(a) a number of police officers are detaining, or involved in the detention of, a person under a preventative detention order at a particular time; and
(b) an obligation is expressed in this Division to be imposed on the police officer detaining the person;
the obligation is imposed at that time on:
(c) if those police officers include only one AFP member—that AFP member; or
(d) if those police officers include 2 or more AFP members—the most senior of those AFP members; or
(e) if those police officers do not include an AFP member—the most senior of those police officers.
Note: See also paragraph 105.27(2)(c).
Subdivision B—Preventative detention orders
105.4 Basis for applying for, and making, preventative detention orders
(1) An AFP member may apply for a preventative detention order in relation to a person only if the AFP member meets the requirements of subsection (4) or (6).
(2) An issuing authority may make a preventative detention order in relation to a person only if the issuing authority meets the requirements of subsection (4) or (6).
Note: For the definition of issuing authority, see subsection 100.1(1) and section 105.2.
(3) The person in relation to whom the preventative detention order is applied for, or made, is the subject for the purposes of this section.
(4) A person meets the requirements of this subsection if:
(a) in the case of an AFP member—the member suspects, on reasonable grounds, that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(iii) has done an act in preparation for, or planning, a terrorist act; and
(b) in the case of an issuing authority—the issuing authority is satisfied there are reasonable grounds to suspect that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(iii) has done an act in preparation for, or planning, a terrorist act; and
(c) the person is satisfied that making the order would substantially assist in preventing a terrorist act occurring; and
(d) the person is satisfied that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (c).
(5) A terrorist act referred to in subsection (4) must be one that:
(a) for paragraphs (4)(a) and (c)—the AFP member suspects, on reasonable grounds; or
(b) for paragraphs (4)(b) and (c)—the issuing authority is satisfied there are reasonable grounds to suspect;
is capable of being carried out, and could occur, within the next 14 days.
(6) A person meets the requirements of this subsection if the person is satisfied that:
(a) a terrorist act has occurred within the last 28 days; and
(b) it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and
(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).
(7) An issuing authority may refuse to make a preventative detention order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.
105.5 No preventative detention order in relation to person under 16 years of age
(1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.
Note: See also section 105.39 and subsections 105.43(4) to (9) and (11) for the special rules for people who are under 18 years of age.
(2) If:
(a) a person is being detained under a preventative detention order or a purported preventative detention order; and
(b) the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 16 years of age;
the police officer must:
(c) if the police officer is an AFP member—release the person, as soon as practicable, from detention under the order or purported order; or
(d) if the police officer is not an AFP member—inform a senior AFP member, as soon as practicable, of the police officer’s reasons for being satisfied that the person is under 16 years of age.
(3) If:
(a) a senior AFP member is informed by a police officer under paragraph (2)(d); and
(b) the senior AFP member is satisfied on reasonable grounds that the person being detained is under 16 years of age;
the senior AFP member must arrange to have the person released, as soon as practicable, from detention under the order or purported order.
105.5A Special assistance for person with inadequate knowledge of English language or disability
If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language:
(a) the police officer has an obligation under subsection 105.31(3) to arrange for the assistance of an interpreter in informing the person about:
(i) the effect of the order or any extension, or further extension, of the order; and
(ii) the person’s rights in relation to the order; and
(b) the police officer has an obligation under subsection 105.37(3A) to give the person reasonable assistance to:
(i) choose a lawyer to act for the person in relation to the order; and
(ii) contact the lawyer.
105.6 Restrictions on multiple preventative detention orders
Preventative detention orders under this Division
(1) If:
(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.
Note: It will be possible to apply for, and make, another initial preventative detention order in relation to the person on the basis of preserving evidence of, or relating to, the terrorist act if it occurs.
(2) If:
(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.
(3) If:
(a) an initial preventative detention order is made in relation to a person on the basis of preserving evidence of, or relating to, a terrorist act; and
(b) the person is taken into custody under the order;
another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.
Detention orders under corresponding State preventative detention laws
(4) If:
(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.
(5) If:
(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.
(6) If:
(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of preserving evidence of, or relating to, a terrorist act; and
(b) the person is taken into custody under that order;
an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.
105.7 Application for initial preventative detention order
(1) An AFP member may apply to an issuing authority for an initial preventative detention order in relation to a person.
Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member, see subsection 100.1(1).
(2) The application must:
(a) be made either:
(i) in writing (other than writing by means of an electronic communication); or
(ii) if the AFP member considers it necessary because of urgent circumstances—orally in person or by telephone, or by fax, email or other electronic means of communication; and
(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the person is to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should be detained for that period; and
(d) set out the information (if any) that the applicant has about the person’s age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders), and all previous applications for post‑sentence orders or interim post‑sentence orders, in relation to the person;
(iii) the outcomes and particulars of all previous applications for variations of control orders or of post‑sentence orders made in relation to the person;
(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person;
(v) the outcomes and particulars of all previous applications for revocations of post‑sentence orders or interim post‑sentence orders made in relation to the person;
(vi) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;
(vii) the outcomes and particulars of all previous applications for review of post‑sentence 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 State preventative detention law; and
(g) set out a summary of the grounds on which the AFP member considers that the order should be made.
Note: Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.
(2A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(2B) If the application is made orally, information given by the AFP member to the issuing authority in connection with the application must be verified or given on oath or affirmation, unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.
(3) If:
(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under the order; and
(c) an application is made for another initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;
the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.
Note: See subsection 105.6(2).
(4) If:
(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order; and
(c) an application is made for an initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;
the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.
Note: See subsection 105.6(5).
105.8 Senior AFP member may make initial preventative detention order
(1) On application by an AFP member, an issuing authority may, subject to subsection (1A), make an initial preventative detention order under this section in relation to a person.
Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member, see subsection 100.1(1).
(1A) If the application is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means.
(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6.
(3) An initial preventative detention order under this section is an order that the person specified in the order may be:
(a) taken into custody; and
(b) detained during the period that:
(i) starts when the person is first taken into custody under the order; and
(ii) ends a specified period of time after the person is first taken into custody under the order.
(4) The order must be in writing.
(5) The period of time specified in the order under subparagraph (3)(b)(ii) must not exceed 24 hours.
(6) An initial preventative detention order under this section must set out:
(a) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person’s true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;
(iii) if, after reasonable inquiries have been made, the person’s true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and
(b) the period during which the person may be detained under the order; and
(c) the date on which, and the time at which, the order is made; and
(d) the date and time after which the person may not be taken into custody under the order; and
(e) a summary of the grounds on which the order is made.
Note: Paragraph (d)—see subsection 105.9(2).
(6A) To avoid doubt, paragraph (6)(e) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.39(2) is the period of more than 2 hours that is specified in the order.
(7A) If the order is made on an application that was made orally (see subparagraph 105.7(2)(a)(ii)), the issuing authority must either:
(a) ensure that there is an audio, or audio‑visual, recording of the application; or
(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.
(8) The senior AFP member nominated under subsection 105.19(5) in relation to the initial preventative detention order must, as soon as reasonably practicable after the order is made:
(a) notify the Commonwealth Ombudsman in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a copy of the order; and
(c) if the person in relation to whom the order is made is taken into custody under the order—notify the Commonwealth Ombudsman in writing that the person has been taken into custody under the order; and
(d) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the order.
105.9 Duration of initial preventative detention order
(1) An initial preventative detention order in relation to a person starts to have effect when it is made.