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[2026] VSC 35
General information, not legal advice.
Supreme Court of Victoria
2026-02-11
Tsalamandris J
Original judgment source is linked above.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending the event - Terrorism (Community Protection) Act 2003 (Vic) ss 4, 21B, 2N, 21O, 21P, 21Q, 21R, , , .
Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003 [2024] VSC 815; Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003 [2025] VSC 832.
Victoria Police Legal Services Department, Counter Terrorism Legal Unit
1 The President of Israel, Mr Isaac Herzog, together with the First Lady of Israel, Mrs Michal Herzog, the chairman of the World Zionist Association, Mr Yaakov Hagoel, and the chairman of the Jewish Agency and former Major General to the Israel Defence Forces, Mr Doron Almog (collectively, the dignitaries) are attending Melbourne on Thursday 12 February 2026, on an official invitation of the Australian Prime Minister, Mr Anthony Albanese. The invitation was extended to President Herzog following the Bondi Beach terrorist attack on 14 December 2025. The stated purpose of the visit is to honour and remember the 15 victims of that terrorist attack, and to express solidarity with the Australian Jewish community.
2 The application before the Court is brought on an urgent basis in the Practice Court by Deputy Commissioner Robert J Hill, exercising the powers of the Chief Commissioner of Police for Victoria under the Terrorism (Community Protection) Act 2003 (Vic) (the Act).[1]
The Supreme Court may, by order, give an authorisation for the exercise of special powers conferred by this Part if satisfied on reasonable grounds that the granting of the authorisation is reasonably necessary to ensure the safety of any person or persons attending the event.
5 The event the subject of this application, is the attendance of the dignitaries in Melbourne on 12 February 2026 (the event).
6 The Deputy Commissioner seeks authorisation for the exercise of the following special powers at the event:
(a) the power to obtain disclosure of identity in accordance with s 21O of the Act;
(b) the power to search persons in accordance with s 21P of the Act;
(c) the power to search vehicles in accordance with s 21Q of the Act;
(d) the power to move vehicles in accordance with s 21R of the Act;
(e) the power to place a cordon around two target areas in accordance with s 21T of the Act; and
(f) the power to seize and detain things in accordance with s 21U of the Act.
7 The Deputy Commissioner seeks these special powers for the period from 10am until 6:30pm on 12 February 2026.
8 For the purpose of this application, a 'terrorist act' under the Act is defined as follows:
(1) In this Act, terrorist act means an action or threat of action where -
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of -
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it -
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to -
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services by any entity (whether publicly or privately owned); or
(v) a system used for, or by, an essential public utility (whether publicly or privately owned); or
(vi) a system used for, or by, a transport system.[2]
(3) Action falls within this subsection if it -
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended -
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
9 In the decision of Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003[3] (the 2024 s 21B application) Ginnane J helpfully summarised the requirements for an application for special powers to be made:
Under s 21B, in order for the application to be made, the Chief Commissioner or, in this case the Deputy Commissioner, must be satisfied that: an event is taking place or is likely to take place in Victoria in the near future; the event involves, or is likely to involve, the attendance of prominent persons or a large number of people; and must be satisfied on reasonable grounds that the event might be the subject of a terrorist act; and that the giving of an authorisation targeting the area where the event is taking place, or is likely to take place, or any other area in which an activity connected with the event is taking place, or is likely to take place, is necessary to assist in protecting any person or persons attending the event from a terrorist act.[4]
10 In addition, the application may only be made with the written approval of the Premier.[5]
11 The Court's authorisation must satisfy the formal requirements stipulated in s 21B(7) of the Act.
12 In the decision of Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003[6] (the 2025 s 21B application), Harris J explained what is required for the Deputy Commissioner, and the Court, to be satisfied on such reasonable grounds:
The requirements of being satisfied on reasonable grounds, both with respect to the Commissioner's obligation to be satisfied, 'that the event might be the subject of a terrorist act' and the Court's obligation to be satisfied, 'that the granting of the authorisation is necessary to ensure the safety of any persons or persons attending the event' engage the standards discussed by the High Court in George v Rockett.[7] The High Court in that case discussed the issue of what constitutes reasonable grounds for suspicion and belief, for the purposes of the issue of a search warrant. The Court observed:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief [than in the case of suspicion], but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[8]
In the context of the statutory requirements of this legislative scheme, I note that the requirement in s 21B(1)(c) of the Act is that the Commissioner is satisfied 'on reasonable grounds that the event might be the subject of a terrorist act' (emphasis added). The objective circumstances which must exist for the Commissioner to have reasonable grounds for the necessary state of satisfaction are to be understood by reference to the requirement that a terrorist act might occur at the event, and not that it is likely to occur or any other degree of probability.[9]
13 The application was supported by the following affidavits:
(i) an open affidavit of the Deputy Commissioner sworn on 9 February 2026;
(ii) a confidential affidavit of the Deputy Commissioner sworn 9 February 2026 (first confidential affidavit);
(iii) a further confidential affidavit of the Deputy Commissioner sworn 10 February 2026; and
(iv) a confidential affidavit of Acting Commander, Michael Cruse sworn 10 February 2026.
14 In the open affidavit, the Deputy Commissioner deposed to the following:
(a) The event is to occur at two locations, which are identified in the first confidential affidavit. Whilst the itinerary of the event has not been made public, it is believed that organisers of protests are aware that the event is scheduled for 12 February 2026.
(b) The event is expected to involve the dignitaries, senior State and Federal politicians, and prominent members of the Victorian Jewish community. Due to widespread media coverage of the visit by President Herzog, it is also expected that there may be large numbers of people in the vicinity of where the event occurs - some being protestors, and others attending to support the presence of the dignitaries.
(c) The current national terrorism threat level is considered to be 'probable', meaning there is credible intelligence, assessed by Australia's national security agency, that in the next twelve months, there is a greater than 50% chance of either an onshore attack, or attack planning.
(d) The visit by President Herzog is to occur in an exceptionally heightened security environment, evidenced by the recent Bondi Beach terrorist attack, domestic social cohesion tensions, and the ongoing Israel/Hamas conflict in the Middle East.
(e) In Victoria, there has been an observable change in the willingness of some protest groups, to commit criminal offences.
(f) There has been specific instances of antisemitic and politically motivated violence within Victoria, which has included the targeting of a Jewish synagogue and Jewish property.
(g) On 5 February 2026, the Federal Police charged a person in New South Wales who had allegedly made a threat to kill President Herzog.
15 The Deputy Commissioner stated that, in his opinion, the giving of an authorisation of special powers is necessary to assist in protecting persons attending the event, and those protesting in the general vicinity of the event, from a terrorist attack. In support of his opinion, the Deputy Commissioner deposed to the following matters:
(a) There are significant challenges associated with the detection and prevention of low capability, lone actor attacks.
(b) High profile, high traffic locations, where large crowds gather, are an attractive target to those with the intention of, and capability for, carrying out a terrorist attack.
(c) The Bondi Beach terrorist attack was perpetrated with firearms, and the alleged offenders had prepared improvised explosive devices (IED).
(d) In Perth, Western Australia on 26 January 2026, a homemade IED was allegedly thrown into a crowd at an Invasion Day rally.
(e) Attack methodologies have trended towards low cost, low capability weapons and tactics. These tactic are considered to be easily obtainable, do not require specific skills or training to use, and can be acquired without raising significant security indicators. This inhibits law enforcement from detecting and disrupting a potential attack.
16 The Deputy Commissioner then stated why he believed the following specific powers were necessary:
(a) The power to obtain disclosure of identity. This would allow police to ascertain the identity of a person in the designated area, to assess whether they are on a 'persons of interest' list or pose any other risk to the safety of the event or those in the vicinity. Once a person is identified, Victoria Police would either exclude the person from their enquiries, or if the person remains a person of interest, this may trigger consideration of the use of any other authorised power, such as a search of their belongings or vehicle.
(b) The power to search persons. This power would be used to search individuals who are in the two target areas, to ascertain whether they possess any items that pose a risk to the safety of the event. It was stated that if such special powers were granted, the police would be extremely discerning in utilising them.
(c) The power to search vehicles. This power would be used if a vehicle entered either of the target areas, to ascertain whether the vehicle posed a risk to the safety of the event.
(d) The power to move vehicles. This power would be used to move vehicles impeding the safety of the event, such as where a vehicle is impeding the route of the motorcade of the dignitaries.
(e) The power to place a cordon around the two target areas. This power would be used to establish police cordons for the purpose of stopping or searching persons, and vehicles, in the target areas, if needed.
(f) The power to seize and detain things. This power would ordinarily be used after a search, if something is located which may pose a threat. The necessity for this power arises because police may locate items on a person or in a vehicle which may be used in a terrorist attack, for example a powder or liquid, but in the particular circumstances, police could not form a specific belief on reasonable grounds relating to weapons or explosives possessed by a person.
17 Finally, I note that the Deputy Commissioner deposed to having considered the rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic). The affidavit exhibited a document entitled 'Human Rights considerations' which had been prepared by the Victorian Police Legal Services Department, in respect of the event the subject of this application. The document set out consideration as to how the grant of special police powers may limit certain rights under the Charter, namely: recognition and equality before the law;[10] the right to life;[11] protection from cruel, inhuman or degrading treatment;[12] freedom of movement;[13] privacy and reputation;[14] freedom of expression;[15] freedom of association;[16] best interests of the child;[17] cultural rights;[18] property rights;[19] liberty and security of person;[20] and humane treatment when deprived of liberty.[21] The document then identified measures to be taken by police at the event, so as to minimise the impact on such rights.
18 In the first confidential affidavit, the Deputy Commissioner identified two geographical areas where the dignitaries are to attend. The Deputy Commissioner deposed to the itinerary for the event being confidential, and a concern being that if the target areas are publicly identified this may increase the risk of a terrorist attack.
19 The Deputy Commissioner stated that if the application was successful, arrangements would be made for Victoria Police to erect placards at intervals around each target area, and that such placards would display a notice that this Court has made an order for special powers, a list of the authorised powers and a map of the target area. Once the dignitaries have left the target area, these placards will be removed. The Deputy Commissioner said these measures were intended to address the human rights of persons who may attend within the target area during the course of the event.
20 The Acting Commander deposed to the plan for police officers, at each location, to prominently place at least 50 laminated A3 size placards, setting out the special powers authorised by this Court, with a map of the relevant target area. Such placards are to be erected around the entry and exit points of the boundaries of two target areas, at least 30 minutes prior to the arrival of the dignitaries and invited guests.
21 On the evidence before me, I am satisfied that the requirements of s 21B(1)-(4) of the Act are met, and have been complied with. The Premier, the Honourable Jacinta Allen, has given her written approval. The application was made in writing. The application described the event the subject of the application, including the attendance of the dignitaries, and the likely involvement of a large number of people at the event. The application set out the facts and other grounds on which the Deputy Commissioner considered there are reasonable grounds for suspecting the event might be the subject of a terrorist act, and why the giving of an authorisation targeting the area President Herzog is to visit, is necessary so as to assist in protecting any person or persons attending the event, from a terrorist act. The application also specified the special powers under Division 3 of the Act, which, in the opinion of the Deputy Commissioner, are reasonably necessary to ensure the safety of any person or persons attending the event.
22 On the evidence before me, I am satisfied on reasonable grounds that the event might be the subject of a terrorist attack, and that an authorisation is reasonably necessary to ensure the safety of any person or persons attending the event from a terrorist attack. President Herzog is a very prominent person, as are others attending the event with him. President Herzog's visit to Australia has attracted significant media attention, including international coverage. Given the tensions between Israel and Hamas in the Middle East, I accept the event may be an attractive target to those wanting to commit a terrorist act. There have been specific antisemitic attacks in Victoria. There is a risk that persons who aspire to be terrorists will be inspired by the Bondi Beach terrorist attack and the global publicity it generated. In addition, I note the risk of a terrorist attack, or the planning of an attack, in Australia in the next 12 months, is probable.
23 In considering this application, I note that the application is for only some of the possible special powers contemplated in Part 3A of the Act. I am satisfied that each of the powers sought are reasonably necessary to ensure the safety of persons attending the event, for the reasons identified in the Deputy Commissioner's affidavit, and summarised in paragraph [16] above.
24 Before determining this application, I have had regard to the Charter. In doing so, and at the outset, I endorse the remarks made by Ginnane J in the 2024 s 21B application, previously cited. The right to life in the Charter,[22] is a right which may be 'substantially limited or extinguished by a terrorist attack',[23] and if not given full protection, 'all the other rights in the Charter are illusory.'[24] The right to life has been at the forefront of my mind in consideration of this application.
25 I am also satisfied that the document exhibited to the open affidavit, which analysed the Charter rights potentially engaged in this application, demonstrated that the Deputy Commissioner has given proper consideration to such rights, and would ensure measures were taken by police officers to minimise the impact upon those rights.
26 In view of the above, I am satisfied that the potential limitations on the Charter rights identified are reasonable and are 'demonstrably justifiable in a free and democratic society based on human dignity, equality, and freedom.'[25]
27 The first confidential affidavit described the boundaries of the areas sought to be the target of the authorisation. The itinerary of the event is not publicly known. I am satisfied that, in order to maintain the security protocols developed for the event, the target areas should not be publicly disclosed. However, so as to inform people entering the target areas of the authorised special powers, I am satisfied that placards will be erected at entry points to the boundaries of the target areas, at least 30 minutes prior to the dignitaries arriving at the event.
28 Pursuant to s 21B(6) of the Act, I will give authorisation for the following special powers under Part 3A:
(a) the power to obtain disclosure of identity;
(b) the power to search persons;
(c) the power to search vehicles;
(d) the power to move vehicles;
(e) the power to place a cordon around the targeted areas; and
(f) the power to seize and detain things.
29 Such special powers may be exercised in respect of the event, in the two target areas, from 10am until 6:30pm on 12 February 2026, and in accordance with the Act.
30 The target areas may be publicly disclosed after the event has occurred.
[1] Pursuant to s 21AB of the Act, a Deputy Commissioner may exercise the powers and perform the functions of the Chief Commissioner under Part 3A as if the Deputy Commissioner were the Chief Commissioner.
[2] Terrorism (Community Protection) Act 2003 (Vic) s 4 ('the Act').
[3] [2024] VSC 815 ('2024 s 21B application').
[8] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 116 (emphasis added by Harris J).
[9] 2025 s 21B application (n 6) [18]-[19].
[10] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8 ('Charter').
[23] 2024 s 21B application (n 3) [19].
(1990) 170 CLR 104