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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
TERRORISM (PREVENTATIVE DETENTION)
BILL 2005
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. What is a terrorist act?
PART 2 - PREVENTATIVE DETENTION ORDERS
5. Application for preventative detention order
6. Form and content of application
7. Preventative detention orders
8. Nature of preventative detention order
9. Duration of preventative detention orders
10. When order starts and ceases to have effect
11. Extension of preventative detention order
12. No preventative detention order in relation to person under 16
years of age
13. Restrictions on multiple preventative detention orders
14. Prohibited contact order (person in relation to whom
preventative detention order is being sought)
15. Prohibited contact order (person in relation to whom
preventative detention order is already in force)
[Bill 87]-1
16. Application by detainee for revocation or variation of
preventative detention order or prohibited contact order
17. Application by police for revocation or variation of preventative
detention order or prohibited contact order
PART 3 - CARRYING OUT PREVENTATIVE DETENTION ORDERS
18. Power to detain person under preventative detention order
19. Endorsement of order with date and time person taken into
custody or detained
20. Requirement to provide name, &c.
21. Power to enter premises
22. Power to conduct personal search
23. Warrant under section 34D of the Australian Security
Intelligence Organisation Act 1979 of the Commonwealth
24. Release of person from preventative detention
25. Arrangement for detainee to be held in prison
PART 4 - INFORMING PERSON DETAINED ABOUT
PREVENTATIVE DETENTION ORDER
26. Effect of preventative detention order to be explained to person
detained
27. Person being detained to be informed of extension of
preventative detention order
28. Compliance with obligations to inform
29. Copy of preventative detention order and prohibited contact
order
PART 5 - TREATMENT OF PERSON DETAINED
30. Humane treatment of person being detained
31. Restriction on contact with other people
32. Contacting family members, &c.
33. Contacting Ombudsman
34. Contacting lawyer
35. Monitoring contact under section 32 or 34
36. Special contact rules for person under 18 or incapable of
managing own affairs
2
37. Entitlement to contact subject to prohibited contact order
38. Disclosure offences
39. Questioning of person prohibited while person is detained
40. Taking identification material
41. Use of identification material
42. Offences of contravening safeguards
PART 6 - MISCELLANEOUS
43. Standard of proof
44. Nature of proceedings
45. False or misleading information or documents
46. Police officer detaining person under a preventative detention
order
47. Ombudsman, &c., functions and powers not affected
48. Law relating to legal professional privilege not affected
49. Legal proceedings in relation to orders
50. Closure of Supreme Court and restriction on publication of
proceedings
51. Annual report
52. Regulations
53. Administration of Act
54. Sunset provision
3
4
TERRORISM (PREVENTATIVE DETENTION)
BILL 2005
(Brought in by the Premier, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to allow persons to be taken into custody and
detained in order to prevent an imminent terrorist act
occurring or preserve evidence of, or relating to, a recent
terrorist act and for related matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Terrorism
(Preventative Detention) Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
3. Interpretation
(1) In this Act, unless the contrary intention
appears -
[Bill 87] 5
s. 3 No. Terrorism (Preventative Detention) 2005
"AFP employee" has the same meaning as in
the Australian Federal Police Act 1979
of the Commonwealth;
"AFP member" has the same meaning as in
Part 5.3 of the Criminal Code Act 1995
of the Commonwealth;
"authorised police officer" means a police
officer appointed by the Commissioner
of Police under subsection (2);
"Commonwealth control order" has the
same meaning as "control order" has in
Part 5.3 of the Criminal Code Act 1995
of the Commonwealth;
"corresponding preventative detention
law" means -
(a) Division 105 of the Criminal
Code Act 1995 of the
Commonwealth; or
(b) a law of another State or of a
Territory, or particular provisions
of a law of another State or of a
Territory, that -
(i) corresponds or correspond
to this Act; or
(ii) is or are declared by the
regulations to correspond
to this Act;
"Director of Corrective Services" has the
same meaning as in the Corrections Act
1997;
6
2005 Terrorism (Preventative Detention) No. s. 3
"identification material", in relation to a
person, means samples taken from a part
of the person's body from which a DNA
profile may be derived, prints of the
person's hands, fingers, feet or toes,
recordings of the person's voice, samples
of the person's handwriting or
photographs (including video recordings)
of the person;
"interim preventative detention order"
means an interim preventative detention
order made by the Supreme Court under
section 7;
"lawyer" means a legal practitioner within the
meaning of paragraph (a) of the
definition of "legal practitioner" in
section 3 of the Legal Profession Act
1993;
"premises" includes -
(a) land; and
(b) a building or vehicle; and
(c) a part of a building or vehicle;
and
(d) any place, whether built on or
not;
"prescribed authority" has the same
meaning as in Division 3 of Part III of
the Australian Security Intelligence
Organisation Act 1979 of the
Commonwealth;
7
s. 3 No. Terrorism (Preventative Detention) 2005
"preventative detention order" means an
order made under section 7, as varied
under section 16 or 17, and includes an
interim preventative detention order;
"prison" has the same meaning as in the
Corrections Act 1997;
"prohibited contact order" means an order
made under section 14 or 15, as varied
under section 16 or 17;
"seizable item" means anything that -
(a) could present a danger to a
person; or
(b) could be used to assist a person to
escape from lawful custody; or
(c) could be used to contact another
person or to operate a device
remotely;
"senior police officer" means a police officer
of or above the rank of Assistant
Commissioner;
"terrorist act" has the meaning given by
section 4;
"thing" includes any object, article or
material;
"vehicle" means any thing capable of
transporting people or things by air, road,
rail or water, regardless of how the thing
is moved or propelled.
8
2005 Terrorism (Preventative Detention) No. s. 4
(2) The Commissioner of Police may appoint in
writing police officers, or a class or classes of
police officers, to be authorised police officers
for the purpose of making applications under
sections 5, 15 and 17.
(3) A note in the text of this Act does not form part
of this Act.
4. What is a terrorist act?
(1) In this Act -
"terrorist act" means an action or threat of
action where -
(a) the action falls within
subsection (2) and does not fall
within subsection (3); and
(b) the action is done or the threat is
made with the intention of
advancing a political, religious or
ideological cause; and
(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, Territory or foreign
country; or
9
s. 4 No. Terrorism (Preventative Detention) 2005
(ii) intimidating the public or
a section of the public.
(2) Action falls within this subsection if it -
(a) causes serious harm that is physical harm
to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the
life of the person taking the action; or
(e) creates a serious risk to the health or
safety of the public or a section of the
public; or
(f) seriously interferes with, seriously
disrupts, or destroys, an electronic
system including, but not limited to -
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of
essential government services; or
(v) a system used for, or by, an
essential public utility; or
(vi) a system used for, or by, a
transport system.
(3) Action falls within this subsection if it -
10
2005 Terrorism (Preventative Detention) No. s. 4
(a) is advocacy, protest, dissent or industrial
action; and
(b) is not intended -
(i) to cause serious harm that is
physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person,
other than the person taking the
action; or
(iv) to create a serious risk to the
health or safety of the public or a
section of the public.
Note: The above definition is in the same terms as that inserted
into Part 5.3 of the Commonwealth Criminal Code by a
Commonwealth Act based on the reference to the Parliament of the
Commonwealth of certain matters relating to terrorist acts made by
the Terrorism (Commonwealth Powers) Act 2002.
11
s. 5 No. Terrorism (Preventative Detention) 2005
PART 2 - PREVENTATIVE DETENTION ORDERS
5. Application for preventative detention order
(1) An authorised police officer (the "applicant")
may apply to the Supreme Court or, subject to
subsection (3), to a senior police officer for a
preventative detention order in relation to a
person (the "subject") if -
(a) the applicant is satisfied that -
(i) there are reasonable grounds to
suspect that the subject -
(A) will engage in a terrorist
act; or
(B) possesses or has under his
or her control (whether
solely or jointly with any
other person) a thing that
is connected with the
preparation for, or the
engagement of a person
in, a terrorist act; or
(C) has done an act in
preparation for, or
planning, a terrorist act;
and
(ii) making the order would
substantially assist in preventing
a terrorist act occurring; and
(iii) detaining the subject for the
period for which the applicant is
12
2005 Terrorism (Preventative Detention) No. s. 5
seeking to have him or her
detained under the order is
reasonably necessary for the
purpose referred to in sub-
subparagraph (ii); or
(b) the applicant is satisfied that -
(i) a terrorist act has occurred within
the last 28 days; and
(ii) it is necessary to detain the
subject to preserve evidence of,
or relating to, the terrorist act;
and
(iii) detaining the subject for the
period for which the applicant is
seeking to have him or her
detained under the order is
reasonably necessary for the
purpose referred to in sub-
subparagraph (ii).
(2) A terrorist act referred to in subsection (1)(a)
must be one -
(a) that is imminent; and
(b) that is expected to occur, in any event, at
some time in the next 14 days.
(3) An application may only be made to a senior
police officer if the applicant considers that -
(a) there is an urgent need for the order; and
(b) it is not reasonably practicable in the
circumstances for the application to be
made to the Supreme Court.
13
s. 6 No. Terrorism (Preventative Detention) 2005
6. Form and content of application
(1) An application under section 5 must -
(a) be made in writing; and
(b) set out the facts and other grounds on
which the applicant considers that the
preventative detention order should be
made; and
(c) specify the period for which the applicant
is seeking to have the person detained
under the order and set out the facts and
other grounds on which the applicant
considers that the person should be
detained for that period; and
(d) set out the information (if any) that the
applicant has about the person's age and
capacity to manage his or her affairs; and
(e) set out the following:
(i) the outcomes and particulars of
all previous applications for
preventative detention orders in
relation to the person;
(ii) the information (if any) that the
applicant has about -
(A) the outcomes and
particulars of all previous
requests for
Commonwealth control
orders (including the
outcomes of the hearings
to confirm the orders) in
relation to the person; and
14
2005 Terrorism (Preventative Detention) No. s. 6
(B) the outcomes and
particulars of all previous
applications for variations
of Commonwealth control
orders made in relation to
the person; and
(C) the outcomes of all
previous applications for
revocations of
Commonwealth control
orders made in relation to
the person; and
(f) set out the information (if any) that the
applicant has about any periods for
which the person has been detained
under an order made under a
corresponding preventative detention
law.
(2) If -
(a) a preventative detention order is made in
relation to a person on the basis of
assisting in preventing a terrorist act
occurring within a particular period; and
(b) the person is taken into custody under the
order; and
(c) an application is made for another
preventative detention order in relation to
the person on the basis of assisting in
preventing a different terrorist act
occurring within that period -
the application must also identify the
information on which the application is based
15
s. 6 No. Terrorism (Preventative Detention) 2005
that became available only after the preventative
detention order referred to in paragraph (a) was
made.
(3) If -
(a) an order for a person's detention is made
under a corresponding preventative
detention law on the basis of assisting in
preventing a terrorist act occurring within
a particular period; and
(b) the person is taken into custody under
that order; and
(c) an application is made for a preventative
detention order in relation to the person
on the basis of assisting in preventing a
different terrorist act occurring within
that period -
the application must also identify the
information on which the application is based
that became available only after the order
referred to in paragraph (a) was made.
(4) The information in the application must be
sworn by the applicant.
Note: Section 45 creates an offence for providing false or
misleading information or documents in connection with an
application to a senior police officer.
(5) An application to a senior police officer may be
made without notice of it being given to the
person in relation to whom a preventative
detention order is being sought.
(6) An application to the Supreme Court may only
be made without notice of it being given to the
16
2005 Terrorism (Preventative Detention) No. s. 7
person in relation to whom a preventative
detention order is being sought if that person is
not then being detained under -
(a) a preventative detention order made by a
senior police officer; or
(b) an order for the person's detention made
under a corresponding preventative
detention law.
7. Preventative detention orders
(1) The Supreme Court or the senior police officer
may, on an application under section 5, make a
preventative detention order in relation to a
person if -
(a) satisfied on reasonable grounds that -
(i) the person -
(A) will engage in a terrorist
act; or
(B) possesses or has under his
or her control (whether
solely or jointly with any
other person) a thing that
is connected with the
preparation for, or the
engagement of a person
in, a terrorist act; or
(C) has done an act in
preparation for, or in
planning, a terrorist act;
and
17
s. 7 No. Terrorism (Preventative Detention) 2005
(ii) making the order would
substantially assist in preventing
a terrorist act occurring; and
(iii) detaining the person for the
period for which he or she is to
be detained under the order is
reasonably necessary for the
purpose referred to in
subparagraph (ii); or
(b) satisfied on reasonable grounds that -
(i) a terrorist act has occurred within
the last 28 days; and
(ii) it is necessary to detain the
person to preserve evidence of, or
relating to, the terrorist act; and
(iii) detaining the person for the
period for which he or she is to
be detained under the order is
reasonably necessary for the
purpose referred to in
subparagraph (ii).
(2) A terrorist act referred to in subsection (1)(a)
must be one -
(a) that is imminent; and
(b) that is expected to occur, in any event, at
some time in the next 14 days.
(3) The Supreme Court or the senior police officer
may refuse to make a preventative detention
order unless the authorised police officer
applying for it gives the Court or the officer (as
the case requires) any further information that it,
18
2005 Terrorism (Preventative Detention) No. s. 7
he or she requests concerning the grounds on
which the order is sought.
(4) If the application to the Supreme Court is made
without notice of it being given to the person in
relation to whom a preventative detention order
is being sought, the Supreme Court may, if in its
opinion it is desirable to do so, make an interim
preventative detention order pending the hearing
and final determination of the application.
Note: The maximum period during which a person may be
detained under an interim order is 48 hours or until the final
determination of the application, whichever is the later: see
section 9(3).
(5) If the Supreme Court makes an interim
preventative detention order, it must -
(a) specify a day on which, and time at
which, the hearing of the application is to
be resumed; and
(b) direct the applicant to cause notice of the
resumed hearing to be given to -
(i) the person in relation to whom
the interim order is made; and
(ii) if the applicant is aware of the
identity of a lawyer who acts for
that person in relation to any
matter, that lawyer.
(6) On a resumed hearing referred to in
subsection (5), the person in relation to whom
the interim order is made is entitled to appear
and give evidence, call witnesses, examine and
cross-examine witnesses, adduce material and
make submissions. However, his or her absence
19
s. 7 No. Terrorism (Preventative Detention) 2005
does not prevent the Supreme Court from finally
determining the application.
(7) An interim preventative detention order that, but
for this subsection, would cease to have effect
before the application is finally determined,
continues to have effect, subject to section 9(2),
until the application is finally determined.
(8) On finally determining an application following
the making of an interim preventative detention
order, the Supreme Court may by order -
(a) confirm the order without variation or
vary the period specified in the order as
the period during which the person in
relation to whom it is made may be
detained under it; or
Note: The period of detention in the confirmed order may be
extended, or further extended, under section 11.
(b) revoke the order if not satisfied as
mentioned in subsection (1).
(9) If the person in relation to whom the interim
preventative detention order is made is being
detained in a prison, the applicant for that order
must cause a copy of any order made under
subsection (8) to be given to the Director of
Corrective Services as soon as practicable after it
is made.
(10) On the hearing by the Supreme Court of an
application under section 5 (including a resumed
hearing referred to in subsection (5) of this
section) -
20
2005 Terrorism (Preventative Detention) No. s. 7
(a) the person in relation to whom a
preventative detention order is being
sought (including a person in relation to
whom an interim preventative detention
order or a preventative detention order
made by a senior police officer is in
force) is entitled to appear and give
evidence, call witnesses, examine and
cross-examine witnesses, adduce
material and make submissions; but
(b) the absence of that person does not
prevent the Supreme Court from
determining, or finally determining, the
application.
(11) If, on an application by an authorised police
officer for the making of a preventative
detention order in relation to a person who is
being detained under a preventative detention
order made or purportedly made by a senior
police officer (the "police order"), the Supreme
Court is satisfied that the making or purported
making of the police order was so unreasonable
that no senior police officer acting reasonably
could have made that order, the Supreme Court
may -
(a) declare the police order to be void from
its beginning; and
(b) determine that the State should
compensate the person, as assessed by
the Supreme Court, in respect of any loss
sustained or damage incurred by the
person as a direct and reasonable
consequence of his or her detention
under the police order.
21
s. 8 No. Terrorism (Preventative Detention) 2005
(12) If the Supreme Court makes a determination
under subsection (11)(b), the State is liable to
pay the compensation assessed by the Supreme
Court and the Consolidated Fund is, to the
necessary extent, appropriated for this purpose.
8. Nature of preventative detention order
(1) A preventative detention order is an order that
the person in relation to whom it is made may
be -
(a) taken into custody (unless he or she is
already being detained under a
preventative detention order, or an order
for his or her detention made under a
corresponding preventative detention
law, that is in force or was in force
immediately before the making of the
new order); and
(b) detained during the period that -
(i) starts when the person is first
taken into custody or detained
under the order (the "start"); and
(ii) ends a specified period of time
after the start.
(2) The order must be in writing.
(3) Subject to section 9, the period of time specified
in the order under subsection (1)(b)(ii) must not
exceed 14 days.
(4) A preventative detention order must set out -
22
2005 Terrorism (Preventative Detention) No. s. 8
(a) the name of the person in relation to
whom it is made; and
(b) the period during which the person may
be detained under the order; and
(c) the place or places where the person may
be, or must not be, detained under the
order; and
(d) the date on which, and the time at which,
the order is made; and
(e) whether the person is prohibited from
disclosing under section 32(2) the period
for which he or she is being detained;
and
(f) whether the person is allowed to have
any further contact with a person under
section 32(4) and, if so -
(i) the person or persons with whom
he or she may have contact; and
(ii) the period for which he or she
may have contact on any day and
the number of days on which he
or she may have such contact;
and
(iii) whether the person is prohibited
from disclosing the period for
which he or she is being detained
to a person with whom he or she
has contact; and
(iv) any other conditions applicable to
the contact; and
23
s. 9 No. Terrorism (Preventative Detention) 2005
(g) if applicable, particulars of the order for
the person's detention made under a
corresponding preventative detention law
on the ceasing to have effect of which the
order is to start to have effect; and
(h) if applicable, the date and time after
which the person may not be taken into
custody under the order.
(5) If the person in relation to whom the order is
made is -
(a) under 18 years of age; or
(b) incapable of managing his or her affairs -
the order may provide that the period each day
for which the person is entitled to have contact
with another person under section 36(2) is the
period of more than 2 hours that is specified in
the order.
9. Duration of preventative detention orders
(1) The maximum period that may be specified in a
preventative detention order made by a senior
police officer as the period during which a
person may be detained under the order is 24
hours.
(2) Subject to subsection (3), the maximum period
(including that period, as extended, or further
extended, under section 11) that may be
specified in a preventative detention order made
by the Supreme Court as the period during which
a person may be detained under the order is 14
24
2005 Terrorism (Preventative Detention) No. s. 9
days less any period during which the person is
actually detained under -
(a) a preventative detention order made by a
senior police officer; or
(b) an order for the person's detention made
under a corresponding preventative
detention law -
on the same basis.
(3) The maximum period that may be specified in an
interim preventative detention order made by the
Supreme Court as the period during which a
person may be detained under the order is 48
hours.
(4) Despite the period of detention specified in a
preventative detention order made by a senior
police officer, as soon as practicable after the
person in relation to whom the order is made is
first taken into custody or detained under the
order, an application for a preventative detention
order in relation to the person must be made to
the Supreme Court.
(5) To avoid doubt, for the purposes of
subsection (2) orders are made on the same basis
if -
(a) in the case of orders made on the basis of
preventing a terrorist act from occurring,
they relate to the same terrorist act
occurring within the same period; and
(b) in the case of orders made on the basis of
preserving evidence of, or relating to, a
terrorist act, they relate to the same
terrorist act.
25
s. 10 No. Terrorism (Preventative Detention) 2005
10. When order starts and ceases to have effect
(1) A preventative detention order in relation to a
person starts to have effect -
(a) if the preventative detention order so
provides, on an order for the person's
detention made under a corresponding
preventative detention law ceasing to
have effect; or
(b) in any other case, when it is made.
Note: When the order starts to have effect it authorises the person
to be taken into custody, if necessary (see section 8(1)(a)). The
period for which the person may be detained under the order only
starts to run when the person is first taken into custody or detained
under the order (section 8(1)(b)).
(2) A preventative detention order in relation to a
person under which the person is required to be
taken into custody ceases to have effect at the
end of the period of 48 hours after the order is
made if the person has not been taken into
custody under the order within that period.
(3) If a preventative detention order does not cease
to have effect under subsection (2), it ceases to
have effect when whichever of the following
first occurs:
(a) the end of -
(i) the period specified in the order
as the period during which the
person may be detained under the
order; or
(ii) if that period is extended or
further extended under
26
2005 Terrorism (Preventative Detention) No. s. 11
section 11, that period as
extended or further extended;
(b) if the order was made by a senior police
officer, a preventative detention order is
made by the Supreme Court in relation to
the same person;
(c) the revocation of the order under
section 7, 16 or 17.
Note: The order does not cease to have effect merely because the
person is released from detention under the order.
11. Extension of preventative detention order
(1) If -
(a) a preventative detention order is made by
the Supreme Court in relation to a person
on the final determination of an
application under section 5; and
(b) the order is in force in relation to the
person -
an authorised police officer may apply to the
Supreme Court for an extension, or a further
extension, of the period for which the order is to
be in force in relation to the person.
(2) The application must -
(a) be made in writing; and
(b) set out the facts and other grounds on
which the applicant considers that the
extension, or further extension, is
27
s. 11 No. Terrorism (Preventative Detention) 2005
reasonably necessary for the purpose for
which the order was made; and
(c) set out the outcomes and particulars of
all previous applications for extensions,
or further extensions, of the order.
(3) The information in the application must be
sworn by the applicant.
(4) The applicant must cause notice of the
application to be given to the person in relation
to whom the preventative detention order is in
force.
(5) The person in relation to whom the preventative
detention order is in force is entitled to appear on
the hearing and give evidence, call witnesses,
examine and cross-examine witnesses, adduce
material and make submissions. However, his or
her absence does not prevent the Supreme Court
from determining the application.
(6) The Supreme Court may, by order, extend or
further extend the period for which the order is
to be in force in relation to the person if it is
satisfied that detaining the person under the
order for the period as extended, or further
extended, is reasonably necessary for the
purpose for which the order was made.
(7) The order must be in writing.
(8) The extension, or further extension, must not
result in the preventative detention order
specifying a period in excess of the maximum
period permissible under section 9(2).
(9) If the person in relation to whom the order is in
force is being detained in a prison and the
28
2005 Terrorism (Preventative Detention) No. s. 12
Supreme Court makes an order under
subsection (6) that extends, or further extends,
the period for which the order is to be in force,
the applicant must cause a copy of the order
under that subsection to be given to the Director
of Corrective Services as soon as practicable
after it is made.
12. No preventative detention order in relation to
person under 16 years of age
(1) A preventative detention order cannot be applied
for, or made, in relation to a person who is under
16 years of age.
Note: See also section 36 and section 40(4) to (10) for the special
rules for people who are under 18 years of age.
(2) If -
(a) a person is being detained under a
preventative detention order or a
purported preventative detention order;
and
(b) the police officer who is detaining the
person is satisfied on reasonable grounds
that the person is under 16 years of age -
the police officer must release the person or
arrange in writing for his or her release, as soon
as practicable, from detention under the order or
purported order.
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s. 13 No. Terrorism (Preventative Detention) 2005
13. Restrictions on multiple preventative detention
orders
(1) If -
(a) a preventative detention order is made in
relation to a person on the basis of
assisting in preventing a terrorist act
occurring within a particular period; and
(b) the person is being detained under that
order -
another preventative detention order cannot be
applied for, or made, under this Part in relation
to the person on the basis of assisting in
preventing a different terrorist act occurring
within that period unless the application, or the
order, is based on information that became
available only after the preventative detention
order referred to in paragraph (a) was made.
(2) If -
(a) an order for a person's detention is made
under a corresponding preventative
detention law on the basis of assisting in
preventing a terrorist act occurring within
a particular period; and
(b) the person is being detained under that
order -
a preventative detention order cannot be applied
for to, or made by, a senior police officer under
this Part in relation to the person on the basis of
assisting in preventing the same terrorist act
occurring within that period.
(3) If -
30
2005 Terrorism (Preventative Detention) No. s. 13
(a) an order for a person's detention is made
under a corresponding preventative
detention law on the basis of assisting in
preventing a terrorist act occurring within
a particular period; and
(b) the person is being detained under that
order -
a preventative detention order cannot be applied
for, or made, under this Part in relation to the
person on the basis of assisting in preventing a
different terrorist act occurring within that period
unless the application, or the order, is based on
information that became available only after the
order referred to in paragraph (a) was made.
(4) If -
(a) an order for a person's detention is made
under a corresponding preventative
detention law on the basis of preserving
evidence of, or relating to, a terrorist act;
and
(b) the person is being detained under that
order -
a preventative detention order cannot be applied
for to, or made by, a senior police officer under
this Part in relation to the person on the basis of
preserving evidence of, or relating to, the same
terrorist act.
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s. 14 No. Terrorism (Preventative Detention) 2005
14. Prohibited contact order (person in relation to
whom preventative detention order is being sought)
(1) An authorised police officer who applies for a
preventative detention order in relation to a
person (the "subject") may also apply for a
prohibited contact order under this section in
relation to the subject's detention under the
preventative detention order.
(2) The application must set out -
(a) the terms of the order sought; and
(b) the facts and other grounds on which the
applicant considers that the order should
be made.
(3) The information in the application must be
sworn by the applicant.
Note: Section 45 creates an offence for providing false or
misleading information or documents in connection with an
application to a senior police officer.
(4) An application to the Supreme Court may only
be made without notice of it being given to the
person in relation to whom a prohibited contact
order is being sought if that person is not then
being detained under -
(a) a preventative detention order made by a
senior police officer; or
(b) an order for the person's detention made
under a corresponding preventative
detention law.
(5) If the application to the Supreme Court is made
without notice of it being given to the person in
32
2005 Terrorism (Preventative Detention) No. s. 14
relation to whom the prohibited contact order is
being sought and the order is being sought in
conjunction with an application for a
preventative detention order under section 5, the
Court may, if in its opinion it is desirable to do
so, make an interim prohibited contact order
pending the hearing and final determination of
the application at the resumed hearing of the
application for the preventative detention order.
(6) The person in relation to whose detention an
application for a prohibited contact order is
made to the Supreme Court under this section is
entitled to be given notice of the application and
to appear and give evidence, call witnesses,
examine and cross-examine witnesses, adduce
material and make submissions in relation to it.
However, his or her absence does not prevent the
Supreme Court from determining the
application.
(7) If the Supreme Court or the senior police officer,
as the case requires -
(a) makes the preventative detention order;
and
(b) is satisfied on reasonable grounds that
making the prohibited contact order will
assist in achieving the purpose of the
preventative detention order -
the Court or officer may make a prohibited
contact order under this section that the subject
is not, while being detained under the
preventative detention order, to contact any
person specified in the prohibited contact order.
(8) The prohibited contact order must be in writing.
33
s. 15 No. Terrorism (Preventative Detention) 2005
15. 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 person (the "subject"), an
authorised police officer may apply to the
Supreme Court or, if the preventative detention
order was made by a senior police officer, to a
senior police officer for a prohibited contact
order under this section in relation to the
subject's detention under the preventative
detention order.
(2) The application must set out -
(a) the terms of the order sought; and
(b) the facts and other grounds on which the
applicant considers that the order should
be made.
(3) The information in the application must be
sworn by the applicant.
Note: Section 45 creates an offence for providing false or
misleading information or documents in connection with an
application to a senior police officer.
(4) The person in relation to whose detention under
a preventative detention order an application for
a prohibited contact order is made to the
Supreme Court under this section is entitled to
be given notice of the application and to appear
and give evidence, call witnesses, examine and
cross-examine witnesses, adduce material and
make submissions in relation to it. However, his
or her absence does not prevent the Supreme
Court from determining the application.
34
2005 Terrorism (Preventative Detention) No. s. 16
(5) If the Supreme Court or the senior police officer
(as the case requires) 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
Court or officer may make a prohibited contact
order under this section that the subject is not,
while being detained under the preventative
detention order, to contact any person specified
in the prohibited contact order.
(6) The prohibited contact order must be in writing.
16. Application by detainee for revocation or variation
of preventative detention order or prohibited
contact order
(1) A person in relation to whom a preventative
detention order made by the Supreme Court is in
force may, with the leave of the Supreme Court,
apply to the Supreme Court for -
(a) the revocation or a variation of the order;
or
(b) the revocation or a variation of any
prohibited contact order that is in force in
relation to the person's detention under
the preventative detention order.
(2) The Supreme Court must not grant leave to
apply for the revocation or a variation of an
order unless it is satisfied that new facts or
circumstances have arisen since the making of
the order or relevant matters had not been
provided to the court in relation to the
application for the order.
35
s. 16 No. Terrorism (Preventative Detention) 2005
(3) To avoid doubt, an application for leave to apply
for the revocation or a variation of an order does
not operate as a stay of the order.
(4) If -
(a) a preventative detention order made by
the Supreme Court is in force in relation
to a person; and
(b) the Supreme Court grants leave to that
person to apply for the revocation or a
variation of the order; and
(c) the Supreme Court is satisfied, on the
application of that person, that, because
of new facts or circumstances that have
arisen since the making of the order or
relevant matters that had not been
provided to the court in relation to the
application for the order, it is appropriate
that the order be revoked or varied -
the Court, by order, must revoke or vary the
order.
(5) If the person in relation to whom a preventative
detention order made by the Supreme Court is in
force is being detained in a prison and the order
is revoked or varied under subsection (4), the
police officer who is detaining the person under
the order must cause a copy of the order made
under that subsection to be given to the Director
of Corrective Services as soon as practicable
after it is made.
(6) If -
(a) a prohibited contact order is in force in
relation to a person's detention under a
36
2005 Terrorism (Preventative Detention) No. s. 17
preventative detention order made by the
Supreme Court; and
(b) the Supreme Court grants leave to that
person to apply for the revocation or a
variation of the order; and
(c) the Supreme Court is satisfied, on the
application of that person, that, because
of new facts or circumstances that have
arisen since the making of the order or
relevant matters that had not been
provided to the court in relation to the
application for the order, it is appropriate
that the order be revoked or varied -
the Court, by order, must revoke or vary the
order.
(7) If the person in relation to whose detention under
a preventative detention order a prohibited
contact order is in force is being detained in a
prison and the prohibited contact order is
revoked or varied under subsection (6), the
police officer who is detaining the person under
the preventative detention order must cause a
copy of the order made under that subsection to
be given to the Director of Corrective Services
as soon as practicable after it is made.
17. Application by police for revocation or variation of
preventative detention order or prohibited contact
order
(1) If -
(a) a preventative detention order is in force
in relation to a person; and
37
s. 17 No. Terrorism (Preventative Detention) 2005
(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 -
an authorised police officer must as soon as
practicable apply for the revocation of the order
to the Supreme Court or, if the order was made
by a senior police officer, to a senior police
officer.
(2) If -
(a) a preventative detention order is in force
in relation to a person; and
(b) the police officer who is detaining the
person under the order is satisfied that,
because of new facts or circumstances
that have arisen since the making of the
order or relevant matters that had not
been provided to the court in relation to
the application for the order, it is
appropriate that the order be varied -
the authorised police officer must apply for a
variation of the order to the Supreme Court or, if
the order was made by a senior police officer, to
a senior police officer.
(3) If -
(a) a preventative detention order is in force
in relation to a person; and
(b) the Supreme Court or, if the order was
made by a senior police officer, a senior
police officer is satisfied, on application
by an authorised police officer under
38
2005 Terrorism (Preventative Detention) No. s. 17
subsection (1) or (2) that it is appropriate
that the order be revoked or varied -
the Court, by order, or the officer, in writing,
must revoke or vary the order.
(4) If the person in relation to whom the
preventative detention order is in force is being
detained in a prison and the order is revoked or
varied under subsection (3), the applicant for the
revocation or variation must cause a copy of any
instrument made under that subsection to be
given to the Director of Corrective Services as
soon as practicable after it is made.
(5) If -
(a) a prohibited contact order is in force in
relation to a person's detention under a
preventative detention order; and
(b) the police officer who is detaining the
person under the preventative detention
order is satisfied, because of new facts or
circumstances that have arisen since the
making of the order or relevant matters
that had not been provided to the court in
relation to the application for the order,
that it is appropriate that the order be
revoked or varied (including that the
grounds on which the order was made
have ceased to exist) -
an authorised police officer must apply for the
revocation or a variation of the prohibited
contact order to the Supreme Court or, if the
order was made by a senior police officer, to a
senior police officer.
39
s. 17 No. Terrorism (Preventative Detention) 2005
(6) If -
(a) a prohibited contact order is in force in
relation to a person's detention under a
preventative detention order; and
(b) the Supreme Court or, if the order was
made by a senior police officer, a senior
police officer is satisfied, on application
by a police officer under subsection (5),
that it is appropriate that the order be
revoked or varied -
the Court, by order, or the officer, in writing,
must revoke or vary the prohibited contact order.
(7) If the person in relation to whose detention under
a preventative detention order a prohibited
contact order is in force is being detained in a
prison and the prohibited contact order is
revoked or varied under subsection (6), the
applicant for the revocation or variation must
cause a copy of any instrument made under that
subsection to be given to the Director of
Corrective Services as soon as practicable after it
is made.
40
2005 Terrorism (Preventative Detention) No. s. 18
PART 3 - CARRYING OUT PREVENTATIVE
DETENTION ORDERS
18. Power to detain person under preventative
detention order
(1) While a preventative detention order is in effect
in relation to a person -
(a) any police officer may take the person
into custody; and
(b) any police officer may detain the person.
(2) A police officer may, for the purpose of taking a
person into custody under a preventative
detention order or preventing him or her from
escaping from detention under the order,
exercise any of the powers that he or she would
have if he or she were apprehending the person
under section 26 of the Criminal Code or the
person was escaping from legal custody.
(3) Subsection (2) does not apply to the extent to
which particular powers are provided for in this
Act.
(4) If a preventative detention order is made in
relation to a person, the Commissioner of Police
must nominate a police officer of or above the
rank of commander (the "nominated senior
police officer") to oversee the exercise of
powers under, and the performance of
obligations in relation to, the preventative
detention order.
(5) The nominated senior police officer must be
someone who was not involved in the making of
41
s. 18 No. Terrorism (Preventative Detention) 2005
the application for the preventative detention
order or the making of the order in relation to the
person.
(6) The nominated senior police officer must -
(a) oversee the exercise of powers under,
and the performance of obligations in
relation to, the preventative detention
order; and
(b) without limiting paragraph (a), ensure
that the provisions of section 17 are
complied with in relation to the
preventative detention order; and
(c) receive and consider any representations
that are made under subsection (7).
(7) The following persons:
(a) the person being detained under a
preventative detention order;
(b) the Ombudsman under the Ombudsman
Act 1978;
(c) a lawyer acting for the person being
detained under a preventative detention
order in relation to the order or a
prohibited contact order;
(d) a person with whom the person being
detained under a preventative detention
order has contact under section 36(2);
(e) a person exercising authority under the
order or implementing or enforcing the
order (including a person taken to be
42
2005 Terrorism (Preventative Detention) No. s. 19
such a person by force of
section 25(5)(b)) -
are entitled to make representations to the
nominated senior police officer in relation to -
(f) the exercise of powers under, and the
performance of obligations in relation to,
the preventative detention order; and
(g) without limiting paragraph (a),
compliance with the provisions of
section 17 in relation to the preventative
detention order; and
(h) the person's treatment in connection with
the person's detention under the
preventative detention order.
19. 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 detained under a
preventative detention order, the police officer
who is detaining the person under the order must
endorse on the order -
(a) the date on which, and time at which, the
person is first taken into custody or
detained under the order; and
(b) particulars of where the person is being
detained.
43
s. 20 No. Terrorism (Preventative Detention) 2005
20. Requirement to provide name, &c.
(1) If a police officer believes on reasonable
grounds that a person whose name or address is,
or whose name and address are, unknown to the
police officer may be able to assist the police
officer in executing a preventative detention
order, the police officer may request the person
to provide his or her name or address, or name
and address, to the police officer.
(2) If a police officer -
(a) makes a request of a person under
subsection (1); and
(b) informs the person of the reason for the
request; and
(c) if the police officer is not in uniform,
shows the person evidence that he or she
is a police officer; and
(d) complies with subsection (4) if the
person makes a request under that sub-
section -
the person must not -
(e) refuse or fail to comply with the request;
or
(f) give a name or address that is false in a
material particular.
Penalty: Fine not exceeding 20 penalty units.
(3) Subsection (2) does not apply if the person has a
reasonable excuse.
44
2005 Terrorism (Preventative Detention) No. s. 21
(4) If a police officer who makes a request of a
person under subsection (1) is requested by the
person to provide to the person any of the
following:
(a) his or her name;
(b) the address of his or her place of duty;
(c) his or her identification number if he or
she has an identification number;
(d) his or her rank if he or she does not have
an identification number -
the police officer must not -
(e) refuse or fail to comply with the request;
or
(f) give a name, address, number or rank
that is false in a material particular.
Penalty: Fine not exceeding 5 penalty units.
(5) Subsection (4) does not apply if the police
officer has a reasonable excuse.
21. Power to enter premises
(1) If -
(a) a preventative detention order is in force
in relation to a person; and
(b) a police officer believes on reasonable
grounds that the person is on any
premises -
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s. 22 No. Terrorism (Preventative Detention) 2005
the police officer may enter the premises, using
such force as is necessary and reasonable in the
circumstances and with such assistance as is
necessary, for the purpose of searching the
premises for the person or taking the person into
custody.
(2) A police officer may direct a person not to enter,
or to leave or to remain in, premises or in the
vicinity of premises that are being entered under
this section.
22. Power to conduct personal search
(1) In this section -
"body cavity" means rectum or vagina;
"electronic metal detection device" means
an electronic device that is capable of
detecting the presence of metallic
objects;
"ordinary search" means -
(a) a search of a person conducted
by -
(i) running hands over the
person's outer clothing; or
(ii) passing an electronic
metal detection device
over or in close proximity
to the person's outer
clothing; or
46
2005 Terrorism (Preventative Detention) No. s. 22
(iii) requiring the person to
pass through such a
device; or
(iv) requiring the person to
turn out his or her
pockets; and
(b) the examination of any thing
worn or carried by, or in the
control or possession of, the
person that is conveniently
removed including -
(i) an examination conducted
by passing an electronic
metal detection device
over or in close proximity
to that thing; and
(ii) passing the thing through
such a device; and
(iii) searching through any
bag, basket or other
receptacle; and
(iv) moving, and if it is
considered necessary,
removing and searching
through the contents of
any pocket, bag, basket or
other receptacle;
"strip search" means a search, other than a
body cavity search, in which the person
searched is required to remove most or
all of his or her clothes.
47
s. 22 No. Terrorism (Preventative Detention) 2005
(2) A police officer who takes a person into custody
under a preventative detention order or who is
present when the person is taken into custody
may, if the police officer suspects on reasonable
grounds -
(a) that it is prudent to do so in order to
ascertain whether the person is carrying
any seizable item; or
(b) that the person is carrying -
(i) evidence of or relating to a
terrorist act; or
(ii) a seizable item -
conduct an ordinary search of a person at or soon
after the time when the person is taken into
custody and seize any thing found as a result of
such a search.
(3) A police officer who is detaining a person under
a preventative detention order may conduct a
strip search of the person if the police officer
believes on reasonable grounds that it is
necessary to conduct a strip search of that person
for the purposes of the search and that the
seriousness and urgency of the circumstances
require a strip search to be conducted.
(4) A police officer may detain a person for so long
as is reasonably necessary to conduct a search
under this section.
(5) Where a police officer detains a person for the
purpose of a search under this section, the
following provisions apply:
48
2005 Terrorism (Preventative Detention) No. s. 23
(a) if it is proposed to conduct a strip search,
the search is to be conducted by an
officer of the same sex as the person
searched or by a person of the same sex
under the direction of a police officer;
(b) if the search involves the application of
force to the person, the police officer
must give the Commissioner of Police a
written report about the search within 7
days, including particulars of the
circumstances that gave rise to the
application of force.
23. Warrant under section 34D of the Australian
Security Intelligence Organisation Act 1979 of the
Commonwealth
(1) This section applies if -
(a) a person is being detained under a
preventative detention order; and
(b) a warrant under section 34D of the
Australian Security Intelligence
Organisation Act 1979 of the
Commonwealth is in force in relation to
the person; and
(c) a copy of the warrant is given to the
police officer who is detaining the person
under the preventative detention order.
(2) The police officer must take such steps as are
necessary to ensure that the person may be dealt
with in accordance with the warrant.
49
s. 24 No. Terrorism (Preventative Detention) 2005
(3) Without limiting subsection (2), the police
officer may, under section 24, release, or arrange
in writing for the release of, the person from
detention under the 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 person may be -
(a) questioned before a prescribed authority
under the warrant; or
(b) detained under the warrant in connection
with that questioning -
does not extend the period for which the
preventative detention order remains in force in
relation to the person.
24. Release of person from preventative detention
(1) The police officer who is detaining a person
under a preventative detention order may release
the person from detention under the order or
arrange in writing for his or her release from
detention under the order.
(2) The police officer who releases, or arranges in
writing for the release of, a person from
detention under a preventative detention order
must give the person a written statement signed
by the police officer that the person is being
released from that detention.
(3) Subsection (2) does not apply if the police
officer releases, or arranges in writing for the
50
2005 Terrorism (Preventative Detention) No. s. 24
release of, the person from detention so that the
person may be dealt with -
(a) in connection with a charge relating to an
alleged crime; or
(b) in accordance with a warrant under
section 34D of the Australian Security
Intelligence Organisation Act 1979 of
the Commonwealth; or
(c) under the provisions of Division 4 of
Part IAA, or Part IC, of the Crimes Act
1914 of the Commonwealth.
(4) To avoid doubt, a person may be taken to have
been released from detention under a
preventative detention order even if -
(a) the person is informed that he or she is
being released from detention under the
order; and
(b) the person is taken into custody on some
other basis immediately after the person
is informed that he or she is being
released from detention under the order.
(5) To avoid doubt, a person is taken not to be
detained under a preventative detention order
during a period during which the person is
released from detention under the order.
Note: During this period, the provisions of this Act that apply to a
person who is being detained under a preventative detention order
(for example, section 31 which deals with the people the person
may contact) do not apply to the person.
(6) To avoid doubt -
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s. 25 No. Terrorism (Preventative Detention) 2005
(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 in relation to the person; and
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 into
custody and detained under the order at
any time while the order remains in force
in relation to the person.
25. Arrangement for detainee to be held in prison
(1) A senior police officer may request the Director
of Corrective Services to authorise the transfer
of a person who is being detained under a
preventative detention order from the place
where he or she is being detained to a prison.
(2) A request under subsection (1) must be
accompanied by a copy of -
(a) the preventative detention order on which
is endorsed the date on which, and time
at which, the person was first taken into
custody or detained under the order; and
(b) any extension or further extension of the
order under section 11; and
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2005 Terrorism (Preventative Detention) No. s. 25
(c) any prohibited contact order that is in
force in relation to the person's detention
under the preventative detention order.
(3) To avoid doubt, a request may be made under
subsection (1) in respect of a person who is
under 18 years of age.
(4) If requested to do so under subsection (1), the
Director of Corrective Services may, by
instrument, authorise the transfer to a prison of a
person being detained by a police officer under a
preventative detention order from the place
where he or she is being detained.
(5) If a person is being detained in a prison under a
preventative detention order -
(a) the preventative detention order is taken
to authorise the Director of Corrective
Services to detain the person at the
prison while the order is in force in
relation to the person; and
(b) section 30 applies in relation to the
person's detention under the order at the
prison as if -
(i) the Director of Corrective
Services; or
(ii) any other person involved in the
person's detention at that prison -
were a person exercising authority under
the order or implementing or enforcing
the order; and
(c) the senior police officer who made the
request under subsection (1) is taken,
53
s. 25 No. Terrorism (Preventative Detention) 2005
while the person is detained at the prison,
to be the police officer detaining the
person for the purposes of Parts 4 and 5;
and
(d) a police officer may at any time enter the
prison and visit the person being detained
in the prison in connection with the
exercise of powers under, and the
performance of obligations in relation to,
the order.
(6) The Corrections Act 1997 applies in respect of
the detention of a person in a prison or police
gaol under a preventative detention order or an
order for his or her detention made under a
corresponding preventative detention law as if
the following provisions of that Act or made
under that Act did not form part of it:
(a) sections 10, 11, 12, 13, 14, 16 and 17;
(b) sections 25 and 28;
(c) sections 29(1)(j), (k), (l), (m), (n) and (o);
(d) sections 30, 33, 40, 41 and 42 ;
(e) Part 7;
(f) regulations 27(b) and (c) of the
Corrections Regulations 1998.
(7) A person permitted to contact a person being
detained under a preventative detention order by
visiting the person while the person subject to
the order is being detained in a prison may enter
the prison and visit the person in accordance
with the procedures determined by the Director
of Corrective Services and the police officer
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2005 Terrorism (Preventative Detention) No. s. 25
exercising authority under the preventative
detention order.
(8) Nothing in this section prevents an AFP member
entering a prison and visiting a person being
detained in the prison in connection with the
exercise of powers under, and the performance
of obligations in relation to, an order for the
person's detention made under a corresponding
preventative detention law.
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s. 26 No. Terrorism (Preventative Detention) 2005
PART 4 - INFORMING PERSON DETAINED ABOUT
PREVENTATIVE DETENTION ORDER
26. Effect of preventative detention order to be
explained to person detained
(1) As soon as practicable after a person is first
detained 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).
Note: A contravention of this subsection does not affect the
lawfulness of the person's detention under the order (see
section 28(5)).
(2) The matters covered by this subsection are -
(a) the fact that the preventative detention
order has been made in relation to the
person; and
(b) the period during which the person may
be detained under the order; and
(c) the restrictions that apply to what the
person being detained may convey to the
people the person may contact while the
person is being detained under the order;
and
(d) the restrictions that apply to the people
that the person may contact while the
person is being detained under the order;
and
(e) if the order was made by a senior police
officer, the fact that an application may
56
2005 Terrorism (Preventative Detention) No. s. 26
be made to the Supreme Court under
Part 2 for a further preventative detention
order; and
(f) any right the person has to complain to
the Ombudsman under the Ombudsman
Act 1978 in relation to -
(i) the application for, or the making
of, the preventative detention
order or a prohibited contact
order; or
(ii) the treatment of the person in
connection with the person's
detention under the preventative
detention order; and
(g) the fact that the person may seek from a
court a remedy relating to -
(i) the preventative detention order;
or
(ii) a prohibited contact order; or
(iii) the treatment of the person in
connection with the person's
detention under the preventative
detention order; and
(h) the person's entitlement under section 34
to contact a lawyer; and
(i) the name and work telephone number of
the senior police officer who has been
nominated under section 18(4) to oversee
the exercise of powers under, and the
performance of obligations in relation to,
the order.
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s. 27 No. Terrorism (Preventative Detention) 2005
27. Person being detained to be informed of extension
of preventative detention order
If a preventative detention order is extended, or
further extended, under section 11, the police
officer detaining the person under the order must
inform the person of the extension, or further
extension, as soon as practicable after the
extension, or further extension, is made.
Note: A contravention of this section does not affect the lawfulness
of the person's detention under the order (see section 28(5)).
28. Compliance with obligations to inform
(1) Section 26(1) or section 27 does not apply if the
actions of the person being detained under the
preventative detention order make it
impracticable for the police officer to comply
with that section.
(2) The police officer detaining the person under the
preventative detention order complies with
section 26(1) if the police officer informs the
person in substance of the matters covered by
section 26(2) (even if this is not done in
language of a precise or technical nature).
(3) The police officer who is detaining the person
under the preventative detention order must
arrange for the assistance of an interpreter in
complying with section 26(1) or section 27 if the
police officer has reasonable grounds to believe
that the person is unable, because of inadequate
knowledge of the English language or a physical
disability, to communicate with reasonable
fluency in that language.
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2005 Terrorism (Preventative Detention) No. s. 29
(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 26(1) or
section 27 or subsection (3) of this section.
29. Copy of preventative detention order and
prohibited contact order
(1) As soon as practicable after a person is first
taken into custody or detained under a
preventative detention order, the police officer
who is detaining the person under the order must
give the person -
(a) a copy of the order and of any prohibited
contact order in force in relation to his or
her detention; and
(b) a summary of the grounds on which the
preventative detention order or
prohibited contact order is made.
(2) To avoid doubt, subsection (1)(b) does not
require information to be included in the
summary if the disclosure of the information is
likely to prejudice national security (within the
meaning of the National Security Information
(Criminal and Civil Proceedings) Act 2004 of
the Commonwealth).
(3) Despite section 18(2), a police officer does not
need to have a copy of the preventative detention
order with him or her, or to produce a copy of an
order to the person being taken into custody
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s. 29 No. Terrorism (Preventative Detention) 2005
when the police officer takes the person into
custody.
(4) As soon as practicable after a preventative
detention order is extended, or further extended,
under section 11, the police officer who is
detaining the person under the preventative
detention order must give the person a copy of
the order made under section 11(6).
(5) A person who is being detained under a
preventative detention order may request a
police officer who is detaining the person to
arrange for a copy of -
(a) the preventative detention order or of any
prohibited contact order in force in
relation to his or her detention; or
(b) the summary given to the person under
subsection (1)(b); or
(c) any order under section 11(6) -
to be given to a lawyer acting for the person in
relation to the order.
Note 1: Section 34 deals with the person's right to contact a lawyer
and the obligation of the police officer detaining the person to give
the person assistance to choose a lawyer.
Note 2: Section 37 prevents the person from contacting a lawyer
who is specified in a prohibited contact order.
(6) The police officer must make arrangements for a
copy of an order or the summary to be given to
the lawyer as soon as practicable after the
request is made.
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2005 Terrorism (Preventative Detention) No. s. 29
(7) Without limiting subsection (6), the copy of an
order or the summary may be faxed or emailed
to the lawyer.
(8) To avoid doubt, subsection (6) does not entitle
the lawyer to be given a copy of, or see, a
document other than the preventative detention
order, the prohibited contact order, the summary
or any order under section 11(6).
(9) The police officer who gives -
(a) the person being detained under a
preventative detention order; or
(b) a lawyer acting for the person -
a copy of the preventative detention order under
this section must endorse on the copy the date on
which, and time at which, the person was first
taken into custody or detained under the order.
(10) Subsection (1), (4), (6) or (9) does not apply if
the actions of the person being detained under
the preventative detention order make it
impracticable for the police officer to comply
with that subsection.
(11) The lawfulness of a person's detention under a
preventative detention order is not affected by a
failure to comply with subsection (1), (4), (6) or
(9).
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s. 30 No. Terrorism (Preventative Detention) 2005
PART 5 - TREATMENT OF PERSON DETAINED
30. Humane treatment of person being detained
A person being taken into custody, or being
detained, under a preventative detention order -
(a) must be treated with humanity and with
respect for human dignity; and
(b) must not be subjected to cruel, inhuman
or degrading treatment -
by anyone exercising authority under the order
or implementing or enforcing the order.
31. Restriction on contact with other people
(1) Except as provided by sections 32, 33, 34 and
36, while a person is being detained under a
preventative detention order, the person -
(a) is not entitled to contact another person;
and
(b) may be prevented from contacting
another person.
Note 1: This section will not apply to the person if the person is
released from detention under the order (even though the order
may still be in force in relation to the person).
Note 2: A person's entitlement to contact other people under
sections 32, 33, 34 and 36 may be subject to a prohibited contact
order made under section 14 or 15 (see section 37).
(2) While a person is being detained in a prison
under a preventative detention order or an order
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2005 Terrorism (Preventative Detention) No. s. 32
for the person's detention made under a
corresponding preventative detention law, the
person is required to give to a police officer or
an AFP member, as the case requires, exercising
authority under the order any letter that he or she
wishes to send to any person other than the
Ombudsman under the Ombudsman Act 1978 or
the Commonwealth Ombudsman under the
Complaints (Australian Federal Police) Act
1981 of the Commonwealth.
(3) A prison officer within the meaning of the
Corrections Act 1997 who receives -
(a) from a person being detained in a prison
under an order referred to in
subsection (2) a letter required by that
subsection to be given to a police officer
or AFP member exercising authority
under the order; or
(b) a letter sent to a person being detained in
a prison under an order referred to in
subsection (2) -
must as soon as practicable give that letter to
such a police officer or AFP member.
Note 1: This section will not apply to the person if the person is
released from detention under the order (even though the order
may still be in force in relation to the person).
Note 2: A person's entitlement to contact other people under
sections 32, 34 and 36 may be subject to a prohibited contact order
made under section 14 or 15.
32. Contacting family members, &c.
(1) In this section -
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s. 32 No. Terrorism (Preventative Detention) 2005
"family member" of a person means -
(a) the person's spouse; or
(b) the person's partner within the
meaning of the Relationships Act
2003; or
(c) a parent, step-parent or
grandparent of the person; or
(d) a child, stepchild or grandchild of
the person; or
(e) a brother, sister, stepbrother or
stepsister of the person; or
(f) a guardian or carer of the person.
(2) The person being detained is entitled to contact
once -
(a) his or her parents or one of his or her
other family members; and
(b) if he or she -
(i) lives with another person and that
other person is not a family
member of the person being
detained; or
(ii) lives with other people and those
other people are not family
members of the person being
detained -
that other person or one of those other
people; and
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2005 Terrorism (Preventative Detention) No. s. 32
(c) if he or she is employed, his or her
employer; and
(d) if he or she employs people in a business,
one of the people he or she employs in
that business; and
(e) if he or she engages in a business
together with another person or other
people, that other person or one of those
other people; and
(f) if the police officer detaining the person
agrees to the person contacting another
person, that other person -
by telephone, fax or email but solely for the
purposes of letting the person contacted know
that the person being detained is safe but is not
able to be contacted for a specified period or for
the time being (if the preventative detention
order prohibits a period being specified).
(3) To avoid doubt, the person being detained is not
entitled, under subsection (2), to disclose -
(a) the fact that a preventative detention
order has been made in relation to the
person; or
(b) the fact that the person is being detained.
(4) If the preventative detention order so allows, the
person being detained, in addition to any
entitlement under subsection (2), is entitled,
while being detained under the order, to have
further contact with one or more of his or her
family members or any other person or persons,
as specified in the order.
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s. 33 No. Terrorism (Preventative Detention) 2005
(5) To avoid doubt, the person being detained is
entitled to disclose the following to a person
with whom he or she has contact under
subsection (4):
(a) the fact that a preventative detention
order has been made in relation to the
person;
(b) the fact that the person is being detained;
(c) unless the preventative detention order
otherwise provides, the period for which
the person is being detained.
(6) The form of contact that the person being
detained is entitled to have with another person
under subsection (4) includes -
(a) being visited by that other person; and
(b) communicating with that other person by
telephone, fax or email.
(7) The period for which the person being detained
is entitled to have contact with another person on
any day under subsection (4), and the number of
days on which he or she is entitled to have such
contact, is as specified in the preventative
detention order.
33. Contacting Ombudsman
The person being detained is entitled to contact
the Ombudsman under the Ombudsman Act
1978.
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2005 Terrorism (Preventative Detention) No. s. 34
34. Contacting lawyer
(1) The person being detained is entitled to contact a
lawyer but solely for the purpose of -
(a) obtaining advice from the lawyer about
the person's legal rights in relation to -
(i) the preventative detention order;
or
(ii) a prohibited contact order in force
in relation to his or her detention;
or
(iii) the treatment of the person in
connection with the person's
detention under the preventative
detention order; or
(b) arranging for the lawyer to act for the
person in relation to, and instructing the
lawyer in relation to, proceedings in a
court for a remedy relating to -
(i) the preventative detention order;
or
(ii) a prohibited contact order in force
in relation to his or her detention;
or
(iii) the treatment of the person in
connection with the person's
detention under the preventative
detention order; or
(c) arranging for the lawyer to act for the
person in relation to, and instructing the
lawyer in relation to, a complaint to the
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s. 34 No. Terrorism (Preventative Detention) 2005
Ombudsman under the Ombudsman Act
1978 in relation to -
(i) the application for, or the making
of, the preventative detention
order or a prohibited contact
order; or
(ii) the treatment of the person by a
police officer in connection with
the person's detention under the
preventative detention order; or
(d) arranging for the lawyer to act for the
person in relation to an appearance, or
hearing, before a court or tribunal in a
proceeding to which the person is a party
or in which he or she otherwise has
standing to appear that is to take place
while the person is being detained under
the order.
(2) The form of contact that the person being
detained is entitled to have with a lawyer under
subsection (1) includes -
(a) being visited by the lawyer; and
(b) communicating with the lawyer by
telephone, fax or email.
(3) If -
(a) the person being detained or, if he or she
is under 18 years of age or is incapable of
managing his or her affairs, a person with
whom he or she has contact under
section 36 asks to be allowed to contact a
particular lawyer under subsection (1);
and
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2005 Terrorism (Preventative Detention) No. s. 35
(b) either -
(i) the person is not entitled to
contact that lawyer because of
section 37 (prohibited contact
order); or
(ii) the person is not able to contact
that lawyer -
the police officer who is detaining the person
must give the person reasonable assistance to
choose another lawyer for the person to contact
under subsection (1).
(4) In recommending lawyers as part of giving a
person assistance under subsection (3), the
police officer who is detaining the person may
give priority to lawyers who have been given a
security clearance at an appropriate level by the
Attorney-General's Department of the
Commonwealth.
(5) Despite subsection (4) but subject to section 37,
the person is entitled under this section to
contact a lawyer who does not have a security
clearance of the kind referred to in
subsection (4).
35. Monitoring contact under section 32 or 34
(1) The contact the person being detained has with
another person under section 32 or 34 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
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s. 35 No. Terrorism (Preventative Detention) 2005
officer exercising authority under the
preventative detention order.
(2) The contact may take place in a language other
than English only if the content and meaning of
the communication that takes place during the
contact can be effectively monitored with the
assistance of an interpreter.
(3) Without limiting subsection (2), the interpreter
referred to in that subsection may be a police
officer.
(4) If the person being detained indicates that he or
she wishes the contact to take place in a
language other than English, the police officer
who is detaining the person must -
(a) arrange for the services of an appropriate
interpreter to be provided if it is
reasonably practicable to do so during
the period during which the person is
being detained; and
(b) if it is reasonably practicable to do so,
arrange for those services to be provided
as soon as practicable.
(5) Any communication between -
(a) a person who is being detained under a
preventative detention order; and
(b) a lawyer -
for a purpose referred to in section 34(1)(a), (b),
(c) or (d) is not admissible in evidence against
the person in any proceedings in a court or
tribunal.
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2005 Terrorism (Preventative Detention) No. s. 36
36. Special contact rules for person under 18 or
incapable of managing own affairs
(1) This section applies if the person being detained
under a preventative detention order -
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs.
(2) The person is entitled, while being detained
under the order, to have contact with -
(a) a parent or guardian of the person; or
(b) another person who -
(i) is able to represent the person's
interests; and
(ii) is, as far as practicable in the
circumstances, acceptable to the
person and to the police officer
who is detaining the person; and
(iii) is not a police officer; and
(iv) is not an AFP member or an AFP
employee; and
(v) is not a member (however
described) of a police force of
another State or of a Territory;
and
(vi) is not an officer or employee of
the Australian Security
Intelligence Organisation.
(3) To avoid doubt -
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s. 36 No. Terrorism (Preventative Detention) 2005
(a) if the person being detained (the
"detainee") has 2 parents or 2 or more
guardians, the detainee is entitled, subject
to section 37, to have contact under
subsection (2) with each of those parents
or guardians; and
(b) the detainee is entitled to disclose the
following to a person with whom the
detainee has contact under
subsection (2):
(i) the fact that a preventative
detention order has been made in
relation to the detainee;
(ii) the fact that the detainee is being
detained;
(iii) the period for which the detainee
is being detained.
(4) The form of contact that the person being
detained is entitled to have with another person
under subsection (2) includes -
(a) being visited by that other person; and
(b) communicating with that other person by
telephone, fax or email.
(5) The period for which the person being detained
is entitled to have contact with another person
each day under subsection (2) is -
(a) 2 hours; or
(b) such longer period as is specified in the
preventative detention order.
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2005 Terrorism (Preventative Detention) No. s. 36
Note: See section 8(5).
(6) Despite subsection (5), the police officer who is
detaining the person may permit the person to
have contact with a person under subsection (2)
for a period that is longer than the period
provided for in subsection (5).
(7) The contact that the person being detained has
with another person under subsection (2) must
be conducted in such a way that the content and
meaning of any communication that takes place
during the contact can be effectively monitored
by a police officer exercising authority under the
preventative detention order.
(8) If the communication that takes place during the
contact takes place in a language other than
English, the contact may continue only if the
content and meaning of the communication in
that language can be effectively monitored with
the assistance of an interpreter.
(9) Without limiting subsection (8), the interpreter
referred to in that subsection may be a police
officer.
(10) If the person being detained indicates that he or
she wishes the communication that takes place
during the contact to take place in a language
other than English, the police officer who is
detaining the person must -
(a) arrange for the services of an appropriate
interpreter to be provided if it is
reasonably practicable to do so during
the period during which the person is
being detained; and
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s. 37 No. Terrorism (Preventative Detention) 2005
(b) if it is reasonably practicable to do so,
arrange for those services to be provided
as soon as practicable.
37. Entitlement to contact subject to prohibited contact
order
Sections 32, 34 and 36 have effect subject to any
prohibited contact order made in relation to the
person's detention.
38. Disclosure offences
(1) A person (the "subject") commits an offence if -
(a) the subject is being detained under a
preventative detention order; and
(b) the subject intentionally discloses to
another person -
(i) the fact that a preventative
detention order has been made in
relation to the subject; or
(ii) the fact that the subject is being
detained; or
(iii) the fact that a prohibited contact
order has been made in relation to
the subject's detention; and
(c) the disclosure occurs while the subject is
being detained under the order; and
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2005 Terrorism (Preventative Detention) No. s. 38
(d) the disclosure is not one that the subject
is entitled to make under section 33, 34
or 36.
Penalty: Imprisonment for a term not exceeding
5 years.
(2) A person (the "lawyer") commits an offence if -
(a) a person being detained under a
preventative detention order (the
"detainee") contacts the lawyer under
section 34, or a person with whom the
detainee has contact under section 36
contacts the lawyer as mentioned in
subsection (3)(e)(ii) of this section; and
(b) the lawyer intentionally discloses to
another person -
(i) the fact that a preventative
detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being
detained; or
(iii) any information that the detainee
or other person gives the lawyer
in the course of the contact; and
(c) the disclosure occurs while the detainee
is being detained under the order; and
(d) the disclosure is not made for the
purposes of -
(i) proceedings in a court for a
remedy relating to the
preventative detention order, a
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s. 38 No. Terrorism (Preventative Detention) 2005
prohibited contact order or the
treatment of the detainee in
connection with the detainee's
detention under the preventative
detention order; or
(ii) a complaint to the Ombudsman
under the Ombudsman Act 1978
in relation to the application for,
or making of, the preventative
detention order or a prohibited
contact order or the treatment of
the detainee by a police officer in
connection with the detainee's
detention under the preventative
detention order; or
(iii) making representations to the
senior police officer nominated
under section 18(4) in relation to
the preventative detention order,
or another police officer involved
in the detainee's detention, about
the exercise of powers under the
order, the performance of
obligations in relation to the order
or the treatment of the detainee in
connection with the detainee's
detention under the order.
Penalty: Imprisonment for a term not exceeding
5 years.
(3) A person (the "parent/guardian") commits an
offence if -
(a) a person being detained under a
preventative detention order (the
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2005 Terrorism (Preventative Detention) No. s. 38
"detainee") has contact with the
parent/guardian under section 36; and
(b) the parent/guardian intentionally
discloses to another person -
(i) the fact that a preventative
detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being
detained; or
(iii) any information that the detainee
gives the parent/guardian in the
course of the contact; and
(c) the other person is not a person with
whom the detainee has also had contact
under section 36 while being detained
under the order; and
(d) the disclosure occurs while the detainee
is being detained under the order; and
(e) the disclosure is not made for the
purposes of -
(i) a complaint to the Ombudsman
under the Ombudsman Act 1978
in relation to the application for,
or the making of, the preventative
detention order or a prohibited
contact order or the treatment of
the detainee by a police officer in
connection with the detainee's
detention under the preventative
detention order; or
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s. 38 No. Terrorism (Preventative Detention) 2005
(ii) contacting a lawyer whom the
detainee is entitled to contact
under section 34 for any purpose
for which the detainee is entitled
to contact that lawyer under that
section; or
(iii) making representations to the
senior police officer nominated
under section 18(4) in relation to
the preventative detention order,
or another police officer involved
in the detainee's detention, about
the exercise of powers under the
order, the performance of
obligations in relation to the order
or the treatment of the detainee in
connection with the detainee's
detention under the order.
Penalty: Imprisonment for a term not exceeding
5 years.
(4) To avoid doubt, a person does not contravene
subsection (2) or (3) merely by letting another
person know that the detainee is safe but is not
able to be contacted for a specified period or for
the time being (if the preventative detention
order prohibits a period being specified).
(5) A person (the "interpreter") commits an
offence if -
(a) the interpreter is an interpreter who
assists in monitoring the contact that a
person being detained under a
preventative detention order (the
"detainee") has with someone while the
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2005 Terrorism (Preventative Detention) No. s. 38
detainee is being detained under the
order; and
(b) the interpreter intentionally discloses to
another person -
(i) the fact that a preventative
detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being
detained; or
(iii) any information that the
interpreter obtains in the course
of assisting in the monitoring of
that contact; and
(c) the disclosure occurs while the detainee
is being detained under the order.
Penalty: Imprisonment for a term not exceeding
5 years.
(6) A person (the "disclosure recipient") commits
an offence if -
(a) a person (the "earlier discloser")
discloses to the disclosure recipient -
(i) the fact that a preventative
detention order has been made in
relation to a person; or
(ii) the fact that a person is being
detained under a preventative
detention order; or
(iii) any information that a person
who is being detained under a
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s. 38 No. Terrorism (Preventative Detention) 2005
preventative detention order
communicates to a person while
the person is being detained
under the order; and
(b) the disclosure by the earlier discloser to
the disclosure recipient contravenes -
(i) subsection (1), (2), (3) or (5); or
(ii) this subsection; and
(c) the disclosure recipient intentionally
discloses that information to another
person; and
(d) the disclosure by the disclosure recipient
occurs while the person referred to in
paragraph (a)(i), (ii) or (iii) is being
detained under the order; and
(e) the disclosure is not made to a person
exercising authority under the
preventative detention order or
implementing or enforcing the order or
with responsibility for the safety or
wellbeing of the person being detained
under the order.
Penalty: Imprisonment for a term not exceeding
5 years.
(7) A person (the "monitor") commits an offence
if -
(a) the monitor is -
(i) a police officer who monitors; or
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2005 Terrorism (Preventative Detention) No. s. 39
(ii) an interpreter who assists in
monitoring -
contact that a person being detained
under a preventative detention order (the
"detainee") has with a lawyer under
section 34 while the detainee is being
detained under the order; and
(b) information is communicated in the
course of that contact; and
(c) the information is communicated for one
of the purposes referred to in
section 34(1); and
(d) the monitor intentionally discloses that
information to another person.
Penalty: Imprisonment for a term not exceeding
5 years.
39. Questioning of person prohibited while person is
detained
(1) A police officer must not question a person
while the person is being detained under a
preventative detention order except for the
purposes of -
(a) determining whether the person is the
person in relation to whom the order is
made; or
(b) ensuring the safety and wellbeing of the
person being detained; or
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(c) allowing the police officer to comply
with a requirement of this Act in relation
to the person's detention under the order.
(2) A police officer must not question a person
while the person is being detained under an order
made under a corresponding preventative
detention law.
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).
40. Taking identification material
(1) A police officer must not take identification
material from a person who is being detained
under a preventative detention order except in
accordance with this section.
(2) A police officer who is of or above the rank of
sergeant may take identification material from
the person, or cause identification material from
the person to be taken, if -
(a) the person consents in writing; or
(b) the police officer believes on reasonable
grounds that it is necessary to do so for
the purpose of confirming the person's
identity as the person in relation to whom
the order is made.
(3) A police officer may use such force as is
necessary and reasonable in the circumstances to
take identification material from a person under
this section.
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2005 Terrorism (Preventative Detention) No. s. 40
(4) Subject to this section, a police officer must not
take identification material (other than hand
prints, fingerprints, footprints or toeprints) from
the person if the person -
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs -
unless a magistrate orders that the material be
taken.
(5) In deciding whether to make such an order, the
magistrate must have regard to -
(a) the age, or any disability, of the person;
and
(b) such other matters as it thinks fit.
(6) The taking of identification material from a
person who -
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs -
must be done in the presence of -
(c) a parent or guardian of the person; or
(d) if a parent or guardian of the person is
not acceptable to the person, another
appropriate person.
(7) Despite this section, identification material may
be taken from a person who is under 18 years of
age and is capable of managing his or her affairs
if -
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(a) subsections (8) and (9) are satisfied; or
(b) subsection (8) or (9) is satisfied (but not
both) and a magistrate orders that the
material be taken.
(8) For the purposes of subsection (7) this
subsection is satisfied if the person agrees in
writing to the taking of the material.
(9) For the purposes of subsection (7) this
subsection is satisfied if either -
(a) a parent or guardian of the person; or
(b) if a parent or guardian is not acceptable
to the person, another appropriate
person -
agrees in writing to the taking of the material.
(10) A reference in this section to an "appropriate
person" in relation to a person (the "subject")
who is under 18 years of age, or incapable of
managing his or her affairs, is a reference to a
person who -
(a) is capable of representing the subject's
interests; and
(b) as far as is practicable in the
circumstances, is acceptable to the
subject and the police officer who is
detaining the subject; and
(c) is none of the following:
(i) a police officer;
(ii) an AFP member or an AFP
employee;
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2005 Terrorism (Preventative Detention) No. s. 41
(iii) a member (however described) of
a police force of another State or
of a Territory;
(iv) an officer or employee of the
Australian Security Intelligence
Organisation.
41. Use of identification material
(1) This section applies if identification material is
taken under section 40 from a person being
detained under a preventative detention order.
(2) The material may be used only for the purpose
of determining whether the person is the person
in relation to whom the order is made.
(3) To avoid doubt, if the person is being detained in
a prison under the preventative detention order,
the material may be provided to the Director of
Corrective Services and used by him or her only
for the purpose of identifying the person on his
or her reception into the prison.
(4) If -
(a) a period of 12 months elapses after the
identification material is taken; and
(b) proceedings in respect of -
(i) the preventative detention order;
or
(ii) the treatment of the person in
connection with the person's
detention under the order -
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have not been brought, or have been
brought and discontinued or completed,
within that period -
the material (including any material provided to
the Director of Corrective Services) must be
destroyed as soon as practicable after the end of
that period.
42. Offences of contravening safeguards
(1) A person commits an offence if -
(a) the person does an act or omits to
perform an act; and
(b) the act or omission contravenes -
(i) section 26(1); or
(ii) section 27; or
(iii) section 34; or
(iv) section 39(1) or (2); or
(v) section 40(1); or
(vi) section 41(2).
Penalty: Imprisonment for a term not exceeding
2 years.
(2) A person commits an offence if the person does
an act or omits to perform an act and the act or
omission contravenes section 30.
Penalty: Imprisonment for a term not exceeding
5 years.
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2005 Terrorism (Preventative Detention) No. s. 43
PART 6 - MISCELLANEOUS
43. Standard of proof
Any question of fact to be decided by a court on
an application under this Act is to be decided on
the balance of probabilities.
44. Nature of proceedings
(1) Proceedings on an application under this Act are
civil in nature, except as otherwise provided by
this Act.
(2) Despite subsection (1), the rules regulating the
practice and procedure of a court in civil
proceedings do not apply to a proceeding on an
application under this Act.
(3) Proceedings before a court under this Act are
subject to the operation of the National Security
Information (Criminal and Civil Proceedings)
Act 2004 of the Commonwealth.
45. False or misleading information or documents
A police officer must not, in connection with an
application to a senior police officer for a
preventative detention order or a prohibited
contact order, do either of the following:
(a) give information (whether orally or in
writing) that the police officer knows to
be false or misleading in a material
particular;
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(b) produce a document that the police
officer knows to be false or misleading in
a material particular without -
(i) indicating to the senior police
officer that it is false or
misleading, and the respect in
which it is false or misleading;
and
(ii) providing correct information to
that senior police officer, if the
police officer is in possession of,
or can reasonably acquire, the
correct information.
Penalty: Imprisonment for a term not exceeding
12 months.
46. Police officer detaining person under a preventative
detention order
If -
(a) a number of police officers are detaining,
or involved in the detention of, a person
under a preventative detention order at a
particular time; and
(b) a power or obligation is expressed in this
Act to be conferred or imposed on the
police officer detaining the person -
the power or obligation is conferred or imposed
at that time on the most senior of those police
officers.
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2005 Terrorism (Preventative Detention) No. s. 47
47. Ombudsman, &c., functions and powers not
affected
This Act does not affect a function or power of
the Ombudsman under the Ombudsman Act
1978.
48. Law relating to legal professional privilege not
affected
To avoid doubt, this Act does not affect the law
relating to legal professional privilege.
49. Legal proceedings in relation to orders
(1) Proceedings may be brought in a court for a
remedy in relation to -
(a) a preventative detention order; or
(b) a prohibited contact order; or
(c) the treatment of a person in connection
with the person's detention under a
preventative detention order.
(2) If -
(a) a person applies to a court for -
(i) review of the application for, or
the making of, a preventative
detention order or a prohibited
contact order or the person's
treatment in connection with the
person's detention under a
preventative detention order; or
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(ii) a remedy in relation to the
application for, or the making of,
a preventative detention order or
a prohibited contact order or the
person's treatment in connection
with the person's detention under
a preventative detention order;
and
(b) the person applies to the court for an
order under this subsection -
the court may order the Commissioner of Police
to give to the court, and the parties to the
proceedings, the information that was put before
the Supreme Court or the senior police officer
(as the case requires) when the application for
the order was made.
(3) Subsection (2) does not require information to be
given to the court, or the parties to the
proceedings, if the disclosure of the information
is likely to prejudice national security (within the
meaning of the National Security Information
(Criminal and Civil Proceedings) Act 2004 of
the Commonwealth).
50. Closure of Supreme Court and restriction on
publication of proceedings
(1) This section applies to proceedings before the
Supreme Court in connection with applications
for the making, varying or revocation of
preventative detention orders or prohibited
contact orders.
(2) Any such proceedings must be heard in the
absence of the public.
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2005 Terrorism (Preventative Detention) No. s. 51
(3) The Supreme Court may, in connection with any
such proceedings, do anything necessary or
convenient to suppress the publication of the
whole or any part of the proceedings or of the
evidence given in the proceedings as it considers
necessary to secure the suppression of the
publication of the proceedings or evidence given
in the proceedings.
51. Annual report
(1) The Minister must, as soon as practicable after
each 30 June, cause to be prepared a report about
the operation of this Act during the year ended
on that 30 June.
(2) Without limiting subsection (1), a report relating
to a year must include the following matters:
(a) the number of preventative detention
orders made by a senior police officer
under section 7 during the year and the
number of applications for such orders
made during the year;
(b) the number of preventative detention
orders made by the Supreme Court under
section 7 during the year and the number
of applications for such orders made
during the year;
(c) whether a person was taken into custody
or detained under each of those orders
and, if so, for how long the person was
detained;
(d) particulars of any complaints in relation
to the detention of a person under a
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preventative detention order made or
referred during the year to the
Ombudsman under the Ombudsman Act
1978;
(e) the number of prohibited contact orders
made under sections 14 and 15 during
the year and the number of applications
for such orders made during the year.
(3) The Minister must cause a copy of the report to
be laid before each House of the Parliament by
not later than 31 October after the year to which
it relates.
(4) The report may be included in the annual report
of the Department.
52. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person specified in the
regulations.
53. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
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2005 Terrorism (Preventative Detention) No. s. 54
(a) the administration of this Act is assigned
to the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
54. Sunset provision
(1) A preventative detention order, or a prohibited
contact order, that is in force on the tenth
anniversary of the day on which this Act
commences ceases to be in force at that time.
(2) A preventative detention order or a prohibited
contact order cannot be applied for, or made,
after the tenth anniversary of the day on which
this Act commences.
Government Printer, Tasmania 93