Queensland: Terrorism (Preventative Detention) Act 2005 (Qld)

Terrorism (Preventative Detention) Act 2005 An Act to authorise preventative detention in connection with terrorist acts, and for other purposes 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 fixed by proclamation. 3 Object The object of this Act is to allow a person to be taken into custody and detained for a short period of time in order to— (a) prevent a terrorist act that is capable of being carried out, and could occur, in the near future from occurring; or (b) preserve evidence of, or relating to, a recent terrorist act. Note— Section 53 provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes. 4 Definitions The dictionary in the schedule defines particular words used in this Act. 5 Act binds all persons (1) This Act binds all persons, including the State, and so far as the legislative power of the Parliament permits, the other States and the Commonwealth. (2) Nothing in this Act makes a State or the Commonwealth liable to be prosecuted for an offence. 6 Extraterritorial application of Act (1) This Act applies— (a) within Queensland; and (b) in the adjacent area for Queensland. (2) The powers and functions conferred under this Act in relation to a terrorist act or suspected terrorist act may be exercised whether the terrorist act or suspected terrorist act has been, is being, or is likely to be committed in Queensland or outside Queensland. (3) In this section— adjacent area, for Queensland, has the meaning given under the Crimes at Sea Act 2001, schedule, clause 14. 7 Issuing authority (1) The issuing authority for an initial order is a senior police officer. (2) The issuing authority for a final order is— (a) a judge; or (b) a retired judge; in either case appointed by the Minister under subsection (4). (3) For an application to the issuing authority to extend, or further extend, or to revoke, a preventative detention order, the issuing authority is— (a) for an initial order—the senior police officer who made the order or another senior police officer; or (b) for a final order—the judge or retired judge who made the order or another judge or retired judge holding an appointment under subsection (4). (4) The Minister may appoint 1 or more judges or retired judges to be the issuing authority for final orders. (5) A judge or retired judge can not perform a function as the issuing authority unless— (a) the judge or retired judge has consented in writing to performing the function; and (b) the consent is in force. (6) A senior police officer can not delegate a power to make orders under this Act other than to another senior police officer. 7A [Repealed] Part 2 Preventative detention orders Division 1 General 8 Basis for applying for, and making, a preventative detention order (1) A police officer may apply for a preventative detention order for a person only if the police officer meets the requirements of subsection (3) or (5). (2) The issuing authority may make a preventative detention order for a person only if the issuing authority meets the requirements of subsection (3) or (5). (3) The police officer or issuing authority meets the requirements of this subsection if the police officer or issuing authority is satisfied— (a) there are reasonable grounds to suspect that the person— (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 in planning, a terrorist act; and (b) making the order would substantially assist in preventing a terrorist act occurring; and (c) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring. (4) For subsection (3), the police officer or issuing authority must be satisfied there are reasonable grounds to suspect a terrorist act is capable of being carried out, and could occur, within the next 14 days. (5) Also, the police officer or issuing authority meets the requirements of this subsection if the police officer or issuing authority is satisfied on reasonable grounds— (a) a terrorist act has occurred within the last 28 days; and (b) it is necessary to detain the person to preserve evidence in Queensland or elsewhere of, or relating to, the terrorist act; and (c) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving the evidence. (6) The issuing authority may refuse to make a preventative detention order unless the police officer applying for the order gives the issuing authority any further information that the issuing authority requests about the facts and other grounds on which the police officer making the application considers the order should be made. 9 No preventative detention order for person under 16 years of age (1) A preventive detention order can not be applied for, or made, for a person who is under 16 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, as soon as practicable, from detention under the order or purported order. 10 Multiple preventative detention orders Subject to sections 11 and 12, any number of preventative detention orders of any type may be made for a person. 11 Restrictions on subject matter of multiple preventative detention orders (1) Nothing in subsections (2) to (4) prevents the making of— (a) a final order for a person for a terrorist act following the making of an initial order for the person for the same terrorist act; or (b) an order extending, or further extending, an existing preventative detention order; or (c) any order following the making of an order for a person's detention under a corresponding law of the Commonwealth. (2) If— (a) a preventative detention order, or an order for a person's detention under a corresponding law of another State, is made for 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; a preventative detention order can not be applied for, or made, under this Act for 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 preventative detention order for the person on the basis of preserving evidence of, or relating to, the terrorist act if it occurs. (3) If— (a) a preventative detention order, or an order for a person's detention under a corresponding law of another State, is made for 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; a preventative detention order can not be applied for, or made, under this Act for 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 the issuing authority only after the order mentioned in paragraph (a) was made. (4) If— (a) a preventative detention order, or an order for a person's detention under a corresponding law of another State, is made for 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; a preventative detention order can not be applied for, or made, under this Act for the person on the basis of preserving evidence of, or relating to, the same terrorist act. 12 Restrictions on period of detention under multiple preventative detention orders (1) The prescribed 24 hour period, for an initial order, is the period that ensures that in no case can a person be detained under the initial order longer than 24 hours after being taken into custody under any preventative detention order, or any order for the person's detention made under a corresponding law, for the same terrorist act. (2) The prescribed 14 day period, for a final order, is the period that ensures that in no case can a person be detained under the final order longer than 14 days after being taken into custody under any preventative detention order, or any order for the person's detention made under a corresponding law, for the same terrorist act. (3) If, because of the application of subsection (1) or (2), a period is nil for a particular order, the order can not be made. 13 Presence or absence at application for order of detainee and other persons (1) This section applies in relation to an application for a preventative detention order or the extension, or further extension, of a preventative detention order for a person (an application and the detainee). (2) Unless expressly provided for in relation to an application, the detainee, or a representative of the detainee, is not entitled to be given notice of the application, to be present at the application or to make representations in relation to the application. (3) Subject to subsection (2), no person other than the following persons may be present at an application— (a) the issuing authority and anyone assisting the issuing authority; (b) the applicant and any person assisting the applicant in the application; (c) if the detainee is permitted to be at the application under another provision of this Act—the detainee and any person assisting the detainee in the application; (d) the PIM, if section 14 applies. (4) Despite subsection (3), the issuing authority, in the public interest, may further limit or extend those who may be present at a particular application. 14 General provisions that apply if the PIM must be notified about an application to the issuing authority (1) This section applies to an application to the issuing authority about which the PIM is required to be notified. (2) The applicant must give the PIM— (a) a copy of the application; and (b) notice of the place, date and time the application will be heard. (3) However, subsection (2)(a) does not apply if— (a) the application is for an initial order; and (b) because section 79(4)(a) or 79A(2) applies to the applicant, the applicant does not prepare the written application required under section 15. (4) The PIM is entitled to be present when the application is heard, to ask questions of any person giving information to the issuing authority and to make any representations to the issuing authority. (5) Without limiting subsection (4), the PIM is entitled to make representations to the issuing authority in the issuing authority's presence or by phone, fax, email or any other reasonable way. Division 2 Initial orders 15 Application for initial order (1) A police officer may apply to the issuing authority for a preventative detention order under section 17 for a person in relation to a terrorist act (an initial order). (2) The application must be in writing and state— (a) the facts and other grounds on which the applicant considers the order should be made; and (b) the period for which the person is to be detained under the order and the facts and other grounds on which the applicant considers that the person should be detained for that period; and (c) any information that the applicant may have about the person's age; and (d) the outcomes and particulars of all previous applications for preventative detention orders made for the person; and (e) any information that the applicant may have about any periods for which the person has been detained under an order made under a corresponding law; and (f) any information that the applicant may have about any Commonwealth control order made for the person; and (g) for any children who may reside with or be associated with the person— (i) the inquiries that have been made to find out whether there are children who reside with or are associated with the person; and (ii) if children reside with or are associated with the person—the information the applicant has about the children and the provisions that are proposed for the initial order to protect the interests of the children. (3) Also, if the person is a child or of impaired capacity, the application must state— (a) whether the person may be contacted under section 61 while detained under the order; and (b) if the person should not be contacted under section 61 because the contact would seriously prejudice national security—the grounds for preventing the contact. (4) If section 11(3) applies to the application, the application must identify the information mentioned in the subsection on which the application is based. (5) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. Note— See the Criminal Code, chapters 16 and 20, for relevant offences. (6) This section is subject to sections 79 and 79A. 16 PIM must be notified (1) The applicant must notify the PIM of the application under arrangements decided by the PIM. (2) If the PIM is not reasonably able to be contacted for the application— (a) the application may proceed without the PIM being notified; and (b) the PIM must be notified as soon as possible and given any information requested by the PIM that the PIM would have been entitled to obtain for or during the application. Example of when PIM is not reasonably able to be contacted— The public interest monitor and any deputy public interest monitor are telephoned but do not answer the phone or return calls when asked to call back. 17 Issuing authority may make initial order (1) On application by the police officer, the issuing authority may make an initial order under this section for the person. (2) Subsection (1) has effect subject to the following sections— • section 8 (Basis for applying for, and making, a preventative detention order) • section 9 (No preventative detention order for person under 16 years of age) • section 11 (Restrictions on subject matter of multiple preventative detention orders) • section 12 (Restrictions on period of detention under multiple preventative detention orders). (3) An initial order is an order that the person may be— (a) taken into custody; and (b) detained during the period that— (i) starts at the later of the following— (A) when the order is made; (B) if another preventative detention order, or an order for the detention of the person under a corresponding law, is in force for the person for the same terrorist act—when the other order ceases to have effect; and (ii) ends a stated period of time after the person is first taken into custody under the order. (4) The order— (a) must be in writing; and (b) may include, as an attachment, a photo that is sufficient, whether by itself or together with a description mentioned in subsection (6)(a)(ii), to identify the person for whom the order is made. (5) The period of time stated in the order under subsection (3)(b)(ii) must not be more than the prescribed 24 hour period. (6) An initial order must state— (a) 1 or more of the following— (i) the name of the person for whom the order is made; (ii) if the applicant does not know the name of the person for whom the order is made—a description, consisting of 1 or more of the following, that is sufficient, whether by itself or together with any photo included in the order as an attachment, to identify the person for whom the order is made— (A) part of the person's name; (B) an alias or nickname of the person; (C) a physical description of the person; (iii) if the order includes, as an attachment, a photo of the person for whom the order is made—that the photo included in the order is a photo of the person for 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. (7) If the person is— (a) a child; or (b) of impaired capacity; the order may provide that the period each day for which the person is entitled to have contact with another person under section 60(2) is the period of more than 2 hours that is stated in the order. (8) Also, if the person is a child or of impaired capacity, the order may state that the person may not be contacted under section 61 while being detained under the order. (9) The only basis for a decision under subsection (8) is that preventing the contact is necessary because the contact would seriously prejudice national security. 18 Duration of initial order (1) An initial order for a person starts to have effect when it is made. Note— The order comes into force when it is made and authorises the person to be taken into custody (see section 17(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 section 17(3)(b)(i)). (2) An initial order for the person ceases to have effect at the end of the period of 72 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 72 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 stated 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 21—that period as extended or further extended; (b) the revocation of the order under division 5. Note— The order does not cease to have effect merely because the person is released from detention under the order. 19 Application for extension of initial order (1) If— (a) an initial order is made for a person; and (b) the order is in force for the person; a police officer may apply to the issuing authority for an extension, or a further extension, of the period for which the order is to be in force for the person. (2) The application must be in writing and state— (a) the facts and other grounds on which the police officer considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and Note— See section 8(3) and (5) for the purpose for which a preventative detention order may be made. (b) the outcomes and particulars of all previous applications for extensions, or further extensions, of the order. (3) Also, if the person is a child or of impaired capacity, the application must state— (a) whether the person may be contacted under section 61 while being further detained under the order; and (b) if the person should not be contacted under section 61 while being further detained under the order because the contact would seriously prejudice national security—the grounds for preventing the contact. (4) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. 20 PIM must be notified (1) The applicant must notify the PIM of the application under arrangements decided by the PIM. (2) If the PIM is not reasonably able to be contacted for the application— (a) the application may proceed without the PIM being notified; and (b) the PIM must be notified as soon as possible and given any information requested by the PIM that the PIM would have been entitled to obtain for or during the application. Example of when PIM is not reasonably able to be contacted— The public interest monitor and any deputy public interest monitor are telephoned but do not answer the phone or return calls when asked to call back. 21 Issuing authority may extend initial order (1) The issuing authority may extend, or further extend, the period for which the order is to be in force for 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. (2) The extension, or further extension, must be made in writing as an order. (3) The period as extended, or further extended, must end no later than the prescribed 24 hour period after the person is first taken into custody under the order. (4) Also, if the person is a child or of impaired capacity, the extension, or further extension, may state that the person may not be contacted under section 61 while being further detained under the order. (5) The only basis for a decision under subsection (4) is that preventing the contact is necessary because the contact would seriously prejudice national security. Division 3 Final orders 22 Application for final order (1) A police officer may apply to the issuing authority for a preventative detention order under section 25 for a person in relation to a terrorist act (a final order). (2) The application must be in writing, be sworn and state— (a) the facts and other grounds on which the applicant considers that the order should be made; and (b) the period for which the person is to be detained or continue to be detained under the order and the facts and other grounds on which the applicant considers that the person should be detained or continue to be detained for that period; and (c) any information the applicant may have about the person's age; and (d) the outcomes and particulars of all previous applications for preventative detention orders made for the person; and (e) any information that the applicant may have about any periods for which the person has been detained under an order made under a corresponding law; and (f) any information that the applicant may have about any Commonwealth control order made for the person; and (g) for any children who may reside with or be associated with the person— (i) the inquiries that have been made to find out whether there are children who reside with or are associated with the person; and (ii) if children reside with or are associated with the person—the information the applicant has about the children and the provisions that are proposed for the final order to protect the interests of the children; and (h) if the person is in detention under an existing preventative detention order or an order for the person's detention under a corresponding law—the extent to which the person has been informed of the matters covered by section 47(2)(c) to (h). (3) Also, if the person is a child or of impaired capacity, the application must state— (a) whether the person may be contacted under section 61 within 24 hours of being taken into custody under the order; and (b) if the person should not be contacted under section 61 within 24 hours of being taken into custody under the order because the contact would seriously prejudice national security— (i) the grounds for preventing the contact; and (ii) the period as soon as possible after the end of the 24 hour period when the person must be contacted under section 61. (4) If section 11(3) applies to the application, the application must identify the information mentioned in the subsection on which the application is based. (5) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. Note— See the Criminal Code, chapters 16 and 20, for relevant offences. 23 Notice to and representations by the person (1) The applicant must give the person— (a) a written summary of the application; and (b) notice of the place, date and time the application will be heard. Note— Effectively the only application for a preventative detention order that can be made without notice to the person to whom the application relates is an application for an initial order or an extension of an initial order. Detention under an initial order, including any extension, is limited to a maximum of the prescribed 24 hour period. (2) The person and the person's lawyer are entitled to be present when the application is heard, either in person or, if the issuing authority directs, by video link. (3) The person and the person's lawyer are entitled to ask questions of any person giving information to the issuing authority and to make any representations to the issuing authority. (3A) For the hearing, the written summary given to the person must also be given to the issuing authority. (3B) If the issuing authority is not reasonably satisfied that the written summary fairly and accurately informs the person of the nature and cause of the application, the issuing authority must direct the applicant to provide the person with more information about the application. (3C) The applicant is not required to provide under subsection (3B) information that could, if disclosed, reasonably be expected— (a) to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; or (b) to prejudice national security. (4) Subsection (1) or (3) does not require any information to be disclosed— (a) if the disclosure of the information is likely to prejudice national security; or (b) if the information would not have to be disclosed in a proceeding because of the Police Powers and Responsibilities Act 2000, section 803. 24 PIM must be notified The applicant must notify the PIM of the application under arrangements decided by the PIM. 25 Issuing authority may make final order (1) On application by the police officer, the issuing authority may make a final order under this section for the person. (2) The order may be made whether or not an application has been made for an initial order for the terrorist act. (3) Subsection (1) has effect subject to the following sections— • section 8 (Basis for applying for, and making, a preventative detention order) • section 9 (No preventative detention order for person under 16 years of age) • section 11 (Restrictions on subject matter of multiple preventative detention orders) • section 12 (Restrictions on period of detention under multiple preventative detention orders). Note— If a previous preventative detention order has been made, section 8 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 other order was made, of the matters mentioned in section 8(3) or (5) before making the order. (4) A final order is an order that the person may be taken into custody and detained, or further detained, during a period that— (a) starts at the later of the following— (i) when the order is made; (ii) if another preventative detention order, or an order for the detention of the person under a corresponding law, is in force for the person for the same terrorist act—when the other order ceases to have effect; and (b) ends a stated period of time after the person is first taken into custody. (5) The order— (a) must be in writing; and (b) may include, as an attachment, a photo that is sufficient, whether by itself or together with a description mentioned in subsection (7)(a)(ii), to identify the person for whom the order is made. (6) The period of time stated under subsection (4)(b) must not be more than the prescribed 14 day period. (7) A final order must state— (a) 1 or more of the following— (i) the name of the person for whom the order is made; (ii) if the applicant does not know the name of the person for whom the order is made—a description, consisting of 1 or more of the following, that is sufficient, whether by itself or together with any photo included in the order as an attachment, to identify the person for whom the order is made— (A) part of the person's name; (B) an alias or nickname of the person; (C) a physical description of the person; (iii) if the order includes, as an attachment, a photo of the person for whom the order is made—that the photo included in the order is a photo of the person for 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. (8) If the person— (a) is a child; or (b) is of impaired capacity; the order may provide that the period each day for which the person is entitled to have contact with another person under section 60(2) is the period of more than 2 hours that is stated in the order. (9) Also, if the person is a child or of impaired capacity, the final order may state both of the following— (a) that the person may not be contacted under section 61 within 24 hours after being taken into custody under the order; but (b) that the person must be contacted under section 61 after the end of the 24 hour period within a period stated in the order. (10) The only basis for making a decision under subsection (9) is that preventing the contact is necessary because the contact would seriously prejudice national security. (11) The issuing authority may also include in the order provision for the person to have contact with a child of the person in addition to the provision for contact under section 56. 26 Duration of final order (1) A final order for the 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 any other preventative detention order, or order for the detention of the person under a corresponding law, ceases to have effect (see section 25(4)(a)). (2) A final order for the person ceases to have effect when whichever of the following first occurs— (a) the end of— (i) the period stated 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 31—that period as extended or further extended; (b) the revocation of the order under division 5. Note— The order does not cease to have effect merely because the person is released from detention under the order. See section 45. 27 Application for extension of final order (1) If a final order is in force for the person, a police officer may apply to the issuing authority for an extension, or a further extension, of the period for which the order is to be in force for the person. (2) If practicable, the application must be made to the issuing authority who made the final order. 28 Further provisions about application for extension of final order (1) The application must be in writing, be sworn and state— (a) the facts and other grounds on which the police officer considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and Note— See section 8(3) and (5) for the purpose for which a preventative detention order may be made. (b) the outcomes and particulars of all previous applications for extensions, or further extensions, of the final order. (2) Also, if the person is a child or of impaired capacity, the application must state— (a) whether the person may be contacted under section 61 within 24 hours after being further detained under the order; and (b) if the person should not be contacted under section 61 within 24 hours of being further detained under the order because the contact would seriously prejudice national security— (i) the grounds for preventing the contact; and (ii) the period as soon as possible after the end of the 24 hour period when the person must be contacted under section 61. (3) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. 29 Notice to and representations by the person (1) The applicant must give the person— (a) a written summary of the application; and (b) notice of the place, date and time the application will be heard. (2) The person and the person's lawyer are entitled to be present when the application is heard either in person, or, if the issuing authority directs, by video link. (3) The person and the person's lawyer are entitled to ask questions of any person giving information to the issuing authority and to make any representations to the issuing authority. (4) Subsection (1) or (3) does not require any information to be disclosed— (a) if the disclosure of the information is likely to prejudice national security; or (b) if the information would not have to be disclosed in a proceeding because of the Police Powers and Responsibilities Act 2000, section 803. 30 PIM must be notified The applicant must notify the PIM of the application under arrangements decided by the PIM. 31 Issuing authority may extend final order (1) The issuing authority may extend, or further extend, the period for which the final order is to be in force for 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. (2) The extension, or further extension, must be made in writing as an order. (3) The period as extended, or further extended, must end no later than the prescribed 14 day period. (4) Also, if the person is a child or of impaired capacity, the extension, or the further extension, may state both of the following— (a) that the person may not be contacted under section 61 within 24 hours after being further detained under the order; but (b) that the person must be contacted under section 61 after the end of the 24 hour period within a period stated in the order. (5) The only basis for making a decision under subsection (4) is that preventing the contact is necessary because the contact would seriously prejudice national security. Division 3A Legal Aid 31A Order for free legal assistance (1) This section applies if— (a) a person in detention under an initial order does not have legal representation; and (b) an application is made to the issuing authority for a final order. (2) The issuing authority must require the person to advise the issuing authority within a stated period the issuing authority considers reasonable (the period) that the person has or has not arranged for legal representation or does not want legal representation. (3) The issuing authority must make the order in subsection (4) unless the person advises the issuing authority within the period that the person has arranged for legal representation or does not want legal representation. (4) The order is that the person be given free legal assistance for the period of the person's detention for any detention proceeding. (5) In this section— detention proceeding means— (a) the application for the final order or another application under this Act for a preventative detention order; or (b) an application to the Supreme Court under section 71 or 72 or under the Judicial Review Act 1991 in relation to an application for, or the making of, a preventative detention order. legal representation means representation by a lawyer. 31B Effect of order (1) Legal Aid must give the person free legal assistance as required by the order as if it had granted an application under the Legal Aid Queensland Act 1997 for free legal assistance. (2) A lawyer provided by the free legal assistance is the person's legal representative only in relation to the person's detention and only while the person is in detention under this Act. Division 4 Prohibited contact orders 32 Prohibited contact order for person for whom preventative detention order is being sought (1) A police officer who applies for a preventative detention order for a person may also apply for a prohibited contact order under this section in relation to the person's detention under the preventative detention order. (2) The application must be in writing and state— (a) the terms of the prohibited contact order sought; and (b) the facts and other grounds on which the police officer considers that the order should be made. (3) The application must be sworn if the preventative detention order is a final order. (4) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. (5) If the issuing authority— (a) makes the preventative detention order; and (b) is satisfied that making the prohibited contact order will assist in achieving the purpose for which the preventative detention order was made; the issuing authority may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact a person stated in the prohibited contact order. Note for subsection (5)(b)— See section 8(3) and (5) for the purpose for which a preventative detention order may be made. (6) The prohibited contact order must be in writing. 33 Prohibited contact order for person for whom preventative detention order is already in force (1) If a preventative detention order is in force for a person, a police officer may apply to the issuing authority for a prohibited contact order under this section in relation to the person's detention under the preventative detention order. (2) The application must be in writing and state— (a) the terms of the order sought; and (b) the facts and other grounds on which the police officer considers that the order should be made. (3) The application must be sworn if the preventative detention order is a final order. (4) The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the making of the order. (5) If the issuing authority is satisfied that making the prohibited contact order will assist in achieving the purpose for which the preventative detention order was made, the issuing authority may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact another person stated in the prohibited contact order. Note— See section 8(3) and (5) for the purpose for which a preventative detention order may be made. (6) The prohibited contact order must be in writing. 34 Notice to PIM The following provisions apply to an application under this division as if reference in the provision to an application were to the application under this division— (a) if the preventative detention order is an initial order—section 20; (b) if the preventative detention order is a final order—section 24. Division 5 Revocation of orders by issuing authority 35 Revocation of preventative detention order or prohibited contact order (1) If— (a) a preventative detention order is in force for 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 no longer exist; the police officer must apply, as soon as practicable, to the issuing authority for the revocation of the order. (2) If— (a) a preventative detention order is in force for a person; and (b) on an application under subsection (1) by a police officer, the issuing authority is satisfied that the grounds on which the order was made no longer exist; the issuing authority must revoke the order. (3) 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 no longer exist; the police officer must apply, as soon as practicable, to the issuing authority for the revocation of the 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) on an application by a police officer under subsection (3), the issuing authority is satisfied that the grounds on which the prohibited contact order was made no longer exist; the issuing authority must revoke the prohibited contact order. 36 PIM must be notified The applicant must notify the PIM of the application under arrangements decided by the PIM. Part 3 Carrying out preventative detention orders 37 Power to detain person under preventative detention order (1) While a preventative detention order is in force for 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 has, for the purpose of taking a person into custody under a preventative detention order or preventing the person from escaping from that custody, the same functions and powers as the police officer would have if the police officer were taking the person into custody in connection with the commission of an offence or preventing the person escaping from that custody. (3) Subsection (2) does not apply to the extent to which particular functions or powers are provided for in this part. 38 Nominated police officer to oversee functions and powers (1) If a preventative detention order is made for a person, the commissioner or the deputy commissioner of police must nominate a senior police officer (the nominated police officer) to oversee the performance of functions and exercise of powers in relation to the preventative detention order. (2) The nominated police officer must be someone who was not involved in the making of the application for the preventative detention order. (3) The nominated police officer must— (a) oversee the performance of functions and exercise of powers in relation to the preventative detention order; and (b) without limiting paragraph (a), ensure that part 2, division 5 is complied with in relation to the preventative detention order; and (c) receive and consider any representations that are made under subsection (4). Note— Part 2, division 5 deals with the revocation of preventative detention orders and prohibited contact orders. (4) 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 section 60(2) or section 61; are entitled to make representations to the nominated police officer about— (d) the performance of functions and the exercise of powers in relation to the preventative detention order; and (e) without limiting paragraph (d), compliance with part 2, division 5 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; and (g) having the preventative detention order revoked. (5) The commissioner or the deputy commissioner of police may exercise the power under subsection (1) to replace a nominated police officer with another nominated police officer (the new nominated police officer). (6) The new nominated police officer must inform the person for whom the preventative detention order was made of the officer's nomination as soon as practicable. 39 Endorsement of order with date and time person taken into custody As soon as practicable after a person is first taken into custody under a particular 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. 40 Requirement to provide name etc. (1) A police officer may ask a person to state the person's name, address or date of birth if— (a) the officer suspects on reasonable grounds that the person is the subject of a preventative detention order; or (b) the person has been taken into custody and is being detained under a preventative detention order; or (c) the officer believes on reasonable grounds that the person may be able to help the police officer in executing a preventative detention order and the officer does not know the person's name, address or date of birth. (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); the person must not— (e) refuse or fail to comply with the request; or (f) give a name, address or date of birth that is false in a material particular. Maximum penalty—20 penalty units. (3) Subsection (2) does not apply if the person has a reasonable excuse. (4) A police officer who makes a request of a person under subsection (1) must provide the following to the person— (a) the officer's name; (b) the officer's station; (c) the officer's rank. (5) The police officer must not— (a) contravene subsection (4); or (b) in purported compliance with subsection (4), give a name, station, number or rank that is false in a material particular. Maximum penalty—5 penalty units. 41 Power to enter premises (1) If— (a) a preventative detention order is in force for a person; and (b) a police officer suspects on reasonable grounds that the person is on any premises; the police officer may enter the premises, using the force that may be necessary and reasonable in the circumstances and with the assistance of other police officers that may be necessary, at any time of the day or night to search the premises for the person and to take the person into custody. (2) In this section— premises see the Police Powers and Responsibilities Act 2000, schedule 6. 42 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 find out 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. 43 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 anything mentioned in paragraph (a) or (b) found as a result of the search. 43A Search involving removal of clothing (1) Subsection (2) applies if a police officer who takes a person into custody under a preventative detention order, or who is present when a person is taken into custody, reasonably suspects the person is carrying an item that may result in loss of life or serious physical harm. (2) The police officer may require the person to remove all items of clothing or all items of clothing from the upper or lower part of the body. 43B Safeguards apply The following provisions of the Police Powers and Responsibilities Act 2000 apply to a search under section 42, 43 or 43A— • section 624 (General provision about searches of persons) • section 625 (Taking a person to another place to search) • section 626 (Limitation on period of detention for search) • section 628 (Dealing with persons who obstruct search of person or vehicle) • section 630 (Protecting the dignity of persons during search) • section 631 (Special requirements for searching children and persons with impaired capacity) • section 632 (If video cameras monitor place where person is searched). 44 ASIO warrant (1) This section applies if— (a) a person is being detained under a preventative detention order; and (b) an ASIO warrant 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 the steps that may be necessary to ensure that the person may be dealt with under the warrant. (3) Without limiting subsection (2), the police officer may, under section 45, release the person from detention under the preventative detention order so that the person may be dealt with under the warrant. (4) To remove any doubt, it is declared that 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 for the person. Note— See section 45(8)(a). (5) In this section— prescribed authority see the Australian Security Intelligence Organisation Act 1979 (Cwlth), part 3, division 3. 45 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 on being arrested for an offence may be charged and otherwise dealt with for the offence. (2) However, the police officer may not release the person without the approval of a senior police officer if the person is being released so that the person may be dealt with under an ASIO warrant. (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. (4) The statement must be signed by the police officer. (5) Subsection (3) does not apply if the police officer releases the person from detention so that the person may be dealt with— (a) under an ASIO warrant; or (b) under the provisions of the Crimes Act 1914 (Cwlth), part 1AA, division 4 and part 1C; or (c) on a charge of an offence. (6) To remove any doubt, it is declared that a person may be taken to have been released from detention under a preventative detention order even if— (a) the person is informed that the person 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 the person is being released from detention under the order. (7) To remove any doubt, it is declared that 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 55, which deals with the people the person may contact) do not apply to the person. (8) To remove any doubt, it is declared that— (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 for 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) the person, after being 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 for the person. 46 Arrangement for detainee to be held (1) A senior police officer may arrange for a person who is being detained under a preventative detention order to be detained under the order at— (a) a watch-house; or (b) a corrective services facility; or (c) a detention centre. (2) All persons, including a person who is under 17, may be detained at either of the places mentioned in subsection (1)(a) or (b). (3) A person who is under 18, and only a person who is under 18, may be detained at a detention centre. (4) An arrangement under subsection (1) for a person to be held at a watch-house must be only for a period that allows the person to be delivered as soon as practicable to a corrective services facility or a detention centre. (5) If an arrangement is made under subsection (1) for a person— (a) the preventative detention order is taken to authorise the person in charge of the watch-house, corrective services facility or detention centre to detain the person at that place while the order is in force for the person; and (b) section 52 applies in relation to the person's detention under the order at the watch-house, corrective services facility or detention centre as if— (i) the person in charge of that place; or (ii) any other person involved in the person's detention at that place; were a person exercising authority under the order or implementing or enforcing the order; and (c) the senior police officer is taken, while the person is detained at the watch-house, corrective services facility or detention centre, to be the police officer detaining the person for this Act. (6) If the person is detained at a corrective services facility, for the Corrective Services Act 2006— (a) the preventative detention order is a warrant for the person's detention at the facility; and (b) the person is in the custody of the chief executive within the meaning of that Act. (7) If the person is detained at a detention centre, for the Youth Justice Act 1992— (a) the preventative detention order is a warrant for the detention of the person at the detention centre; and (b) the person is in the custody of the chief executive within the meaning of that Act; and (c) only parts 8 to 10 of that Act, other than sections 269, 272 and 280, apply in relation to the detention of the person. (8) To remove any doubt, it is declared that the detention of a person at a watch-house, corrective services facility or detention centre is subject to part 5, division 2. (9) If a person is detained under a preventative detention order at a watch-house, corrective services facility or detention centre, the order does not prevent detention at that place from being counted as part of a sentence of imprisonment that the person is liable to serve. (10) A person detained at a watch-house, corrective services facility or detention centre under this section must be kept segregated from all other persons being detained at that place. (11) For subsection (10), the chief executive (corrective services) may make a maximum security order for the person under the Corrective Services Act 2006, section 60(1). (12) For subsection (11), the Corrective Services Act 2006, section 60(3) does not apply. (13) Also, the chief executive (corrective services) may make a safety order for the person under the Corrective Services Act 2006, section 53(1). (14) For subsection (13), the Corrective Services Act 2006, section 53(1)(b) does not apply. (15) The provisions of this section apply despite any provisions of the Corrective Services Act 2006 or the Youth Justice Act 1992. (16) In this section— preventative detention order, in subsections (6) and (7), includes a copy of a preventative detention order certified as a true copy by the issuing authority that issued the order. Part 4 Informing person detained about preventative detention order 47 Effect of initial order to be explained to person detained (1) As soon as practicable after a person is first taken into custody under an initial order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2). Notes— 1 A contravention of this subsection may be an offence under section 54. 2 A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see section 50). (2) The matters covered by this subsection are— (a) the fact that an initial order has been made for the person; and (b) the period during which the person may be detained under the order; and (c) the permissions and restrictions that apply to the people the person may contact while the person is being detained under the order; and (d) the fact that an application will be, or may be, made for a final order detaining the person for a further period; and (da) unless it is clear the person is not under 16 years of age, the fact that a preventative detention order can not be made for a person under 16 years of age; and (e) the right the person has to complain to the ombudsman or the Crime and Corruption Commission about— (i) the application for, or the making of, the order; or (ii) the treatment of the person in connection with the person's detention under the order; and (f) the fact that the person may seek from a court a remedy relating to— (i) the order; or (ii) the treatment of the person in connection with the person's detention under the order; and (g) the person's entitlement under section 58 to contact a lawyer; and (ga) the person's entitlement under section 56 to contact persons mentioned in the section; and (h) the name, rank and station of the nominated police officer and the functions of the officer. (3) Subsection (2)(c) does not require the police officer to inform the person being detained of— (a) the fact that a prohibited contact order has been made in relation to the person's detention; or (b) the name of a person stated in a prohibited contact order that has been made in relation to the person's detention. (4) For subsection (2)(f), the police officer must assist the person to make an application under part 6 if the person requests assistance. Example of assistance for subsection (4)— providing the person with a list of security-cleared lawyers who may be available to represent the person and contacting the lawyer chosen by the person for the purposes of section 58 (5) For subsection (2)(h), the police officer must assist the person to contact the nominated police officer if the person requests assistance. 48 Effect of final order to be explained to person detained (1) As soon as practicable after a final order is made for a person, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2). Notes— 1 A contravention of this subsection may be an offence under section 54. 2 A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see section 50). (2) The matters covered by this subsection are— (a) the fact that a final 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 permissions and restrictions that apply to the people the person may contact while the person is being detained under the order; and (d) the right the person has to complain to the ombudsman or the Crime and Corruption Commission about— (i) the application for, or the making of, the order; or (ii) the treatment of the person in connection with the person's detention under the order; and