Application by the Chief Commissioner of Victoria Police under section 21B of Part 3A of the Terrorism (Community Protection) Act 2003 [2024] VSC 815 (30 August 2024)

1 Before the Court is an application by a Deputy Commissioner exercising the powers of the Chief Commissioner of Victoria Police as is permitted by s 21B of the Terrorism (Community Protection) Act 2003 ('the Act'). Section 21B (6) states:

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.

2 In the originating motion, orders are sought under Part 3A. The event is described as the 2024 Land Forces International Land Defence Exposition, to be held in Melbourne in September, which many people are expected to attend. The target area of the authorisation is the area within the boundary marked on the map, which I will annex to the orders I make, and which contains clear marking as to the perimeters of the target area.

3 The special powers that are sought to be exercised are:

(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 the target area in accordance with s 21T of the Act;

(f) the power to seize and detain things in accordance with s 21U of the Act.

4 In addition, s 21V provides that it is lawful for a police officer or a protective services officer exercising a power under this Division in relation to a person or thing, and anyone assisting them, to use such force as is reasonably necessary to exercise the power.

5 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.

6 The purpose of the Act includes providing new powers and obligations relating to the prevention of, and the response to, terrorist acts, a term defined by s 4 of the Act.

7 I am satisfied that the formal requirements of the Act are established, as proved by the contents of the Deputy Commissioner's affidavits, both the open and closed versions. The formal requirements contained in s 21B are: the written approval of the Premier; that the application is made in writing; that the application describes the events in respect of which the application is being made; that the application sets out the facts and other grounds on which the Chief Commissioner or Deputy Commissioner considers that there are reasonable grounds for suspecting that the event might be the subject of a terrorist act; that the application explains why the giving of an authorisation targeting the relevant areas is necessary to assist in protecting any person or persons attending the event from a terrorist act; that the application specifies the special powers under Division 3 that, in the opinion of the Deputy Commissioner, are reasonably necessary to ensure the safety of any person or persons attending the event; and the application describes the area sought to be made the target of an authorisation.

8 As I understand it, the grant of the special powers will not prevent protest activity, but any such activity will be subject to the exercise of the special powers.

9 In order for the Court to make the orders sought, under s 21B(6), it must be satisfied on reasonable grounds that granting the authorisation is reasonably necessary to ensure the safety of any person or persons attending the event.

10 I note that the current national terrorism threat level for Australia is probable.

11 I accept the submissions by Senior Counsel for the applicant that the special powers sought to be authorised are limited to what is reasonably necessary to detect and prevent a terrorist attack in a crowded place. The powers sought to be authorised are a subset of those contemplated by the Act and are targeted to matters that would reduce the identified risks.

12 I also accept that the powers sought to be authorised are not so broad or intrusive as to make them inappropriate to be authorised by the Court.

13 Subject to consideration of the human rights issues discussed below, I am satisfied on reasonable grounds that the granting of the authorisation sought is reasonably necessary to ensure the safety of persons attending the event. I consider that the period of time sought for the exercise of the special powers, is a reasonable time.

14 I next refer to the application of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter') to this application and the special powers that are sought. Senior Counsel for the applicant submitted that proper consideration had been given to the impact of such powers on Charter rights as required by s 38(1) of the Charter. The restrictions and limitations imposed by the proposed orders are proportionate to the risks to public safety and are demonstrably justified in accordance with s 7(2) of the Charter. The exercise of the special powers will not inhibit lawful protest activity and have been specifically selected to enable protection against terrorist acts.

15 The open affidavit of the Deputy Commissioner states that in making the application, he considered the rights protected by the Charter and considered it appropriate to make this application. He exhibits at pp 37 to 41 of the exhibit bundle a detailed consideration of particular Charter rights and the limitations that the authorisation would impose on them. Those rights include freedom of movement, freedom of association, freedom of expression, freedom of thought, conscience and religion and belief, the right to liberty and security of the person, protection from cruel, inhuman or degrading treatment, humane treatment when deprived of liberty and protection of families and of children. That latter right is one that may be engaged if people under the age of 18 are the subject of the exercise of the special powers for which authorisation is sought.

16 A Charter Notice has been served on the Victorian Equal Opportunity and Human Rights Commission, as required by s 35(1) of the Charter. The Commission informed the Court that it will not be intervening. A Charter Notice has also been served on the Victorian Attorney-General's office, via the Victorian Government Solicitor. There has been no response, so I take it again that there is no desire to intervene.

17 There are various approaches to the application of the Charter to an application such as the present application. One approach focuses on the role of the Court and its authorisation of the use of special powers. The different approaches to the application of the Charter to the Court's exercise of jurisdiction were discussed by the Court of Appeal in Victorian Police Toll Enforcement v Taha.[1] Those questions can, in an appropriate case, require determination of whether the Court in hearing a proceeding, or considering an application, is acting in an administrative capacity for the purposes of s 4(1)(j) of the Charter, or as to the effect of s 6(2)(b), which applies the Charter to courts to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter.

18 The second circumstance that may give rise to questions under the Charter is when officers exercise special powers that have been authorised. I will focus on that circumstance. Questions about the validity of the manner of the exercise of the special powers, if they arise, will usually be determined after events raising Charter issues have occurred. I have taken into account the statements in the memorandum exhibited to the Deputy Commissioner's affidavit which include that: the special powers are only granted after the Court has been satisfied on reasonable grounds that it is reasonably necessary to ensure the safety of any persons attending the event; that the police intention is to only exercise the power to obtain disclosure of identity where there is an operational need and the use of the power is proportionate; the power to search persons, while limiting rights, will only be exercised in a manner that minimises the limitation on those rights; the power to search vehicles is not intended to be used wholesale or to undertake wholesale searches of vehicles within the area, but to be used when it is necessary to search vehicles when there is an identified risk to the safety of the attendees; that the cordon power will only be used if operational circumstances deem it necessary; that the power to seize things will only be exercised when a suspicion is formed on reasonable grounds that it is necessary to seize items which may be used in the commission of a terrorist act or serious indictable offences; the power to seize and detain things would only be used where a suspicion was formed on reasonable grounds that it was necessary to seize items which may be used in the commission of a terrorist act or serious indictable offence; and in respect of the use of force generally and that there is no additional use of force authorised beyond what is necessary to give effect to the other powers authorised.

19 I have considered the applicant's submissions and considered the limitations on the rights which I have described which the Deputy Commissioner's exhibit details. I have also taken into account that the right to life, which is recognised in s 9 of the Charter, would be substantially limited or extinguished by a terrorist attack. Section 9 states that every person has the right to life and has the right not to be arbitrarily deprived of life. It is an unrestricted right. If it is not given full protection, then all the other rights in the Charter are illusory, as persons who are killed in terrorists attacks cannot exercise human rights. So also taking that right into account, I consider that the proposed orders are a reasonable limitation of the rights I have mentioned in paragraph 15. I am so persuaded by the evidence presented to the Court, including the memorandum exhibited to the Deputy Commissioner's affidavit. I consider, to use the words of s 7(2), that the limitations on the rights are reasonable limits that are demonstrably justified in a free and democratic society based on human dignity, equality, and freedom, and taking into account all relevant factors, including the five factors listed in s 7(2). They are the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose and any less restrictive means reasonably available to achieve the purpose that the limitation seek to achieve.

20 I have also considered the interpretive provision in s 32 of the Charter. I consider that the clear and unequivocal meaning of the special police power provisions in Part 3A of the Act will usually require, or result in, some limitation on the human rights that I have mentioned above.

21 I therefore propose to make orders to the following effect:

(a) authorisation for the exercise of special powers is given under Part 3A of the _Terrorism (Community Protection) Act 2003 (_authorisation);

(b) the event to which the authorisation applies is the 2024 Land Forces International Land Defence Exposition, which is being held in Melbourne;

(c) the target area of the authorisation is the area within the boundary marked on the map, which is the second version of the map, which will be annexed to the orders;

(d) the following special powers under Division 3 of Part 3A may be exercised:

(i) the power to obtain disclosure of identity in accordance with s 21O of the Act;

(ii) the power to search persons in accordance with s 21P of the Act;

(iii) the power to search vehicles in accordance with s 21Q of the Act;

(iv) the power move vehicles in accordance with s 21R of the Act;

(v) the power to place a cordon around the target area in accordance with s 21T of the Act;

(vi) the power to seize and detain things in accordance with s 21U of the Act.

(e) the authorisation begins to have effect at 12:00 hours on 6 September 2024;

(f) the authorisation shall cease to have effect at 23:59 hours on 15 September 2024;

(g) the confidential affidavit affirmed by Deputy Commissioner Neil Paterson of Victoria Police on 25 August 2024 and the exhibits thereto will be marked confidential and sealed on the Court file with access to the file requiring leave of the Court.

[1] [2013] VSCA 37; (2013) 49 VR 1.