Terrorism (Preventative Detention) Act 2005

Terrorism (Preventative Detention) Act 2005

This Act may be cited as the Terrorism (Preventative Detention) Act 2005.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – AFP employee has the same meaning as in the Australian Federal Police Act 1979 of the Commonwealth;AFP member has the same meaning as in Part 5.3 of the Commonwealth Criminal Code;ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; authorised police officer means a police officer appointed by the Commissioner of Police under subsection (2);Commonwealth control order has the same meaning as "control order" has in Part 5.3 of the Commonwealth Criminal Code;Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a law of the Commonwealth that replaces that Code; corresponding preventative detention law means – Division 105 of the Commonwealth Criminal Code; or a law of another State or of a Territory, or particular provisions of a law of another State or of a Territory, that – corresponds or correspond to this Act; or is or are declared by the regulations to correspond to this Act;Director of Corrective Services has the same meaning as in the Corrections Act 1997; identification material, in relation to a person, means samples taken from a part of the person's body from which a DNA profile may be derived, prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings) of the person; interim preventative detention order means an interim preventative detention order made by the Supreme Court under section 7; lawyer means an Australian legal practitioner; premises includes – land; and a building or vehicle; and a part of a building or vehicle; and any place, whether built on or not; prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; preventative detention order means an order made under section 7, as varied under section 16 or 17, and includes an interim preventative detention order; prison has the same meaning as in the Corrections Act 1997; prohibited contact order means an order made under section 14 or 15, as varied under section 16 or 17; seizable item means anything that – could present a danger to a person; or could be used to assist a person to escape from lawful custody; or could be used to contact another person or to operate a device remotely; senior police officer means a police officer of or above the rank of Assistant Commissioner; terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code; thing includes any object, article or material; vehicle means any thing capable of transporting people or things by air, road, rail or water, regardless of how the thing is moved or propelled.

The Commissioner of Police may appoint in writing police officers, or a class or classes of police officers, to be authorised police officers for the purpose of making applications under sections 5, 15 and 17.

A note in the text of this Act does not form part of this Act.

An authorised police officer (the "applicant") may apply to the Supreme Court or, subject to subsection (3), to a senior police officer for a preventative detention order in relation to a person (the "subject") if – the applicant suspects on reasonable grounds that – the subject – will engage in a terrorist act; or possesses or has under his or her control (whether solely or jointly with any other person) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in preparation for, or planning, a terrorist act; and making the order would substantially assist in preventing a terrorist act occurring; and detaining the subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii); or the applicant is satisfied that – a terrorist act has occurred within the last 28 days; and it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and detaining the subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii).

A terrorist act referred to in subsection (1)(a) must be one – that is imminent; and that is expected to occur, in any event, at some time in the next 14 days.

An application may only be made to a senior police officer if the applicant considers that – there is an urgent need for the order; and it is not reasonably practicable in the circumstances for the application to be made to the Supreme Court.

An application under section 5 must – set out – the true name of the person in relation to whom the preventative detention order is sought (the subject); or if, after reasonable inquiries have been made, the subject's true name is not known but an alias is known for the subject, the subject's alias; or if, after reasonable inquiries have been made, the subject's true name is not known and no alias is known for the subject, a description sufficient to identify the subject; and set out the facts and other grounds on which the applicant considers that the preventative detention order should be made; and specify the period for which the applicant is seeking to have the subject detained under the preventative detention order and set out the facts and other grounds on which the applicant considers that the subject should be detained for that period; and set out the information (if any) that the applicant has about the subject's age and capacity to manage his or her affairs; and set out the following:the outcomes and particulars of all previous applications for preventative detention orders in relation to the subject; the information (if any) that the applicant has about – the outcomes and particulars of all previous requests for Commonwealth control orders (including the outcomes of the hearings to confirm the orders) in relation to the subject; and the outcomes and particulars of all previous applications for variations of Commonwealth control orders made in relation to the subject; and the outcomes of all previous applications for revocations of Commonwealth control orders made in relation to the subject; and set out the information (if any) that the applicant has about any periods for which the subject has been detained under an order made under a corresponding preventative detention law.

Subject to subsection (1B), an application under section 5 must be made in writing (other than writing by means of an electronic communication).

If the applicant considers it necessary to do so because of urgent circumstances, an application under section 5 may be made – orally, either in person or by telephone; or by fax, email or other means of electronic communication.

If subsection (1B) applies, the Supreme Court or relevant senior police officer must not make the preventative detention order unless satisfied that, because of urgent circumstances, it was necessary for the applicant to rely on that subsection.

If – a preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and the person is taken into custody under the order; and an application is made for another preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period – the application must also identify the information on which the application is based that became available only after the preventative detention order referred to in paragraph (a) was made.

If – an order for a person’s detention is made under a corresponding preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and the person is taken into custody under that order; and an application is made for a preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period – the application must also identify the information on which the application is based that became available only after the order referred to in paragraph (a) was made.

If the application is made in writing, or by fax, email or other means of electronic communication, it must be sworn by the applicant.

If the application is made orally, the information given by the applicant to the Supreme Court or relevant senior police officer in connection with the application must be verified or given on oath or affirmation unless the Court or officer is satisfied that in the circumstances it is not practical to administer an oath or affirmation to the applicant.

An application to a senior police officer may be made without notice of it being given to the person in relation to whom a preventative detention order is being sought.

An application to the Supreme Court may only be made without notice of it being given to the person in relation to whom a preventative detention order is being sought if that person is not then being detained under – a preventative detention order made by a senior police officer; or an order for the person's detention made under a corresponding preventative detention law.

If a preventative detention order is made pursuant to an application that is made orally, the Supreme Court or relevant senior police officer, as the case requires, must – ensure that there is an audio recording or audio-visual recording of the application; or as soon as practicable after the order is made, make a written record of the application, inclusive of the information given by the applicant in support of the application.

The Supreme Court or the senior police officer may, on an application under section 5, make a preventative detention order in relation to a person if – satisfied that there are reasonable grounds to suspect that – the person – will engage in a terrorist act; or possesses or has under his or her control (whether solely or jointly with any other person) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in preparation for, or in planning, a terrorist act; and making the order would substantially assist in preventing a terrorist act occurring; and detaining the person for the period for which he or she is to be detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii); or satisfied on reasonable grounds that – a terrorist act has occurred within the last 28 days; and it is reasonably necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and detaining the person for the period for which he or she is to be detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii).

A terrorist act referred to in subsection (1)(a) must be one – that is imminent; and that is expected to occur, in any event, at some time in the next 14 days.

The Supreme Court or the senior police officer may refuse to make a preventative detention order unless the authorised police officer applying for it gives the Court or the officer (as the case requires) any further information that it, he or she requests concerning the grounds on which the order is sought.

If the application to the Supreme Court is made without notice of it being given to the person in relation to whom a preventative detention order is being sought, the Supreme Court may, if in its opinion it is desirable to do so, make an interim preventative detention order pending the hearing and final determination of the application.

If the Supreme Court makes an interim preventative detention order, it must – specify a day on which, and time at which, the hearing of the application is to be resumed; and direct the applicant to cause notice of the resumed hearing to be given to – the person in relation to whom the interim order is made; and if the applicant is aware of the identity of a lawyer who acts for that person in relation to any matter, that lawyer.

On a resumed hearing referred to in subsection (5), the person in relation to whom the interim order is made is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions. However, his or her absence does not prevent the Supreme Court from finally determining the application.

An interim preventative detention order that, but for this subsection, would cease to have effect before the application is finally determined, continues to have effect, subject to section 9(2), until the application is finally determined.

On finally determining an application following the making of an interim preventative detention order, the Supreme Court may by order – confirm the order without variation or vary the period specified in the order as the period during which the person in relation to whom it is made may be detained under it; or

revoke the order if not satisfied as mentioned in subsection (1).

If the person in relation to whom the interim preventative detention order is made is being detained in a prison, the applicant for that order must cause a copy of any order made under subsection (8) to be given to the Director of Corrective Services as soon as practicable after it is made.

On the hearing by the Supreme Court of an application under section 5 (including a resumed hearing referred to in subsection (5) of this section) – the person in relation to whom a preventative detention order is being sought (including a person in relation to whom an interim preventative detention order or a preventative detention order made by a senior police officer is in force) is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions; but the absence of that person does not prevent the Supreme Court from determining, or finally determining, the application.

If, on an application by an authorised police officer for the making of a preventative detention order in relation to a person who is being detained under a preventative detention order made or purportedly made by a senior police officer (the "police order"), the Supreme Court is satisfied that the making or purported making of the police order was so unreasonable that no senior police officer acting reasonably could have made that order, the Supreme Court may – declare the police order to be void from its beginning; and determine that the State should compensate the person, as assessed by the Supreme Court, in respect of any loss sustained or damage incurred by the person as a direct and reasonable consequence of his or her detention under the police order.

If the Supreme Court makes a determination under subsection (11)(b), the State is liable to pay the compensation assessed by the Supreme Court and the Public Account is, to the necessary extent, appropriated for this purpose.

A preventative detention order is an order that the person in relation to whom it is made (the subject) may be – taken into custody (unless he or she is already being detained under a preventative detention order, or an order for his or her detention made under a corresponding preventative detention law, that is in force or was in force immediately before the making of the new order); and detained during the period that – starts when the subject is first taken into custody or detained under the order (the "start"); and ends a specified period of time after the start.

The order must be in writing.

Subject to section 9, the period of time specified in the order under subsection (1)(b)(ii) must not exceed 14 days.

A preventative detention order must – set out – the subject's true name; or if, after reasonable inquiries have been made, the subject's true name is not known but an alias is known for the subject, the subject's alias; or if, after reasonable inquiries have been made, the subject's true name is not known and no alias is known for the subject, a description sufficient to identify the subject; and specify the period during which the subject may be detained under the order; and specify the place or places where the subject may be, or must not be, detained under the order; and specify the date on which, and the time at which, the order is made; and specify whether the subject is prohibited from disclosing under section 32(2) the period for which he or she is being detained; and specify whether the subject is allowed to have any further contact with a person under section 32(4) and, if so – the person or persons with whom he or she may have contact; and the period for which he or she may have contact on any day and the number of days on which he or she may have such contact; and whether the subject is prohibited from disclosing the period for which he or she is being detained to a person with whom he or she has contact; and any other conditions applicable to the contact; and set out, if applicable, particulars of the order for the subject's detention made under a corresponding preventative detention law on the ceasing to have effect of which the order is to start to have effect; and specify, if applicable, the date and time after which the subject may not be taken into custody under the order.

If the subject is – under 18 years of age; or incapable of managing his or her affairs – the order may provide that the period each day for which the subject is entitled to have contact with another person under section 36(2) is the period of more than 2 hours that is specified in the order.

The maximum period that may be specified in a preventative detention order made by a senior police officer as the period during which a person may be detained under the order is 24 hours.

Subject to subsection (3), the maximum period (including that period, as extended, or further extended, under section 11) that may be specified in a preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 14 days less any period during which the person is actually detained under – a preventative detention order made by a senior police officer; or an order for the person's detention made under a corresponding preventative detention law – on the same basis.

The maximum period that may be specified in an interim preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 48 hours.

Despite the period of detention specified in a preventative detention order made by a senior police officer, as soon as practicable after the person in relation to whom the order is made is first taken into custody or detained under the order, an application for a preventative detention order in relation to the person must be made to the Supreme Court.

To avoid doubt, for the purposes of subsection (2) orders are made on the same basis if – in the case of orders made on the basis of preventing a terrorist act from occurring, they relate to the same terrorist act occurring within the same period; and in the case of orders made on the basis of preserving evidence of, or relating to, a terrorist act, they relate to the same terrorist act.

A preventative detention order in relation to a person starts to have effect – if the preventative detention order so provides, on an order for the person's detention made under a corresponding preventative detention law ceasing to have effect; or in any other case, when it is made.

A preventative detention order in relation to a person under which the person is required to be taken into custody ceases to have effect at the end of the period of 48 hours after the order is made if the person has not been taken into custody under the order within that period.

If a preventative detention order does not cease to have effect under subsection (2), it ceases to have effect when whichever of the following first occurs:the end of – the period specified in the order as the period during which the person may be detained under the order; or if that period is extended or further extended under section 11, that period as extended or further extended; if the order was made by a senior police officer, a preventative detention order is made by the Supreme Court in relation to the same person; the revocation of the order under section 7, 16 or 17.

If – a preventative detention order is made by the Supreme Court in relation to a person on the final determination of an application under section 5; and the order is in force in relation to the person – an authorised police officer may apply to the Supreme Court for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.

The application must – be made in writing; and set out – the true name of the person in relation to whom the extension is sought; or if, after reasonable inquiries have been made, the true name of the person in relation to whom the extension is sought is not known but an alias is known for the person, the person's alias; or if, after reasonable inquiries have been made, the true name of the person in relation to whom the extension is sought is not known and no alias is known for the person, a description sufficient to identify the person; and set out the facts and other grounds on which the applicant considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.

The application must be sworn by the applicant.

The applicant must cause notice of the application to be given to the person in relation to whom the preventative detention order is in force.

The person in relation to whom the preventative detention order is in force is entitled to appear on the hearing and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions. However, his or her absence does not prevent the Supreme Court from determining the application.

The Supreme Court may, by order, extend or further extend the period for which the order is to be in force in relation to the person if it is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.

The order must be in writing.

The extension, or further extension, must not result in the preventative detention order specifying a period in excess of the maximum period permissible under section 9(2).

If the person in relation to whom the order is in force is being detained in a prison and the Supreme Court makes an order under subsection (6) that extends, or further extends, the period for which the order is to be in force, the applicant must cause a copy of the order under that subsection to be given to the Director of Corrective Services as soon as practicable after it is made.

A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.

If – a person is being detained under a preventative detention order or a purported preventative detention order; and the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 16 years of age – the police officer must release the person or arrange in writing for his or her release, as soon as practicable, from detention under the order or purported order.