s 1Short title
This is the Terrorism (Preventative Detention) Act 2006 1.
This is the Terrorism (Preventative Detention) Act 2006 1.
This Act comes into operation on the day on which it receives the Royal Assent.
The object of this Act is to allow a person to be taken into custody and detained for a short period of time in order to —
prevent a terrorist act occurring in the near future; or
preserve evidence of, or relating to, a recent terrorist act.
In this Act, unless the contrary intention appears —
allegation of serious misconduct has the same meaning as in the Corruption, Crime and Misconduct Act 2003;
approved religious or spiritual adviser means a person approved under section 43A(1);
ASIO Act means the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;
Commissioner means the Commissioner of Police appointed under the Police Act 1892 or a person acting in that office;
corresponding law means —
Division 105 of the Criminal Code of the Commonwealth and the regulations and other instruments made under that Division; or
a law of another State or a Territory that provides for preventative detention of persons in relation to terrorist acts (including any law of another State or a Territory that is declared by the regulations to be a corresponding law);
Corruption and Crime Commission means the Corruption and Crime Commission under the Corruption, Crime and Misconduct Act 2003;
detention centre has the meaning given to that term in the Young Offenders Act 1994 section 3;
evidence of, or relating to, a terrorist act includes anything that —
was or may have been used;
is or may be being used; or
is about to be or may be used,
to do a terrorist act or in preparing to do a terrorist act;
identification material, in relation to a person, means —
an identifying particular of the person; or
a recording of the person’s voice or a sample of the person’s handwriting;
identifying particular has the meaning given to that term in the Criminal Investigation (Identifying People) Act 2002 section 17;
Inspector of Custodial Services means the Inspector of Custodial Services under the Inspector of Custodial Services Act 2003;
institution means a prison or a detention centre;
issuing authority means an issuing authority appointed under section 7;
judge means a judge of the Supreme Court;
lock‑up has the same meaning as that term has in the Prisons Act 1981;
national security has the meaning given to that term in section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth;
Parliamentary Commissioner means the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;
permitted detention period has the meaning given to that term in section 13(2)(b)(ii);
photograph includes a digital image and a video recording;
place means any land, building or structure, or a part of any land, building or structure;
preventative detention order means an order made under section 13;
prison has the meaning given to that term in the Prisons Act 1981 section 3(1);
prohibited contact order means an order made under section 17 or 18;
reasonably suspects has the meaning given to that term by section 5;
seizable item means anything that —
would present a danger to a person;
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 Superintendent;
terrorist act has the meaning given to that term in section 6.
A reference in section 13(3)(a) or (5) or 15(4) or (6) to a number of days is a reference to the number of hours in that number of days.
Notes in this Act are provided to assist understanding and do not form part of this Act.
[Section 4 amended: No. 21 of 2008 s. 710; No. 35 of 2014 s. 38(2)‑(4); No. 23 of 2019 s. 4; No. 9 of 2022 s. 424.]
For the purposes of this Act, a person reasonably suspects something at a relevant time if the person personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non existent), when judged objectively, are reasonable.
For the purposes of this Act, an action or threat of action is a terrorist act if —
the action falls within subsection (2) and does not fall within subsection (3);
the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
the action is done or the threat is made with the intention of —
coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
intimidating the public, or a section of the public.
Action falls within this subsection if it —
causes a person’s death;
causes serious physical harm to a person;
endangers a person’s life, other than the life of the person doing the act;
creates a serious risk to the health or safety of the public;
causes serious damage to property; or
seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to —
an information system;
a telecommunications system;
a financial system;
a system used for the delivery of essential government services;
a system used for, or by, an essential public utility;
a system used for, or by, a transport system.
Action falls within this subsection if it —
is advocacy, protest, dissent or industrial action; and
is not intended —
to cause a person’s death;
to cause serious physical harm to a person;
to endanger a person’s life, other than the life of the person doing the act;
to create a serious risk to the health or safety of the public.
In this section —
a reference to any person or property is a reference to any person or property wherever situated, within or outside the State (including within or outside Australia); and
a reference to the public includes a reference to the public of another State or Territory or of a country other than Australia.
Note for this section:
This section is consistent with the definition of “terrorist act” used in Part 5.3 of the Criminal Code of the Commonwealth.
The Governor may, in writing, appoint a judge or retired judge as an issuing authority for preventative detention orders.
A judge or retired judge cannot be appointed as an issuing authority unless —
the judge or retired judge has consented in writing to the appointment; and
the consent is in force.
The period of appointment and, in the case of a retired judge, the terms and conditions of appointment of an issuing authority are as set out in the instrument of appointment.
If —
a number of police officers are detaining, or involved in the detention of, a person under a preventative detention order at a particular time; and
a function (other than a power) is expressed in this Act to be imposed on a police officer detaining the person,
the function is imposed at that time on whichever of those police officers is highest in order of rank and seniority.
For the purposes of this Part a person is a person to whom section 9 applies if —
the person —
is going to engage in a terrorist act;
possesses 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 a preventative detention order in relation to the person would substantially assist in preventing a terrorist act occurring.
A terrorist act referred to in subsection (1) must be one that —
is capable of being carried out; and
could occur at some time in the next 14 days.
For the purposes of this Part a person is also a person to whom section 9 applies if —
a terrorist act has occurred within the last 28 days; and
it is necessary to detain the person under a preventative detention order so as to preserve evidence of, or relating to, the terrorist act.
[Section 9 amended: No. 23 of 2019 s. 5.]
The Commissioner may authorise a police officer to apply for a preventative detention order in relation to a person.
The Commissioner must not authorise a police officer to apply for a preventative detention order in relation to a person unless the Commissioner is satisfied that there are reasonable grounds to believe that —
the person is a person to whom section 9 applies; and
detaining the person for the period for which the person is to be sought to be detained under the order is reasonably necessary for the purpose of —
substantially assisting in preventing a terrorist act occurring; or
preserving any evidence referred to in section 9(3)(b).
An authorisation by the Commissioner must be in writing but, if it is not practicable to issue it in writing because of an urgent need to issue it —
it may be issued orally; and
if it is issued orally, it must be put in writing as soon as practicable after it is issued.
Only a police officer authorised under section 10 may apply for a preventative detention order.
An application for a preventative detention order must be made to an issuing authority.
An application for a preventative detention order must —
set out the facts and other grounds on which the applicant considers that the preventative detention order should be made;
specify the period for which the applicant is seeking to have the person detained under the order and set out the facts and other grounds on which the applicant considers that the person should be detained for that period;
set out the information (if any) that the applicant has about the person’s age or 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 person including information about any periods for which the person has been detained under another preventative detention order;
the information (if any) that the applicant has about the outcomes and particulars of applications under a corresponding law for the person’s detention including any information about periods for which the person has been detained under an order for the person’s detention made under a corresponding law;
the information (if any) that the applicant has about any control order (including any interim control order) made in relation to the person under Division 104 of the Criminal Code of the Commonwealth.
In this section —
remote communication means any way of communicating at a distance including by telephone, fax, email and radio.
A reference in this section to making an application includes a reference to giving information in support of the application.
This section applies to and in respect of an application for a preventative detention order.
The application must be made in person before an issuing authority unless —
a preventative detention order is needed urgently; and
the applicant reasonably suspects that an issuing authority is not available within a reasonable distance of the applicant,
in which case —
it may be made to an issuing authority by remote communication; and
the issuing authority must not make a preventative detention order unless satisfied about the matters in paragraphs (a) and (b).
The application must be made in writing unless —
the application is made by remote communication; and
it is not practicable to send the issuing authority written material,
in which case —
it may be made orally; and
the issuing authority must make a written record of the application and any information given in support of it.
The application must be made on oath unless —
the application is made by remote communication; and
it is not practicable for the issuing authority to administer an oath to the applicant or the issuing authority is not a judge,
in which case —
it may be made in an unsworn form; and
if the issuing authority makes a preventative detention order, the applicant must as soon as practicable send the issuing authority an affidavit verifying the application and any information given in support of it.
If on an application made by remote communication an issuing authority makes a preventative detention order, the issuing authority must, if practicable, send a copy of the original order to the applicant by remote communication, but otherwise —
the issuing authority must give the applicant by remote communication any information that must be set out in the order;
the applicant must complete a form of a preventative detention order with the information received and give the issuing authority a copy of the form as soon as practicable after doing so; and
the issuing authority must attach the copy of the form to the original order and any affidavit received from the applicant and make them available for collection by the applicant.
The copy of the original order sent, or the form of the order completed, as the case may be, under subsection (7) has the same force and effect as the original order.
If, when an application for a preventative detention order is made, the person in relation to whom an order is being sought is in detention under —
another preventative detention order; or
an order for the person’s detention made under a corresponding law,
notice of the application must be given to the person.
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