The Extent of Force Police Can Use in Response to a Declared Terrorist Act in NSW

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By Joel Reines and Jimmy Singh.

Should we allow police to do what judges can’t in Australia by giving terrorist suspects an immediate death sentence?

Ensuring public safety has always been a key duty of all Australian police officers, yet the specifics of what this entails was never shown more vividly then it was last week in Melbourne.

Last Friday afternoon two police officers on-site in Bourke Street, Melbourne were confronted with a man propelling a knife at their heads.

The man, Hassan Khalif Shire Ali, a former Somalian resident had stabbed three others and set a car on fire before confronting the officers directly.

The younger of the two officers quickly reacted using lethal force, shooting the 30-year-old in the chest, which resulted in his death later that afternoon.

While everyone can appreciate that decisions must be made quickly in the public interest when people’s lives are in danger, however it is important to realise that when it comes to terrorism, we are giving police the authority to act in ways that would never otherwise be acceptable.

Since the Lindt Cafe siege attack four years ago, there has been a number of changes to the law affecting how police officers respond to terrorist incidents, not only in NSW but many other States have also followed suit.

For example in New South Wales, the Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 was enacted last year allowing police (when responding to terrorist acts) to use “force, including lethal force that is reasonably necessary, in the circumstances as the police officer perceives them.”

Here, the Legislation was directly responding to the siege as it was reported that officers had a clear line of sight on the gunman but failed to act for 17 hours.

If it is ever going to be appropriate to shoot a ‘terrorist’, a prolonged hostage situation such as the Lindt Cafe would be understandable as it was clear after several hours that negotiations were ineffective.

However, four years after the Lindt Cafe siege, it is now a huge step forward to shoot and kill someone only minutes after it became apparent that an attack was being carried out.

Imagine if a police officer mistakenly treats an incident as ‘an act of terrorism’ in circumstances he/she, whilst behind the wheel, crashes into a footpath off a busy public place following a medical/mental episode.

Is it possible to train officers to use tasers or shoot an assailant in non-life threatening areas as an alternative?

According to the Commissioner of the Metropolitan Police in London, Cressida Dick, tasers are an important tool to be used by officers in stopping terrorism at the scene.

“We know that the mere presence of a taser is often enough to defuse a dangerous situation and often get a suspect to drop their weapon if they’re armed,” she said.

London has been the setting for many acts of terrorism in the past year with reports of a car being used as a weapon on the Westminster Bridge last year in a similar attack to Bourke Street.

Ms. Dick believes tasers are a safer alternative.

“Taser reduces the need for physical contact and also the risk of unintended or unnecessary injuries to all parties,” she said.

It is also pertinent to think about the police officers who are tasked with using lethal force against a terrorist.

In the Bourke Street incident last week, the officer who shot Shire Ali was only three months out of the Police Academy and may not have been emotionally equipped to dealing with a death by his hands.

Earlier this year, the Australian Federal Police released a five-year mental health strategy on the need for police to combat mental illness.

This came after the Phoenix Australia Council conducted an independent review on officer’s mental health over a period of two-years from 2016-2017.

Here, the report revealed “66% of our AFP people will experience a potentially traumatic event at some point in their life and 29% of leave taken is for psychological injury.”

Thus, clearly mental health is a further issue at stake for police officers if they are permitted to take someone’s life in a terrorist event.

A second way Terrorism laws have shifted in the last three years is through the Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016.

Here, Section 25E of the Terrorism (Police Powers) Act 2002 (NSW) allows for terrorist suspects to be detained for 14 days on very limited evidence “if the police officer is satisfied that the investigative detention will substantially assist in responding to or preventing the terrorist act.”

This became controversial last August when a University of NSW PhD student Mohamed Kamer Nila Nizamdeen was charged with making a document to prepare for a terrorist act only for the police to later drop the charges after it was discovered that the notebook wasn’t his.

Although the police undoubtedly do some tremendous work in preventing terrorist acts, it’s important to realise the faster we label incidences as terrorist acts the more likely innocent people are going to be locked up.

Terrorists continue to adapt using new settings for their attacks and different forms of weapons. For this reason, it is important that the criminal justice system fulfil its role in keeping the public safe at all levels.

Giving assailants a death sentence and asking questions later solves the problem in the short term but may cause huge long-term ramifications for all involved.

Table Of Contents

The Law on the Extent of Force Police can Use in Relation to a Declared Terrorist Act in NSW
What is a ‘Terrorism Act’ Australia?
What is a ‘Terrorist Organisation’?

The Law on the Extent of Force Police can Use in Relation to a Declared Terrorist Act in NSW

In NSW, a police officer is allowed to use such force considered reasonably necessary in the circumstances perceived by the officer to defend any person threatened by a terrorist act (or to prevent or terminate the unlawful deprivation of liberty) if the incident is a ‘declared terrorist act’ pursuant to section 24B of the Terrorism (Police Powers) Act 2002 (NSW).

‘Reasonable force’ includes using lethal force that will kill the person on the other end of it.

An incident can only be a ‘declared terrorist act’ if the commissioner of police is satisfied as to the following:

The incident is (or likely is) a ‘terrorist act’; and
Planned and coordinated police action is required to defend any person threatened by it (or to prevent or terminate the unlawful deprivation of liberty)

For a police officer to be allowed to, for example shoot to kill a person believed to be a terrorist will require that declaration beforehand. That declaration will be required to be communicated at least to the police officer in charge of the officer at the scene who exercises this power.

This is reflected in section 24A of the Terrorism (Police Powers) Act 2002 (NSW).

What is a ‘Terrorism Act’ Australia?

A ‘terrorist act’ is defined in section 27A of the same Act.

It includes where a person does the following:

Intentionally becomes a member of a terrorist organization; and
Where the organization is a terrorist organization; and
Where that person knows that the organization is a terrorist organization.

A ‘terrorist act’ according to the Commonwealth Criminal Code is an action or threat of action that includes an intention of advancing a political, religious or ideological cause, and where the action is done (or threatened to be done) with the intention of coercing, influencing by intimidation, the government, state, territory or foreign country (or any part of those), or intimidating the public or section of the public. This is reflected in section 100.1 of the Commonwealth Criminal Code.