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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Terrorism (Preventative Detention) Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Object 2
4. Terms used in this Act 2
5. Meaning of "reasonably suspects" 5
6. Meaning of "terrorist act" 5
7. Issuing authorities 7
8. Police officer on whom functions as to
preventative detention are imposed 7
Part 2 -- Preventative detention
orders
9. Basis for applying for and making preventative
detention orders 8
10. Authorising police officers to apply for a
preventative detention order 8
11. Application for a preventative detention order 9
12. Procedure for applying for preventative detention
order 10
13. Preventative detention orders 12
14. Duration of preventative detention orders 14
15. Multiple preventative detention orders 15
16. No preventative detention order in relation to
person under 16 years of age 16
17. Prohibited contact order (person in relation to
whom preventative detention order is being
sought) 16
120--3 page i
Terrorism (Preventative Detention) Bill 2005
Contents
18. Prohibited contact order (person in relation to
whom preventative detention order is already in
force) 17
19. Form and notification of prohibited contact order 18
20. Revocation of preventative detention order or
prohibited contact order 18
21. Status of person making preventative detention
order 19
Part 3 -- Review of preventative
detention orders
22. Review by Supreme Court 21
23. Powers may be exercised while review is in
progress 22
Part 4 -- Carrying out preventative
detention orders
24. Power to detain person under preventative
detention order 24
25. Endorsement of order with date and time person
taken into custody or detained 25
26. Exercising powers, general matters 25
27. Personal details of certain people may be obtained 26
28. Power to enter places 26
29. Use of force 27
30. Power to search people 27
31. Warrant under section 34D of the Australian
Security Intelligence Organisation Act 1979 28
32. Release of person from preventative detention 29
33. Arrangement for person to be in detention in a
prison or detention centre 31
34. Inspector of Custodial Services to be notified of
detention 33
Part 5 -- Informing person detained
about preventative detention
order
35. Effect of preventative detention order to be
explained to person detained 34
36. Compliance with duties to inform 35
page ii
Terrorism (Preventative Detention) Bill 2005
Contents
37. Copy of preventative detention order and summary
of grounds 36
Part 6 -- Treatment of person in
detention
38. Application of Part 38
39. Humane treatment of detainee 38
40. Restriction on contact with other people 39
41. Contacting family members and home or work
associates 39
42. Contacting Parliamentary Commissioner,
Corruption and Crime Commission or Inspector of
Custodial Services 40
43. Contacting lawyer 41
44. Monitoring contact with family members, home or
work associates or lawyer 43
45. Special contact rules for people under 18 or
incapable of managing their own affairs 44
46. Disclosure offences 46
47. Detainee not to be questioned while in detention 51
48. Taking identification material 51
49. Use of identification material 54
50. Offences of contravening safeguards 55
Part 7 -- Miscellaneous
51. Commissioner's functions may be performed by
others 56
52. Nature of functions of Magistrate 56
53. Restrictions on publicity about proceedings in
Supreme Court 57
54. Quarterly report about preventative detention
orders 57
55. Powers of others not affected 58
56. Law relating to legal professional privilege not
affected 59
57. Legal proceedings in relation to preventative
detention orders 59
58. Regulations 60
59. Review of Act 60
60. Expiry of orders and power to make them 60
page iii
Terrorism (Preventative Detention) Bill 2005
Contents
Schedule 1 -- Ancillary provisions
about exercising powers
1. When powers may be exercised 62
2. Assistance to exercise powers 62
3. Use of force when exercising powers 62
4. Areas may be cordoned off 63
5. Returning seized things 64
Schedule 2 -- Searching people
Division 1 -- Preliminary
1. Terms used in this Schedule 65
2. Basic search 65
3. Strip search 66
4. Ascertaining gender of person 66
5. Powers to assist doing searches 66
Division 2 -- How searches must be done
6. Operation of this Division 67
7. General procedure 67
8. Strip searches of protected people 68
Defined Terms
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Terrorism (Preventative Detention) Bill 2005
A Bill for
An Act to authorise temporary detention in order to prevent the
occurrence of a terrorist act or preserve evidence of, or relating to, a
recent terrorist act; and for other purposes.
The Parliament of Western Australia enacts as follows:
page 1
Terrorism (Preventative Detention) Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Terrorism (Preventative Detention) Act 2005.
2. Commencement
5 This Act comes into operation on the day on which it receives the
Royal Assent.
3. Object
The object of this Act is to allow a person to be taken into
custody and detained for a short period of time in order to --
10 (a) prevent a terrorist act occurring in the near future; or
(b) preserve evidence of, or relating to, a recent terrorist act.
4. Terms used in this Act
(1) In this Act, unless the contrary intention appears --
"allegation of misconduct" has the meaning given to that term
15 in the Corruption and Crime Commission Act 2003
section 4;
"ASIO Act" means the Australian Security Intelligence
Organisation Act 1979 of the Commonwealth;
"Commissioner" means the Commissioner of Police appointed
20 under the Police Act 1892 or a person acting in that office;
"corresponding law" means --
(a) Division 105 of the Criminal Code of the
Commonwealth and the regulations and other
instruments made under that Division; or
25 (b) a law of another State or a Territory that provides for
preventative detention of persons in relation to
terrorist acts (including any law of another State or a
Territory that is declared by the regulations to be a
corresponding law);
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Terrorism (Preventative Detention) Bill 2005
Preliminary Part 1
s. 4
"Corruption and Crime Commission" means the Corruption
and Crime Commission under the Corruption and Crime
Commission Act 2003;
"detention centre" has the meaning given to that term in the
5 Young Offenders Act 1994 section 3;
"evidence of, or relating to, a terrorist act" includes anything
that --
(a) was or may have been used;
(b) is or may be being used; or
10 (c) is about to be or may be used,
to do a terrorist act or in preparing to do a terrorist act;
"identification material", in relation to a person, means --
(a) an identifying particular of the person; or
(b) a recording of the person's voice or a sample of the
15 person's handwriting;
"identifying particular" has the meaning given to that term in
the Criminal Investigation (Identifying People) Act 2002
section 17;
"Inspector of Custodial Services" means the Inspector of
20 Custodial Services under the Inspector of Custodial
Services Act 2003;
"institution" means a prison or a detention centre;
"issuing authority" means an issuing authority appointed under
section 7;
25 "judge" means a judge of the Supreme Court;
"lawyer" has the meaning given to the term legal practitioner in
the Legal Practice Act 2003 section 3;
"lock-up" has the same meaning as that term has in the Prisons
Act 1981;
30 "national security" has the meaning given to that term in
section 8 of the National Security Information (Criminal
and Civil Proceedings) Act 2004 of the Commonwealth;
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Terrorism (Preventative Detention) Bill 2005
Part 1 Preliminary
s. 4
"Parliamentary Commissioner" means the Parliamentary
Commissioner for Administrative Investigations under the
Parliamentary Commissioner Act 1971;
"permitted detention period" has the meaning given to that
5 term in section 13(2)(b)(ii);
"place" means any land, building or structure, or a part of any
land, building or structure;
"preventative detention order" means an order made under
section 13;
10 "prison" has the meaning given to that term in the Prisons
Act 1981 section 3(1);
"prohibited contact order" means an order made under
section 17 or 18;
"reasonably suspects" has the meaning given to that term by
15 section 5;
"seizable item" means anything that --
(a) would present a danger to a person;
(b) could be used to assist a person to escape from lawful
custody; or
20 (c) could be used to contact another person or to operate
a device remotely;
"senior police officer" means a police officer of or above the
rank of Superintendent;
"terrorist act" has the meaning given to that term in section 6.
25 (2) A reference in section 13(3)(a) or (5) or 15(4) or (6) to a number
of days is a reference to the number of hours in that number of
days.
(3) Notes in this Act are provided to assist understanding and do not
form part of this Act.
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Terrorism (Preventative Detention) Bill 2005
Preliminary Part 1
s. 5
5. Meaning of "reasonably suspects"
For the purposes of this Act, a person "reasonably suspects"
something at a relevant time if the person personally has
grounds at the time for suspecting the thing and those grounds
5 (even if they are subsequently found to be false or non existent),
when judged objectively, are reasonable.
6. Meaning of "terrorist act"
(1) For the purposes of this Act, an action or threat of action is a
"terrorist act" if --
10 (a) the action falls within subsection (2) and does not fall
within subsection (3);
(b) the action is done or the threat is made with the intention
of advancing a political, religious or ideological cause;
and
15 (c) the action is done or the threat is made with the intention
of --
(i) coercing, or influencing by intimidation, the
government of the Commonwealth or a State,
Territory or foreign country, or of part of a State,
20 Territory or foreign country; or
(ii) intimidating the public, or a section of the public.
(2) Action falls within this subsection if it --
(a) causes a person's death;
(b) causes serious physical harm to a person;
25 (c) endangers a person's life, other than the life of the
person doing the act;
(d) creates a serious risk to the health or safety of the
public;
(e) causes serious damage to property; or
page 5
Terrorism (Preventative Detention) Bill 2005
Part 1 Preliminary
s. 6
(f) seriously interferes with, seriously disrupts, or destroys,
an electronic system including, but not limited to --
(i) an information system;
(ii) a telecommunications system;
5 (iii) a financial system;
(iv) a system used for the delivery of essential
government services;
(v) a system used for, or by, an essential public
utility;
10 (vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it --
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended --
(i) to cause a person's death;
15 (ii) to cause serious physical harm to a person;
(iii) to endanger a person's life, other than the life of
the person doing the act;
(iv) to create a serious risk to the health or safety of
the public.
20 (4) In this section --
(a) a reference to any person or property is a reference to
any person or property wherever situated, within or
outside the State (including within or outside Australia);
and
25 (b) a reference to the public includes a reference to the
public of another State or Territory or of a country other
than Australia.
Note. This section is consistent with the definition of "terrorist act" used in
Part 5.3 of the Criminal Code of the Commonwealth.
page 6
Terrorism (Preventative Detention) Bill 2005
Preliminary Part 1
s. 7
7. Issuing authorities
(1) The Governor may, in writing, appoint a judge or retired judge
as an issuing authority for preventative detention orders.
(2) A judge or retired judge cannot be appointed as an issuing
5 authority unless --
(a) the judge or retired judge has consented in writing to the
appointment; and
(b) the consent is in force.
(3) The period of appointment and, in the case of a retired judge,
10 the terms and conditions of appointment of an issuing authority
are as set out in the instrument of appointment.
8. Police officer on whom functions as to preventative
detention are imposed
If --
15 (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 Act
to be imposed on a police officer detaining the person,
20 the function is imposed at that time on whichever of those
police officers is highest in order of rank and seniority.
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 9
Part 2 -- Preventative detention orders
9. Basis for applying for and making preventative detention
orders
(1) For the purposes of this Part a person is a "person to whom
5 section 9 applies" if --
(a) the person --
(i) is going to engage in a terrorist act;
(ii) possesses a thing that is connected with the
preparation for, or the engagement of a person in,
10 a terrorist act; or
(iii) has done an act in preparation for, or planning, a
terrorist act;
and
(b) making a preventative detention order in relation to the
15 person would substantially assist in preventing a
terrorist act occurring.
(2) A terrorist act referred to in subsection (1) must be one --
(a) that is imminent; and
(b) that is expected to occur, in any event, at some time in
20 the next 14 days.
(3) For the purposes of this Part a person is also a "person to
whom section 9 applies" if --
(a) a terrorist act has occurred within the last 28 days; and
(b) it is necessary to detain the person under a preventative
25 detention order so as to preserve evidence of, or relating
to, the terrorist act.
10. Authorising police officers to apply for a preventative
detention order
(1) The Commissioner may authorise a police officer to apply for a
30 preventative detention order in relation to a person.
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Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 11
(2) The Commissioner must not authorise a police officer to apply
for a preventative detention order in relation to a person unless
the Commissioner is satisfied that there are reasonable grounds
to believe that --
5 (a) the person is a person to whom section 9 applies; and
(b) detaining the person for the period for which the person
is to be sought to be detained under the order is
reasonably necessary for the purpose of --
(i) substantially assisting in preventing a terrorist act
10 occurring; or
(ii) preserving any evidence referred to in
section 9(3)(b).
(3) An authorisation by the Commissioner must be in writing but, if
it is not practicable to issue it in writing because of an urgent
15 need to issue it --
(a) it may be issued orally; and
(b) if it is issued orally, it must be put in writing as soon as
practicable after it is issued.
11. Application for a preventative detention order
20 (1) Only a police officer authorised under section 10 may apply for
a preventative detention order.
(2) An application for a preventative detention order must be made
to an issuing authority.
(3) An application for a preventative detention order must --
25 (a) set out the facts and other grounds on which the
applicant considers that the preventative detention order
should be made;
(b) specify the period for which the applicant is seeking to
have the person detained under the order and set out the
30 facts and other grounds on which the applicant considers
that the person should be detained for that period;
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 12
(c) set out the information (if any) that the applicant has
about the person's age or capacity to manage his or her
affairs; and
(d) set out the following --
5 (i) the outcomes and particulars of all previous
applications for preventative detention orders in
relation to the person including information
about any periods for which the person has been
detained under another preventative detention
10 order;
(ii) the information (if any) that the applicant has
about the outcomes and particulars of
applications under a corresponding law for the
person's detention including any information
15 about periods for which the person has been
detained under an order for the person's
detention made under a corresponding law;
(iii) the information (if any) that the applicant has
about any control order (including any interim
20 control order) made in relation to the person
under Division 104 of the Criminal Code of the
Commonwealth.
12. Procedure for applying for preventative detention order
(1) In this section --
25 "remote communication" means any way of communicating at
a distance including by telephone, fax, email and radio.
(2) A reference in this section to making an application includes a
reference to giving information in support of the application.
(3) This section applies to and in respect of an application for a
30 preventative detention order.
(4) The application must be made in person before an issuing
authority unless --
(a) a preventative detention order is needed urgently; and
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Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 12
(b) the applicant reasonably suspects that an issuing
authority is not available within a reasonable distance of
the applicant,
in which case --
5 (c) it may be made to an issuing authority by remote
communication; and
(d) the issuing authority must not make a preventative
detention order unless satisfied about the matters in
paragraphs (a) and (b).
10 (5) The application must be made in writing unless --
(a) the application is made by remote communication; and
(b) it is not practicable to send the issuing authority written
material,
in which case --
15 (c) it may be made orally; and
(d) the issuing authority must make a written record of the
application and any information given in support of it.
(6) The application must be made on oath unless --
(a) the application is made by remote communication; and
20 (b) it is not practicable for the issuing authority to
administer an oath to the applicant or the issuing
authority is not a judge,
in which case --
(c) it may be made in an unsworn form; and
25 (d) if the issuing authority makes a preventative detention
order, the applicant must as soon as practicable send the
issuing authority an affidavit verifying the application
and any information given in support of it.
(7) If on an application made by remote communication an issuing
30 authority makes a preventative detention order, the issuing
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 13
authority must, if practicable, send a copy of the original order
to the applicant by remote communication, but otherwise --
(a) the issuing authority must give the applicant by remote
communication any information that must be set out in
5 the order;
(b) the applicant must complete a form of a preventative
detention order with the information received and give
the issuing authority a copy of the form as soon as
practicable after doing so; and
10 (c) the issuing authority must attach the copy of the form to
the original order and any affidavit received from the
applicant and make them available for collection by the
applicant.
(8) The copy of the original order sent, or the form of the order
15 completed, as the case may be, under subsection (7) has the
same force and effect as the original order.
(9) If, when an application for a preventative detention order is
made, the person in relation to whom an order is being sought is
in detention under --
20 (a) another preventative detention order; or
(b) an order for the person's detention made under a
corresponding law,
notice of the application must be given to the person.
13. Preventative detention orders
25 (1) On an application made under section 11 or a direction under
section 22(8)(c), an issuing authority may make a preventative
detention order in relation to a person if the issuing authority is
satisfied, on reasonable grounds, that --
(a) the person is a person to whom section 9 applies; and
page 12
Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 13
(b) detaining the person for the period for which the person
is to be detained under the order is reasonably necessary
for the purpose of --
(i) substantially assisting in preventing a terrorist act
5 occurring; or
(ii) preserving any evidence referred to in
section 9(3)(b).
(2) A preventative detention order is an order in writing that the
person specified in the order --
10 (a) may, if not then in custody, be taken into custody; and
(b) may be kept in detention during the period that --
(i) starts when the person is first taken into custody,
or is first in detention, under the order; and
(ii) ends a specified period of time (the "permitted
15 detention period") after the person is first taken
into custody, or is first in detention, under the
order.
(3) The permitted detention period must not exceed --
(a) 14 days; or
20 (b) if a shorter period is necessary in order to comply with
section 15(4) or (6), that shorter period.
(4) A preventative detention order must specify --
(a) the name of the person in relation to whom it is made;
(b) the permitted detention period;
25 (c) the date on which, and the time at which, the order is
made; and
(d) if applicable, the day and time after which the person
may not be taken into custody under the order.
(5) The day and time specified under subsection (4)(d) must be
30 fixed so that the time is not more than 7 days after the order is
made.
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 14
(6) If the person in relation to whom the order is made --
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs,
the order may provide that the aggregate period each day for
5 which the person is entitled to have contact with another person
or other persons under section 45(2) is the period of more than
2 hours that is specified in the order.
14. Duration of preventative detention orders
(1) A preventative detention order in relation to a person comes into
10 force when it is made.
Note: The order comes into force when it is made and authorises the person
to be taken into custody, if necessary (see section 13(2)(a)). The
period for which the person may be detained under the order only
starts when the person is first taken into custody, or is first in detention,
15 under the order (see section 13(2)(b)).
(2) A preventative detention order under which the person
concerned is required to be taken into custody ceases to have
effect on the day and at the time specified in the order if the
person has not been taken into custody under the order by then.
20 (3) If a preventative detention order does not cease to have effect
under subsection (2), it ceases to have effect as soon as one of
the following occurs --
(a) the period during which the person concerned may be
kept in detention under the order ends;
25 (b) the order is revoked under section 20(2) or as directed
under section 22(8);
(c) the order is quashed, or declared to be void, under
section 22(8); or
(d) The order expires under section 60(2).
30 Note: The order does not cease to have effect merely because the person is
released from detention under the order.
page 14
Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 15
15. Multiple preventative detention orders
(1) In this section --
"preservation order" means --
(a) a preventative detention order; or
5 (b) an order for detention under a corresponding law,
made on the basis of preserving evidence of, or relating to,
a terrorist act;
"prevention order" means --
(a) a preventative detention order; or
10 (b) an order for detention under a corresponding law,
made on the basis of preventing a terrorist act from
occurring.
(2) More than one preventative detention order can be made
authorising the detention of the same person in relation to the
15 same terrorist act.
(3) A preventative detention order can be made even if the person
concerned is under detention (or temporarily released from
detention) under a prevention order or preservation order in
relation to the same terrorist act or a different terrorist act, and
20 in that case the preventative detention order can be made so as
to take effect on the expiration of the other order.
(4) On an application for a preventative detention order to be made
on the basis of preventing a terrorist act from occurring, the
permitted detention period under the order cannot exceed
25 14 days when aggregated with any period or periods of actual
detention of the person concerned under another prevention
order, or other prevention orders, in relation to that terrorist act
that was or were based on --
(a) the same occurrence time information as; or
30 (b) occurrence time information consistent with,
the occurrence time information put to the issuing authority in
support of the application.
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 16
(5) In subsection (4) --
"occurrence time information" means information as to when
the terrorist act is expected to occur.
(6) On an application for a preventative detention order to be made
5 on the basis of preserving evidence of, or relating to, a terrorist
act, the permitted detention period under the order cannot
exceed 14 days when aggregated with any period or periods of
actual detention of the person concerned under another
preservation order, or other preservation orders, in relation to
10 that terrorist act.
16. No preventative detention order in relation to person under
16 years of age
(1) A preventative detention order cannot be applied for, or made,
in relation to a person who is under 16 years of age.
15 (2) If --
(a) a person is in detention under a preventative detention
order (or something that purports to be a preventative
detention order); and
(b) the police officer who is detaining the person is satisfied
20 on reasonable grounds that the person is under 16 years
of age,
the police officer must release the person, as soon as
practicable, from detention under the order.
17. Prohibited contact order (person in relation to whom
25 preventative detention order is being sought)
(1) A police officer who applies to an issuing authority for a
preventative detention order in relation to a person (the
"subject") may also apply to the issuing authority for a
prohibited contact order in relation to the subject's detention
30 under the preventative detention order.
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Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 18
(2) An application cannot be made under subsection (1) unless the
Commissioner's authorisation under section 10 specifies that the
police officer may make such an application.
(3) The application must set out --
5 (a) the terms of the order sought; and
(b) the facts and other grounds on which the police officer
considers that the order should be made.
(4) If the issuing authority --
(a) makes the preventative detention order; and
10 (b) is satisfied, on reasonable grounds, that making the
prohibited contact order will assist in achieving the
purpose of the preventative detention order,
the issuing authority may make a prohibited contact order that
the subject is not, while in detention under the preventative
15 detention order, to contact a person specified in the prohibited
contact order.
18. Prohibited contact order (person in relation to whom
preventative detention order is already in force)
(1) If a preventative detention order is in force in relation to a
20 person (the "subject"), the Commissioner may authorise a
police officer to apply for a prohibited contact order in relation
to the subject's detention under the preventative detention order.
(2) An authorisation by the Commissioner must be in writing but, if
it is not practicable to issue it in writing because of an urgent
25 need to issue it --
(a) it may be issued orally; and
(b) if it is issued orally, it must be put in writing as soon as
practicable after it is issued.
(3) Only a police officer authorised under subsection (1) may apply
30 for a prohibited contact order under this section.
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Terrorism (Preventative Detention) Bill 2005
Part 2 Preventative detention orders
s. 19
(4) Section 12(1) to (6) apply in relation to an application for a
prohibited contact order under this section as if references in
those subsections to a preventative detention order were
references to a prohibited contact order.
5 (5) The application must be made to an issuing authority and must
set out --
(a) the terms of the order sought; and
(b) the facts and other grounds on which the police officer
considers that the order should be made.
10 (6) If the issuing authority 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 issuing authority may make a prohibited contact order that
the subject is not, while in detention under the preventative
15 detention order, to contact a person specified in the prohibited
contact order.
19. Form and notification of prohibited contact order
(1) A prohibited contact order must be in writing.
(2) Section 12(7) and (8) apply in relation to a prohibited contact
20 order as if references in those subsections to a preventative
detention order were references to a prohibited contact order.
20. Revocation of preventative detention order or prohibited
contact order
(1) If --
25 (a) a preventative detention order is in force in relation to a
person; and
(b) the police officer who is detaining the person under the
order is satisfied that the grounds on which the order
was made have ceased to exist,
30 the police officer must apply to an issuing authority for the
revocation of the order.
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Terrorism (Preventative Detention) Bill 2005
Preventative detention orders Part 2
s. 21
(2) If --
(a) a preventative detention order is in force in relation to a
person; and
(b) an issuing authority is satisfied, on application by a
5 police officer, that the grounds on which the order was
made have ceased to exist,
the issuing authority must revoke the order and the police
officer must release the person from detention.
(3) If --
10 (a) a prohibited contact order is in force in relation to a
person's detention under a preventative detention order;
and
(b) the police officer who is detaining the person under the
preventative detention order is satisfied that the grounds
15 on which the prohibited contact order was made have
ceased to exist,
the police officer must apply to an issuing authority for the
revocation of the prohibited contact order.
(4) If --
20 (a) a prohibited contact order is in force in relation to a
person's detention under a preventative detention order;
and
(b) an issuing authority is satisfied, on application by a
police officer, that the grounds on which the prohibited
25 contact order was made have ceased to exist,
the issuing authority must revoke the prohibited contact order.
21. Status of person making preventative detention order
(1) An issuing authority who --
(a) makes or revokes a preventative detention order; or
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(b) makes or revokes a prohibited contact order in relation
to a person's detention under a preventative detention
order,
has, in the performance of duties under this Act, the same
5 protection and immunity as a judge.
(2) A function of --
(a) making or revoking a preventative detention order; or
(b) making or revoking a prohibited contact order in relation
to a person's detention under a preventative detention
10 order,
that is conferred on a judge is conferred on the judge in a
personal capacity and not as a court or a member of a court.
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Part 3 -- Review of preventative detention orders
22. Review by Supreme Court
(1) In this section --
"remote communication" means communicating by way of a
5 videolink or other device by which, at the same time, the
judge or judges constituting the court can see and hear a
person who is at another place and who would otherwise be
attending the court in person, and vice versa;
"review proceedings" means proceedings under subsection (2)
10 for the review of a preventative detention order.
(2) As soon as practicable after a person (the "subject") is first
taken into custody, or is first in detention, under a preventative
detention order the police officer detaining the subject must
bring the subject before the General Division of the Supreme
15 Court for a review of the order.
(3) If the preventative detention order was made by a judge, the
court in the review proceedings is not to be constituted by or so
as to include that judge.
(4) The Supreme Court may --
20 (a) relieve the police officer from the duty under
subsection (2) to bring the subject before the court; and
(b) conduct the review proceedings by remote
communication,
if satisfied that it is appropriate in the circumstances to do so.
25 (5) The following persons may adduce evidence (including by
calling witnesses or producing material), or make submissions,
to the Supreme Court in the review proceedings --
(a) a police officer;
(b) a lawyer representing a police officer;
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(c) the subject;
(d) a lawyer acting for the subject.
(6) If the subject --
(a) is under 18 years of age; or
5 (b) is incapable of managing his or her affairs,
a person with whom the subject can have contact under
section 45(2) may make submissions to the Supreme Court in
the review proceedings.
(7) Subsections (3), (5) and (6) do not otherwise limit the power of
10 the Supreme Court to control the review proceedings.
(8) In the review proceedings the Supreme Court may exercise any
of the following powers --
(a) it may confirm the order;
(b) it may quash the order and release the subject from
15 detention;
(c) it may remit the matter to an issuing authority with a
direction to revoke the order and replace it with a new
preventative detention order such that the period for
which the subject may be in detention is reduced;
20 (d) it may give directions about the making of further
preventative detention orders in relation to the subject;
(e) if the subject has been released from detention, it may
declare the order to have been void.
23. Powers may be exercised while review is in progress
25 Subject to any direction made by the Supreme Court in
proceedings under section 22(2) for the review of a preventative
detention order --
(a) an issuing authority may, during the course of the
proceedings, exercise powers under this Act --
30 (i) to revoke the order; or
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(ii) to make a further preventative detention order in
relation to the person concerned;
and
(b) the police officer detaining the person concerned may
5 exercise powers under this Act to release the person
concerned from detention during the course of the
proceedings.
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Part 4 -- Carrying out preventative detention orders
24. Power to detain person under preventative detention order
(1) While a preventative detention order is in force in relation to a
person --
5 (a) any police officer may take the person into custody; and
(b) any police officer may keep the person in detention.
(2) When a preventative detention order is made, the Commissioner
must nominate a senior police officer (the "nominated senior
police officer") to oversee the exercise of powers under, and the
10 performance of duties in relation to, the preventative detention
order.
(3) The nominated senior police officer must be someone who was
not involved in the making of the application for the
preventative detention order.
15 (4) The nominated senior police officer must --
(a) oversee the exercise of powers under, and the
performance of duties in relation to, the preventative
detention order;
(b) without limiting paragraph (a), ensure that sections 20
20 and 22(2) are complied with in relation to the
preventative detention order; and
(c) receive and consider any representations that are made
under subsection (5).
(5) The following persons --
25 (a) the person in relation to whom a preventative detention
order is in force;
(b) a lawyer acting for the person in relation to the
preventative detention order;
(c) a person with whom the person can have contact under
30 section 45(2),
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s. 25
are entitled to make representations to the nominated senior
police officer about --
(d) the exercise of powers under, and the performance of
duties in relation to, the preventative detention order;
5 (e) without limiting paragraph (d), compliance with
section 20 or 22(2) in relation to the preventative
detention order; and
(f) the person's treatment in connection with the person's
detention under the preventative detention order.
10 25. Endorsement of order with date and time person taken into
custody or detained
As soon as practicable after a person is first taken into custody
or is first in detention under a preventative detention order, the
police officer who is detaining the person under the order must
15 endorse on the order --
(a) the date on which, and time at which, the person is first
taken into custody or is first in detention under the
order; and
(b) particulars of where the person is being kept in
20 detention.
26. Exercising powers, general matters
(1) Schedule 1 applies in relation to exercising any power in this
Part.
(2) A person in relation to whom a police officer is about to
25 exercise, or is exercising, a power in this Part may request the
officer to identify himself or herself.
(3) A police officer requested by a person to identify himself or
herself must --
(a) give the person the officer's surname and rank; and
30 (b) if the officer is not in uniform, show the person evidence
that the officer is a police officer.
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(4) Subsections (2) and (3) do not affect the operation of the
Criminal Investigation (Identifying People) Act 2002 section 16.
27. Personal details of certain people may be obtained
(1) This section must be read as one with the Criminal Investigation
5 (Identifying People) Act 2002.
(2) In this section, a term that is not defined in this Act has the
meaning given to it by the Criminal Investigation (Identifying
People) Act 2002.
(3) If a police officer reasonably suspects that a person whose
10 personal details are unknown to the officer may be able to assist
the police officer in executing a preventative detention order,
the officer may exercise the powers in the Criminal
Investigation (Identifying People) Act 2002 section 16 as if the
person were reasonably suspected by the officer to be able to
15 assist in the investigation of a suspected offence.
(4) The Criminal Investigation (Identifying People) Act 2002
section 16, with any necessary changes, applies to and in respect
of the exercise of the powers in subsection (3) as if the powers
were conferred by that Act.
20 28. Power to enter places
(1) Subject to subsection (2), if --
(a) a preventative detention order is in force in relation to a
person; and
(b) a police officer believes on reasonable grounds that the
25 person is on, at or in any place,
the police officer may enter the place for the purpose of
searching the place for the person or taking the person into
custody.
(2) A police officer must not enter any place that is used for
30 residential purposes at any time during the period commencing
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at 9 p.m. on a day and ending at 6 a.m. on the following day
unless the police officer believes on reasonable grounds that --
(a) it would not be practicable to take the person into
custody, either at that place or elsewhere, at another
5 time; or
(b) it is necessary to do so in order to prevent the
concealment, loss or destruction of evidence of, or
relating to, a terrorist act.
29. Use of force
10 In the course of --
(a) taking a person into custody under a preventative
detention order; or
(b) preventing the escape of a person who is being detained
by a police officer under a preventative detention order,
15 a police officer --
(c) must not use more force, or subject the person to greater
indignity, than is reasonably necessary in the
circumstances; and
(d) must not use force which causes death or grievous
20 bodily harm unless that force is used lawfully in
self-defence or defence of another.
30. Power to search people
(1) If a police officer who takes a person into custody under a
preventative detention order, or who is present when the person
25 is taken into custody, reasonably suspects --
(a) that it is prudent to search the person in order to
ascertain whether the person is carrying any seizable
items; or
(b) that the person is carrying any seizable items or
30 evidence of, or relating to, a terrorist act,
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the police officer may do a basic search or strip search (as
defined in Schedule 2 clause 1) of the person at, or soon after,
the time when the person is taken into custody, and seize any
seizable items or evidence of, or relating to, a terrorist act found
5 as a result of the search.
(2) Schedule 2 applies in relation to a search of a person under this
section.
(3) A police officer must not do a strip search of a person under
subsection (1) unless the officer reasonably suspects --
10 (a) that a strip search is necessary; and
(b) that the seriousness and urgency of the situation require
a strip search to be done.
(4) This section does not affect the carrying out of any search that
may lawfully be carried out when a person is taken into
15 detention, or is in detention, in an institution or lock-up.
31. Warrant under section 34D of the Australian Security
Intelligence Organisation Act 1979
(1) This section applies if --
(a) a person is in detention under a preventative detention
20 order;
(b) a warrant under the ASIO Act section 34D is in force in
relation to the person; and
(c) a copy of the warrant is given to the police officer who
is detaining the person under the preventative detention
25 order.
(2) The police officer must take such steps as are necessary to
ensure that the person may be dealt with in accordance with the
warrant.
(3) Without limiting subsection (2), the police officer may, under
30 section 32, release the person from detention under the
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preventative detention order so that the person may be dealt
with in accordance with the warrant.
(4) To avoid doubt, the fact that the person is released from
detention under the preventative detention order so that the
5 person may be --
(a) questioned under the warrant before a prescribed
authority appointed under the ASIO Act section 34B; or
(b) detained under the warrant in connection with that
questioning,
10 does not extend the period for which the preventative detention
order remains in force in relation to the person.
32. 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
15 detention under the order.
Note: A person may be released, for example, so that the person may be
arrested and otherwise dealt with for a suspected offence.
(2) The police officer who releases the person from detention under
the preventative detention order must give the person a signed
20 written statement that the person is being released from that
detention and identifies the police officer who signs it.
(3) Subsection (2) does not apply if the police officer releases the
person from detention so that the person may --
(a) be dealt with in accordance with a warrant under the
25 ASIO Act section 34D;
(b) be dealt with under the provisions of Division 4 of
Part IAA, or Part IC, of the Crimes Act 1914 of the
Commonwealth; or
(c) be dealt with according to law in relation to a suspected
30 offence (whether or not the offence is one that the
person is suspected of committing).
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(4) In subsection (3)(c) --
"dealt with" includes taken into custody, questioned,
examined, searched, required to provide identification
material or subjected to having identification material
5 taken.
(5) To avoid doubt, a person may be taken to have been released
from detention under a preventative detention order even if --
(a) the person is informed that he or she is being released
from detention under the order; and
10 (b) the person is taken into custody on some other basis
immediately after the person is informed that he or she
is being released from detention under the order.
(6) To avoid doubt, a person is taken not to be detained under a
preventative detention order during a period during which the
15 person is released from detention under the order.
Note: During this period, the provisions of this Part that apply to a person
who is in detention under a preventative detention order (for example,
section 40(1) which deals with the people the person may contact) do
not apply to the person.
20 (7) To avoid doubt --
(a) the release of the person under subsection (1) from
detention under the preventative detention order does
not extend the period for which the preventative
detention order remains in force; and
25 Note: This means that the time for which the person may be
detained under the order continues to run while the person
is released.
(b) a person released under subsection (1) from detention
under a preventative detention order may again be taken
30 into custody and kept in detention under the order at any
time while the order remains in force in relation to the
person.
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33. Arrangement for person to be in detention in a prison or
detention centre
(1) A senior police officer may arrange for a person who is in
detention under a preventative detention order to be detained
5 under the order --
(a) in the case of a person who has reached 18 years of
age -- in a prison; or
(b) in the case of a person who is under 18 years of age --
in an appropriate prison or a detention centre.
10 Note: Under section 16 a preventative detention order cannot be made in
relation to a person who is under 16 years of age.
(2) An arrangement under subsection (1) for detention in a prison
may be made with --
(a) the chief executive officer of the department principally
15 assisting the Minister administering the Prisons
Act 1981 to administer that Act; or
(b) a person authorised by that chief executive officer to
agree to such arrangements.
(3) An arrangement under subsection (1) for detention in a
20 detention centre may be made with --
(a) the chief executive officer of the department principally
assisting the Minister administering the Young Offenders
Act 1994 to administer that Act; or
(b) a person authorised by that chief executive officer to
25 agree to such arrangements.
(4) If an arrangement is made under subsection (1) --
(a) the preventative detention order is taken to order the
person to be detained in the institution and authorise the
person in charge of the institution to keep the person in
30 detention while the order is in force;
(b) the entitlements of the person under the Prisons
Act 1981 section 53 and Parts VI and VIII as a prisoner,
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or the Young Offenders Act 1994 as a detainee, have
effect subject to sections 40, 44 and 46 and to any
prohibited contact order made in relation to the person's
detention under the preventative detention order;
5 (c) the entitlements of the person under sections 41, 43
and 45 have effect subject to the Prisons Act 1981 and
the Young Offenders Act 1994, and, in particular, the
person is not entitled to communicate with anyone else
by email;
10 (d) section 39 applies in relation to the person's detention
under the order at the institution as if --
(i) the person in charge of it; or
(ii) any other person involved in the subject's
detention at the institution,
15 were a person exercising authority under the order or
implementing or enforcing the order;
(e) the senior police officer who makes the arrangement is
taken, while the person is in detention at the institution,
to be the police officer detaining the person for the
20 purposes of sections 20, 22 and 32 and Parts 5 and 6;
and
(f) the person in charge of the institution must notify the
Inspector of Custodial Services as soon as practicable
after the person's detention in the institution begins.
25 (5) Subsection (4)(b) applies in relation to --
(a) the Prisons Act 1981 sections 62 and 64 (but not
section 67(1)); and
(b) the Young Offenders Act 1994 section 8(c),
as if they conferred entitlements on the person.
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34. Inspector of Custodial Services to be notified of detention
(1) As soon as practicable after a person is first taken into custody
under a preventative detention order, the senior police officer
nominated under section 24(2) in relation to the order must --
5 (a) give the Inspector of Custodial Services a copy of the
order; and
(b) notify the Inspector of Custodial Services as to the place
where the person is being detained.
(2) The lawfulness of a person's detention under a preventative
10 detention order is not affected by a failure to comply with
subsection (1).
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Part 5 -- Informing person detained about
preventative detention order
35. Effect of preventative detention order to be explained to
person detained
5 (1) As soon as practicable after a person is first taken into custody,
or is first in detention, 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).
(2) The matters covered by this subsection are --
10 (a) the fact that the preventative detention order has been
made in relation to the person;
(b) the requirement for there to be a review of the order
under Part 3 and the fact that the person will have an
opportunity to be heard on the review of the order;
15 (c) the period during which the person may be kept in
detention under the order;
(d) if the period of detention is less than the maximum
permissible under this Act -- the fact that an application
may be made for a further preventative detention order;
20 (e) the person's entitlement under section 41 to contact
family members and others;
(f) the person's entitlement under section 42(1) to contact
the Parliamentary Commissioner;
(g) the person's entitlement under section 42(2) to contact
25 the Corruption and Crime Commission;
(h) the person's entitlement under section 43 to contact a
lawyer;
(i) if section 45 applies to the person, the person's
entitlement under that section to contact parents,
30 guardians and others;
(j) the restrictions that apply as to the disclosures that the
person is entitled to make while the person is in
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detention under the order, and the consequences of
failing to comply with those restrictions;
(k) the restrictions that apply to the people the person may
contact while the person is in detention under the order;
5 (l) the fact that the person may seek from a court a remedy
relating to --
(i) the order; or
(ii) the treatment of the person in connection with
the person's detention under the order;
10 and
(m) the surname, rank and contact telephone number of the
senior police officer nominated under section 24(2) to
oversee the exercise of powers under and the
performance of duties in relation to the order.
15 (3) Subsection (2) does not require the police officer to inform the
person in detention of --
(a) the fact that a prohibited contact order has been made in
relation to the person's detention; or
(b) the name of a person specified in a prohibited contact
20 order that has been made in relation to the person's
detention.
(4) If the person is detained in an institution, the person in charge of
the institution must, as soon as practicable after the person's
detention in the institution begins, notify the person of the
25 person's entitlement under section 42(3) to contact the Inspector
of Custodial Services.
36. Compliance with duties to inform
(1) Section 35(1) does not apply if the actions of the person in
detention under the preventative detention order prevent the
30 police officer from complying with the relevant provision.
(2) The police officer detaining the person under the preventative
detention order complies with section 35(1) if the police officer
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informs the person in substance of the matters covered by
section 35(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
5 preventative detention order must arrange for the assistance of
an interpreter in complying with section 35(1) if the police
officer has reasonable grounds to believe that the person is
unable to communicate with reasonable fluency in the English
language.
10 (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
section 35(1) or (4) or subsection (3).
15 37. Copy of preventative detention order and summary of
grounds
(1) As soon as practicable after a person is first taken into custody,
or is first in detention, under a preventative detention order, the
police officer who is detaining the person under the order must
20 give the person --
(a) a copy of the order; and
(b) a summary of the grounds on which the 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
25 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 police officer takes the person into
custody.
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(4) A person who is in detention under a preventative detention
order may request a police officer who is detaining the person to
arrange for a copy of --
(a) the order; or
5 (b) the summary given to the person under
subsection (1)(b),
or copies of both the order and the summary, to be given to a
lawyer acting for the person in relation to the order.
(5) The police officer must make arrangements for a copy of the
10 order or the summary to be given to the lawyer as soon as
practicable after the request is made.
(6) Without limiting subsection (5), the copy of the order or the
summary may be faxed or emailed to the lawyer.
(7) To avoid doubt, subsection (5) does not entitle the lawyer to be
15 given a copy of, or to see, a document other than the order or
the summary.
(8) Nothing in this section requires a copy of a prohibited contact
order to be given to a person.
(9) The police officer who gives --
20 (a) a person in detention under a preventative detention
order; or
(b) a lawyer acting for the person,
a copy of the preventative detention order under this section
must endorse on the copy the date on which, and time at which,
25 the person was first taken into custody, or was first in detention,
under the order.
(10) The lawfulness of a person's detention under a preventative
detention order is not affected by a failure to comply with
subsection (1), (5) or (9).
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Part 6 -- Treatment of person in detention
38. Application of Part
This Part applies to and in relation to a person (referred to in
this Part as the "detainee") who is in detention under a
5 preventative detention order (referred to in this Part as the
"PDO").
39. Humane treatment of detainee
(1) The detainee --
(a) must be treated with humanity and with respect for
10 human dignity; and
(b) must not be subjected to cruel, inhuman or degrading
treatment,
by anyone exercising authority under the PDO or implementing
or enforcing the PDO.
15 (2) The Inspector of Custodial Services may, at any time, review
the detainee's detention under the PDO to determine whether
subsection (1) is being complied with in relation to the detainee.
(3) The Inspector of Custodial Services may, at any time, report
to --
20 (a) the Commissioner; and
(b) the senior police officer nominated under section 24(2)
in relation to the PDO,
on any matter relating to a review under subsection (2) and give
advice or make recommendations as the Inspector of Custodial
25 Services considers appropriate in relation to the matter.
(4) For the purposes of this section the Inspector of Custodial
Services may exercise any power conferred by the Inspector of
Custodial Services Act 2003 whether or not the place where the
detainee is being detained is a place referred to in section 19 of
30 that Act.
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40. Restriction on contact with other people
(1) Except as provided by sections 41, 42, 43 or 45, the detainee --
(a) is not entitled to contact another person; and
(b) may be prevented from contacting another person.
5 Note: This subsection will not apply to the person if the person is released
from detention under the order (even though the order may still be in
force in relation to the person).
(2) Subsection (1) does not apply to contact with a person
performing functions in connection with the detainee's
10 detention under the PDO.
(3) Sections 41, 43 and 45 have effect subject to any prohibited
contact order made in relation to the detainee's detention.
41. Contacting family members and home or work associates
(1) The detainee is entitled to contact --
15 (a) one family member of the detainee;
(b) if the detainee --
(i) lives with another person and that other person is
not a family member of detainee; or
(ii) lives with other people and those other people
20 are not family members of the detainee,
that other person or one of those other people;
(c) if the detainee is employed -- the detainee's employer;
(d) if the detainee employs people in a business -- one of
the people the detainee employs in that business;
25 (e) if the detainee engages in a business together with
another person or other people -- that other person or
one of those other people; and
(f) if the police officer detaining the detainee agrees to the
person contacting another person -- that other person,
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Part 6 Treatment of person in detention
s. 42
by telephone, fax or email but solely for the purposes of letting
the person contacted know that the detainee is safe but is not
able to be contacted for the time being.
(2) To avoid doubt, the detainee is not entitled, under
5 subsection (1), to disclose --
(a) the fact that a preventative detention order has been
made in relation to the detainee;
(b) the fact that the detainee is in detention; or
(c) the period for which the subject is to be kept in
10 detention.
(3) In this section --
"family member" of the detainee means --
(a) the detainee's spouse or de facto partner;
(b) a parent, step-parent or grandparent of the detainee;
15 (c) a child, stepchild or grandchild of the detainee;
(d) a brother, sister, stepbrother or stepsister of the
detainee; or
(e) a guardian or carer of the detainee.
42. Contacting Parliamentary Commissioner, Corruption and
20 Crime Commission or Inspector of Custodial Services
(1) Without limiting the Parliamentary Commissioner Act 1971 or
the Prisons Act 1981 section 67, the detainee is entitled to
contact the Parliamentary Commissioner to make a complaint in
writing in relation to a matter of administration in connection
25 with the detainee's detention under the PDO.
(2) Without limiting the Corruption and Crime Commission
Act 2003, the detainee is entitled to contact the Corruption and
Crime Commission to make an allegation of misconduct in
connection with the detainee's detention under the PDO.
30 (3) Without limiting the Prisons Act 1981 section 67, if the detainee
is detained in an institution, the detainee is entitled to contact
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the Inspector of Custodial Services to make representations that
are in connection with the detainee's detention under the PDO
and relate to the exercise of the jurisdiction of the Inspector of
Custodial Services.
5 43. Contacting lawyer
(1) The detainee is entitled to contact a lawyer but solely for the
purpose of --
(a) obtaining advice from the lawyer about the detainee's
legal rights in relation to --
10 (i) the PDO; or
(ii) the treatment of the detainee in connection with
the detainee's detention under the PDO;
(b) arranging for the lawyer to act for the detainee in
relation to, and instructing the lawyer in relation to, the
15 review of the PDO by the Supreme Court;
(c) arranging for the lawyer to act for the detainee in
relation to, and instructing the lawyer in relation to,
proceedings in a court for a remedy relating to --
(i) the PDO; or
20 (ii) the treatment of the detainee in connection with
the detainee's detention under the PDO;
(d) arranging for the lawyer to act for the detainee in
relation to, and instructing the lawyer in relation to, a
complaint under the Parliamentary Commissioner
25 Act 1971 in relation to a matter of administration in
connection with the detainee's detention under the PDO;
(e) arranging for the lawyer to make an allegation of
misconduct to the Corruption and Crime Commission in
connection with the detainee's detention under the PDO;
30 (f) arranging for the lawyer to make representations to the
Inspector of Custodial Services that are in connection
with the detainee's detention under the PDO, and relate
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to the exercise of the jurisdiction of the Inspector of
Custodial Services; or
(g) arranging for the lawyer to act for the detainee in
relation to an appearance, or hearing, before a court that
5 is to take place while the detainee is in detention under
the PDO.
(2) The form of contact that the detainee is entitled to have with a
lawyer under subsection (1) includes --
(a) being visited by the lawyer; and
10 (b) communicating with the lawyer by telephone, fax or
email.
(3) If --
(a) the detainee asks to be allowed to contact a particular
lawyer under subsection (1); and
15 (b) either --
(i) the detainee is not entitled to contact that lawyer
because of a prohibited contact order; or
(ii) the detainee is not able to contact that lawyer,
the police officer who is detaining the detainee must give the
20 detainee reasonable assistance to choose another lawyer for the
detainee to contact under subsection (1).
(4) In recommending lawyers to the detainee as part of giving the
detainee assistance under subsection (3), the police officer who
is detaining the detainee may give priority to lawyers who have
25 been given a security clearance at an appropriate level by the
Attorney General's Department of the Commonwealth.
(5) Despite subsection (4) but subject to any prohibited contact
order to the contrary, the detainee is entitled under this section
to contact a lawyer who does not have a security clearance of
30 the kind referred to in subsection (4).
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44. Monitoring contact with family members, home or work
associates or lawyer
(1) The contact the detainee has with another person under
section 41 may take place only if it is conducted in such a way
5 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 PDO.
(2) Unless the senior police officer nominated under section 24(2)
10 approves otherwise, the contact the detainee has with a lawyer
under section 43 may take place only if it is conducted in such a
way that the contact, and the content and meaning of the
communication that takes place during the contact, can be
effectively monitored by a police officer exercising authority
15 under the PDO.
(3) If subsection (1) or (2) applies, 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.
20 (4) Without limiting subsection (3), the interpreter referred to in
that subsection may be a police officer.
(5) If the detainee indicates that he or she wishes the contact to take
place in a language other than English, the police officer who is
detaining the detainee must --
25 (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 detainee is being
kept in detention; and
(b) if it is reasonably practicable to do so -- arrange for
30 those services to be provided as soon as practicable.
(6) Any communication between --
(a) the detainee; and
(b) a lawyer,
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for a purpose referred to in section 43(1) is not admissible in
evidence against the detainee in any proceedings in a court.
(7) If the lawyer referred to in subsection (2) has a current security
clearance to "Secret" level given by the Attorney General's
5 Department of the Commonwealth, subsection (2) does not
apply unless an issuing authority has made an order (a
"monitoring order") authorising the contact the detainee has
with the lawyer under section 43 to be monitored.
(8) Sections 18(1) to (5) and 19 apply in relation to a monitoring
10 order, and an application for a monitoring order, as if references
in those provisions to a prohibited contact order were references
to a monitoring order.
(9) An issuing authority may make a monitoring order if it is
satisfied, on reasonable grounds, that making the monitoring
15 order will assist in achieving the purpose for which the PDO
was made.
45. Special contact rules for people under 18 or incapable of
managing their own affairs
(1) This section applies if the detainee --
20 (a) is under 18 years of age; or
(b) is incapable of managing his or her affairs.
(2) The detainee is entitled to have contact with --
(a) a parent or guardian of the detainee; or
(b) another person who --
25 (i) is able to represent the detainee's interests;
(ii) is, as far as practicable in the circumstances,
acceptable to the detainee and to the police
officer who is detaining the detainee;
(iii) is not a police officer;
30 (iv) is not employed in duties related to the
administration of the police force;
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(v) is not a member (however described) of a police
force of the Commonwealth, another State or a
Territory; and
(vi) is not an officer or employee of the Australian
5 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 the contrary, to have contact under
10 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) --
15 (i) the fact that the PDO has been made in relation
to the detainee;
(ii) the fact that the detainee is in detention;
(iii) the period for which the detainee is to be kept in
detention.
20 (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.
25 (5) The aggregate period for which the detainee is entitled to have
contact with a person or persons each day under subsection (2)
is --
(a) 2 hours; or
(b) such longer period as is specified in the PDO.
30 (6) Despite subsection (5), the police officer who is detaining the
detainee may permit the detainee to have contact with a person
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or persons under subsection (2) for longer than the period
provided for in subsection (5).
(7) The contact that the detainee has with a person under
subsection (2) must be conducted in such a way that the content
5 and meaning of any communication that takes place during the
contact can be effectively monitored by a police officer
exercising authority under the PDO.
(8) If the communication that takes place during the contact takes
place in a language other than English, the contact may continue
10 only if the content and meaning of the communication in that
language can be effectively monitored with the assistance of an
interpreter.
(9) Without limiting subsection (8), the interpreter referred to in
that subsection may be a police officer.
15 (10) If the detainee indicates that he or she wishes the
communication that takes place during the contact to take place
in a language other than English, the police officer who is
detaining the detainee must --
(a) arrange for the services of an appropriate interpreter to
20 be provided if it is reasonably practicable to do so
during the period during which the detainee is being
kept in detention; and
(b) if it is reasonably practicable to do so -- arrange for
those services to be provided as soon as practicable.
25 (11) The entitlements of the detainee under this section are in
addition to those that the detainee has under sections 41 and 43.
46. Disclosure offences
(1) If the detainee, while in detention under the PDO, discloses to
another person --
30 (a) the fact that a preventative detention order has been
made in relation to the detainee;
(b) the fact that the detainee is in detention; or
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(c) the period for which the detainee is to be kept in
detention,
the detainee commits a crime unless the disclosure is one that
the detainee is entitled to make under section 42, 43 or 45.
5 Penalty: imprisonment for 5 years.
(2) Subsection (3) applies to a lawyer (the "lawyer") who --
(a) is given a copy of the PDO, or a summary of the
grounds on which the PDO is made, under section 37(5);
or
10 (b) is contacted by the detainee under section 43.
(3) If the lawyer, while the detainee is in detention under the PDO,
discloses to another person --
(a) the fact that a preventative detention order has been
made in relation to the detainee;
15 (b) the fact that the detainee is in detention;
(c) the period for which the detainee is to be kept in
detention; or
(d) any information that the lawyer --
(i) has as a result of being given the copy or
20 summary mentioned in subsection (2)(a); or
(ii) is given by the detainee in the course of the
contact mentioned in subsection (2)(b),
the lawyer commits a crime unless the disclosure is made --
(e) for the purposes of proceedings in the Supreme Court
25 for a review of the PDO;
(f) for the purposes of proceedings in a court for a remedy
relating to the PDO or the treatment of the detainee in
connection with the detainee's detention under the PDO;
(g) for the purposes of a complaint under the Parliamentary
30 Commissioner Act 1971 in relation to a matter of
administration in connection with the detainee's
detention under the PDO;
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(h) for the purposes of making an allegation of misconduct
to the Corruption and Crime Commission in connection
with the detainee's detention under the PDO;
(i) for the purposes of making representations to the
5 Inspector of Custodial Services that are in connection
with the detainee's detention under the PDO and relate
to the exercise of the jurisdiction of the Inspector of
Custodial Services; or
(j) for the purposes of making representations to the senior
10 police officer nominated under section 24(2) in relation
to the PDO, or another police officer involved in the
detainee's detention, about --
(i) the exercise of powers under, or the performance
of duties in relation to, the PDO; or
15 (ii) the treatment of the detainee in connection with
the detainee's detention under the PDO.
Penalty: imprisonment for 5 years.
(4) If the detainee has contact with a person (the
"parent/guardian") under section 45 and the parent/guardian,
20 while the detainee is in detention under the PDO, discloses to
another person --
(a) the fact that a preventative detention order has been
made in relation to the detainee;
(b) the fact that the detainee is in detention;
25 (c) the period for which the detainee is to be kept in
detention; or
(d) any information that the detainee gives the
parent/guardian in the course of the contact,
the parent/guardian commits a crime unless the disclosure is
30 made --
(e) to a person with whom the detainee has also had contact
under section 45 while in detention under the PDO;
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(f) for the purposes of a complaint under the Parliamentary
Commissioner Act 1971 in relation to a matter of
administration in connection with the detainee's
detention under the PDO;
5 (g) for the purposes of making an allegation of misconduct
to the Corruption and Crime Commission in connection
with the detainee's detention under the PDO;
(h) for the purposes of making representations to the
Inspector of Custodial Services that are in connection
10 with the detainee's detention under the PDO and relate
to the exercise of the jurisdiction of the Inspector of
Custodial Services; or
(i) for the purposes of making representations to the senior
police officer nominated under section 24(2) in relation
15 to the PDO, or another police officer involved in the
detainee's detention, about --
(i) the exercise of powers under, or the performance
of duties in relation to, the PDO; or
(ii) the treatment of the detainee in connection with
20 the detainee's detention under the PDO.
Penalty: imprisonment for 5 years.
(5) To avoid doubt, a person does not contravene subsection (4)
merely by letting another person know that the detainee is safe
but is not able to be contacted for the time being.
25 (6) In subsection (7) --
"interpreter" means an interpreter who assists in monitoring
the contact that the detainee has with someone while the
detainee is in detention under the PDO.
(7) If an interpreter, while the detainee is in detention under the
30 PDO, discloses to another person --
(a) the fact that a preventative detention order has been
made in relation to the detainee;
(b) the fact that the detainee is in detention;
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(c) the period for which the detainee is to be kept in
detention; or
(d) any information that the interpreter obtains in the course
of assisting in the monitoring of that contact,
5 the interpreter commits a crime.
Penalty: imprisonment for 5 years.
(8) If --
(a) a person (the "earlier discloser") intentionally discloses
any of the following information to another person (the
10 "disclosure recipient") --
(i) the fact that a preventative detention order has
been made in relation to a person;
(ii) the fact that a person is in detention under a
preventative detention order;
15 (iii) the period for which a person is to be kept in
detention under a preventative detention order;
(iv) any information that a person communicates to
another while the person is in detention under a
preventative detention order;
20 (b) the disclosure by the earlier discloser to the disclosure
recipient contravenes subsection (1), (3), (4) or (7) or
this subsection; and
(c) the disclosure recipient discloses that information to
another person while the person referred to in
25 paragraph (a)(i), (ii), (iii) or (iv) is in detention under the
PDO,
the disclosure recipient commits a crime.
Penalty: imprisonment for 5 years.
(9) If --
30 (a) a person (the "monitor") is --
(i) a police officer who monitors; or
(ii) an interpreter who assists in monitoring,
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contact that the detainee has with a lawyer under
section 43 while the detainee is in detention under the
PDO;
(b) information is communicated in the course of that
5 contact;
(c) the information is communicated for one of the purposes
referred to in section 43(1); and
(d) the monitor discloses that information to another person,
the monitor commits a crime.
10 Penalty: imprisonment for 5 years.
47. Detainee not to be questioned while in detention
A police officer must not question the detainee except for the
purposes of --
(a) determining whether the detainee is the person specified
15 in the PDO;
(b) ensuring the safety and well being of the detainee; or
(c) allowing the police officer to comply with a requirement
of this Act in relation to the detainee's detention under
the PDO.
20 Note: 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).
48. Taking identification material
(1) In this section --
25 "qualified person", in relation to an identifying particular,
means a person who is qualified under the Criminal
Investigation (Identifying People) Act 2002 to do the
procedure in the course of which the identifying particular
is obtained.
30 (2) A police officer must not take identification material, or cause
identification material to be taken, from the detainee except in
accordance with this section.
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(3) A police officer may take, or cause the taking of, identification
material (other than an identifying particular) from the detainee
if --
(a) the detainee consents in writing; or
5 (b) the police officer believes on reasonable grounds that it
is necessary to do so for the purpose of confirming the
detainee's identity as the person specified in the PDO.
(4) A police officer may cause a qualified person to take an
identifying particular from the detainee if --
10 (a) the detainee consents in writing; or
(b) the police officer believes on reasonable grounds that it
is necessary to do so for the purpose of confirming the
detainee's identity as the person specified in the PDO.
(5) Schedule 1 applies in relation to exercising the power in
15 subsections (3) and (4).
(6) Subject to this section, a police officer must not take, or cause
the taking of, identification material from the detainee if the
detainee --
(a) is under 18 years of age; or
20 (b) is incapable of managing his or her affairs,
unless a Magistrate orders that the material be taken.
(7) Subsection (6) does not apply to taking --
(a) a print of the detainee's hands (including fingers), feet
(including toes) or ears; or
25 (b) a photograph of the detainee or of any of the detainee's
features.
(8) In deciding whether to make an order under subsection (6), the
Magistrate must have regard to --
(a) the age, or any disability, of the detainee; and
30 (b) such other matters as the Magistrate thinks fit.
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(9) If the detainee --
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs,
the taking of identification material from the detainee must be
5 done in the presence of --
(c) a parent or guardian of the detainee; or
(d) if a parent or guardian of the detainee is not acceptable
to the detainee -- another appropriate person.
(10) Despite this section, identification material may be taken from
10 the detainee even if he or she is under 18 years of age or is
incapable of managing his or her affairs as long as --
(a) subsections (12) and (13) apply; or
(b) subsection (12) or (13) applies (but not both) and a
Magistrate orders that the material be taken.
15 (11) In deciding whether to make an order under subsection (10)(b),
the Magistrate must have regard to the matters set out in
subsection (8).
(12) This subsection applies if the detainee agrees in writing to the
taking of the identification material.
20 (13) This subsection applies if either --
(a) a parent or guardian of the detainee; or
(b) if a parent or guardian is not acceptable to the
detainee -- another appropriate person,
agrees in writing to the taking of the identification material.
25 (14) A reference in this section to an "appropriate person" where
the detainee is under 18 years of age, or incapable of managing
his or her affairs, is a reference to a person who --
(a) is capable of representing the detainee's interests;
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(b) as far as is practicable in the circumstances, is
acceptable to the detainee and the police officer who is
detaining the detainee; and
(c) is none of the following --
5 (i) a police officer;
(ii) a person employed in duties related to the
administration of the police force;
(iii) a member (however described) of a police force
of the Commonwealth, another State or a
10 Territory;
(iv) an officer or employee of the Australian Security
Intelligence Organisation.
49. Use of identification material
(1) This section applies if identification material is taken from the
15 detainee under section 48.
(2) The identification material may be used only for the purpose of
determining whether the detainee is the person specified in the
PDO.
(3) If --
20 (a) a period of 12 months elapses after the identification
material is taken; and
(b) proceedings in respect of --
(i) the PDO; or
(ii) the treatment of the person in connection with
25 the person's detention under the PDO,
have not been brought, or have been brought and
discontinued or completed, within that period,
the material must be destroyed as soon as practicable after the
end of that period.
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50. Offences of contravening safeguards
A person commits an offence if --
(a) the person engages in conduct; and
(b) the conduct contravenes --
5 (i) section 35(1) or (4);
(ii) section 39(1);
(iii) section 47;
(iv) section 48(2), (6) or (9); or
(v) section 49(2).
10 Penalty: imprisonment for 2 years.
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Part 7 -- Miscellaneous
51. Commissioner's functions may be performed by others
(1) In this section --
"authorised" means authorised under subsection (3);
5 "Deputy Commissioner" means a police officer who holds or
is acting in the office of Deputy Commissioner.
(2) The Commissioner's functions in this Act, other than the power
in subsection (3), may be performed --
(a) if the office of Commissioner is vacant, or if the
10 Commissioner is on leave or out of the State or
otherwise unavailable to exercise the functions -- by an
authorised Deputy Commissioner; or
(b) if paragraph (a) applies but every Deputy Commissioner
is on leave or out of the State or otherwise unavailable
15 to exercise the functions -- by an authorised police
officer who holds or is acting in a rank more senior than
Superintendent.
(3) The Commissioner, in writing, may authorise one or more
Deputy Commissioners or other police officers who hold or are
20 acting in a rank more senior than Superintendent for the
purposes of this section.
(4) If any of the Commissioner's functions in this Act is performed
by a person other than the Commissioner, the person must
notify the Commissioner of the fact as soon as practicable.
25 52. Nature of functions of Magistrate
(1) A function of making an order conferred on a Magistrate by
section 48 is conferred on the Magistrate in a personal capacity
and not as a court or a member of a court.
(2) Without limiting subsection (1), an order made by a Magistrate
30 under section 48 has effect only by virtue of this Act and is not
to be taken by implication to be made by a court.
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(3) A Magistrate performing a function of, or connected with,
making an order under section 48 has the same protection and
immunity as if he or she were performing that function as, or as
a member of, the Magistrates Court.
5 53. Restrictions on publicity about proceedings in
Supreme Court
(1) Despite any rule or practice to the contrary, proceedings under
this Act are not to be conducted in public nor publicised in any
public list of the Supreme Court's business.
10 (2) The Supreme Court must establish appropriate procedures to
ensure that information about --
(a) the Court's proceedings on review of a preventative
detention order under this Act; and
(b) any other proceedings brought before the Court in
15 relation to a preventative detention order or a prohibited
contact order,
is confined within the narrowest possible limits.
(3) However the Supreme Court is not required to suppress the
publication of information under this section if --
20 (a) the Minister authorises its publication; or
(b) the Court determines that the publication of the
information could not conceivably prejudice national
security and that its publication should be authorised in
the public interest.
25 54. Quarterly report about preventative detention orders
(1) In this section --
"quarter" means a period of 3 months ending on 31 March,
30 June, 30 September or 31 December.
(2) The Minister must, by 31 January, 30 April, 31 July and
30 31 October in each year, cause a report to be prepared about the
operation of this Act during the previous quarter.
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(3) Without limiting subsection (2), a report relating to a financial
year must include the following information --
(a) the number of preventative detention orders made under
section 13 during the quarter;
5 (b) whether a person was taken into custody, or kept in
custody, under each of those orders and, if so, how long
the person was in detention for;
(c) the number of reviews conducted under Part 3 during
the quarter and the outcome of them;
10 (d) the number of prohibited contact orders made under
sections 17 and 18 during the quarter.
(4) The Minister must cause the report to be tabled before each
House of the Parliament within 14 sitting days of that House
after the report is completed.
15 55. Powers of others not affected
(1) This Act does not affect --
(a) a function under the Parliamentary Commissioner
Act 1971 of the Parliamentary Commissioner;
(b) a function under the Corruption and Crime Commission
20 Act 2003 of the Corruption and Crime Commission, the
Commissioner (within the meaning of that Act) or the
Parliamentary Inspector;
(c) a function under the Inspector of Custodial Services
Act 2003 of the Inspector of Custodial Services; or
25 (d) a function under the Prisons Act 1981, or the Young
Offenders Act 1994, of a visiting justice.
(2) If a person is in detention under a preventative detention order,
the Parliamentary Commissioner Act 1971 section 23(1b) does
not authorise the disclosure of information, or the making of a
30 statement, in relation to the person or the detention unless the
Parliamentary Commissioner has first consulted the
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s. (3)
Commissioner about disclosing the information or making the
statement.
(3) If a person is in detention under a preventative detention order,
the Inspector of Custodial Services Act 2003 section 46(1) does
5 not authorise the disclosure of information, or the making of a
statement, in relation to the person or the detention unless the
Inspector of Custodial Services has first consulted the
Commissioner about disclosing the information or making the
statement.
10 56. Law relating to legal professional privilege not affected
To avoid doubt, this Act does not affect the law relating to legal
professional privilege.
57. Legal proceedings in relation to preventative detention
orders
15 (1) Proceedings may be brought in a court for a remedy in relation
to --
(a) a preventative detention order; or
(b) the treatment of a person in connection with the person's
detention under a preventative detention order.
20 (2) Without limiting subsection (1) if, under section 22(8), the
Supreme Court has quashed a preventative detention order, or
declared a preventative detention order to have been void, the
person referred to in that section as the subject may apply to the
Supreme Court for compensation.
25 (3) On an application under subsection (2) the applicant is not
entitled to compensation merely because the preventative
detention order was quashed or declared to have been void but
the Supreme Court may determine that the State should
compensate the applicant if it considers that compensation is
30 warranted in the particular circumstances of the case.
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(4) If the Supreme Court makes a determination under
subsection (3), the State is liable to pay the compensation
determined by the Court.
58. Regulations
5 The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
59. Review of Act
10 (1) In this section --
"first anniversary" means the day of the first anniversary of
the day on which this Act receives the Royal Assent.
(2) The Minister must carry out a review of this Act as soon as is
practicable after --
15 (a) the first anniversary; and
(b) the expiry of each 3 yearly interval after the first
anniversary.
(3) The review must review the operation and effectiveness of this
Act, whether its provisions are appropriate having regard to its
20 object, and whether it should continue in operation.
(4) The Minister must prepare a report based on the review and, as
soon as practicable after it is prepared, cause it to be tabled
before each House of Parliament.
60. Expiry of orders and power to make them
25 (1) In this section --
"expiry day" means the day of the tenth anniversary of the day
on which this Act receives the Royal Assent.
(2) A preventative detention order, or a prohibited contact order,
that is in force immediately before the expiry day ceases to be in
30 force at the start of the expiry day.
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Terrorism (Preventative Detention) Bill 2005
Miscellaneous Part 7
s. 60
(3) A preventative detention order, and a prohibited contact order,
cannot be applied for, or made, on or after the expiry day.
page 61
Terrorism (Preventative Detention) Bill 2005
Schedule 1 Ancillary provisions about exercising powers
cl. 1
Schedule 1 -- Ancillary provisions about exercising powers
[s. 26(1), 48(5)]
1. When powers may be exercised
A power in this Act may be exercised at any time of the day or night,
5 unless it is expressly provided otherwise.
2. Assistance to exercise powers
(1) A police officer who may exercise a power in this Act may authorise
as many other persons to assist in exercising the power as are
reasonably necessary in the circumstances.
10 (2) A person so authorised may exercise the power or assist the other to
exercise the power, as the case requires.
(3) Whether requested to do so or not, a person may assist a police officer
to exercise a power in this Act if the person reasonably suspects that
the officer --
15 (a) is lawfully entitled to exercise the power; and
(b) needs assistance for the purpose of doing so.
(4) A person who under this clause is authorised by a police officer to
exercise a power, or is assisting a police officer to exercise a power,
must obey any lawful and reasonable directions of the officer when
20 exercising or assisting to exercise the power.
3. Use of force when exercising powers
(1) When exercising a power in this Act, a police officer may use any
force against any person or thing that it is reasonably necessary to use
in the circumstances --
25 (a) to exercise the power; and
(b) to overcome any resistance to exercising the power that is
offered, or that the police officer reasonably suspects will be
offered, by any person.
(2) If under subclause (1) a person uses force, the force may be such as
30 causes damage to the property of another person.
page 62
Terrorism (Preventative Detention) Bill 2005
Ancillary provisions about exercising powers Schedule 1
cl. 4
(3) To the extent of any inconsistency between this clause and section 29,
section 29 prevails.
4. Areas may be cordoned off
(1) In this clause --
5 "authorised", in relation to a cordoned off area, means authorised by
a police officer in attendance at the area;
"disturb" includes to damage, destroy, interfere with and remove.
(2) In order to facilitate or assist exercising any of the powers in this Act
in any place, a police officer may cordon off the place or a part of it.
10 (3) In order to cordon off an area, the officer must take reasonable steps
to notify people of the existence and boundaries of the area.
(4) The area cordoned off must not be greater than is reasonably
necessary for the purposes for which it is established.
(5) While an area is cordoned off, a police officer must remain near the
15 area and may take reasonable measures, including giving orders --
(a) to preserve the evidentiary value of the area or any thing in
the area;
(b) to secure the area against unauthorised disturbance;
(c) to prevent an unauthorised person, animal or vehicle from
20 disturbing the area;
(d) to restrict entry to the area to people, animals, and vehicles,
that are authorised;
(e) to remove an unauthorised person, animal or vehicle from the
area;
25 (f) if the area is established in or around a vehicle, to prevent the
vehicle from being moved.
(6) An unauthorised person who, without reasonable excuse (the onus of
proving which is on the person), enters a cordoned off area commits
an offence.
30 Penalty: a fine of $12 000 and imprisonment for 12 months.
page 63
Terrorism (Preventative Detention) Bill 2005
Schedule 1 Ancillary provisions about exercising powers
cl. 5
(7) An unauthorised person who, without reasonable excuse (the onus of
proving which is on the person), disturbs any thing in a cordoned off
area commits an offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
5 5. Returning seized things
A police officer who seizes a thing under this Act must return it to the
person who owned it, or had lawful possession of it, when it was
seized if the officer is satisfied that --
(a) the thing does not need to be retained as evidence; and
10 (b) it would be lawful for the person to possess the thing.
page 64
Terrorism (Preventative Detention) Bill 2005
Searching people Schedule 2
cl. 1
Schedule 2 -- Searching people
[s. 30(2)]
Division 1 -- Preliminary
1. Terms used in this Schedule
5 In this Schedule --
"basic search" of a person, means a search that complies with
clause 2;
"frisk search" a person, means to quickly and methodically run the
hands over the outside of the person's clothing;
10 "private parts" of a person, means the person's genital area, anal
area, buttocks and, in the case of --
(a) a female; or
(b) a male undergoing a reassignment procedure, as that term
is defined in the Gender Reassignment Act 2000 section 3,
15 the person's breasts;
"strip search" of a person, means a search that complies with
clause 3.
2. Basic search
A police officer authorised by this Act to do a basic search of a person
20 may do any or all of the following --
(a) scan the person with an electronic or mechanical device,
whether hand held or not, to detect any thing;
(b) remove the person's headwear, gloves, footwear or outer
clothing (such as a coat or jacket), but not his or her inner
25 clothing or underwear, in order to facilitate a frisk search;
(c) frisk search the person;
(d) search any article removed under paragraph (b).
page 65
Terrorism (Preventative Detention) Bill 2005
Schedule 2 Searching people
Division 1 Preliminary
cl. 3
3. Strip search
(1) A police officer authorised by this Act to do a strip search of a person
may do any or all of the following --
(a) remove any article that the person is wearing including any
5 article covering his or her private parts;
(b) search any article removed under paragraph (a);
(c) search the person's external parts, including his or her private
parts.
(2) A police officer authorised by this Act to do a strip search of a person
10 is not entitled to search any of the person's bodily cavities.
4. Ascertaining gender of person
If it is necessary to ascertain the gender of a person before exercising
a power in this Act on the person and the gender of the person is
uncertain to the officer authorised to exercise the power --
15 (a) the officer must ask the person to indicate whether a male or
a female should exercise the power on the person and must
act in accordance with the answer; and
(b) in the absence of an answer, the person must be treated as if
of the gender that the person outwardly appears to the officer
20 to be.
5. Powers to assist doing searches
A police officer authorised by this Act to do a basic search or a strip
search of a person may do any or all of the following --
(a) stop and detain the person for a reasonable period;
25 (b) search any thing being carried by or under the immediate
control of the person;
(c) order the person to remove any thing that might injure the
searcher when doing the search from any article that the
person is wearing;
30 (d) order the person to do anything reasonable to facilitate the
search;
page 66
Terrorism (Preventative Detention) Bill 2005
Searching people Schedule 2
How searches must be done Division 2
cl. 6
(e) in the case of a strip search, order the person to accompany
the searcher to a place where the search can be done in
accordance with clause 7(4).
Division 2 -- How searches must be done
5 6. Operation of this Division
A police officer must comply with this Division unless, due to the
urgency of the situation or other circumstances, it is not reasonably
practicable to do so.
7. General procedure
10 (1) This clause operates if a police officer (the "searcher") is authorised
by this Act to do a basic search or a strip search on a person.
(2) Before the searcher does a basic search or a strip search on the person
the searcher must --
(a) request the person to consent to the search; and
15 (b) if the person does not consent to the search or withdraws his
or her consent, inform the person that it is an offence to
obstruct the searcher doing the search.
(3) If a basic search or a strip search is done on a person --
(a) it must be done as quickly as is reasonably practicable;
20 (b) it must not be any more intrusive than is reasonably necessary
in the circumstances;
(c) it must be done by a person of the same gender as the person
being searched unless the person doing it is a doctor or a
nurse;
25 (d) the searcher, if he or she proposes to remove any article that
the person is wearing, must tell the person why it is
considered necessary to do so;
(e) the person must be allowed to dress as soon as it is finished;
(f) the person must be provided with a reasonably adequate
30 replacement for any article of clothing or footwear seized if,
due to the seizure, the person is left without adequate clothing
or footwear in the circumstances; and
page 67
Terrorism (Preventative Detention) Bill 2005
Schedule 2 Searching people
Division 2 How searches must be done
cl. 8
(g) the person must not be questioned while it is being done
about any offence that he or she is suspected of having
committed.
(4) If a strip search is done on a person that involves removing any article
5 that the person is wearing or searching the person's private parts --
(a) any person present while it is done must be of the same
gender as the person being searched;
(b) it must be done in circumstances affording reasonable privacy
to the person;
10 (c) it must not involve the removal of more articles being worn
by the person than is reasonably necessary for doing it;
(d) the person's private parts must not be searched unless the
searcher reasonably suspects it is necessary to do so for the
purposes of the search;
15 (e) it must not involve more visual inspection than is reasonably
necessary for doing it; and
(f) the number of people present while it is done (excluding a
person who is present under clause 8) must not be more than
is reasonably necessary to ensure it is done effectively and to
20 ensure the safety of all present.
8. Strip searches of protected people
(1) In this clause --
"child" means a person who is under 18 years of age and in respect of
whom there are no reasonable grounds to suspect that he or she
25 is an incapable person;
"incapable person" means a person of any age --
(a) who is unable by reason of a mental disability (which term
includes intellectual disability, a psychiatric condition, an
acquired brain injury and dementia) to understand the
30 general nature and effect of, and the reason for and the
consequences of undergoing, a strip search; or
(b) who is unconscious or otherwise unable to understand a
request made or information given under this Act or to
communicate whether or not he or she consents to
35 undergoing a strip search;
page 68
Terrorism (Preventative Detention) Bill 2005
Searching people Schedule 2
How searches must be done Division 2
cl. 8
"protected person" means a person who is a child or an incapable
person;
"responsible person" for a child, means --
(a) a parent of the child;
5 (b) a guardian of the child;
(c) another person who has responsibility for the day to day
care of the child; or
(d) if no person mentioned in another paragraph of this
definition is available -- a person, or a person in a class of
10 persons, prescribed;
"responsible person" for an incapable person, means --
(a) the spouse or de facto partner of the incapable person;
(b) a parent of the incapable person;
(c) if the incapable person is under 18 years of age -- a
15 guardian of the incapable person;
(d) if the incapable person has reached 18 years of age -- the
Public Advocate or a guardian of the incapable person
appointed under the Guardianship and Administration
Act 1990;
20 (e) another person who has responsibility for the day to day
care of the incapable person; or
(f) if no person mentioned in another paragraph of this
definition is available -- a person, or a person in a class of
persons, prescribed.
25 (2) If a strip search is done on a protected person, it must be done in the
presence of a responsible person for the protected person or some
other person who can provide the protected person with support and
represent his or her interests.
page 69
Terrorism (Preventative Detention) Bill 2005
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
allegation of misconduct.............................................................................. 4(1)
appropriate person ....................................................................................48(14)
ASIO Act .................................................................................................... 4(1)
authorised ......................................................................... 51(1), Sch. 1, cl. 4(1)
basic search......................................................................................Sch. 2, cl. 1
child............................................................................................ Sch. 2, cl. 8(1)
Commissioner ............................................................................................. 4(1)
corresponding law ....................................................................................... 4(1)
Corruption and Crime Commission.............................................................. 4(1)
dealt with ...................................................................................................32(4)
Deputy Commissioner ................................................................................51(1)
detainee.......................................................................................................... 38
detention centre........................................................................................... 4(1)
disclosure recipient.....................................................................................46(8)
disturb......................................................................................... Sch. 1, cl. 4(1)
earlier discloser ..........................................................................................46(8)
evidence of, or relating to, a terrorist act ...................................................... 4(1)
expiry day ..................................................................................................60(1)
family member ...........................................................................................41(3)
first anniversary..........................................................................................59(1)
frisk search.......................................................................................Sch. 2, cl. 1
identification material.................................................................................. 4(1)
identifying particular ................................................................................... 4(1)
incapable person.......................................................................... Sch. 2, cl. 8(1)
Inspector of Custodial Services.................................................................... 4(1)
institution.................................................................................................... 4(1)
interpreter...................................................................................................46(6)
issuing authority.......................................................................................... 4(1)
judge........................................................................................................... 4(1)
lawyer ............................................................................................... 4(1), 46(2)
lock-up........................................................................................................ 4(1)
monitor ......................................................................................................46(9)
national security .......................................................................................... 4(1)
nominated senior police officer...................................................................24(2)
occurrence time information .......................................................................15(5)
parent/guardian...........................................................................................46(4)
Parliamentary Commissioner ....................................................................... 4(1)
PDO............................................................................................................... 38
page 70
Terrorism (Preventative Detention) Bill 2005
Defined Terms
permitted detention period ................................................................. 4(1), 13(2)
person to whom section 9 applies......................................................... 9(1), 9(3)
place ........................................................................................................... 4(1)
preservation order.......................................................................................15(1)
preventative detention order......................................................................... 4(1)
prevention order .........................................................................................15(1)
prison.......................................................................................................... 4(1)
private parts .....................................................................................Sch. 2, cl. 1
prohibited contact order............................................................................... 4(1)
protected person .......................................................................... Sch. 2, cl. 8(1)
qualified person..........................................................................................48(1)
quarter........................................................................................................54(1)
reasonably suspects ..................................................................................4(1), 5
remote communication .................................................................... 12(1), 22(1)
responsible person .......................................................Sch. 2, cl. 8(1), 2, cl. 8(1)
review proceedings.....................................................................................22(1)
searcher....................................................................................... Sch. 2, cl. 7(1)
seizable item ............................................................................................... 4(1)
senior police officer..................................................................................... 4(1)
strip search.......................................................................................Sch. 2, cl. 1
subject................................................................................... 17(1), 18(1), 22(2)
terrorist act.......................................................................................... 4(1), 6(1)
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