Terrorism (Preventative Detention) Act 2006 (WA)

Western Australia Terrorism (Preventative Detention) Act 2006 Western Australia Terrorism (Preventative Detention) Act 2006 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Object 1 4. Terms used in this Act 1 5. Meaning of "reasonably suspects" 1 6. Meaning of "terrorist act" 1 7. Issuing authorities 1 8. Police officer on whom functions as to preventative detention are imposed 1 Part 2 — Preventative detention orders 9. Basis for applying for and making preventative detention orders 1 10. Authorising police officers to apply for a preventative detention order 1 11. Application for a preventative detention order 1 12. Procedure for applying for preventative detention order 1 13. Preventative detention orders 1 14. Duration of preventative detention orders 1 15. Multiple preventative detention orders 1 16. No preventative detention order in relation to person under 16 years of age 1 17. Prohibited contact order (person in relation to whom preventative detention order is being sought) 1 18. Prohibited contact order (person in relation to whom preventative detention order is already in force) 1 19. Form and notification of prohibited contact order 1 20. Revocation of preventative detention order or prohibited contact order 1 21. Status of person making preventative detention order 1 Part 3 — Review of preventative detention orders 22. Review by Supreme Court 1 23. Powers may be exercised while review is in progress 1 Part 4 — Carrying out preventative detention orders 24. Power to detain person under preventative detention order 1 25. Endorsement of order with date and time person taken into custody or detained 1 26. Exercising powers, general matters 1 27. Personal details of certain people may be obtained 1 28. Power to enter places 1 29. Use of force 1 30. Power to search people 1 31. Warrant under Part III Division 3 of the Australian Security Intelligence Organisation Act 1979 1 32. Release of person from preventative detention 1 33. Arrangement for person to be in detention in a prison or detention centre 1 34. Inspector of Custodial Services to be notified of detention 1 Part 5 — Informing person detained about preventative detention order 35. Effect of preventative detention order to be explained to person detained 1 36. Compliance with duties to inform 1 37. Copy of preventative detention order and summary of grounds 1 Part 6 — Treatment of person in detention 38. Application of Part 1 39. Humane treatment of detainee 1 40. Restriction on contact with other people 1 41. Contacting family members and home or work associates 1 42. Contacting proper authorities to make complaints, allegations of serious misconduct and representations 1 43. Contacting lawyer 1 43A. Contact with approved religious or spiritual adviser 1 44. Monitoring contact with family members, home or work associates, lawyer or approved religious or spiritual adviser 1 45. Special contact rules for people under 18 or incapable of managing their own affairs 1 46. Disclosure offences 1 47. Detainee not to be questioned while in detention 1 48. Taking identification material 1 49. Use of identification material 1 50. Offences of contravening safeguards 1 Part 7 — Miscellaneous 51. Commissioner's functions may be performed by others 1 52. Nature of functions of Magistrate 1 53. Restrictions on publicity about proceedings in Supreme Court 1 54. Quarterly report about preventative detention orders 1 55. Powers of others not affected 1 56. Law relating to legal professional privilege not affected 1 57. Legal proceedings in relation to preventative detention orders 1 58. Regulations 1 59. Review of Act 1 60. Expiry of orders and power to make them 1 Schedule 1 — Ancillary provisions about exercising powers 1. When powers may be exercised 1 2. Assistance to exercise powers 1 3. Use of force when exercising powers 1 4. Areas may be cordoned off 1 5. Returning seized things 1 Schedule 2 — Searching people Division 1 — Preliminary 1. Terms used in this Schedule 1 2. Basic search 1 3. Strip search 1 4. Ascertaining gender of person 1 5. Powers to assist doing searches 1 Division 2 — How searches must be done 6. Operation of this Division 1 7. General procedure 1 8. Strip searches of protected people 1 Notes Compilation table 1 Uncommenced provisions table 1 Defined terms Western Australia Terrorism (Preventative Detention) Act 2006 An Act to authorise temporary detention in order to prevent the occurrence of a terrorist act or preserve evidence of, or relating to, a recent terrorist act; and for other purposes. The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This is the Terrorism (Preventative Detention) Act 2006 1. 2. Commencement This Act comes into operation on the day on which it receives the Royal Assent. 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 occurring in the near future; or (b) preserve evidence of, or relating to, a recent terrorist act. 4. Terms used in this Act (1) In this Act, unless the contrary intention appears — allegation of serious misconduct has the same meaning as in the Corruption, Crime and Misconduct Act 2003; approved religious or spiritual adviser means a person approved under section 43A(1); ASIO Act means the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; Commissioner means the Commissioner of Police appointed under the Police Act 1892 or a person acting in that office; corresponding law means — (a) Division 105 of the Criminal Code of the Commonwealth and the regulations and other instruments made under that Division; or (b) a law of another State or a Territory that provides for preventative detention of persons in relation to terrorist acts (including any law of another State or a Territory that is declared by the regulations to be a corresponding law); Corruption and Crime Commission means the Corruption and Crime Commission under the Corruption, Crime and Misconduct Act 2003; detention centre has the meaning given to that term in the Young Offenders Act 1994 section 3; evidence of, or relating to, a terrorist act includes anything that — (a) was or may have been used; (b) is or may be being used; or (c) is about to be or may be used, to do a terrorist act or in preparing to do a terrorist act; identification material, in relation to a person, means — (a) an identifying particular of the person; or (b) a recording of the person's voice or a sample of the person's handwriting; identifying particular has the meaning given to that term in the Criminal Investigation (Identifying People) Act 2002 section 17; Inspector of Custodial Services means the Inspector of Custodial Services under the Inspector of Custodial Services Act 2003; institution means a prison or a detention centre; issuing authority means an issuing authority appointed under section 7; judge means a judge of the Supreme Court; lock‑up has the same meaning as that term has in the Prisons Act 1981; national security has the meaning given to that term in section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth; Parliamentary Commissioner means the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971; permitted detention period has the meaning given to that term in section 13(2)(b)(ii); photograph includes a digital image and a video recording; place means any land, building or structure, or a part of any land, building or structure; preventative detention order means an order made under section 13; prison has the meaning given to that term in the Prisons Act 1981 section 3(1); prohibited contact order means an order made under section 17 or 18; reasonably suspects has the meaning given to that term by section 5; seizable item means anything that — (a) would present a danger to a person; (b) could be used to assist a person to escape from lawful custody; or (c) could be used to contact another person or to operate a device remotely; senior police officer means a police officer of or above the rank of Superintendent; terrorist act has the meaning given to that term in section 6. (2) A reference in section 13(3)(a) or (5) or 15(4) or (6) to a number of days is a reference to the number of hours in that number of days. (3) Notes in this Act are provided to assist understanding and do not form part of this Act. [Section 4 amended: No. 21 of 2008 s. 710; No. 35 of 2014 s. 38(2)‑(4); No. 23 of 2019 s. 4; No. 9 of 2022 s. 424.] 5. Meaning of "reasonably suspects" For the purposes of this Act, a person reasonably suspects something at a relevant time if the person personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non existent), when judged objectively, are reasonable. 6. Meaning of "terrorist act" (1) For the purposes of this Act, an action or threat of action is a terrorist act if — (a) the action falls within subsection (2) and does not fall within subsection (3); (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of — (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public, or a section of the public. (2) Action falls within this subsection if it — (a) causes a person's death; (b) causes serious physical harm to a person; (c) endangers a person's life, other than the life of the person doing the act; (d) creates a serious risk to the health or safety of the public; (e) causes serious damage to property; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to — (i) an information system; (ii) a telecommunications system; (iii) a financial system; (iv) a system used for the delivery of essential government services; (v) a system used for, or by, an essential public utility; (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it — (a) is advocacy, protest, dissent or industrial action; and (b) is not intended — (i) to cause a person's death; (ii) to cause serious physical harm to a person; (iii) to endanger a person's life, other than the life of the person doing the act; (iv) to create a serious risk to the health or safety of the public. (4) In this section — (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside the State (including within or outside Australia); and (b) a reference to the public includes a reference to the public of another State or Territory or of a country other than Australia. Note for this section: This section is consistent with the definition of "terrorist act" used in Part 5.3 of the Criminal Code of the Commonwealth. 7. Issuing authorities (1) The Governor may, in writing, appoint a judge or retired judge as an issuing authority for preventative detention orders. (2) A judge or retired judge cannot be appointed as an issuing authority unless — (a) the judge or retired judge has consented in writing to the appointment; and (b) the consent is in force. (3) The period of appointment and, in the case of a retired judge, the terms and conditions of appointment of an issuing authority are as set out in the instrument of appointment. 8. Police officer on whom functions as to preventative detention are imposed If — (a) a number of police officers are detaining, or involved in the detention of, a person under a preventative detention order at a particular time; and (b) a function (other than a power) is expressed in this Act to be imposed on a police officer detaining the person, the function is imposed at that time on whichever of those police officers is highest in order of rank and seniority. Part 2 — Preventative detention orders 9. Basis for applying for and making preventative detention orders (1) For the purposes of this Part a person is a person to whom section 9 applies if — (a) the person — (i) is going to engage in a terrorist act; (ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or (iii) has done an act in preparation for, or planning, a terrorist act; and (b) making a preventative detention order in relation to the person would substantially assist in preventing a terrorist act occurring. (2) A terrorist act referred to in subsection (1) must be one that — (a) is capable of being carried out; and (b) could occur at some time in the next 14 days. (3) For the purposes of this Part a person is also a person to whom section 9 applies if — (a) a terrorist act has occurred within the last 28 days; and (b) it is necessary to detain the person under a preventative detention order so as to preserve evidence of, or relating to, the terrorist act. [Section 9 amended: No. 23 of 2019 s. 5.] 10. Authorising police officers to apply for a preventative detention order (1) The Commissioner may authorise a police officer to apply for a preventative detention order in relation to a person. (2) The Commissioner must not authorise a police officer to apply for a preventative detention order in relation to a person unless the Commissioner is satisfied that there are reasonable grounds to believe that — (a) the person is a person to whom section 9 applies; and (b) detaining the person for the period for which the person is to be sought to be detained under the order is reasonably necessary for the purpose of — (i) substantially assisting in preventing a terrorist act occurring; or (ii) preserving any evidence referred to in section 9(3)(b). (3) An authorisation by the Commissioner must be in writing but, if it is not practicable to issue it in writing because of an urgent need to issue it — (a) it may be issued orally; and (b) if it is issued orally, it must be put in writing as soon as practicable after it is issued. 11. Application for a preventative detention order (1) Only a police officer authorised under section 10 may apply for a preventative detention order. (2) An application for a preventative detention order must be made to an issuing authority. (3) An application for a preventative detention order must — (a) set out the facts and other grounds on which the applicant considers that the preventative detention order should be made; (b) specify the period for which the applicant is seeking to have the person detained under the order and set out the facts and other grounds on which the applicant considers that the person should be detained for that period; (c) set out the information (if any) that the applicant has about the person's age or capacity to manage his or her affairs; and (d) set out the following — (i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person including information about any periods for which the person has been detained under another preventative detention order; (ii) the information (if any) that the applicant has about the outcomes and particulars of applications under a corresponding law for the person's detention including any information about periods for which the person has been detained under an order for the person's detention made under a corresponding law; (iii) the information (if any) that the applicant has about any control order (including any interim control order) made in relation to the person under Division 104 of the Criminal Code of the Commonwealth. 12. Procedure for applying for preventative detention order (1) In this section — remote communication means any way of communicating at a distance including by telephone, fax, email and radio. (2) A reference in this section to making an application includes a reference to giving information in support of the application. (3) This section applies to and in respect of an application for a preventative detention order. (4) The application must be made in person before an issuing authority unless — (a) a preventative detention order is needed urgently; and (b) the applicant reasonably suspects that an issuing authority is not available within a reasonable distance of the applicant, in which case — (c) it may be made to an issuing authority by remote communication; and (d) the issuing authority must not make a preventative detention order unless satisfied about the matters in paragraphs (a) and (b). (5) The application must be made in writing unless — (a) the application is made by remote communication; and (b) it is not practicable to send the issuing authority written material, in which case — (c) it may be made orally; and (d) the issuing authority must make a written record of the application and any information given in support of it. (6) The application must be made on oath unless — (a) the application is made by remote communication; and (b) it is not practicable for the issuing authority to administer an oath to the applicant or the issuing authority is not a judge, in which case — (c) it may be made in an unsworn form; and (d) if the issuing authority makes a preventative detention order, the applicant must as soon as practicable send the issuing authority an affidavit verifying the application and any information given in support of it. (7) If on an application made by remote communication an issuing authority makes a preventative detention order, the issuing authority must, if practicable, send a copy of the original order to the applicant by remote communication, but otherwise — (a) the issuing authority must give the applicant by remote communication any information that must be set out in the order; (b) the applicant must complete a form of a preventative detention order with the information received and give the issuing authority a copy of the form as soon as practicable after doing so; and (c) the issuing authority must attach the copy of the form to the original order and any affidavit received from the applicant and make them available for collection by the applicant. (8) The copy of the original order sent, or the form of the order completed, as the case may be, under subsection (7) has the same force and effect as the original order. (9) If, when an application for a preventative detention order is made, the person in relation to whom an order is being sought is in detention under — (a) another preventative detention order; or (b) an order for the person's detention made under a corresponding law, notice of the application must be given to the person. 13. Preventative detention orders (1) On an application made under section 11 or a direction under section 22(8)(c), an issuing authority may make a preventative detention order in relation to a person if the issuing authority is satisfied, on reasonable grounds, that — (a) the person is a person to whom section 9 applies; and (b) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of — (i) substantially assisting in preventing a terrorist act occurring; or (ii) preserving any evidence referred to in section 9(3)(b). (2) A preventative detention order is an order in writing that the person specified or identified in the order — (a) may, if not then in custody, be taken into custody; and (b) may be kept in detention during the period that — (i) starts when the person is first taken into custody, or is first in detention, under the order; and (ii) ends a specified period of time (the permitted detention period) after the person is first taken into custody, or is first in detention, under the order. (3) The permitted detention period must not exceed — (a) 14 days; or (b) if a shorter period is necessary in order to comply with section 15(4) or (6), that shorter period. (4) A preventative detention order must specify — (a) the name of the person in relation to whom it is made or, if the name of the person is not known, identifying information referred to in subsection (4A); and (b) the permitted detention period; and (c) the date on which, and the time at which, the order is made; and (d) if applicable, the day and time after which the person may not be taken into custody under the order. (4A) The identifying information must comprise a description sufficient to identify the person and may include any of the following — (a) part of the person's name; (b) an alias or a nickname of the person; (c) a physical description of the person; (d) a photograph of the person attached to the order. (5) The day and time specified under subsection (4)(d) must be fixed so that the time is not more than 7 days after the order is made. (6) If the person in relation to whom the order is made — (a) is under 18 years of age; or (b) is incapable of managing his or her affairs, the order may provide that the aggregate period each day for which the person is entitled to have contact with another person or other persons under section 45(2) is the period of more than 2 hours that is specified in the order. [Section 13 amended: No. 23 of 2019 s. 6.] 14. Duration of preventative detention orders (1) A preventative detention order in relation to a person comes into force when it is made. Note for this subsection: The order comes into force when it is made and authorises the person to be taken into custody, if necessary (see section 13(2)(a)). The period for which the person may be detained under the order only starts when the person is first taken into custody, or is first in detention, under the order (see section 13(2)(b)). (2) A preventative detention order under which the person concerned is required to be taken into custody ceases to have effect on the day and at the time specified in the order if the person has not been taken into custody under the order by then. (3) If a preventative detention order does not cease to have effect under subsection (2), it ceases to have effect as soon as one of the following occurs — (a) the period during which the person concerned may be kept in detention under the order ends; (b) the order is revoked under section 20(2) or as directed under section 22(8); (c) the order is quashed, or declared to be void, under section 22(8); or (d) the order expires under section 60(2). Note for this section: The order does not cease to have effect merely because the person is released from detention under the order. 15. Multiple preventative detention orders (1) In this section — preservation order means — (a) a preventative detention order; or (b) an order for detention under a corresponding law, made on the basis of preserving evidence of, or relating to, a terrorist act; prevention order means — (a) a preventative detention order; or (b) an order for detention under a corresponding law, made on the basis of preventing a terrorist act from occurring. (2) More than one preventative detention order can be made authorising the detention of the same person in relation to the same terrorist act. (3) A preventative detention order can be made even if the person concerned is under detention (or temporarily released from detention) under a prevention order or preservation order in relation to the same terrorist act or a different terrorist act, and in that case the preventative detention order can be made so as to take effect on the expiration of the other order. (4) On an application for a preventative detention order to be made on the basis of preventing a terrorist act from occurring, the permitted detention period under the order cannot exceed 14 days when aggregated with any period or periods of actual detention of the person concerned under another prevention order, or other prevention orders, in relation to that terrorist act that was or were based on — (a) the same occurrence time information as; or (b) occurrence time information consistent with, the occurrence time information put to the issuing authority in support of the application. (5) In subsection (4) — occurrence time information means information as to when the terrorist act is expected to occur. (6) On an application for a preventative detention order to be made on the basis of preserving evidence of, or relating to, a terrorist act, the permitted detention period under the order cannot exceed 14 days when aggregated with any period or periods of actual detention of the person concerned under another preservation order, or other preservation orders, in relation to that terrorist act. 16. No preventative detention order in relation to person under 16 years of age (1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age. (2) If — (a) a person is in detention under a preventative detention order (or something that purports to be a 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. 17. Prohibited contact order (person in relation to whom preventative detention order is being sought) (1) A police officer who applies to an issuing authority for a preventative detention order in relation to a person (the subject) may also apply to the issuing authority for a prohibited contact order in relation to the subject's detention under the preventative detention order. (2) An application cannot be made under subsection (1) unless the Commissioner's authorisation under section 10 specifies that the police officer may make such an application. (3) The application must set out — (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. (4) If the issuing authority — (a) makes the preventative detention order; and (b) is satisfied, on reasonable grounds, that making the prohibited contact order will assist in achieving the purpose of the preventative detention order, the issuing authority may make a prohibited contact order that the subject is not, while in detention under the preventative detention order, to contact a person specified in the prohibited contact order. 18. 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), the Commissioner may authorise a police officer to apply for a prohibited contact order in relation to the subject's detention under the preventative detention order. (2) An authorisation by the Commissioner must be in writing but, if it is not practicable to issue it in writing because of an urgent need to issue it — (a) it may be issued orally; and (b) if it is issued orally, it must be put in writing as soon as practicable after it is issued. (3) Only a police officer authorised under subsection (1) may apply for a prohibited contact order under this section. (4) Section 12(1) to (6) apply in relation to an application for a prohibited contact order under this section as if references in those subsections to a preventative detention order were references to a prohibited contact order. (5) The application must be made to an issuing authority and must set out — (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. (6) If the issuing authority is satisfied, on reasonable grounds, 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 that the subject is not, while in detention under the preventative detention order, to contact a person specified in the prohibited contact order. 19. Form and notification of prohibited contact order (1) A prohibited contact order must be in writing. (2) Section 12(7) and (8) apply in relation to a prohibited contact order as if references in those subsections to a preventative detention order were references to a prohibited contact order. 20. Revocation of preventative detention order or prohibited contact 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 apply to an issuing authority for the revocation of the order. (2) If — (a) a preventative detention order is in force in relation to a person; and (b) an issuing authority is satisfied, on application by a police officer, that the grounds on which the order was made have ceased to exist, the issuing authority must revoke the order and the police officer must release the person from detention. (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 have ceased to exist, the police officer must apply to an 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) an issuing authority is satisfied, on application by a police officer, that the grounds on which the prohibited contact order was made have ceased to exist, the issuing authority must revoke the prohibited contact order. 21. Status of person making preventative detention order (1) An issuing authority who — (a) makes or revokes a preventative detention order; or (b) makes or revokes a prohibited contact order in relation to a person's detention under a preventative detention order, has, in the performance of duties under this Act, the same protection and immunity as a judge. (2) A function of — (a) making or revoking a preventative detention order; or (b) making or revoking a prohibited contact order in relation to a person's detention under a 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. Part 3 — Review of preventative detention orders 22. Review by Supreme Court (1) In this section — remote communication means communicating by way of a videolink or other device by which, at the same time, the judge or judges constituting the court can see and hear a person who is at another place and who would otherwise be attending the court in person, and vice versa; review proceedings means proceedings under subsection (2) for the review of a preventative detention order. (2) As soon as practicable after a person (the subject) is first taken into custody, or is first in detention, under a preventative detention order the police officer detaining the subject must bring the subject before the General Division of the Supreme Court for a review of the order. (3) If the preventative detention order was made by a judge, the court in the review proceedings is not to be constituted by or so as to include that judge. (4) The Supreme Court may — (a) relieve the police officer from the duty under subsection (2) to bring the subject before the court; and (b) conduct the review proceedings by remote communication, if satisfied that it is appropriate in the circumstances to do so. (5) The following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Supreme Court in the review proceedings — (a) a police officer; (b) a lawyer representing a police officer; (c) the subject; (d) a lawyer acting for the subject. (6) If the subject — (a) is under 18 years of age; or (b) is incapable of managing his or her affairs, a person with whom the subject can have contact under section 45(2) may make submissions to the Supreme Court in the review proceedings. (7) Subsections (3), (5) and (6) do not otherwise limit the power of the Supreme Court to control the review proceedings. (8) In the review proceedings the Supreme Court may exercise any of the following powers — (a) it may confirm the order; (b) it may quash the order and release the subject from detention; (c) it may remit the matter to an issuing authority with a direction to revoke t