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Contents (2002 - 115)
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Terrorism (Police Powers) Act 2002 No 115
Current version for 28 November 2018 to date (accessed 10 April 2020 at 10:21)
Part 2A Division 3
Division 3 Carrying out preventative detention orders
26Q   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 functions as the police officer would have if the police officer were taking the person into custody in connection with the commission of an offence or preventing the person escaping from that custody.
(3)  Subsection (2) does not apply to the extent to which particular functions are provided for in this Part.
26R   Nominated senior police officer to oversee order
(1)  If a preventative detention order is made in relation to a person, the Commissioner or a Deputy Commissioner of Police, or an Assistant Commissioner of Police responsible for counter-terrorism operations, must nominate a police officer of or above the rank of superintendent (the nominated senior police officer) to oversee the exercise of functions under or in relation to the order.
(2)  The nominated senior police officer must be someone who was not involved in the making of the application for the preventative detention order.
(3)  The nominated senior police officer must:
(a)  oversee the exercise of functions under the preventative detention order, and
(b)  without limiting paragraph (a), ensure compliance with the obligation under Division 2 of the police officer detaining the person under the preventative detention order to apply for the revocation of the order, or for the revocation of a related prohibited contact order, if the grounds on which the order was made have ceased to exist, and
(c)  consider any representations that are made under subsection (4) in relation to the above matters or to the treatment under the detention order of the detained person.
(4)  Any such representations may be made to the nominated senior police officer by any of the following persons:
(a)  the person being detained under the preventative detention order,
(b)  a lawyer acting for that person in relation to the order,
(c)  a person with whom that person has contact under section 26ZH.
26S   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.
26T   Power to require disclosure of identity
(1)  A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer believes on reasonable grounds that the person may be able to assist the officer in executing a preventative detention order.
(2)  A person who is so required to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty: 20 penalty units.
(3)  A person must not, without reasonable excuse, in response to any such requirement:
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address.
Maximum penalty: 20 penalty units.
Note.
 Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 sets out safeguards relating to the exercise of power under this section.
26U   Power to enter premises
(1)  If:
(a)  a preventative detention order is in force in relation to a person, and
(b)  a police officer believes on reasonable grounds that the person is on any premises,
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.
(2)  A police officer must not enter a dwelling house under this section at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:
(a)  it would not be practicable to take the person into custody, either at the dwelling house or elsewhere, at another time, or
(b)  it is necessary to do so in order to prevent a terrorist act or the concealment, loss or destruction of evidence of, or relating to, a terrorist act.
(3)  In this section:
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
premises includes vehicle.
26V   Power to search persons for seizable items
(1)  In this section:
seizable item means anything that:
(a)  would present a danger to a person, or
(b)  could be used to assist a person to escape from lawful custody, or
(c)  could be used to contact another person or to operate a device remotely, or
(d)  is evidence of, or relates to, a terrorist act.
(2)  A police officer may, at or soon after the time when a person is taken into custody under a preventative detention order, search the person and anything in the possession of the person in order to ascertain whether the person is carrying any seizable items.
(3)  A police officer is not authorised to search for evidence of, or relating to, a terrorist act, unless the police officer has reasonable cause to suspect the person is carrying such evidence.
(4)  The police officer may seize any seizable item found as a result of a search conducted under this section.
(5)  Division 4 of Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 extends to the search of a person conducted under this section. However, in addition to section 31 of that Act, a police officer may only strip search a person under this section if the police officer suspects on reasonable grounds that the person is the target of an authorisation within the meaning of Part 2.
26W   Release of person from preventative detention
(1)  The police officer who is detaining a person under a preventative detention order may release the person from detention under the order.
Note.
 A person may be released, for example, so that the person may be arrested and charged with an offence and otherwise dealt with in connection with the charge.
(1A)  The police officer who is detaining a person under a preventative detention order must release the person from detention under the order as soon as is practicable after the police officer is satisfied that the grounds on which the order was made have ceased to exist.
Note.
 A person detained under a preventative detention order may be detained under the order at a correctional centre under an arrangement with the Commissioner of Corrective Services under section 26X.
(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. The statement must be signed by the police officer.
(3)  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.
(4)  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.
 During this period, the provisions of this Part that apply to a person who is being detained under a preventative detention order (for example, those dealing with the people the person may contact) do not apply to the person.
(5)  To avoid doubt:
(a)  the release of the person under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order remains in force, 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.
Note.
 Paragraph (a)—this means that the time for which the person may be detained under the order continues to run while the person is released.
26X   Arrangement for detainee to be held in prison
(1)  A police officer who is detaining a person (the subject) under a preventative detention order may arrange, with the Commissioner of Corrective Services, for the subject to be detained under the order at a correctional centre.
(2)  If an arrangement is made under subsection (1):
(a)  the police officer making the arrangement is to provide the person in charge of the correctional centre with written notice of the arrangement, a copy of the preventative detention order and any prohibited contact order that is in force in relation to the subject’s detention, and
(b)  the preventative detention order is taken to authorise the person in charge of the correctional centre to detain the subject at the correctional centre while the order is in force in relation to the subject, and
(c)  section 26ZC (Humane treatment of person being detained) applies in relation to the subject’s detention under the order at the correctional centre as if:
(i)  the person in charge of that correctional centre, or
(ii)  any other person involved in the subject’s detention at that correctional centre,
were a person exercising authority under the order or implementing or enforcing the order, and
(d)  the police officer who made the arrangement (or another police officer designated by the Commissioner or a Deputy Commissioner of Police or by an Assistant Commissioner of Police responsible for counter-terrorism operations) is taken, while the subject is detained at the correctional centre, to be the police officer detaining the subject for the purposes of this Part, and
(e)  a police officer may, for the purposes of exercising functions under the order, enter at any time the correctional centre and visit the subject in the correctional centre.
(2A)  The provisions of or made under the Crimes (Administration of Sentences) Act 1999 or the Children (Detention Centres) Act 1987 (as the case requires) apply to the subject when detained under an arrangement in force under this section in the same way as they apply to an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) or a detainee (within the meaning of the Children (Detention Centres) Act 1987), except to the extent that any such provision:
(a)  is inconsistent with a requirement of this Part or the arrangement, or
(b)  entitles a person to visit the subject or entitles the subject to communicate with another person (unless this Part also confers the entitlement), or
(c)  is excluded under subsection (3).
(3)  The regulations may exclude the subject from the application of any of the provisions of or made under the Crimes (Administration of Sentences) Act 1999 or the Children (Detention Centres) Act 1987.
(4)  An arrangement under subsection (1) does not prevent the subject being returned to the custody of a police officer.
(5)  A reference in this section to a correctional centre is to be construed, in relation to a detainee under 18 years of age, as a reference to a juvenile detention centre or juvenile correctional centre (and in the case of a juvenile detention centre the reference to the Commissioner of Corrective Services is to be construed as a reference to the Secretary of the Department of Justice).
(6)  During any period that a subject under 18 years of age is not detained under an arrangement in force under this section, a police officer must not detain the subject together with persons who are 18 years or older unless the nominated senior police officer under section 26R considers that there are exceptional circumstances and approves of that detention.