COUNTER-TERRORISM WHITE PAPER
Securing Australia | Protecting Our Community
Chapter 6: Response
Providing an immediate and targeted response to specific terrorist threats and terrorist attacks should they occur
Australia has a comprehensive national capability to respond to the threat of terrorism through robust legal frameworks and effective intelligence, security and law enforcement agencies. We need to respond early to identify threats and prevent attacks. Our federal, state and territory agencies work in cooperation to conduct counter-terrorism investigations and pursue prosecutions through our courts. Australia’s emergency and crisis response arrangements draw together both Commonwealth and state and territory capabilities.
The Government has taken steps to further strengthen the legal framework and to improve the manner in which our law enforcement and security agencies conduct counter-terrorism investigations. At the same time, the Government has sought to ensure that our laws remain effective and appropriate. And the Government will keep our laws under review.
6.1 Robust legal frameworks
Terrorism is a heinous crime that is intended to undermine the way governments and communities function and to subvert normal political processes. The consequences of a terrorist attack are severe. Accordingly, there are specific offences and legal powers which reflect the seriousness of terrorism-related criminal activity.
Australia’s legal framework has an important dual role in helping to prevent terrorism and bringing to justice those who perpetrate terrorism. Our laws must reflect the serious criminal nature of terrorism and act as a deterrent to persons contemplating terrorist activity by providing appropriate sanctions and enforcement mechanisms. Given the potential severity of a terrorist attack, the laws also contain certain limited powers to assist relevant agencies to prevent terrorist acts. Because of the potentially devastating consequences, the primary focus of counter-terrorism laws is on preventing a terrorist act taking place.
6.1.1 Australia’s counter-terrorism laws
The states and territories have referred legislative powers to the Commonwealth to allow the creation of a single set of terrorism offences under the Criminal Code Act 1995 (the Criminal Code). These offences are aimed at individuals who engage in, train for, prepare, plan, finance or provide support for terrorist acts.
Our legal framework also allows for terrorist organisations to be declared illegal. This means that individuals who are members or supporters of terrorist organisations proscribed by the Criminal Code or listed in Part 2 of the Criminal Code Regulations 2002, can be charged with a criminal offence. The listing of an organisation ceases to have effect two years after its commencement, or if the Attorney-General ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, whichever occurs first. As of February 2010, 18 terrorist organisations are listed under the Criminal Code. Details of terrorist organisations currently listed under the Criminal Code can be found at the Government’s national security website (www.nationalsecurity.gov.au).
The Government will maintain a robust legal regime to seek to ensure that our laws can assist in the prevention of terrorist acts and bring those responsible to justice. This entails a range of specific offences and powers for law enforcement and security agencies. But it is equally important that in our efforts to combat terrorism we also protect the rights of all Australians. The Government is pursuing a range of amendments to our legal framework to improve the effectiveness of our agencies, while concurrently implementing increased oversight mechanisms for the operation of our laws.
6.1.2 Regular review of our laws
In December 2008, the Government announced its response to four key reviews of Australia’s counter-terrorism and national security legislation, including the Australian Law Reform Commission’s review of sedition laws in Australia (2006); the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) Review of Security and Counter-Terrorism Legislation (2006); the PJCIS inquiry into the proscription of ‘terrorist organisations’ under the Criminal Code (2007); and the Clarke Inquiry into the case of Dr Mohamed Haneef (2008). Implementation of the recommendations will take place in a considered, transparent and consultative manner. An exposure draft of legislation was released in 2009 and provided an opportunity for public input prior to the proposed introduction of specific legislation in Parliament.
These changes reflect the Government’s commitment to ensure that amendments to counter-terrorism legislation are well considered. These measures give confidence that Australia’s law enforcement and security agencies have the tools they need to combat terrorism while ensuring the laws and powers are subject to appropriate safeguards. An additional review of Australia’s counter-terrorism legislation will be undertaken in late 2010 as agreed by COAG on 10 February 2006.
The Government will keep these powers under review against any further need to expand them or tailor them to deal with any changes in the nature of the threat in the future.
6.1.3 Legitimate legal frameworks
The national security legislative framework has been, and continues to be, designed to underpin a nationally consistent approach to criminalising, preventing and responding to terrorism and other threats to Australia’s national security. A key aim of the framework is to provide Australian law enforcement and intelligence agencies with appropriate tools to deter, investigate, apprehend and prosecute perpetrators of terrorism and other threats to Australia’s national security.
One of the central principles of Australia’s counter-terrorism strategy is to act within legitimate legal frameworks and to respect the rule of law. Australia’s national security and counter-terrorism framework is robust enough to adapt to future events and developments, and incorporates review mechanisms to ensure that these laws remain necessary and effective.
The Government does not condone any unlawful response to terrorism, including the use of torture. Australia is committed to meeting its human rights obligations, such as those contained in the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Australia’s national security and counter-terrorism laws are consistent with our obligations under international law. We are committed to the United Nations counter-terrorism conventions and protocols.
Greater accountability and transparency
The Government is committed to both fighting terrorism and protecting the rights of all Australians. In recognition of the special nature of our counter-terrorism and national security legislation, the Government is implementing a number of measures to provide greater accountability and transparency, including:
- establishing an Independent National Security Legislation Monitor to regularly review the operation, effectiveness and implications of our national security legislation and to consider if the laws remain necessary and contain appropriate safeguards to protect the rights of individuals;
- progressing amendments to the Inspector-General of Intelligence and Security Act 1986 to allow inquiries by the Inspector-General of Intelligence and Security to extend to Commonwealth agencies that are not members of the Australian Intelligence Community; and
- establishing the Parliamentary Joint Committee on Law Enforcement to oversee the Australian Federal Police and the Australian Crime Commission.
6.2 Effective legal powers for law enforcement and security agencies
Australia’s counter-terrorism legislation provides particular powers for Australia’s law enforcement and security agencies to deal with the terrorist threat. These powers provide our law enforcement and security agencies with the tools that seek to prevent terrorist acts and protect the community from terrorism. The need for these powers is balanced by legislative safeguards to ensure that the powers are used appropriately and in defined circumstances.
States and territories also maintain their own counter-terrorism legislation, which provides important powers to police to help prevent and respond to terrorist acts. Following a Council of Australian Governments (COAG) agreement in 2005, all states and territories have enacted preventative detention and stop, search and seize powers.
The Criminal Code contains provisions for control orders and preventative detention. Control orders are protective measures that can restrict a person’s movements and activities. The AFP can apply to a court for a control order where there are reasonable grounds that this would assist in preventing a terrorist act or where a person has trained with a listed terrorist organisation. Under the preventative detention regime, the AFP can take a person into custody and detain them for a period of 48 hours to prevent a terrorist attack occurring, or to preserve evidence of a recent attack. States and territories have introduced legislation allowing for preventative detention for up to 14 days.
When investigating a terrorism offence, the AFP can detain an arrested person under special questioning powers provided in the Crimes Act 1914. These powers allow the AFP to question a person for a maximum of 24 hours, but provision is made for additional periods of detention where the investigator needs more time to analyse material sourced from overseas, or where other authorities outside Australia need more time to collect information that is relevant, or the information needs to be collected from another time zone or for translation reasons.
The Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 provide defined agencies with investigative tools, including the use of surveillance devices and communications interceptions, to detect, prevent and investigate acts of terrorism. The use of electronic investigation methods in counter-terrorism is constantly being challenged by developments in the way people communicate, including the borderless nature of the internet, encryption and the development and convergence of technology. These laws enable greater cooperation between law enforcement, national security agencies and relevant industries to ensure electronic information can be obtained to assist counter-terrorism efforts.
Telecommunications interception
The lawful access and interception of telecommunications is a tool of critical importance to Australia’s national security. Telecommunications interception is one of the most effective, efficient and low risk counter-terrorism investigative techniques, and can assist in the apprehension and prosecution of those who perpetrate serious criminal offences, conspire to engage in terrorist acts and otherwise threaten the security of Australia.
The rate of development and sophistication of communications technology, coupled with growth in the number of licensed carriers of such information, will continue to pose challenges to our interception agencies. Our agencies work collaboratively – and with telecommunications carriers – to find solutions that ensure both our national security interests and the rights of individuals to privacy are protected. The Government is exploring options to further increase technical collaboration. In February 2010, the Parliament passed amendments to the Telecommunications (Interception and Access) Act 1979. These amendments provide certainty for both public and private Australian computer networks and will help Australians protect their computer networks from criminal and malicious activities.
6.3 A strong and coordinated approach to law enforcement
The national approach to counter-terrorism is based upon strong cooperative, coordinated and consultative relationships between relevant agencies to investigate terrorism-related matters with a focus on preventive operations. Australia’s law enforcement and security agencies are committed to best practice. In recent years, our agencies have successfully disrupted planned terrorist attacks in Australia. We have also learnt lessons from the application of our counter-terrorism laws and operational investigative procedures. And we remain alert to the possibility that other criminal activities, including those perpetrated by organised crime groups, could coalesce with terrorism.
The Government is determined to build on past experience and refine our processes to maintain effective and robust investigative capabilities founded on cooperative relationships between police, security and intelligence services nationally. The Government seeks to ensure that our counter-terrorism laws and the investigative capabilities of Australia’s law enforcement agencies operate in ways that enable the Australian public to maintain confidence in our counter-terrorism arrangements.
Identity security
Identity crime is an issue that can affect all Australians. The theft of a
person’s identity can be used for crimes ranging from fraud to issues of greater
significance for national security. COAG agreed to develop and implement a
National Identity Security Strategy to better protect Australians by enhancing
identification and verification processes and developing other measures to
combat identity crime. The Government has introduced legislation into Parliament
including three new identity crime offences, and new identity management practices,
such as biometrics, are also being developed to meet this challenge. Such measures
increase the protection of individuals’ identity and will also
facilitate secure and efficient electronic interactions between government,
business and individuals. More information is available at www.ag.gov.au/identitysecurity
6.3.1 A comprehensive national response
Terrorism investigations are often highly complex and can involve a range of different government agencies nationally. Such investigations require close collaboration between federal, state and territory agencies through the sharing of intelligence and information, and can also involve close liaison with international counterparts.
The AFP, state and territory police services and other government agencies work cooperatively to conduct coordinated counter-terrorism investigations. These relationships are institutionalised through a Joint Counter-Terrorism Team (JCTT) mechanism and comprise police officers from the AFP, the relevant state or territory police service and ASIO. JCTTs conduct terrorism-related investigations focusing on preventive operations and are governed by nationally consistent frameworks for the strategic management of counter-terrorism operations.
Close collaboration between our law enforcement and intelligence agencies is also essential to ensure that counter-terrorism investigations and operations are informed by integrated information from all available sources and result in successful prosecutions in Australian courts. Although intelligence agencies do not carry out criminal investigations, their information is increasingly used in support of law enforcement investigations and terrorism prosecutions, and appropriate agencies have been enhancing their capacity to provide this support.
Complex investigations
Terrorism is a unique crime that can have grave consequences that often outweigh those of other crime types. Counter-terrorism investigations are by their very nature complex. They generally involve investigations into clandestine networks of individuals who are actively seeking to obfuscate their activities and who may pose an immediate danger to the general public.
Terrorism investigations are often cross-jurisdictional in nature and can also be connected to events or groups overseas. This requires close consultation between law enforcement and security agencies, and is particularly complicated when it involves reliance upon international counterparts. Such investigations are of the highest priority and involve large numbers of police and staff from other agencies.
Investigations generally involve the review of very large amounts of data to determine whether charges can be laid or to find exculpatory material – this process is further complicated where material is sourced from overseas. Such data is often fragmentary, encrypted and hidden. These factors combine to make terrorism investigations unique in scale and complexity.
6.3.2 Learning from experience
In recognition of the complex nature of counter-terrorism investigations and the importance of successful prosecution of terrorism offences, the AFP commissioned the Street Review: A review of interoperability between the AFP and its national security partners (the Street Review) in 2007. The Street Review examined the AFP’s national security operations and the effectiveness of interoperability with ASIO, the Commonwealth Director of Public Prosecutions (CDPP) and state and territory police services. The Street Review found that there had been substantial improvements in inter-agency cooperation since 2003, and made recommendations to further improve the way national security investigations are managed.
In 2008, the Government commissioned the Clarke Inquiry into the case of Dr Mohamed Haneef, to examine inter alia the arrest, detention, charging, prosecution and release of Dr Haneef, the cancellation of his visa and the issuing of a criminal justice stay certificate. The Clarke Inquiry made ten recommendations, which are currently being implemented, to improve the operation of relevant legislation, and to promote cooperation and information sharing between government departments and agencies in counter-terrorism matters.
Relevant agencies are implementing the recommendations of both reviews to improve the conduct of future counter-terrorism investigations. The AFP, ASIO and the CDPP in particular have instigated a variety of mechanisms, both at the strategic and operational levels, to resolve issues that may emerge during the course of an investigation. For example, ASIO and the AFP have established a Joint Operations Protocol to provide for regular and accountable exchanges of information and ongoing consultation regarding operations. Furthermore, ASIO, the AFP and the CDPP have developed Counter-Terrorism Prosecution Guidelines to improve consultation and communication in the investigation and prosecution of terrorist offences.
6.4 State and territory counter-terrorism capabilities
Emergency services attend a suspicious package
incident in Melbourne, February 2010.
In addition to the range of Commonwealth counter-terrorism capabilities discussed elsewhere in this paper, states and territories maintain an array of counter-terrorism capabilities to help prevent, prepare for, respond to and recover from a terrorist incident. State and territory police and emergency services have primary responsibility to provide first response to a terrorism incident, with national coordination and assistance provided by Commonwealth agencies as required.
There are around 50,000 state and territory police across Australia, and thousands of fire fighters and emergency services personnel. Many of these personnel are trained in urban search and rescue and dealing with chemical and biological hazards. And there are many more ambulance officers and paramedics, doctors, nurses and health professionals in hospitals who are skilled in dealing with mass casualties, trauma and burns.
States and territories have long practised an all-hazards approach to emergency management. The response to a terrorism incident would involve similar agencies to those involved in responding to other emergencies. Many of the skills and techniques most likely to be used in response to a terrorism incident are those routinely employed by state and territory police and emergency service personnel in dealing with other emergency situations.
Many other state and territory government departments and agencies are involved in counter-terrorism-related policy, arrangements, legislation and regulation. Areas of focus include surface transport security, and working with Commonwealth agencies and industry to prevent (and if necessary contain) terrorism-related threats involving biological or radiological materials and chemicals of security concern.
Improved crisis coordination
To improve the delivery of our counter-terrorism and wider national security responsibilities, the Government has integrated our crisis coordination arrangements and mechanisms applicable to counter-terrorism and natural disasters. We have integrated the coordination functions delivered by the Attorney-General’s Department Coordination Centre and the Emergency Management Australia Incident Management Facility. This consolidated capability provides the Government with all-hazards information coordination, monitoring and crisis management functions.
The future for national security crisis coordination, of which counter-terrorism is one component, will be characterised by a comprehensively integrated approach across Government agencies and connected to state and territory arrangements. This will be demonstrated through the establishment in 2010 of a Parliament House Briefing Room and a National Crisis Coordination Centre to provide holistic, real-time support to senior decision makers during a crisis.
6.5 The role of Defence
Defence contributes directly to Australia’s domestic and international counter-terrorism efforts by supporting whole-of-government efforts, in accordance with the Defence Act 1903 and the Australian Constitution. Defence provides support to civil authorities in relation to domestic security and emergency response efforts, such as border protection and counter-terrorism. And the Government retains the option of calling upon the full breadth of Defence capabilities if necessary.
In some cases, Defence capabilities will need to be designed for and dedicated to domestic security and emergency response tasks where those capabilities are beyond the ability of other Australian government agencies to develop and maintain efficiently. The most important of the specialised capabilities that Defence maintains are highly trained and specially equipped forces necessary for a range of complex counter-terrorism and hostage recovery operations, and CBRN response. These force elements maintain high readiness to ensure rapid deployment when required.