National Security Laws Australia

Author: Nyman Gibson Miralis

Subject: National Security

Keywords: Australian National Security Law, Department of Home Affairs, Counter-terrorism, Cyber security, Surveillance, Telecommunications interception, Espionage, Foreign influence and interference, Legislation

 

Australian National Security law has recently undergone some rapid change. Furthermore, with the establishment of the Department of Home Affairs, increased law enforcement activity in this area is expected.

National Security law has always encompassed a range of issues relating to terrorism. However, there are various other areas that come within the purview of national security such as espionage, foreign influence and interference, cyber security, surveillance and telecommunications interception, and data retention.

This article provides a broad overview of some of the main national security laws in Australia

 

Counter-terrorism

Counter-terrorism legislation is a critical element of Australia’s national security framework.

The law says that a terrorist act is defined as an action that causes:

  • death, serious harm or danger to a person
  • serious damage to property
  • a serious risk to public safety; or
  • a serious interference with, disruption to, or destruction of critical infrastructure (i.e. a telecommunications or electricity network.)

A person must also intend to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause when carrying out any of the above conduct.

However, advocacy, protests, dissents or industrial actions do not amount to a terrorist act provided a person had no intention of causing serious harm to another person or to public safety.

Other terrorist offences generally relate to a person’s relationship with respect to Terrorist organisations and terrorist financing.

 

What legislation specifically applies to terrorism?

Criminal Code Act 1995 (Criminal Code)

The Criminal Code contains a range of offences for terrorism and terrorism related acts:

  • Division 72—Subdivision A—International terrorist activities using explosive or lethal devices
    • This Subdivision creates offences relating to international terrorist activities using explosive or lethal devices and gives effect to the International Convention for the Suppression of Terrorist Bombings.
  • Part 5.1—Treason, urging violence and advocating terrorism offences
    • This Part contains offences relating to treason, urging of another person or group to use violence in certain circumstances and advocating terrorism.
  • Part 5.2—Offences relating to espionage and similar activities
    • This Part contains espionage offences and other related offences.
  • Part 5.3—Terrorism
    • This Part contains a range of offences relating to terrorist acts, terrorist organisations and financing terrorism. The Part also contains provisions for control orders and preventative detention orders.
      • Division 100—definitions
      • Division 101—terrorist act offences
      • Division 102—terrorist organisation offences
      • Division 103—financing terrorism offences
      • Division 104—control orders
      • Division 105—preventative detention orders.
    • Part 5.4—Harming Australians
      • This Part contains provisions making it an offence to murder, commit manslaughter or intentionally or recklessly cause serious harm to an Australian outside of Australia.
    • Part 5.5—Foreign incursions and recruitment
      • This Part contains offences and provisions based on the Crimes (Foreign Incursions and Recruitment) Act 1978 which was repealed by the Counter-Terrorism Legislation Amendment (Foreign Fighters) 2014 Act. The Part also contains provisions for the offence of entering, or remaining in, declared areas.
    • Part 10.5—Postal offences
      • This Part contains offences relating to the sending of dangerous, threatening or hoax material through the post or similar services.

 

What legislation covers the powers to investigate terrorism offences under the Crimes Act 1914?


The legislation which deals with crime, the powers of the authorities to investigate it and many other related issues including sabotage, treachery, disclosure of information and other  national security issues includes:

  • Part IAAA—Delayed notification search warrants
    • This Part provides for the authorising, issuing and reporting obligations with respect to delayed notification search warrants.
  • Part IAA—includes search, information gathering, arrest and related powers, including stop and search powers in relation to terrorist acts and terrorism offences
  • Part IA—Section 15AA—Bail not to be granted in certain cases
    • Places stricter bail requirements for those charged with terrorism offences.
  • Part IB—Section 19AG—Non-parole periods for sentences for certain offences
    • Places certain non-parole periods for terrorism offences.
  • Part IC—Provides for the detention of people arrested for Commonwealth offences and imposes obligations on investigating officials in relation to those people arrested and certain other people who are being investigated for Commonwealth offences.
  • Part II—Offences against the Government
    • This Part contains offences such as treachery and sabotage.
  • Part IV—Piracy
    • This Part contains offences for acts of piracy.

 

ASIO’s investigative role in relation to terrorism and national security law

ASIO has significant questioning and detention powers subject to a warrant being issued. For example, a person may be questioned for a maximum of 24 hours, and 48 hours if an interpreter is required.

Other counter-terrorist measures include control orders issued by a Court and preventative detention orders issued by a senior AFP member. The purpose of these measures is to prevent terrorist acts from occurring. However, such orders can be quite coercive, particularly on a person’s liberty.

For instance, a person under a preventative control order (PDO) can be detained for a maximum of 48 hours under Commonwealth law, 14 days under state and territory law or 14 days under a combination of these jurisdictions’ laws only:

  • if a PDO would help prevent the occurrence of a terrorist act; or
  • immediately after a terrorist act if it is likely that crucial evidence will be lost.

The legislation which sets out the functions of the Australia Security Intelligence Organisation (ASIO) – Australia’s security service,  is the  Australian Security Intelligence Organisation Act 1979. This legislation, amongst other things, empowers ASIO to obtain warrants for the purpose of undertaking surveillance and to detain and question a person who may have information important to the gathering of intelligence in relation to a terrorist activity.

 

Cyber security, Surveillance and Telecommunications interception

Cyber security is also an important national security concern for Australia.

The upsurge in computer intrusions and the spread of malware code have highlighted widespread apprehension for Australia’s ability to manage and mitigate serious disruptions to its IT and communication systems without affecting economic growth, market stability and the welfare of the Australian public.

Consequently, the law has developed to assist law enforcement agencies to combat increasingly sophisticated cybercrimes. But this has meant increased surveillance and intrusion on a person’s privacy especially if they are subject to an investigation.

A person’s privacy is protected under Australian law by prohibiting the interception of communications or access to stored communications. The law also prohibits telecommunications service providers (TSP) from disclosing information about their customers’ use of telecommunications services.

However, eligible law enforcement and security agencies in Australia are exempted from such prohibitions. These agencies can:

  • access stored communications and intercept communications by obtaining a warrant; and;
  • authorise the disclosure of data.

Law enforcement efforts are also assisted by a TSP’s legal obligation to retain their customer’s particular telecommunications data for a minimum of two years.

 

What specific legislation covers telecommunication interception and surveillance?

Surveillance Devices Act 2004
The legislation that establishes procedures for officers to obtain warrants, emergency authorisations and tracking device authorisations for the installation and use of surveillance devices in relation to criminal investigations and other initiatives.

Telecommunications (Interception and Access) Act 1979
The legislation permits ASIO to intercept telecommunications under warrant for intelligence gathering purposes including in relation to threats of terrorism. It also provides authority, where a warrant is obtained for Australian law enforcement bodies to intercept telecommunications in respect of investigations into serious offences, including a range of terrorism offences.

 

Espionage & Foreign influence and interference

In early December 2017, the Australian Government introduced a new legislative regime that aims to enhance existing espionage, secrecy, and related offences; introduce new offences that address foreign interference and economic espionage activities committed by foreign actors; and create a Foreign Influence Transparency Scheme (FIT).

An example of the new economic espionage offences includes the theft of trade secrets on behalf of, or in collaboration with a Foreign Government Principal. Under this proposed law, Foreign Government Principal includes a range of entities such as a government of a foreign country.

Moreover, the FIT Scheme imposes registration obligations for entities and persons who have certain arrangements or undertake certain activities on behalf of foreign principals (i.e. foreign governments). This regime aims to underscore the nature and extent of foreign influence over Governmental and political processes in Australia.

 

Other key pieces of legislation in Australia’s national security framework

Aviation Transport Security Act 2004
The legislation establishes a number of mechanisms to safeguard against unlawful interference against aviation.

Charter of the United Nations Act 1945
The legislation contains terrorism related offences, including offences dealing with freezable assets (Section 20) and giving assets to a proscribed entity or person (Section 21).

Crimes (Aviation) Act 1991
The legislation contains offences relating to aircraft, aerodromes, airports and air navigation facilities.

Crimes (Hostages) Act 1989
The legislation contains offences relating to hostage-taking, attempted hostage-taking and participating as an accomplice in hostage-taking or attempted hostage-taking.

Crimes (Ships and Fixed Platforms) Act 1992
The legislation contains offences relating to the safety of a ship or a fixed platform.

Defence Act 1903—Part IIIAAA
The provisions within Part IIIAAA allow the Australian Defence Force (ADF) to be called out to respond to an incident of domestic violence within Australia. The legislation contains a range of safeguards to ensure that the ADF would only be called out in extreme circumstances.

Maritime Transport and Offshore Facilities Security Act 2003
The legislation establishes a scheme to safeguard against unlawful interference with maritime transport and establishes security levels.

National Security Information (Criminal and Civil Proceedings) Act 2004
The legislation gives courts a structure to follow where national security information is disclosed, or is to be disclosed, in federal criminal proceedings and civil proceedings.

Australia’s national security landscape is changing to reflect the perceived increase in new threats across a whole range of areas. As these laws have the capacity to unduly interfere with personal liberties they are subjected to scrutiny by an independent  monitor.

 

Nyman Gibson Miralis advises and represents individuals and corporations dealing with international and national security investigations and probes, interviews, administrative decisions and related court proceedings. If you require assistance, contact one of our expert criminal defence lawyers