Note: The order comes into force when it is made and authorises the person to be taken into custody (see paragraph 105.8(3)(a)). The period for which the person may then be detained under the order only starts to run when the person is first taken into custody under the order (see subparagraph 105.8(3)(b)(i)).
(2) An initial preventative detention order in relation to a person ceases to have effect at the end of the period of 48 hours after the order is made if the person has not been taken into custody under the order within that period.
(3) If the person is taken into custody under the order within 48 hours after the order is made, the order ceases to have effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified in the order as the period during which the person may be detained under the order; or
(ii) if that period is extended or further extended under section 105.10—that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note 1: The order does not cease to have effect merely because the person is released from detention under the order.
Note 2: An AFP member may apply under section 105.11 for a continued preventative detention order in relation to the person to allow the person to continue to be detained for up to 48 hours after the person is first taken into custody under the initial preventative detention order.
105.10 Extension of initial preventative detention order
(1) If:
(a) an initial preventative detention order is made in relation to a person; and
(b) the order is in force in relation to the person;
an AFP member may apply to an issuing authority for initial preventative detention orders for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.
Note: Paragraph (b)—see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.
(3) The issuing authority may extend, or further extend, the period for which the order is to be in force in relation to the person if the issuing authority is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.
(4) The extension, or further extension, must be made in writing.
(5) The period as extended, or further extended, must end no later than 24 hours after the person is first taken into custody under the order.
105.10A Notice of application for continued preventative detention order
An AFP member who proposes to apply for a continued preventative detention order in relation to a person under section 105.11 must, before applying for the order:
(a) notify the person of the proposed application; and
(b) inform the person that, when the proposed application is made, any material that the person gives the AFP member in relation to the proposed application will be put before the issuing authority for continued preventative detention orders to whom the application is made.
Note: The AFP member who applies for the order must put the material before the issuing authority—see subsection 105.11(5).
105.11 Application for continued preventative detention order
(1) If an initial preventative detention order is in force in relation to a person in relation to a terrorist act, an AFP member may apply to an issuing authority in relation to continued preventative detention orders for a continued preventative detention order in relation to the person in relation to the terrorist act.
Note: Certain judges and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the person is to continue to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should continue to be detained for that period; and
(d) set out the information (if any) that the applicant has about the person’s age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders), 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 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.
(3) Subparagraph (2)(e)(i) does not require the application to set out details in relation to the application that was made for the initial preventative detention order in relation to which the continued preventative detention order is sought.
(3A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(4) The information in the application must be sworn or affirmed by the AFP member.
(5) The AFP member applying for the continued preventative detention order in relation to the person must put before the issuing authority to whom the application is made any material in relation to the application that the person has given the AFP member.
105.12 Judge or retired judge may make continued preventative detention order
(1) On application by an AFP member, an issuing authority may make a continued preventative detention order under this section in relation to a person if:
(a) an initial preventative detention order is in force in relation to the person; and
(b) the person has been taken into custody under the order (whether or not the person is being detained under the order).
Note: Certain judges and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2).
(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6. Section 105.4 requires the issuing authority to consider afresh the merits of making the order and to be satisfied, after taking into account relevant information (including any information that has become available since the initial preventative detention order was made), of the matters referred to in subsection 105.4(4) or (6) before making the order.
(3) A continued preventative detention order under this section is an order that the person specified in the order may be detained during a further period that:
(a) starts at the end of the period during which the person may be detained under the initial preventative detention order; and
(b) ends a specified period of time after the person is first taken into custody under the initial preventative detention order.
(4) The order must be in writing.
(5) The period of time specified under paragraph (3)(b) must not exceed 48 hours.
(6) A continued preventative detention order under this section must set out:
(a) 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 further 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) a summary of the grounds on which the order is made.
(6A) To avoid doubt, paragraph (6)(d) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.39(2) is the period of more than 2 hours that is specified in the order.
(8) The senior AFP member nominated under subsection 105.19(5) in relation to the continued preventative detention order must, 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) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the order.
105.13 Duration of continued preventative detention order
(1) A continued preventative detention order in relation to a person starts to have effect when it is made.
Note: The order comes into force when it is made. The period for which the person may be detained under the order, however, only starts to run when the period during which the person may be detained under the initial preventative detention order ends (see paragraph 105.12(3)(a)).
(2) A continued preventative detention order in relation to a person ceases to have effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified in the order as the further period during which the person may be detained; or
(ii) if that period is extended or further extended under section 105.14—that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note: The order does not cease to have effect merely because the person is released from detention under the order.
105.14 Extension of continued preventative detention order
(1) If:
(a) an initial preventative detention order is made in relation to a person; and
(b) a continued preventative detention order is made in relation to the person in relation to that initial preventative detention order; and
(c) the continued preventative detention order is in force in relation to the person;
an AFP member may apply to an issuing authority for continued preventative detention orders for an extension, or a further extension, of the period for which the continued preventative detention order is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the continued preventative detention order.
Note: Paragraph (b)—see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.
(3) The information in the application must be sworn or affirmed by the AFP member.
(4) The issuing authority may extend, or further extend, the period for which the continued preventative detention order is to be in force in relation to the person if the issuing authority is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.
(5) The extension, or further extension, must be made in writing.
(6) The period as extended, or further extended, must end no later than 48 hours after the person is first taken into custody under the initial preventative detention order.
105.14A Basis for applying for, and making, prohibited contact order
(1) An AFP member may apply for a prohibited contact order in relation to a person only if the AFP member meets the requirements of subsection (4).
(2) An issuing authority for initial preventative detention orders, or continued preventative detention orders, may make a prohibited contact order in relation to a person’s detention under a preventative detention order only if the issuing authority meets the requirements of subsection (4).
(3) The person in relation to whose detention the prohibited contact order is applied for, or made, is the subject for the purposes of this section.
(4) A person meets the requirements of this subsection if the person is satisfied that making the prohibited contact order is reasonably necessary:
(a) to avoid a risk to action being taken to prevent a terrorist act occurring; or
(b) to prevent serious harm to a person; or
(c) to preserve evidence of, or relating to, a terrorist act; or
(d) to prevent interference with the gathering of information about:
(i) a terrorist act; or
(ii) the preparation for, or the planning of, a terrorist act; or
(e) to avoid a risk to:
(i) the arrest of a person who is suspected of having committed an offence against this Part; or
(ii) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or
(iii) the service on a person of a control order or post‑sentence order.
(5) An issuing authority may refuse to make a prohibited contact order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.
105.15 Prohibited contact order (person in relation to whom preventative detention order is being sought)
(1) An AFP member who applies to an issuing authority for a preventative detention order in relation to a person (the subject) may also apply for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.
(1A) The application for the prohibited contact order may be made either:
(a) in writing (other than writing by means of an electronic communication); or
(b) 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.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on which the AFP member considers that the order should be made.
(3) If:
(a) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(a);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.
(3A) If:
(a) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(b);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.
(4) If the issuing authority makes the preventative detention order, the issuing authority may, subject to subsection (4A), make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact the person specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on which the order may be made.
(4A) If the application for the prohibited contact order 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 was necessary, because of urgent circumstances, to apply for the order by such means.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the prohibited contact order; and
(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the prohibited contact order.