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TERRORISM (EMERGENCY POWERS) AMENDMENT BILL 2006

Serial 46
Terrorism (Emergency Powers) Amendment Bill 2006
Mr Henderson






A BILL
for

AN ACT
to amend the Terrorism (Emergency Powers) Act









NORTHERN TERRITORY OF AUSTRALIA

TERRORISM (EMERGENCY POWERS) AMENDMENT ACT 2006

____________________

Act No. [ ] of 2006

____________________

TABLE OF PROVISIONS

   Section



bill_text00.jpg
NORTHERN TERRITORY OF AUSTRALIA

____________________

Act No. [ ] of 2006

____________________

AN ACT

[Assented to [ ] 2006]

[Second reading [ ] 2006]

The Legislative Assembly of the Northern Territory enacts as follows:

1. Short title

This Act may be cited as the Terrorism (Emergency Powers) Amendment Act 2006.

2. Commencement

This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

3. Act amended

This Act amends the Terrorism (Emergency Powers) Act.

4. Repeal and substitution of long title

Long title

repeal, substitute

An Act to provide powers to prevent and respond to terrorist acts

5. Amendment of section 4 (Interpretation)

(1) Section 4(1), definition of "vehicle"

omit

(2) Section 4(1)

insert (in alphabetical order)

"adjoining place", for Part 3A, has the meaning in section 27A;

"authorised police officer" has the meaning in:

(a) for Part 2B – section 21A; or

(b) for Part 3A – section 27A;

"business day" means a day that is not:

(a) a Saturday or Sunday; or

(b) a day that is declared to be a public holiday under the Public Holidays Act;

"confirmed preventative detention order", for Part 2B, has the meaning in section 21A;

"corresponding law", for Part 2B, has the meaning in section 21A;

"eligible Judge", for Part 2B, has the meaning in section 21A;

"Ethical and Professional Standards Command", for Part 2B, has the meaning in section 21A;

"identification material", for Part 2B, has the meaning in section 21A;

"lawyer", for Part 2B, has the meaning in section 21A;

"national security", for Part 2B, has the meaning in section 21A;

"nominated police officer", for Part 2B, has the meaning in section 21A;

"place", for Part 3A, has the meaning in section 27A;

"preventative detention order", for Part 2B, has the meaning in section 21A;

"prohibited contact order", for Part 2B, has the meaning in section 21A;

"responsible police officer", for Part 2A, has the meaning in section 20A;

"same terrorist act", for Part 2B, has the meaning in section 21A;

"seized item", for Part 2A, has the meaning in section 20A;

"senior police officer", for Part 2B, has the meaning in section 21A;

"serious indictable offence", for Part 2A, has the meaning in section 20A;

"serious offence related item", for Part 2A, has the meaning in section 20A;

"special area", for Part 2A, has the meaning in section 20A;

"special area declaration", for Part 2A, has the meaning in section 20A;

"special event", for Part 2A, has the meaning in section 20A;

"special warrant", for Part 3A, has the meaning in section 27A;

"subject place", for Part 3A, has the meaning in section 27A;

"terrorism related item", for Part 2A, has the meaning in section 20A;

"vehicle" includes any mode of transport whatsoever by land, water or through the air.

6. New section 4A

After section 4

insert

4A. Extraterritoriality of terrorist act no barrier

To avoid doubt, powers and functions conferred by this Act in relation to a terrorist act may be exercised or performed whether or not the terrorist act has been, is being, or is likely to be committed in the Territory.

7. Amendment of section 5 (Terrorist act)

(1) Section 5(1)

omit

means an action that –

substitute

means an action or threat of an action if:

(2) Section 5(1)(a)

omit

falls

substitute

the action falls

(3) Section 5(1)(b) and (c)

omit

is done

substitute

the action is done or the threat is made

8. Repeal and substitution of section 6

Section 6

repeal, substitute

6. When authorisation may be given

A person may give an authorisation under section 8 if the person is satisfied there are reasonable grounds for believing:

(a) a terrorist act has occurred or is likely to occur in the near future; and

(b) the exercise of the powers under the authorisation will substantially assist in:

(i) preventing the terrorist act or minimising the risk to public health or public safety relating to the terrorist act; or

(ii) finding, preserving or removing evidence relating to the terrorist act; or

(iii) apprehending a person responsible for committing the terrorist act or intending to commit the terrorist act.

9. Amendment of section 7 (Purposes for which authorisation may be given)

(1) Section 7(1)(c)

omit, substitute

(c) for the purpose of preventing a terrorist act occurring in the near future in a particular area described in the authorisation or apprehending in the area a person who may be responsible for committing a terrorist act or be intending in the near future to commit a terrorist act;

(2) Section 7(1)(d) and (e)

omit

an imminent terrorist act

substitute

terrorist act likely to occur in the near future

10. Amendment of section 9 (Form of authorisation)

Section 9(3)(b)

omit, substitute

(b) describe the general nature of the terrorist act to which it applies;

11. New section 12A

After section 12

insert

12A. Power to give directions to public authorities

(1) The Commissioner or other police officer mentioned in section 8(1) may, for facilitating the exercise of the special powers conferred by this Part, give a public authority directions in relation to the exercise or performance of the authority's powers or functions.

(2) The authority must comply with the direction.

(3) In this section:

"public authority" includes an Agency, statutory corporation and local government council and any member or officer of a public authority, but does not include a parliamentary or judicial body or its members or officers.

12. Amendment of section 19 (Power to enter and search premises)

Section 19(1)(a)

omit, substitute

(a) the police officer suspects on reasonable grounds that a person who is the target of an authorisation:

(i) may be on the premises; or

(ii) is an occupant of the premises; or

(iii) is an owner, or is concerned in the management or control of the premises; or

13. Amendment of section 20 (Power to enter premises for surveillance or to protect persons)

Section 20(1)(a)

omit

to commit an imminent terrorist act

substitute

in the near future to commit a terrorist act

14. New Parts 2A and 2B

After section 20

insert

PART 2A – POWERS EXERCISABLE UNDER SPECIAL AREA DECLARATION

Division 1 – Preliminary matters

20A. Definitions

In this Part:

"responsible police officer", for a seized item, means the police officer from time to time responsible for the item;

"seized item" means an item seized under section 20P(2);

"serious indictable offence" means an indictable offence punishable by imprisonment for life or for a term of 5 years or more;

"serious offence related item" means a thing a police officer conducting a search under Division 3 reasonably suspects:

(a) might be used in a serious indictable offence; or

(b) is connected with the preparation for, or the engagement of a person in, a serious indictable offence; or

(c) is evidence of, or relating to, a serious indictable offence;

"special area" means an area for which a declaration under section 20B(1) is in force;

"special area declaration" means a declaration made by the Commissioner under section 20B(1) declaring an area to be a special area;

"special event" means a community, cultural, arts, entertainment, recreational, sporting or similar event that is to be held over a limited period of time;

"terrorism related item" means a thing a police officer conducting a search under Division 3 reasonably suspects:

(a) might be used in a terrorist act; or

(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(c) is evidence of, or relating to, a terrorist act.

Division 2 – Making special area declaration

20B. Special area declaration

(1) Subject to subsections (2) and (3), the Commissioner may declare any of the following to be a special area:

(a) the site of an airport, train station, bus station or ship or ferry terminal;

(b) the site of a special event;

(c) a public area where people gather in large numbers.

(2) The Commissioner must not make a declaration under
subsection (1) unless satisfied the declaration is required because of the nature of the site or area and the risk of occurrence of a terrorist act.

(3) The Commissioner must not make the declaration without the approval of the Police Minister.

20C. Form of declaration

(1) A special area declaration must be notified in the Gazette.

(2) The declaration must:

(a) state it is made under this Act; and

(b) describe the site or area and define its boundaries; and

(c) specify the times and dates the declaration comes into operation and ceases operation.

20D. Duration of declaration

(1) A special area declaration comes into operation at the time and date specified in the declaration.

(2) Unless earlier revoked under section 20E, the declaration ceases to operate at the time and date specified in it.

(3) The period the declaration operates must not exceed 28 days.

(4) However, a further declaration may be made for the same site or area to extend the period of operation of an earlier declaration.

(5) The period the further declaration operates must not exceed 7 days.

(6) The provisions of this Part relating to a special area declaration (except subsection (3)) apply to a further declaration.

20E. Revocation of declaration

(1) A special area declaration may be revoked at any time by the Commissioner.

(2) The Commissioner must revoke the declaration if directed to do so by the Police Minister.

(3) The revocation of the declaration must be notified in the Gazette.

20F. Legality of declaration

(1) The cessation of operation of the declaration (by revocation or otherwise) does not affect anything lawfully done in reliance on the declaration before it ceased to operate.

(2) A declaration or decision of the Police Minister under this Part in relation to a declaration cannot be:

(a) challenged, reviewed, quashed or called into question on any grounds whatsoever before a court, tribunal, body or person in a legal proceeding; or

(b) restrained, removed or otherwise affected by an injunction or proceeding in the nature of prohibition or mandamus.

(3) The powers conferred on a police officer because of a declaration may be exercised by any police officer, whether or not the officer has been provided with, or notified of, the terms of the declaration.

20G. Effect of failure to publish

A failure to notify in the Gazette a declaration of a special area or the revocation of a declaration does not make the declaration or revocation ineffective to any extent.

20H. Report to be given to Attorney-General and Police Minister

As soon as practicable after a special area declaration ceases to operate, the Commissioner must give a written report to the Attorney-General and Police Minister:

(a) specifying the terms of the declaration and the period in which it had effect; and

(b) identifying as far as reasonably practicable the matters relied on for making the declaration; and

(c) describing generally the powers exercised under the declaration and the manner in which they were exercised; and

(d) specifying the results of the exercise of the powers.

20J. Report to be tabled in Legislative Assembly

The Police Minister must, within 7 sitting days after receiving the Commissioner's report on a declaration, table a copy of the report in the Legislative Assembly.

Division 3 – Powers given by special area declaration

20K. Powers which may be exercised under declaration

The powers under this Part may be exercised by a police officer in relation to:

(a) a person or vehicle in a special area; or

(b) a person or vehicle about to enter, or has recently left, a special area.

20L. Power to make person disclose identity and address

(1) A police officer may request a person to give the officer the following details:

(a) the person's name;

(b) the person's residential address;

(c) the person's date of birth;

(d) the person's reason for being in the special area.

(2) A person to whom a request is made under subsection (1) must not, without reasonable excuse, contravene the request.

Penalty: 100 penalty units or imprisonment for 6 months.

(3) A person to whom a request is made under subsection (1) must not, without reasonable excuse, give in response to the request:

(a) a name that is false in a material particular; or

(b) an address other than the full and correct address of the person's ordinary place of residence.

Penalty: 100 penalty units or imprisonment for 6 months.

(4) A police officer may request a person to whom a request is made under subsection (1) to give the officer proof of the person's identity.

(5) A person to whom a request is made under subsection (4) must not, without reasonable excuse, contravene the request.

Penalty: 100 penalty units or imprisonment for 6 months.

20M. Power to search persons

(1) A police officer may, without a warrant, stop and detain a person for the purposes of conducting a search under subsection (2).

(2) The police officer may conduct one or more of the following searches for a terrorism related item:

(a) an ordinary search or frisk search of the person;

(b) a search of anything that is, or that the officer suspects on reasonable grounds to be, in the possession of or under the control of the person;

(c) a search of anything that the person has, or that the officer suspects on reasonable grounds the person has, brought into the special area.

(3) The police officer may detain a person stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the person or anything in the possession of or under the control of the person.

(4) For section 112(1) of the Criminal Code, a person detained under subsection (1) is in the lawful custody of the police officer while so detained.

20N. Power to search vehicles

(1) A police officer may, without a warrant, stop and search a vehicle and anything in, on or attached to the vehicle.

(2) A police officer may detain a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle and anything in, on or attached to the vehicle.

(3) A police officer may detain a person who is in or on a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle.

(4) For section 112(1) of the Criminal Code, a person detained under subsection (3) is in the lawful custody of the police officer while so detained.

Division 4 – Seizure of terrorism related items and serious offence related items

20P. Seizure of items

(1) This section applies to a police officer who in the course of a search under Division 3 finds any of the following:

(a) a terrorism related item;

(b) a serious offence related item.

(2) The police officer may seize the item.

20Q. Seizure notice

(1) The responsible police officer for a seized item must serve a seizure notice within 7 days after the day the item was seized.

(2) The notice must be served on:

(a) the owner of the item; or

(b) if the owner of the item cannot be identified after reasonable inquiries – the person from whom the item was seized.

(3) However, subsections (1) and (2) do not apply if:

(a) the item was not seized from a person and the owner of the item cannot be identified after reasonable inquiries; or

(b) it is not possible to serve the person required to be served under subsection (2).

(4) The notice must:

(a) identify the item; and

(b) state:

(i) the date the item was seized; and

(ii) the ground or grounds on which the item was seized; and

(iii) the item will be forfeited to the Territory if the owner does not request the return of the item within 90 days after the date of the notice.

20R. Return of seized item

(1) The owner of the seized item may request the return of the item.

(2) Subject to subsection (3), the responsible police officer must return the seized item to the owner if the owner requests the return of the item.

(3) The police officer must not return the item to the owner if:

(a) the officer suspects, on reasonable grounds that, if the item is returned to the owner, the item is likely to be used in the commission of a terrorist act or serious indictable offence; or

(b) the item is evidence of, or relating to, a terrorist act or serious offence.

20S. Forfeiture of seized item

(1) The seized item is forfeited to the Territory if the owner of the item does not request the return of the item before the end of the due date.

(2) Subsection (3) applies if:

(a) before the end of the due date the owner of the seized item requests the return of the item; and

(b) the item has not been returned to the owner by the end of the due date.

(3) The responsible police officer must, within 5 days after the due date:

(a) return the item to the owner; or

(b) apply to a magistrate for an order under section 20T.

(4) In this section:

"due date" means:

(a) the 90th day after the date of the seizure notice in relation to an item; or

(b) if section 20Q(3) applies – the 90th day after the date the item was seized.

20T. Application to magistrate

(1) A police officer may apply to a magistrate for an order under
subsection (3), (4) or (5) for a seized item.

(2) The magistrate must allow the owner of the item to appear and be heard at the determination of the application.

(3) If the magistrate is satisfied the item is evidence of, or relating to, a terrorist act or serious indictable offence, the magistrate must order the item be retained by the police officer for the period specified in the order.

(4) If the magistrate is satisfied there are reasonable grounds to suspect that, if the item is returned to the owner, the item is likely to be used in the commission of a terrorist act or serious indictable offence, the magistrate may order that the item:

(a) be retained by the police officer for the period specified in the order; or

(b) is forfeited to the Territory; or

(c) be sold and the proceeds given to the owner; or

(d) be otherwise sold or disposed of.

(5) If the magistrate is satisfied the item poses a threat to the health or safety of persons or a threat to the environment, the magistrate may order the item be destroyed or otherwise disposed of.

(6) If the magistrate is not satisfied as to the matters mentioned in subsections (3), (4) and (5), the magistrate must order the item be returned to the owner.

PART 2B – PREVENTATIVE DETENTION ORDERS

Division 1 – Preliminary matters

21. Object

The object of this Part is to allow a person to be taken into custody and detained for a short period of time in order to:

(a) prevent a terrorist act occurring in the near future; or

(b) preserve evidence of, or relating to, a recent terrorist act.

Note for section 21

Section 21ZP provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes.

21A. Definitions

In this Part, unless the contrary intention appears:

"authorised police officer" means a police officer authorised under section 21D;

"confirmed preventative detention order" means a preventative detention order that has been confirmed (with or without variation) by the Supreme Court under section 21P;

"corresponding law" means:

(a) Division 105 of the Criminal Code (Cth) and the regulations and other instruments made under that Division, as in force from time to time; or

(b) a law of a State or another Territory that provides for preventative detention of persons in relation to terrorist acts (including a law of a State or another Territory declared by regulation to be a corresponding law);

"eligible Judge" means a Judge for whom a declaration is in force under section 21C;

"Ethical and Professional Standards Command" means the part of the Police Force (however named) that oversees the ethical and professional standards of police officers;

"identification material", in relation to a person, means samples taken from a part of the person's body from which a DNA profile may be derived, prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings other than recordings made in the ordinary course of operation of a security camera fitted at, or in the immediate vicinity of, a place where the person is being detained under a preventative detention order) of the person;

"lawyer" means a local or interstate legal practitioner within the meaning of the Legal Practitioners Act;

"national security" has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth);

"nominated police officer" means a police officer nominated under section 21X(1);

"preventative detention order" means a preventative detention order made under section 21G, as varied under section 21P, 21S or 21T;

"prohibited contact order" means an order made under section 21Q or 21R, as varied under section 21S or 21T;

"same terrorist act" has the meaning in section 21B;

"senior police officer" means a police officer of or above the rank of Assistant Commissioner.

21B. Same terrorist act

(1) A terrorist act ceases to be the same terrorist act if there is a change in the date on which the terrorist act is expected to occur.

(2) A terrorist act that is expected to occur at a particular time does not cease to be the same terrorist act merely because of:

(a) a change in the persons expected to carry out the act at that time; or

(b) a change in how or where the act is expected to be carried out at that time.

21C. Eligible Judges

(1) The Administrator may, in writing, declare a Judge to be an eligible Judge for this Part.

(2) A declaration cannot be made for a Judge unless the Judge has consented in writing to the declaration.

(3) An eligible Judge who has given consent for this section may, in writing, revoke the consent.

(4) An eligible Judge has, in relation to the exercise of a power or performance of a function conferred on an eligible Judge by this Part, the same protection and immunity as a Judge of the Supreme Court has in relation to proceedings in the Court.

(5) A power or function conferred on an eligible Judge by this Part, is conferred on the Judge in a personal capacity and not as a court or a member of a court.

21D. Authorised police officers

A senior police officer may, in writing, authorise a police officer of or above the rank of superintendent to be an authorised police officer for making applications under sections 21E, 21Q and 21R.

Division 2 – Preventative detention orders

21E. Application for preventative detention order

(1) An authorised police officer may apply to an eligible Judge for a preventative detention order in relation to a person if:

(a) the applicant is satisfied:

(i) there are reasonable grounds to suspect the person:

(A) will engage in a terrorist act; or

(B) possesses or has under the person's control (whether solely or jointly with anyone else) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(C) has done an act in preparation for, or planning, a terrorist act; and

(ii) making the order would substantially assist in preventing a terrorist act occurring; and

(iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring; or

(b) the applicant is satisfied:

(i) a terrorist act has occurred within the last 28 days; and

(ii) it is necessary to detain the person to preserve evidence in the Territory or elsewhere of, or relating to, the terrorist act, and

(iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving any such evidence.

(2) A terrorist act mentioned in subsection (1)(a) must be imminent and, in any event, be expected to occur at some time in the next 14 days.

Note for section 21E

As a consequence of the operation of section 4A, it does not matter whether the location of the suspected terrorist act is in the Territory or elsewhere.

21F. Form and content of application

(1) An application for a preventative detention order must:

(a) subject to subsection (4), be made by affidavit; and

(b) specify the facts and other grounds on which the applicant considers the order should be made; and

(c) specify the period for which the person is to be detained under the order and the facts and other grounds on which the applicant considers the person should be detained for that period; and

(d) specify the information (if any) the applicant has about the person's age and capacity to manage his or her affairs; and

(e) specify the following:

(i) the outcomes and particulars of all previous applications for preventative detention orders made in relation to the person;

(ii) the information (if any) the applicant has about any periods for which the person has been detained under an order made under a corresponding law;

(iii) the information (if any) the applicant has about any control order (including any interim control order) made in relation to the person under Division 104 of the Criminal Code (Cth);

(iv) a summary of the grounds on which the applicant considers the order should be made.

(2) To avoid doubt, subsection (1)(e)(iv) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security.

(3) The application must also fully disclose all relevant matters of which the applicant is aware, both favourable and adverse, to the making of the order.

(4) An application for a preventative detention order that is required urgently may be made by telephone, fax, email or other electronic communication.

(5) If:

(a) a preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under the order; and

(c) an application is made for another preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period,

the application must also identify the information on which the application is based that became available only after the order mentioned in paragraph (a) was made.

(6) If:

(a) an order for a person's detention is made under a corresponding 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 a preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period,

the application must also identify the information on which the application is based that became available only after the order mentioned in paragraph (a) was made.

(7) If, when an application for a preventative detention order is made, the person in relation to whom the order is being sought is in detention under:

(a) a preventative detention order; or

(b) an order for the person's detention made under a corresponding law,

written notice of the application must be given to the person.

21G. When preventative detention order may be made

(1) An eligible Judge may, on an application, make a preventative detention order in relation to a person only if:

(a) satisfied on reasonable grounds:

(i) the person:

(A) will engage in a terrorist act; or

(B) possesses or has under the person's control (whether solely or jointly with anyone else) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(C) has done an act in preparation for, or planning, a terrorist act; and

(ii) making the order would substantially assist in preventing a terrorist act occurring; and

(iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring; or

(b) satisfied on reasonable grounds:

(i) a terrorist act has occurred within the last 28 days; and

(ii) it is necessary to detain the person to preserve evidence in the Territory or elsewhere of, or relating to, the terrorist act, and

(iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving any such evidence.

(2) A terrorist act mentioned in subsection (1)(a) must be imminent and, in any event, be expected to occur at some time in the next 14 days.

(3) The Judge may refuse to make a preventative detention order unless the applicant gives the Judge any further information the Judge requests concerning the grounds on which the order is sought.

(4) If the application is made under section 21F(4):

(a) an order made under this section must be sent to the applicant by fax, email or other electronic communication; or

(b) the applicant must complete a form of a preventative detention order as directed by the Judge.

(5) The copy of the original order sent, or the form of the order completed, under subsection (4) has the same force and effect as the original order.

21H. Nature and content of preventative detention order

(1) A preventative detention order is an order that the person in relation to whom it is made may be:

(a) taken into custody (unless the person is already being detained under a preventative detention order, or an order for the person's detention made under a corresponding law, that is in force or was in force immediately before the making of the new order); and

(b) detained during the period that:

(i) starts when the person is first taken into custody or detained under the order (the "start"); and

(ii) ends a specified period after the start.

(2) A preventative detention order must be in writing.

(3) A preventative detention order must specify:

(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 into custody under the order; and

(e) a summary of the grounds on which the order is made.

(4) To avoid doubt, subsection (3)(e) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security.

(5) 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 specify a period of longer than 2 hours as the period the person is entitled under section 21ZL(2) to have contact with another person each day.

21J. Director of Correctional Services to be given copy of preventative detention order if person detained in prison

If the person in relation to whom a preventative detention order is made is being detained in a prison, the applicant for the order must give a copy of the order to the Director of Correctional Services.

21K. Maximum period of detention

(1) The maximum period for which a person may be detained under a preventative detention order is 14 days less any period the person is actually detained under a preventative detention order, or an order for the person's detention made under a corresponding law against the person, in relation to the same terrorist act.

(2) Despite subsection (1), the maximum period for which a person may be detained under a preventative detention order made on the basis of preserving evidence of, or relating to, a terrorist act that has occurred is not reduced by any period for which the person is detained under a preventative detention order, or an order for the person's detention under a corresponding law, made on the basis of preventing a terrorist act.

21L. When order starts and ceases to have effect

(1) A preventative detention order in relation to a person starts to have effect:

(a) if the order so provides, on an order for the person's detention made under a corresponding law ceasing to have effect; or

(b) otherwise, when it is made.

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

(3) If a preventative detention order does not cease to have effect under subsection (2), it ceases to have effect when whichever of the following first occurs:

(a) the period during which the person may be detained under the order ends;

(b) the order is revoked under section 21P, 21S or 21T.

21M. No preventative detention order in relation to person under 16

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

the officer must release the person, as soon as practicable, from detention under the order.

21N. Multiple preventative detention orders

(1) More than one preventative detention order may be made in relation to the same terrorist act (whether or not against the same person).

(2) A preventative detention order can be made against a person to take effect on the expiration of detention under another preventative detention order made against the person or an order for the person's detention made under a corresponding law.

Note for section 21N

This Division does not authorise the extension of the period of an order. However, an eligible Judge may make further orders for the same terrorist act as long as the maximum period of detention under section 21K is not exceeded in relation to the total period of the orders.

21P. Review of preventative detention order by Supreme Court

(1) As soon as practicable after a person (the "subject") is first taken into custody, or is first in detention, under a preventative detention order, an authorised police officer must apply to the Supreme Court for a review of the order.

(2) The Court in the review proceeding must not be constituted by the eligible Judge who made the preventative detention order.

(3) In the review proceeding:

(a) the subject is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions; but

(b) the subject's absence does not prevent the Court from deciding the application.

(4) In deciding the review, the Court may, by order:

(a) confirm the preventative detention order; or

(b) confirm the preventative detention order with the variation of the period specified in the order as the period during which the subject may be detained under it; or

(c) give directions about the making of further preventative detention orders in relation to the subject; or

(d) if not satisfied as mentioned in section 21G(1):

(i) revoke the preventative detention order and release the subject from detention; or

(ii) if the subject has been released from detention – declare the preventative detention order to have been void from its making.

(5) Subject to any direction made by the Court in the proceeding for the review of the preventative detention order, the police officer detaining the subject may exercise powers and perform functions under this Part to release the subject from detention during the course of the proceeding.

21Q. Prohibited contact order – person in relation to whom preventative detention order being sought

(1) A police officer who applies to an eligible Judge for a preventative detention order in relation to a person may also apply to the Judge for a prohibited contact order under this section in relation to the person's detention under the preventative detention order.

(2) The application must:

(a) be made by affidavit; and

(b) specify:

(i) the terms of the order sought; and

(ii) the facts and other grounds on which the applicant considers the order should be made.

(3) However, an application for a prohibited contact order that is required urgently may be made by telephone, fax, email or other electronic communication.

(4) If the Judge:

(a) makes the preventative detention order; and

(b) is satisfied on reasonable grounds that making the prohibited contact order will assist in achieving the purpose of the preventative detention order,

the Judge may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact another person specified in the prohibited contact order.

(5) The prohibited contact order must be in writing.

(6) If the application is made under subsection (3):

(a) the order must be sent to the applicant by fax, email or other electronic communication; or

(b) the applicant must complete a form of a prohibited contact order as directed by the Judge.

(7) The copy of the original order sent, or the form of the order completed, under subsection (6) has the same force and effect as the original order.

(8) The Judge may refuse to make a prohibited contact order unless the applicant gives the Judge any further information the Judge requests concerning the facts and other grounds on which the order is sought.

21R. Prohibited contact order – person in relation to whom preventative detention order in force

(1) If a preventative detention order is in force in relation to a person (the "subject"), an authorised police officer may apply to an eligible Judge for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order.

(2) The application must:

(a) be made by affidavit; and

(b) specify:

(i) the terms of the order sought; and

(ii) the facts and other grounds on which the applicant considers the order should be made.

(3) However, an application for a prohibited contact order that is required urgently may be made by telephone, fax, email or other electronic communication.

(4) If the Judge is satisfied on reasonable grounds that making the prohibited contact order will assist in achieving the purpose for which the preventative detention order was made, the Judge may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact another person specified in the prohibited contact order.

(5) The prohibited contact order must be in writing.

(6) If the application is made under subsection (3):

(a) the order must be sent to the applicant by fax, email or other electronic communication; or

(b) the applicant must complete a form of a prohibited contact order as directed by the Judge.

(7) The copy of the original order sent, or the form of the order completed, under subsection (6) has the same force and effect as the original order.

(8) The Judge may refuse to make a prohibited contact order unless the applicant gives the Judge any further information the Judge requests concerning the facts and other grounds on which the order is sought.

21S. Application by detainee for revocation or variation of preventative detention order or prohibited contact order

(1) A person in relation to whom a preventative detention order is in force (the "subject") may apply to the Supreme Court for:

(a) if the order is a confirmed preventative detention order – the revocation or variation of the order; or

(b) the revocation or variation of any prohibited contact order in force in relation to the subject's detention under the preventative detention order.

(2) If the Court is satisfied, because of new facts or circumstances that have arisen since the Court reviewed the making of the preventative detention order, it is appropriate that the order be revoked or varied, the Court must, by order, revoke or vary the order.

(3) If the subject is being detained in a prison and the preventative detention order is revoked or varied under subsection (2), the police officer who is detaining the subject under the order must give a copy of the order made under the subsection to the Director of Correctional Services as soon as practicable after it is made.

(4) If:

(a) a prohibited contact order is in force in relation to the subject's detention under a preventative detention order; and

(b) either of the following apply:

(i) if the order is a confirmed preventative detention order – the Court is satisfied, because of new facts or circumstances that have arisen since the making of the prohibited contact order, it is appropriate that the prohibited contact order be revoked or varied;

(ii) otherwise – the Court is satisfied it is appropriate that the prohibited contact order be revoked or varied,

the Court must, by order, revoke or vary the prohibited contact order.

(5) If the subject is being detained in a prison and a prohibited contact order in force in relation to the subject is revoked or varied under subsection (4), the police officer who is detaining the subject under the preventative detention order must give a copy of the order made under the subsection to the Director of Correctional Services as soon as practicable after it is made.

21T. Application by police officer for revocation or variation of preventative detention order or prohibited contact order

(1) If:

(a) a preventative detention order is in force in relation to a person; and

(b) the nominated police officer in relation to the order is satisfied the grounds on which the order was made have ceased to exist,

the officer must apply to the Supreme Court for the revocation of the order.

(2) If:

(a) a preventative detention order is in force in relation to a person; and

(b) the nominated police officer in relation to the order is satisfied, because of new facts or circumstances that have arisen since the making of the order, it is appropriate that the order be varied,

the officer must apply to the Court for a variation of the order.

(3) If:

(a) a preventative detention order is in force in relation to a person; and

(b) the Court is satisfied, on application by a police officer under subsection (1) or (2), it is appropriate that the order be revoked or varied,

the Court must, by order, revoke or vary the order.

(4) If the person in relation to whom a preventative detention order is in force is being detained in a prison and the order is revoked or varied under subsection (3), the applicant for the revocation or variation must give a copy of the order made under the subsection to the Director of Correctional Services as soon as practicable after it is made.

(5) If:

(a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and

(b) the nominated police officer in relation to the preventative detention order is satisfied, because of new facts or circumstances that have arisen since the making of the prohibited contact order, it is appropriate that the prohibited contact order be revoked or varied (including that the grounds on which the order was made have ceased to exist),

the officer must apply to the Court for the revocation or a variation 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) the Court is satisfied, on application by a police officer under subsection (5), it is appropriate that the prohibited contact order be revoked or varied,

the Court must, by order, revoke or vary the prohibited contact order.

(7) If the person in relation to whose detention under a preventative detention order a prohibited contact order is in force is being detained in a prison and the prohibited contact order is revoked or varied under subsection (6), the applicant for the revocation or variation must give a copy of the order made under the subsection to the Director of Correctional Services as soon as practicable after it is made.

(8) A person in relation to whom a preventative detention order is in force may make representations to the nominated police officer in relation to the order with a view to having the order, or a prohibited contact order that is in force in relation to the person's detention under the preventative detention order, revoked or varied under this section.

21U. Hearing procedures for proceedings in relation to orders

(1) This section applies to the following proceedings before the Supreme Court:

(a) the review of a preventative detention order;

(b) an application for the revocation or variation of a preventative detention order or prohibited contact order.

(2) The proceeding must be heard in the absence of the public.

(3) For the proceeding, the Court may take into account any evidence or information the Court considers credible or trustworthy in the circumstances and, in that regard, is not bound by principles or rules governing the admission of evidence.

(4) The Court may, in relation to the proceeding, make the orders relating to the suppression of publication of the whole or any part of the proceeding or of the evidence given in the proceeding, that in its opinion, are necessary to secure the object of this Part.

(5) Despite subsection (4), the Court must, by order, suppress publication of information likely to prejudice national security.

(6) A person must not disclose information knowing the disclosure contravenes an order under subsection (4) or (5).

Penalty: Imprisonment for 5 years.

Division 3 – Carrying out preventative detention orders

21V. Power to detain person under 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 has, for the purpose of taking a person into custody under a preventative detention order or preventing the person escaping from that custody, the same powers and functions as the officer would have if the officer were taking the person into custody in relation to the commission of an offence or preventing the person escaping from that custody.

(3) Subsection (2) does not apply to the extent to which particular powers and functions are provided for in this Part.

21W.  Senior police officer with functions under 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) a function (other than a power) is expressed in this Part to be imposed on a police officer detaining the person,

the function is imposed at that time on the most senior of those officers.

21X. Nominated police officer to oversee order

(1) If a preventative detention order is made in relation to a person, a senior police officer must nominate a police officer of or above the rank of superintendent to oversee the exercise of functions under or in relation to the order.

(2) The nominated police officer must be someone who was not involved in the making of the application for the preventative detention order.

(3) The nominated police officer must:

(a) oversee the exercise of functions under the preventative detention order; and

(b) consider any representations made under subsection (4) in relation to any of the matters mentioned in subsection (5).

(4) The representations may be made to the nominated police officer by any of the following persons:

(a) the person being detained under the preventative detention order;

(b) the Ombudsman or officer in charge of the Ethical and Professional Standards Command;

(c) a lawyer acting for that person in relation to the order;

(d) a person with whom that person has contact under section 21ZL.

(5) The matters are:

(a) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and

(b) without limiting paragraph (a), compliance with section 21T in relation to the preventative detention order; and

(c) the person's treatment in relation to the person's detention under the preventative detention order.

21Y. Endorsement of order with date and time person taken into custody

As soon as practicable after a person is first taken into custody under a 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.

21Z. Power to require disclosure of identity

(1) This section applies if a police officer believes on reasonable grounds a person may be able to assist the officer in executing a preventative detention order.

(2) The police officer may request the person to give the officer the following details:

(a) the person's name;

(b) the person's residential address;

(c) the person's date of birth.

(3) A person to whom a request is made under subsection (2) must not, without reasonable excuse, contravene the request.

Penalty: 100 penalty units or imprisonment for 6 months.

(4) A person to whom a request is made under subsection (2) must not, without reasonable excuse, give in response to the request:

(a) a name that is false in a material particular; or

(b) an address other than the full and correct address of the person's ordinary place of residence.

Penalty: 100 penalty units or imprisonment for 6 months.

(5) A police officer may request a person to whom a request is made under subsection (2) to give the officer proof of the person's identity.

(6) A person to whom a request is made under subsection (5) must not, without reasonable excuse, contravene the request.

Penalty: 100 penalty units or imprisonment for 6 months.

21ZA.  Power to enter premises and vehicles

If:

(a) a preventative detention order is in force in relation to a person; and

(b) a police officer believes on reasonable grounds the person is on any premises or in or on any vehicle,

the officer may enter the premises or vehicle at any time of the day or night for the purpose of searching the premises or vehicle for the person or taking the person into custody.

21ZB.  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.

Notes for subsection (1)

1. A person may be released, for example, so that the person may be arrested and otherwise dealt with for a suspected offence. In these circumstances, Part VII of the Police Administration Act applies.

2. Also, a person for whom a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 (Cth) is in force may be released so that the person may be dealt with under the warrant.

(2) 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.

(3) The statement must be signed by the police officer.

(4) 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.

(5) 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 for subsection (5)

During this period, the provisions of this Part that apply to a person who is being detained under a preventative detention order (for example, the provisions dealing with the people the person may contact) do not apply to the person.

(6) To avoid doubt:

(a) the release of a person under subsection (1) from detention under the preventative detention order does not extend the period for which the 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.

21ZC.  Arrangement for detainee to be held in prison

(1) A police officer who is detaining a person (the "detainee") under a preventative detention order may arrange, with the Director of Correctional Services, for the detainee to be detained under the order at a prison.

(2) If an arrangement is made under subsection (1):

(a) the police officer making the arrangement must give the person in charge of the prison written notice of the arrangement, a copy of the preventative detention order and any prohibited contact order in force in relation to the detainee's detention; and

(b) the preventative detention order is taken to authorise the person in charge of the prison to detain the detainee at the prison while the order is in force in relation to the detainee; and

(c) section 21ZG applies in relation to the detainee's detention under the preventative detention order at the prison as if:

(i) the person in charge of that prison; or

(ii) any other person involved in the detainee's detention at that prison,

were a person exercising authority under the order or implementing or enforcing the order; and

(d) the officer who made the arrangement (or another police officer designated by a senior police officer) is taken, while the detainee is detained at the prison, to be the police officer detaining the detainee for this Part; and

(e) a police officer may, for exercising functions under the order, enter at any time the prison and visit the detainee in the prison.

(3) A regulation may exclude the detainee from the application of any of the provisions of, or provisions made under, the Prisons (Correctional Services) Act, Juvenile Justice Act or Youth Justice Act.

(4) An arrangement under subsection (1) does not prevent the detainee being returned to the custody of a police officer.

(5) Subsections (6) and (7) apply if the detainee is under 18 years of age.

(6) A reference in this section to a prison is, in relation to the detainee, a reference to a detention centre within the meaning of the Juvenile Justice Act or Youth Justice Act and the reference to the Director of Correctional Services is a reference to the superintendent of the centre.

(7) During any period the detainee is not detained under an arrangement in force under this section, a police officer must not detain the detainee together with persons who are 18 years or older unless the nominated police officer considers there are exceptional circumstances and approves that detention.

Division 4 – Informing person detained about preventative detention orders

21ZD.  Effect of preventative detention order to be explained to person  detained

(1) As soon as practicable after a person is first taken into custody under a 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).

Penalty: Imprisonment for 2 years.

(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 requirement for there to be a review of the order by the Supreme Court and the fact that the person will have an opportunity to be heard on the review; and

(d) the people the person is entitled to contact under sections 21ZI and 21ZL and the restrictions that apply to that contact; and

(e) any right the person has to complain to the Ombudsman or officer in charge of the Ethical and Professional Standards Command in relation to:

(i) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and

(ii) without limiting subparagraph (i), compliance with section 21T in relation to the preventative detention order; and

(iii) the person's treatment in relation to the person's detention under the preventative detention order; and

(f) the fact that the person may seek from a court a remedy relating to the order, a prohibition contact order or the treatment of the person in relation to the person's detention under the order; and

(g) the person's entitlement under section 21ZK to contact a lawyer; and

(h) the name and work telephone number of the nominated police officer to oversee the exercise of functions under the order.

21ZE.  Compliance with obligation to inform

(1) Section 21ZD(1) 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 the section.

(2) The police officer detaining the person under the preventative detention order complies with section 21ZD(1) if the officer informs the person in substance of the matters covered by section 21ZD(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 section 21ZD(1) if the officer has reasonable grounds to believe 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 (3) or section 21ZD(1).

21ZF.  Copy of preventative detention order and summary of grounds

(1) As soon as practicable after a person is first taken into custody under a preventative detention order, the police officer who is detaining the person under the order must give the person:

(a) a copy of the order and any prohibited contact order in force in relation to the person's detention; and

(b) a summary of the grounds on which the preventative detention order or prohibited contact order is made.

(2) To avoid doubt, subsection (1)(b) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security.

(3) 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 officer takes the person into custody.

(4) A person who is being detained under a preventative detention order may ask the police officer who is detaining the person under the order to give a copy of the following to a lawyer acting for the person in relation to the order:

(a) the order and any prohibited contact order in force in relation to the person's detention;

(b) any summary given to the person under subsection (1)(b).

(5) The police officer must make arrangements for a copy of an order or summary to be given to the lawyer as soon as practicable after the request is made.

(6) Without limiting subsection (5), the copy of an order may be faxed or emailed to the lawyer.

(7) To avoid doubt, subsection (5) does not entitle the lawyer to be given a copy of, or see, a document other than the preventative detention order or prohibited contact order or any summary given under subsection (1)(b).

(8) The police officer who gives:

(a) the person being detained under a preventative detention order; or

(b) a lawyer acting for the person,

a copy of the 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.

(9) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with this section.

Division 5 – Treatment of person detained

21ZG.  Humane treatment of person being detained

(1) 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.

(2) A person who contravenes subsection (1) is guilty of an offence.

Penalty: Imprisonment for 2 years.

21ZH.  Restriction on contact with other people

Except as provided by this Division, 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 for section 21ZH

A person's entitlement to contact other people under this Division is subject to a prohibited contact order.

21ZI.  Contacting family members etc.

(1) The person being detained is entitled to contact once:

(a) one of his or her family members; and

(b) if he or she:

(i) lives with another person and the 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, the 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 the business; and

(e) if he or she engages in a business together with another person or other people – the 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 – the person,

by telephone, fax or email but solely for the purposes of letting the person contacted know that he or she is safe and is being detained.

(2) To avoid doubt, the person being detained is entitled, under subsection (1), to disclose:

(a) the fact that a preventative detention order has been made in relation to the person; and

(b) the fact that the person is being detained; and

(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 or de facto spouse; 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.

21ZJ.  Contacting Ombudsman and Ethical and Professional Standards  Command

The person being detained is entitled to contact the Ombudsman or the officer in charge of the Ethical and Professional Standards Command.

21ZK.  Contacting lawyer

(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) a prohibited contact order in force in relation to the person's detention; or

(iii) the treatment of the person in relation to 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, a proceeding in the Supreme Court relating to:

(i) the review, revocation or variation of the preventative detention order; or

(ii) the revocation or variation of a prohibited contact order in relation to the person's detention; or

(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a proceeding in a court for a remedy relating to the treatment of the person in relation to 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 the Ombudsman or officer in charge of the Ethical and Professional Standards Command in relation to:

(i) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and

(ii) without limiting subparagraph (i), compliance with section 21T in relation to the preventative detention order; and

(iii) the person's treatment in relation to the person's detention under the preventative detention 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 a 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).

(4) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe:

(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 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).

(5) In recommending lawyers to the person being detained as part of giving the person assistance under subsection (3), 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 Attorney-General's Department of the Commonwealth.

(6) Despite subsection (5) but subject to any prohibited contact order, the person being detained is entitled under this section to contact a lawyer who does not have a security clearance of the kind mentioned in subsection (5).

21ZL.  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 (the "detainee"):

(a) is under 18 years of age; or

(b) is incapable of managing his or her affairs.

(2) The detainee is entitled, while being detained under the order, to have contact with:

(a) a parent or guardian of the detainee; or

(b) another person who:

(i) is able to represent the detainee's interests; and

(ii) is, as far as practicable in the circumstances, acceptable to the detainee and to the police officer who is detaining the detainee; and

(iii) is not a police officer; and

(iv) is not an AFP member or AFP employee within the meaning of the Australian Federal Police Act 1979 (Cth); and

(v) is not a member (however described) of a police force of a State or another Territory; and

(vi) is not an officer or employee of the Australian Security Intelligence Organisation.

(3) To avoid doubt:

(a) if the detainee has 2 parents or 2 or more guardians, the detainee is entitled, subject to any prohibited contact order, 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 detainee 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 detainee is entitled to have contact with another person each day under subsection (2) is:

(a) 2 hours; or

(b) the longer period specified in the preventative detention order.

(6) Despite subsection (5), the police officer who is detaining the detainee may permit the detainee to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5).

(7) If:

(a) the detainee has contact under subsection (2) with a parent or guardian of the detainee; and

(b) a prohibited contact order is in force in relation to another parent or guardian of the detainee,

the nominated police officer in relation to the preventative detention order must inform the parent or guardian with whom the detainee has had contact that the parent or guardian must not disclose to the other parent or guardian information of the kind mentioned in section 21ZO(3)(b).

Penalty for subsection (7): Imprisonment for 5 years.

21ZM.  Monitoring contact with certain persons

(1) The contact the person being detained has with another person under section 21ZI, 21ZK or 21ZL may take place only if it is conducted in 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 mentioned 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 mentioned in section 21ZK is not admissible in evidence against the person in any proceeding in a court.

21ZN.  Entitlement to contact subject to prohibited contact order

Sections 21ZI, 21ZK and 21ZL have effect subject to any prohibited contact order made in relation to the person's detention.

21ZO.  Disclosure offences

(1) A person (the "detainee") commits an offence if:

(a) the detainee is being detained under a preventative detention order; and

(b) the detainee 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 place where the detainee is being detained; or

(iv) the fact that a prohibited contact order has been made in relation to the detainee's detention; and

(c) the disclosure occurs while the detainee is being detained under the order; and

(d) the disclosure is not one that the detainee is entitled to make under section 21ZI, 21ZJ, 21ZK or 21ZL.

Penalty: Imprisonment for 5 years.

(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 21ZK or a person with whom the detainee has contact under section 21ZL contacts the lawyer as mentioned in subsection (3)(e)(ii) of this section; 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 place where the detainee is being detained; or

(iv) any information that the detainee or other person 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) a proceeding in the Supreme Court for a remedy relating to the preventative detention order, a prohibited contact order or the treatment of the detainee in relation to the detainee's detention under the preventative detention order; or

(ii) a complaint to the Ombudsman or Ethical and Professional Standards Command in relation to the application for the preventative detention order or a prohibited contact order or the treatment of the detainee by a police officer in relation to the detainee's detention under the preventative detention order; or

(iii) making representations to the nominated police officer in relation to the preventative detention order, or another police officer involved in the detainee's detention, about:

(A) the exercise of powers under the order or the performance of functions in relation to the order; or

(B) the treatment of the detainee in relation to the detainee's detention under the order.

Penalty: Imprisonment for 5 years.

(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 21ZL; 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 place where 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 21ZL; 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 Ombudsman or Ethical and Professional Standards Command in relation to the application for the preventative detention order or a prohibited contact order or the treatment of the detainee by a police officer in relation to the detainee's detention under the preventative detention order; or

(ii) contacting a lawyer whom the detainee is entitled to contact under section 21ZK for any purpose for which the detainee is entitled to contact that lawyer under that section; or

(iii) making representations to the nominated police officer in relation to the preventative detention order, or another police officer involved in the detainee's detention, about:

(A) the exercise of powers under the order or the performance of functions in relation to the order; or

(B) the treatment of the detainee in relation to the detainee's detention under the order.

Penalty: Imprisonment for 5 years.

(4) To avoid doubt, a person does not contravene subsection (2) or (3) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period.

(5) 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 21ZL; and

(c) while the detainee is being detained under the order, the parent/guardian intentionally discloses information of the kind mentioned in subsection (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 21ZL while being detained under the order; and

(e) when the disclosure is made, the parent/guardian has been informed under section 21ZL(7) by the nominated police officer in relation to the order that the parent/guardian must not disclose information of that kind to the other parent/guardian.

Penalty: Imprisonment for 5 years.

(6) 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 nominated police officer in relation to the order that the parent/guardian proposes to disclose information of the kind mentioned in subsection (3)(b) to another parent or guardian of the detainee (the "other parent/guardian"),

that police officer may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 21ZL.

Note for subsection (6)

The parent/guardian may commit an offence against subsection (3) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 21ZL and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of subsection (3)(c).

(7) 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 place where 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.

(8) 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 place where the person is being detained; 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), (5) or (7); 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 mentioned in paragraph (a)(i), (ii) or (iii) is being detained under the order; and

(e) the disclosure is not made to a person exercising authority under the preventative detention order or implementing or enforcing the order or with responsibility for the safety or well-being of the person being detained under the order.

Penalty: Imprisonment for 5 years.

(9) 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 has with a lawyer under section 21ZK 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 mentioned in section 21ZK; and

(d) the monitor discloses the information to another person.

Penalty: Imprisonment for 5 years.

21ZP.  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 officer to comply with a requirement of this Part in relation to the person's detention under the order.

Penalty: Imprisonment for 2 years.

(2) A police officer must not question a person while the person is being detained under an order made under a corresponding law.

Penalty: Imprisonment for 2 years.

Note for section 21ZP

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).

21ZQ.  Taking identification material

(1) A police officer must not take identification material from a person who is being detained under a preventative detention order other than under this section.

Penalty: Imprisonment for 2 years.

(2) A police officer who is of or above the rank of sergeant 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 officer believes on reasonable grounds it is necessary to do so for the purpose of confirming the person's identity as the person specified in the order; or

(c) the officer believes on reasonable grounds it is necessary to do so for documenting an illness or injury suffered by the person while being detained under the order.

(3) Subject to this section, a police officer may only take identification material (other than hand prints, fingerprints, footprints or toe prints) from a person who:

(a) is under 18 years of age; or

(b) is incapable of managing his or her affairs,

if a magistrate orders that the material be taken.

(4) 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 is not acceptable to the person – another appropriate person.

(5) 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 (6) and (7) are satisfied; or

(b) subsection (6) or (7) is satisfied (but not both) and a magistrate orders that the material be taken.

(6) For subsection (5), this subsection is satisfied if the person agrees in writing to the taking of the material.

(7) For subsection (5), this subsection is satisfied 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.

(8) 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.

(9) In this section:

"appropriate person", in relation to another person (the "subject") who is under 18 years of age, or incapable of managing his or her affairs, means 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) a police officer;

(ii) an AFP member or AFP employee within the meaning of the Australian Federal Police Act 1979 (Cth);

(iii) a member (however described) of a police force of another State or Territory;

(iv) an officer or employee of the Australian Security Intelligence Organisation.

21ZR.  Use of identification material

(1) This section applies if identification material is taken under section 21ZQ 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.

(3) A person who uses identification material in contravention of subsection (2) is guilty of an offence.

Penalty: Imprisonment for 2 years.

(4) If:

(a) a period of 12 months elapses after the identification material is taken; and

(b) a proceeding has not been brought, or has been brought and discontinued or completed, within the period in relation to:

(i) the preventative detention order; or

(ii) the treatment of the person in relation to the person's detention under the order,

the material must be destroyed as soon as practicable after the end of the period.

Division 6 – Miscellaneous matters

21ZS.  Annual reports to be given to Police Minister

(1) The Commissioner must report annually on the exercise of powers under this Part by police officers.

(2) The report must be given, within 4 months after each 30 June, to the Police Minister.

(3) Without limiting subsection (1), the report must include the following matters relating to the year ending on 30 June:

(a) the number of preventative detention orders made during the year and the number of applications for orders made during the year;

(b) the number of applications for preventative detention orders in relation to adults and the number in relation to persons under 18 years of age;

(c) the duration of each order made;

(d) a statement as to whether each order was made to prevent a terrorist act or to preserve evidence;

(e) a statement as to whether a person was taken into custody under each order and, if so, the period for which the person was detained;

(f) a statement as to whether the person detained under an order was principally detained in a prison, juvenile detention centre, police facility or other place;

(g) the number of prohibited contact orders made during the year and the number of applications for such orders, the duration of each order and the number made in relation to adults and the number made in relation to persons under 18 years of age;

(h) the number of applications for revocation or variation of an order and the number of revocations and variations granted;

(i) particulars of any complaints in relation to the detention of a person under a preventative detention order made or referred during the year to the Ombudsman and the outcome of complaints made;

(j) a statement confirming the destruction of identification material required to be destroyed under section 21ZR(4).

(3) The report may be combined with any other annual report of the Police Force of the Territory.

(4) The Police Minister must table a copy of the report in the Legislative Assembly within 7 sitting days after receiving it.

21ZT.  Law relating to legal professional privilege not affected

To avoid doubt, this Part does not affect the law relating to legal professional privilege.

21ZU.  Legal proceedings for remedy in relation to orders

(1) This Part does not limit legal proceedings that may be brought in a court for a remedy in relation to:

(a) a preventative detention order; or

(b) a prohibited contact order; or

(c) the treatment of a person in relation to the person's detention under a preventative detention order.

(2) If a person applies to a court for a remedy in relation to:

(a) the application for, or the making of, a preventative detention order or a prohibited contact order or the person's treatment in connection with the person's detention under a preventative detention order; and

(b) the person applies to the court for an order under this subsection,

the court may order the Commissioner to give the court, and the parties to the proceeding, the information that was put before the eligible Judge when the application for the order was made.

(3) Subsection (2) does not require information to be given to the court, or the parties to the proceeding, if the disclosure of the information is likely to prejudice national security.

21ZV.  Sunset provision

(1) A preventative detention order, or prohibited contact order, that is in force at the end of 10 years after the day on which this Part commences ceases to be in force at that time.

(2) A preventative detention order, and prohibited contact order, cannot be applied for, or made, after the end of 10 years after the day on which this Part commences.

15. Amendment of section 21 (Vehicles may be required to be moved or prevented from entering area)

Section 21 (as in force immediately before the commencement of section 14)

renumber as section 22

16. Repeal and substitution of section 22

Section 22 (as in force immediately before the commencement of section 15)

repeal, substitute

22A. Movement into and out of area may be restricted

(1) A police officer may restrict movement into or out of an area if the police officer suspects on reasonable grounds that:

(a) a terrorist act has occurred or is imminent; and

(b) it is necessary or desirable in the interests of public health or public safety that a person not enter or leave the area.

(2) Movement into and out of an area is restricted under subsection (1) if the area is cordoned off by a tape or other barrier that:

(a) clearly indicates that a person is not permitted to enter or to exit the area; and

(b) that extends across all usual entry points to, or exit points from, the area.

(3) However, if the use of a tape or barrier is not practical, the police officer may restrict movement into or out of the area by:

(a) specifying the area to be restricted by coordinates or other description; and

(b) taking all reasonable steps to notify members of the public within the area and its vicinity that movement into or out of the area is restricted.

(4) A person must not, without reasonable excuse, enter or leave the area unless directed to do so by a police officer.

Penalty: 200 penalty units or imprisonment for 12 months.

(5) A person must not, without reasonable excuse, tamper with or remove a tape or other barrier used to cordon off an area under subsection (2).

Penalty: 200 penalty units or imprisonment for 12 months.

17. New Part 3A

After section 27

insert

PART 3A – COVERT SEARCH WARRANTS

Division 1 – Preliminary matters

27A. Interpretation

(1) In this Part, unless the contrary intention appears:

"adjoining place" means a place that adjoins or provides access to a subject place;

"authorised police officer" means a police officer:

(a) mentioned in section 27B(1); or

(b) authorised under section 27B(2);

"place" means premises or a vehicle;

"special warrant" means a warrant mentioned in section 27F;

"subject place", for a warrant or application for a warrant, means the place the subject of the warrant or application.

(2) In this Part, a reference to the search of a place includes a reference to the search for information that may be derived from, or anything in, on or attached to the place.

Division 2 – Authorisations to apply for covert search warrants

27B. Who may apply for covert search warrant

(1) A police officer with the rank of or above Assistant Commissioner is authorised to apply for a covert search warrant for a place.

(2) A police officer mentioned in subsection (1) may authorise another police officer to apply for a covert search warrant for a place.

27C. Form of authorisation

(1) An authorisation given under section 27B(2) must be in writing.

(2) However, if it is not practicable to issue the authorisation in writing because of an urgent need, the authorisation may be given orally.

(3) An authorisation given orally must be put in writing as soon as practicable after it is given.

Division 3 – Applications for, and issue of, covert search warrants

27D. Power to apply for covert search warrant

An authorised police officer may apply to a Judge for a warrant (a "covert search warrant") to enter and search a place if the officer suspects or believes on reasonable grounds:

(a) a terrorist act has been, is being, or is likely to be, committed; and

(b) the entry to and search of the place will substantially assist in responding to or preventing the terrorist act; and

(c) it is necessary for the entry and search of the place to be conducted without the knowledge of any occupier of the place.

27E. Application for warrant in person

(1) An application for a covert search warrant must be made:

(a) by the authorised police officer in person; and

(b) by affidavit.

(2) A Judge must not issue a covert search warrant unless the information given by the applicant in relation to the application is verified before the Judge on oath or by affidavit.

(3) This section does not apply to a special warrant.

27F. Special warrant

(1) An authorised police officer may apply by telephone, fax, email or other electronic communication for a covert search warrant.

(2) A Judge must not issue a covert search warrant on an application under this section unless the Judge is satisfied the warrant is required urgently and it is not practicable for the application to be made in person.

(3) An application must be made by fax if the facilities to do so are readily available for that purpose.

(4) If it is not practicable for an application for a covert search warrant under this section to be made directly to a Judge, the application may be sent to the Judge by another police officer on behalf of the applicant.

(5) A Judge who issues a covert search warrant on an application under this section must:

(a) complete and sign the warrant; and

(b) give the warrant to the police officer who made the application or inform the officer of the terms of the warrant and of the date when it was signed.

(6) If a covert search warrant is issued on an application made by telephone and the applicant was not given the warrant, the applicant must:

(a) complete a form of warrant in the terms indicated by the Judge under subsection (5); and

(b) write on it the name of the Judge and the date when the warrant was signed; and

(c) give the warrant to the Judge within 2 business days after the issue of the warrant.

(7) A form of covert search warrant so completed is taken to be a warrant issued under this Division.

(8) A covert search warrant must be given by a Judge by fax if the facilities to do so are readily available, and the copy produced is taken to be the original warrant.

27G. Information in application for warrant

(1) A Judge must not issue a covert search warrant unless the application for the warrant includes the following information:

(a) the full name, rank and registered number of the applicant;

(b) the address or other description of the subject place;

(c) particulars of the grounds on which the application is based;

(d) the name of the following persons:

(i) any person believed to be knowingly concerned in the commission of the terrorist act for which the application is made;

(ii) if no such person is an occupier of the subject place – any occupier (if known) of the place;

(e) if it is proposed that an adjoining place be entered for the purposes of entering the subject place – the address or other description of the adjoining place and particulars of the grounds on which entry to the adjoining place is required;

(f) the powers proposed to be exercised on entry to the subject place;

(g) a description of the kinds of things proposed to be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested;

(h) if power is sought to remove anything from the subject place and replace it with a substitute:

(i) a description of the thing; and

(ii) the reasons why the power is needed;

(i) if power is sought to re-enter the subject place to return anything removed from, or to retrieve anything substituted in, the place when first entered under the warrant:

(i) a description of the thing; and

(ii) the reasons why the power is needed;

(j) if a previous application for the same warrant was refused – details of the refusal and any additional information provided as required by section 27K;

(k) details of any covert search warrant that has previously been issued for the subject place;

(l) any other information required by regulation.

(2) The applicant must give (either orally or in writing) the further information the Judge requires concerning the grounds on which the warrant is being sought.

27H. Determining application for covert search warrant

(1) A Judge to whom an application for a covert search warrant is made may, if satisfied there are reasonable grounds for doing so, issue a covert search warrant.

(2) A Judge, when determining whether there are reasonable grounds to issue a covert search warrant, must consider (but is not limited to considering) the following matters:

(a) the reliability of the information on which the application is based, including the nature of the source of the information;

(b) whether there is a connection between the terrorist act for which the application has been made and the kinds of things that are proposed to be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested;

(c) the nature and gravity of the terrorist act;

(d) the extent to which the exercise of powers under the warrant would assist in the prevention of, or response to, the terrorist act;

(e) alternative means of obtaining the information sought to be obtained;

(f) the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the terrorist act is likely to be affected if the warrant is issued;

(g) if it is proposed that an adjoining place be entered for the purposes of entering the subject place, whether it is reasonably necessary to:

(i) enable access to the subject place; or

(ii) avoid compromising the investigation of the terrorist act;

(h) whether any conditions should be imposed by the Judge in relation to the execution of the warrant.

27J. Record of determination by Judge

(1) A Judge who determines an application for a covert search warrant must record all relevant particulars of the grounds the Judge has relied on to justify the issue of the warrant or refusal to issue the warrant.

(2) A regulation may provide for any of the following:

(a) the keeping of records relating to the issue and execution of covert search warrants;

(b) the inspection of the records;

(c) any other matter relating to the records.

(3) Any matter that might disclose the name or residential address of a person must not be recorded under this section if the Judge is satisfied to do so might jeopardise the safety of any person.

27K. Further application for warrant after refusal

If an application by a police officer for a covert search warrant is refused by a Judge, the officer (or any other police officer who is aware of the application) may not make a further application for the same warrant to that or any other Judge unless the further application provides additional information that justifies the making of the further application.

27L. Contents of covert search warrant

A covert search warrant must state the following matters:

(a) the full name, rank and registered number of the applicant;

(b) the address or other description of the subject place;

(c) the name of the following persons:

(i) any person believed to be knowingly concerned in the commission of the terrorist act for which the warrant is issued;

(ii) if no such person is an occupier of the subject place – any occupier (if known) of that place;

(d) a description of the kinds of things that may be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested;

(e) if the warrant authorises the re-entry of the subject place to return anything removed from, or to retrieve anything substituted in, the place when it is first entered under the warrant – a description of the thing;

(f) the date and time the warrant is issued;

(g) the date the warrant expires (being a date not more than 30 days after the date the warrant is issued);

(h) any conditions imposed in relation to the execution of the warrant;

(i) any other matter required by regulation.

Division 4 – Execution of covert search warrants and provisions applying after warrants executed

Subdivision 1 – Preliminary matters

27M. Interpretation

(1) In this Division:

"serious indictable offence" means an indictable offence punishable by imprisonment for life or for a term of 5 years or more.

(2) A reference in this Division to a relevant thing (including electronic equipment and information) found by a police officer is a reference to a thing the officer has reasonable grounds to suspect or believe will substantially assist in responding to or preventing a terrorist act.

(3) For this Division, a thing is connected with a serious indictable offence only if it is:

(a) a thing with respect to which there are reasonable grounds for suspecting or believing the offence has been, is being, or will be committed; or

(b) a thing that there are reasonable grounds for suspecting or believing will provide evidence of the commission or intended commission of the offence; or

(c) a thing that there are reasonable grounds for suspecting or believing has been, is being, or is intended to be used, in relation to the offence.

Subdivision 2 – Powers exercisable under covert search warrants

27N. Powers automatically conferred by covert search warrant

A covert search warrant authorises the police officer named in the
warrant:

(a) to enter, without any occupier's knowledge, the subject place; and

(b) to impersonate another person for the purposes of executing the warrant; and

(c) to use the force that is reasonably necessary for the purposes of entering and searching the subject place; and

(d) to search the subject place for any kind of thing or class of thing described in the warrant; and

(e) to break open any receptacle in or on the subject place for the purposes of that search if it is reasonably necessary to do so; and

(f) to seize and detain any other thing found in the course of executing the warrant and that is connected with a serious indictable offence.

27P. Powers expressly conferred by covert search warrant

In addition to the powers mentioned in section 27N, if it expressly so authorises, a covert search warrant authorises the police officer named in the warrant:

(a) to enter an adjoining place specified in the warrant, using the force that is reasonably necessary, for the purposes of entering the subject place; and

(b) to seize and detain a thing of a kind described in the warrant and any relevant thing found in the course of executing the warrant; and

(c) to place a thing of a kind described in the warrant on the subject place in substitution for a thing seized under paragraph (b); and

(d) to copy, photograph or otherwise record a thing of a kind described in the warrant and any relevant thing found in the course of executing the warrant; and

(e) to operate any electronic equipment of a kind described in the warrant and any relevant electronic equipment found in the course of executing the warrant; and

(f) to print, copy or otherwise record from the equipment information of a kind described in the warrant to be printed, copied or recorded and any relevant information found in the course of executing the warrant; and

(g) to test a thing of that kind and any relevant thing found in the course of executing the warrant.

27Q. Power of re-entry

(1) If it expressly so authorises, a covert search warrant authorises the police officer to re-enter the place to return anything removed from, or to retrieve anything substituted in, the place when it was first entered under the warrant.

(2) If a covert search warrant authorises the re-entry of the subject place under subsection (1):

(a) the place may be re-entered only for the purpose of returning a thing removed from, or to retrieve a thing substituted in, the place when it was first entered under the warrant; and

(b) the re-entry must occur within:

(i) 7 days after the date on which the place was first entered; or

(ii) a longer period authorised by a Judge before the end of the 7 days; and

(c) for the purpose of re-entering the place and returning or retrieving the thing, the police officer may exercise any of the powers under section 27N, and any of the powers under section 27P expressly authorised by the warrant, that are reasonably necessary; and

(d) despite section 27T, the warrant continues in effect subject to this subsection.

27R. Power to stop, detain and search etc.

(1) If a police officer reasonably believes it is necessary to do so to protect the safety of any person, including the officer, who is in or near the suspect place when a covert search warrant is being executed, the warrant authorises the officer to exercise the following powers:

(a) to stop and detain a person who is in the place;

(b) to search the person;

(c) to order the person to leave the place or its vicinity;

(d) to order a person not to enter a place or its vicinity;

(e) to seize and retain any weapon or other thing in the place that could endanger a person.

(2) For section 112(1) of the Criminal Code, a person detained under subsection (1)(a) is in the lawful custody of the officer while so detained.

Subdivision 3 – Execution and currency of covert search warrant

27S. Use of assistants to execute warrant

A police officer who is authorised under Subdivision 2 to execute a covert search warrant may do so with the assistants the officer considers necessary.

27T. Expiry of covert search warrant

A covert search warrant ceases to have effect on the earlier of the following:

(a) the expiry date stated in the warrant;

(b) if it is withdrawn by the Judge who issued it – when it is withdrawn;

(c) when it is executed.

Subdivision 4 – Provisions applying after warrants executed

27U. Report to Judge on execution of warrant

(1) The authorised police officer named in a covert search warrant must give to the Judge who issued the warrant a written report that includes the following information:

(a) the address or other description of the subject place;

(b) whether or not the warrant was executed;

(c) the other particulars prescribed by regulation.

(2) If a covert search warrant was executed, the report must also include the following information:

(a) the date on which the warrant was executed;

(b) the name of the officer who executed the warrant;

(c) the name of any person who assisted in the execution of the warrant and the nature of the assistance provided;

(d) the name of:

(i) any person believed to be knowingly concerned in the commission of the terrorist act for which the warrant was executed; and

(ii) if no such person is an occupier of the place – any occupier (if known) of the place at which the warrant was executed;

(e) the powers that were exercised under the warrant;

(f) the result, set out briefly, of the execution of the warrant (including a brief description of anything seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested);

(g) if:

(i) under section 27P the covert search warrant expressly authorises the copying, photographing, recording, operation, printing or testing of a thing of a kind described in the warrant; and

(i) a thing was copied, photographed, recorded, operated, printed or tested in the course of executing the warrant; and

(ii) the thing was not of a kind expressly authorised by the warrant to be copied, photographed, recorded, operated, printed or tested,

the particulars of the grounds on which the thing was believed to be a relevant thing or connected with a serious indictable offence;

(h) a description of anything tested or seized for the purposes of testing and the type of information obtained (or proposed to be obtained) by testing;

(i) whether or not the execution of the warrant assisted in the prevention of, or response to, the terrorist act for which the warrant was executed and, if so, how it assisted;

(j) whether or not the execution of the warrant assisted in the prevention of, or response to, any other terrorist act or any serious indictable offence and, if so, how it assisted.

(3) If a covert search warrant was not executed, the report must also include the reasons, set out briefly, why the warrant was not executed.

(4) The report must be given to the Judge:

(a) if a covert search warrant was executed – within 10 days after it was executed; or

(b) otherwise – within 10 days after:

(i) the expiry date specified in the warrant; or

(ii) the date the warrant was withdrawn by the Judge.

(5) If the place is re-entered for the purposes of returning or retrieving a thing under section 27Q, a written report must also be given to the Judge who issued a covert search warrant stating:

(a) the address or other description of the place; and

(b) the date on which the place was re-entered; and

(c) the name of any person who entered the place for the purposes of the return or retrieval; and

(d) a brief description of the thing; and

(e) if the thing was not returned or retrieved – the reasons why the thing was not returned or retrieved; and

(f) the other particulars prescribed by regulation.

(6) The report must be given to the Judge within 10 days after the
re-entry to the place for the purposes of retrieving or returning the thing under section 27Q.

27V. Defects in covert search warrants

A covert search warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.

Division 5 – Miscellaneous matters

27W. Matters to be dealt with in absence of public

An application under this Part and any other matter arising under this Part that is dealt with by a Judge must be dealt with in the absence of the public.

27X. False or misleading information in applications or reports

(1) A police officer must not, in relation to an application for a covert search warrant or a report, give information to a Judge the officer knows is false or misleading in a material particular.

Penalty: 100 penalty units or imprisonment for 2 years.

(2) This section applies to an application for a special warrant as well as an application for a covert search warrant made in person.

(3) This section applies whether or not the information given is also verified on oath or affirmation or by affidavit.

27Y. No publication or disclosure of information about covert search warrants

(1) A person must not publish any confidential information in relation to a covert search warrant except in accordance with the approval of the Supreme Court.

Penalty: Imprisonment for 5 years.

(2) If, in any legal proceeding an issue arises relating to the disclosure of confidential information and apart from this section a person would be entitled to require another person to disclose the information, the court may excuse the person from the requirement to disclose if satisfied:

(a) disclosure would prejudice the prevention, investigation or prosecution of a terrorist act or suspected terrorist act; and

(b) the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosure.

(3) In this section:

"confidential information", in relation to a covert search warrant, means any information about or derived from:

(a) an application for the warrant or proceeding on the application; or

(b) a report given under section 27U;

"disclose", includes disclosure, whether by order, subpoena or otherwise, by the:

(a) inspection, production or discovery of documents; and

(b) giving of evidence; and

(c) answering of interrogatories; and

(d) provision of particulars.

27Z. Annual reports to be given to Police Minister

(1) The Commissioner must report annually on the exercise of powers under this Part by police officers.

(2) The report must be given, within 4 months after each 30 June, to the Police Minister.

(3) Without limiting subsection (1), the report must include the following matters relating to the year ending on 30 June:

(a) the number of applications for covert search warrants made under this Part and the number of those applications granted;

(b) the number of applications for special warrants and the number of those applications granted;

(c) the number of covert search warrants executed;

(d) the number of covert search warrants under which any things were seized;

(e) the number of covert search warrants under which any things were placed in substitution for seized things;

(f) the number of covert search warrants under which any things were returned or retrieved;

(g) the number of covert search warrants under which any things were copied, photographed or otherwise recorded;

(h) the number of covert search warrants under which any electronic equipment was operated by police officers;

(i) the number of covert search warrants under which anything was tested;

(j) the number of arrests made in relation to a terrorist act for which a covert search warrant was executed and the number of those arrests that have led to the laying of charges in relation to the terrorist act;

(k) the number of complaints made under any Act about conduct relating to the execution of a covert search warrant by a police officer and the number of those complaints that are, or have been, the subject of an investigation under any Act;

(l) other matters requested by the Attorney-General or Police Minister.

(4) The report may be combined with any other annual report of the Police Force of the Territory.

(5) The Police Minister must table a copy of the report in the Legislative Assembly within 7 sitting days after receiving it.

18. Amendment of section 45 (Authorisation may constitute reasonable grounds for suspicion)

Section 45(1)(b)

omit, substitute

(b) a terrorist act is likely to occur in the near future if, at the time the suspicion is held, there is in force an authorisation given on the grounds that a terrorist act is likely to occur in the future.

19. Repeal and substitution of section 47

Section 47

repeal, substitute

47. Review of Act

The Police Minister must, within 5 years after the commencement of the Terrorism (Emergency Powers) Amendment Act 2006:

(a) review the operation of this Act; and

(b) table a copy of the report of the review in the Legislative Assembly.

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