Anti-terrorism legislation

The anti-terrorism regime legislation adds wide powers to detain suspects in custody. Protests are specifically not terrorist acts, but it might still impede legitimate protest.

In 2002 the federal government introduced changes to the Criminal Code Act 1995 (Cth) (“Criminal Code Act”) to counter terrorist actions and the perceived growth in terrorist organisations. The changes extended the scope of actions associated with terrorism and the power to detain and deal with alleged suspects.

A “terrorist act” is defined as an action or threat that is carried out with the intention of advancing a political, religious or ideological cause, and also carried out with the intention of coercing or intimidating the government or general public. Additionally, for an act to be classed as terrorism there must be an intention to:

cause serious physical harm to a person; or

cause a person’s death; or

endanger the life of a person, other than the person taking part in the action; or

create a serious risk to the health or safety of the public; or

cause serious damage to property; or

seriously interfere or seriously disrupt or destroy an “electronic system”.

However, the Criminal Code Act specifically declares that an action is not a terrorist act if it is “advocacy, protest, dissent or industrial action”’ that is not intended to:

cause serious physical harm to a person; or

cause a person’s death; or

endanger the life of people other than those taking part in the action; or

create a serious risk to the health and safety of the general public.

Although the right to peacefully protest remains intact, it is arguable that the Criminal Code Act (if read broadly) could be used to impede or prohibit assembly where the authorities think there is a potential for violent activity at that protest. The key may be to thoroughly organise the protest, and to notify relevant parties (e.g. the police) of your intention to protest peacefully.

In recent years there have been a number of successful prosecutions under the new terrorism provisions; however, these appear to be limited to situations where there has been clear evidence to support an intention to cause serious harm or damage, as described above.

For more information, contact Amnesty International (at www.amnesty.org.au) or your local community legal centre (a list of community legal centres is provided in Legal services that can help).