Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Control orders and preventative detention orders
1 Subsection 100.1(1) of the Criminal Code
Insert:
"AFP member" means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979 ); or
(b) a special member of the Australian Federal Police (within the meaning of that Act).
2 Subsection 100.1(1) of the Criminal Code
Insert:
"confirmed control order" means an order made under section 104.16.
3 Subsection 100.1(1) of the Criminal Code
Insert:
"continued preventative detention order" means an order made under section 105.12.
4 Subsection 100.1(1) of the Criminal Code
Insert:
"control order" means an interim control order or a confirmed control order.
5 Subsection 100.1(1) of the Criminal Code
Insert:
"corresponding State preventative detention law" means a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act.
6 Subsection 100.1(1) of the Criminal Code
Insert:
"frisk search" means:
(a) a search of a person conducted by quickly running the hands over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
7 Subsection 100.1(1) of the Criminal Code
Insert:
"identification material" , in relation to a person, means 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, but does not include tape recordings made for the purposes of section 23U or 23V of the Crimes Act 1914 .
8 Subsection 100.1(1) of the Criminal Code
Insert:
"initial preventative detention order" means an order made under section 105.8.
9 Subsection 100.1(1) of the Criminal Code
Insert:
"interim control order" means an order made under section 104.4, 104.7 or 104.9.
10 Subsection 100.1(1) of the Criminal Code
Insert:
"issuing authority" :
(a) for initial preventative detention orders--means a senior AFP member; and
(b) for continued preventative detention orders--means a person appointed under section 105.2.
11 Subsection 100.1(1) of the Criminal Code
Insert:
"issuing court" means:
(a) the Federal Court of Australia; or
(b) the Family Court of Australia; or
(c) the Federal Magistrates Court.
12 Subsection 100.1(1) of the Criminal Code
Insert:
"Judge" means a Judge of a court created by the Parliament.
13 Subsection 100.1(1) of the Criminal Code
Insert:
"lawyer" means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.
14 Subsection 100.1(1) of the Criminal Code
Insert:
"listed terrorist organisation" means an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.
15 Subsection 100.1(1) of the Criminal Code
Insert:
"ordinary search" means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and
(b) an examination of those items.
16 Subsection 100.1(1) of the Criminal Code
Insert:
"police officer" means:
(a) an AFP member; or
(b) a member (however described) of a police force of a State or Territory.
17 Subsection 100.1(1) of the Criminal Code
Insert:
"prescribed authority" has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 .
18 Subsection 100.1(1) of the Criminal Code
Insert:
"preventative detention order" means an order under section 105.8 or 105.12.
19 Subsection 100.1(1) of the Criminal Code
Insert:
"prohibited contact order" means an order made under section 105.15 or 105.16.
20 Subsection 100.1(1) of the Criminal Code
Insert:
"seizable item" means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful custody; or
(c) could be used to contact another person or to operate a device remotely.
21 Subsection 100.1(1) of the Criminal Code
Insert:
"senior AFP member" means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
22 Subsection 100.1(1) of the Criminal Code
Insert:
"superior court" means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) the Family Court of Australia or of a State; or
(d) the Supreme Court of a State or Territory; or
(e) the District Court (or equivalent) of a State or Territory.
23 Subsection 100.1(1) of the Criminal Code
Insert:
"tracking device" means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
24 After Division 103 of the Criminal Code
Insert:
Division 104 -- Control orders
Subdivision A -- Object of this Division
The object of this Division is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act.
Subdivision B -- Making an interim control order
104.2 Attorney - General's consent to request an interim control order
(1) A senior AFP member must not request an interim control order in relation to a person without the Attorney - General's written consent.
Note: However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the Attorney - General's consent (see Subdivision C).
(2) A senior AFP member may only seek the Attorney - General's written consent to request an interim control order in relation to a person if the member:
(a) considers on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation.
(3) In seeking the Attorney - General's consent, the member must give the Attorney - General a draft request that includes:
(a) a draft of the interim control order to be requested; and
(b) the following:
(i) a statement of the facts relating to why the order should be made;
(ii) if the member is aware of any facts relating to why the order should not be made--a statement of those facts; and
(c) the following:
(i) an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on the person;
(ii) if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person--a statement of those facts; and
(d) the following:
(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;
(ii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;
(iii) the outcomes of all previous applications for revocations of control orders made in relation to the person;
(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and
(e) information (if any) that the member has about the person's age ; and
(f) a summary of the grounds on which the order should be made .
Note 1: An interim control order cannot be requested in relation to a person who is under 16 years of age (see section 104.28).
Note 2: The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2).
(3A) To avoid doubt, paragraph (3)(f) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ) .
(4) The Attorney - General's consent may be made subject to changes being made to the draft request (including the draft of the interim control order to be requested).
(5) To avoid doubt, a senior AFP member may seek the Attorney - General's consent to request an interim control order in relation to a person, even if such a request has previously been made in relation to the person.
104.3 Requesting the court to make an interim control order
If the Attorney - General consents to the request under section 104.2, the senior AFP member may request the interim control order by giving an issuing court :
(a) a request:
(i) that is the same as the draft request, except for the changes (if any) required by the Attorney - General; and
(ii) the information in which is sworn or affirmed by the member; and
(b) a copy of the Attorney - General's consent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
104.4 Making an interim control order
(1) The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, or received training from, a listed terrorist organisation; and
(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
(2) In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).
(3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.
104.5 Terms of an interim control order
(1) If the issuing court makes the interim control order, the order must:
(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and
(d) state that the order does not begin to be in force until it is served personally on the person; and
(e) specify a day on which the person may attend the court for the court to:
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or
(iii) revoke the interim control order; and
(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and
(g) state that the person's lawyer may attend a specified place in order to obtain a copy of the interim control order ; and
(h) set out a summary of the gro unds on which the order is made .
Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12).
Note 2: A confirmed control order that is made in relation to a 16 - to 18 - year - old must not end more than 3 months after the day on which the interim control order is made (see section 104.28).
(1A) The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 72 hours, after the order is made.
(2) Paragraph (1)(f) does not prevent the making of successive control orders in relation to the same person.
(2A) To avoid doubt, paragraph (1)(h) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
Obligations, prohibitions and restrictions
(3) The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:
(a) a prohibition or restriction on the person being at specified areas or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between specified times each day, or on specified days;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or associating with specified individuals;
(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet);
(g) a prohibition or restriction on the person possessing or using specified articles or substances;
(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at specified times and places;
(j) a requirement that the person allow himself or herself to be photographed;
(k) a requirement that the person allow impressions of his or her fingerprints to be taken;
(l) a requirement that the person participate in specified counselling or education.
Note: Restrictions apply to the use of photographs or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see section 104.22).
Communicating and associating
(4) Subsection 102.8(4) applies to paragraph (3)(e) and the person's communication or association in the same way as that subsection applies to section 102.8 and a person's association.
(5) This section does not affect the person's right to contact, communicate or associate with the person's lawyer unless the person's lawyer is a specified individual as mentioned in paragraph (3)(e). If the person's lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified.
Counselling and education
(6) A person is required to participate in specified counselling or education as mentioned in paragraph (3)(l) only if the person agrees, at the time of the counselling or education, to participate in the counselling or education.
Subdivision C -- Making an urgent interim control order
104.6 Requesting an urgent interim control order by electronic means
(1) A senior AFP member may request, by telephone, fax, email or other electronic means, an issuing court to make an interim control order in relation to a person if:
(a) the member considers it necessary to use such means because of urgent circumstances; and
(b) the member either considers or suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
(2) The Attorney - General's consent under section 104.2 is not required before the request is made.
Note: However, if the Attorney - General's consent is not obtained before the member makes the request, the Attorney - General's consent must be obtained within 4 hours of the member making the request (see section 104.10).
(3) The issuing court may require communication by voice to the extent that is practicable in the circumstances.
(4) The request must include the following:
(a) all that is required under subsection 104.2(3) in respect of an ordinary request for an interim control order (including, if the Attorney - General's consent has been obtained before making the request, the changes (if any) required by the Attorney - General);
(b) an explanation as to why the making of the interim control order is urgent;
(c) if the Attorney - General's consent has been obtained before making the request--a copy of the Attorney - General's consent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
(5) The information and the explanation included in the request must be sworn or affirmed by the member, but do not have to be sworn or affirmed before the request is made.
Note: Subsection 104.7(5) requires the information and the explanation to be sworn or affirmed within 24 hours.
104.7 Making an urgent interim control order by electronic means
(1) Before making an order in response to a request under section 104.6, the issuing court must:
(a) consider the information and the explanation included in the request; and
(b) receive and consider such further information (if any) as the court requires.
(2) If the issuing court is satisfied that an order should be made urgently, the court may complete the same form of order that would be made under sections 104.4 and 104.5.
Procedure after urgent interim control order is made
(3) If the issuing court makes the order, the court must inform the senior AFP member, by telephone, fax, email or other electronic means, of:
(a) the terms of the order; and
(b) the day on which, and the time at which, it was completed.
(4) The member must then complete a form of order in terms substantially corresponding to those given by the issuing court, stating on the form:
(a) the name of the court; and
(b) the day on which, and the time at which, the order was completed.
(5) Within 24 hours of being informed under subsection (3), the member must give or transmit the following to the issuing court:
(a) the form of order completed by the member;
(b) if the information and the explanation included in the request were not already sworn or affirmed--that information and explanation duly sworn or affirmed;
(c) if the Attorney - General's consent was not obtained before making the request--a copy of the Attorney - General's consent.
(6) The issuing court must attach to the documents provided under subsection (5) the form of order the court has completed.
104.8 Requesting an urgent interim control order in person
(1) A senior AFP member may request, in person, an issuing court to make an interim control order in relation to a person without first obtaining the Attorney - General's consent under section 104.2 if:
(a) the member considers it necessary to request the order without the consent because of urgent circumstances; and
(b) the member either considers or suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
Note: The Attorney - General's consent must be obtained within 4 hours of making the request (see section 104.10).
(2) The request must include the following:
(a) all that is required under subsection 104.2(3) in respect of an ordinary request for an interim control order (including information that is sworn or affirmed by the member);
(b) an explanation that is sworn or affirmed as to why the making of the interim control order without first obtaining the Attorney - General's consent is urgent.
Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).
104.9 Making an urgent interim control order in person
(1) Before making an order in response to a request under section 104.8, the issuing court must:
(a) consider the information and the explanation included in the request; and
(b) receive and consider such further information (if any) as the court requires.
(2) If the issuing court is satisfied that an order should be made urgently, the court may make the same order that would be made under sections 104.4 and 104.5.
(3) Within 24 hours of the order being made under subsection (2), the member must:
(a) give or transmit a copy of the order to the issuing court; and
(b) either:
(i) give or transmit a copy of the Attorney - General's consent to request the order to the court; or
(ii) notify the court in writing that the Attorney - General's consent was not obtained.
Note: Section 104.10 deals with the Attorney - General's consent.
104.10 Obtaining the Attorney - General's consent within 4 hours
(1) If the Attorney - General's consent to request an interim control order was not first sought before making a request under section 104.6 or 104.8, the senior AFP member who made the request must, in accordance with subsection 104.2(3), seek that consent within 4 hours of making the request.
(2) In any case, if the Attorney - General:
(a) refuses his or her consent to request the order; or
(b) has not given his or her consent to request the order;
within 4 hours of the request being made, the order immediately ceases to be in force.
Note: However, the senior AFP member can vary the request and seek the Attorney - General's consent to request a new interim control order in relation to the person (see subsection 104.2(5)).
(3) If the order ceases to be in force under subsection (2), the senior AFP member must, as soon as practicable:
(a) notify the court that the order has ceased to be in force; and
(b) if the order has been served on the person in relation to whom it was made:
(i) annotate the order to indicate that it has ceased to be in force; and
(ii) cause the annotated order to be served personally on the person.
104.11 Court to assume that exercise of power not authorised by urgent interim control order
If:
(a) it is material, in any proceedings, for a court to be satisfied that an interim control order was duly made under section 104.7; and
(b) the form of order completed by the relevant issuing court is not produced in evidence;
the first - mentioned court is to assume, unless the contrary is proved, that the order was not duly made.
Subdivision D -- Confirming an interim control order
104.12 Service, explanation and notification of an interim control order
Service and explanation of an interim control order
(1) As soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member:
(a) must serve the order personally on the person; and
(b) must inform the person of the following:
(i) the effect of the order;
(ii) the period for which the order (if confirmed) is in force;
(iii) the effect of sections 104.12A, 104.13, 104.14, 104.18 and 104.27 (and section 104.22 if appropriate); and
(c) must ensure that the person understands the information provided under paragraph (b) (taking into account the person's age, language skills, mental capacity and any other relevant factor).
(3) Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been made make it impracticable for the AFP member to comply with those paragraphs.
(4) A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent.
Queensland public interest monitor to be given copy of interim control order
(5) If:
(a) the person in relation to whom the interim control order is made is a resident of Queensland; or
(b) the issuing court that made the interim control order did so in Queensland;
an AFP member must give to the Queensland public interest monitor a copy of the order.
104.12A Election to confirm control order
(1) At least 48 hours before the day specified in an interim control order as mentioned in paragraph 104.5(1)(e), the senior AFP member who requested the order must:
(a) elect whether to confirm the order on the specified day; and
(b) give a written notification to the issuing court that made the order of the member's election.
(2) If the senior AFP member elects to confirm the order, an AFP member must:
(a) serve personally on the person in relation to whom the order is made:
(i) a copy of the notification; and
(ii) a copy of the documents mentioned in paragraphs 104.2(3)(b) and (c); and
(iii) any other details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order; and
(b) if the person is a resident of Queensland, or the court made the order in Queensland--give the Queensland public interest monitor a copy of the documents mentioned in paragraph (a).
(3) To avoid doubt, subsection (2) does not require any information to be served or given if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.
(4) If the senior AFP member elects not to confirm the order, and the order has already been served on the person, then:
(a) the order immediately ceases to be in force; and
(b) an AFP member must:
(i) annotate the order to indicate that it has ceased to be in force; and
(ii) cause the annotated order and a copy of the notification to be served personally on the person; and
(iii) if the person is a resident of Queensland, or the court made the order in Queensland--give the Queensland public interest monitor a copy of the annotated order and the notification.
104.13 Lawyer may request a copy of an interim control order
(1) A lawyer of the person in relation to whom an interim control order is made may attend the place specified in the order as mentioned in paragraph 104.5(1)(g) in order to obtain a copy of the order.
(2) This section does not:
(a) require more than one person to give the lawyer a copy of the order; or
(b) entitle the lawyer to request, be given a copy of, or see, a document other than the order.
104.14 Confirming an interim control order
Who may adduce evidence or make submissions
(1) If an election has been made to confirm an interim control order, then, on the day specified as mentioned in paragraph 104.5(1)(e), the following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the issuing court in relation to the confirmation of the order:
(a) the senior AFP member who requested the interim control order;
(b) one or more other AFP members;
(c) the person in relation to whom the interim control order is made;
(d) one or more representatives of the person;
(e) if:
(i) the person is a resident of Queensland; or
(ii) the court made the interim control order in Queensland;
the Queensland public interest monitor (unless the monitor is already a representative of the person).
(2) Subsection (1) does not otherwise limit the power of the court to control proceedings in relation to the confirmation of an interim control order.
(3) Before taking action under this section, the court must consider:
(a) the original request for the interim control order; and
(b) any evidence adduced, and any submissions made, under subsection (1) in respect of the order.
Failure of person or representative etc. to attend
(4) The court may confirm the order without variation if:
(a) none of the following persons attend the court on the specified day:
(i) the person in relation to whom the order is made;
(ii) a representative of the person;
(iii) if the person is a resident of Queensland, or the court made the order in Queensland--the Queensland public interest monitor; and
(b) the court is satisfied on the balance of probabilities that the order was properly served on the person in relation to whom the order is made .
Attendance of person or representative etc.
(5) The court may take the action mentioned in subsection (6) or (7) if any of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the order in Queensland--the Queensland public interest monitor.
(6) The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order.
(7) Otherwise, the court may:
(a) revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b) confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c) confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).
Note: If the court confirms the interim control order, the court must make a new order under section 104.16.
(1) If the court declares the interim control order to be void under section 104.14, the order is taken never to have been in force.
(2) If the court revokes the interim control order under section 104.14, the order ceases to be in force when the court revokes the order.
(3) If the court confirms the interim control order (with or without variation) under section 104.14 then:
(a) the interim control order ceases to be in force; and
(b) the confirmed control order begins to be in force;
when the court makes a corresponding order under section 104.16.
104.16 Terms of a confirmed control order
(1) If the issuing court confirms the interim control order under section 104.14, the court must make a corresponding order that:
(a) states that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specifies the name of the person to whom the order relates; and
(c) specifies all of the obligations, prohibitions and restrictions mentioned in subsection 104.5(3) that are to be imposed on the person by the order; and
(d) specifies the period during which the order is to be in force, which must not end more than 12 months after the day on which the interim control order was made; and
(e) states that the person's lawyer may attend a specified place in order to obtain a copy of the confirmed control order.
Note: A confirmed control order that is made in relation to a 16 - to 18 - year - old must not end more than 3 months after the day on which the interim control order was made (see section 104.28).
(2) Paragraph (1)(d) does not prevent the making of successive control orders in relation to the same person.
104.17 Service of a declaration, or a revocation, variation or confirmation of a control order
As soon as practicable after an interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must serve the declaration, the revocation or the confirmed control order personally on the person.
Subdivision E -- Rights in respect of a control order
104.18 Application by the person for a revocation or variation of a control order
(1) A person in relation to whom a confirmed control order is made may apply to an issuing court for the court to revoke or vary the order under section 104.20.
(2) The person may make the application at any time after the order is served on the person.
(3) The person must give written notice of both the application and the grounds on which the revocation or variation is sought to the following persons:
(a) the Commissioner of the Australian Federal Police;
(b) if:
(i) the person in relation to whom the order is made is a resident of Queensland; or
(ii) the court will hear the application in Queensland;
the Queensland public interest monitor.
(4) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (3)(b) applies--the Queensland public interest monitor (unless the monitor is a representative of the person).
(5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order.
104.19 Application by the AFP Commissioner for a revocation or variation of a control order
(1) While a confirmed control order is in force, the Commissioner of the Australian Federal Police must cause an application to be made to an issuing court:
(a) to revoke the order, under section 104.20, if the Commissioner is satisfied that the grounds on which the order was confirmed have ceased to exist; and
(b) to vary the order, under that section, by removing one or more obligations, prohibitions or restrictions, if the Commissioner is satisfied that those obligations, prohibitions or restrictions should no longer be imposed on the person.
(2) The Commissioner must cause written notice of both the application and the grounds on which the revocation or variation is sought to be given to the following persons:
(a) the person in relation to whom the order is made;
(b) if:
(i) the person in relation to whom the order is made is a resident of Queensland; or
(ii) the court will hear the application in Queensland;
the Queensland public interest monitor.
(3) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (2)(b) applies--the Queensland public interest monitor (unless the monitor is a representative of the person).
(4) Subsection (3) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order.
104.20 Revocation or variation of a control order
(1) If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may:
(a) revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b) vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c) dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).
(2) A revocation or variation begins to be in force when the court revokes or varies the order.
(3) An AFP member must serve the revocation or variation personally on the person as soon as practicable after a confirmed control order is revoked or varied.
104.21 Lawyer may request a copy of a control order
(1) If a control order is confirmed or varied under section 104.14, 104.20 or 104.24, a lawyer of the person in relation to whom the control order is made may attend the place specified in the order as mentioned in paragraph 104.16(1)(e) or 104.25(d) in order to obtain a copy of the order.
(2) This section does not:
(a) require more than one person to give the lawyer a copy of the order; or
(b) entitle the lawyer to request, be given a copy of, or see, a document other than the order.
104.22 Treatment of photographs and impressions of fingerprints
(1) A photograph, or an impression of fingerprints, taken as mentioned in paragraph 104.5(3)(j) or (k) must only be used for the purpose of ensuring compliance with the relevant control order.
(2) If:
(a) a period of 12 months elapses after the control order ceases to be in force; and
(b) proceedings in respect of the control order ha ve not been brought, or have been brought and discontinued or completed, within that period;
the photograph or the impression must be destroyed as soon as practicable after the end of that period.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes subsection (1).
Penalty: Imprisonment for 2 years.
Subdivision F -- Adding obligations, prohibitions or restrictions to a control order
104.23 Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions
(1) The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24, a confirmed control order, by adding one or more obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to the order, if the Commissioner considers on reasonable grounds that the varied control order in the terms to be sought would substantially assist in preventing a terrorist act.
(2) The Commissioner must cause the court to be given:
(a) a copy of the additional obligations, prohibitions and restrictions to be imposed on the person by the order; and
(b) the following:
(i) an explanation as to why each of those obligations, prohibitions and restrictions should be imposed on the person; and
(ii) if the Commissioner is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person--a statement of those facts; and
(c) the outcomes and particulars of all previous applications under this section for variations of the order; and
(d) information (if any) that the Commissioner has about the person's age.
Note 1: A control order cannot be made in relation to a person who is under 16 years of age (see section 104.28).
Note 2: An offence might be committed if the application is false or misleading (see sections 137.1 and 137.2).
(3) The Commissioner must cause:
(a) written notice of the application and the grounds on which the variation is sought; and
(b) a copy of the documents mentioned in paragraph (2)(b); and
(c) any other details required to enable the person in relation to whom the order is made to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the variation of the order;
to be given to the following persons:
(d) the person in relation to whom the order is made;
(e) if the person is a resident of Queensland, or the court will hear the application in Queensland--the Queensland public interest monitor.
(3A) To avoid doubt, subsection (3) does not require any information to be given if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.
(4) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (3)(b) applies--the Queensland public interest monitor (unless the monitor is a representative of the person).
(5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to vary a confirmed control order.
104.24 Varying a control order
(1) If an application is made under section 104.23, the issuing court may vary the control order, but only if:
(a) an application has been made in accordance with section 104.23; and
(b) the court is satisfied on the balance of probabilities that each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
(2) In determining whether each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).
(3) The court need not include in the order an obligation, prohibition or restriction that was sought if the court is not satisfied as mentioned in paragraph (1)(b) in respect of that obligation, prohibition or restriction.
104.25 Terms of a varied control order
If the issuing court varies the control order under section 104.24, the following must be included in the order:
(a) a statement that the court is satisfied of the matter mentioned in paragraph 104.24(1)(b); and
(b) the additional obligations, prohibitions and restrictions that are to be imposed on the person by the varied order; and
(c) a statement that the variation of the order does not begin to be in force until the varied order is served personally on the person; and
(d) a statement that the person's lawyer may attend a specified place in order to obtain a copy of the varied order.
104.26 Service and explanation of a varied control order
(1) As soon as practicable after a control order is varied under section 104.24, an AFP member:
(a) must serve the varied order personally on the person; and
(b) must inform the person that the order has been varied to impose additional obligations, prohibitions and restrictions; and
(c) must inform the person of the following:
(i) the effect of the additional obligations, prohibitions and restrictions;
(ii) the effect of sections 104.18, 104.21 and 104.27 (and section 104.22 if appropriate); and
(d) must ensure that the person understands the information provided under paragraph (c) (taking into account the person's age, language skills, mental capacity and any other relevant factor).
(3) Paragraphs (1)(c) and (d) do not apply if the actions of the person in relation to whom the interim control order has been made make it impracticable for the AFP member to comply with those paragraphs.
(4) A failure to comply with paragraph (1)(d) does not make the control order ineffective to any extent.
Subdivision G -- Contravening a control order
104.27 Offence for contravening a control order
A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the person contravenes the order.
Penalty: Imprisonment for 5 years.
Subdivision H -- Miscellaneous
104.28 Special rules for young people
Rule for persons under 16
(1) A control order cannot be requested, made or confirmed in relation to a person who is under 16 years of age.
Rule for persons who are at least 16 but under 18
(2) If an issuing court is satisfied that a person in relation to whom an interim control order is being made or confirmed is at least 16 but under 18, the period during which the confirmed control order is to be in force must not end more than 3 months after the day on which the interim control order is made by the court.
(3) Subsection (2) does not prevent the making of successive control orders in relation to the same person.
104.28A Interlocutory proceedings
(1) Proceedings in relation to a request under section 104.3, 104.6 or 104.8 to make an interim control order are taken to be interlocutory proceedings for all purposes (including for the purpose of section 75 of the Evidence Act 1995 ).
(2) The following proceedings are taken not to be interlocutory proceedings for any purpose (including for the purpose of section 75 of the Evidence Act 1995 ):
(a) proceedings in relation to the confirmation under section 104.14 of an interim control order;
(b) proceedings in relation to an application under section 104.18, 104.19 or 104.23 to revoke or vary a confirmed control order.
(1) The Attorney - General must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must include the following matters:
(a) the number of interim control orders made under:
(i) section 104.4; and
(ii) section 104.7; and
(iii) section 104.9;
(aa) the number of interim control orders in respect of which an election was made under section 104.12A not to confirm the order;
(b) the number of control orders confirmed under section 104.14;
(c) the number of control orders declared to be void under section 104.14;
(d) the number of control orders revoked under sections 104.14 and 104.20;
(e) the number of control orders varied under sections 104.14, 104.20 and 104.24;
(f) particulars of any complaints relating to control orders made or referred to:
(i) the Commonwealth Ombudsman; or
(ii) the Internal Investigation Division of the Australian Federal Police.
(3) The Attorney - General must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
104.30 Requirement to notify Attorney - General of declarations, revocations or variations
The Commissioner must cause:
(a) the Attorney - General to be notified in writing if:
(i) a control order is declared to be void under section 104.14; or
(ii) a control order is revoked under section 104.14 or 104.20; or
(iii) a control order is varied under section 104.14, 104.20 or 104.24; and
(b) the Attorney - General to be given a copy of the varied order (if appropriate).
104.31 Queensland public interest monitor functions and powers not affected
This Division does not affect a function or power that the Queensland public interest monitor, or a Queensland deputy public interest monitor, has under a law of Queensland.
(1) A control order that is in force at the end of 10 years after the day on which this Division commences ceases to be in force at that time.
(2) A control order cannot be requested, made or confirmed after the end of 10 years after the day on which this Division commences.
Division 105 -- Preventative detention orders
The object of this Division is to allow a person to be taken into custody and detained for a short period of time in order to:
(a) prevent an imminent terrorist act occurring; or
(b) preserve evidence of, or relating to, a recent terrorist act.
Note: Section 105.42 provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes.
105.2 Issuing authorities for continued preventative detention orders
(1) The Minister may, by writing, appoint as an issuing authority for continued preventative detention orders:
(a) a person who is a judge of a State or Territory Supreme Court; or
(b) a person who is a Judge; or
(c) a person who is a Federal Magistrate; or
(d) a person who:
(i) has served as a judge in one or more superior courts for a period of 5 years; and
(ii) no longer holds a commission as a judge of a superior court; or
(e) a person who:
(i) holds an appointment to the Administrative Appeals Tribunal as President or Deputy President; and
(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and
(iii) has been enrolled for at least 5 years.
(2) The Minister must not appoint a person unless:
(a) the person has, by writing, consented to being appointed; and
(b) the consent is in force.
105.3 Police officer detaining person under a preventative detention order
If:
(a) 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
(b) an obligation is expressed in this Division to be imposed on the police officer detaining the person;
the obligation is imposed at that time on:
(c) if those police officers include only one AFP member--that AFP member; or
(d) if those police officers include 2 or more AFP members--the most senior of those AFP members; or
(e) if those police officers do not include an AFP member--the most senior of those police officers.
Note: See also paragraph 105.27(2)(c).
Subdivision B -- Preventative detention orders
105.4 Basis for applying for, and making, preventative detention orders
(1) An AFP member may apply for a preventative detention order in relation to a person only if the AFP member meets the requirements of subsection (4) or (6).
(2) An issuing authority may make a preventative detention order in relation to a person only if the issuing authority meets the requirements of subsection (4) or (6).
Note: For the definition of issuing authority , see subsection 100.1(1) and section 105.2.
(3) The person in relation to whom the preventative detention order is applied for, or made, is the subject for the purposes of this section.
(4) A person meets the requirements of this subsection if the person is satisfied that:
(a) there are reasonable grounds to suspect that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(iii) has done an act in preparation for, or planning, a terrorist act; and
(b) making the order would substantially assist in preventing a terrorist act occurring; and
(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).
(5) A terrorist act referred to in subsection (4):
(a) must be one that is imminent; and
(b) must be one that is expected to occur, in any event, at some time in the next 14 days.
(6) A person meets the requirements of this subsection if the person is satisfied that:
(a) a terrorist act has occurred within the last 28 days; and
(b) it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and
(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).
(7) An issuing authority may refuse to make a preventative detention order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.
105.5 No preventative detention order in relation to person under 16 years of age
(1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.
Note: See also section 105.39 and subsections 105.43(4) to (9) and (11) for the special rules for people who are under 18 years of age.
(2) If:
(a) a person is being detained under a preventative detention order or a purported preventative detention order; and
(b) 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:
(c) if the police officer is an AFP member--release the person, as soon as practicable, from detention under the order or purported order; or
(d) if the police office r is not an AFP member--inform a senior AFP member, as soon as practicable, of the police officer's reasons for being satisfied that the person is under 16 years of age.
(3) If:
(a) a senior AFP member is informed by a police officer under paragraph (2)(d); and
(b) the senior AFP member is satisfied on reasonable grounds that the person being detained is under 16 years of age;
the senior AFP member must arrange to have the person released, as soon as practicable, from detention under the order or purported order.
105.5A Special assistance for person with inadequate knowledge of English language or disability
If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language:
(a) the police officer has an obligation under subsection 105.31(3) to arrange for the assistance of an interpreter in informing the person about:
(i) the effect of the order or any extension, or further extension, of the order; and
(ii) the person's rights in relation to the order; and
(b) the police officer has an obligation under subsection 105.37(3A) to give the person reasonable assistance to:
(i) choose a lawyer to act for the person in relation to the order; and
(ii) contact the lawyer.
105.6 Restrictions on multiple preventative detention orders
Preventative detention orders under this Division
(1) If:
(a) an initial 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
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.
Note: It will be possible to apply for, and make, another initial preventative detention order in relation to the person on the basis of preserving evidence of, or relating to, the terrorist act if it occurs.
(2) If:
(a) an initial 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
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.
(3) If:
(a) an initial preventative detention order is made in relation to a person on the basis of preserving evidence of, or relating to, a terrorist act; and
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.
Detention orders under corresponding State preventative detention laws
(4) If:
(a) an order for a person's detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.
(5) If:
(a) an order for a person's detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.
(6) If:
(a) an order for a person's detention is made under a corresponding State preventative detention law on the basis of preserving evidence of, or relating to, a terrorist act; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.
105.7 Application for initial preventative detention order
(1) An AFP member may apply to an issuing authority for an initial preventative detention order in relation to a person.
Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member , see subsection 100.1(1).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the person is to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should be detained for that period; and
(d) set out the information (if any) that the applicant has about the person's age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;
(iii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;
(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person; and
(f) set out the information (if any) that the applicant has about any periods for which the person has been detained under an order made under a corresponding S tate preventative detention law; and
(g) set out a summary of the grounds on which the AFP member considers that the order should be made.
Note: Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.
(2A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
(3) If:
(a) an initial 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
(b) the person is taken into custody under the order; and
(c) an application is made for another initial 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 to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.
Note: See subsection 105.6(2).
(4) If:
(a) an order for a person's detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order; and
(c) an application is made for an initial 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 to be put before an issuing authority only after the order referred to in paragraph (a) was made.
Note: See subsection 105.6(5).
105.8 Senior AFP member may make initial preventative detention order
(1) On application by an AFP member, an issuing authority may make an initial preventative detention order under this section in relation to a person.
Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member , see subsection 100.1(1).
(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6.
(3) An initial preventative detention order under this section is an order that the person specified in the order may be:
(a) taken into custody; and
(b) detained during the period that:
(i) starts when the person is first taken into custody under the order; and
(ii) ends a specified period of time after the person is first taken into custody under the order.
(4) The order must be in writing.
(5) The period of time specified in the order under subparagraph (3)(b)(ii) must not exceed 24 hours.
(6) An initial preventative detention order under this section must set out:
(a) the name of the person in relation to whom it is made; and
(b) the period during which the person may be detained under the order; and
(c) the date on which, and the time at which, the order is made; and
(d) the date and time after which the person may not be taken in to custody under the order; and
(e) a summary of the grounds on which the order is made.
Note: Paragraph (d)--see subsection 105.9(2).
(6A) To avoid doubt, paragraph (6)(e) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.39(2) is the period of more than 2 hours that is specified in the order.
(8) The senior AFP member nominated under subsection 105.19(5) in relation to the initial preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a copy of the order; and
(c) if the person in relation to whom the order is made is taken into custody under the order--notify the Commonwealth Ombudsman in writing that the person has been taken into custody under the order.
105.9 Duration of initial preventative detention order
(1) An initial preventative detention order in relation to a person starts to have effect when it is made.
Note: The order comes into force when it is made and authorises the person to be taken into custody (see paragraph 105.8(3)(a)). The period for which the person may then be detained under the order only starts to run when the person is first taken into custody under the order (see subparagraph 105.8(3)(b)(i)).
(2) An initial preventative detention order in relation to a person 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.
(3) If the person is taken into custody under the order within 48 hours after the order is made, the order ceases to have effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified in the order as the period during which the person may be detained under the order; or
(ii) if that period is extended or further extended under section 105.10--that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note 1: The order does not cease to have effect merely because the person is released from detention under the order.
Note 2: An AFP member may apply under section 105.11 for a continued preventative detention order in relation to the person to allow the person to continue to be detained for up to 48 hours after the person is first taken into custody under the initial preventative detention order.
105.10 Extension of initial preventative detention order
(1) If:
(a) an initial preventative detention order is made in relation to a person; and
(b) the order is in force in relation to the person;
an AFP member may apply to an issuing authority for initial preventative detention orders for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.
Note: Paragraph (b)--see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.
(3) The issuing authority may extend, or further extend, the period for which the order is to be in force in relation to the person if the issuing authority 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.
(4) The extension, or further extension, must be made in writing.
(5) The period as extended, or further extended, must end no later than 24 hours after the person is first taken into custody under the order.
105.10A Notice of application for continued preventative detention order
An AFP member who proposes to apply for a continued preventative detention order in relation to a person under section 105.11 must, before applying for the order:
(a) notify the person of the proposed application; and
(b) inform the person that, when the proposed application is made, any material that the person gives the AFP member in relation to the proposed application will be put before the issuing authority for continued preventative detention orders to whom the application is made.
Note: The AFP member who applies for the order must put the material before the issuing authority--see subsection 105.11(5).
105.11 Application for continued preventative detention order
(1) If an initial preventative detention order is in force in relation to a person in relation to a terrorist act, an AFP member may apply to an issuing authority in relation to continued preventative detention orders for a continued preventative detention order in relation to the person in relation to the terrorist act.
Note: Certain judges, Federal Magistrates, AAT members and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the person is to continue to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should continue to be detained for that period; and
(d) set out the information (if any) that the applicant has about the person's age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;
(iii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;
(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person; and
(f) set out the information (if any) that the applicant has about any periods for which the person has been detained under an order made under a corresponding S tate preventative detention law; and
(g) set out a summary of the grounds on which the AFP member considers that the order should be made.
Note: Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.
(3) Subparagraph (2)(e)(i) does not require the application to set out details in relation to the application that was made for the initial preventative detention order in relation to which the continued preventative detention order is sought.
(3A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
(4) The information in the application must be sworn or affirmed by the AFP member.
(5) The AFP member applying for the continued preventative detention order in relation to the person must put before the issuing authority to whom the application is made any material in relation to the application that the person has given the AFP member.
(1) On application by an AFP member, an issuing authority may make a continued preventative detention order under this section in relation to a person if:
(a) an initial preventative detention order is in force in relation to the person; and
(b) the person has been taken into custody under the order (whether or not the person is being detained under the order).
Note: Certain judges, Federal Magistrates, AAT members and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2).
(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6. Section 105.4 requires the issuing authority to consider afresh the merits of making the order and to be satisfied, after taking into account relevant information (including any information that has become available since the initial preventative detention order was made), of the matters referred to in subsection 105.4(4) or (6) before making the order.
(3) A continued preventative detention order under this section is an order that the person specified in the order may be detained during a further period that:
(a) starts at the end of the period during which the person may be detained under the initial preventative detention order; and
(b) ends a specified period of time after the person is first taken into custody under the initial preventative detention order.
(4) The order must be in writing.
(5) The period of time specified under paragraph (3)(b) must not exceed 48 hours.
(6) A continued preventative detention order under this section must set out:
(a) the name of the person in relation to whom it is made; and
(b) the further period during which the person may be detained under the order; and
(c) the date on which, and the t ime at which, the order is made; and
(d) a summary of the grounds on which the order is made.
(6A) To avoid doubt, paragraph (6)(d) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.39(2) is the period of more than 2 hours that is specified in the order.
(8) The senior AFP member nominated under subsection 105.19(5) in relation to the continued preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a copy of the order.
105.13 Duration of continued preventative detention order
(1) A continued preventative detention order in relation to a person starts to have effect when it is made.
Note: The order comes into force when it is made. The period for which the person may be detained under the order, however, only starts to run when the period during which the person may be detained under the initial preventative detention order ends (see paragraph 105.12(3)(a)).
(2) A continued preventative detention order in relation to a person ceases to have effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified in the order as the further period during which the person may be detained; or
(ii) if that period is extended or further extended under section 105.14--that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note: The order does not cease to have effect merely because the person is released from detention under the order.
105.14 Extension of continued preventative detention order
(1) If:
(a) an initial preventative detention order is made in relation to a person; and
(b) a continued preventative detention order is made in relation to the person in relation to that initial preventative detention order; and
(c) the continued preventative detention order is in force in relation to the person;
an AFP member may apply to an issuing authority for continued preventative detention orders for an extension, or a further extension, of the period for which the continued preventative detention order is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the continued preventative detention order.
Note: Paragraph (b)--see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.
(3) The information in the application must be sworn or affirmed by the AFP member.
(4) The issuing authority may extend, or further extend, the period for which the continued preventative detention order is to be in force in relation to the person if the issuing authority 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.
(5) The extension, or further extension, must be made in writing.
(6) The period as extended, or further extended, must end no later than 48 hours after the person is first taken into custody under the initial preventative detention order.
105.14A Basis for applying for, and making, prohibited contact order
(1) An AFP member may apply for a prohibited contact order in relation to a person only if the AFP member meets the requirements of subsection (4).
(2) An issuing authority for initial preventative detention orders, or continued preventative detention orders, may make a prohibited contact order in relation to a person's detention under a preventative detention order only if the issuing authority meets the requirements of subsection (4).
(3) The person in relation to whose detention the prohibited contact order is applied for, or made, is the subject for the purposes of this section.
(4) A person meets the requirements of this subsection if the person is satisfied that making the prohibited contact order is reasonably necessary:
(a) to avoid a risk to action being taken to prevent a terrorist act occurring; or
(b) to prevent serious harm to a person; or
(c) to preserve evidence of, or relating to, a terrorist act; or
(d) to prevent interference with the gathering of information about:
(i) a terrorist act; or
(ii) the preparation for, or the planning of, a terrorist act; or
(e) to avoid a risk to:
(i) the arrest of a person who is suspected of having committed an offence against this Part; or
(ii) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or
(iii) the service on a person of a control order.
(5) An issuing authority may refuse to make a prohibited contact order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.
(1) An AFP member who applies to an issuing authority for a preventative detention order in relation to a person (the subject ) may also apply for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on which the AFP member considers that the order should be made.
(3) If a continued preventative detention order is being applied for, the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.
(4) If the issuing authority makes the preventative detention order, the issuing authority may make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact the person specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on which the order may be made.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the prohibited contact order.
(1) If a preventative detention order is in force in relation to a person (the subject ), an AFP member may apply to an issuing authority for preventative detention orders of that kind for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on which the AFP member considers that the order should be made.
(3) If the preventative detention order is a continued preventative detention order, the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.
(4) The issuing authority may make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact the person specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on which the order may be made.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the prohibited contact order.
105.17 Revocation of preventative detention order or prohibited contact order
Preventative detention order
(1) If:
(a) a preventative detention order is in force in relation to a person; and
(b) the police officer who is detaining the person under the order is satisfied that the grounds on which the order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP member--apply to an issuing authority for preventative detention orders of that kind for the revocation of the order; or
(d) if the police office r is not an AFP member--inform a senior AFP member of the police officer's reasons for being satisfied that the grounds on which the order was made have ceased to exist.
(2) If:
(a) a senior AFP member is informed by a police officer under paragraph (1)(d); and
(b) the senior AFP member is satisfied that the grounds on which the preventative detention order was made have ceased to exist;
the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the order.
(3) If:
(a) a preventative detention order is in force in relation to a person; and
(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the order was made have ceased to exist;
the issuing authority must revoke the order.
Prohibited contact order
(4) If:
(a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and
(b) the police officer who is detaining the person under the preventative detention order is satisfied that the grounds on which the prohibited contact order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP member--apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order; or
(d) if the police office r is not an AFP member--inform a senior AFP member of the police officer's reasons for being satisfied that the grounds on which the prohibited contact order was made have ceased to exist.
(5) If:
(a) a senior AFP member is informed by a police officer under paragraph (4)(d); and
(b) the senior AFP member is satisfied that the grounds on which the prohibited contact order was made in relation to the person's detention under the preventative detention order have ceased to exist;
the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order.
(6) If:
(a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and
(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the prohibited contact order was made have ceased to exist;
the issuing authority must revoke the prohibited contact order.
Detainee's right to make representations about revocation of preventative detention order
(7) A person being detained under a preventative detention order may make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked.
105.18 Status of person making continued preventative detention order
(1) An issuing authority who makes:
(a) a continued preventative detention order; or
(b) a prohibited contact order in relation to a person's detention under a continued preventative detention order;
has, in the performance of his or her duties under this Subdivision, the same protection and immunity as a Justice of the High Court.
(2) A function of:
(a) making or revoking a continued preventative detention order; or
(b) extending, or further extending, the period for which a continued preventative detention order is to be in force; or
(c) making or revoking a prohibited contact order in relation to a person's detention under a continued preventative detention order;
that is conferred on a judge, a Federal Magistrate or a member of the Administrative Appeals Tribunal is conferred on the judge, Federal Magistrate or member of the Administrative Appeals Tribunal in a personal capacity and not as a court or a member of a court.
Subdivision C -- Carrying out preventative detention orders
105.19 Power to detain person under preventative detention order
General powers given by preventative detention order
(1) While a preventative detention order is in force in relation to a person:
(a) any police officer may take the person into custody; and
(b) any police officer may detain the person.
(2) A police officer, in taking a person into custody under and in detaining a person under a preventative detention order, has the same powers and obligations as the police officer would have if the police officer were arresting the person, or detaining the person, for an offence.
(3) In subsection (2):
"offence" means:
(a) if the police officer is an AFP member--an offence against a law of the Commonwealth; or
(b) if the police officer is not an AFP member--an offence against a law of the State or Territory of whose police force the police officer is a member.
(4) Subsection (2) does not apply to the extent to which particular powers, and the obligations associated with those powers, are provided for in this Subdivision or Subdivision D or E.
Nominated senior AFP member
(5) If a preventative detention order is made in relation to person, the Commissioner of the Australian Federal Police must nominate a senior AFP member (the nominated senior AFP member ) to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.
(6) The nominated senior AFP member must be someone who was not involved in the making of the application for the preventative detention order.
(7) The nominated senior AFP member must:
(a) oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and
(b) without limiting paragraph (a), ensure that the provisions of section 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) are complied with in relation to the preventative detention order; and
(c) receive and consider any representations that are made under subsection (8).
(8) The following persons:
(a) the person being detained under the preventative detention order;
(b) a lawyer acting for that person in relation to the preventative detention order;
(c) a person with whom that person has contact under subsection 105.39(2);
are entitled to make representations to the nominated senior AFP member in relation to:
(d) the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and
(e) without limiting paragraph (a), compliance with the provisions of section 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) in relation to the preventative detention order; and
(f) the person's treatment in connection with the person's detention under the preventative detention order.
(9) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner's powers under subsection (5).
105.20 Endorsement of order with date and time person taken into custody
As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must endorse on the order the date on which, and time at which, the person is first taken into custody under the order.
105.21 Requirement to provide name etc.
(1) If a police officer believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the police officer may be able to assist the police officer in executing a preventative detention order, the police officer may request the person to provide his or her name or address, or name and address, to the police officer.
(2) If a police officer:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) if the police officer is not in uniform--shows the person evidence that the police officer is a police officer; and
(d) complies with subsection (4) if the person makes a request under that subsection;
the person must not:
(e) refuse or fail to comply with the request; or
(f) give a name or address that is false in a material particular.
Penalty: 20 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3)).
(4) If a police officer who makes a request of a person under subsection (1) is requested by the person to provide to the person any of the following:
(a) his or her name;
(b) the address of his or her place of duty;
(c) his or her identification number if he or she has an identification number;
(d) his or her rank if he or she does not have an identification number;
the police officer must not:
(e) refuse or fail to comply with the request; or
(f) give a name, address, number or rank that is false in a material particular.
Penalty: 5 penalty units.
105.22 Power to enter premises
(1) Subject to subsection (2), if:
(a) a preventative detention order is in force in relation to a person; and
(b) a police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.
(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:
(a) it would not be practicable to take the person into custody, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.
(3) In subsection (2):
"dwelling house" includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
105.23 Power to conduct a frisk search
A police officer who takes a person into custody under a preventative detention order, or who is present when the person is taken into custody, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at, or soon after, the time when the person is taken into custody; and
(b) seize any seizable items found as a result of the search.
105.24 Power to conduct an ordinary search
A police officer who takes a person into custody under a preventative detention order, or who is present when the person is taken into custody, may, if the police officer suspects on reasonable grounds that the person is carrying:
(a) evidence of, or relating to, a terrorist act; or
(b) a seizable item;
conduct an ordinary search of the person at, or soon after, the time when the person is taken into custody, and seize any such thing found as a result of the search.
105.25 Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979
(1) This section applies if:
(a) a person is being detained under a preventative detention order; and
(b) a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 is in force in relation to the person; and
(c) a copy of the warrant is given to the police officer who is detaining the person under the preventative detention order.
(2) The police officer must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.
(3) Without limiting subsection (2), the police officer may, under section 105.26, release the person from detention under the preventative detention order so that the person may be dealt with in accordance with the warrant.
Note: If the police officer is not an AFP member, the police officer will need to obtain the approval of a senior AFP member before releasing the person from detention (see subsection 105.26(2)).
(4) To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be:
(a) questioned before a prescribed authority under the warrant; or
(b) detained under the warrant in connection with that questioning;
does not extend the period for which the preventative detention order remains in force in relation to the person.
Note: See paragraph 105.26(7)(a).
105.26 Release of person from preventative detention
(1) The police officer who is detaining a person under a preventative detention order may release the person from detention under the order.
Note: A person may be released, for example, so that the person may be arrested and otherwise dealt with under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914 .
(2) If the police officer detaining the person under the order is not an AFP member:
(a) the police officer must not release the person from detention without the approval of a senior AFP member; and
(b) the senior AFP member must approve the person's release if the person is being released so that the person may be dealt with in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 .
(3) The police officer who releases the person from detention under the preventative detention order must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.
(4) Subsection (3) does not apply if the police officer releases the person from detention so that the person may be dealt with:
(a) in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 ; or
(b) under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914 .
(5) To avoid doubt, a person may be taken to have been released from detention under a preventative detention order even if:
(a) the person is informed that he or she is being released from detention under the order; and
(b) the person is taken into custody on some other basis immediately after the person is informed that he or she is being released from detention under the order.
(6) To avoid doubt, a person is taken not to be detained under a preventative detention order during a period during which the person is released from detention under the order.
Note: During this period, the provisions of this Division that apply to a person who is being detained under a preventative detention order (for example, section 105.34 which deals with the people the person may contact) do not apply to the person.
(7) To avoid doubt:
(a) the release of the person under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order remains in force; and
(b) a person released under subsection (1) from detention under a preventative detention order may again be taken into custody and detained under the order at any time while the order remains in force in relation to the person.
Note: Paragraph (a)--this means that the time for which the person may be detained under the order continues to run while the person is released.
105.27 Arrangement for detainee to be held in State or Territory prison or remand centre
(1) A senior AFP member may arrange for a person (the subject ) who is being detained under a preventative detention order to be detained under the order at a prison or remand centre of a State or Territory.
(2) If an arrangement is made under subsection (1):
(a) the preventative detention order is taken to authorise the person in charge of the prison or remand centre to detain the subject at the prison or remand centre while the order is in force in relation to the subject; and
(b) section 105.33 applies in relation to the subject's detention under the order at the prison or remand centre as if:
(i) the person in charge of that prison or remand centre; or
(ii) any other person involved in the subject's detention at that prison or remand centre;
were a person exercising authority under the order or implementing or enforcing the order; and
(c) the senior AFP member who makes the arrangement is taken, while the subject is detained at the prison or remand centre, to be the AFP member detaining the subject for the purposes of Subdivisions D and E of this Division.
(3) The arrangement under subsection (1) may include provision for the Commonwealth meeting the expenses of the subject's detention at the prison or remand centre.
Subdivision D -- Informing person detained about preventative detention order
105.28 Effect of initial preventative detention order to be explained to person detained
(1) As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2).
Note 1: A contravention of this subsection may be an offence under section 105.45.
Note 2: A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see subsection 105.31(5)).
(2) The matters covered by this subsection are:
(a) the fact that the preventative detention order has been made in relation to the person; and
(b) the period during which the person may be detained under the order; and
(c) the restrictions that apply to the people the person may contact while the person is being detained under the order; and
(d) the fact that an application may be made under section 105.11 for an order that the person continue to be detained for a further period; and
(da) the person's entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and
(e) any right the person has to complain to the Commonwealth Ombudsman under Part III of the Complaints (Australian Federal Police) Act 1981 in relation to :
(i) the application for, or the making of, the preventative detention order; or
(ii) the treatment of the person by an AFP member in connection with the person's detention under the order; and
(f) any right the person has to complain to an officer or authority of a State or Territory in relation to the treatment of the person by a member of the police force of that State or Territory in connection with the person's detention under the order; and
(g) the fact that the person may seek from a federal court a remedy relating to:
(i) the order; or
(ii) the treatment of the person in connection with the person's detention under the order; and
(h) the person's entitlement under section 105.37 to contact a lawyer; and
(i) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the order.
Note: Paragraph (g)--see section 105.51.
(2A) Without limiting paragraph (2)(c), the police officer detaining the person under the order must inform the person under that paragraph about the persons that he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:
(a) the fact that a prohibited contact order has been made in relation to the person's detention; or
(b) the name of a person specified in a prohibited contact order that has been made in relation to the person's detention.
105.29 Effect of continued preventative detention order to be explained to person detained
(1) As soon as practicable after a continued preventative detention order (the continued order ) is made in relation to a person, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).
Note 1: A contravention of this subsection may be an offence under section 105.45.
Note 2: A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see subsection 105.31(5)).
(2) The matters covered by this subsection are:
(a) the fact that the continued order has been made in relation to the person; and
(b) the further period during which the person may continue to be detained under the continued order; and
(c) the restrictions that apply to the people the person may contact while the person is being detained under the continued order; and
(ca) the person's entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and
(d) any right the person has to complain to the Commonwealth Ombudsman under Part III of the Complaints (Australian Federal Police) Act 1981 in relation to :
(i) the application for the continued order; or
(ii) the treatment of the person by an AFP member in connection with the person's detention under the continued order; and
(e) any right the person has to complain to an officer or authority of a State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person's detention under the continued order; and
(f) the fact that the person may seek from a federal court a remedy relating to:
(i) the continued order; or
(ii) the treatment of the person in connection with the person's detention under the continued order; and
(g) the person's entitlement under section 105.37 to contact a lawyer; and
(h) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the continued order.
Note: Paragraph (f)--see section 105.51.
(2A) Without limiting paragraph (2)(c), the police officer detaining the person under the order must inform the person under that paragraph about the persons that he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:
(a) the fact that a prohibited contact order has been made in relation to the person's detention; or
(b) the name of a person specified in a prohibited contact order that has been made in relation to the person's detention.
105.30 Person being detained to be informed of extension of preventative detention order
If a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer detaining the person under the order must inform the person of the extension, or further extension, as soon as practicable after the extension, or further extension, is made.
Note 1: A contravention of this subsection may be an offence under section 105.45.
Note 2: A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see subsection 105.31(5)).
105.31 Compliance with obligations to inform
(1) Subsection 105.28(1) or 105.29(1) or section 105.30 does not apply if the actions of the person being detained under the preventative detention order make it impracticable for the police officer to comply with that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) The police officer detaining the person under the preventative detention order complies with subsection 105.28(1) or 105.29(1) if the police officer informs the person in substance of the matters covered by subsection 105.28(2) or 105.29(2) (even if this is not done in language of a precise or technical nature).
(3) The police officer who is detaining the person under the preventative detention order must arrange for the assistance of an interpreter in complying with subsection 105.28(1) or 105.29(1) or section 105.30 if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.
(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.
(5) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with subsection 105.28(1) or 105.29(1), section 105.30 or subsection (3) of this section.
105.32 Copy of preventative detention order
(1) As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must give the person a copy of the order.
(3) Despite subsection 105.19(2), a police officer does not need to have a copy of the order with him or her, or to produce a copy of the order to the person being taken into custody, when the police officer takes the person into custody.
(4) As soon as practicable after a continued preventative detention order is made in relation to a person in relation to whom an initial preventative detention order is in force, the police officer who is detaining the person under the initial preventative detention order, or the continued preventative detention order, must give the person a copy of the continued preventative detention order.
(5) As soon as practicable after a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer who is detaining the person under the preventative detention order must give the person a copy of the extension or further extension.
(6) A person who is being detained under a preventative detention order may request a police officer who is detaining the person to arrange for a copy of:
(a) the order; or
(c) any extension or further extension of the order under section 105.10 or 105.14;
to be given to a lawyer acting for the person in relation to the order.
Note 1: Section 105.37 deals with the person's right to contact a lawyer and the obligation of the police officer detaining the person to give the person assistance to choose a lawyer.
Note 2: Section 105.40 prevents the person from contacting a lawyer who is specified in a prohibited contact order.
(7) The police officer must make arrangements for a copy of the order , or the extension or further extension, to be given to the lawyer as soon as practicable after the request is made.
(8) Without limiting subsec tion (7), the copy of the order , or the extension, may be faxed or emailed to the lawyer.
(9) To avoid doubt, subsection (7) does not entitle the lawyer to be given a copy of, or see, a document other than the order , or the extension or further extension.
(10) Nothing in this section requires a copy of a prohibited contact order to be given to a person.
(11) The police officer who gives:
(a) the person being detained under an initial preventative detention order; or
(b) a lawyer acting for the person;
a copy of the initial preventative detention order under this section must endorse on the copy the date on which, and time at which, the person was first taken into custody under the order.
(12) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with subsection (1), (4), (5), (7) or (11).
Subdivision E -- Treatment of person detained
105.33 Humane treatment of person being detained
A person being taken into custody, or being detained, under a preventative detention order:
(a) must be treated with humanity and with respect for human dignity; and
(b) must not be subjected to cruel, inhuman or degrading treatment;
by anyone exercising authority under the order or implementing or enforcing the order.
Note: A contravention of this section may be an offence under section 105.45.
105.33A Detention of persons under 18
(1) Subject to subsection (2), the police officer detaining a person who is under 18 years of age under a preventative detention order must ensure that the person is not detained together with persons who are 18 years of age or older.
Note: A contravention of this subsection may be an offence under section 105.45.
(2) Subsection (1) does not apply if a senior AFP member approves the person being detained together with persons who are 18 years of age or older.
(3) The senior AFP member may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.
(4) An approval under subsection (2) must:
(a) be given in writing; and
(b) set out the exceptional circumstances that justify the giving of the approval.
105.34 Restriction on contact with other people
Except as provided by sections 105.35, 105.36, 105.37 and 105.39, while a person is being detained under a preventative detention order, the person:
(a) is not entitled to contact another person; and
(b) may be prevented from contacting another person.
Note 1: This section will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A person's entitlement to contact other people under sections 105.35, 105.37 and 105.39 may be subject to a prohibited contact order made under section 105.15 or 105.16 (see section 105.40).
105.35 Contacting family members etc.
(1) The person being detained is entitled to contact:
(a) one of his or her family members; and
(b) if he or she:
(i) lives with another person and that other person is not a family member of the person being detained; or
(ii) lives with other people and those other people are not family members of the person being detained;
that other person or one of those other people; and
(c) if he or she is employed--his or her employer; and
(d) if he or she employs people in a business--one of the people he or she employs in that business; and
(e) if he or she engages in a business together with another person or other people--that other person or one of those other people; and
(f) if the police officer detaining the person being detained agrees to the person contacting another person--that person;
by telephone, fax or email but solely for the purposes of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being.
(2) To avoid doubt, the person being detained is not entitled, under subsection (1), to disclose:
(a) the fact that a preventative detention order has been made in relation to the person; or
(b) the fact that the person is being detained; or
(c) the period for which the person is being detained.
(3) In this section:
"family member" of a person means:
(a) the person's spouse, de facto spouse or same - sex partner; or
(b) a parent, step - parent or grandparent of the person; or
(c) a child, step - child or grandchild of the person; or
(d) a brother, sister, step - brother or step - sister of the person; or
(e) a guardian or carer of the person.
105.36 Contacting Ombudsman etc.
(1) The person being detained is entitled to contact the Commonwealth Ombudsman in accordance with the Complaints (Australian Federal Police) Act 1981 .
Note: Section 22 of the Complaints (Australian Federal Police) Act 1981 provides for the manner in which a person who is in custody may make a complaint to the Commonwealth Ombudsman under that Act.
(2) If the person being detained has the right, under a law of a State or Territory, to complain to an officer or authority of the State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person's detention under the order, the person is entitled to contact that officer or authority to make a complaint in accordance with that law.
(1) The person being detained is entitled to contact a lawyer but solely for the purpose of:
(a) obtaining advice from the lawyer about the person's legal rights in relation to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person's detention under the order; or
(b) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, proceedings in a federal court for a remedy relating to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person's detention under the order; or
(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act 1981 in relation to:
(i) the application for, or the making of, the preventative detention order; or
(ii) the treatment of the person by an AFP member in connection with the person's detention under the order; or
(d) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to an officer or authority of a State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person's detention under the order; or
(e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court that is to take place while the person is being detained under the order.
(2) The form of contact that the person being detained is entitled to have with a lawyer under subsection (1) includes:
(a) being visited by the lawyer; and
(b) communicating with the lawyer by telephone, fax or email.
(3) If:
(a) the person being detained asks to be allowed to contact a particular lawyer under subsection (1); and
(b) either:
(i) the person is not entitled to contact that lawyer because of section 105.40 (prohibited contact order); or
(ii) the person is not able to contact that lawyer;
the police officer who is detaining the person must give the person reasonable assistance to choose another lawyer for the person to contact under subsection (1).
(3A) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that:
(a) the person is unable, because of inadequate knowledge of the English language, or a disability, to communicate with reasonable fluency in that language; and
(b) the person may have difficulties in choosing or contacting a lawyer because of that inability;
the police officer must give the person reasonable assistance (including, if appropriate, by arranging for the assistance of an interpreter) to choose and contact a lawyer under subsection (1).
(4) In recommending lawyers to the person being detained as part of giving the person assistance under subsection (3) or (3A) , the police officer who is detaining the person may give priority to lawyers who have been given a security clearance at an appropriate level by the Department.
(5) Despite subsection (4) but subject to section 105.40, the person being detained is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (4).
105.38 Monitoring contact under section 105.35 or 105.37
(1) The contact the person being detained has with another person under section 105.35 or 105.37 may take place only if it is conducted in such a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under the preventative detention order.
(2) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter.
(3) Without limiting subsection (2), the interpreter referred to in that subsection may be a police officer.
(4) If the person being detained indicates that he or she wishes the contact to take place in a language other than English, the police officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and
(b) if it is reasonably practicable to do so--arrange for those services to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained under a preventative detention order; and
(b) a lawyer;
for a purpose referred to in paragraph 105.37(1)(a), (b), (c), (d) or (e) is not admissible in evidence against the person in any proceedings in a court.
105.39 Special contact rules for person under 18 or incapable of managing own affairs
(1) This section applies if the person being detained under a preventative detention order:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs.
(2) The person is entitled, while being detained under the order, to have contact with:
(a) a parent or guardian of the person; or
(b) another person who:
(i) is able to represent the person's interests; and
(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and
(iii) is not an AFP member; and
(iv) is not an AFP employee (within the meaning of the Australian Federal Police Act 1979 ); and
(v) is not a member (however described) of a police force of a State or Territory; and
(vi) is not an officer or employee of the Australian Security Intelligence Organisation.
(3) To avoid doubt:
(a) if the person being detained (the detainee ) has 2 parents or 2 or more guardians, the detainee is entitled, subject to section 105.40, to have contact under subsection (2) with each of those parents or guardians; and
(b) the detainee is entitled to disclose the following to a person with whom the detainee has contact under subsection (2):
(i) the fact that a preventative detention order has been made in relation to the detainee;
(ii) the fact that the detainee is being detained;
(iii) the period for which the detainee is being detained.
(4) The form of contact that the person being detained is entitled to have with another person under subsection (2) includes:
(a) being visited by that other person; and
(b) communicating with that other person by telephone, fax or email.
(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is:
(a) 2 hours; or
(b) such longer period as is specified in the preventative detention order.
Note: Paragraph (b)--see subsections 105.8(7) and 105.12(7).
(6) Despite subsection (5), the police officer who is detaining the person may permit the person to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5).
(7) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under the preventative detention order.
(8) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in that language can be effectively monitored with the assistance of an interpreter.
(9) Without limiting subsection (8), the interpreter referred to in that subsection may be a police officer.
(10) If the person being detained indicates that he or she wishes the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and
(b) if it is reasonably practicable to do so--arrange for those services to be provided as soon as practicable.
105.40 Entitlement to contact subject to prohibited contact order
Sections 105.35, 105.37 and 105.39 have effect subject to any prohibited contact order made in relation to the person's detention.
Person being detained
(1) A person (the subject ) commits an offence if:
(a) the subject is being detained under a preventative detention order; and
(b) the subject discloses to another person:
(i) the fact that a preventative detention order has been made in relation to the subject; or
(ii) the fact that the subject is being detained; or
(iii) the period for which the subject is being detained; and
(c) the disclosure occurs while the subject is being detained under the order; and
(d) the disclosure is not one that the subject is entitled to make under section 105.36, 105.37 or 105.39.
Penalty: Imprisonment for 5 years.
Lawyer
(2) A person (the lawyer ) commits an offence if:
(a) a person being detained under a preventative detention order (the detainee ) contacts the lawyer under section 105.37; and
(b) the lawyer discloses to another person:
(i) the fact that a preventative detention order has been made in relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the lawyer in the course of the contact; and
(c) the disclosure occurs while the detainee is being detained under the order; and
(d) the disclosure is not made for the purposes of:
(i) proceedings in a federal court for a remedy relating to the preventative detention order or the treatment of the detainee in connection with the detainee's detention under the order; or
(ii) a complaint to the Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act 1981 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee's detention under the order; or
(iii) a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee's detention under the order; or
(iv) making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee's detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee's detention under the order.
Penalty: Imprisonment for 5 years.
Person having special contact with detainee who is under 18 years of age or incapable of managing own affairs
(3) A person (the parent/guardian ) commits an offence if:
(a) a person being detained under a preventative detention order (the detainee ) has contact with the parent/guardian under section 105.39; and
(b) the parent/guardian discloses to another person:
(i) the fact that a preventative detention order has been made in relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the parent/guardian in the course of the contact; and
(c) the other person is not a person the detainee is entitled to have contact with under section 105.39; and
(d) the disclosure occurs while the detainee is being detained under the order; and
(e) the disclosure is not made for the purposes of:
(i) a complaint to the Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act 1981 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee's detention under the order; or
(ii) a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee's detention under the order; or
(iii) making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee's detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee's detention under the order.
Penalty: Imprisonment for 5 years.
(4) To avoid doubt, a person does not contravene subsection (3) merely by letting another person know that the detainee is safe but is not able to be contacted for the time being.
(4A) A person (the parent/guardian ) commits an offence if:
(a) the parent/guardian is a parent or guardian of a person who is being detained under a preventative detention order (the detainee ); and
(b) the detainee has contact with the parent/guardian under section 105.39; and
(c) while the detainee is being detained under the order, the parent/guardian discloses information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian ); and
(d) when the disclosure is made, the detainee has not had contact with the other parent/guardian under section 105.39 while being detained under the order; and
(e) the parent/guardian does not, before making the disclosure, inform the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian is proposing to disclose information of that kind to the other parent/guardian.
Penalty: Imprisonment for 5 years.
(4B) If:
(a) a person (the parent/guardian ) is a parent or guardian of a person being detained under a preventative detention order (the detainee ); and
(b) the parent/guardian informs the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian proposes to disclose information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian );
that senior AFP member may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 105.39.
Note: The parent/guardian may commit an offence against subsection (2) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 105.39 and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of paragraph (3)(c).
Interpreter assisting in monitoring contact with detainee
(5) A person (the interpreter ) commits an offence if:
(a) the interpreter is an interpreter who assists in monitoring the contact that a person being detained under a preventative detention order (the detainee ) has with someone while the detainee is being detained under the order; and
(b) the interpreter discloses to another person:
(i) the fact that a preventative detention order has been made in relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that interpreter obtains in the course of assisting in the monitoring of that contact; and
(c) the disclosure occurs while the detainee is being detained under the order.
Penalty: Imprisonment for 5 years.
Passing on improperly disclosed information
(6) A person (the disclosure recipient ) commits an offence if:
(a) a person (the earlier discloser ) discloses to the disclosure recipient:
(i) the fact that a preventative detention order has been made in relation to a person; or
(ii) the fact that a person is being detained under a preventative detention order; or
(iii) the period for which a person is being detained under a preventative detention order; or
(iv) any information that a person who is being detained under a preventative detention order communicates to a person while the person is being detained under the order; and
(b) the disclosure by the earlier discloser to the disclosure recipient contravenes:
(i) subsection (1), (2), (3) or (5); or
(ii) this subsection; and
(c) the disclosure recipient discloses that information to another person; and
(d) the disclosure by the disclosure recipient occurs while the person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained under the order.
Penalty: Imprisonment for 5 years.
Police officer or interpreter monitoring contact with lawyer
(7) A person (the monitor ) commits an offence if:
(a) the monitor is:
(i) a police officer who monitors; or
(ii) an interpreter who assists in monitoring;
contact that a person being detained under a preventative detention order (the detainee ) has with a lawyer under section 105.37 while the detainee is being detained under the order; and
(b) information is communicated in the course of that contact; and
(c) the information is communicated for one of the purposes referred to in subsection 105.37(1); and
(d) the monitor discloses that information to another person.
Penalty: Imprisonment for 5 years.
Note: See also subsection 105.38(5).
105.42 Questioning of person prohibited while person is detained
(1) A police officer must not question a person while the person is being detained under a preventative detention order except for the purposes of:
(a) determining whether the person is the person specified in the order; or
(b) ensuring the safety and well - being of the person being detained; or
(c) allowing the police officer to comply with a requirement of this Division in relation to the person's detention under the order.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(2) An officer or employee of the Australian Security Intelligence Organisation must not question a person while the person is being detained under a preventative detention order.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(3) An AFP member, or an officer or employee of the Australian Security Intelligence Organisation, must not question a person while the person is being detained under an order made under a corresponding State preventative detention law.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(4) If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that:
(a) a video recording is made of the questioning if it is practicable to do so; or
(b) an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.
Note: A contravention of this subsection may be an offence under section 105.45.
(5) Subsection (4) does not apply if:
(a) the questioning occurs to:
(i) ensure the safety and well being of the person being detained; or
(ii) determine whether the person is the person specified in the order; and
(b) complying with subsection (4) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).
(6) A recording made under subsection (4) must be kept for the period of 12 months after the recording is made.
105.43 Taking fingerprints, recordings, samples of handwriting or photographs
(1) A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.
Note: A contravention of this subsection may be an offence under section 105.45.
(2) A police officer who is of the rank of sergeant or higher may take identification material from the person, or cause identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person specified in the order.
(3) A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.
(4) Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs;
unless a Federal Magistrate orders that the material be taken.
Note: A contravention of this subsection may be an offence under section 105.45.
(5) In deciding whether to make such an order, the Federal Magistrate must have regard to:
(a) the age, or any disability, of the person; and
(b) such other matters as the Federal Magistrate thinks fit.
(6) The taking of identification material from a person who:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if a parent or guardian of the person is not acceptable to the person--another appropriate person.
Note 1: For appropriate person , see subsection (11).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(7) Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:
(a) subsections (8) and (9) are satisfied; or
(b) subsection (8) or (9) is satisfied (but not both) and a Federal Magistrate orders that the material be taken.
In deciding whether to make such an order, the Federal Magistrate must have regard to the matters set out in subsection (5).
(8) This subsection applies if the person agrees in writing to the taking of the material.
(9) This subsection applies if either:
(a) a parent or guardian of the person; or
(b) if a parent or guardian is not acceptable to the person--another appropriate person;
agrees in writing to the taking of the material.
Note: For appropriate person , see subsection (11).
(10) Despite this section, identification material may be taken from a person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her affairs;
if the person consents in writing.
(11) A reference in this section to an appropriate person in relation to a person (the subject ) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:
(a) is capable of representing the subject's interests; and
(b) as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and
(c) is none of the following:
(i) an AFP member;
(ii) an AFP employee (within the meaning of the Australian Federal Police Act 1979 );
(iii) a member (however described) of a police force of a State or Territory;
(iv) an officer or employee of the Australian Security Intelligence Organisation.
105.44 Use of identification material
(1) This section applies if identification material is taken under section 105.43 from a person being detained under a preventative detention order.
(2) The material may be used only for the purpose of determining whether the person is the person specified in the order.
Note: A contravention of this subsection may be an offence under section 105.45.
(3) If:
(a) a period of 12 months elapses after the identification material is taken; and
(b) proceedings in respect of:
(i) the preventative detention order; or
(ii) t he treatment of the person in connection with the person's detention under the order;
ha ve not been brought, or have been brought and discontinued or completed, within that period;
the material must be destroyed as soon as practicable after the end of that period.
105.45 Offences of contravening safeguards
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes:
(i) subsection 105.28(1); or
(ii) subsection 105.29(1); or
(iii) section 105.30; or
(iv) section 105.33; or
(iva) subsection 105.33A(1); or
(v) subsection 105.42(1), (2) , (3) or (4) ; or
(vi) subsection 105.43(1), (4) or (6); or
(vii) subsection 105.44(2).
Penalty: Imprisonment for 2 years.
Subdivision F -- Miscellaneous
105.46 Nature of functions of Federal Magistrate
(1) A function of making an order conferred on a Federal Magistrate by section 105.43 is conferred on the Federal Magistrate in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by a Federal Magistrate under section 105.43 has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
(3) A Federal Magistrate performing a function of, or connected with, making an order under section 105.43 has the same protection and immunity as if he or she were performing that function as, or as a member of, the Federal Magistrates Court.
(1) The Attorney - General must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year must include the following matters:
(a) the number of initial preventative detention orders made under section 105.8 during the year;
(b) the number of continued preventative detention orders made under section 105.12 during the year;
(c) whether a person was taken into custody under each of those orders and, if so, how long the person was detained for;
(d) particulars of any complaints in relation to the detention of a person under a preventative detention order made or referred during the year to:
(i) the Commonwealth Ombudsman; or
(ii) the Internal Investigation Division of the Australian Federal Police;
(e) the number of prohibited contact orders made under sections 105.15 and 105.16 during th e year;
(f) the number of preventative detention orders, and the number of prohibited contact orders, that a court has found not to have been validly made or that the Administrative Appeals Tribunal has declared to be void.
(3) The Attorney - General must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
105.48 Ombudsman functions and powers not affected
This Division does not affect a function or power of the Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act 1981 .
105.49 Queensland public interest monitor functions and powers not affected
This Division does not affect a function or power that the Queensland public interest monitor, or a Queensland deputy public interest monitor, has under a law of Queensland.
105.50 Law relating to legal professional privilege not affected
To avoid doubt, this Division does not affect the law relating to legal professional privilege.
105.51 Legal proceedings in relation to preventative detention orders
(1) Subject to subsections (2) and (4), proceedings may be brought in a court for a remedy in relation to:
(a) a preventative detention order; or
(b) the treatment of a person in connection with the person's detention under a preventative detention order.
(2) A court of a State or Territory does not have jurisdiction in proceedings for a remedy if:
(a) the remedy relates to:
(i) a preventative detention order; or
(ii) the treatment of a person in connection with the person's detention under a preventative detention order; and
(b) the proceedings are commenced while the order is in force.
(3) Subsection (2) has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).
(4) An application cannot be made under the Administrative Decisions (Judicial Review) Act 19 77 in relation to a decision made under this Division.
Note: See paragraph (dac) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 .
(5) An application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision by an issuing authority under section 105.8 or 105.12 to make a preventative detention order; or
(b) a decision by an issuing authority in relation to a preventative detention order to extend or further extend the period for which the order is in force in relation to a person.
The application cannot be made while the order is in force.
(6) The power of the Administrative Appeals Tribunal to review a decision referred to in subsection (5) may be exercised by the Tribunal only in the Security Appeals Division of the Tribunal.
(7) The Administrative Appeals Tribunal may:
(a) declare a decision referred to in subsection (5) in relation to a preventative detention order in relation to a person to be void if the Tribunal would have set the decision aside if an application for review of the decision had been able to be made to the Tribunal while the order was in force; and
(b) determine that the Commonwealth should compensate the person in relation to the person's detention under the order if the Tribunal declares the decision to be void under paragraph (a).
(8) If the Administrative Appeals Tribunal makes a determination under paragraph (7)(b), the Commonwealth is liable to pay the compensation determined by the Tribunal.
(9) The provisions of the Administrative Appeals Tribunal Act 1975 apply in relation to an application to the Administrative Appeals Tribunal for review of a decision referred to in subsection (5) with the modifications specified in the regulations made under this Act.
105.52 Review by State and Territory courts
(1) This section applies if:
(a) a person is detained under a preventative detention order (the Commonwealth order ) that is made on the basis of:
(i) assisting in preventing a terrorist act occurring within a period; or
(ii) preserving evidence of, or relating to, a terrorist act; and
(b) the person is detained under an order (the State order ) that is made under a corresponding State preventative detention law on the basis of:
(i) assisting in preventing the same terrorist act, or a different terrorist act, occurring within that period; or
(ii) preserving evidence of, or relating to, the same terrorist act; and
(c) the person brings proceedings before a court of a State or Territory in relation to:
(i) the application for, or the making of, the State order; or
(ii) the person's treatment in connection with the person's detention under the State order.
(2) The court may:
(a) review the application for, or the making of, the Commonwealth order, or the person's treatment in connection with the person's detention under the Commonwealth order, on the same grounds as those on which the court may review the application for, or the making of, the State order, or the person's treatment in connection with the person's detention under the State order; and
(b) grant the same remedies in relation to the application for, or the making of, the Commonwealth order, or the person's treatment in connection with the person's detention under the Commonwealth order, as those the court can grant in relation to the application for, or the making of, the State order, or the person's treatment in connection with the person's detention under the State order.
(3) If:
(a) the person applies to the court for:
(i) review of the application for, or the making of, the Commonwealth order or the person's treatment in connection with the person's detention under the Commonwealth order; or
(ii) a remedy in relation to the application for, or the making of, the Commonwealth order or the person's treatment in connection with the person's detention under the Commonwealth order; and
(b) the person applies to the court for an order under this subsection;
the court may order the Commissioner of the Australian Federal Police to give the court, and the parties to the proceedings, the information that was put before the person who issued the Commonwealth order when the application for the Commonwealth order was made.
(4) Subsection (3) does not require information to be given to the court, or the parties to the proceedings, if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).
(5) This section has effect:
(a) without limiting subsection 105.51(1); and
(b) subject to subsection 105.51(2).
(6) Nothing in this section affects the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceedings.
(1) A preventative detention order, or a prohibited contact order, that is in force at the end of 10 years after the day on which this Division commences ceases to be in force at that time.
(2) A preventative detention order, and a prohibited contact order, cannot be applied for, or made, after the end of 10 years after the day on which this Division commences.
Part 2 -- Consequential amendments
Administrative Decisions (Judicial Review) Act 1977
25 After paragraph (daa) of Schedule 1
Insert:
(dab) decisions of the Attorney - General under section 104.2 of the Criminal Code ;
(dac) decisions under Division 105 of the Criminal Code ;