Division 2Division 2 Preventative detention orders
26D When preventative detention orders may be made
(1) Preventing terrorist acts occurring
A preventative detention order may be made against a person if:(a) there are reasonable grounds to suspect that the person:(i) will engage in a terrorist act, or(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act, or(iii) has done an act in preparation for, or planning, a terrorist act, and(b) making the order would substantially assist in preventing a terrorist act occurring, and(c) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring.Any such terrorist act must be imminent and, in any event, be expected to occur at some time in the next 14 days.
(2) Preserving evidence of terrorist acts that have occurred
A preventative detention order may also be made against a person if:(a) a terrorist act has occurred within the last 28 days, and(b) it is necessary to detain the person to preserve evidence in New South Wales or elsewhere of, or relating to, the terrorist act, and(c) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving any such evidence.Note. As a consequence of the operation of section 4A, it does not matter whether the location of the terrorist act is in New South Wales or elsewhere.
26E No preventative detention order in relation to person under 16 years of age
(1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.(2) If:(a) a person is being detained under a preventative detention order (or a purported such order), and(b) the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 16 years of age,the police officer must release the person, as soon as practicable, from detention under the order.(3) The person is to be released into the care of a parent or other appropriate person.
26F Who may apply for preventative detention orders
(1) A police officer may apply for a preventative detention order in relation to a person, but only if:(a) the police officer is satisfied of the requirements under section 26D for making the order, and(b) the police officer has obtained approval to make the application from:(i) the Commissioner of Police, or(ii) a Deputy Commissioner of Police, or(iii) an Assistant Commissioner of Police responsible for counter-terrorism operations.(2) The function of giving approval to the making of an application for an order cannot be delegated, but may be exercised by a police officer acting in a position referred to in subsection (1) (b).
26G Applications for preventative detention orders
(1) An application for a preventative detention order must:(a) subject to subsection (2), be in writing and sworn, and(b) set out the facts and other grounds on which the police officer considers the order should be made, and(c) specify the period for which the person is to be detained under the order and set out the facts and other grounds on which the police officer considers that the person should be detained for that period, and(d) set out the information (if any) that the applicant has about the person’s age, and(e) set out 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) that 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) that the applicant has about any control order (including any interim control order) made in relation to the person under Division 104 of the Criminal Code of the Commonwealth.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.
(2) An application for a preventative detention order that is required urgently may be made by telephone, fax, email or other electronic communication. In that case:(a) the Supreme Court may make an interim preventative detention order if satisfied it is not practicable for the applicant to appear before the Court to make the application, and(b) the terms of the interim order and related directions and other matters may be transmitted to the applicant by telephone, fax, email or other electronic communication, and(c) a written record relating to the application and interim order is to be made as soon as practicable by or at the direction of the Court.(3) The Supreme Court may refuse to make a preventative detention order unless the police officer applying for the order gives the Court any further information that the Court requests concerning the facts and other grounds on which the police officer considers the order should be made.
26H Supreme Court may make interim preventative detention order
(1) The Supreme Court may, pending the hearing and final determination of an application for a preventative detention order, make an interim preventative detention order.(2) The Supreme Court is to make an interim order if:(a) the application and any further information supplied by the applicant satisfy the requirements under section 26D for making the order, and(b) the Court cannot proceed immediately to the hearing and determination of the application.(3) The interim order may be made in the absence of, and without notice to, the person in relation to whom the order is to be made (or his or her representative).(4) If the Supreme Court makes an interim order it must:(a) fix the date on which, and the time at which, the hearing of the application is to be resumed, and(b) give directions for notice to be given to the person subject to detention under the interim order (or his or her representative) of the date and time fixed for the resumed hearing.(5) The Supreme Court may further adjourn the resumed hearing and continue the interim order in force until the adjourned hearing.Note. Section 26L prevents an interim order remaining in force for more than 48 hours after the person was first taken into custody under the interim order.
26I Supreme Court may make preventative detention order after hearing
(1) After hearing an application for a preventative detention order, the Supreme Court is to:(a) grant the application and make a preventative detention order, or(b) refuse the application.(2) The Supreme Court may make a preventative detention order only if satisfied of the requirements under section 26D for making the order.(3) The following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Supreme Court in connection with the hearing of an application for a preventative detention order (other than an interim order):(a) the applicant for the order or any other police officer,(b) the person in relation to whom the order is to be made,(c) one or more representatives of the applicant or person.(4) Subsection (3) does not otherwise limit the power of the Supreme Court to control proceedings in relation to the application for the order.(5) The Supreme Court may determine the application in the absence of the person in relation to whom the order is to be made (or his or her representative) if satisfied that the person was properly notified of the proceedings.
26J Terms of preventative detention orders
(1) A preventative detention order must set out:(a) the name of the person authorised to be detained under the order, and(b) the period for which the person is authorised to be detained (not exceeding the period provided by this Part), 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 (not exceeding 48 hours after the order is made), and(e) a summary of the grounds on which the order is made.(2) To avoid doubt, subsection (1) (e) does not require information to be included in a summary if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth).
26K Maximum period of detention and multiple preventative detention orders
(1) In this section:related order, in relation to a person, means an interim preventative detention order, another preventative detention order or an order under a corresponding law that is made against the person.
(2) The maximum period for which a person may be detained under a preventative detention order (other than an interim order) is 14 days. That maximum period is reduced by any period of actual detention under a related order against the person in relation to the same terrorist act.Note. Under section 26L an interim order expires 48 hours after the person is first taken into custody under the order if the application for the order has not been heard and finally determined by that time.(3) Despite subsection (2), 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 to be reduced by any period for which the person is detained under a preventative detention order or related order made on the basis of preventing a terrorist act.(4) Subject to subsection (5), more than one preventative detention order may be made in relation to the same terrorist act (whether or not against the same person).(5) Not more than one interim preventative detention order may be made against the same person in relation to the same terrorist act. This subsection does not prevent:(a) an extension of an interim order under section 26H (5), or(b) the making of another interim order following a further application for an order.(6) A preventative detention order can be made against a person to take effect on the expiration of detention under a related order against the person.Note. This Division does not authorise the extension of the period of an order. However, if the initial order does not authorise detention for the maximum period of detention in respect of the same terrorist act that is authorised by this section, further orders may be applied for and made (so long as that maximum period is not exceeded in respect of the total period of those orders).(7) For the purposes of this section:(a) 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, and(b) a terrorist act that is expected to occur at a particular time does not cease to be the same terrorist act merely because of:(i) a change in the persons expected to carry out the act at that time, or(ii) a change in how or where the act is expected to be carried out at that time.
26L Duration of preventative detention order
(1) An interim preventative detention order ceases to have effect if the Supreme Court has not heard and determined the application in respect of which the interim order was made within 48 hours after the person was first taken into custody under the interim order.(2) A preventative detention order (other than an interim order) ceases to have effect on the expiration of the period for which the person may be detained under the order in accordance with this Part.(3) A preventative detention order ceases to have effect if the person has not been taken into custody under the order within the time that the order authorises the person to be taken into custody.(4) Despite anything to the contrary in this section, a preventative detention order ceases to have effect if it is revoked under section 26M.
26M Revocation of preventative detention orders
(1) A preventative detention order may be revoked by the Supreme Court on application made by the person in relation to whom the order was made or on application by a police officer.(2) An application for the revocation of a preventative detention order must be made by a police officer detaining the person if the police officer is satisfied that the grounds on which the order was made have ceased to exist.(3) An application made by a person in relation to whom a preventative detention order (other than an interim order) was made is to set out information on which the person relies in making the application, being information that was not provided to the Supreme Court when the order was made.(4) If the Supreme Court rejects an application for revocation, it may give such directions as it considers appropriate with respect to any further application for revocation of the order. Any such further application is to set out new information on which the person relies in making the further application.
(1) A police officer who applies to the Supreme Court for a preventative detention order in relation to a person (the subject) may also apply for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.(2) If a preventative detention order is in force in relation to the subject, a police officer may apply to the Supreme Court for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.(3) The application must be in writing and sworn, and set out:(a) the terms of the order sought, and(b) the facts and other grounds on which the police officer considers that the order should be made.(4) If the Supreme Court is satisfied that making a prohibited contact order is reasonably necessary to achieve the purposes of the preventative detention order, the Court may make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact a person specified in the prohibited contact order.(5) An application for a prohibited contact order that is required urgently may be made by telephone, fax, email or other electronic communication. In that case:(a) the Supreme Court may make the order if satisfied it is not practicable for the applicant to appear before the Court to make the application, and(b) the terms of the order may be transmitted to the applicant by telephone, fax, email or other electronic communication, and(c) a written record relating to the application and order is to be made as soon as practicable by or at the direction of the Court.(6) A prohibited contact order may be revoked by the Supreme Court, on application made by the person in relation to whom the relevant preventative detention order relates or on application by a police officer.(7) An application for the revocation of a prohibited contact order must be made by a police officer detaining the person under the relevant preventative detention order if the police officer is satisfied that the grounds on which the prohibited contact order was made have ceased to exist.(8) The Supreme Court may refuse to make a prohibited contact order unless the police officer applying for the order gives the Court any further information that the Court requires concerning the facts and other grounds on which the police officer considers the order should be made.
(1) This section applies to proceedings before the Supreme Court in connection with an application for the making or revocation of a preventative detention order or prohibited contact order.(2) For the purposes of any such proceedings, the Supreme Court may take into account any evidence or information that 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.
26P Closure of Court and restriction on publication of proceedings
(1) This section applies to proceedings before the Supreme Court in connection with an application for the making or revocation of a preventative detention order or prohibited contact order.(2) Any such proceedings must be heard in the absence of the public.(3) The Supreme Court may, in connection with any such proceedings, make such orders relating to the suppression of publication of the whole or any part of the proceedings or of the evidence given in the proceedings as, in its opinion, are necessary to secure the object of this Part.(4) A person must not disclose information knowing that the disclosure contravenes an order under subsection (3).Maximum penalty: Imprisonment for 5 years.
26PA Supreme Court may order provision of legal aid
(1) This section applies to proceedings before the Supreme Court in connection with an application for the making or revocation of a preventative detention order or prohibited contact order.(2) The Supreme Court may, if the Court is satisfied it is in the interests of justice to do so, order the Legal Aid Commission to provide legal aid in proceedings to which this section applies to:(a) a person in relation to whom a preventative detention order is being sought, or(b) a person who is subject to such an order.(3) If the Supreme Court makes an order under subsection (2), the police officer who is detaining the person must give the person reasonable assistance to enable the person to contact the Legal Aid Commission to obtain the legal aid.