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This is a Bill, not an Act. For current law, see the Acts databases.
TERRORISM (EMERGENCY POWERS) AMENDMENT BILL 2006
Serial 46
Terrorism (Emergency
Powers) Amendment Bill 2006
Mr
Henderson
AN ACT
to
amend the Terrorism (Emergency Powers) Act
NORTHERN TERRITORY OF
AUSTRALIA
Terrorism (EMERGENCY POWERS) AMENDMENT
ACT 2006
____________________
Act No. [ ] of 2006
____________________
TABLE OF PROVISIONS
Section
NORTHERN TERRITORY
OF AUSTRALIA
____________________
Act No. [ ] of 2006
____________________
AN ACT
[Assented to [ ]
2006]
[Second reading [ ]
2006]
The Legislative Assembly of the Northern Territory enacts
as follows:
Short title
This Act may be cited as the Terrorism (Emergency
Powers) Amendment Act 2006.
Commencement
This Act comes into operation on the date fixed by the
Administrator by notice in the Gazette.
Act amended
This Act amends the Terrorism (Emergency Powers)
Act.
Repeal and substitution of long title
Long title
repeal, substitute
An Act to provide powers to prevent and respond to
terrorist acts
Amendment of section 4 (Interpretation)
(1) Section 4(1), definition of "vehicle"
omit
(2) Section 4(1)
insert (in alphabetical order)
"adjoining place", for Part 3A, has the meaning in section
27A;
"authorised police officer" has the meaning
in:
(a) for Part 2B – section 21A; or
(b) for Part 3A – section 27A;
"business day" means a day that is not:
(a) a Saturday or Sunday; or
(b) a day that is declared to be a public holiday under the
Public Holidays Act;
"confirmed preventative detention order", for Part 2B, has
the meaning in section 21A;
"corresponding law", for Part 2B, has the meaning in section
21A;
"eligible Judge", for Part 2B, has the meaning in section
21A;
"Ethical and Professional Standards Command", for Part 2B,
has the meaning in section 21A;
"identification material", for Part 2B, has the meaning in
section 21A;
"lawyer", for Part 2B, has the meaning in section
21A;
"national security", for Part 2B, has the meaning in section
21A;
"nominated police officer", for Part 2B, has the meaning in
section 21A;
"place", for Part 3A, has the meaning in section
27A;
"preventative detention order", for Part 2B, has the meaning
in section 21A;
"prohibited contact order", for Part 2B, has the meaning in
section 21A;
"responsible police officer", for Part 2A, has the meaning
in section 20A;
"same terrorist act", for Part 2B, has the meaning in
section 21A;
"seized item", for Part 2A, has the meaning in section
20A;
"senior police officer", for Part 2B, has the meaning in
section 21A;
"serious indictable offence", for Part 2A, has the meaning
in section 20A;
"serious offence related item", for Part 2A, has the meaning
in section 20A;
"special area", for Part 2A, has the meaning in section
20A;
"special area declaration", for Part 2A, has the meaning in
section 20A;
"special event", for Part 2A, has the meaning in section
20A;
"special warrant", for Part 3A, has the meaning in section
27A;
"subject place", for Part 3A, has the meaning in section
27A;
"terrorism related item", for Part 2A, has the meaning in
section 20A;
"vehicle" includes any mode of transport whatsoever by land,
water or through the air.
New section 4A
After section 4
insert
4A. Extraterritoriality
of terrorist act no barrier
To avoid doubt, powers and functions conferred by this Act
in relation to a terrorist act may be exercised or performed whether or not the
terrorist act has been, is being, or is likely to be committed in the
Territory.
Amendment of section 5 (Terrorist act)
(1) Section 5(1)
omit
means an action that –
substitute
means an action or threat of an action if:
(2) Section 5(1)(a)
omit
falls
substitute
the action falls
(3) Section 5(1)(b) and (c)
omit
is done
substitute
the action is done or the threat is made
Repeal and substitution of section 6
Section 6
repeal, substitute
6. When
authorisation may be given
A person may give an authorisation under section 8 if the
person is satisfied there are reasonable grounds for believing:
(a) a terrorist act has occurred or is likely to occur in
the near future; and
(b) the exercise of the powers under the authorisation will
substantially assist in:
(i) preventing the terrorist act or minimising the risk to
public health or public safety relating to the terrorist act;
or
(ii) finding, preserving or removing evidence relating to
the terrorist act; or
(iii) apprehending a person responsible for committing the
terrorist act or intending to commit the terrorist act.
Amendment of section 7 (Purposes for which authorisation may
be given)
(1) Section 7(1)(c)
omit, substitute
(c) for the purpose of preventing a terrorist act occurring
in the near future in a particular area described in the authorisation or
apprehending in the area a person who may be responsible for committing a
terrorist act or be intending in the near future to commit a terrorist
act;
(2) Section 7(1)(d) and (e)
omit
an imminent terrorist act
substitute
terrorist act likely to occur in the near
future
Amendment of section 9 (Form of
authorisation)
Section 9(3)(b)
omit, substitute
(b) describe the general nature of the terrorist act to
which it applies;
New section 12A
After section 12
insert
12A. Power
to give directions to public authorities
(1) The Commissioner or other police officer mentioned in
section 8(1) may, for facilitating the exercise of the special powers conferred
by this Part, give a public authority directions in relation to the exercise or
performance of the authority's powers or functions.
(2) The authority must comply with the
direction.
(3) In this section:
"public authority" includes an Agency, statutory corporation
and local government council and any member or officer of a public authority,
but does not include a parliamentary or judicial body or its members or
officers.
Amendment of section 19 (Power to enter and search
premises)
Section 19(1)(a)
omit, substitute
(a) the police officer suspects on reasonable grounds that
a person who is the target of an authorisation:
(i) may be on the premises; or
(ii) is an occupant of the premises; or
(iii) is an owner, or is concerned in the management or
control of the premises; or
Amendment of section 20 (Power to enter premises for
surveillance or to protect persons)
Section 20(1)(a)
omit
to commit an imminent terrorist act
substitute
in the near future to commit a terrorist
act
New Parts 2A and 2B
After section 20
insert
PART
2A – POWERS EXERCISABLE UNDER SPECIAL AREA
DECLARATION
Division
1 – Preliminary matters
In this Part:
"responsible police officer", for a seized item, means the
police officer from time to time responsible for the item;
"seized item" means an item seized under section
20P(2);
"serious indictable offence" means an indictable offence
punishable by imprisonment for life or for a term of 5 years or
more;
"serious offence related item" means a thing a police
officer conducting a search under Division 3 reasonably
suspects:
(a) might be used in a serious indictable offence;
or
(b) is connected with the preparation for, or the
engagement of a person in, a serious indictable offence; or
(c) is evidence of, or relating to, a serious indictable
offence;
"special area" means an area for which a declaration under
section 20B(1) is in force;
"special area declaration" means a declaration made by the
Commissioner under section 20B(1) declaring an area to be a special
area;
"special event" means a community, cultural, arts,
entertainment, recreational, sporting or similar event that is to be held over a
limited period of time;
"terrorism related item" means a thing a police officer
conducting a search under Division 3 reasonably suspects:
(a) might be used in a terrorist act; or
(b) is connected with the preparation for, or the
engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist
act.
Division
2 – Making special area declaration
20B. Special
area declaration
(1) Subject to subsections (2) and (3), the Commissioner
may declare any of the following to be a special area:
(a) the site of an airport, train station, bus station or
ship or ferry terminal;
(b) the site of a special event;
(c) a public area where people gather in large
numbers.
(2) The Commissioner must not make a declaration under
subsection (1) unless satisfied the declaration is
required because of the nature of the site or area and the risk of occurrence of
a terrorist act.
(3) The Commissioner must not make the declaration without
the approval of the Police Minister.
(1) A special area declaration must be notified in the
Gazette.
(2) The declaration must:
(a) state it is made under this Act; and
(b) describe the site or area and define its boundaries;
and
(c) specify the times and dates the declaration comes into
operation and ceases operation.
20D. Duration
of declaration
(1) A special area declaration comes into operation at the
time and date specified in the declaration.
(2) Unless earlier revoked under section 20E, the
declaration ceases to operate at the time and date specified in
it.
(3) The period the declaration operates must not exceed 28
days.
(4) However, a further declaration may be made for the same
site or area to extend the period of operation of an earlier
declaration.
(5) The period the further declaration operates must not
exceed 7 days.
(6) The provisions of this Part relating to a special area
declaration (except subsection (3)) apply to a further
declaration.
20E. Revocation
of declaration
(1) A special area declaration may be revoked at any time
by the Commissioner.
(2) The Commissioner must revoke the declaration if
directed to do so by the Police Minister.
(3) The revocation of the declaration must be notified in
the Gazette.
20F. Legality
of declaration
(1) The cessation of operation of the declaration (by
revocation or otherwise) does not affect anything lawfully done in reliance on
the declaration before it ceased to operate.
(2) A declaration or decision of the Police Minister under
this Part in relation to a declaration cannot be:
(a) challenged, reviewed, quashed or called into question
on any grounds whatsoever before a court, tribunal, body or person in a legal
proceeding; or
(b) restrained, removed or otherwise affected by an
injunction or proceeding in the nature of prohibition or
mandamus.
(3) The powers conferred on a police officer because of a
declaration may be exercised by any police officer, whether or not the officer
has been provided with, or notified of, the terms of the
declaration.
20G. Effect
of failure to publish
A failure to notify in the Gazette a declaration of
a special area or the revocation of a declaration does not make the declaration
or revocation ineffective to any extent.
20H. Report
to be given to Attorney-General and Police Minister
As soon as practicable after a special area declaration
ceases to operate, the Commissioner must give a written report to the
Attorney-General and Police Minister:
(a) specifying the terms of the declaration and the period
in which it had effect; and
(b) identifying as far as reasonably practicable the
matters relied on for making the declaration; and
(c) describing generally the powers exercised under the
declaration and the manner in which they were exercised; and
(d) specifying the results of the exercise of the
powers.
20J. Report
to be tabled in Legislative Assembly
The Police Minister must, within 7 sitting days after
receiving the Commissioner's report on a declaration, table a copy of the report
in the Legislative Assembly.
Division
3 – Powers given by special area declaration
20K. Powers
which may be exercised under declaration
The powers under this Part may be exercised by a police
officer in relation to:
(a) a person or vehicle in a special area;
or
(b) a person or vehicle about to enter, or has recently
left, a special area.
20L. Power
to make person disclose identity and address
(1) A police officer may request a person to give the
officer the following details:
(a) the person's name;
(b) the person's residential address;
(c) the person's date of birth;
(d) the person's reason for being in the special
area.
(2) A person to whom a request is made under subsection (1)
must not, without reasonable excuse, contravene the request.
Penalty: 100 penalty units or imprisonment for 6
months.
(3) A person to whom a request is made under subsection (1)
must not, without reasonable excuse, give in response to the
request:
(a) a name that is false in a material particular; or
(b) an address other than the full and correct address of
the person's ordinary place of residence.
Penalty: 100 penalty units or imprisonment for 6
months.
(4) A police officer may request a person to whom a request
is made under subsection (1) to give the officer proof of the person's
identity.
(5) A person to whom a request is made under subsection (4)
must not, without reasonable excuse, contravene the request.
Penalty: 100 penalty units or imprisonment for 6
months.
20M. Power
to search persons
(1) A police officer may, without a warrant, stop and
detain a person for the purposes of conducting a search under subsection
(2).
(2) The police officer may conduct one or more of the
following searches for a terrorism related item:
(a) an ordinary search or frisk search of the
person;
(b) a search of anything that is, or that the officer
suspects on reasonable grounds to be, in the possession of or under the control
of the person;
(c) a search of anything that the person has, or that the
officer suspects on reasonable grounds the person has, brought into the special
area.
(3) The police officer may detain a person stopped under
subsection (1) for as long as is reasonably necessary to conduct a search
of the person or anything in the possession of or under the control of the
person.
(4) For section 112(1) of the Criminal Code, a person
detained under subsection (1) is in the lawful custody of the police officer
while so detained.
20N. Power
to search vehicles
(1) A police officer may, without a warrant, stop and
search a vehicle and anything in, on or attached to the
vehicle.
(2) A police officer may detain a vehicle stopped under
subsection (1) for as long as is reasonably necessary to conduct a search of the
vehicle and anything in, on or attached to the vehicle.
(3) A police officer may detain a person who is in or on a
vehicle stopped under subsection (1) for as long as is reasonably necessary to
conduct a search of the vehicle.
(4) For section 112(1) of the Criminal Code, a person
detained under subsection (3) is in the lawful custody of the police officer
while so detained.
Division
4 – Seizure of terrorism related items and serious offence related
items
(1) This section applies to a police officer who in the
course of a search under Division 3 finds any of the following:
(a) a terrorism related item;
(b) a serious offence related item.
(2) The police officer may seize the item.
(1) The responsible police officer for a seized item must
serve a seizure notice within 7 days after the day the item was
seized.
(2) The notice must be served on:
(a) the owner of the item; or
(b) if the owner of the item cannot be identified after
reasonable inquiries – the person from whom the item was
seized.
(3) However, subsections (1) and (2) do not apply
if:
(a) the item was not seized from a person and the owner of
the item cannot be identified after reasonable inquiries; or
(b) it is not possible to serve the person required to be
served under subsection (2).
(4) The notice must:
(a) identify the item; and
(b) state:
(i) the date the item was seized; and
(ii) the ground or grounds on which the item was seized;
and
(iii) the item will be forfeited to the Territory if the
owner does not request the return of the item within 90 days after the date of
the notice.
20R. Return
of seized item
(1) The owner of the seized item may request the return of
the item.
(2) Subject to subsection (3), the responsible police
officer must return the seized item to the owner if the owner requests the
return of the item.
(3) The police officer must not return the item to the
owner if:
(a) the officer suspects, on reasonable grounds that, if
the item is returned to the owner, the item is likely to be used in the
commission of a terrorist act or serious indictable offence; or
(b) the item is evidence of, or relating to, a terrorist
act or serious offence.
20S. Forfeiture
of seized item
(1) The seized item is forfeited to the Territory if the
owner of the item does not request the return of the item before the end of the
due date.
(2) Subsection (3) applies if:
(a) before the end of the due date the owner of the seized
item requests the return of the item; and
(b) the item has not been returned to the owner by the end
of the due date.
(3) The responsible police officer must, within 5 days
after the due date:
(a) return the item to the owner; or
(b) apply to a magistrate for an order under section
20T.
(4) In this section:
"due date" means:
(a) the 90th day after the date of the seizure notice in
relation to an item; or
(b) if section 20Q(3) applies – the 90th day after
the date the item was seized.
20T. Application
to magistrate
(1) A police officer may apply to a magistrate for an order
under
subsection (3), (4) or (5) for a seized
item.
(2) The magistrate must allow the owner of the item to
appear and be heard at the determination of the application.
(3) If the magistrate is satisfied the item is evidence of,
or relating to, a terrorist act or serious indictable offence, the magistrate
must order the item be retained by the police officer for the period specified
in the order.
(4) If the magistrate is satisfied there are reasonable
grounds to suspect that, if the item is returned to the owner, the item is
likely to be used in the commission of a terrorist act or serious indictable
offence, the magistrate may order that the item:
(a) be retained by the police officer for the period
specified in the order; or
(b) is forfeited to the Territory; or
(c) be sold and the proceeds given to the owner;
or
(d) be otherwise sold or disposed of.
(5) If the magistrate is satisfied the item poses a threat
to the health or safety of persons or a threat to the environment, the
magistrate may order the item be destroyed or otherwise disposed
of.
(6) If the magistrate is not satisfied as to the matters
mentioned in subsections (3), (4) and (5), the magistrate must order the item be
returned to the owner.
Part
2B – Preventative detention orders
Division
1 – Preliminary matters
The object of this Part is to allow a person to be taken
into custody and detained for a short period of time in order
to:
(a) prevent a terrorist act occurring in the near future;
or
(b) preserve evidence of, or relating to, a recent terrorist
act.
Note for section 21
Section 21ZP provides that, while a person is being detained under a
preventative detention order, the person may only be questioned for very limited
purposes.
In this Part, unless the contrary intention
appears:
"authorised police officer" means a police officer
authorised under section 21D;
"confirmed preventative detention order" means a
preventative detention order that has been confirmed (with or without variation)
by the Supreme Court under section 21P;
"corresponding law" means:
(a) Division 105 of the Criminal Code (Cth) and the
regulations and other instruments made under that Division, as in force from
time to time; or
(b) a law of a State or another Territory that provides for
preventative detention of persons in relation to terrorist acts (including a law
of a State or another Territory declared by regulation to be a corresponding
law);
"eligible Judge" means a Judge for whom a declaration is in
force under section 21C;
"Ethical and Professional Standards Command" means the part
of the Police Force (however named) that oversees the ethical and professional
standards of police officers;
"identification material", in relation to a person, means
samples taken from a part of the person's body from which a DNA profile may be
derived, prints of the person's hands, fingers, feet or toes, recordings of the
person's voice, samples of the person's handwriting or photographs (including
video recordings other than recordings made in the ordinary course of operation
of a security camera fitted at, or in the immediate vicinity of, a place where
the person is being detained under a preventative detention order) of the
person;
"lawyer" means a local or interstate legal
practitioner within the meaning of the Legal Practitioners
Act;
"national security" has the same meaning as in the
National Security Information (Criminal and Civil Proceedings) Act 2004
(Cth);
"nominated police officer" means a police officer nominated
under section 21X(1);
"preventative detention order" means a preventative
detention order made under section 21G, as varied under section 21P, 21S or
21T;
"prohibited contact order" means an order made
under section 21Q or 21R, as varied under section 21S or
21T;
"same terrorist act" has the meaning in section
21B;
"senior police officer" means a police officer of or above
the rank of Assistant Commissioner.
(1) A terrorist act ceases to be the same terrorist act if
there is a change in the date on which the terrorist act is expected to
occur.
(2) A terrorist act that is expected to occur at a
particular time does not cease to be the same terrorist act merely because
of:
(a) a change in the persons expected to carry out the act at
that time; or
(b) a change in how or where the act is expected to be
carried out at that time.
(1) The Administrator may, in writing, declare a Judge to
be an eligible Judge for this Part.
(2) A declaration cannot be made for a Judge unless the
Judge has consented in writing to the declaration.
(3) An eligible Judge who has given consent for this
section may, in writing, revoke the consent.
(4) An eligible Judge has, in relation to the exercise of a
power or performance of a function conferred on an eligible Judge by this Part,
the same protection and immunity as a Judge of the Supreme Court has in relation
to proceedings in the Court.
(5) A power or function conferred on an eligible Judge by
this Part, is conferred on the Judge in a personal capacity and not as a court
or a member of a court.
21D. Authorised
police officers
A senior police officer may, in writing, authorise a police
officer of or above the rank of superintendent to be an authorised police
officer for making applications under sections 21E, 21Q and
21R.
Division
2 – Preventative detention orders
21E. Application
for preventative detention order
(1) An authorised police officer may apply to an eligible
Judge for a preventative detention order in relation to a person
if:
(a) the applicant is satisfied:
(i) there are reasonable grounds to suspect the
person:
(A) will engage in a terrorist act; or
(B) possesses or has under the person's control (whether
solely or jointly with anyone else) a thing that is connected with the
preparation for, or the engagement of a person in, a terrorist act;
or
(C) has done an act in preparation for, or planning, a
terrorist act; and
(ii) making the order would substantially assist in
preventing a terrorist act occurring; and
(iii) detaining the person for the period for which the
person is to be detained under the order is reasonably necessary for the purpose
of substantially assisting in preventing a terrorist act occurring;
or
(b) the applicant is satisfied:
(i) a terrorist act has occurred within the last 28 days;
and
(ii) it is necessary to detain the person to preserve
evidence in the Territory or elsewhere of, or relating to, the terrorist act,
and
(iii) detaining the person for the period for which the
person is to be detained under the order is reasonably necessary for the purpose
of preserving any such evidence.
(2) A terrorist act mentioned in subsection (1)(a) must be
imminent and, in any event, be expected to occur at some time in the next 14
days.
Note for section 21E
As a consequence of the operation of section 4A, it does not matter
whether the location of the suspected terrorist act is in the Territory or
elsewhere.
21F. Form
and content of application
(1) An application for a preventative detention order
must:
(a) subject to subsection (4), be made by affidavit;
and
(b) specify the facts and other grounds on which the
applicant considers the order should be made; and
(c) specify the period for which the person is to be
detained under the order and the facts and other grounds on which the applicant
considers the person should be detained for that period; and
(d) specify the information (if any) the applicant has about
the person's age and capacity to manage his or her affairs; and
(e) specify the following:
(i) the outcomes and particulars of all previous
applications for preventative detention orders made in relation to the
person;
(ii) the information (if any) the applicant has about any
periods for which the person has been detained under an order made under a
corresponding law;
(iii) the information (if any) the applicant has about any
control order (including any interim control order) made in relation to the
person under Division 104 of the Criminal Code (Cth);
(iv) a summary of the grounds on which the applicant
considers the order should be made.
(2) To avoid doubt, subsection (1)(e)(iv) does not require
information to be included in the summary if the disclosure of the information
is likely to prejudice national security.
(3) The application must also fully disclose all relevant
matters of which the applicant is aware, both favourable and adverse, to the
making of the order.
(4) An application for a preventative detention order that
is required urgently may be made by telephone, fax, email or other electronic
communication.
(5) If:
(a) a preventative detention order is made in relation to a
person on the basis of assisting in preventing a terrorist act occurring within
a particular period; and
(b) the person is taken into custody under the order;
and
(c) an application is made for another preventative
detention order in relation to the person on the basis of assisting in
preventing a different terrorist act occurring within that
period,
the application must also identify the information on which
the application is based that became available only after the order mentioned in
paragraph (a) was made.
(6) If:
(a) an order for a person's detention is made under a
corresponding law on the basis of assisting in preventing a terrorist act
occurring within a particular period; and
(b) the person is taken into custody under that order;
and
(c) an application is made for a preventative detention
order in relation to the person on the basis of assisting in preventing a
different terrorist act occurring within that period,
the application must also identify the information on which
the application is based that became available only after the order mentioned in
paragraph (a) was made.
(7) If, when an application for a preventative detention
order is made, the person in relation to whom the order is being sought is in
detention under:
(a) a preventative detention order; or
(b) an order for the person's detention made under a
corresponding law,
written notice of the application must be given to the
person.
21G. When
preventative detention order may be made
(1) An eligible Judge may, on an application, make a
preventative detention order in relation to a person only if:
(a) satisfied on reasonable grounds:
(i) the person:
(A) will engage in a terrorist act; or
(B) possesses or has under the person's control (whether
solely or jointly with anyone else) a thing that is connected with the
preparation for, or the engagement of a person in, a terrorist act;
or
(C) has done an act in preparation for, or planning, a
terrorist act; and
(ii) making the order would substantially assist in
preventing a terrorist act occurring; and
(iii) detaining the person for the period for which the
person is to be detained under the order is reasonably necessary for the purpose
of substantially assisting in preventing a terrorist act occurring;
or
(b) satisfied on reasonable grounds:
(i) a terrorist act has occurred within the last 28 days;
and
(ii) it is necessary to detain the person to preserve
evidence in the Territory or elsewhere of, or relating to, the terrorist act,
and
(iii) detaining the person for the period for which the
person is to be detained under the order is reasonably necessary for the purpose
of preserving any such evidence.
(2) A terrorist act mentioned in subsection (1)(a) must be
imminent and, in any event, be expected to occur at some time in the next 14
days.
(3) The Judge may refuse to make a preventative detention
order unless the applicant gives the Judge any further information the Judge
requests concerning the grounds on which the order is sought.
(4) If the application is made under section
21F(4):
(a) an order made under this section must be sent to the
applicant by fax, email or other electronic communication; or
(b) the applicant must complete a form of a preventative
detention order as directed by the Judge.
(5) The copy of the original order sent, or the form of the
order completed, under subsection (4) has the same force and effect as the
original order.
21H. Nature
and content of preventative detention order
(1) A preventative detention order is an order that the
person in relation to whom it is made may be:
(a) taken into custody (unless the person is already being
detained under a preventative detention order, or an order for the person's
detention made under a corresponding law, that is in force or was in force
immediately before the making of the new order); and
(b) detained during the period that:
(i) starts when the person is first taken into custody or
detained under the order (the "start"); and
(ii) ends a specified period after the
start.
(2) A preventative detention order must be in
writing.
(3) A preventative detention order must
specify:
(a) the name of the person in
relation to whom it is made; and
(b) the period during which the person may be detained under
the order; and
(c) the date on which, and the time at which, the order is
made; and
(d) the date and time after which the person may not be
taken into custody under the order; and
(e) a summary of the grounds on which the order is
made.
(4) To avoid doubt, subsection (3)(e) does not require
information to be included in the summary if the disclosure of the information
is likely to prejudice national security.
(5) If the person in relation to whom the order is made
is:
(a) under 18 years of age; or
(b) incapable of managing his or her
affairs,
the order may specify a period of longer than 2 hours as the
period the person is entitled under section 21ZL(2) to have contact with another
person each day.
21J. Director
of Correctional Services to be given copy of preventative detention order if
person detained in prison
If the person in relation to whom a preventative detention
order is made is being detained in a prison, the applicant for the order must
give a copy of the order to the Director of Correctional
Services.
21K. Maximum
period of detention
(1) The maximum period for which a person may be detained
under a preventative detention order is 14 days less any period the person is
actually detained under a
preventative detention order, or an order for the person's detention made under
a corresponding law against the person, in relation to the
same terrorist act.
(2) Despite subsection (1), the maximum period for which a
person may be detained under a preventative detention order made on the basis of
preserving evidence of, or relating to, a terrorist act that has occurred is not
reduced by any period for which the person is detained under a preventative
detention order, or an order for the
person's detention under a corresponding law, made on the
basis of preventing a terrorist act.
21L. When
order starts and ceases to have effect
(1) A preventative detention order in relation to a person
starts to have effect:
(a) if the order so provides, on an order for the person's
detention made under a corresponding law ceasing to have effect;
or
(b) otherwise, when it is made.
(2) A preventative detention order in relation to a person
under which the person is required to be taken into custody ceases to have
effect at the end of the period of 48 hours after the order is made if the
person has not been taken into custody under the order within that
period.
(3) If a preventative detention order does not cease to
have effect under subsection (2), it ceases to have effect when whichever of the
following first occurs:
(a) the period during which the person may be detained under
the order ends;
(b) the order is revoked under section 21P, 21S or
21T.
21M. No
preventative detention order in relation to person under 16
(1) A preventative detention order cannot be applied for,
or made, in relation to a person who is under 16 years of age.
(2) If:
(a) a person is being detained under a preventative
detention order (or a purported preventative detention order);
and
(b) the police officer who is detaining the person is
satisfied on reasonable grounds the person is under 16 years of
age,
the officer must release the person, as soon as practicable,
from detention under the order.
21N. Multiple
preventative detention orders
(1) More than one preventative detention order may be made
in relation to the same terrorist act (whether or not against the same
person).
(2) A preventative detention order can be made against a
person to take effect on the expiration of detention under another preventative
detention order made against the person or an order for the person's detention
made under a corresponding law.
Note for section 21N
This Division does not authorise the extension of the period of an
order. However, an eligible Judge may make further orders for the same terrorist
act as long as the maximum period of detention under section 21K is not exceeded
in relation to the total period of the orders.
21P. Review
of preventative detention order by Supreme Court
(1) As soon as practicable after a person (the "subject")
is first taken into custody, or is first in detention, under a preventative
detention order, an authorised police officer must apply to the Supreme Court
for a review of the order.
(2) The Court in the review proceeding must not be
constituted by the eligible Judge who made the preventative detention
order.
(3) In the review proceeding:
(a) the subject is entitled to appear and give evidence,
call witnesses, examine and cross-examine witnesses, adduce material and make
submissions; but
(b) the subject's absence does not prevent the Court from
deciding the application.
(4) In deciding the review, the Court may, by
order:
(a) confirm the preventative detention order;
or
(b) confirm the preventative detention order with the
variation of the period specified in the order as the period during which the
subject may be detained under it; or
(c) give directions about the making of further preventative
detention orders in relation to the subject; or
(d) if not satisfied as mentioned in
section 21G(1):
(i) revoke the preventative detention order and release the
subject from detention; or
(ii) if the subject has been released from detention –
declare the preventative detention order to have been void from its
making.
(5) Subject to any direction made by the Court in the
proceeding for the review of the preventative detention order, the police
officer detaining the subject may exercise powers and perform functions under
this Part to release the subject from detention during the course of the
proceeding.
21Q. Prohibited
contact order – person in relation to whom preventative detention order
being sought
(1) A police officer who applies to an eligible Judge for a
preventative detention order in relation to a person may also apply to the Judge
for a prohibited contact order under this section in relation to the person's
detention under the preventative detention order.
(2) The application must:
(a) be made by affidavit; and
(b) specify:
(i) the terms of the order sought; and
(ii) the facts and other grounds on which the applicant
considers the order should be made.
(3) However, an application for a prohibited contact order
that is required urgently may be made by telephone, fax, email or other
electronic communication.
(4) If the Judge:
(a) makes the preventative detention order;
and
(b) is satisfied on reasonable grounds that making the
prohibited contact order will assist in achieving the purpose of the
preventative detention order,
the Judge may make a prohibited contact order under this
section that the person is not, while being detained under the preventative
detention order, to contact another person specified in the prohibited contact
order.
(5) The prohibited contact order must be in
writing.
(6) If the application is made under subsection
(3):
(a) the order must be sent to the applicant by fax, email or
other electronic communication; or
(b) the applicant must complete a form of a prohibited
contact order as directed by the Judge.
(7) The copy of the original order sent, or the form of the
order completed, under subsection (6) has the same force and effect as the
original order.
(8) The Judge may refuse to make a prohibited contact order
unless the applicant gives the Judge any further information the Judge requests
concerning the facts and other grounds on which the order is
sought.
21R. Prohibited
contact order – person in relation to whom preventative detention order in
force
(1) If a preventative detention order is in force in
relation to a person (the "subject"), an authorised police officer may apply to
an eligible Judge for a prohibited contact order under this section in relation
to the subject's detention under the preventative detention
order.
(2) The application must:
(a) be made by affidavit; and
(b) specify:
(i) the terms of the order sought; and
(ii) the facts and other grounds on which the applicant
considers the order should be made.
(3) However, an application for a prohibited contact order
that is required urgently may be made by telephone, fax, email or other
electronic communication.
(4) If the Judge is satisfied on reasonable grounds that
making the prohibited contact order will assist in achieving the purpose for
which the preventative detention order was made, the Judge may make a prohibited
contact order under this section that the person is not, while being detained
under the preventative detention order, to contact another person specified in
the prohibited contact order.
(5) The prohibited contact order must be in
writing.
(6) If the application is made under subsection
(3):
(a) the order must be sent to the applicant by fax, email or
other electronic communication; or
(b) the applicant must complete a form of a prohibited
contact order as directed by the Judge.
(7) The copy of the original order sent, or the form of the
order completed, under subsection (6) has the same force and effect as the
original order.
(8) The Judge may refuse to make a prohibited contact order
unless the applicant gives the Judge any further information the Judge requests
concerning the facts and other grounds on which the order is
sought.
21S. Application
by detainee for revocation or variation of preventative detention order or
prohibited contact order
(1) A person in relation to whom a preventative detention
order is in force (the "subject") may apply to the Supreme Court
for:
(a) if the order is a confirmed preventative detention order
– the revocation or variation of the order; or
(b) the revocation or variation of any prohibited contact
order in force in relation to the subject's detention under the preventative
detention order.
(2) If the Court is satisfied, because of new facts or
circumstances that have arisen since the Court reviewed the making of the
preventative detention order, it is appropriate that the order be revoked or
varied, the Court must, by order, revoke or vary the order.
(3) If the subject is being detained in a prison and the
preventative detention order is revoked or varied under subsection (2), the
police officer who is detaining the subject under the order must give a copy of
the order made under the subsection to the Director of Correctional Services as
soon as practicable after it is made.
(4) If:
(a) a prohibited contact order is in force in relation to
the subject's detention under a preventative detention order;
and
(b) either of the following apply:
(i) if the order is a confirmed preventative detention order
– the Court is satisfied, because of new facts or circumstances that have
arisen since the making of the prohibited contact order, it is appropriate that
the prohibited contact order be revoked or varied;
(ii) otherwise – the Court is satisfied it is
appropriate that the prohibited contact order be revoked or
varied,
the Court must, by order, revoke or vary the prohibited
contact order.
(5) If the subject is being detained in a prison and a
prohibited contact order in force in relation to the subject is revoked or
varied under subsection (4), the police officer who is detaining the subject
under the preventative detention order must give a copy of the order made under
the subsection to the Director of Correctional Services as soon as practicable
after it is made.
21T. Application
by police officer for revocation or variation of preventative detention order or
prohibited contact order
(1) If:
(a) a preventative detention order is in force in relation
to a person; and
(b) the nominated police officer in relation to the order is
satisfied the grounds on which the order was made have ceased to
exist,
the officer must apply to the Supreme Court for the
revocation of the order.
(2) If:
(a) a preventative detention order is in force in relation
to a person; and
(b) the nominated police officer in relation to the order is
satisfied, because of new facts or circumstances that have arisen since the
making of the order, it is appropriate that the order be
varied,
the officer must apply to the Court for a variation of the
order.
(3) If:
(a) a preventative detention order is in force in relation
to a person; and
(b) the Court is satisfied, on application by a police
officer under subsection (1) or (2), it is appropriate that the order be revoked
or varied,
the Court must, by order, revoke or vary the
order.
(4) If the person in relation to whom a preventative
detention order is in force is being detained in a prison and the order is
revoked or varied under subsection (3), the applicant for the revocation or
variation must give a copy of the order made under the subsection to the
Director of Correctional Services as soon as practicable after it is
made.
(5) If:
(a) a prohibited contact order is in force in relation to a
person's detention under a preventative detention order; and
(b) the nominated police officer in relation to the
preventative detention order is satisfied, because of new facts or circumstances
that have arisen since the making of the prohibited contact order, it is
appropriate that the prohibited contact order be revoked or varied (including
that the grounds on which the order was made have ceased to
exist),
the officer must apply to the Court for the revocation or a
variation of the prohibited contact order.
(6) If:
(a) a prohibited contact order is in force in relation to a
person's detention under a preventative detention order; and
(b) the Court is satisfied, on application by a police
officer under subsection (5), it is appropriate that the prohibited contact
order be revoked or varied,
the Court must, by order, revoke or vary the prohibited
contact order.
(7) If the person in relation to whose detention under a
preventative detention order a prohibited contact order is in force is being
detained in a prison and the prohibited contact order is revoked or varied under
subsection (6), the applicant for the revocation or variation must give a copy
of the order made under the subsection to the Director of Correctional Services
as soon as practicable after it is made.
(8) A person in relation to whom a preventative detention
order is in force may make representations to the nominated police officer in
relation to the order with a view to having the order, or a prohibited contact
order that is in force in relation to the person's detention under the
preventative detention order, revoked or varied under this
section.
21U. Hearing
procedures for proceedings in relation to orders
(1) This section applies to the following proceedings
before the Supreme Court:
(a) the review of a preventative detention
order;
(b) an application for the revocation or variation of a
preventative detention order or prohibited contact order.
(2) The proceeding must be heard in the absence of the
public.
(3) For the proceeding, the Court may take into account any
evidence or information the Court considers credible or trustworthy in the
circumstances and, in that regard, is not bound by principles or rules governing
the admission of evidence.
(4) The Court may, in relation to the proceeding, make the
orders relating to the suppression of publication of the whole or any part of
the proceeding or of the evidence given in the proceeding, that in its opinion,
are necessary to secure the object of this Part.
(5) Despite subsection (4), the Court must, by order,
suppress publication of information likely to prejudice national
security.
(6) A person must not disclose information knowing the
disclosure contravenes an order under subsection (4) or (5).
Penalty: Imprisonment for 5 years.
Division
3 – Carrying out preventative detention orders
21V. Power
to detain person under preventative detention order
(1) While a preventative detention order is in force in
relation to a person:
(a) any police officer may take the person into custody;
and
(b) any police officer may detain the
person.
(2) A police officer has, for the purpose of taking a
person into custody under a preventative detention order or preventing the
person escaping from that custody, the same powers and functions as the officer
would have if the officer were taking the person into custody in relation to the
commission of an offence or preventing the person escaping from that
custody.
(3) Subsection (2) does not apply to the extent to which
particular powers and functions are provided for in this Part.
21W. Senior
police officer with functions under preventative detention
order
If:
(a) a number of police officers are detaining, or involved
in the detention of, a person under a preventative detention order at a
particular time; and
(b) a function (other than a power) is expressed in this
Part to be imposed on a police officer detaining the person,
the function is imposed at that time on the most senior of
those officers.
21X. Nominated
police officer to oversee order
(1) If a preventative detention order is made in relation
to a person, a senior police officer must nominate a police officer of or above
the rank of superintendent to oversee the exercise of functions under or in
relation to the order.
(2) The nominated police officer must be someone who was
not involved in the making of the application for the preventative detention
order.
(3) The nominated police officer must:
(a) oversee the exercise of functions under the preventative
detention order; and
(b) consider any representations made under subsection (4)
in relation to any of the matters mentioned in
subsection (5).
(4) The representations may be made to the nominated police
officer by any of the following persons:
(a) the person being detained under the preventative
detention order;
(b) the Ombudsman or officer in charge of the Ethical and
Professional Standards Command;
(c) a lawyer acting for that person in relation to the
order;
(d) a person with whom that person has contact under section
21ZL.
(5) The matters are:
(a) the exercise of powers under, and the performance of
duties in relation to, the preventative detention order; and
(b) without limiting paragraph (a), compliance with section
21T in relation to the preventative detention order; and
(c) the person's treatment in relation to the person's
detention under the preventative detention order.
21Y. Endorsement
of order with date and time person taken into custody
As soon as practicable after a person is first taken into
custody under a preventative detention order, the police officer who is
detaining the person under the order must endorse on the order the date on
which, and time at which, the person is first taken into custody under the
order.
21Z. Power
to require disclosure of identity
(1) This section applies if a police officer believes on
reasonable grounds a person may be able to assist the officer in executing a
preventative detention order.
(2) The police officer may request the person to give the
officer the following details:
(a) the person's name;
(b) the person's residential address;
(c) the person's date of birth.
(3) A person to whom a request is made under subsection (2)
must not, without reasonable excuse, contravene the request.
Penalty: 100 penalty units or imprisonment for 6
months.
(4) A person to whom a request is made under subsection (2)
must not, without reasonable excuse, give in response to the
request:
(a) a name that is false in a material particular;
or
(b) an address other than the full and correct address of
the person's ordinary place of residence.
Penalty: 100 penalty units or imprisonment for 6
months.
(5) A police officer may request a person to whom a request
is made under subsection (2) to give the officer proof of the person's
identity.
(6) A person to whom a request is made under subsection (5)
must not, without reasonable excuse, contravene the request.
Penalty: 100 penalty units or imprisonment for 6
months.
21ZA. Power
to enter premises and vehicles
If:
(a) a preventative detention order is in force in relation
to a person; and
(b) a police officer believes on reasonable grounds the
person is on any premises or in or on any vehicle,
the officer may enter the premises or vehicle at any time of
the day or night for the purpose of searching the premises or vehicle for the
person or taking the person into custody.
21ZB. Release
of person from preventative detention
(1) The police officer who is detaining a person under a
preventative detention order may release the person from detention under the
order.
Notes for subsection (1)
1. A person may be released, for example, so that the person may be
arrested and otherwise dealt with for a suspected offence. In these
circumstances, Part VII of the Police Administration Act applies.
2. Also, a person for whom a warrant under section 34D of the Australian
Security Intelligence Organisation Act 1979 (Cth) is in force may be released so
that the person may be dealt with under the warrant.
(2) The police officer who releases the person from
detention under the preventative detention order must give the person a written
statement that the person is being released from that
detention.
(3) The statement must be signed by the police
officer.
(4) To avoid doubt, a person may be taken to have been
released from detention under a preventative detention order even
if:
(a) the person is informed that he or she is being released
from detention under the order; and
(b) the person is taken into custody on some other basis
immediately after the person is informed that he or she is being released from
detention under the order.
(5) To avoid doubt, a person is taken not to be detained
under a preventative detention order during a period during which the person is
released from detention under the order.
Note for subsection (5)
During this period, the provisions of this Part that apply to a person
who is being detained under a preventative detention order (for example, the
provisions dealing with the people the person may contact) do not apply to the
person.
(6) To avoid doubt:
(a) the release of a person under subsection (1) from
detention under the preventative detention order does not extend the period for
which the order remains in force; and
(b) a person released under subsection (1) from detention
under a preventative detention order may again be taken into custody and
detained under the order at any time while the order remains in force in
relation to the person.
21ZC. Arrangement
for detainee to be held in prison
(1) A police officer who is detaining a person (the
"detainee") under a preventative detention order may arrange, with the Director
of Correctional Services, for the detainee to be detained under the order at a
prison.
(2) If an arrangement is made under
subsection (1):
(a) the police officer making the arrangement must give the
person in charge of the prison written notice of the arrangement, a copy of the
preventative detention order and any prohibited contact order in force in
relation to the detainee's detention; and
(b) the preventative detention order is taken to authorise
the person in charge of the prison to detain the detainee at the prison while
the order is in force in relation to the detainee; and
(c) section 21ZG applies in relation to the detainee's
detention under the preventative detention order at the prison as
if:
(i) the person in charge of that prison; or
(ii) any other person involved in the detainee's detention
at that prison,
were a person exercising authority under the order or
implementing or enforcing the order; and
(d) the officer who made the arrangement (or another police
officer designated by a senior police officer) is taken, while the detainee is
detained at the prison, to be the police officer detaining the detainee for this
Part; and
(e) a police officer may, for exercising functions under the
order, enter at any time the prison and visit the detainee in the
prison.
(3) A regulation may exclude the detainee from the
application of any of the provisions of, or provisions made under, the
Prisons (Correctional Services) Act, Juvenile Justice Act or
Youth Justice Act.
(4) An arrangement under subsection (1) does not prevent
the detainee being returned to the custody of a police officer.
(5) Subsections (6) and (7) apply if the detainee is under
18 years of age.
(6) A reference in this section to a prison is, in relation
to the detainee, a reference to a detention centre within the meaning of the
Juvenile Justice Act or Youth Justice Act and the reference to the
Director of Correctional Services is a reference to the superintendent of the
centre.
(7) During any period the detainee is not detained under an
arrangement in force under this section, a police officer must not detain the
detainee together with persons who are 18 years or older unless the nominated
police officer considers there are exceptional circumstances and approves that
detention.
Division
4 – Informing person detained about preventative detention
orders
21ZD. Effect
of preventative detention order to be explained to person
detained
(1) As soon as practicable after a person is first taken
into custody under a preventative detention order, the police officer who is
detaining the person under the order must inform the person of the matters
covered by subsection (2).
Penalty: Imprisonment for 2 years.
(2) The matters covered by this subsection
are:
(a) the fact that the preventative detention order has been
made in relation to the person; and
(b) the period during which the person may be detained under
the order; and
(c) the requirement for there to be a review of the order by
the Supreme Court and the fact that the person will have an opportunity to be
heard on the review; and
(d) the people the person is entitled to contact under
sections 21ZI and 21ZL and the restrictions that apply to that contact;
and
(e) any right the person has to complain to the Ombudsman or
officer in charge of the Ethical and Professional Standards Command in relation
to:
(i) the exercise of powers under, and the performance of
duties in relation to, the preventative detention order; and
(ii) without limiting subparagraph (i), compliance with
section 21T in relation to the preventative detention order;
and
(iii) the person's treatment in relation to the person's
detention under the preventative detention order; and
(f) the fact that the person may seek from a court a remedy
relating to the order, a prohibition contact order or the treatment of the
person in relation to the person's detention under the order;
and
(g) the person's entitlement under section 21ZK to contact a
lawyer; and
(h) the name and work telephone number of the nominated
police officer to oversee the exercise of functions under the
order.
21ZE. Compliance
with obligation to inform
(1) Section 21ZD(1) does not apply if the actions of the
person being detained under the preventative detention order make it
impracticable for the police officer to comply with the
section.
(2) The police officer detaining the person under the
preventative detention order complies with section 21ZD(1) if the officer
informs the person in substance of the matters covered by section 21ZD(2) (even
if this is not done in language of a precise or technical
nature).
(3) The police officer who is detaining the person under
the preventative detention order must arrange for the assistance of an
interpreter in complying with section 21ZD(1) if the officer has reasonable
grounds to believe the person is unable, because of inadequate knowledge of the
English language or a disability, to communicate with reasonable fluency in that
language.
(4) Without limiting subsection (3), the assistance of the
interpreter may be provided by telephone.
(5) The lawfulness of a person's detention under a
preventative detention order is not affected by a failure to comply with
subsection (3) or section 21ZD(1).
21ZF. Copy
of preventative detention order and summary of grounds
(1) As soon as practicable after a person is first taken
into custody under a preventative detention order, the police officer who is
detaining the person under the order must give the person:
(a) a copy of the order and any prohibited contact order in
force in relation to the person's detention; and
(b) a summary of the grounds on which the preventative
detention order or prohibited contact order is made.
(2) To avoid doubt, subsection (1)(b) does not require
information to be included in the summary if the disclosure of the information
is likely to prejudice national security.
(3) A police officer does not need to have a copy of the
order with him or her, or to produce a copy of the order to the person being
taken into custody, when the officer takes the person into
custody.
(4) A person who is being detained under a preventative
detention order may ask the police officer who is detaining the person under the
order to give a copy of the following to a lawyer acting for the person in
relation to the order:
(a) the order and any prohibited contact order in force in
relation to the person's detention;
(b) any summary given to the person under subsection
(1)(b).
(5) The police officer must make arrangements for a copy of
an order or summary to be given to the lawyer as soon as practicable after the
request is made.
(6) Without limiting subsection (5), the copy of an order
may be faxed or emailed to the lawyer.
(7) To avoid doubt, subsection (5) does not entitle the
lawyer to be given a copy of, or see, a document other than the preventative
detention order or prohibited contact order or any summary given under
subsection (1)(b).
(8) The police officer who gives:
(a) the person being detained under a preventative detention
order; or
(b) a lawyer acting for the person,
a copy of the order under this section must endorse on the
copy the date on which, and time at which, the person was first taken into
custody under the order.
(9) The lawfulness of a person's detention under a
preventative detention order is not affected by a failure to comply with this
section.
Division
5 – Treatment of person detained
21ZG. Humane
treatment of person being detained
(1) A person being taken into custody, or being detained,
under a preventative detention order:
(a) must be treated with humanity and with respect for human
dignity; and
(b) must not be subjected to cruel, inhuman or degrading
treatment,
by anyone exercising authority under the order or
implementing or enforcing the order.
(2) A person who contravenes subsection (1) is guilty of an
offence.
Penalty: Imprisonment for 2 years.
21ZH. Restriction
on contact with other people
Except as provided by this Division, while a person is
being detained under a preventative detention order, the
person:
(a) is not entitled to contact another person;
and
(b) may be prevented from contacting another
person.
Note for section 21ZH
A person's entitlement to contact other people under this Division is
subject to a prohibited contact order.
21ZI. Contacting
family members etc.
(1) The person being detained is entitled to contact
once:
(a) one of his or her family members; and
(b) if he or she:
(i) lives with another person and the other person is not a
family member of the person being detained; or
(ii) lives with other people and those other people are not
family members of the person being detained, the other person or one of those
other people; and
(c) if he or she is employed – his or her employer;
and
(d) if he or she employs people in a business – one of
the people he or she employs in the business; and
(e) if he or she engages in a business together with another
person or other people – the other person or one of those other people;
and
(f) if the police officer detaining the person being
detained agrees to the person contacting another person – the
person,
by telephone, fax or email but solely for the purposes of
letting the person contacted know that he or she is safe and is being
detained.
(2) To avoid doubt, the person being detained is entitled,
under subsection (1), to disclose:
(a) the fact that a preventative detention order has been
made in relation to the person; and
(b) the fact that the person is being detained;
and
(c) the period for which the person is being
detained.
(3) In this section:
"family member", of a person,
means:
(a) the person's spouse or de facto spouse;
or
(b) a parent, step-parent or grandparent of the person;
or
(c) a child, step-child or grandchild of the person;
or
(d) a brother, sister, step-brother or step-sister of the
person; or
(e) a guardian or carer of the person.
21ZJ. Contacting
Ombudsman and Ethical and Professional Standards
Command
The person being detained is entitled to contact the
Ombudsman or the officer in charge of the Ethical and Professional Standards
Command.
(1) The person being detained is entitled to contact a
lawyer but solely for the purpose of:
(a) obtaining advice from the lawyer about the person's
legal rights in relation to:
(i) the preventative detention order; or
(ii) a prohibited contact order in force in relation to the
person's detention; or
(iii) the treatment of the person in relation to the
person's detention under the order; or
(b) arranging for the lawyer to act for the person in
relation to, and instructing the lawyer in relation to, a proceeding in the
Supreme Court relating to:
(i) the review, revocation or variation of the preventative
detention order; or
(ii) the revocation or variation of a prohibited contact
order in relation to the person's detention; or
(c) arranging for the lawyer to act for the person in
relation to, and instructing the lawyer in relation to, a proceeding in a court
for a remedy relating to the treatment of the person in relation to the person's
detention under the order; or
(d) arranging for the lawyer to act for the person in
relation to, and instructing the lawyer in relation to, a complaint to the
Ombudsman or officer in charge of the Ethical and Professional Standards
Command in relation to:
(i) the exercise of powers under, and the performance of
duties in relation to, the preventative detention order; and
(ii) without limiting subparagraph (i), compliance with
section 21T in relation to the preventative detention order;
and
(iii) the person's treatment in relation to the person's
detention under the preventative detention order; or
(e) arranging for the lawyer to act for the person in
relation to an appearance, or hearing, before a court that is to take place
while the person is being detained under the order.
(2) The form of contact that the person being detained is
entitled to have with a lawyer under subsection (1) includes:
(a) being visited by the lawyer; and
(b) communicating with the lawyer by telephone, fax or
email.
(3) If:
(a) the person being detained asks to be allowed to contact
a particular lawyer under subsection (1); and
(b) either:
(i) the person is not entitled to contact that lawyer
because of a prohibited contact order; or
(ii) the person is not able to contact that
lawyer,
the police officer who is detaining the person must give the
person reasonable assistance to choose another lawyer for the person to contact
under subsection (1).
(4) If the police officer who is detaining a person under a
preventative detention order has reasonable grounds to believe:
(a) the person is unable, because of inadequate knowledge of
the English language or a disability, to communicate with reasonable fluency in
that language; and
(b) the person may have difficulties in choosing or
contacting a lawyer because of that inability,
the officer must give the person reasonable assistance
(including, if appropriate, by arranging for the assistance of an interpreter)
to choose and contact a lawyer under subsection (1).
(5) In recommending lawyers to the person being detained as
part of giving the person assistance under subsection (3), the police officer
who is detaining the person may give priority to lawyers who have been given a
security clearance at an appropriate level by the Attorney-General's Department
of the Commonwealth.
(6) Despite subsection (5) but subject to any prohibited
contact order, the person being detained is entitled under this section to
contact a lawyer who does not have a security clearance of the kind mentioned in
subsection (5).
21ZL. Special
contact rules for person under 18 or incapable of managing own
affairs
(1) This section applies if the person being detained under
a preventative detention order (the "detainee"):
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs.
(2) The detainee is entitled, while being detained under
the order, to have contact with:
(a) a parent or guardian of the detainee;
or
(b) another person who:
(i) is able to represent the detainee's interests;
and
(ii) is, as far as practicable in the circumstances,
acceptable to the detainee and to the police officer who is detaining the
detainee; and
(iii) is not a police officer; and
(iv) is not an AFP member or AFP employee within the meaning
of the Australian Federal Police Act 1979 (Cth); and
(v) is not a member (however described) of a police force of
a State or another Territory; and
(vi) is not an officer or employee of the Australian
Security Intelligence Organisation.
(3) To avoid doubt:
(a) if the detainee has 2 parents or 2 or more guardians,
the detainee is entitled, subject to any prohibited contact order, to have
contact under subsection (2) with each of those parents or guardians;
and
(b) the detainee is entitled to disclose the following to a
person with whom the detainee has contact under subsection (2):
(i) the fact that a preventative detention order has been
made in relation to the detainee;
(ii) the fact that the detainee is being
detained;
(iii) the period for which the detainee is being
detained.
(4) The form of contact that the detainee is entitled to
have with another person under subsection (2) includes:
(a) being visited by that other person; and
(b) communicating with that other person by telephone, fax
or email.
(5) The period for which the detainee is entitled to have
contact with another person each day under subsection (2) is:
(a) 2 hours; or
(b) the longer period specified in the preventative
detention order.
(6) Despite subsection (5), the police officer who is
detaining the detainee may permit the detainee to have contact with a person
under subsection (2) for a period that is longer than the period provided
for in subsection (5).
(7) If:
(a) the detainee has contact under subsection (2) with a
parent or guardian of the detainee; and
(b) a prohibited contact order is in force in relation to
another parent or guardian of the detainee,
the nominated police officer in relation to the preventative
detention order must inform the parent or guardian with whom the detainee has
had contact that the parent or guardian must not disclose to the other parent or
guardian information of the kind mentioned in
section 21ZO(3)(b).
Penalty for subsection (7): Imprisonment for
5 years.
21ZM. Monitoring
contact with certain persons
(1) The contact the person being detained has with another
person under section 21ZI, 21ZK or 21ZL may take place only if it is conducted
in a way that the contact, and the content and meaning of the communication that
takes place during the contact, can be effectively monitored by a police officer
exercising authority under the preventative detention order.
(2) The contact may take place in a language other than
English only if the content and meaning of the communication that takes place
during the contact can be effectively monitored with the assistance of an
interpreter.
(3) Without limiting subsection (2), the interpreter
mentioned in that subsection may be a police officer.
(4) If the person being detained indicates that he or she
wishes the contact to take place in a language other than English, the police
officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter
to be provided if it is reasonably practicable to do so during the period during
which the person is being detained; and
(b) if it is reasonably practicable to do so, arrange for
those services to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained under a preventative
detention order; and
(b) a lawyer,
for a purpose mentioned in section 21ZK is not admissible in
evidence against the person in any proceeding in a court.
21ZN. Entitlement
to contact subject to prohibited contact order
Sections 21ZI, 21ZK and 21ZL have effect subject to any
prohibited contact order made in relation to the person's
detention.
21ZO. Disclosure
offences
(1) A person (the "detainee") commits an offence
if:
(a) the detainee is being detained under a preventative
detention order; and
(b) the detainee discloses to another
person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained;
or
(iii) the place where the detainee is being detained;
or
(iv) the fact that a prohibited contact order has been made
in relation to the detainee's detention; and
(c) the disclosure occurs while the detainee is being
detained under the order; and
(d) the disclosure is not one that the detainee is entitled
to make under section 21ZI, 21ZJ, 21ZK or 21ZL.
Penalty: Imprisonment for 5 years.
(2) A person (the "lawyer") commits an offence
if:
(a) a person being detained under a preventative detention
order (the "detainee") contacts the lawyer under section 21ZK or a person with
whom the detainee has contact under section 21ZL contacts the lawyer as
mentioned in subsection (3)(e)(ii) of this section; and
(b) the lawyer discloses to another person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained;
or
(iii) the place where the detainee is being detained;
or
(iv) any information that the detainee or other person gives
the lawyer in the course of the contact; and
(c) the disclosure occurs while the detainee is being
detained under the order; and
(d) the disclosure is not made for the purposes
of:
(i) a proceeding in the Supreme Court for a remedy relating
to the preventative detention order, a prohibited contact order or the treatment
of the detainee in relation to the detainee's detention under the preventative
detention order; or
(ii) a complaint to the Ombudsman or Ethical and
Professional Standards Command in relation to the application for the
preventative detention order or a prohibited contact order or the treatment of
the detainee by a police officer in relation to the detainee's detention under
the preventative detention order; or
(iii) making representations to the nominated police officer
in relation to the preventative detention order, or another police officer
involved in the detainee's detention, about:
(A) the exercise of powers under the order or the
performance of functions in relation to the order; or
(B) the treatment of the detainee in relation to the
detainee's detention under the order.
Penalty: Imprisonment for 5 years.
(3) A person (the "parent/guardian") commits an offence
if:
(a) a person being detained under a preventative detention
order (the "detainee") has contact with the parent/guardian under
section 21ZL; and
(b) the parent/guardian discloses to another
person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained;
or
(iii) the place where the detainee is being detained;
or
(iv) any information that the detainee gives the
parent/guardian in the course of the contact; and
(c) the other person is not a person the detainee is
entitled to have contact with under section 21ZL; and
(d) the disclosure occurs while the detainee is being
detained under the order; and
(e) the disclosure is not made for the purposes
of:
(i) a complaint to the Ombudsman or Ethical and Professional
Standards Command in relation to the application for the preventative detention
order or a prohibited contact order or the treatment of the detainee by a police
officer in relation to the detainee's detention under the preventative detention
order; or
(ii) contacting a lawyer whom the detainee is entitled to
contact under section 21ZK for any purpose for which the detainee is entitled to
contact that lawyer under that section; or
(iii) making representations to the nominated police officer
in relation to the preventative detention order, or another police officer
involved in the detainee's detention, about:
(A) the exercise of powers under the order or the
performance of functions in relation to the order; or
(B) the treatment of the detainee in relation to the
detainee's detention under the order.
Penalty: Imprisonment for 5 years.
(4) To avoid doubt, a person does not contravene
subsection (2) or (3) merely by letting another person know that the
detainee is safe but is not able to be contacted for a specified
period.
(5) A person (the "parent/guardian") commits an offence
if:
(a) the parent/guardian is a parent or guardian of a person
who is being detained under a preventative detention order (the "detainee");
and
(b) the detainee has contact with the parent/guardian under
section 21ZL; and
(c) while the detainee is being detained under the order,
the parent/guardian intentionally discloses information of the kind mentioned in
subsection (3)(b) to another parent or guardian of the detainee (the "other
parent/guardian"); and
(d) when the disclosure is made, the detainee has not had
contact with the other parent/guardian under section 21ZL while being detained
under the order; and
(e) when the disclosure is made, the parent/guardian has
been informed under section 21ZL(7) by the nominated police officer in relation
to the order that the parent/guardian must not disclose information of that kind
to the other parent/guardian.
Penalty: Imprisonment for 5 years.
(6) If:
(a) a person (the "parent/guardian") is a parent or guardian
of a person being detained under a preventative detention order (the
"detainee"); and
(b) the parent/guardian informs the nominated police officer
in relation to the order that the parent/guardian proposes to disclose
information of the kind mentioned in subsection (3)(b) to another parent or
guardian of the detainee (the "other parent/guardian"),
that police officer may inform the parent/guardian that the
detainee is not entitled to contact the other parent/guardian under section
21ZL.
Note for subsection (6)
The parent/guardian may commit an offence against subsection (3) if the
other parent/guardian is a person the detainee is not entitled to have contact
with under section 21ZL and the parent/guardian does disclose information of
that kind to the other parent/guardian. This is because of the operation of
subsection (3)(c).
(7) A person (the "interpreter") commits an offence
if:
(a) the interpreter is an interpreter who assists in
monitoring the contact that a person being detained under a preventative
detention order (the "detainee") has with someone while the detainee is being
detained under the order; and
(b) the interpreter discloses to another
person:
(i) the fact that a preventative detention order has been
made in relation to the detainee; or
(ii) the fact that the detainee is being detained;
or
(iii) the place where the detainee is being detained;
or
(iv) any information that interpreter obtains in the course
of assisting in the monitoring of that contact; and
(c) the disclosure occurs while the detainee is being
detained under the order.
Penalty: Imprisonment for 5 years.
(8) A person (the "disclosure recipient") commits an
offence if:
(a) a person (the "earlier discloser") discloses to the
disclosure recipient:
(i) the fact that a preventative detention order has been
made in relation to a person; or
(ii) the fact that a person is being detained under a
preventative detention order; or
(iii) the place where the person is being detained;
or
(iv) any information that a person who is being detained
under a preventative detention order communicates to a person while the person
is being detained under the order; and
(b) the disclosure by the earlier discloser to the
disclosure recipient contravenes:
(i) subsection (1), (2), (3), (5) or (7);
or
(ii) this subsection; and
(c) the disclosure recipient discloses that information to
another person; and
(d) the disclosure by the disclosure recipient occurs while
the person mentioned in paragraph (a)(i), (ii) or (iii) is being
detained under the order; and
(e) the disclosure is not made to a person exercising
authority under the preventative detention order or implementing or enforcing
the order or with responsibility for the safety or well-being of the person
being detained under the order.
Penalty: Imprisonment for 5 years.
(9) A person (the "monitor") commits an offence
if:
(a) the monitor is:
(i) a police officer who monitors; or
(ii) an interpreter who assists in
monitoring,
contact that a person being detained under a preventative
detention order has with a lawyer under section 21ZK while the detainee is being
detained under the order; and
(b) information is communicated in the course of that
contact; and
(c) the information is communicated for one of the purposes
mentioned in section 21ZK; and
(d) the monitor discloses the information to another
person.
Penalty: Imprisonment for 5 years.
21ZP. Questioning
of person prohibited while person is detained
(1) A police officer must not question a person while the
person is being detained under a preventative detention order except for the
purposes of:
(a) determining whether the person is the person specified
in the order; or
(b) ensuring the safety and well-being of the person being
detained; or
(c) allowing the officer to comply with a requirement of
this Part in relation to the person's detention under the
order.
Penalty: Imprisonment for 2 years.
(2) A police officer must not question a person while the
person is being detained under an order made under a corresponding
law.
Penalty: Imprisonment for 2 years.
Note for section 21ZP
This section will not apply to the person if the person is released from
detention under the order (even though the order may still be in force in
relation to the person).
21ZQ. Taking
identification material
(1) A police officer must not take identification material
from a person who is being detained under a preventative detention order other
than under this section.
Penalty: Imprisonment for 2 years.
(2) A police officer who is of or above the rank of
sergeant may take identification material from the person, or cause
identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the officer believes on reasonable grounds it is
necessary to do so for the purpose of confirming the person's identity as the
person specified in the order; or
(c) the officer believes on reasonable grounds it is
necessary to do so for documenting an illness or injury suffered by the person
while being detained under the order.
(3) Subject to this section, a police officer may only take
identification material (other than hand prints, fingerprints, footprints or toe
prints) from a person who:
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs,
if a magistrate orders that the material be
taken.
(4) The taking of identification material from a person
who:
(a) is under 18 years of age; or
(b) is incapable of managing his or her
affairs,
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if a parent or guardian is not acceptable to the person
– another appropriate person.
(5) Despite this section, identification material may be
taken from a person who is under 18 years of age and is capable of managing his
or her affairs if:
(a) subsections (6) and (7) are satisfied;
or
(b) subsection (6) or (7) is satisfied (but not both) and a
magistrate orders that the material be taken.
(6) For subsection (5), this subsection is satisfied if the
person agrees in writing to the taking of the material.
(7) For subsection (5), this subsection is satisfied if
either:
(a) a parent or guardian of the person; or
(b) if a parent or guardian is not acceptable to the person
– another appropriate person,
agrees in writing to the taking of the
material.
(8) Despite this section, identification material may be
taken from a person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her
affairs,
if the person consents in writing.
(9) In this section:
"appropriate person", in relation to another
person (the "subject") who is under 18 years of age, or incapable of managing
his or her affairs, means a person who:
(a) is capable of representing the subject's interests;
and
(b) as far as is practicable in the circumstances, is
acceptable to the subject and the police officer who is detaining the subject;
and
(c) is none of the following:
(i) a police officer;
(ii) an AFP member or AFP employee within the meaning of the
Australian Federal Police Act 1979 (Cth);
(iii) a member (however described) of a police force of
another State or Territory;
(iv) an officer or employee of the Australian Security
Intelligence Organisation.
21ZR. Use
of identification material
(1) This section applies if identification material is
taken under section 21ZQ from a person being detained under a preventative
detention order.
(2) The material may be used only for the purpose of
determining whether the person is the person specified in the
order.
(3) A person who uses identification material in
contravention of subsection (2) is guilty of an offence.
Penalty: Imprisonment for 2 years.
(4) If:
(a) a period of 12 months elapses after the identification
material is taken; and
(b) a proceeding has not been brought, or has been brought
and discontinued or completed, within the period in relation
to:
(i) the preventative detention order; or
(ii) the treatment of the person in relation to the person's
detention under the order,
the material must be destroyed as soon as practicable after
the end of the period.
Division
6 – Miscellaneous matters
21ZS. Annual
reports to be given to Police Minister
(1) The Commissioner must report annually on the exercise
of powers under this Part by police officers.
(2) The report must be given, within 4 months after each 30
June, to the Police Minister.
(3) Without limiting subsection (1), the report must
include the following matters relating to the year ending on 30
June:
(a) the number of preventative detention orders made during
the year and the number of applications for orders made during the
year;
(b) the number of applications for preventative detention
orders in relation to adults and the number in relation to persons under
18 years of age;
(c) the duration of each order made;
(d) a statement as to whether each order was made to prevent
a terrorist act or to preserve evidence;
(e) a statement as to whether a person was taken into
custody under each order and, if so, the period for which the person was
detained;
(f) a statement as to whether the person detained under an
order was principally detained in a prison, juvenile detention centre, police
facility or other place;
(g) the number of prohibited contact orders made during the
year and the number of applications for such orders, the duration of each order
and the number made in relation to adults and the number made in relation to
persons under 18 years of age;
(h) the number of applications for revocation or variation
of an order and the number of revocations and variations
granted;
(i) particulars of any complaints in relation to the
detention of a person under a preventative detention order made or referred
during the year to the Ombudsman and the outcome of complaints
made;
(j) a statement confirming the destruction of identification
material required to be destroyed under section 21ZR(4).
(3) The report may be combined with any other annual report
of the Police Force of the Territory.
(4) The Police Minister must table a copy of the report in
the Legislative Assembly within 7 sitting days after receiving
it.
21ZT. Law
relating to legal professional privilege not affected
To avoid doubt, this Part does not affect the law relating
to legal professional privilege.
21ZU. Legal
proceedings for remedy in relation to orders
(1) This Part does not limit legal proceedings that may be
brought in a court for a remedy in relation to:
(a) a preventative detention order; or
(b) a prohibited contact order; or
(c) the treatment of a person in relation to the person's
detention under a preventative detention order.
(2) If a person applies to a court for a remedy in relation
to:
(a) the application for, or the making of, a preventative
detention order or a prohibited contact order or the person's treatment in
connection with the person's detention under a preventative detention order;
and
(b) the person applies to the court for an order under this
subsection,
the court may order the Commissioner to give the court, and
the parties to the proceeding, the information that was put before the eligible
Judge when the application for the order was made.
(3) Subsection (2) does not require information to be given
to the court, or the parties to the proceeding, if the disclosure of the
information is likely to prejudice national security.
(1) A preventative detention order, or prohibited contact
order, that is in force at the end of 10 years after the day on which this Part
commences ceases to be in force at that time.
(2) A preventative detention order, and prohibited contact
order, cannot be applied for, or made, after the end of 10 years after the day
on which this Part commences.
Amendment of section 21 (Vehicles may be required to be moved
or prevented from entering area)
Section 21 (as in force immediately before the commencement
of section 14)
renumber as section 22
Repeal and substitution of section 22
Section 22 (as in force immediately before the commencement
of section 15)
repeal, substitute
22A. Movement
into and out of area may be restricted
(1) A police officer may restrict movement into or out of
an area if the police officer suspects on reasonable grounds
that:
(a) a terrorist act has occurred or is imminent;
and
(b) it is necessary or desirable in the interests of public
health or public safety that a person not enter or leave the
area.
(2) Movement into and out of an area is restricted under
subsection (1) if the area is cordoned off by a tape or other barrier
that:
(a) clearly indicates that a person is not permitted to
enter or to exit the area; and
(b) that extends across all usual entry points to, or exit
points from, the area.
(3) However, if the use of a tape or barrier is not
practical, the police officer may restrict movement into or out of the area
by:
(a) specifying the area to be restricted by coordinates or
other description; and
(b) taking all reasonable steps to notify members of the
public within the area and its vicinity that movement into or out of the area is
restricted.
(4) A person must not, without reasonable excuse, enter or
leave the area unless directed to do so by a police officer.
Penalty: 200 penalty units or imprisonment for 12
months.
(5) A person must not, without reasonable excuse, tamper
with or remove a tape or other barrier used to cordon off an area under
subsection (2).
Penalty: 200 penalty units or imprisonment for 12
months.
New Part 3A
After section 27
insert
Part
3A – Covert search warrants
Division
1 – Preliminary matters
(1) In this Part, unless the contrary intention
appears:
"adjoining place" means a place that adjoins or provides
access to a subject place;
"authorised police officer" means a police
officer:
(a) mentioned in section 27B(1); or
(b) authorised under section 27B(2);
"place" means premises or a vehicle;
"special warrant" means a warrant mentioned in section
27F;
"subject place", for a warrant or application for a warrant,
means the place the subject of the warrant or application.
(2) In this Part, a reference to the search of a place
includes a reference to the search for information that may be derived from, or
anything in, on or attached to the place.
Division
2 – Authorisations to apply for covert search
warrants
27B. Who
may apply for covert search warrant
(1) A police officer with the rank of or above Assistant
Commissioner is authorised to apply for a covert search warrant for a
place.
(2) A police officer mentioned in subsection (1) may
authorise another police officer to apply for a covert search warrant for a
place.
27C. Form
of authorisation
(1) An authorisation given under section 27B(2) must be in
writing.
(2) However, if it is not practicable to issue the
authorisation in writing because of an urgent need, the authorisation may be
given orally.
(3) An authorisation given orally must be put in writing as
soon as practicable after it is given.
Division
3 – Applications for, and issue of, covert search
warrants
27D. Power
to apply for covert search warrant
An authorised police officer may apply to a Judge for a
warrant (a "covert search warrant") to enter and search a place if the officer
suspects or believes on reasonable grounds:
(a) a terrorist act has been, is being, or is likely to be,
committed; and
(b) the entry to and search of the place will substantially
assist in responding to or preventing the terrorist act; and
(c) it is necessary for the entry and search of the place to
be conducted without the knowledge of any occupier of the
place.
27E. Application
for warrant in person
(1) An application for a covert search warrant must be
made:
(a) by the authorised police officer in person;
and
(b) by affidavit.
(2) A Judge must not issue a covert search warrant unless
the information given by the applicant in relation to the application is
verified before the Judge on oath or by affidavit.
(3) This section does not apply to a special
warrant.
(1) An authorised police officer may apply by telephone,
fax, email or other electronic communication for a covert search
warrant.
(2) A Judge must not issue a covert search warrant on an
application under this section unless the Judge is satisfied the warrant is
required urgently and it is not practicable for the application to be made in
person.
(3) An application must be made by fax if the facilities to
do so are readily available for that purpose.
(4) If it is not practicable for an application for a
covert search warrant under this section to be made directly to a Judge, the
application may be sent to the Judge by another police officer on behalf of the
applicant.
(5) A Judge who issues a covert search warrant on an
application under this section must:
(a) complete and sign the warrant; and
(b) give the warrant to the police officer who made the
application or inform the officer of the terms of the warrant and of the date
when it was signed.
(6) If a covert search warrant is issued on an application
made by telephone and the applicant was not given the warrant, the applicant
must:
(a) complete a form of warrant in the terms indicated by the
Judge under subsection (5); and
(b) write on it the name of the Judge and the date when the
warrant was signed; and
(c) give the warrant to the Judge within 2 business days
after the issue of the warrant.
(7) A form of covert search warrant so completed is taken
to be a warrant issued under this Division.
(8) A covert search warrant must be given by a Judge by fax
if the facilities to do so are readily available, and the copy produced is taken
to be the original warrant.
27G. Information
in application for warrant
(1) A Judge must not issue a covert search warrant unless
the application for the warrant includes the following
information:
(a) the full name, rank and registered number of the
applicant;
(b) the address or other description of the subject
place;
(c) particulars of the grounds on which the application is
based;
(d) the name of the following persons:
(i) any person believed to be knowingly concerned in the
commission of the terrorist act for which the application is
made;
(ii) if no such person is an occupier of the subject place
– any occupier (if known) of the place;
(e) if it is proposed that an adjoining place be entered for
the purposes of entering the subject place – the address or other
description of the adjoining place and particulars of the grounds on which entry
to the adjoining place is required;
(f) the powers proposed to be exercised on entry to the
subject place;
(g) a description of the kinds of things proposed to be
searched for, seized, placed in substitution for a seized thing, copied,
photographed, recorded, operated, printed or tested;
(h) if power is sought to remove anything from the subject
place and replace it with a substitute:
(i) a description of the thing; and
(ii) the reasons why the power is needed;
(i) if power is sought to re-enter the subject place to
return anything removed from, or to retrieve anything substituted in, the place
when first entered under the warrant:
(i) a description of the thing; and
(ii) the reasons why the power is needed;
(j) if a previous application for the same warrant was
refused – details of the refusal and any additional information provided
as required by section 27K;
(k) details of any covert search warrant that has previously
been issued for the subject place;
(l) any other information required by
regulation.
(2) The applicant must give (either orally or in writing)
the further information the Judge requires concerning the grounds on which the
warrant is being sought.
27H. Determining
application for covert search warrant
(1) A Judge to whom an application for a covert search
warrant is made may, if satisfied there are reasonable grounds for doing so,
issue a covert search warrant.
(2) A Judge, when determining whether there are reasonable
grounds to issue a covert search warrant, must consider (but is not limited to
considering) the following matters:
(a) the reliability of the information on which the
application is based, including the nature of the source of the
information;
(b) whether there is a connection between the terrorist act
for which the application has been made and the kinds of things that are
proposed to be searched for, seized, placed in substitution for a seized thing,
copied, photographed, recorded, operated, printed or tested;
(c) the nature and gravity of the terrorist
act;
(d) the extent to which the exercise of powers under the
warrant would assist in the prevention of, or response to, the terrorist
act;
(e) alternative means of obtaining the information sought to
be obtained;
(f) the extent to which the privacy of a person who is not
believed to be knowingly concerned in the commission of the terrorist act is
likely to be affected if the warrant is issued;
(g) if it is proposed that an adjoining place be entered for
the purposes of entering the subject place, whether it is reasonably necessary
to:
(i) enable access to the subject place; or
(ii) avoid compromising the investigation of the terrorist
act;
(h) whether any conditions should be imposed by the Judge in
relation to the execution of the warrant.
27J. Record
of determination by Judge
(1) A Judge who determines an application for a covert
search warrant must record all relevant particulars of the grounds the Judge has
relied on to justify the issue of the warrant or refusal to issue the
warrant.
(2) A regulation may provide for any of the
following:
(a) the keeping of records relating to the issue and
execution of covert search warrants;
(b) the inspection of the records;
(c) any other matter relating to the
records.
(3) Any matter that might disclose the name or residential
address of a person must not be recorded under this section if the Judge is
satisfied to do so might jeopardise the safety of any person.
27K. Further
application for warrant after refusal
If an application by a police officer for a covert search
warrant is refused by a Judge, the officer (or any other police officer who is
aware of the application) may not make a further application for the same
warrant to that or any other Judge unless the further application provides
additional information that justifies the making of the further
application.
27L. Contents
of covert search warrant
A covert search warrant must state the following
matters:
(a) the full name, rank and registered number of the
applicant;
(b) the address or other description of the subject
place;
(c) the name of the following persons:
(i) any person believed to be knowingly concerned in the
commission of the terrorist act for which the warrant is
issued;
(ii) if no such person is an occupier of the subject place
– any occupier (if known) of that place;
(d) a description of the kinds of things that may be
searched for, seized, placed in substitution for a seized thing, copied,
photographed, recorded, operated, printed or tested;
(e) if the warrant authorises the re-entry of the subject
place to return anything removed from, or to retrieve anything substituted in,
the place when it is first entered under the warrant – a description of
the thing;
(f) the date and time the warrant is
issued;
(g) the date the warrant expires (being a date not more than
30 days after the date the warrant is issued);
(h) any conditions imposed in relation to the execution of
the warrant;
(i) any other matter required by
regulation.
Division
4 – Execution of covert search warrants and provisions applying after
warrants executed
Subdivision
1 – Preliminary matters
(1) In this Division:
"serious indictable offence" means an indictable offence
punishable by imprisonment for life or for a term of 5 years or
more.
(2) A reference in this Division to a relevant thing
(including electronic equipment and information) found by a police officer is a
reference to a thing the officer has reasonable grounds to suspect or believe
will substantially assist in responding to or preventing a terrorist
act.
(3) For this Division, a thing is connected with a serious
indictable offence only if it is:
(a) a thing with respect to which there are reasonable
grounds for suspecting or believing the offence has been, is being, or will be
committed; or
(b) a thing that there are reasonable grounds for suspecting
or believing will provide evidence of the commission or intended commission of
the offence; or
(c) a thing that there are reasonable grounds for suspecting
or believing has been, is being, or is intended to be used, in relation to the
offence.
Subdivision
2 – Powers exercisable under covert search
warrants
27N. Powers
automatically conferred by covert search warrant
A covert search warrant authorises the police officer named
in the
warrant:
(a) to enter, without any occupier's knowledge, the subject
place; and
(b) to impersonate another person for the purposes of
executing the warrant; and
(c) to use the force that is reasonably necessary for the
purposes of entering and searching the subject place; and
(d) to search the subject place for any kind of thing or
class of thing described in the warrant; and
(e) to break open any receptacle in or on the subject place
for the purposes of that search if it is reasonably necessary to do so;
and
(f) to seize and detain any other thing found in the course
of executing the warrant and that is connected with a serious indictable
offence.
27P. Powers
expressly conferred by covert search warrant
In addition to the powers mentioned in section 27N, if it
expressly so authorises, a covert search warrant authorises the police officer
named in the warrant:
(a) to enter an adjoining place specified in the warrant,
using the force that is reasonably necessary, for the purposes of entering the
subject place; and
(b) to seize and detain a thing of a kind described in the
warrant and any relevant thing found in the course of executing the warrant;
and
(c) to place a thing of a kind described in the warrant on
the subject place in substitution for a thing seized under paragraph (b);
and
(d) to copy, photograph or otherwise record a thing of a
kind described in the warrant and any relevant thing found in the course of
executing the warrant; and
(e) to operate any electronic equipment of a kind described
in the warrant and any relevant electronic equipment found in the course of
executing the warrant; and
(f) to print, copy or otherwise record from the equipment
information of a kind described in the warrant to be printed, copied or recorded
and any relevant information found in the course of executing the warrant;
and
(g) to test a thing of that kind and any relevant thing
found in the course of executing the warrant.
(1) If it expressly so authorises, a covert search warrant
authorises the police officer to re-enter the place to return anything removed
from, or to retrieve anything substituted in, the place when it was first
entered under the warrant.
(2) If a covert search warrant authorises the re-entry of
the subject place under subsection (1):
(a) the place may be re-entered only for the purpose of
returning a thing removed from, or to retrieve a thing substituted in, the place
when it was first entered under the warrant; and
(b) the re-entry must occur within:
(i) 7 days after the date on which the place was first
entered; or
(ii) a longer period authorised by a Judge before the end of
the 7 days; and
(c) for the purpose of re-entering the place and returning
or retrieving the thing, the police officer may exercise any of the powers under
section 27N, and any of the powers under section 27P expressly authorised by the
warrant, that are reasonably necessary; and
(d) despite section 27T, the warrant continues in effect
subject to this subsection.
27R. Power
to stop, detain and search etc.
(1) If a police officer reasonably believes it is necessary
to do so to protect the safety of any person, including the officer, who is in
or near the suspect place when a covert search warrant is being executed, the
warrant authorises the officer to exercise the following
powers:
(a) to stop and detain a person who is in the
place;
(b) to search the person;
(c) to order the person to leave the place or its
vicinity;
(d) to order a person not to enter a place or its
vicinity;
(e) to seize and retain any weapon or other thing in the
place that could endanger a person.
(2) For section 112(1) of the Criminal Code, a person
detained under subsection (1)(a) is in the lawful custody of the officer while
so detained.
Subdivision
3 – Execution and currency of covert search
warrant
27S. Use
of assistants to execute warrant
A police officer who is authorised under Subdivision 2 to
execute a covert search warrant may do so with the assistants the officer
considers necessary.
27T. Expiry
of covert search warrant
A covert search warrant ceases to have effect on the
earlier of the following:
(a) the expiry date stated in the warrant;
(b) if it is withdrawn by the Judge who issued it –
when it is withdrawn;
(c) when it is executed.
Subdivision
4 – Provisions applying after warrants executed
27U. Report
to Judge on execution of warrant
(1) The authorised police officer named in a covert search
warrant must give to the Judge who issued the warrant a written report that
includes the following information:
(a) the address or other description of the subject
place;
(b) whether or not the warrant was
executed;
(c) the other particulars prescribed by
regulation.
(2) If a covert search warrant was executed, the report
must also include the following information:
(a) the date on which the warrant was
executed;
(b) the name of the officer who executed the
warrant;
(c) the name of any person who assisted in the execution of
the warrant and the nature of the assistance provided;
(d) the name of:
(i) any person believed to be knowingly concerned in the
commission of the terrorist act for which the warrant was executed;
and
(ii) if no such person is an occupier of the place –
any occupier (if known) of the place at which the warrant was
executed;
(e) the powers that were exercised under the
warrant;
(f) the result, set out briefly, of the execution of the
warrant (including a brief description of anything seized, placed in
substitution for a seized thing, copied, photographed, recorded, operated,
printed or tested);
(g) if:
(i) under section 27P the covert search warrant expressly
authorises the copying, photographing, recording, operation, printing or testing
of a thing of a kind described in the warrant; and
(i) a thing was copied, photographed, recorded, operated,
printed or tested in the course of executing the warrant; and
(ii) the thing was not of a kind expressly authorised by
the warrant to be copied, photographed, recorded, operated, printed or
tested,
the particulars of the grounds on which the thing was
believed to be a relevant thing or connected with a serious indictable
offence;
(h) a description of anything tested or seized for the
purposes of testing and the type of information obtained (or proposed to be
obtained) by testing;
(i) whether or not the execution of the warrant assisted in
the prevention of, or response to, the terrorist act for which the warrant was
executed and, if so, how it assisted;
(j) whether or not the execution of the warrant assisted in
the prevention of, or response to, any other terrorist act or any serious
indictable offence and, if so, how it assisted.
(3) If a covert search warrant was not executed, the report
must also include the reasons, set out briefly, why the warrant was not
executed.
(4) The report must be given to the Judge:
(a) if a covert search warrant was executed – within
10 days after it was executed; or
(b) otherwise – within 10 days after:
(i) the expiry date specified in the warrant;
or
(ii) the date the warrant was withdrawn by the
Judge.
(5) If the place is re-entered for the purposes of
returning or retrieving a thing under section 27Q, a written report must also be
given to the Judge who issued a covert search warrant stating:
(a) the address or other description of the place;
and
(b) the date on which the place was re-entered;
and
(c) the name of any person who entered the place for the
purposes of the return or retrieval; and
(d) a brief description of the thing; and
(e) if the thing was not returned or retrieved – the
reasons why the thing was not returned or retrieved; and
(f) the other particulars prescribed by
regulation.
(6) The report must be given to the Judge within 10 days
after the
re-entry to the place for the purposes of
retrieving or returning the thing under section 27Q.
27V. Defects
in covert search warrants
A covert search warrant is not invalidated by any defect,
other than a defect that affects the substance of the warrant in a material
particular.
Division
5 – Miscellaneous matters
27W. Matters
to be dealt with in absence of public
An application under this Part and any other matter arising
under this Part that is dealt with by a Judge must be dealt with in the absence
of the public.
27X. False
or misleading information in applications or reports
(1) A police officer must not, in relation to an
application for a covert search warrant or a report, give information to a Judge
the officer knows is false or misleading in a material
particular.
Penalty: 100 penalty units or imprisonment for 2
years.
(2) This section applies to an application for a special
warrant as well as an application for a covert search warrant made in
person.
(3) This section applies whether or not the information
given is also verified on oath or affirmation or by affidavit.
27Y. No
publication or disclosure of information about covert search
warrants
(1) A person must not publish any confidential information
in relation to a covert search warrant except in accordance with the approval of
the Supreme Court.
Penalty: Imprisonment for 5 years.
(2) If, in any legal proceeding an issue arises relating to
the disclosure of confidential information and apart from this section a person
would be entitled to require another person to disclose the information, the
court may excuse the person from the requirement to disclose if
satisfied:
(a) disclosure would prejudice the prevention, investigation
or prosecution of a terrorist act or suspected terrorist act;
and
(b) the public interest in preserving secrecy or
confidentiality outweighs the public interest in disclosure.
(3) In this section:
"confidential information", in relation to a covert search
warrant, means any information about or derived from:
(a) an application for the warrant or proceeding on the
application; or
(b) a report given under section 27U;
"disclose", includes disclosure, whether by order, subpoena
or otherwise, by the:
(a) inspection, production or discovery of documents;
and
(b) giving of evidence; and
(c) answering of interrogatories; and
(d) provision of particulars.
27Z. Annual
reports to be given to Police Minister
(1) The Commissioner must report annually on the exercise
of powers under this Part by police officers.
(2) The report must be given, within 4 months after each 30
June, to the Police Minister.
(3) Without limiting subsection (1), the report must
include the following matters relating to the year ending on 30
June:
(a) the number of applications for covert search warrants
made under this Part and the number of those applications
granted;
(b) the number of applications for special warrants and the
number of those applications granted;
(c) the number of covert search warrants
executed;
(d) the number of covert search warrants under which any
things were seized;
(e) the number of covert search warrants under which any
things were placed in substitution for seized things;
(f) the number of covert search warrants under which any
things were returned or retrieved;
(g) the number of covert search warrants under which any
things were copied, photographed or otherwise recorded;
(h) the number of covert search warrants under which any
electronic equipment was operated by police officers;
(i) the number of covert search warrants under which
anything was tested;
(j) the number of arrests made in relation to a terrorist
act for which a covert search warrant was executed and the number of those
arrests that have led to the laying of charges in relation to the terrorist
act;
(k) the number of complaints made under any Act about
conduct relating to the execution of a covert search warrant by a police officer
and the number of those complaints that are, or have been, the subject of an
investigation under any Act;
(l) other matters requested by the Attorney-General or
Police Minister.
(4) The report may be combined with any other annual report
of the Police Force of the Territory.
(5) The Police Minister must table a copy of the report in
the Legislative Assembly within 7 sitting days after receiving
it.
Amendment of section 45 (Authorisation may constitute
reasonable grounds for suspicion)
Section 45(1)(b)
omit, substitute
(b) a terrorist act is likely to occur in the near future
if, at the time the suspicion is held, there is in force an authorisation given
on the grounds that a terrorist act is likely to occur in the
future.
Repeal and substitution of section 47
Section 47
repeal, substitute
The Police Minister must, within 5 years after the
commencement of the Terrorism (Emergency Powers) Amendment Act
2006:
(a) review the operation of this Act; and
(b) table a copy of the report of the review in the
Legislative Assembly.
____________________________
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