(7) If the prohibited contact order is made on an application that was made orally, 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.
105.16 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 AFP member may apply to an issuing authority for preventative detention orders of that kind for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.
(1A) The application 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) the preventative detention order is a continued preventative detention order; 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) the preventative detention order is a continued preventative detention order; 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) 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.
(7) If the prohibited contact order is made on an application that was made orally, the issuing authority must either:
(a) ensure 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.
105.17 Revocation of preventative detention order or prohibited contact order
Preventative detention order
(1) 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 the grounds on which the order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP member—apply to an issuing authority for preventative detention orders of that kind for the revocation of the order; or
(d) if the police officer is not an AFP member—inform a senior AFP member of the police officer’s reasons for being satisfied that the grounds on which the order was made have ceased to exist.
(2) If:
(a) a senior AFP member is informed by a police officer under paragraph (1)(d); and
(b) the senior AFP member is satisfied that the grounds on which the preventative detention order was made have ceased to exist;
the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the order.
(3) If:
(a) a preventative detention order is in force in relation to a person; and
(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the order was made have ceased to exist;
the issuing authority must revoke the order.
Prohibited contact order
(4) 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 that the grounds on which the prohibited contact order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP member—apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order; or
(d) if the police officer is not an AFP member—inform a senior AFP member of the police officer’s reasons for being satisfied that the grounds on which the prohibited contact order was made have ceased to exist.
(5) If:
(a) a senior AFP member is informed by a police officer under paragraph (4)(d); and
(b) the senior AFP member is satisfied that the grounds on which the prohibited contact order was made in relation to the person’s detention under the preventative detention order have ceased to exist;
the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order.
(6) If:
(a) a prohibited contact order is in force in relation to a person’s detention under a preventative detention order; and
(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the prohibited contact order was made have ceased to exist;
the issuing authority must revoke the prohibited contact order.
Detainee’s right to make representations about revocation of preventative detention order
(7) A person being detained under a preventative detention order may make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked.
105.18 Status of person making continued preventative detention order
(1) An issuing authority who makes:
(a) a continued preventative detention order; or
(b) a prohibited contact order in relation to a person’s detention under a continued preventative detention order;
has, in the performance of his or her duties under this Subdivision, the same protection and immunity as a Justice of the High Court.
(2) A function of:
(a) making or revoking a continued preventative detention order; or
(b) extending, or further extending, the period for which a continued preventative detention order is to be in force; or
(c) making or revoking a prohibited contact order in relation to a person’s detention under a continued preventative detention order;
that is conferred on a judge is conferred on the judge in a personal capacity and not as a court or a member of a court.
Subdivision C—Carrying out preventative detention orders
105.19 Power to detain person under preventative detention order
General powers given by preventative detention order
(1) While a preventative detention order is in force in relation to a person:
(a) any police officer may take the person into custody; and
(b) any police officer may detain the person.
(2) A police officer, in taking a person into custody under and in detaining a person under a preventative detention order, has the same powers and obligations as the police officer would have if the police officer were arresting the person, or detaining the person, for an offence.
(3) In subsection (2):
offence means:
(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or
(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.
(4) Subsection (2) does not apply to the extent to which particular powers, and the obligations associated with those powers, are provided for in this Subdivision or Subdivision D or E.
Nominated senior AFP member
(5) If a preventative detention order is made in relation to person, the Commissioner of the Australian Federal Police must nominate a senior AFP member (the nominated senior AFP member) to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.
(6) The nominated senior AFP member must be someone who was not involved in the making of the application for the preventative detention order.
(7) The nominated senior AFP member 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 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) are complied with in relation to the preventative detention order; and
(c) receive and consider any representations that are made under subsection (8).
(8) The following persons:
(a) the person being detained under the preventative detention order;
(b) a lawyer acting for that person in relation to the preventative detention order;
(c) a person with whom that person has contact under subsection 105.39(2);
are entitled to make representations to the nominated senior AFP member in relation to:
(d) the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and
(e) without limiting paragraph (a), compliance with the provisions of section 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) in relation to the preventative detention order; and
(f) the person’s treatment in connection with the person’s detention under the preventative detention order.
(9) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner’s powers under subsection (5).
105.20 Endorsement of order with date and time person taken into custody
As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must endorse on the order the date on which, and time at which, the person is first taken into custody under the order.
105.21 Requirement to provide name etc.
(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 the police officer is a police officer; and
(d) complies with subsection (4) if the person makes a request under that subsection;
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: 20 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3)).
(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: 5 penalty units.
105.22 Power to enter premises
(1) Subject to subsection (2), if:
(a) a preventative detention order is in force in relation to a person; and
(b) a police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.
(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:
(a) it would not be practicable to take the person into custody, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.
(3) In subsection (2):
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
105.23 Power to conduct a frisk search
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 that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at, or soon after, the time when the person is taken into custody; and
(b) seize any seizable items found as a result of the search.
105.24 Power to conduct an ordinary search
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 that the person is carrying:
(a) evidence of, or relating to, a terrorist act; or
(b) a seizable item;
conduct an ordinary search of the person at, or soon after, the time when the person is taken into custody, and seize any such thing found as a result of the search.
105.25 Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979
(1) This section applies if:
(a) a person is being detained under a preventative detention order; and
(b) a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 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.
(3) Without limiting subsection (2), the police officer may, under section 105.26, release the person from detention under the preventative detention order so that the person may be dealt with in accordance with the warrant.
Note: If the police officer is not an AFP member, the police officer will need to obtain the approval of a senior AFP member before releasing the person from detention (see subsection 105.26(2)).
(4) To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be questioned before a prescribed authority under the warrant does not extend the period for which the preventative detention order remains in force in relation to the person.
Note: See paragraph 105.26(7)(a).
105.26 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.
Note: A person may be released, for example, so that the person may be arrested and otherwise dealt with under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.
(2) If the police officer detaining the person under the order is not an AFP member:
(a) the police officer must not release the person from detention without the approval of a senior AFP member; and
(b) the senior AFP member must approve the person’s release if the person is being released so that the person may be dealt with in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
(3) The police officer who releases the person from detention under the preventative detention order must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.
(4) Subsection (3) does not apply if the police officer releases the person from detention so that the person may be dealt with:
(a) in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; or
(b) under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.