(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 detainee is being detained under the order; and
(b) the interpreter 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) the period for which the detainee is being detained; or
(iv) any information that 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 5 years.
Passing on improperly disclosed information
(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) the period for which a person is being detained under a preventative detention order; or
(iv) any information that a person who is being detained under a 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 discloses that information to another person; and
(d) the disclosure by the disclosure recipient occurs while the person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained under the order.
Penalty: Imprisonment for 5 years.
Police officer or interpreter monitoring contact with lawyer
(7) A person (the monitor) commits an offence if:
(a) the monitor is:
(i) a police officer who monitors; or
(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 105.37 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 subsection 105.37(1); and
(d) the monitor discloses that information to another person.
Penalty: Imprisonment for 5 years.
Note: See also subsection 105.38(5).
105.42 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 specified in the order; or
(b) ensuring the safety and well‑being of the person being detained; or
(c) allowing the police officer to comply with a requirement of this Division in relation to the person’s detention under the order.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(2) An ASIO employee or an ASIO affiliate must not question a person while the person is being detained under a preventative detention order.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(3) An AFP member, or an ASIO employee or an ASIO affiliate, must not question a person while the person is being detained under an order made under a corresponding State preventative detention law.
Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(4) If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that:
(a) a video recording is made of the questioning if it is practicable to do so; or
(b) an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.
Note: A contravention of this subsection may be an offence under section 105.45.
(5) Subsection (4) does not apply if:
(a) the questioning occurs to:
(i) ensure the safety and well being of the person being detained; or
(ii) determine whether the person is the person specified in the order; and
(b) complying with subsection (4) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).
(6) A recording made under subsection (4) must be kept for the period of 12 months after the recording is made.
105.43 Taking fingerprints, recordings, samples of handwriting or photographs
(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.
Note: A contravention of this subsection may be an offence under section 105.45.
(2) A police officer who is of the rank of sergeant or higher 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 specified in the order.
(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.
(4) Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) orders that the material be taken.
Note: A contravention of this subsection may be an offence under section 105.45.
(5) In deciding whether to make such an order, the Judge of the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) the age, or any disability, of the person; and
(b) such other matters as the Judge of the Federal Circuit and Family Court of Australia (Division 2) 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.
Note 1: For appropriate person, see subsection (11).
Note 2: A contravention of this subsection may be an offence under section 105.45.
(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:
(a) subsections (8) and (9) are satisfied; or
(b) subsection (8) or (9) is satisfied (but not both) and a Judge of the Federal Circuit and Family Court of Australia (Division 2) orders that the material be taken.
In deciding whether to make such an order, the Judge of the Federal Circuit and Family Court of Australia (Division 2) must have regard to the matters set out in subsection (5).
(8) This subsection applies if the person agrees in writing to the taking of the material.
(9) This subsection applies 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.
Note: For appropriate person, see subsection (11).
(10) Despite this section, identification material may be taken from a person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her affairs;
if the person consents in writing.
(11) 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) an AFP member;
(ii) an AFP employee (within the meaning of the Australian Federal Police Act 1979);
(iii) a member (however described) of a police force of a State or Territory;
(iv) an ASIO employee or an ASIO affiliate.
105.44 Use of identification material
(1) This section applies if identification material is taken under section 105.43 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 specified in the order.
Note: A contravention of this subsection may be an offence under section 105.45.
(3) 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;
have not been brought, or have been brought and discontinued or completed, within that period;
the material must be destroyed as soon as practicable after the end of that period.
105.45 Offences of contravening safeguards
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes:
(i) subsection 105.28(1); or
(ii) subsection 105.29(1); or
(iii) section 105.30; or
(iv) section 105.33; or
(iva) subsection 105.33A(1); or
(v) subsection 105.42(1), (2), (3) or (4); or
(vi) subsection 105.43(1), (4) or (6); or
(vii) subsection 105.44(2).
Penalty: Imprisonment for 2 years.
Subdivision F—Miscellaneous
105.46 Nature of functions of Judge of the Federal Circuit and Family Court of Australia (Division 2)
(1) A function of making an order conferred on a Judge of the Federal Circuit and Family Court of Australia (Division 2) by section 105.43 is conferred on the Judge of the Federal Circuit and Family Court of Australia (Division 2) in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) under section 105.43 has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
(3) A Judge of the Federal Circuit and Family Court of Australia (Division 2) performing a function of, or connected with, making an order under section 105.43 has the same protection and immunity as if he or she were performing that function as, or as a member of, the Federal Circuit and Family Court of Australia (Division 2).
105.47 Annual report
(1) The AFP Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division 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 initial preventative detention orders made under section 105.8 during the year;
(b) the number of continued preventative detention orders made under section 105.12 during the year;
(c) whether a person was taken into custody under each of those orders and, if so, how long the person was detained for;
(d) particulars of:
(i) any complaints made or referred to the Commonwealth Ombudsman during the year that related to the detention of a person under a preventative detention order; and
(ii) any information given under section 40SA of the Australian Federal Police Act 1979 during the year that related to the detention of a person under a preventative detention order and raised an AFP conduct or practices issue (within the meaning of that Act);
(e) the number of prohibited contact orders made under sections 105.15 and 105.16 during the year;
(f) the number of preventative detention orders, and the number of prohibited contact orders, that a court has found not to have been validly made.
(3) The AFP Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
105.48 Certain functions and powers not affected
This Division does not affect:
(a) a function or power of the Commonwealth Ombudsman under the Ombudsman Act 1976; or
(b) a function or power of a person under Part V of the Australian Federal Police Act 1979.
105.49 Queensland public interest monitor functions and powers not affected
This Division does not affect a function or power that the Queensland public interest monitor, or a Queensland deputy public interest monitor, has under a law of Queensland.
105.50 Law relating to legal professional privilege not affected
To avoid doubt, this Division does not affect the law relating to legal professional privilege.
105.51 Legal proceedings in relation to preventative detention orders
(1) Subject to subsections (2) and (4), proceedings may be brought in a court for a remedy in relation to:
(a) a preventative detention order; or
(b) the treatment of a person in connection with the person’s detention under a preventative detention order.
(2) A court of a State or Territory does not have jurisdiction in proceedings for a remedy if:
(a) the remedy relates to:
(i) a preventative detention order; or
(ii) the treatment of a person in connection with the person’s detention under a preventative detention order; and
(b) the proceedings are commenced while the order is in force.
(3) Subsection (2) has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).
(4) An application cannot be made under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under this Division.
Note: See paragraph (dac) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977.
105.52 Review by State and Territory courts
(1) This section applies if:
(a) a person is detained under a preventative detention order (the Commonwealth order) that is made on the basis of:
(i) assisting in preventing a terrorist act occurring within a period; or
(ii) preserving evidence of, or relating to, a terrorist act; and
(b) the person is detained under an order (the State order) that is made under a corresponding State preventative detention law on the basis of:
(i) assisting in preventing the same terrorist act, or a different terrorist act, occurring within that period; or
(ii) preserving evidence of, or relating to, the same terrorist act; and
(c) the person brings proceedings before a court of a State or Territory in relation to:
(i) the application for, or the making of, the State order; or
(ii) the person’s treatment in connection with the person’s detention under the State order.
(2) The court may:
(a) review the application for, or the making of, the Commonwealth order, or the person’s treatment in connection with the person’s detention under the Commonwealth order, on the same grounds as those on which the court may review the application for, or the making of, the State order, or the person’s treatment in connection with the person’s detention under the State order; and
(b) grant the same remedies in relation to the application for, or the making of, the Commonwealth order, or the person’s treatment in connection with the person’s detention under the Commonwealth order, as those the court can grant in relation to the application for, or the making of, the State order, or the person’s treatment in connection with the person’s detention under the State order.
(3) If:
(a) the person applies to the court for:
(i) review of the application for, or the making of, the Commonwealth order or the person’s treatment in connection with the person’s detention under the Commonwealth order; or
(ii) a remedy in relation to the application for, or the making of, the Commonwealth order or the person’s treatment in connection with the person’s detention under the Commonwealth order; and
(b) the person applies to the court for an order under this subsection;
the court may order the Commissioner of the Australian Federal Police to give the court, and the parties to the proceedings, the information that was put before the person who issued the Commonwealth order when the application for the Commonwealth order was made.
(4) Subsection (3) 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).
(5) This section has effect:
(a) without limiting subsection 105.51(1); and
(b) subject to subsection 105.51(2).
(6) Nothing in this section affects the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceedings.
105.53 Sunset provision
(1) A preventative detention order, or a prohibited contact order, that is in force at the end of 7 December 2026 ceases to be in force at that time.