Terrorism (Preventative Detention) Act 2005

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.