Terrorism (Police Powers) Regulations 2021

The regulations revolve around a small set of concepts and processes. The principal defined term within the regulations is Act, which denotes the Terrorism (Police Powers) Act 2005 (r 3). The operational concepts are: special powers authorisation; special area declaration; relevant authority; relevant judicial officer; preventative authorisation; investigative authorisation; and authorisations issued without confirmation under section 3(6) of the Act. The regulations treat preventative and investigative authorisations differently in terms of the grounds the applicant must set out (r 4(2)(b)(i)-(ii)).

A special powers authorisation is addressed in regulation 4. The relevant authority must apply for confirmation that it had or has proper grounds for issuing the authorisation. The application must be written and followed by personal appearance before the judicial officer and, where required by the judicial officer, giving evidence on oath (r 4(1)). The application must identify the authority by name and police rank, set out the factual and belief-based grounds for the authorisation (with different focal points for preventative and investigative categories), and be accompanied by a copy of the authorisation or proposed authorisation and an affidavit verifying the grounds (r 4(2)(a)-(c)).

If urgency makes the written-plus-appearance process impractical, the regulations allow electronic or telephone applications (r 4(3)). For electronic applications, documents and information must be provided electronically, the authority must be contactable by telephone, the judicial officer may assume without further inquiry that the caller is the relevant authority, and the judicial officer can require further information or an electronically provided affidavit. The judicial officer must communicate their decision electronically or by telephone (r 4(4)(a)-(e)). Telephone applications require the required information to be provided during the call, acceptance of identity on representation, an undertaking to forward documents and,if required,an affidavit, and the judicial officer must communicate the decision by telephone; documents must be forwarded as soon as practicable after the call (r 4(5)(a)-(g)).

Regulation 5 governs special area declarations. The Commissioner of Police must make the application in writing, attach the proposed declaration, set out grounds addressing the nature of the site or area and terrorist risk, and support the application with an affidavit that verifies both the site category (airport, station, special event site, or public area where people gather in large numbers) and the grounds for the declaration (r 5(1)(a)-(d)). The Commissioner must provide further information and verification as required by the judicial officer (r 5(2)).

The Schedule repeals the Terrorism (Police Powers) Regulations 2006. The legislative notes show the regulations were made and commenced on 27 May 2021 (Legislative history).

Taken together, the main conceptual effect is to standardise evidential, documentary and procedural requirements for judicial confirmation of authorisations and declarations under the Act, and to provide alternative communication modes where urgency demands them (r 4(3)).

The regulations directly affect a narrow set of actors: relevant authorities who issue special powers authorisations, the Commissioner of Police when proposing special area declarations, and relevant judicial officers who confirm authorisations and declarations. The regulations do not purport to affect private citizens directly in statutory rights terms, but they affect citizens indirectly through the procedural gatekeeping for police powers.

Relevant authorities are required to initiate and carry the evidential burden in applications for confirmation. Regulation 4 imposes documentary and affidavit obligations on a relevant authority seeking confirmation that it had or has proper grounds for a special powers authorisation. The authority must provide its name and police rank, set out the grounds for preventative or investigative authorisations, and attach a copy of the authorisation or proposed authorisation plus an affidavit verifying the grounds (r 4(2)(a)-(c)). If the authorisation was issued without prior confirmation under section 3(6) of the Act, the application must explain the urgent circumstances that led to issuing without confirmation (r 4(2)(b)(iii)).

The Commissioner of Police bears specific obligations when seeking confirmation for special area declarations. Regulation 5 requires the Commissioner to file a written application with the proposed declaration, to state grounds tied to the nature of the site or area and the risk of a terrorist act, and to file an affidavit verifying that the site is of a particular enumerated category and verifying the grounds (r 5(1)(a)-(d)). The Commissioner must also be prepared to provide further information and verification at the judicial officer’s request (r 5(2)).

Relevant judicial officers are given procedural discretion. They may require evidence on oath (r 4(1)). When applications are made electronically or by telephone, judicial officers are entitled to accept without further inquiry identity assertions by the caller or electronic applicant (r 4(4)(c), r 4(5)(b)). Judicial officers are also tasked with informing the applicant of their decision electronically or by telephone where the application is made by those modes (r 4(4)(e), r 4(5)(f)).

Indirectly affected parties include operators and users of sites that may be the subject of special area declarations, such as airports, train or bus stations, tram stations, ship or ferry terminals, organisers of special events and operators of public spaces where large numbers gather. The Commissioner must verify that the site falls within one of these categories when applying for a declaration (r 5(1)(d)(i)(A)-(C)). Citizens subjected to special powers exercised under an authorisation or within a special area may experience immediate effects of police action, but the regulations themselves only shape the preconditions for continued or retrospective judicial confirmation.

Other public bodies are not named as parties in the regulations. The instrument repeals the 2006 Regulations, so any procedural obligations previously set by that instrument are now displaced by the 2021 Regulations (Schedule 1).

The regulations allocate procedural duties and limited rights around confirmation applications. Duties fall primarily on relevant authorities (including the Commissioner of Police) and on relevant judicial officers.

Duties of relevant authorities under regulation 4 include filing a written application and appearing in person before the judicial officer, and providing specified content and documents. The application must include the authority’s name and police rank (r 4(2)(a)), and must specify grounds depending on whether the authorisation is preventative or investigative (r 4(2)(b)(i)-(ii)). If the authorisation was issued without prior confirmation under s 3(6) of the Act, the authority must explain the urgency that justified that course (r 4(2)(b)(iii)). The application must be accompanied by a copy of the authorisation or proposed authorisation and an affidavit verifying the grounds (r 4(2)(c)(i)-(ii)). The authority must also be prepared to provide additional information and, where required, provide sworn evidence (r 4(1), r 4(4)(d), r 4(5)(e)). If the application is made electronically, the authority must provide information and documents electronically and be available to speak by telephone (r 4(4)(a)-(b)). If made by telephone, the authority must give the required information during the call and undertake to forward documents and affidavits as requested, and then forward them as soon as practicable after the call (r 4(5)(a), (d), (e), (g)).

Duties of the Commissioner of Police under regulation 5 include making a written application for a special area declaration, attaching a copy of the proposed declaration, setting out grounds tied to the nature of the site and risk of terrorist act, and filing an affidavit verifying the site category and the grounds (r 5(1)(a)-(d)). The Commissioner must provide further information and verification as the judicial officer requires (r 5(2)).

Duties of relevant judicial officers include receiving and deciding applications, requiring further information and verification as necessary, and, where desired, requiring evidence on oath (r 4(1), r 4(4)(d), r 5(2)). Where applications are made electronically or by telephone, the judicial officer must inform the authority of their decision by the same electronic or telephone means (r 4(4)(e), r 4(5)(f)).

The regulations do not articulate substantive rights for applicants or third parties. They do not specify an appeal or review route from a judicial officer’s decision within the instrument. They also do not set evidentiary thresholds, burden of proof language or time limits for a judicial officer to make a decision, nor do they define "relevant authority" or "relevant judicial officer" within the text. Regulation 4 does, however, preserve a judicial officer’s discretion to require oath evidence and to request further information (r 4(1), r 4(4)(d), r 5(2)).

Operational rights implied in the procedure include the authority’s right to apply by electronic or telephone means where undue delay would result from the in-person procedure (r 4(3)). The judicial officer has the procedural right to accept identity assertions in electronic or telephone interactions (r 4(4)(c), r 4(5)(b)).

In summary, duties are procedural and documentation-focused, with the onus on police authorities and the Commissioner to produce and verify grounds and related documents; judicial officers retain discretion over the formality and verification steps required.

The text of these regulations does not create new criminal offences or prescribe civil penalties for non-compliance. The instrument is procedural and prescriptive about how confirmation applications must be made and what they must contain, but it does not specify enforcement mechanisms, sanctions, or penalty regimes within the regulations themselves.

Enforcement consequences for failing to follow the specified processes must therefore be inferred from the procedural context the regulations sit within. The regulations require that an application for confirmation be made in a particular form and with particular supporting documents, and that judicial officers may require further information, affidavits and oath evidence (r 4(1)-(2), r 5(1)-(2)). If an applicant fails to comply with these documentary or attendance requirements, the judicial officer retains discretion to request further information or evidence and to make decisions based on the materials provided or not provided (r 4(1), r 4(4)(d), r 5(2)). The regulations do not prescribe outcomes for non-provision of information, for failure to forward documents after a telephone undertaking, or for false affidavits within the document. Where affidavit material is produced, false statements in affidavits may attract penalty under general criminal or civil perjury or false swearing provisions in other laws, but those other laws are not cited in these regulations.

The regulations also confer procedural power on a judicial officer to accept identity assertions during electronic or telephone interactions (r 4(4)(c), r 4(5)(b)). They do not provide enforcement safeguards about verifying identity beyond permitting the judicial officer to assume identity on representation. Nor do they require the judicial officer to make a decision within any specified timeframe. For telephone applications, documents must be forwarded "as soon as practicable" after the call (r 4(5)(g)). That phrase imposes a timing obligation but does not specify a penalty for failing to meet it.

Because the instrument is silent on statutory sanctions, enforcement of compliance will depend on the Act’s broader framework and judicial practice. The regulations mainly establish procedural expectations and give judicial officers the power to request further verification and oath evidence. Any consequences for non-compliance, false statements, or misuse of the application process are likely to derive from other legislative provisions, the common law or the judicial officer’s exercise of discretion when assessing whether confirmation should be granted.

Practitioners should therefore treat the regulations as defining evidential and procedural obligations and look to the Act and general criminal and procedural law for concrete enforcement or penalty consequences that might follow from non-compliance or false or misleading affidavits.

The regulations expressly operate in the context of the Terrorism (Police Powers) Act 2005, which they identify as "the Act" for the purpose of the instrument (r 3). They do not attempt to duplicate or restate substantive thresholds and definitions contained in the Act; instead they prescribe the procedural interface between police decision-makers and relevant judicial officers for confirming authorisations and declarations contemplated by the Act (r 4, r 5). The regulations reference section 3(6) of the Act in relation to authorisations that may be issued without prior confirmation; when that section has been invoked, the applicant must set out grounds for issuing without confirmation (r 4(2)(b)(iii)). The content and legal effect of section 3(6) itself is not reproduced in the regulations.

Beyond that direct linkage, the regulations do not cite or modify other statutory provisions. They do not create new offences, civil remedies or appeal routes, and they are silent on how the materials produced under the regulations interact with other procedural regimes such as disclosure obligations in criminal proceedings, administrative review pathways or freedom-of-information regimes. They do not provide for the confidentiality or public disclosure of documents submitted to the judicial officer during the confirmation process, or for the retention or destruction of materials after the decision. Those matters will be governed by the Act, by general court or tribunal practice, or by other statutory regimes not mentioned in these regulations.

The regulations require affidavits verifying grounds and site characteristics (r 4(2)(c)(ii), r 5(1)(d)(ii)). Affidavits are formal sworn documents that generally interact with other evidentiary and criminal statutes governing perjury or false swearing. The regulations do not specify the formalities for oath-taking, how affidavits are to be sworn outside the jurisdiction, or how electronically provided affidavits are to be executed. Electronic transmission of documents and provision of electronically supplied affidavits are permitted where sensible under r 4(4)(a) and r 4(4)(d). The interaction of electronically provided affidavits with laws regulating electronic signatures, evidentiary admissibility of electronic documents and formality of affidavits will depend on other laws and judicial practice outside these regulations.

The instrument repeals the Terrorism (Police Powers) Regulations 2006 (Schedule 1). That repeal displaces any procedural requirements imposed by the 2006 Regulations and substitutes the 2021 procedural framework for confirmation applications. The legislative history identifies the Gazette notice and commencement date (Legislative history), which may matter when determining the transitional application of the 2006 instrument and whether any matters begun under the 2006 Regulations must be completed under them or under the 2021 Regulations. The 2021 Regulations themselves do not provide transitional provisions.

In short, this instrument is procedural and parasitic on the Act. Its operation interacts with other laws to the extent that affidavits, electronic communications and judicial processes have broader legal consequences; the regulations do not attempt to resolve those wider interactions within their text.

The regulations themselves are short and show a simple origin and change log. The instrument is titled Terrorism (Police Powers) Regulations 2021 (r 1). They come into operation on the day they are made (r 2). The legislative history appended to the instrument records the principal regulations as Year 2021, No 57, Gazetted 27 May 2021, with commencement on 27 May 2021 (Legislative history). Schedule 1 expressly revokes the Terrorism (Police Powers) Regulations 2006 (Schedule 1).

No further amendment history, prior versions, or subsequent amendments are recorded within the text supplied. The Schedule’s clear repeal makes the 2021 Regulations the operative subordinate instrument in place of the 2006 Regulations from the commencement date. There are no transitional provisions included in the text concerning matters commenced under the 2006 Regulations before repeal. The regulations do not list any savings or savings clauses.

Because the instrument is a replacement for the 2006 Regulations, practitioners should assume that any procedural rules previously found in the 2006 Regulations are no longer operative as of 27 May 2021, and that the rules contained in r 4 and r 5 apply to confirmation processes from that date forward. The regulations themselves contain no staged amendments or later modification notes. If further amendments exist, they are not contained in the document provided.

For users tracking legislative change, the legislative history note points to the Gazette reference (Gazette 27.5.2021 p1489), which is recorded in the instrument. No other historical annotations, such as commencement by proclamation, delayed commencement, or partial commencement, appear in the text. The commencement clause (r 2) is unqualified: the regulations commence on the day on which they are made.

The text of the regulations contains no litigation history, no references to cases, and no citations to judicial decisions. It does not name any litigation that has tested the operation or validity of these provisions. The instrument itself is procedural and was made in 2021; the legislative history entry records the Gazette and commencement date (Legislative history), but no subsequent judicial consideration is mentioned in the document.

Consequently, within the four corners of this instrument there are no recorded decisions interpreting the application process, the sufficiency of affidavits, the acceptability of electronic or telephone applications, or judicial officers' exercise of discretion under these regulations. The regulations refer to section 3(6) of the Act but do not include or summarise any litigation concerning that subsection. Any case law interpreting the procedural points in r 4 or r 5, or the related provisions of the Act, would not be found in this instrument and is not part of the text supplied.

Practitioners seeking litigation history relevant to these procedural rules must therefore consult external sources such as court databases, judicial registries and reports that are outside the content of the regulations. The absence of litigation references in the instrument suggests that the regulations were not accompanied by a statutory note of judicial interpretation at the time of making, but it does not allow inference about whether litigation has subsequently occurred; no such material is included here.

The regulations contain several procedural details that carry operational risk if overlooked. These are specific, source-grounded points to watch.

1. Identity assumption in electronic and telephone applications. Regulations 4(4)(c) and 4(5)(b) permit the judicial officer to assume, without further inquiry, that a person identifying themself as the relevant authority during electronic or telephone communication is indeed that authority. That dispenses with immediate formal identity verification. Practitioners should note the risk that an application might be accepted on the basis of an unverified identity and must guard against inadvertent disclosure, miscommunication, or potential impersonation during urgent telephone or electronic interactions.

2. Undertakings and delayed documentary proof. Telephone applications require the authority to undertake to forward written documents and affidavits "as soon as practicable" after the call (r 4(5)(d), (e), (g)). The regulations allow decisions to be made on the basis of a telephone exchange plus an undertaking to provide documents later. Absent a firm timeframe, "as soon as practicable" is open-ended and may create evidentiary or administrative difficulties if documents are delayed or lost.

3. No specification of evidential threshold or decision timeframe. The regulations instruct applicants to "set out the grounds" for authorisations or declarations (r 4(2)(b), r 5(1)(c)) but do not define what level of particularity or standard of proof is required, nor do they require the judicial officer to decide within a specified period. That places significant discretion with the judicial officer and uncertainty on applicants about how much detail is necessary and how long a decision may take.

4. Affidavit formalities and electronic affidavits. The instrument requires affidavits verifying grounds (r 4(2)(c)(ii), r 5(1)(d)(ii)) and permits electronic provision of affidavits if the judicial officer requires (r 4(4)(d)). The regulations do not specify how electronic affidavits are to be executed, sworn or authenticated. Practitioners should ensure that electronic affidavits comply with other applicable rules on sworn evidence and electronic signatures.

5. Limited record of transitional arrangements. Schedule 1 revokes the 2006 Regulations but the instrument contains no transitional provisions. Matters begun under the 2006 Regulations may require particular attention to determine whether they fall under the old or the new regime.

6. Narrow site categories for special area declarations. Regulation 5(1)(d)(i) requires the Commissioner to verify that the site is an airport, train, bus or tram station, ship or ferry terminal, the site of a special event, or a public area where persons gather in large numbers. This list is specific; sites outside these categories may be difficult to justify under the regulation’s verification requirements. The regulations do not indicate whether other site types can be considered or how mixed-use or ambiguous sites should be classified.

7. No penalties or enforcement process in the instrument. The regulations do not prescribe consequences for non-compliance, late filing, failure to forward documents, or false statements in affidavits. Practitioners cannot rely on the instrument itself to identify sanctioning mechanisms; other laws govern false swearing and perjury.

8. Limited definition set. The only defined term is Act (r 3). Important categories such as "relevant authority", "relevant judicial officer", "special powers authorisation", "special area declaration", "preventative authorisation" and "investigative authorisation" are used but not defined in the regulations. Their legal meaning must be taken from the Act or other sources.

9. Decision communication by telephone or electronic means. Where the application is by electronic or telephone means, the judicial officer must inform the authority of their decision by those means (r 4(4)(e), r 4(5)(f)). This can lead to reliance on oral communication for formal decisions, making record-keeping crucial.

10. Urgency carve-out scope. Regulation 4(3) permits electronic or telephone applications if the written-plus-personal appearance process would cause undue delay. The regulations do not define "undue delay" or set criteria for when the urgency carve-out is appropriate, leaving subjective assessment to the applicant and judicial officer.

Awareness of these specifics is necessary to avoid procedural missteps that can compromise later judicial reviews or operational clarity.

The regulations prescribe concrete documentary and procedural steps. Compliance requires preparing the right materials, observing the permitted modes of communication in urgent cases, and following up on undertakings promptly.

For a relevant authority seeking confirmation of a special powers authorisation (r 4):

1. Prepare a written application as the primary mode. The application must identify the authority by name and police rank (r 4(2)(a)). Include a clear statement of the grounds:

   • For a preventative authorisation, set out the basis for believing a terrorist act is imminent and why exercising powers under the Act will substantially assist prevention (r 4(2)(b)(i)(A)-(B)).
   • For an investigative authorisation, set out the basis for believing a terrorist act is being or has been committed and why the powers will substantially assist investigation (r 4(2)(b)(ii)(A)-(B)).
   • If relying on s 3(6) urgency provisions to issue without prior confirmation, expressly explain and document the urgent circumstances that made immediate issue necessary (r 4(2)(b)(iii)).

2. Attach the required documents: a copy of the special powers authorisation, or the proposed authorisation if not yet issued, and an affidavit by the authority verifying the grounds (r 4(2)(c)(i)-(ii)). Ensure affidavits are properly sworn in accordance with applicable formalities and that originals can be produced if required.

3. Plan for personal attendance before the judicial officer and be prepared to give evidence on oath if requested (r 4(1)). Where practical, schedule the personal appearance immediately following submission to comply with r 4(1).

4. If urgency makes written plus personal appearance impracticable, use electronic application routes carefully:

   • Provide documents electronically and ensure they are secure and clearly labelled (r 4(4)(a)).
   • Be available to speak to the judicial officer by telephone (r 4(4)(b)).
   • Be prepared to provide further information and, if required, an electronically provided affidavit in a form acceptable to the judicial officer (r 4(4)(d)).
   • Ensure reliable electronic delivery and maintain logs or delivery receipts to demonstrate timely provision.

5. If applying by telephone, ensure the phone call covers all required information, undertake to forward documents and affidavits promptly, and forward documents "as soon as practicable" after the call with proof of transmission (r 4(5)(a), (d), (g)). Record (to the extent lawful) or contemporaneously note the call details, time, participants and the judicial officer’s decision as communicated by telephone (r 4(5)(f)).

6. Maintain comprehensive records of identity verification steps, transmission receipts, affidavit execution, and any undertakings given. Given the judicial officer may accept identity assertions (r 4(4)(c), r 4(5)(b)), administrative records will help if identity or authenticity is later challenged.

For the Commissioner of Police seeking confirmation of a special area declaration (r 5):

1. File a written application, attach a copy of the proposed special area declaration and set out in the application the grounds on which the Commissioner is satisfied the declaration is required because of the site or area’s nature and the terrorist risk (r 5(1)(a)-(c)).

2. Provide an affidavit that verifies the site falls within the specified categories:

   • The site is the location of an airport, train, bus or tram station, or ship or ferry terminal; or
   • The site is the site of a special event; or
   • The site is a public area where persons gather in large numbers (r 5(1)(d)(i)(A)-(C)). Also verify the grounds set out in the application (r 5(1)(d)(ii)).

3. Be ready to supply additional information and verification promptly when requested by the judicial officer (r 5(2)). Provide any supplementary materials in a format that can be relied on in judicial decision-making.

For both processes:

• Ensure affidavits comply with formal oath/affirmation requirements in other applicable statutes and record the method and time of swearing.

• Use secure electronic transmission methods where electronic documents are permitted (r 4(4)(a), r 4(4)(d)), and retain metadata and delivery receipts.

• Where decisions are communicated by telephone or electronically, keep contemporaneous records of the decision, including time, content, and the identity of the judicial officer, to the extent permissible.

• If an application invokes urgency and is made by telephone or electronically, plan the immediate collation of supporting documents and affidavits so that undertakings can be honoured without delay (r 4(3)-(5)).

• Ensure internal chain-of-command approvals are documented, particularly where s 3(6) of the Act is relied upon to issue authorisations without prior confirmation; the explanation of urgency required by r 4(2)(b)(iii) should be supported by contemporaneous operational records.

• Review whether other statutory or court rules apply to the execution and admissibility of electronic affidavits and records, and adopt practices that will satisfy those regimes.

Adhering to these steps will align an applicant’s materials with the form and content mandated by the regulations and reduce operational risk from identity, timing, and documentary uncertainties.