Australian Capital Territory Bills Explanatory Statements
[Index]
[Search]
[Download]
[Bill]
[Help]
TERRORISM (EXTRAORDINARY TEMPORARY POWERS) BILL 2006
2006
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
TERRORISM (EXTRAORDINARY TEMPORARY POWERS) BILL 2006
EXPLANATORY
STATEMENT
Circulated with the authority of
Jon Stanhope
MLA
Attorney General
Overview
The Terrorism (Extraordinary Temporary
Powers) Bill 2005 (the Bill) gives effect in the Australian Capital Territory to
the agreement between the Commonwealth, State and Territory Governments adopted
at the Council of Australian Government’s (COAG) Terrorism Summit held in
Canberra on 27 September 2005. At the summit COAG considered the evolving
security environment in the context of the terrorist attacks in London in July
2005 and agreed that there is a clear case for Australia’s
counter-terrorism laws to be strengthened. Leaders agreed that any strengthened
counter-terrorism laws must be necessary, effective against terrorism and
contain appropriate safeguards against abuse, such as parliamentary and judicial
review, and be exercised in a way that is evidence-based, intelligence-led and
proportionate.
There is a clear need for laws to combat terrorism.
However, in making such laws it is critical that Australia’s fundamental
legal principles of justice (the rule of law, proportionality, respect for the
legal process, the separation of powers and basic human rights such as the right
to a fair trial) are preserved. Any legislation must comply with
Australia’s international human rights obligations, in particular the
International Covenant on Civil and Political Rights; must be proportionate; and
be subject to judicial review and oversight.
Human rights
Section 37 of the Human Rights Act 2004 (HRA) requires the
Attorney General to prepare a written compatibility statement for presentation
of each government bill to the Legislative Assembly. The compatibility
statement must state whether, in the Attorney General’s opinion, the
bill as presented to the Assembly is compatible with the human rights set out in
the HRA. If the Attorney General forms the view that the bill is not compatible
the statement must explain how it is not compatible with those rights.
To
support the section 37 statement in relation to this Bill, the Government
obtained independent legal advice on the compatibility of its provisions with
the HRA.
In summary, the advice concluded that the Bill is compatible
with the HRA.
In particular, the Bill achieves consistency with regard to the following
rights:
• Protection from torture, cruel, inhuman or degrading treatment (s
10(1) HRA);
• Protection of the family and children (s 11 HRA);
• Freedom of movement (s 13 HRA);
• Freedom of thought, conscience, religion and belief (s 14
HRA);
• Freedom of assembly and association (s 15 HRA);
• Humane treatment when deprived of liberty (s 19 HRA);
• Fair trial (s 21 HRA);
• Rights in criminal proceedings (s 22 HRA); and
• Rights of minorities (s 27 HRA).
The advice did note
possible arbitrary interference with some human rights.
It noted that
detention under preventative detention orders may be arbitrary
(s 18 HRA) as a consequence of the duration of detention up to 14
days, and the incommunicado nature of detention. It also suggested that
interference with the right to privacy may be arbitrary
(s 12 HRA) as a consequence of the way in which a person would be
detained and held in custody under a preventative detention order and the
special powers allowing preventative and investigative
authorisations.
However, it concluded that these interferences are likely
to be ‘reasonable limits’ that can be ‘demonstrably justified
in a free and democratic society’ for the purposes of s 28 of the HRA on
the basis that:
• The obligation to respond to the threat of
terrorism, including through legislative means, is an important and
significant objective;
• The restrictions on rights are reasonable and
necessary, taking into account the importance of achieving consistency within a
national regime; and
• The bill incorporates extensive safeguards,
which, in the context of a national regime, represent the least restrictive
options available.
Strict liability offences
The Bill includes one strict liability offence. Refer to clause 38 for a
discussion of the application of strict liability.
Clauses
Preamble
The preamble sets out the background and context of the Bill. In
particular, the preamble outlines the agreement between the Commonwealth, State
and Territory Governments adopted at the Council of Australian
Government’s (COAG) Terrorism Summit held in Canberra on 27 September
2005. The preamble also outlines the Legislative Assembly imperative that the
provisions in the ACT Bill preserve Australia’s fundamental legal
principles of justice, comply with Australia’s international human rights
obligations, be proportionate, and be subject to judicial review and
oversight.
Part 1 Preliminary
Clause 1 Name of Act
Clause 1 is a technical clause and sets out the name of the proposed Act as
the Terrorism (Extraordinary Temporary Powers) Act 2005.
Clause 2 Commencement
Clause 2 is the commencement provision. The Bill will commence the day
after its notification on the Legislation Register
(www.legislation.act.gov.au).
Clause 3 Dictionary
Clause 3 is a technical clause and explains that the dictionary at the end
of the Act is a part of the Act. The dictionary at the end of the Bill defines
certain terms used in the Bill, and includes references (known as signpost
definitions) to other terms defined elsewhere. A definition in the dictionary
(including a signpost definition) applies to the entire Bill unless the
definition, or another provision of the Bill, provides otherwise or the contrary
intention otherwise appears.
The dictionary contains two notes. Note 1
explains that the Legislation Act 2001 contains definitions and other
provisions relevant to the Act. For instance Part 19.3 of the Legislation Act
deals with the making of appointments under legislation. This is relevant in
relation to, for example, clause 62 which provides that the Minister must
appoint people to a public interest monitor panel.
Note 2 provides
examples of commonly used terms in legislation that are defined in Part 1
of the Legislation Act dictionary. For example, the term ‘child’ is
used in the Bill and is defined under Part 1 of the Legislation Act dictionary
to mean, in the context of age (as opposed to descendancy), an individual who is
under 18 years old.
Clause 4 Notes
Clause 4 is a technical clause and explains that a note included in the Act
is explanatory and is not part of the Act.
Clause 5 Offences against Act – application of
Criminal Code etc
Clause 5 is a technical clause that makes it clear that the Criminal
Code 2002 applies to the Act.
Clause 6 Meaning of terrorist act
Clause 6 defines a “terrorist act”. The definition of
“terrorist act” accords (with slight modification) with that of the
Commonwealth Criminal Code Act 1995 as well corresponding legislation in
New South Wales, Victoria, Western Australia, South Australia and Tasmania.
The definition of terrorism defines the limits for the triggering of these
exceptional temporary powers, specifically it is relevant to the ability of a
senior police officer to apply for, and the Supreme Court to make a preventative
detention order for a person and a prohibited contact order for a person. It
also relates to the ability of the Chief Police officer to apply for and the
Supreme Court or Magistrates Court to make a preventative authorisation and an
investigative authorisation. Consistent with the approach in New South Wales and
Western Australia, the definition does not cover “threats” of
action.
Clause 7 Extraterritoriality of terrorist act no
barrier
Clause 7 clarifies the extraterritorial aspects of the Bill. The Bill
permits the Supreme Court to make a preventative detention order for a person
who is present in the Australian Capital Territory, even though the relevant
actions that are the subject of the grounds for making the order under clause 18
(Making preventative detention order) are not being carried out, have not been
carried out or are not likely to be carried out in the Territory. The extension
of territorially will enable access of more people to the ACT scheme – the
benefits of which is a greater human rights focus.
Part 2 Preventative detention
orders
Division 2.1 Preventative detention
orders - preliminary
Clause 8 Purpose–pt 2
Clause 8 sets out the purpose of Part 2. The purpose is to enable the
police to take a person into custody and detain that person for a short period
of time (being no longer than 14 days) in order to prevent an imminent terrorist
act happening (being an attack that is expected to happen at some time in the
next 14 days), or to preserve evidence of, or relating to, a recent terrorist
act (being an act that has happened within the last 28 days). The note
indicates that a person detained under a preventative detention order may only
be questioned for very limited purposes, in accordance with clause
58.
Clause 9 Definitions–pt 2
Clause 9 defines certain terms used under Part 2.
The term
“corresponding preventative detention law” refers to Division 105
(Preventative detention orders) of the Criminal Code Act 1995 (Cwth) and
provisions of other States and Territories that provide for the preventative
detention of persons consistent with the provisions in Part 2. Regulations may
declare the laws of other jurisdictions to be corresponding laws for the
purposes of this part to achieve certainty.
The term “corresponding
preventative detention order” means an order, however expressed, for a
person’s detention under a corresponding preventative detention
law.
The term “identification material”, in relation to a
person, mean prints of the person’s hands, fingers, feet or toes; or
recordings of their voice; or samples of their handwriting; or photographs
(including video recordings) of the person. The list is exhaustive.
The
term “interim preventative detention order”, also referred to as
“interim order”, refers to an order made under clause 20.
The
term “part 2 application” means any application to make, set aside
or amend a preventative detention order. It includes applications to extend or
reinstate such orders.
In addition, it includes any application to make
or set aside a prohibited contact order.
The term “preventative
detention order” is an order made by the Supreme Court under clause 18
detaining a person under Part 2 and includes the order as extended or further
extended under Division 2.4 as well as an interim order made under clause
20.
The term “Prohibited contact order” is an order made by
the Supreme Court under clause 32 that prohibits a person detained under a
preventative detention order from contacting a person specified in that
order.
Clause 10 Police officers with functions under
preventative detention orders
Clause 10 ensures that responsibility for exercising functions relating to
detention of persons under a preventative detention order is imposed on the most
senior officer involved in the detention.
Division 2.2 Preventative detention orders –
general provisions
Clause 11 No preventative detention orders for
children
Clause 11 prohibits a senior police officer from applying for a
preventative detention order for a child. It also prohibits the Supreme Court
from making a preventative detention order for a child. The Legislation Act
2001 defines a child as an individual who is under 18 years old (Dictionary,
Part 1). The clause is consistent with the Convention of the Rights of the
Child which provides in Article 37 that States Parties shall ensure
that:
(b) No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time;
The detention of children is
a disproportionate limitation on the rights of the child.
It is possible
that a senior police officer could apply for, and the Supreme Court could make,
a preventative detention order in relation to a person without knowing that the
person is under 18 years old. Subclause (2) inserts a safeguard that provides
that if a police officer detaining a person under a preventative detention has
any grounds to suspect that the person may be a child, the police officer must
immediately make reasonable inquiries about the person’s age.
If,
after making the inquiries, the police officer believes on reasonable grounds
that the person is a child, the police officer must immediately release the
child from detention. In recognition of the fundamental nature of this
safeguard, an offence has been included where the police officer fails to
release the child in these circumstances.
Clause 12 Restrictions on multiple preventative
detention orders
Every preventative detention order issued by the Supreme Court will be
issued in order to prevent a particular terrorist act that is expected to happen
within a particular period or to preserve evidence relating to a particular
terrorist act that has actually happened.
Clause 12 restricts the making
of multiple preventative detention orders over the same person relating to the
same act or period or based on the same supporting information. However, it will
not prevent the making of orders that extend interim or final orders, or that
reinstate lapsed orders, up to the maximum period of 14 days (see subclause
21(3)).
The restriction takes account of any corresponding preventative
detention orders, to ensure that the maximum period of 14 days applies equally
across all jurisdictions.
The restriction will not apply unless or until
a person is detained under a relevant order.
Subclauses (1) and (2)
prohibit the making of orders where previous orders have been issued relating to
the same threat or to a different threat arising in the same period. The note
indicates that, should the terrorist act occur, it will be possible to make an
order in relation to the same act in order to preserve evidence (see subclause
12(3)). Subclause (2) will allow subsequent orders that are based on fresh
information.
Subclause (3) prohibits the making of orders where previous
orders have been made to preserve evidence of, or relating to, the same
terrorist act.
Subclause (4) prohibits the making of multiple
preventative detention orders that are based solely on the same information.
This will prevent, for example, the making of orders in relation to different
terrorist acts that are supported by the same evidence.
Subclause (5)
relaxes these restrictions in relation to orders that extend interim or final
orders or that follow on from previous orders under the laws of other
jurisdictions.
This will allow, for example, a person to be taken into
detention for up to 48 hours under the Commonwealth Criminal Code, then
to be detained under the ACT legislation for up to a total of 14 days in order
to prevent the same terrorist act, etc.
Subclause (5) also relaxes the
restrictions in relation to orders reinstating lapsed orders. (Clause 58
generally prohibits questioning while a person is in detention. They must be
released for such purposes. Clause 42 provides that an order will lapse if a
person is released. Division 2.4A allows orders to be reinstated if they lapsed
to allow questioning under the Australian Security Intelligence Organisation
Act 1979 (Cwth) or Crimes Act 1914 (Cwth)).
Clause 13 Rights in relation to hearing of part 2
applications
Clause 13 confers a range of procedural and representation rights on
persons who are the subject of applications for preventative detention orders or
prohibited contact orders.
These do not apply in relation to applications for interim preventative
detention orders.
Subclauses (2) to (6) provide that a person is entitled:
§ to be
served with a copy of an application and to be given written notice of the
place, date and time the application is to be heard;
§ to be
present at the hearing either in person or, if the court directs, by videolink;
and
§ to be
represented by a lawyer of their own choice, or, where relevant, a lawyer
appointed by the legal aid commission. They, or their lawyer, are entitled to
examine and cross-examine witnesses and make submissions at the
hearing.
This is additional to any of the other ordinary rights the person will have
in legal proceedings and is subject to the Supreme Court’s inherent powers
to regulate its proceedings.
Subclause (8) permits the court to hear an application in the absence of a
person where it is satisfied that the person or their lawyer was properly
notified of the hearing.
Clause 14 Appointment of PIM for applications etc.
Clause 14 confers certain procedural rights on the public interest monitor
in relation to applications for preventative detention orders or prohibited
contact orders.
Subclause (2) requires the senior police officer applying
for the order to give the Legal Aid Commission a copy of the application and
written notice of the details of the hearing.
Subclause (3) then requires
the commission to appoint a public interest monitor (PIM) from a panel of
lawyers appointed by the Minister under clause 62.
Subclause (4) provides
that the public interest monitor is entitled to be present at the hearing and to
ask questions of any person giving evidence or making submissions to the court.
Clause 15 Notifying public advocate about
applications etc
Clause 15 confers certain procedural rights on the public advocate in
relation to applications for orders over persons with impaired decision-making
ability.
Subclause (2) and (3) provide that the public advocate is
entitled:
§ to be
given a copy of an application and written notice of the details of the hearing;
and
§ to be
present at the hearing and to ask questions of any person giving evidence or
making submissions to the court.
Division 2.3 Preventative detention orders –
applications for and making
Clause 16 Applying for preventative detention
order
Clause 16 allows a senior police officer, with the approval of the Chief
Police Officer, to apply to the Supreme Court for preventative detention orders.
These orders authorise the detention of a person either to prevent an imminent
terrorist act or to preserve evidence relating to a terrorist act that has
occurred within the preceding 28 days.
Subclause (3) deals with detention in order to prevent an imminent
terrorist act.
Paragraph (3)(a) requires the officer to suspect on reasonable grounds that
the person:
§ intends,
and has the capacity, to carry out a terrorist act; or
§ possesses something connected with
preparing for or carrying out a terrorist act; or
§ has done
an act in preparation or planning for a terrorist act.
Paragraph 16(3)(b) requires the officer to be satisfied on reasonable
grounds that:
§ it is
reasonably necessary to detain the person to prevent the terrorist
act;
§ detaining the person is the least
restrictive way of preventing the terrorist act; and
§ detention for the stated period is
reasonably necessary to prevent the act.
The terrorist act must be imminent and, in any event, expected to happen
within 14 days.
Subclause (5) deals with detention to preserve evidence of a terrorist act.
It requires the officer to be satisfied on reasonable grounds that:
§ a
terrorist act has occurred within the last 28 days;
§ it is
reasonably necessary to detain the person to preserve relevant
evidence;
§ detaining the person is the only effective
way of preserving the evidence; and
§ detention for the stated period is
reasonably necessary to preserve the evidence.
Evidence is relevant if it relates to the terrorist act. It is not
necessary for the evidence to be located in the ACT or for the act to have
happened within the ACT, given that the Act applies extraterritorially (see
clause 7).
Clause 17 Application for preventative detention
order – contents etc
Clause 17 sets out the requirements for a valid preventative detention
order application.
Subclause (1) provides that the application must:
§ be in
writing;
§ state
the full name and permanent or current address of the person;
§ state
whether the application incorporates an application for an interim
order;
§ set out
the facts and other grounds which the officer considers justify the
order;
§ state
and provide justification for the period for which the person is to be
detained;
§ state
that the officer does not suspect that any of the supporting facts and other
grounds are based on information obtained, directly or indirectly, from torture;
§ set out
any information about the person’s age and decision-making ability;
§ state
that the officer is satisfied that the person is not a child;
§ state
whether the officer suspects, or has any grounds to suspect, that the person has
impaired decision-making ability;
§ set out
any details of previous applications, orders or periods of detention, including
applications for corresponding preventative detention orders, applications for
control orders under the Commonwealth Criminal Code and recent periods of
detention under the Australian Security Intelligence Organisation Act
1979;
§ set out
any information relating to any child or person with impaired decision making
ability who lives with the person or for whom the person is responsible and
state the conditions or arrangements are proposed in order to protect their
interests; and
§ state the inquiries that the officer has
made in relation this group of dependents.
If an interim order is being applied for, the officer must also:
§ state
that the person is not in custody, or being detained under another law;
§ state
that he or she has not been detained under a corresponding order;
and
§ state
the particular facts and other grounds which justify making the interim
order.
If the person has impaired decision making ability the application
must state the period within which the public advocate may contact the person.
Ordinarily, the public advocate is entitled contact the person within 24 hours
(see clause 54). However, this period may be delayed if the contact would
significantly increase the risk of a terrorist act or seriously undermine the
effectiveness of the order. The application must state the period and the
grounds for preventing the contact during this period (subclause (2)).
If a repeat application is being made, subclauses (3) and (4) require
the application to address the requirements in subclauses 12(2) and (4) to
provide fresh information.
Subclause (5) requires the application to
state that it discloses all relevant matters of which the officer is aware,
whether they are favourable or adverse to the application.
Subclause (6)
provides that the applicant need not set out particulars of any periods of
detention under the Australian Security Intelligence Organisation Act 1979
(required by paragraph 17(1)(k)(vi)) where disclosure would be an offence
against that Act.
The officer must swear the information in the
application on oath (subclause (7)).
Clause 18 Making preventative detention order
Clause 18 empowers the Supreme Court to make preventative detention orders
on the application of a senior police officer under clause 16. These orders
authorise the detention of a person either to prevent an imminent terrorist act
or to preserve evidence relating to a terrorist act that has occurred within the
preceding 28 days.
Subclause (4) deals with detention in order to prevent an imminent
terrorist act.
Subclause (4) requires the court to be satisfied on reasonable grounds the
person:
§ intends,
and has the capacity, to carry out a terrorist act; or
§ possesses something connected with
preparing for or carrying out a terrorist act; or
§ has done
an act in preparation or planning for a terrorist act; and
§ it is
reasonably necessary to detain the person to prevent a terrorist act;
and
§ detaining the person is the least
restrictive way of preventing the terrorist act; and
§ detention for the stated period is
reasonably necessary to prevent the act.
The terrorist act must be imminent and, in any event, expected to happen
within 14 days.
Subclause (6) deals with detention in order to prevent an imminent
terrorist act. It requires the court to be satisfied on reasonable grounds
that:
§ a
terrorist act has occurred within the last 28 days;
§ it is
reasonably necessary to detain the person to preserve relevant
evidence;
§ detaining the person is the only effective
way of preserving the evidence; and
§ detention for the stated period is
reasonably necessary to preserve the evidence.
All applications, other
than those which incorporate applications for interim orders, must be served on
the person along with written notice of the place, date and time the application
is to be heard. No orders may be made if this is not done (subclause
(2)).
Subclause (7) creates an additional safeguard for people who have
impaired decision-making ability. If the person has impaired decision-making
ability, the court must consider the nature and extent of the person’s
impairment and any other way it may be appropriate to deal with the person under
a territory law.
If the Supreme Court makes a preventative detention
order for a person it must give its reasons for making the order and ensure that
reasonable steps are taken to explain the effect of the order to the person (and
in a language the person can readily understand).
Clause 19 Supreme Court may require further
information – preventative detention application
Clause 19 reiterates the power of the Supreme Court to require further
information and to refuse an application unless information is given in a way
that the court requires.
Clause 20 Making interim preventative detention
order
Clause 20 empowers the Supreme Court to make ex parte interim
preventative detention orders, pending the hearing of applications for final
preventative detention orders.
Paragraph 20(2)(a) allows the court to
make interim orders in relation to a person who is not in custody or being
detained under a territory law or a law of the Commonwealth, a State or another
Territory, including a corresponding preventative detention
law.
Paragraph 20(2)(b) requires the court to be satisfied on reasonable
grounds that the person has not been detained under a corresponding detention
order for the same act.
Paragraph 20(2)(c) requires the court to be
satisfied on reasonable grounds that taking the person into custody, and
detaining the person, pending hearing and making a final order is reasonably
necessary to prevent a terrorist act or to preserve evidence.
Subclause
(3) clarifies that interim orders are based on the grounds for final orders.
Subclause (4) provides that the court may make an interim preventative
detention order in the absence of, and without notice to, the person or his or
her representative.
Subclause (5) requires the court to give its reasons
for making the interim order and to fix a date and time for the hearing (not
more than 24 hours after making the order).
As soon as possible after a
person is detained under the order, subclause (7) requires that they be given a
copy of an application and be given written notice of the place, date and time
the application is to be heard (similar to the requirements in clause
13).
Clause 21 Preventative detention order –
contents etc
Clause 21 specifies the powers and limitations of a preventative detention
order and sets out the matters it must contain, including the period for which
detention is authorised.
Subclause (1) provides that the authority to
detain begins when the order begins (see subclause 22(1)) and ends at a time
stated in the order (see subclauses 22(2) and (3)).
Subclauses (2)
and (3) define the ‘end times’ for interim and other
orders:
§ An
interim order may only authorise a person to be detained for 24 hours
– the end time must be no later than 24 hours after the person is
first detained under the order.
§ Every
other order may only authorise a person to be detained for 7 days –
the end time must be no later than 7 days after the person is first detained
under the order.
§ No combination of orders may allow a
person to be detained for more than 14 days in relation to the same terrorist
act – the end time must be no later than 14 days after the person was
first detained under an order or corresponding order for the same
act.
Subclause (4) requires every preventative detention order to be in
writing.
Subclause (5) requires that the order must:
§ state
the full name and permanent or current address of the person;
§ state
the date and time when the order is made; and
§ state the period during which the person
may be detained (see subclause 22(1)).
Subclauses (6) to (9) deal with
special contact arrangements for persons with impaired decision-making ability,
including any special restrictions on contact with the public advocate under
clause 54 and any special contact arrangements between a person and their
children in addition to provision for contact under clause 50.
Subclause
(10) deals with special arrangements for contact by detainees with their
children.
Clause 22 Start and end of effect of preventative
detention order
Clause 22 formally specifies when an order commences and ceases to have
effect.
Generally, the effect will be to follow the terms of the order
(see clause 21), allowing for variations resulting from extension (Division 2.4)
or reinstatement (Division 2.5).
It also provides that an order will cease in the event that:
§ the
person is not detained within 48 hours;
§ the
order lapses under clause 42;
§ the
order is set aside under Division 2.6; or
§ the Act sunsets after 5 years under clause
101.
Division 2.4 Preventative detention orders –
extensions
Clause 23 Supreme Court may extend interim
order
Clause 23 allows the Supreme Court to extend, or further extend, an interim
order and thereby adjourn, or further adjourn the hearing of an application for
a final order.
Subclause (3) provides that an extended interim
preventative detention order must end no later than 24 hours after the person
was first detained under the order.
If the order is for the detention of
a person with impaired decision-making ability, subclauses (4) and (5) allow the
order to restrict contact with the public advocate under clause 51on the basis
that contact would seriously prejudice national security.
Clause 24 Application for extension of preventative
detention order
Clause 24 allows a senior police officer to apply to extend, or further
extend, an order.
Subclause (2) requires the officer to be satisfied on
reasonable grounds that the extension is reasonably necessary to fulfil the
purposes of the original order.
Subclause (3) provides that the application must:
§ be in
writing;
§ set out
the facts and other grounds which the officer considers justify the extension;
and
§ set
out any details and outcomes of any previous applications for
extension.
If the person has impaired decision making ability the
application must state the period within which the public advocate may contact
the person. Ordinarily, the public advocate is entitled contact the person
within 24 hours (see clause 54). However, this period may be delayed if the
contact would significantly increase the risk of a terrorist act or seriously
undermine the effectiveness of the order. The application must state the period
and the grounds for preventing the contact during this period (subclause
(4)).
Subclause (5) requires the application to state that it discloses
all relevant matters of which the officer is aware, whether they are favourable
or adverse to the application.
The officer must swear the information in
the application on oath (subclause (6)).
Clause 25 Supreme Court may require further
information – extension application
Clause 25 reiterates the power of the Supreme Court to require further
information and to refuse an application unless information is given in a way
that the court requires.
Clause 26 Supreme Court may extend preventative
detention order
Clause 26 empowers the Supreme Court to extend, or further extend, an order
on application under clause 24 if the court is satisfied on reasonable grounds
that the extension is reasonably necessary to fulfil the purposes of the
original order.
The extension or further extension must be made in
writing as an order.
Consistent with the ‘end times’ defined
in clause 21, an extension or further extension may only authorise a person to
be detained for 7 days. No combination of orders may allow a person to be
detained for more than 14 days in relation to the same terrorist
act.
Subclauses (3) and (4) deal with special contact arrangements for
persons with impaired decision-making ability, including any special
restrictions on contact with the public advocate under clause 54.
Division 2.5 Preventative detention orders –
reinstatements
Clause 27 Application for reinstatement of
preventative detention order
Clause 27 allows a senior police officer to apply to reinstate orders that
have lapsed to allow the person to be detained and questioned in respect of an
alleged terrorist offence under the Commonwealth Criminal Code or in connection
with intelligence gathering under the Australian Security Intelligence
Organisation Act 1979 (Cwlth).
Subclause (3) requires the officer to
be satisfied on reasonable grounds that the extension is reasonably necessary to
fulfil the purposes of the original order.
Subclause (4) provides that the application must:
§ be in
writing; and
§ set out
the facts and other grounds which the officer considers justify the
reinstatement.
Clause 28 Supreme Court may require further
information—reinstatement application
Clause 28 reiterates the power of the Supreme Court to require further
information and to refuse an application unless information is given in a way
that the court requires.
Clause 29 Supreme Court may reinstate preventative
detention order
Clause 29 empowers the Supreme Court to reinstate an order on application
under clause 27 if the court is satisfied on reasonable grounds that the
reinstatement is reasonably necessary to fulfil the purposes of the original
order.
Subclause (2) limits the length of time that may be reinstated to
the maximum period of detention that could have been authorised under the
original lapsed order.
Clause 30 Start and end of effect of reinstated
preventative detention order
Clause 30 states that a reinstated order starts when it is made. It also
defines the ‘end times’ of a reinstated order. Essentially, the
reinstated order may exhaust the residue of the original order as if it had not
lapsed as a result of the operation of clause 42.
Division 2.6 Preventative detention orders –
setting aside and amending
Clause 31 Setting aside or amending preventative
detention orders
Clause 31 provides for setting aside and amending of preventative detention
orders by the Supreme Court on the application of the person detained or a
senior police officer.
Subclause (1) provides that the person may apply
to set aside or amend the order.
Subclause (2) requires that the officer
must apply to set aside the order if he or she is satisfied that the original
grounds for making the order do not exist or no longer exist.
Paragraph
(2)(b) requires other officers who may be detaining the person to communicate
any such grounds to a senior police officer to whom subclause (2) applies.
Subclause (3) (a) sets out the obligation of the Supreme Court to set
the order aside if it is satisfied that the original grounds for making the
order do not exist or no longer exist. Subclause (3) (b) sets out the discretion
of the Supreme Court to set the order aside if it is satisfied that it is
appropriate to do so because of new facts and circumstances that have arisen
since the order was made, extended or last extended, or because of facts and
circumstances that were not before the court previously.
Subclause (4)
requires that notice of the setting aside of the order must be provided to the
chief executive and the public interest monitor.
Subclause (5) empowers
the Supreme Court to order the Territory to pay compensation to a person where
the order is set aside and the court considers that the order should not have
been made (or extended or further extended) due to facts and circumstances that
were not before the court when the order was made (or extended or further
extended).
Subclause (6) sets out the discretion of the Supreme Court to
amend an order if it is satisfied that it is appropriate to do so because of new
facts and circumstances that have arisen since the order was made, extended or
last extending or because of facts and circumstances that were not before the
court previously.
Division 2.7 Preventative detention orders –
prohibited contact orders
Clause 32 Prohibited contact orders
Clause 32 provides for the making of orders by the Supreme Court
prohibiting a person to contact specified persons during detention under a
preventative detention order.
It allows a senior police officer to apply
for a prohibited contact order in connection with an application for, or
detention under, a preventative detention order.
Subclause (3) requires the officer to be satisfied on reasonable grounds
that the order is reasonably necessary for one or more of the following
purposes:
§ to avoid
jeopardising action to prevent a terrorist act;
§ to
prevent serious harm to a person;
§ to
preserve evidence of, or relating to, a terrorist act;
§ to
prevent interference with investigations relating to terrorist
acts;
§ to
prevent interference with the arrest of another person for a terrorist offence
or the application of a preventative detention order or control order over
another person.
Subclause (4) provides that the application must:
§ be in
writing;
§ set out
the terms of the proposed order;
§ set out
the facts and other grounds which the officer considers justify the order;
and
§ state
that the officer does not suspect that any of the supporting facts and other
grounds are based on information obtained, directly or indirectly, from
torture.
Subclause (5) requires the application to state that it
discloses all relevant matters of which the officer is aware, whether they are
favourable or adverse to the application.
The officer must swear the
information in the application on oath (subclause (6)).
Subclause (7)
allows the court to make an order preventing a person from contacting any
identified person(s) while they are detained under a preventative detention
order.
Clause 33 Supreme Court may require further
information – prohibited contact application
Clause 33 reiterates the power of the Supreme Court to require further
information and to refuse an application unless information is given in a way
that the court requires.
Clause 34 Setting aside prohibited contact
orders
Clause 34 provides for setting aside and amending of prohibited contact
orders by the Supreme Court on the application of the person detained or a
senior police officer.
Subclause (1) provides that the person may apply
to set aside or amend the order.
Subclause (2) requires that the officer
must apply to set aside the order if he or she is satisfied that the original
grounds for making the order do not exist or no longer exist.
Subclause
(2)(b) requires any other officers who may be detaining the person to
communicate any such grounds to a senior police officer to whom subclause (2)
applies.
Subclause (3) (a) sets out the obligation of the Supreme Court
to set the order aside if it is satisfied that the grounds on which the order
was made do not exist or no longer exist. Subclause (3) (b) sets out the
discretion of the Supreme Court to set the order aside if it is satisfied that
it is appropriate to do so because of new facts and circumstances that have
arisen since the order was made, extended or last extending or facts and
circumstances that were not before the court previously.
Subclause (4)
requires that notice of the setting aside of the prohibited contact order must
be provided to the chief executive and the public interest
monitor.
Division 2.8 Preventative detention orders –
carrying out
Clause 35 Power to detain person under preventative
detention order
Clause 35 empowers any police officer to give effect to a preventative
detention order by taking the subject person into custody and detaining them.
The clause should be read with clause 40 which relates to use of force when
taking a person into custody.
Subclause (2) requires the officer to tell
the person their name and rank and, if they are not in uniform, to provide the
person with evidence that they are a police officer.
Subclause (3)
allows a person to ask the officer to tell them their place of duty and
identification number. Subclause (4) requires the officer to comply with that
request.
Subclause (5) provides that a failure by the officer to comply
with the requirements in subclauses (2) or (4) does not affect the
lawfulness of a person’s detention.
Clause 36 Nominated senior police officer
Clause 36 provides that when a preventative detention order is made for a
person the chief police officer must nominate an independent senior police
officer (not involved in the application for the preventative detention order)
to oversee the exercise of functions under and in relation to the order
(including applying for the setting aside or amendment of a preventative
detention order or a prohibited contact order where appropriate).
The
officer must tell the person that he or she is the nominated senior police
officer and must supervise the exercise of functions in relation to the
preventative detention order.
Subclause (4) provides that the nominated senior police officer
must:
§ tell the
detained person that he or she is the nominated senior police officer;
§ supervise the exercise of functions in
relation to the preventative detention order;
§ ensure
compliance with the obligation to apply to have the order set aside where the
original grounds for making the order do not exist or no longer exist;
and
§ receive
and consider any representations from any of the following:
− the detained person or his or her lawyer;
− the family contact;
− the public interest monitor;
− the public advocate (for persons with impaired decision-making
ability); and
− a person exercising authority under or implementing or
enforcing the order concerning the exercise of functions by police officers
under the order.
Subclause (5) provides that the chief police officer may
replace a nominated officer with another nominated senior police officer.
Subclause (6) provides that the new nominated senior police officer must tell
the person being detained of the nomination.
Subclause (7) requires the
nominated senior police officer to arrange for the assistance of an interpreter
if they suspect, or have grounds to suspect, an interpreter is necessary. The
assistance of the interpreter may be provided by phone if the person being
detained agrees or it is not possible to arrange for the interpreter to attend
in person.
Subclause (9) provides that a failure to comply with this
requirement does not affect the lawfulness of a person’s detention.
Clause 37 Endorsement of order with date and time
person detained under order
Clause 37 provides for the details of the date and time a person is first
detained under a preventative detention order to be endorsed in the order by the
relevant police officer.
Clause 38 Power to require name and address
Clause 38 enables a police officer to request a person to disclose his or
her name and home address if the officer believes on reasonable grounds that the
person may be able to assist in the execution of a preventative detention order.
Subclause (2) requires the officer to tell the person their name and
rank and, if they are not in uniform, to provide the person with evidence that
they are a police officer. It also requires the officer to tell the person why
they are being asked for their personal details and it requires the officer to
record the reason. Subclause (3) allows a person to ask the officer to tell them
their place of duty and identification number.
Once the officer complies
with subclause (2) and any request under subclause (3), the person must
disclose the information requested by the officer (subclause (4)). Failure to
comply is a strict liability offence punishable by maximum penalty of 20 penalty
units.
Section 23 of the Criminal Code 2002 provides that if a
law that creates an offence provides for strict liability, there are no fault
elements for the physical elements of the offence. Essentially, this means that
conduct alone is sufficient to make the defendant culpable. However, if strict
liability applies, the defence of mistake of fact is available where the person
considered whether or not facts existed and was under a mistaken but reasonable
belief about the facts. Other defences, such as intervening conduct or event
(section 39), are also available.
The use of strict liability was
carefully considered in developing the offence. The rationale for its inclusion
is to protect public safety. The offence is regulatory in nature and is
necessary to ensure the observance of the provision. The penalty for the offence
is cast in terms that are lower than for those offences requiring proof of
fault.
Subclause (6) provides that a failure by the officer to comply
with the requirements in subclauses (2) or (3) does not affect the
lawfulness of a person’s detention.
Clause 39 Power to enter premises
Clause 39 allows the police to enter premises, using reasonably necessary
force, in order to search for and apprehend a person who is the subject of a
preventative detention order.
Subclause (1) requires the officer to
reasonably believe the person is on the premises.
Subclause (2) allows
the officer to enter premises at any time of the day or night. The officer may
exercise any reasonably necessary force and may obtain reasonably necessary
assistance from other officers.
Subclause (3) limits entry onto
residential premises between 9 pm and 6 am unless the officer reasonably
believes that it is not practicable to take the person into custody at another
time or it is necessary to prevent concealment, destruction or loss of
evidence.
Clause 40 Use of force – preventative
detention order
Clause 40 provides that an officer, in apprehending or detaining a person,
may not use more force or subject the person to greater indignity that is
reasonably necessary:
§ to
apprehend the person or detain the person;
§ to prevent the escape of a person who has
been apprehended or detained.
Clause 41 Search of person taken into custody under
preventative detention order
Clause 41 allows for searches of a person for seizable items or evidence of
terrorist acts.
Subclause (2) allows a police officer to conduct a frisk
search or ordinary search for any seizable items. These are items that would
present danger to a person, could be used to assist an escape or could be used
to contact someone else to operate a remote device.
Subclause (3)
prohibits the use of frisk searches or ordinary searches for evidence of a
terrorist act, unless the officer reasonably suspects the person is carrying
such evidence.
Schedule 1 contains definitions and relevant provisions
governing these searches.
Clause 42 Release of person from preventative
detention
Clause 42 provides that a police officer detaining a person under a
preventative detention order may release the person from detention. Signed,
written notice of the release must be given to the person and must identify the
police officer who signs it.
A person is taken to be released if they
are detained under another basis (subclause (4)).
Once a person is
released, the order, and the authority to detain, lapses (subclause (5)). A
person must not be detained under the order unless it is reinstated (see
Division 2.5).
Clause 43 Detention Arrangements
Clause 43 provides for the making of formal written detention arrangements.
Subclause (1) allows the chief police officer, with ministerial
approval, to make written arrangements in relation to the detention of people
under preventative detention orders.
Subclause (2) requires that, before
seeking approval, the chief police officer must consult with the human rights
commissioner, the ombudsman and the public advocate.
Subclause (3)
requires the arrangements to be consistent with human rights (that is, the
various civil and political rights contained in Part 3 of the Human Rights
Act 2004).
Subclause (4) sets out the information that the
arrangements must include, including guidelines about the minimum condition of
detention and standards of treatment for detainees. Subclause (5) sets out the
information that the guidelines must include.
Subclause (6) requires that
the chief police officer ensure a copy of the arrangements, and any amendments,
is given to the human rights commissioner and the ombudsman.
Subclause
(8) acknowledges that a person may be detained at a correctional centre.
Subclause (8)(a) formally authorises the person in charge of the
correctional centre to detain the person and clarifies that the person is
detained under the above arrangements.
Subclause (8)(b) clarifies that
the obligations relating to humane treatment of detainees attach to the person
in charge of the centre and the relevant officers involved.
Subclause
(10) creates an offence against detaining someone under a preventative detention
order in breach of the terms of the arrangements. The offence is punishable by a
maximum penalty of 100 penalty units or imprisonment for 1 year or
both.
Division 2.9 Preventative detention orders –
informing detained people
Clause 44 Effect of preventative detention order to
be explained to person detained
Clause 44 requires the police officer detaining a person under a
preventative detention order to inform them of certain matters as soon as
possible after they are first detained.
A police officer is not required
to disclose the existence of a prohibited contact order or the persons named in
any prohibited contact order relating to that person’s
detention.
Clause 45 Person being detained to be informed of
extension of order
Clause 45 requires the police officer detaining a person under an extended
order to inform the person of the extension as soon as possible after it is
made.
Clause 46 Compliance with obligation to inform
Clause 46 relaxes the requirements in clause 44 and 45 if the actions of
the person being detained under the preventative detention order made it
impracticable to do so.
Subclause (2) requires the officer to record
that this has occurred and the reasons why.
Subclause (3) allows the
officer to inform the person in substance of these matters.
Subclause
(4) requires the officer to arrange for the assistance of an interpreter if they
suspect, or have grounds to suspect, an interpreter is necessary. The assistance
of the interpreter may be provided by phone if the person being detained agrees
or it is not possible to arrange for the interpreter to attend in
person.
Subclause (6) provides that a failure to comply with certain
requirements does not affect the lawfulness of a person’s detention.
Clause 47 Copies of orders to be given to detained
person
Clause 47 requires that, as soon as possible after a person is first
detained under a preventative detention order, they are to be given a copy of
the original order.
Subclause (2) requires that, as soon as possible
after any other orders are made (for example, an extension of an order), the
person is to be given a copy of the order.
Division 2.10 Preventative detention orders –
treatment of detained people generally
Clause 48 Humane treatment of detained person
Clause 48 requires a person being taken into custody or detained under an
order is:
§ to be
treated with humanity and respect for human dignity; and
§ not to
be subjected to cruel, inhuman or degrading treatment
by anyone exercising
authority under the order or implementing or enforcing the order.
Failure
to comply is an offence punishable by a maximum penalty of 200 penalty units or
imprisonment for 2 years or both.
Clause 49 Restriction on contact with other
people
Clause 49 provides that while a person is detained under an order, they are
not entitled to contact another person and may be prevented from contacting
another person.
This is subject to rules regarding contact with family
members, etc.; the ombudsman; and lawyers and contacts by persons with impaired
decision making ability.
Division 2.11 Preventative detention
orders—contact provisions
Clause 50 Contact with family members etc
Clause 50 allows a person detained under an order to contact once by
telephone or fax: a family member, a cohabitant who is not a family member, an
employer, an employee, a business partner and any other person agreed to by the
police officer, to let them know:
§ that
they are safe, but is being detained under a preventative detention
order;
§ the
period for which they are being detained under the order;
and
§ their
place of detention (but only in relation to family members and
cohabitants).
Subclause (4) provides that the order itself may allow
additional forms of contact that may include visits by the relevant person or
communications by phone, fax or email.
Clause 51 Contact with human rights commissioner and
ombudsman
Clause 51 permits the person being detained to contact and be contacted by
the human rights commissioner and the ombudsman.
Clause 52 Contact with lawyer
Clause 52 permits the person being detained to private contact with a
lawyer in order to:
§ obtain
advice about their legal rights in relation to an application for a preventative
detention order and/or a prohibited contact order under Part 2;
§ arranging for the lawyer to act for them
in relation to an application under Part 2;
§ arranging for the lawyer to seek remedies
in relation to the implementation or enforcement of, or their treatment or
detention in connection with, the order;
§ arranging for the lawyer to act for the
person in relation to a complaint before the ombudsman or other entity including
in relation to these and other matters; and
§ arranging for the lawyer to act for the
person in relation to other proceedings before a court or tribunal that are to
take place while the person is detained under the order.
The person is
otherwise entitled to reasonable contact with a lawyer (subclause
(9)).
Subclause (2) provides that the lawyer may visit the person and/or
may communicate with them by telephone, fax or email (subject to any prohibited
contact order).
Subclause (3) allows the person to contact the legal aid
commission by phone, fax or email to ask for assistance to choose, and make
arrangements to retain, a lawyer.
Subclause (4) requires the commission
to provide assistance to secure a lawyer.
Subclause (5) requires the
commission to provide legal assistance, or arrange for it to be provided, where
the person requests it and cannot afford to pay for it themselves.
In
this way, the provision of legal assistance will be subject to a means test as
provided for in the Legal Aid Act 1977 and the Guidelines made by the
Legal Aid Commission. Initial hearings will be subject to the 'duty lawyer
services' provisions in that Act and subsequent hearings will be subject to an
appropriate means test under the Guidelines.
Subclause (6) gives the
commission the same contact rights as a lawyer for this purpose.
Subclause (7) and (8) allow the commission to give priority to
security-cleared lawyers, with the proviso that the person may choose a lawyer
who is not security cleared.
Subclause (10) requires the officer
detaining the person to arrange for the assistance of an interpreter if they
suspect, or have grounds to suspect, an interpreter is necessary and the person
may have difficulty in understanding or exercising these particular
rights.
Subclause (11) requires records to be made relating to requests
under these provisions.
Subclause (12) provides that privilege is
preserved and the communication between the person and their lawyer is not
admissible in any proceedings against the person.
Clause 53 Special contact rules for people with
impaired decision-making ability
Clause 53 provides that persons detained under an order, who have impaired
decision-making ability, are entitled to have additional contact with a parent
or guardian or somebody who is acceptable to the person, other than a police
officer or ASIO officer.
Paragraph (3)(c) requires that the first contact
must occur within 24 hours.
Subclause (5) entitles the person to contact
periods of at least 2 hours.
Clause 54 Persons with impaired decision-making
ability to be contacted by public advocate
Clause 54 provides a mechanism for the police to notify the public advocate
where a person with impaired decision-making ability is detained under an order.
As soon as possible after such a person has been detained, the public
advocate must be told (subclause (2)). They may have such contact with the
person as is necessary to ensure that the person understands the order and to
assess their welfare (subclause (3)).
Subclause (4) requires the contact
to occur within 24 hours of the person being detained under an order, or further
detained under an extension to an order. This is subject to any restrictions in
the terms of the order (subclause (5)) (see subclauses 21(6) to
(9)).
Clause 55 Monitoring contact with family members
etc
Clause 55 requires that contacts under clauses 50 or 53 must be conducted
in a way that allows the content and meaning of the communication to be
monitored by the police.
While contact may take place in a language
other than English, the content and meaning of the communication must be able to
be monitored with the assistance of an interpreter.
If the persons asks
for this form of contact, the police officer detaining the person must arrange
for an appropriate interpreter unless it is impracticable to do so.
Clause 56 Monitoring contact with Lawyer
Clause 56 establishes a general presumption that contact with a lawyer will
be private. However, it does allow monitoring of contact with a lawyer in
limited circumstances.
Subclause (2) allows the senior police officer to direct in writing that
contact between a person and a specified lawyer be monitored if they are
satisfied on reasonable grounds that one or more of the following consequences
may happen if it is not monitored:
§ interference with or harm to evidence
relating to a serious offence;
§ interference with or physical harm to a
person;
§ the
alerting of a person suspected of committing a serious offence;
§ interference with investigations relating
to terrorist acts;
§ the
alerting of a person which interferes with actions to prevent a terrorist act;
or
§ the
alerting of a person which interferes with their arrest for a terrorist
act.
Subclause (3) requires the senior police officer to give written
notice to the legal aid commission and to consult with, and consider any
submissions made by, the public interest monitor.
Subclause (4) requires
the commission to appoint a public interest monitor once it is notified. If
monitoring is authorised, similar provisions will apply to those in clause
55.
Subclause (10) prohibits the recording of monitored communications
with lawyers.
Subclause (11) creates an offence against unauthorised
monitoring of such contacts, punishable by a maximum penalty of 100 penalty
units or imprisonment for 1 year or both.
Clause 57 Entitlement to contact subject to
prohibited contact order
Clause 57 provides that the contact entitlements contained in clauses 50,
52 and 53 are subject to any prohibited contact order made in relation to a
person’s detention.
Clause 58 Questioning of detained person
prohibited
Clause 58 prohibits anybody from questioning a person detained under an
order other than for specific purposes relating to the person’s identity,
welfare and legal rights.
Subclause (2) creates an offence for failure
to comply with this prohibition, punishable by a maximum penalty of 200 penalty
units or imprisonment for 2 years or both.
Subclause (3) requires any
questioning to be videoed or, if this is impracticable, taped.
If
questions are asked, any answers or information, documents or things obtained
from answers may not be used in any subsequent civil or criminal proceeding
(subclause (5)).
The prohibition on questioning does not apply to
questioning that is part of contact with family members or lawyers or with the
public advocate or human rights commissioner.
Division 2.12 Preventative detention orders –
identifying material
Clause 59 Taking identifying material
Clause 59 sets out the extent to which, and manner in which, a police
officer may take identifying particulars from a person being detained under a
preventative detention order. Subclause (2) enables a police officer of or above
the rank of sergeant to take identification material from a detained person if
the person consents in writing or if the officer believes in reasonable grounds
that it is necessary to confirm the person’s identity. Reasonable force
can be used to take identifying material in the latter situation.
If the
detained person is with impaired decision-making ability, the Supreme Court must
order identification material (other than prints of the hand, fingers, foot or
toes) be taken. That material must be taken in the presence of a parent or
guardian or another person appropriate to represent the person’s
interests.
Clause 60 Use of identification material
Clause 60 provides that identifying materials taken from a person being
detained under a preventative detention order may only be used to ascertain
whether the person is the person stated in the preventative detention order.
Identifying materials are required to be destroyed 1 year and 1 month after the
material was taken if proceedings for the preventative detention order or the
person’s treatment under a preventative detention have not been started.
If relevant proceedings are started within 1 year of the material being taken,
identifying material are required to be destroyed 1 month after the proceedings
are no longer on foot.
Division 2.13 Preventative detention orders –
public interest monitor
Clause 62 Public interest monitor
Clause 62 provides for the public interest monitor. The Minister must
appoint people to a public interest monitor panel. Provisions in Part 19.3 of
the Legislation Act apply in relation to the appointment of the public interest
monitors.
To be appointed as a public interest monitor, the person must
be a lawyer, have suitable qualities and experience and have an appropriate
security clearance.
Part 3 Special
powers
Division 3.1 Special powers –
preliminary
Clause 63 Definitions – pt 3
Clause 63 defines certain terms used under Part 3.
The term
“investigative authorisation” refers to an order made by the Supreme
Court to permit the exercise of special powers to substantially assist in
apprehending a terrorist suspect, in investigating a terrorist act or in
reducing its impact (see clause 73).
The term “preventative
authorisation” refers to an order made by the Supreme Court to permit the
exercise of special powers in circumstances where a terrorist act is happening
or will happen in the next 14 days and the order would substantially assist in
preventing the terrorist act (see clause 66).
The term “special
powers authorisation” is a preventative or investigative
authorisation.
The term “target area” refers to an area named
or described in such an authorisation.
The
term “target person” refers to a person named or described in this
way.
The term “target vehicle” refers to a person named or
described in this way.
The term “vehicle” is defined in
accordance with standard drafting practice.
Division 3.2 Special powers authorisation –
preventative authorisation
Clause 64 Applying for preventative authorisation
Clause 64 allows the chief police officer, with written approval from the
Chief Minister, to apply to the Supreme Court or Magistrates Court for a
preventative authorisation. These orders authorise the exercise of special
powers by police officers (see Division 3.4) to prevent a terrorist act or
reduce its impact or both.
The chief police officer must believe on
reasonable grounds that a terrorist act is imminent and be satisfied on
reasonable grounds that the authorisation will substantially assist in the
prevention of the terrorist act or reduction of its impact or
both.
Clause 65 Application for preventative authorisation
– contents
Clause 65 sets out the requirements for a valid preventative authorisation
application.
Subclause (1) provides that the application must:
§ be in
writing;
§ state
when the authorisation should start and end (this ensures the chief police
officer must specifically consider the duration for which the authorisation
should be in effect); and
§ describe
the general nature of the terrorist act and name or describe (if appropriate by
using a picture map or other visual depiction) one or more of the
following:
− an area in which the special powers may be exercised;
− a person sought in connection with the terrorist act;
− a
vehicle sought in connection with the terrorist act.
The application must explain:
§ why the
authorisation would substantially assist in preventing a terrorist act or
reducing its impact or both; and
§ why it is reasonably necessary for the
authorisation to be given in relation to an area.
The chief police
officer must set out all of the facts and grounds on which the authorisation is
based.
Clause 66 Making preventative authorisation
order
Clause 66 empowers the Supreme Court or the Magistrates Court to make a
preventative authorisation to authorise the exercise of powers under Division
3.4 on the application of the chief police officer under clause 64. The court
must be satisfied on reasonable grounds that:
§ a
terrorist act is expected to happen within the next 14 days;
§ the
authorisation would substantially assist in preventing the terrorist act,
reducing its impact, or both; and
§ that it is reasonably necessary for the
authorisation to be given in relation to an area.
Clause 67 Court may require further information
– preventative authorisation order
Clause 67 reiterates the power of the Supreme Court or Magistrates Court to
require further information and to refuse an application unless information is
given in a way that the court requires.
Clause 68 Preventative authorisation –
contents
Clause 68 sets out the matters that must be contained in the authorisation.
The authorisation must be in writing, be directed to all police officers, state
that it is a preventative authorisation and:
§ state
the time when it starts and ends (the authorisation may not be in force for more
than 7 days); and
§ describe
the general nature of the terrorist act and name or describe (if appropriate by
using a picture map or other visual depiction) one or more of the
following:
− an area in which the special powers may be exercised;
− a person sought in connection with the terrorist act;
− a vehicle sought in connection with the terrorist act.
Conditions and restrictions on the exercise of the powers may be placed on
the authorisation (subclause 68 (3)).
Clause 69 Setting aside or amending preventative
authorisation
Clause 69 provides that the Supreme Court or Magistrates Court may set
aside or amend a preventative authorisation on application by the chief police
officer or interested person.
Clause 70 No extension of preventative
authorisation
Clause 70 prohibits the extension of a preventative authorisation. However
there is no restriction on multiple preventative authorisations or investigative
authorisations, including where an authorisation is to start immediately after
the end of a preventative authorisation.
Division 3.3 Special powers authorisation –
investigative authorisation
Clause 71 Applying for investigative authorisation
Clause 71 allows the chief police officer, with written approval from the
Chief Minister, to apply to the Supreme Court or Magistrates Court for an
investigative authorisation. These orders authorise the exercise of special
powers by police officers (see Division 3.4) for the purpose of
apprehending a person, investigating a terrorist act or reducing its
impact.
The chief police officer must believe on reasonable grounds that a
terrorist act has happened within the last 28 days, is happening or is imminent
and be satisfied on reasonable grounds that the authorisation would
substantially assist in one or more of the following purposes:
§ the
apprehension of a person;
§ investigating the terrorist act (including
preservation of evidence); or
§ reducing the impact of a terrorist
act.
Clause 72 Application for investigative
authorisation – contents
Clause 72 sets out the requirements for a valid investigative authorisation
application.
Subclause (1) provides that the application must:
§ be in
writing;
§ state
when the authorisation should start and end (this ensures the chief police
officer must specifically consider the duration for which the authorisation
should be in effect); and
§ describe
the general nature of the terrorist act and name or describe (if appropriate by
using a picture map or other visual depiction) one or more of the
following:
− an area in which the special powers may be exercised;
− a person sought in connection with the terrorist act;
− a
vehicle sought in connection with the terrorist act.
The application must explain:
§ why the
authorisation would substantially assist in apprehending a person, investigating
a terrorist act or reducing its impact; and
§ why it is reasonably necessary for the
authorisation to be given in relation to an area.
The chief police
officer must set out all of the facts and grounds on which the authorisation is
based.
Clause 73 Making investigative authorisation
order
Clause 73 empowers the Supreme Court or the Magistrates Court to make an
investigative authorisation to authorise the exercise of powers under Division
3.4 on the application of the chief police officer under clause 71. The court
must be satisfied on reasonable grounds that:
§ a
terrorist act has happened within the last 28 days, is happening or is imminent
(i.e. is expected to happen within the next 14 days); and
§ the
authorisation would substantially assist in apprehending a person, investigating
a terrorist act or reducing its impact (including one or more of these
purposes);
§ that it is reasonably necessary for the
authorisation to be given in relation to an area.
Clause 74 Court may require further information
– investigative authorisation application
Clause 74 reiterates the power of the Supreme Court or Magistrates Court to
require further information and to refuse an application unless information is
given in a way that the court requires.
Clause 75 Investigative authorisation –
contents
Clause 75 sets out the matters that must be contained in the authorisation.
The authorisation must be in writing, be directed to all police officers, state
that it is an investigative authorisation and:
§ state
the time when it starts and ends (the authorisation may not be in force for more
than 24 hours);
§ describe
the general nature of the terrorist act and name or describe (if appropriate by
using a picture map or other visual depiction) one or more of the
following:
− an area in which the special powers may be exercised;
− a person sought in connection with the terrorist act;
− a vehicle sought in connection with the terrorist act.
Conditions and restrictions on the exercise of the powers may be placed on
the authorisation (subclause (3)).
Clause 76 Setting aside or amending investigative
authorisation
Clause 76 provides that the Supreme Court or Magistrates Court may set
aside or amend an investigative authorisation on application by the chief police
officer or interested person.
Clause 77 No extension of investigative
authorisation
Clause 77 prohibits the extension of an investigative authorisation.
However there is no restriction on multiple preventative authorisations or
investigative authorisations, including where an authorisation is to start
immediately after the end of an investigative authorisation.
Division 3.4 Authorised Special Powers
Clause 78 Exercising authorised special powers
– general provisions
Clause 78 deals with the exercise of special powers under a special powers
authorisation.
Subclause (1) provides that any police officer may
exercise the special powers while a special powers authorisation is in force.
The exercise of powers is subject to any conditions or restrictions set out in
the authorisation. Special powers may be exercised under a preventative
authorisation for the purpose of preventing the terrorist act or reducing its
impact or both. Special powers may be exercised under an investigative
authorisation for the purpose of apprehending a person, investigating a
terrorist act or reducing its impact (including one or more of these
purposes).
Subclause (2) provides that a police officer may exercise the
powers without any other authority. It is not necessary for the police officer
to have a copy of a special powers authorisation when exercising the special
powers.
Subclauses (3) and (4) set out the obligations on police
officers when exercising special powers relating to identifying people,
searching people, searching vehicles and entering and searching premises. The
officer is required to tell the person why the power is being exercised and, if
they are not in uniform, to provide the person with evidence that they are a
police officer.
Subclauses (5) and (6) set out the obligations relating
to moving vehicles, entering and searching premises, cordoning areas, etc. and
seizing things. The officer is required, if they are asked, to tell the person
why the power is being exercised and, if they are not in uniform, to provide the
person with evidence that they are a police officer.
Subclause (7)
provides that a failure by the officer to comply with the requirements in
subclauses (4) and (6) does not affect the lawfulness of a person’s
detention.
Subclauses (8) and (9) are safeguard provisions that apply if
a person or their vehicle or premises is searched. The person may ask the chief
police officer in writing for a written statement that the search was conducted
in accordance with the Act. The chief police officer must provide such a
statement or written reasons why a statement cannot be provided.
Clause 79 Power to require personal details under
special powers
Clause 79 empowers police to require a person’s full name, date of
birth or current or permanent address in circumstances where the personal
details are not known to the officer. To exercise the power the officer must
suspect, on reasonable grounds, that the person:
§ is a
person named or described in a special powers authorisation;
§ is in
the company of the above person, in suspicious circumstances;
§ is on,
about to enter, or has recently left a vehicle named or described in a special
powers authorisation; or
§ is about to enter, or has recently left an
area named or described in a special powers authorisation.
Subclause (2)
empowers the police officer to require proof of the correctness of details where
the officer suspects, on reasonable grounds, that information provided to the
officer is false.
Subclause (3) creates an offence against a person who
fails to comply with a requirement by a police officer to provide personal
details (under subclause (1)) or proof of the correctness of those details
(under subclause (2)). The offence is punishable by a maximum penalty of 50
penalty units or imprisonment for 6 months or both. It is not an offence if a
person had a reasonable excuse not to comply with a requirement.
Clause 80 Power to search people under special
powers
Clause 80 empowers police to stop and search a person, including anything
in the person’s possession or control (for example, bags or luggage
carried by the person). To exercise the power the police officer must suspect,
on reasonable grounds, that the person:
§ is a
person named or described in a special powers authorisation;
§ is in
the company of the above person, in suspicious circumstances;
§ is on,
about to enter, or has recently left a vehicle named or described in a special
powers authorisation; or
§ is about to enter, or has recently left an
area named or described in a special powers authorisation.
Schedule 1
contains definitions and relevant provisions governing these
searches.
Subclause (3) empowers police to detain a person for as long as
is reasonably necessary to conduct the search.
Subclause (4) creates an
offence against a person who fails to comply with a requirement by a police
officer in relation to the search. The offence is punishable by a maximum
penalty of 50 penalty units or imprisonment for 6 months or both. It is not an
offence if a person had a reasonable excuse not to comply with a
requirement.
Clause 81 Power to search vehicles under special
powers
Clause 81 empowers police to stop and search a vehicle (including anything
in or on the vehicle). To exercise the power the police officer must suspect, on
reasonable grounds, that:
§ the
vehicle is named or described in a special powers authorisation;
§ a person
who is about to enter, is in or on, or has recently left the vehicle is a person
named or described in a special powers authorisation;
or
§ the
vehicle is about to enter, or has recently left an area named or described in a
special powers authorisation.
Subclause (2) empowers police to detain a
vehicle for as long as is reasonably necessary to conduct the
search.
Subclause (3) empowers police to detain a person who is on or on
a vehicle for as long as is reasonably necessary to conduct the search of the
vehicle.
Clause 82 Powers to move vehicles under special
powers
Clause 82 empowers police to move or cause to be moved a vehicle that is
parked or left standing in an area named or described in a special powers
authorisation. To exercise the power the officer must consider, on reasonable
grounds, that the vehicle is dangerous to other vehicles or people, causing or
is likely to cause traffic congestion or hindering the exercise of powers in the
target area.
Subclause (2) empowers police to enter a vehicle to move it
(and may use any reasonably necessary force) and move the vehicle to the nearest
convenient place.
Clause 83 Power to enter and search premises under
special powers
Clause 83 empowers police to enter and search premises in an area named or
described in a special powers authorisation. To exercise the power the officer
must suspect, on reasonable grounds, that a person or vehicle that is named or
described in a special powers authorisation is at, on or in the
premises.
Subclause (3) empowers police to detain a person who is at, on
or in premises entered for as long as is reasonably necessary to conduct the
search of the premises.
Clause 84 Power to cordon target area etc under
special powers
Clause 84 empowers police to cordon off (including by using physical
barriers or roadblocks on roads near the area) an area named or described in a
special powers authorisation. If an area is cordoned off reasonable steps must
be taken to ensure the cordon is apparent to persons approaching; and police
officer must remain near the area.
Subclause (3) empowers police to
require a person not to enter, to leave or remain in an area that is named or
described in a special powers authorisation or cordoned off.
Subclause
(4) empowers police to require a person in charge of a vehicle not to take the
vehicle into or to remove or not remove the vehicle from an area that is named
or described in a special powers authorisation or cordoned off.
Subclause
(5) creates an offence against a person who fails to comply with a requirement
by a police officer in relation to subclauses (3) and (4). The offence is
punishable by a maximum penalty of 50 penalty units or imprisonment for 6 months
or both. It is not an offence if a person had a reasonable excuse not to comply
with a requirement.
Clause 85 Power to seize things under special
powers
Clause 85 applies in relation to a search under Division 3.4. It empowers
police to seize:
§ all or
part of a thing (including a vehicle) that the officer suspects on reasonable
grounds may provide evidence of the commission of a terrorist act;
or
§ all or
part of a thing (including a vehicle) that the officer suspects on reasonable
grounds may provide evidence of the commission of a serious offence (whether or
not related to a terrorist act).
A power to seize and detain a thing
includes a power to remove a thing from the place where it is found or to guard
the thing in or on the place where it is found.
Clause 86 Use of force by police under div
3.4
Clause 86 provides that it will be lawful for a police officer to use such
force as is reasonably necessary to exercise a power (including force reasonably
necessary to break into premises or a vehicle or anything in or on premises, a
vehicle or a person).
However, a safeguard has been included to ensure a police officer take
steps to ensure that any harm to a person or damage to a thing or premises
arising from the exercise of a power is limited to that which is reasonably
necessary to enable the effective exercise of the power.
Division 3.5 Authorisation special powers –
miscellaneous
Clause 87 Damage etc to be minimised
Clause 87 requires a police officer to take steps to ensure that as little
inconvenience, detriment and damage is caused in the exercise, or purported
exercise of special powers. Written notice of any damage must be given to the
owner of a thing, or left in a secure, conspicuous place at a
premises.
Clause 88 Compensation for exercise of special
powers
Clause 88 creates a right for people who suffer loss or expense because of
the exercise (or purported exercise) of special powers to seek compensation.
Claims are dealt with by the courts. Regulations may be made to prescribe
matters that may, must or must not be considered in making a compensation
order.
Clause 89 Power to give directions to departments
etc for special powers
Clause 89 enables the chief police officer, in order to facilitate the
exercise of special powers, to direct the exercise of powers and functions by
departments and territory entities.
Clause 90 Return of things seized etc under special
powers
Clause 90 provides that a police officer who has seized a thing must return
it to the owner or person who had lawful possession of it before it was seized
if the officer is satisfied that its retention as evidence is not required and
it is lawful for the person to have possession of the thing.
Clause 91 Disposal of seized property on application
to court
Clause 91 provides that a court may make an order that property that has
been seized by a police officer be delivered to the person who appears to be
lawfully entitled to it or, if that person cannot be ascertained, be dealt with
as the court thinks fit.
In determining an application, the court may do any 1 or more of the
following:
§ adjust
rights to property as between people who appear to be lawfully entitled to the
same property or the same or different parts of property;
§ make a
finding or order as to the ownership and delivery of property;
§ make a
finding or order as to the liability for and payment of expenses incurred in
keeping property in police custody;
§ order,
if the person who is lawfully entitled to the property cannot be ascertained,
that the property be forfeited to the Territory;
or
§ make
incidental or ancillary orders.
Clause 92 Records of exercise of authorised special
powers
Clause 92 provides that the chief police officer must ensure records are
made, and kept, about the exercise of special powers (including under Schedule
1).
Clause 93 Human rights training
Clause 93 provides that the chief police officer must ensure that police
officers who exercise special powers are trained about their obligations under
human rights legislation applying in the ACT. This training includes
discrimination training.
Clause 94 Relationship with other territory
laws
Clause 94 clarifies that provisions in Part 3 are additional to any other
territory laws and does not limit the powers that a police officer has under any
other territory law.
Clause 95 Report to Minister about exercise of
special powers etc.
Clause 95 requires the chief police officer to give the Minister a written
report about a special powers authorisation and the exercise of powers under it.
The report must:
§ be
provided as soon as possible after an authorisation ends;
§ identify
the terms of the authorisation;
§ state
the period of operation of the authorisation;
§ include
a summary of the grounds for applying for the authorisation;
§ include
a general description of the powers exercise, and how the powers were
exercised;
§ state
the result of the exercise of powers; and
§ outline any inconvenience or adverse
impact arising out of the exercise of powers.
Part 4 Miscellaneous
Clause 96 Evidence obtained from torture
inadmissible
Clause 96 creates a blanket prohibition on the admissibility of evidence
obtained directly or indirectly from torture, regardless of where the torture
was carried out.
Torture is defined in the Convention Against Torture
and Other Cruel Inhuman or Degrading Treatment or Punishment, article 1,
paragraph 1. Which at the time of writing states:
For the purposes of
this Convention, the term “torture” means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiesence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
Clause 97 Delegation by chief police
officer
Clause 97 provides that the chief police officer may delegate a function
under the Act to a senior police officer. The making of a delegation is dealt
with in Part 19.4 of the Legislation Act.
Subclause (2) lists a number of
provisions in which functions must not be delegated.
Clause 98 Annual report on the use and effectiveness
of Act
Clause 98 requires the chief executive to prepare an annual report about
the use and effectiveness of the Act. The chief police officer must provide
information and assistance to the chief executive to assist the preparation of
the report.
Without limiting the matters that the report may contain, it
must include information relating to the number of preventative detention and
prohibited contact orders made, the number of persons detained and particulars
of any complaints in relation to detention.
Clause 99 Transitional provision – references
to correctional centre
Clause 99 clarifies the meaning of a ‘correctional centre’ in
the event that the Bill commences before the Crimes (Sentence Administration)
Act 2005 commences. In this instance a reference to a ‘correctional
centre’ is a reference to a remand centre or a detention centre under the
Periodic Detention Act 1995.
Clause 100 Review of Act after 3 years
operation
Clause 100 requires the Minister to review the operation and effectiveness
of the Act after it has been in operation for 3 years, and to present a report
of the review to the Legislative Assembly before the end of the Act’s
fourth year of operation.
Clause 101 Expiry of Act etc
Clause 101 provides that the Act expires fives years after the day it
commences.
Subclause (2) provides that any order in force under the Act
ceases to have effect on expiry. subclause (3) provides that orders may not be
made once the Act expires.
Clause 102 Regulation-making power
Clause 102 is the regulation making power.
Schedule 1 Conduct of personal searches
Schedule 1 establishes the governing the conduct of personal searches.
Personal searches may only be conducted in limited circumstances in accordance
with clauses 41 and 80.
1.1 Application – sch 1
Clause 1.1 provides that the schedule applies to a search of a person
conducted, or authorised to be conducted, by a police officer under clauses 41
and 80.
1.2 Definitions – sch 1
Clause 1.2 defines certain terms used under Schedule 1.
The term
“frisk search” means a search of the person conducted by quickly
running the hands over the person’s outer clothing or by passing an
electronic metal detection device (that can detect the presence of metallic
objects) over or close to the person’s outer clothing, and an examination
of anything worn or carried by the person (such as a hat or jacket) that is
conveniently and voluntarily removed by the person, including an examination
conducted by passing an electronic metal detection device over or close to the
thing.
The term “ordinary search” means a search of the
person or anything in the person’s possession and may include requiring
the person to remove only the person’s overcoat, coat, jacket or similar
article of clothing and any footwear, gloves or headwear and an examination of
these items.
The term “strip search” means a search of the
person or of anything in the person’s possession and may include requiring
the person to remove their clothing and an examination of the person’s
body (excluding body cavities) and of the person’s clothing.
1.3 Frisk searches and ordinary
searches
Clause 1.3 provides that an authorised police officer may conduct the
search for any purpose in clauses 41 or 80.
1.4 Strip searches
Clause 1.4 provides that an authorised police officer may conduct a strip
search of a person if the officer suspects on reasonable grounds
that—
§ the
person is the target of an authorisation; and
§ it is
necessary to conduct the strip search to find and seize something;
and
§ the
thing can only be found and seized by conducting the strip search.
If a
strip search is conducted, the officer is required to record reasons for
conducting the search.
1.5 Preservation of privacy and dignity during
search etc
Clause 1.5 provides that a police officer must comply, as far as possible,
with the rules for preserving the privacy and dignity of a person during a
search. Any non-compliance, and reasons for the non-compliance, must be
recorded.
The following rules apply to the conduct of any search:
§ a person
must be told whether they will be required to remove any clothing, and reasons
for this;
§ the
cooperation of the person must be sought;
§ the
search must be conducted as quickly as possible and in a way that provides
reasonable privacy;
§ a search
must be the least invasive search practicable;
§ if the
person seeks an explanation of the reasons for the search being conducted in a
particular manner, an explanation must be offered;
§ the
person’s genital area (or female’s breasts) must not be searched
unless it is necessary to do so;
§ a search
may only be conducted by a police officer of the opposite sex if the seriousness
and urgency of the circumstances require it (and reasons must be recorded as to
why);
§ a search
must not be carried out during questioning; and
§ if clothing or footwear is seized because
of the search and the person is left without adequate clothing or footwear, the
person must be offered adequate replacements.
1.6 Rules for conduct of strip searches
Clause 1.6 provides that a police officer must comply, as far as possible,
with the rules for conducting a strip search. Any non-compliance, and reasons
for the non-compliance, must be recorded.
The following rules apply to the conduct of a strip search:
§ the
search must be conducted in a place that provides reasonable privacy for the
person searched;
§ the
search must not be conducted in the presence or view of—
− a person who is not of the same gender as the person being
searched; or
− a person whose presence is not necessary for the purposes of the
search or the safety of all present,
except as follows:
− a search may be conducted in the presence of a medical practitioner
or nurse not of the same gender if the person consents;
− a search of a person who is under 18 years of age or has impaired
decision making ability must be conducted in the presence of a parent or
guardian of the person or of another person (other than a police officer) who
can provide the person with support and represent the person’s
interests;
§ a search
must not involve the removal of more clothes, or the removal of more clothes at
any time, than is reasonably necessary. A person must not be more than half
undressed at one time;
§ the
search must not involve more visual inspection of the persons body than is
reasonably necessary, visual inspection of the person’s genital area, anal
area, buttock and breasts must be kept to a minimum; and
§ the
person must be allowed to dress in private as soon as the search is
finished.
1.7 Search of transgender or intersex
person
Clause 1.7 includes additional requirements where the person being searched
is a transgender or intersex person. A transgender or intersex person is may
require that a search be conducted by a male or female. If the person requires a
female, she is taken to be a female for the purpose of the schedule, if the
person requires a male, he is taken to be a male for the purpose of the
schedule.
Dictionary
The dictionary defines certain terms for the Bill.
[Index]
[Search]
[Download]
[Bill]
[[Help]]