Review of NSW Terrorism Laws Recommends Legal Safeguards

Monday 16 July 2018 @ 10.45 a.m. | Crime | Legal Research

On 7 June 2018, a Department of Justice Review into the Terrorism (Police Powers) Act 2002 (NSW) (‘the Act’) was released. The review found that targeted powers to combat terrorism should continue to remain in place. However the review indicated that new safeguards to ensure legal protections for detainees would be added later in the year.

Background to Review

The review was conducted on behalf of the Attorney-General by the NSW Department of Justice, in accordance of section 36 of the Act, which requires that a statutory review of the Act be undertaken every three years. The review involved a public round of consultation in addition to targeted consultation. As noted in the Review, the aim of the Review is to ensure that the legislative framework appropriately meets the Act’s objectives in the context of the increasing tendency of minors to turn to extremism.

Recommendations

The following recommendations were outlined in the review:

  • The existing definition of ‘terrorist act’ should be retained;
  • Warning requirements should align with the requirements in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
  • That the Act require annual reporting on the amount of authorisations and powers exercised under the authorisations;
  • That the Act enable the Supreme Court to order the provision of legal aid in relation of investigative detention orders;
  • That the Act contain provisions for treatment of a person with humanity and respect for human dignity in relation to the enforcement of an investigative detention order;
  • That NSW Police Force be required to inform a person subject to an order under the Act about their right to contact a lawyer and a copy of the order;
  • The Act should be amended to enable a police officer to record illnesses or injuries suffered by a person who is the subject of investigative detention;
  • The Act should be amended to require the NSW Police Force to advise detainees and their lawyers that any conversation can only take place if it is monitored by a police officer;
  • That provisions in the act related to strip searching be aligned with the strip search requirements in the Law Enforcement (Police Powers and Responsibilities) Act 2002 (NSW);
  • That the Act make amendments related to visiting hours for those under 18 years of age or with impaired intellectual functioning.

Response to Review

Attorney -General Mark Speakman stated in a media release that police should have the legal authority to act swiftly and effectively:

‘A Department of Justice review found while the Terrorism (Police Powers) Act 2002 had been used sparingly, it is as vital today as it was when it was introduced in the wake of the 9/11 attacks.’

He further stated:

‘The changes strike the right balance between keeping the community safe and providing safeguards to prevent the powers unnecessarily encroaching on liberties.’

The New South Wales Council for Civil Liberties responded to the review on its website, noting its opinion and concern that the recommendations do not sufficiently address the issue of civil liberties. However the Council welcomed some of the recommendations such as the recommendation that detainees be informed of their rights in law and empower the Supreme Court to allow access to legal aid.

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