Preventative detention orders
13E Preventative detention orders
The Supreme Court may, on an application under section 13C, make a preventative detention order in relation to a person if—
satisfied on reasonable grounds 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 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 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).
S. 13E(1A) inserted by No. 72/2011 s. 48(1).
In making an order under this section, the Supreme Court must have regard to any submissions made by the Public Interest Monitor.
S. 13E(1B) inserted by No. 32/2018 s. 66.
The Supreme Court may decide that it is satisfied as required by subsection (1) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a preventative detention order.
S. 13E(2) substituted by No. 32/2018 s. 43.
A terrorist act referred to in subsection (1)(a) must be capable of being carried out, and could occur, within the next 14 days.
S. 13E(2A) inserted by No. 32/2018 s. 13(1).
Without limiting subsection (1), the Supreme Court may make a preventative detention order subject to—
a condition that prohibits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order (a questioning prohibition condition); or
a condition (a questioning limitation condition) that limits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order to specified times in a day or for a specified period, or both.
S. 13E(2B) inserted by No. 32/2018 s. 13(1).
The Supreme Court may make a preventative detention order subject to a questioning prohibition condition or questioning limitation condition if it is satisfied, on reasonable grounds, that in all the circumstances it is appropriate to do so.
S. 13E(2C) inserted by No. 32/2018 s. 13(1).
Without limiting subsection (1), in the case of an application under section 13C in relation to a child, the Supreme Court may make a preventative detention order subject to conditions if it is satisfied, on reasonable grounds, that in all the circumstances it is appropriate to do so.
S. 13E(3) amended by No. 37/2014 s. 10(Sch. item 167.7), substituted by No. 32/2018 s. 13(2).
The Supreme Court may refuse to make a preventative detention order unless—
the authorised police officer applying for it gives the Court any further information that it requests concerning the grounds on which the order is sought; and
in the case of an application under section 13C in relation to a child and in relation to which the Court is considering making the order subject to conditions, the authorised police officer applying for the order satisfies the Court that any such conditions can be met.
S. 13E(4) amended by No. 32/2018 s. 13(3).
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.
Note
The maximum period during which a person may be detained under an interim order is 48 hours or until the final determination of the application, whichever is the later: see subsection (6) and section 13G(2).
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.
S. 13E(5A) inserted by No. 72/2011 s. 48(2).
The applicant must notify a Public Interest Monitor of the resumed hearing in accordance with the regulations under the Public Interest Monitor Act 2011.
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 13G(1), 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 vary the order to include, or omit, a provision of a kind referred to in section 13F(6); or
Note
The period of detention in the confirmed order may be extended, or further extended, under section 13I.
revoke the order if not satisfied as mentioned in subsection (1).
S. 13E(8) amended by Nos 48/2006 s. 42(Sch. item 35.2), 32/2018 s. 79(2), 47/2021 s. 22(10).
If the person in relation to whom the interim preventative detention order is made is being detained in a prison or youth justice facility, the applicant for that order must cause a copy of any order made under subsection (7) to be given to the Secretary as soon as practicable after it is made.
On the hearing by the Supreme Court of an application under section 13C (including a resumed hearing referred to in subsection (5))—
S. 13E(9)(a) amended by No. 32/2018 s. 13(4).
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 is in force or a person detained under Part 2AA) 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 the person who is the subject of an application to the Supreme Court under section 13C is not legally represented on the hearing of the application (including a resumed hearing referred to in subsection (5)), the Supreme Court may order Victoria Legal Aid to provide legal representation for that person on that hearing if satisfied that it is in the interests of justice to do so having regard to the financial circumstances of that person or any other circumstances.
Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (10).
S. 13F inserted by No. 5/2006 s. 4.
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