Police Powers) Act 2002
Schedule 1 [1] inserts a new Part 3 (sections 27A–27ZC) into the Principal Act,
which establishes the scheme for covert search warrants.

Proposed section 27A contains definitions for the purposes of the proposed Part. In
particular, terrorist act is defined to include the proposed State offence of
membership of a terrorist organisation (see Schedule 4) and references to the
commission of a terrorist act and to preventing or responding to a terrorist act are, in
that case, to be construed as referring to the actual commission of the offence and as
obtaining or providing evidence of the commission of that offence.

Under proposed section 27D, certain police officers (eligible police officers), and
certain staff members of the New South Wales Crime Commission (eligible staff
members of the Crime Commission), may be authorised to apply for a covert search
warrant by the Commissioner of Police and the Commissioner for the New South
Wales Crime Commission respectively.

Proposed sections 27E and 27F restrict the persons to whom the Commissioner of
Police and the Commissioner for the New South Wales Crime Commission,
respectively, may delegate their function of authorising persons to apply for covert
search warrants.

Proposed section 27G enables eligible police officers or eligible staff members of the
New South Wales Crime Commission to apply to eligible Judges of the Supreme
Court for a covert search warrant. In order to deal with issues raised by Kable v
Director of Public Prosecutions (NSW) (1996) 189 CLR 51, applications may be
made only to Judges who consent, under proposed section 27B, to being involved in
issuing covert search warrants.

An authorisation to apply for a covert search warrant may be given under proposed
section 27C, or an application for such a warrant may be made under proposed
section 27G, if the person giving the authorisation or making the application (as the
case may be) suspects or believes on reasonable grounds:

(a) that a terrorist act has been, is being, or is likely to be, committed, and

(b) that the entry to and search of premises will substantially assist in responding
to or preventing the terrorist act, and

(c) that it is necessary for the entry and search of those premises to be conducted
without the knowledge of any occupier of the premises.

Proposed sections 27H and 27I provide for the making of applications for covert
search warrants in person and by telephone.

Proposed section 27J sets out the matters that must be included in an application for
a covert search warrant.

Proposed section 27K provides that an eligible Judge may issue a covert search
warrant if satisfied that there are reasonable grounds for doing so. When determining
whether there are reasonable grounds to issue a covert search warrant, the Judge is to
consider (amongst other things):

(a) the reliability of the information on which the application is based, and

(b) whether there is a connection between the terrorist act concerned and the kinds
of things that are proposed to be searched for, seized, placed in substitution for
a seized thing, copied, photographed, recorded, operated, printed or tested, and

(c) the nature and gravity of the terrorist act, and

(d) the extent to which the exercise of powers under the warrant would assist in
the prevention of, or response to, the terrorist act, and

(e) alternative means of obtaining the information sought, and

(f) the extent to which the privacy of a person who is not believed to be knowingly
concerned in the commission of the terrorist act is likely to be affected if the
warrant is issued.

Proposed section 27L requires an eligible Judge who determines an application for a
covert search warrant to record all relevant particulars of the grounds that the Judge
has relied on to justify the issue of the warrant or the refusal to issue the warrant (as
the case may be). It also provides that any matter that might disclose the name or
residential address of a person must not be recorded if the Judge is satisfied that to
do so might jeopardise the safety of any person.

Proposed section 27M provides that if an application for a covert search warrant has
been refused, a further application may not be made for the same warrant unless the
further application provides additional information that justifies the making of the
further application.

Proposed section 27N sets out the matters that must be specified in a covert search
warrant.

Proposed section 27O sets out the powers conferred by a covert search warrant,
which are as follows:

(a) to enter, without any occupier’s knowledge, the premises the subject of the
warrant,

(b) to impersonate another person for the purposes of executing the warrant,

(c) to use such force as is reasonably necessary for the purpose of entering the
subject premises,

(d) if the warrant authorises entry to premises adjoining the premises the subject
of the warrant—to enter the adjoining premises, using such force as is
reasonably necessary, for the purpose of entering the subject premises,

(e) to search the subject premises for any kind of thing described in the warrant,

(f) to break open any receptacle in or on the subject premises for the purposes of
that search if it is reasonably necessary to do so,

(g) if the warrant authorises the seizure of a kind of thing—to seize and detain a
thing of that kind and any relevant thing that the person finds in the course of
executing the warrant,

(h) to seize and detain any other thing that the person finds in the course of
executing the warrant and that is connected with a serious indictable offence,
        (i) if the warrant authorises the placing of a kind of thing in substitution for a
seized thing—to place a thing of that kind on the subject premises in
substitution for a thing seized under paragraph (g),

(j) if the warrant authorises the copying, photographing or recording of a kind of
thing—to copy, photograph or otherwise record a thing of that kind and any
relevant thing that the person finds in the course of executing the warrant,

(k) if the warrant authorises the operation of a kind of electronic equipment—to
operate any electronic equipment of that kind, and any relevant electronic
equipment that the person finds in the course of executing the warrant, and
print, copy or otherwise record information from that equipment,

(l) if the warrant authorises the testing of a kind of thing—to test a thing of that
kind and any relevant thing that the person finds in the course of executing the
warrant.

Proposed section 27P allows a person to execute a search warrant with the aid of
assistants.

Proposed section 27Q provides for the expiration of a covert search warrant.

Proposed section 27R enables a covert search warrant to authorise the return of a
seized thing or the retrieval of a thing that has been placed in substitution for
something that has been seized. Generally, the thing concerned must be returned or
retrieved within 7 days of the execution of the warrant.

Proposed section 27S requires a person to whom a covert search warrant has been
issued to report back to the eligible Judge who issued the warrant about the execution
of the warrant.

Proposed section 27T provides that a covert search warrant is not invalidated by any
defect other than a defect that affects the substance of the warrant in a material
particular.

Proposed section 27U requires an occupier’s notice to be provided for the approval
of an eligible Judge, within 6 months of the execution of a covert search warrant.

Following approval by the Judge, the notice is to be given to:

(a) any person suspected of being knowingly concerned in the commission of the
terrorist act concerned, and

(b) if no such person was an occupier when the warrant was executed, an occupier
of the premises concerned.

The proposed section enables an eligible Judge to postpone, for a period of up to 6
months at a time, the giving of the occupier’s notice if satisfied that there are
reasonable grounds for doing so. The giving of an occupier’s notice must not be
postponed for a total period of more than 18 months unless the eligible Judge is
satisfied that there are exceptional circumstances justifying the postponement.

Proposed section 27V provides for similar notices to be prepared and given to
occupiers of premises adjoining premises that are the subject of a covert search
warrant if the execution of the warrant involved entry to those adjoining premises.

Proposed section 27W provides for the destruction of any records obtained in the
execution of a covert search warrant if the Commissioner of Police (in the case of
records obtained by NSW Police) or the Crime Commissioner (in the case of records
obtained by the New South Wales Crime Commission) is satisfied that their retention
is no longer required.

Proposed section 27X provides that, if an eligible Judge who has issued a covert
search warrant has died, has ceased to be an eligible Judge or is absent, the report
required to be provided to the Judge under proposed section 27S on the execution of
the warrant, and the power to postpone the giving of an occupier’s notice under
section 27U, may be provided to, or exercised by, any other eligible Judge.

Proposed section 27Y provides that matters required to be dealt with by an eligible
Judge under the proposed Part are to be dealt with in the absence of the public.

Proposed section 27Z makes it an offence for a person to give false or misleading
information to an eligible Judge in an application for a covert search warrant. The
proposed offence is punishable by a maximum penalty of $11,000 or 2 years
imprisonment, or both.

Proposed section 27ZA makes it an offence, with certain exceptions, for a person to
intentionally or recklessly publish an application for a covert search warrant, a report
prepared under proposed section 27S, an occupier’s notice or any information
derived from such an application, report or notice:

(a) before the related occupier’s notice is served, or

(b) if the identity or whereabouts of any person believed to be knowingly
concerned in the commission of the terrorist act concerned, or the identity or
whereabouts of the relevant occupier, is unknown—before directions are
sought from an eligible Judge in relation to the giving of the occupier’s notice
in these circumstances.

The proposed offence is punishable by a maximum penalty of $5,500 or 12 months
imprisonment, or both.

Proposed section 27ZB requires the Commissioner of Police and the Commissioner
for the New South Wales Crime Commission to each report to the Attorney General
and the Minister for Police on an annual basis in relation to the exercise of powers
relating to covert search warrants.

Proposed section 27ZC requires the Ombudsman to monitor the exercise of powers
relating to covert search warrants by members of NSW Police, the Crime
Commissioner and staff of the New South Wales Crime Commission for 2 years
from the commencement of the new Part 3.

Schedule 1 [2] inserts proposed section 29A into the Principal Act, which enables
the Attorney General to enter into arrangements with a Minister of the
Commonwealth in relation to the transmission to or from the Commonwealth of
things seized under the Principal Act or Commonwealth law, where the things seized
are relevant to the investigation of an offence.

Schedule 1 [3] amends section 36 of the Principal Act to enable the Attorney General
to require the Commissioner of Police or the Commissioner for the New South Wales
Crime Commission to provide information, for the purposes of the annual review of
that Act, about the exercise of functions by members of NSW Police, members of the
Crime Commission or members of staff of the Crime Commission.

Schedule 2 Consequential amendments to
Terrorism (Police Powers) Act 2002
Schedule 2 contains amendments that are consequential on the amendments made by
Schedule 1 [1], including renumbering.

Schedule 2 [17] and [18] enable regulations of a savings and transitional nature to
be made as a consequence of the proposed Act.

Schedule 2 [18] also makes it clear that the scheme for covert search warrants
contained in proposed Part 3 of the Principal Act applies in relation to terrorist acts
committed before, as well as those committed after, the commencement of that Part.

Schedule 3 Amendment of Listening Devices Act
1984
Schedule 3 [1] amends section 16 of the Listening Devices Act 1984 (the Act) to
extend from 21 days to 90 days the maximum period during which a warrant
authorising the use of a listening device is in force if the offence to which the warrant
relates is a terrorism offence.

Schedule 3 [2] inserts into section 16 of the Act a definition of terrorism offence for
the purposes of the proposed amendment made by Schedule 3 [1]. Terrorism
offence is defined to mean the proposed State offence of membership of a terrorist
organisation (see Schedule 4) or an offence under any of the following provisions of
the Commonwealth Criminal Code:

(a) section 101.1 (Terrorist acts),

(b) section 101.2 (Providing or receiving training connected with terrorist acts),

(c) section 101.4 (Possessing things connected with terrorist acts),

(d) section 101.5 (Collecting or making documents likely to facilitate terrorist
acts),

(e) section 101.6 (Other acts done in preparation for, or planning, terrorist acts),

(f) section 102.2 (Directing the activities of a terrorist organisation),

(g) section 102.3 (Membership of a terrorist organisation),

(h) section 102.4 (Recruiting for a terrorist organisation),
        (i) section 102.5 (Training a terrorist organisation or receiving training from a
terrorist organisation),

(j) section 102.6 (Getting funds to or from a terrorist organisation),

(k) section 102.7 (Providing support to a terrorist organisation),

(l) section 103.1 (Financing terrorism).

These offences carry penalties ranging from 10 years to life imprisonment.

Schedule 4 Amendment of Crimes Act 1900
Schedule 4 inserts proposed Part 6B into the Crimes Act 1900 to create a State
offence that is equivalent to the Commonwealth offence of membership of a terrorist
organisation. This Part is to be repealed on the second anniversary of its
commencement.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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