Counter-Terrorism

Overview

• To address terrorism, Australian laws criminalise acts of terrorism (including specific offences relating to aviation and maritime vessels prohibited under international treaties) and give broad powers to intelligence and law enforcement agencies to identify and counter the threat of terrorism.
• Cyber-terrorism has been identified by the Australian government as a specific and emerging type of terrorism that has the potential to threaten Australia's national security and economic interests.

Background

• Australia's main and general terrorism offences are contained within the Criminal Code (Cth).
• In December 2020, the Australian Security Intelligence Organisation Amendment Bill 2020 (Cth) changed the compulsory questioning framework in the Australian Security Intelligence Organisation Act 1979 (Cth), by lowering the minimum age of questioning to capture 14 year olds and removing the need for judicial authorisation for particular ASIO warrants.

Cyber-terrorism

• Cyber-terrorism is defined as the politically motivated use of unlawful attacks or threats to influence an audience or promote change in government policy: see Mohammad Iqbal, 'Defining Terrorism' (2004) 22(2) Journal of Computer and Information Law 397.
• The Australian Signals Directorate Annual Report 2019-20 noted that, 'Throughout 2019–20, Australia was targeted by a range of actors who conducted persistent cyber operations that posed significant threats to Australia'.
• The ACSC Annual Cyber Threat Report July 2019 to June 2020 concluded that malicious cyber activity against Australia’s national and economic interests is increasing in frequency, scale and sophistication.

Legal Framework

Terrorism offences

• Part 5.3 of the Criminal Code (Cth) contains Australia's main counter-terrorism laws, including terrorist acts, providing or receiving training for terrorist acts, collecting or making documents likely to facilitate terrorist acts, other preparatory or planning acts, and financing terrorism or a terrorist/terrorist group.
• Part 5.5 of the Criminal Code (Cth) contains laws countering foreign incursions and recruitments.
• Part 5.1 of the Criminal Code (Cth) contains laws relating to the urging of other people or groups to enact violence or advocate terrorism.

Aviation offences

• Part 1 of the Aviation Transport Security Act 2004 (Cth) regulates the unlawful intereference with aviation, including damaging or destroying air navigation facilities, communicating false information that puts an aircraft at risk, or comitting an act at an airport or causing interference or damage that threatens safety of the airport or people at the airport.
• Part 2 of the Crimes (Aviation) Act 1991 (Cth) criminalises acts that affect aircraft and their safe operation. Under Division 3, it is an offence to prejudice the safe operation of an aircraft; endanger the safety of aircraft; threaten to destroy, damage or endanger the safety of an aircraft or anyone onboard; and to make a false statement or communicate false information about a plan, attempt or threat to take control of or destroy an aircraft or to kill or injury anyone onboard.

Maritime offences

• The Crimes (Ships and Fixed Platforms) Act 1992 (Cth) implements the Convention for the Supression of Unlawful Acts against the Safety of Maritime Navigation .
• Part 2 of the Act criminalises the destruction or damage of maritime navigational facilities, including through severe interference, and the giving of false information that endangers the safe navigation of a ship.
• The Maritime Transport and Offshore Facilities Security Act 2003 (Cth) regulates the security levels assigned by the government to maritime ports, vessels and zones, and requires the creation of maritime security plans according to assigned security levels.

Other offences

• Part 4 of the Charter of the United Nations Act 1945 (Cth) seeks to enforce UN Security Council decisions that relate to terrorism and dealing with assets. These provisions make it an offence to deal with freezable assets and give assets to a prohibited entity or individual.

Counter-Terrorism powers

• Part IIIAAA of the Defence Act 1903 (Cth) authorises the Australian Defence Force to respond to an extreme set of circumstances within the borders of Australia (e.g. respond to a threat to Commonwealth interests) and provides specific safeguards to ensure appropriate use of power.
• The Surveillance Devices Act 2004 (Cth) enables law enforcement agencies to use warrants and obtain authorisations associated with the use and management of surveillance devices.
• The Australian Security Intelligence Organisation Act 1979 (Cth) enables ASIO to use warrants to engage in surveillance activities and detain persons, conduct special intelligence operations and question a person who may have information connected with the collection of intelligence concerning a terrorist threat.
• The Telecommunications (Interception and Access) Act 1979 (Cth) allows ASIO and law enforcement bodies to utilise a warrant to intercept telecommunications, including for circumstances associated with terrorism offences.
• The Telecommunications Act 1997 (Cth) allows national security and law enforcement agencies to request or compel telecommunications companies to provide them access to encrypted messages. However, the telecommunications provider cannot be forced to implement or build a systemic weakness or vulnerability.
• The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) provides a set of possible options for courts to deal with the unauthorised disclosure of national security information in civil or criminal proceedings, particularly in Part 3A.

Regulatory & Policy Framework

Relevant Organisations

• Australian Signals Directorate
  • ASD Annual Report 2019-20
• Australian Cyber Security Centre
• Australian Criminal Intelligence Commission
• Australian Security Intelligence Organisation
• Defence Intelligence Organisation

Inquiries & Consultations

• Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Security Intelligence Organisation Amendment Bill 2020 (December 2020)
• Parliamentary Joint Committee on Intelligence and Security, Review of ASIO's questioning and detention powers (2018)

Industry Materials

• AusCERT
• 'Insurance Risk Assessment of Cyber Terrorism in Australia', Australian Reinsurance Pool Corporation (9 September 2020)

Related Topics

• Defence Exports and Trade
• Espionage, Sabotage and Foreign Interference
• Intelligence and Surveillance
• Security of Critical Infrastructure
• Telecommunications