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The NSW Police have been found to have unlawfully used
counter-terrorism powers to conduct covert searches on all
occasions they have been used, as outlined by the Law Enforcement
Conduct Commission in a recent report.
Here is a complete guide on
Terrorism laws and offences in Australia.
Whilst police were provided with the special powers via
legislative reform in 2002 to prevent or respond to suspected
terrorist attacks, they only began using them in 2006.
The Terrorism (Police Powers) Act 2002 (NSW)
was passed by parliament in November 2002, following the Bali
Bombings which killed 88 Australians.
The legislation was modelled in accordance with Commonwealth
terrorism legislation, as well as anti-terrorism legislation in
force in the US and UK.
The powers created were namely ‘covert searches’ and
‘preventive detention powers’.
The covert search powers enable police to apply to the Supreme
Court for a warrant enabling officers to enter a premise, without
the occupier’s knowledge, and to seize and detain relevant
items, as outlined in
Warrants will be granted by a Judge where there is reasonable
grounds that a terrorist act has been, is being, or is likely to
be, committed, and that it is necessary for a ‘covert’
search to occur to assist in responding to or preventing the
It enables officers to impersonate another person for the
purposes of executing the warrant, and use such force as is
reasonably necessary to enter the premise, as per section 27O.
The preventive detention powers enable officers to arrest a
terrorism suspect for the purpose of investigative detention, if a
terrorist act concerned occurred in the last 28 days, or there is
reasonable grounds to suspect a terrorist act could occur at some
time in the next 14 days, as outlined in Part 2AA. This
power of police arrest is in contrast to NSW laws.
LECC Chief Commissioner, Reg Blanch found that the police
had failed to develop or maintain policies that were up-to-date and
guided officers through the legal requirements of the powers.
The Standard Operating Procedures for both the covert search
warrants and preventive detention orders, were out of date and did
not provide officers with adequate guidance to ensure that the
powers were used appropriately.
The LECC found that whilst it is appropriate that the powers
were used scarcely, due to their extraordinary nature, their
infrequent use presents challenges.
This makes familiarity with and updates to guidelines important,
as officers often will be required to utilise the powers at short
notice and in high pressure environments.
Police only utilised the preventive detention powers once, with
new investigative detention powers introduced in 2016, which has
essentially made them redundant.
The LECC has recommended that the legislature remove these
With respect to the covert search powers, they have only been
used nine times, with four of these within the period that the LECC
There were significant issues with the covert searches
performed, with the searches not properly recorded on video, and
the occupier’s not provided with notice after.
Only one of the four searches was even recorded on video, and
this was done partially.
Whilst the Act does not require that the searches be recorded,
the Standard Operating Procedures expect that officers would video
record them, unless it is impractical to do so.
Furthermore, an occupier’s notice is required under section
27U of the Act, which includes details about the execution of the
warrant, and is to be provided to the occupier of the premises
searched, within six months of the warrant’s execution.
The notice must be provided to the issuing Judge for approval
within 6 months of the warrant being executed, with it then
provided to the occupier once approved.
The Judge may postpone the giving of an occupier’s notice if
they are satisfied that there are reasonable grounds to do so but
cannot postpone the giving of the notice for more than 18 months in
total, unless satisfied exceptional circumstances justify the
In each other the four warrants, the occupier’s notice
police prepared was materially deficient, and did not include any
of the details about the execution of the warrants that are
Officers were granted initial postponements in relation to each
of these notices, and ultimately only one incomplete notice was
provided to the legal representative of an occupier.
The other three notices were never given to the relevant
Issues have also arisen due to how the covert collection of DNA
by police during such searches remains unregulated, and that the
Act does not specifically authorise officers to take DNA samples
whilst executing a covert search warrant.
Despite this, DNA samples were collected in three out of the
four covert searches.
The covert search power warrants were executed as part of
investigations that resulted in the arrests and charging of three
persons for offences related to terrorism.
Of these persons, two pleaded guilty and received sentences of
One of these persons was 22-year-old Isaac El Matari who was
convicted of multiple terrorism offences in 2021.
They included preparing or planning for a terrorist act in
Australia and preparing to commit an incursion into a foreign
country (namely Afghanistan) with the intention of engaging in
El Matari received a maximum term of seven years and four
months, with a non-parole period of five-and-a-half years.
During the execution of the covert search warrant, officers
uncovered an incomplete Australian passport application in Mr El
Matari’s bedside table, his photocard identification, two 511
tactical backpacks and a book from St Mary’s library titled
‘Terrorism and Extremism’ by Grace Jones.
A further covert search warrant was executed to obtain Mr El
Matari’s mobile phone, with images of IS Propaganda, violent
images of fighting, injured and deceased civilians including
children and beheadings, and combatants firing weapons found.
Upon sentence, Justice Peter Garling
remarked how El Matari had “grandiose
ideas” regarding his position in the Islamic State
(IS) group in Australia, but simply “did a lot of