Untitled document
Terrorism (Community Protection) (Amendment) Act 2006
Act No. 5/2006
table of provisions
Section Page
1.Purposes
2.Commencement
3.Principal Act
4.New Part 2A inserted in Principal Act
PART 2A—PREVENTATIVE DETENTION ORDERS
Division 1—Preliminary
13A.Object of Part
13B.Definitions
Division 2—Preventative Detention Orders
13C.Application for preventative detention order
13D.Form and content of application
13E.Preventative detention orders
13F.Nature of preventative detention order
13G.Duration of preventative detention orders
13H.When order starts and ceases to have effect
13I.Extension of preventative detention order
13J.No preventative detention order in relation to person under 16 years of age
13JA.Special assistance for person with inadequate
knowledge of English language or disability13K.Restrictions on multiple preventative detention orders
13KA.Basis for applying for, and making, prohibited contact order
13L.Prohibited contact order (person in relation to whom preventative detention order is being sought)
13M.Prohibited contact order (person in relation to whom preventative detention order is already in force)
13N.Application by detainee for revocation or variation of preventative detention order or prohibited contact
order13O.Application by police for revocation or variation of preventative detention order or prohibited contact
order
Division 3—Carrying out Preventative Detention Orders
13P.Power to detain person under preventative detention order
13Q.Endorsement of order with date and time person taken into custody or detained
13R.Requirement to provide name etc.
13S.Power to enter premises
13T.Power to conduct search
13U.Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth
13V.Release of person from preventative detention
13W.Arrangement for detainee to be held in prison
13WA.Arrangement for detainee to be held in juvenile justice facility
Division 4—Informing Person Detained about Preventative Detention Order
13X.Effect of preventative detention order to be explained
to person detained13Y.Person being detained to be informed of extension of preventative detention order
13Z.Compliance with obligations to inform
13ZA.Copy of preventative detention order
Division 5—Treatment of Person Detained
13ZB.Humane treatment of person being detained
13ZBA.Detention of persons under 18
13ZC.Restriction on contact with other people
13ZD.Contacting family members etc.
13ZE.Contacting Ombudsman etc.
13ZF.Contacting lawyer
13ZG.Monitoring contact under section 13ZD or 13ZF
13ZH. Special contact rules for person under 18 or incapable
of managing own affairs13ZI.Entitlement to contact subject to prohibited contact
order13ZJ.Disclosure offences
13ZK.Questioning of person prohibited while person is detained
13ZL.Taking identification material
13ZM.Use of identification material
13ZN.Offences of contravening safeguards
Division 6—Miscellaneous
13ZO.Standard of proof
13ZP.Nature of proceedings
13ZQ.Member of the force detaining person under a preventative detention order
13ZR.Annual report
13ZS.Ombudsman etc. functions and powers not affected
13ZT.Law relating to legal professional privilege not
affected13ZU.Legal proceedings in relation to orders
13ZV.Sunset provision
5.New Part 3A inserted in Principal Act
Part 3A—Special Police Powers
Division 1—Preliminary
21A.Definitions
Division 2—Authorisation to Exercise Special Powers
21B.Authorisation of special powers to protect persons attending events from a terrorist act
21C.Extension of authorisation under section 21B
21D.Authorisation of special powers to prevent, or reduce
the impact of, a terrorist act21E. Authorisation of special powers relating to the investigation of, or recovery from, a terrorist act
21F.Authorisation of special powers to protect essential services from a terrorist act
21G.Persons, vehicles or areas targeted by authorisation
21H.How authorisation may be given
21I.Duration of authorisation
21J.Interim authorisations not open to challenge
21K.Exercise of special powers by members of the force
21L.Power to give directions to public entities
21M.Annual report
Division 3—Powers
21N.Purposes for which special powers may be exercised
21O.Power to obtain disclosure of identity
21P.Power to search persons
21Q.Power to search vehicles
21R.Power to move vehicles
21S.Power to enter and search premises
21T.Cordon around target area
21U.Power to seize and detain things
21V.Use of force generally by members of the force
21W.Offence to obstruct or hinder search or other powers
21X.Supplying member of the force's details and other information
6.New Schedule 1 inserted in Principal Act
SCHEDULE 1—Conduct of Personal Searches under Part 3A
7.New section 4A inserted in Principal Act
4A.Extraterritoriality of terrorist act no barrier
8.Covert search warrants
9.Review
10.New section 39A inserted in Principal Act
39A.Supreme Court—limitation of jurisdiction
11.Expiry
12.Consequential amendment of Principal Act
13.Statute law revision
14.Amendment of Corrections Act 1986
15.Amendment of Children and Young Persons Act 1989
16.New sections 256D to 256J inserted in Children and Young Persons Act 1989
256D.Definitions
256E.Visitors required to comply with orders
256F.Visitors to give prescribed information
256G.Officer in charge may refuse or terminate visits for security reasons
256H.Search of visitors
256I.Search requirements
256J.Seizure
17.Amendment of Children, Youth and Families Act 2005
18.New Division 3 inserted in Part 5.8 of Children, Youth and Families Act 2005
Division 3—Visitors
488A.Definitions
488B.Visitors required to comply with orders
488C.Visitors to give prescribed information
488D.Officer in charge may refuse or terminate visits for security reasons
488E.Search of visitors
488F.Search requirements
488G.Seizure
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Endnotes
Terrorism (Community Protection) (Amendment) Act 2006
[Assented to 7 March 2006]
The Parliament of Victoria enacts as follows:
1.Purposes
The main purposes of this Act are—
(a)to amend the Terrorism (Community Protection) Act 2003—
(i)to provide for the making of preventative detention orders and the detention of persons subject to those orders; and
(ii)to give members of the police force special powers in connection with terrorist acts; and
(iii)to expand the circumstances in which covert search warrants may be issued; and
(iv)to provide for a review of the operation of the Act to be undertaken and completed by 30 June 2011;
(b)to amend the Corrections Act 1986 to provide for the legal custody of persons subject to preventative detention orders;
(c)to amend the Children and Young Persons Act 1989 and the Children, Youth and Families Act 2005 to provide for the searching of visitors to juvenile justice facilities and generally regulate visits to those facilities.
2.Commencement
(1)Subject to sub-section (2), this Act (other than sections 17 and 18) comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act (other than sections 17 and 18) does not come into operation before 9 March 2006, it comes into operation on that day.
(3)Sections 17 and 18 come into operation on the day on which section 478 of the Children, Youth and Families Act 2005 comes into operation.
3.Principal Act
In this Act, the Terrorism (Community Protection) Act 2003 is called the Principal Act.
4.New Part 2A inserted in Principal Act
After Part 2 of the Principal Act insert—
'PART 2A—PREVENTATIVE DETENTION ORDERS
Division 1—Preliminary
13A.Object of Part
The object of this Part is to allow a person to be taken into custody and detained for up to 14 days in order to—
(a)prevent an imminent terrorist act occurring; or
(b)preserve evidence of, or relating to, a recent terrorist act.
Note:Section 13ZK provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes.
13B.Definitions
(1)In this Part—
"AFP member" has the same meaning as in Part 5.3 of the Criminal Code of the Commonwealth;
"authorised member of the force" means a member of the force appointed by the Chief Commissioner of Police under sub-section (2);
"Commonwealth control order" has the same meaning as "control order" has in Part 5.3 of the Criminal Code of the Commonwealth;
"corresponding preventative detention law" means—
(a)Division 105 of the Criminal Code of the Commonwealth; or
(b)a law of another State or of a Territory, or particular provisions of a law of another State or of a Territory, that—
(i)corresponds or correspond to this Part; or
(ii)is or are declared by the regulations to correspond to this Part;
"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 video 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;
"interim preventative detention order" means an interim preventative detention order made by the Supreme Court under section 13E;
"juvenile justice facility" means a service established under section 249 of the Children and Young Persons Act 1989 or, on and from the commencement of section 478 of the Children, Youth and Families Act 2005, under that section;
"lawyer" means an Australian lawyer within the meaning of the Legal Profession Act 2004;
"police gaol" has the same meaning as in the Corrections Act 1986;
"prescribed authority" has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;
"preventative detention order" means an order made under section 13E, as varied under section 13N or 13O, and includes an interim preventative detention order;
"prison" has the same meaning as in the Corrections Act 1986;
"prohibited contact order" means an order made under section 13L or 13M, as varied under section 13N or 13O;
"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.
(2)The Chief Commissioner of Police may appoint in writing members of the force, or a class or classes of members of the force, to be authorised members of the force for the purpose of making applications under section 13C, 13I and 13M.
(3)Unless the context otherwise requires, a reference in this Part to a provision of this Act is, in relation to a person who is being detained under an order for the person's detention made under a corresponding preventative detention law, to be construed as a reference to the corresponding provision of that law.
Division 2—Preventative Detention Orders
13C.Application for preventative detention order
(1)An authorised member of the force (the applicant) may apply to the Supreme Court for a preventative detention order in relation to a person (the subject) if—
(a)the applicant is satisfied that—
(i)there are reasonable grounds to suspect that the subject—
(A)will engage in a terrorist act; or
(B)possesses or has under his or her control (whether solely or jointly with any other person) 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 subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in sub-paragraph (ii); or
(b)the applicant is satisfied that—
(i)a terrorist act has occurred within the last 28 days; and
(ii)it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and
(iii)detaining the subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in sub-paragraph (ii).
(2)A terrorist act referred to in sub-section (1)(a) must be one—
(a)that is imminent; and
(b)that is expected to occur, in any event, at some time in the next 14 days.
13D.Form and content of application
(1)An application under section 13C must—
(a)be made in writing; and
(b)set out the facts and other grounds on which the applicant considers that the preventative detention order should be made; and
(c)specify the period for which the applicant is seeking to have the person detained under the order and set out the facts and other grounds on which the applicant considers that the person should be detained for that period; and
(d)set out the information (if any) that the applicant has about the person's age and capacity to manage his or her affairs; and
(e)set out the following—
(i)the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(ii)the information (if any) that the applicant has about—
(A)the outcomes and particulars of all previous requests for Commonwealth control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;
(B)the outcomes and particulars of all previous applications for variations of Commonwealth control orders made in relation to the person;
(C)the outcomes of all previous applications for revocations of Commonwealth control orders made in relation to the person; and
(f)set out 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 preventative detention law; and
(g)set out a summary of the grounds on which the applicant considers that the order should be made.
(2)To avoid doubt, sub-section (1)(g) does not require information to be included in the 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).
(3)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 preventative detention order referred to in paragraph (a) was made.
Note:See section 13K(1).
(4)If—
(a)an order for a person's detention is made under a corresponding preventative detention 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 referred to in paragraph (a) was made.
Note:See section 13K(2).
(5)The information in the application must be sworn by the applicant.
Note:The information may be affirmed instead of sworn—see the definition of "sworn" in section 38 of the Interpretation of Legislation Act 1984.
(6)An application may only be made without notice of it being given to the person in relation to whom a preventative detention order is being sought if that person is not then being detained under an order for the person's detention made under a corresponding preventative detention law.
13E.Preventative detention orders
(1)The Supreme Court may, on an application under section 13C, make a preventative detention order in relation to a person if—
(a)satisfied on reasonable grounds that—
(i)the person—
(A)will engage in a terrorist act; or
(B)possesses or has under his or her control (whether solely or jointly with any other person) 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 he or she is to be detained under the order is reasonably necessary for the purpose referred to in sub-paragraph (ii); or
(b)satisfied on reasonable grounds that—
(i)a terrorist act has occurred within the last 28 days; and
(ii)it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and
(iii)detaining the person for the period for which he or she is to be detained under the order is reasonably necessary for the purpose referred to in sub-paragraph (ii).
(2)A terrorist act referred to in sub-section (1)(a) must be one—
(a)that is imminent; and
(b)that is expected to occur, in any event, at some time in the next 14 days.
(3)The Supreme Court may refuse to make a preventative detention order unless the authorised member of the force applying for it gives the Court any further information that it requests concerning the grounds on which the order is sought.
(4)If the application to the Supreme Court is made without notice of it being given to the person in relation to whom a preventative detention order is being sought, the Supreme Court may, if in its opinion it is desirable to do so, make an interim preventative detention order pending the hearing and final determination of the application.
Note:The maximum period during which a person may be detained under an interim order is 48 hours or until the final determination of the application, whichever is the later: see sub-section (6) and section 13G(2).
(5)If the Supreme Court makes an interim preventative detention order, it must—
(a)specify a day on which, and time at which, the hearing of the application is to be resumed; and
(b)direct the applicant to cause notice of the resumed hearing to be given to—
(i)the person in relation to whom the interim order is made; and
(ii)if the applicant is aware of the identity of a lawyer who acts for that person in relation to any matter, that lawyer.
(6)An interim preventative detention order that, but for this sub-section, would cease to have effect before the application is finally determined, continues to have effect, subject to section 13G(1), until the application is finally determined.
(7)On finally determining an application following the making of an interim preventative detention order, the Supreme Court may by order—
(a)confirm the order without variation or vary the period specified in the order as the period during which the person in relation to whom it is made may be detained under it or vary the order to include, or omit, a provision of a kind referred to in section 13F(6); or
Note:The period of detention in the confirmed order may be extended, or further extended, under section 13I.
(b)revoke the order if not satisfied as mentioned in sub-section (1).
(8)If the person in relation to whom the interim preventative detention order is made is being detained in a prison or juvenile justice facility, the applicant for that order must cause a copy of any order made under sub-section (7) to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
(9)On the hearing by the Supreme Court of an application under section 13C (including a resumed hearing referred to in sub-section (5))—
(a)the person in relation to whom a preventative detention order is being sought (including a person in relation to whom an interim preventative detention order is in force) is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions; but
(b)the absence of that person does not prevent the Supreme Court from determining, or finally determining, the application.
(10)If the person who is the subject of an application to the Supreme Court under section 13C is not legally represented on the hearing of the application (including a resumed hearing referred to in sub-section (5)), the Supreme Court may order Victoria Legal Aid to provide legal representation for that person on that hearing if satisfied that it is in the interests of justice to do so having regard to the financial circumstances of that person or any other circumstances.
(11)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under sub-section (10).
13F.Nature 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 he or she is already being detained under a preventative detention order, or an order for his or her detention made under a corresponding preventative detention 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 of time after the start.
(2)The order must be in writing.
(3)Subject to section 13G, the period of time specified in the order under sub-section (1)(b)(ii) must not exceed 14 days.
(4)A preventative detention order must set out—
(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 place or places where the person may be, or must not be, detained under the order or, if the person is under 18 years of age, the place or class of place where the person must be detained under the order; and
Note:See sub-section (8) for rules as to where a person under 18 years of age may be detained.
(d)the date on which, and the time at which, the order is made; and
(e)whether the person is allowed to have any further contact with a person under section 13ZD(4) and, if so—
(i)the person or persons with whom he or she may have contact;
(ii)the period for which he or she may have contact on any day and the number of days on which he or she may have such contact;
(iii)any other conditions applicable to the contact; and
(f)if applicable, particulars of the order for the person's detention made under a corresponding preventative detention law on the ceasing to have effect of which the order is to start to have effect; and
Note:See section 13H(1).
(g)if applicable, the date and time after which the person may not be taken into custody under the order; and
Note:See section 13H(2).
(h)a summary of the grounds on which the order is made.
(5)To avoid doubt, sub-section (4)(h) does not require information to be included in the 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).
(6)A preventative detention order may contain a provision directing that the contact that the person in relation to whom it is made has with a lawyer under section 13ZF must not be monitored in accordance with section 13ZG if the Supreme Court is satisfied that it is appropriate to give such a direction.
(7)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 provide that the period each day for which the person is entitled to have contact with another person under section 13ZH(2) is the period of more than 2 hours that is specified in the order.
(8)If the person in relation to whom the order is made is under 18 years of age, the order must provide that the person must be detained in a juvenile justice facility unless the Supreme Court is satisfied that it is reasonably necessary for the person to be detained at a place other than a juvenile justice facility having regard to—
(a)the person's age and vulnerability;
(b)the likely impact that detention in a place other than a juvenile justice facility will have on the person;
(c)the grounds on which the order is made;
(d)the risk posed by the person to—
(i)the national or international security of Australia; or
(ii)other persons detained in a juvenile justice facility; or
(iii)the good order and safe operation of a juvenile justice facility;
(e)the availability of a place in a juvenile justice facility for the person to be detained in compliance with the terms of the order;
(f)any other factor that the Supreme Court considers relevant.
(9)Nothing in a preventative detention order about the place or places where the person may be, must be, or must not be, detained under the order prevents the person being taken to another place or class of place and detained there in connection with the carrying out of an examination for, or the provision of, any necessary medical, dental, psychiatric, physiological or pharmaceutical services.
Note:Division 3 of Part 8 of the Corrections Act 1986 (as modified by section 13W(6) of this Act) provides for the issue of a custodial community permit to a person detained in a prison for a purpose relating to his or her health. Section 271 of the Children and Young Persons Act 1989 (as applied by section 13WA(5) of this Act) provides for medical services and operations in the case of a person detained in a juvenile justice facility.
(10)The senior police officer nominated under section 13P(4) in relation to the preventative detention order must—
(a)notify the Ombudsman under the Ombudsman Act 1973 and the Director, Police Integrity under Part IVA of the Police Regulation Act 1958 in writing of the making of the order; and
(b)give the Ombudsman and the Director, Police Integrity a copy of the order; and
(c)if the person in relation to whom the order is made is taken into custody under the order, notify the Ombudsman and the Director, Police Integrity in writing that the person has been taken into custody under the order.
13G.Duration of preventative detention orders
(1)Subject to sub-section (2), the maximum period (including that period, as extended, or further extended, under section 13I) that may be specified in a preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 14 days less any period during which the person is actually detained under an order for the person's detention made under a corresponding preventative detention law on the same basis.
(2)The maximum period that may be specified in an interim preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 48 hours.
Note:The order may continue to have effect after the 48 hours: see section 13E(6).
(3)To avoid doubt, for the purposes of sub-section (1) orders are made on the same basis if—
(a)in the case of orders made on the basis of preventing a terrorist act from occurring, they relate to the same terrorist act occurring within the same period; and
(b)in the case of orders made on the basis of preserving evidence of, or relating to, a terrorist act, they relate to the same terrorist act.
13H.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 preventative detention order so provides, on an order for the person's detention made under a corresponding preventative detention law ceasing to have effect; or
(b)in any other case, when it is made.
Note:When the order starts to have effect it authorises the person to be taken into custody, if necessary (see section 13F(1)(a)). The period for which the person may be detained under the order only starts to run when the person is first taken into custody or detained under the order (see section 13F(1)(b)).
(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 sub-section (2), it ceases to have effect when whichever of the following first occurs—
(a)the end of—
(i)the period specified in the order as the period during which the person may be detained under the order; or
(ii)if that period is extended or further extended under section 13I—that period as extended or further extended;
(b)the revocation of the order under section 13E, 13N or 13O.
Note:The order does not cease to have effect merely because the person is released from detention under the order.
13I.Extension of preventative detention order
(1)If—
(a)a preventative detention order is made by the Supreme Court in relation to a person on the final determination of an application under section 13C; and
(b)the order is in force in relation to the person—
an authorised member of the force may apply to the Supreme Court for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.
(2)The application must—
(a)be made in writing; and
(b)set out the facts and other grounds on which the applicant considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and
Note:See section 13E(1) for the purpose for which a preventative detention order may be made.
(c)set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.
(3)The information in the application must be sworn by the applicant.
Note:The information may be affirmed instead of sworn—see the definition of "sworn" in section 38 of the Interpretation of Legislation Act 1984.
(4)The applicant must cause notice of the application to be given to the person in relation to whom the preventative detention order is in force.
(5)The person in relation to whom the preventative detention order is in force is entitled to appear on the hearing and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions. However, his or her absence does not prevent the Supreme Court from determining the application.
(6)The Supreme Court may, by order, extend, or further extend, the period for which the order is to be in force in relation to the person if it is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.
(7)The extension, or further extension, must not result in the preventative detention order specifying a period in excess of the maximum period permissible under section 13G(1).
(8)If the person in relation to whom the order is in force is being detained in a prison or juvenile justice facility and the Supreme Court makes an order under sub-section (6) that extends, or further extends, the period for which the order is to be in force, the applicant must cause a copy of the order under that sub-section to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
13J.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.
Note:See also section 13ZH and section 13ZL(4) to (10) for the special rules for people who are under 18 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 member of the force who is detaining the person is satisfied on reasonable grounds that the person is under 16 years of age—
the member must release the person or arrange in writing for his or her release, as soon as practicable, from detention under the order or purported order.
13JA.Special assistance for person with inadequate knowledge of English language or disability
If the member of the force who is detaining a person under a preventative detention order has reasonable grounds to believe that the person is unable because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—
(a)the member has an obligation under section 13Z(3) to arrange for the assistance of an interpreter in informing the person about—
(i)the effect of the order or any extension, or further extension, of the order; and
(ii)the person's rights in relation to the order; and
(b)the member has an obligation under section 13ZF(4) to give the person reasonable assistance to—
(i)choose a lawyer to act for the person in relation to the order; and
(ii)contact the lawyer.
13K.Restrictions on multiple preventative detention orders
(1)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 being detained under that order—
another preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the preventative detention order referred to in paragraph (a) was made.
(2)If—
(a)an order for a person's detention is made under a corresponding preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and
(b)the person is being detained under that order—
a preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the order referred to in paragraph (a) was made.
13KA.Basis for applying for, and making, prohibited contact order
(1)An authorised member of the force may apply for a prohibited contact order in relation to a person only if the member is satisfied as set out in sub-section (4).
(2)The Supreme Court may make a prohibited contact order in relation to a person's detention under a preventative detention order only if the Court is satisfied as set out in sub-section (4).
(3)The person in relation to whose detention the prohibited contact order is applied for, or made, is the subject for the purposes of this section.
(4)The authorised member of the force and the Supreme Court must be satisfied that making the prohibited contact order is reasonably necessary—
(a)to avoid a risk to action being taken to prevent a terrorist act occurring; or
(b)to prevent serious harm to a person; or
(c)to preserve evidence of, or relating to, a terrorist act; or
(d)to prevent interference with the gathering of information about—
(i)a terrorist act; or
(ii)the preparation for, or the planning of, a terrorist act; or
(e)to avoid a risk to—
(i)the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or
(ii)the taking into custody of a person in relation to whom the preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or
(iii)the service on a person of a Commonwealth control order.
(5)The Supreme Court may refuse to make a prohibited contact order unless the authorised member of the force applying for the order gives the Court any further information that it requests concerning the grounds on which the order is sought.
13L.Prohibited contact order (person in relation to whom preventative detention order is being sought)
(1)An authorised member of the force who applies 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)The application must set out—
(a)the terms of the order sought; and
(b)the facts and other grounds on which the applicant considers that the order should be made.
(3)The information in the application must be sworn by the applicant.
Note:The information may be affirmed instead of sworn—see the definition of "sworn" in section 38 of the Interpretation of Legislation Act 1984.
(4)The person in relation to whose detention an application for a prohibited contact order is made to the Supreme Court under this section is entitled to be given notice of the application and to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions in relation to it. However, his or her absence does not prevent the Supreme Court from determining the application.
(5)If the Supreme Court—
(a)makes the preventative detention order; and
(b)is satisfied as set out in section 13KA(4)—
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.
Note:See section 13E(1) for the purpose for which a preventative detention order may be made.
(6)The prohibited contact order must be in writing.
(7)The senior police officer nominated under section 13P(4) in relation to the preventative detention order must—
(a)notify the Ombudsman under the Ombudsman Act 1973 and the Director, Police Integrity under Part IVA of the Police Regulation Act 1958 in writing of the making of the prohibited contact order; and
(b)give the Ombudsman and the Director, Police Integrity a copy of the prohibited contact order.
13M.Prohibited contact order (person in relation to whom preventative detention order is already in force)
(1)If a preventative detention order is in force in relation to a person (the subject), an authorised member of the force 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.
(2)The application must set out—
(a)the terms of the order sought; and
(b)the facts and other grounds on which the applicant considers that the order should be made.
(3)The information in the application must be sworn by the applicant.
Note:The information may be affirmed instead of sworn—see the definition of "sworn" in section 38 of the Interpretation of Legislation Act 1984.
(4)The person in relation to whose detention under a preventative detention order an application for a prohibited contact order is made to the Supreme Court under this section is entitled to be given notice of the application and to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions in relation to it. However, his or her absence does not prevent the Supreme Court from determining the application.
(5)If the Supreme Court is satisfied as set out in section 13KA(4), 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.
Note:See section 13E(1) for the purpose for which a preventative detention order may be made.
(6)The prohibited contact order must be in writing.
(7)The senior police officer nominated under section 13P(4) in relation to the preventative detention order must—
(a)notify the Ombudsman under the Ombudsman Act 1973 and the Director, Police Integrity under Part IVA of the Police Regulation Act 1958 in writing of the making of the prohibited contact order; and
(b)give the Ombudsman and the Director, Police Integrity a copy of the prohibited contact order.
13N.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 made by the Supreme Court is in force may, with the leave of the Supreme Court, apply to the Supreme Court for—
(a)the revocation or a variation of the order; or
(b)the revocation or a variation of any prohibited contact order that is in force in relation to the person's detention under the preventative detention order.
(2)The Supreme Court must not grant leave to apply for the revocation or a variation of an order unless it is satisfied that new facts or circumstances have arisen since the making of the order.
(3)To avoid doubt, an application for leave to apply for the revocation or a variation of an order does not operate as a stay of the order.
(4)If—
(a)a preventative detention order made by the Supreme Court is in force in relation to a person; and
(b)the Supreme Court grants leave to that person to apply for the revocation or a variation of the order; and
(c)the Supreme Court is satisfied, on the application of that person, that because of new facts or circumstances that have arisen since the making of the order that it is appropriate that the order be revoked or varied—
the Court, by order, must revoke or vary the order.
(5)To avoid doubt, if the variation applied for relates to the place or places where the person may be, must be, or must not be, detained under the preventative detention order, the Supreme Court must have regard to the requirements of section 13F(8).
(6)If the person in relation to whom a preventative detention order made by the Supreme Court is in force is being detained in a prison or juvenile justice facility and the order is revoked or varied under sub-section (4), the member of the force who is detaining the person under the order must cause a copy of the order made under that sub-section to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
(7)If—
(a)a prohibited contact order is in force in relation to a person's detention under a preventative detention order made by the Supreme Court; and
(b)the Supreme Court grants leave to that person to apply for the revocation or a variation of the prohibited contact order; and
(c)the Supreme Court is satisfied, on the application of that person, that because of new facts or circumstances that have arisen since the making of the prohibited contact order that it is appropriate that the order be revoked or varied—
the Court, by order, must revoke or vary the order.
(8)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 or juvenile justice facility and the prohibited contact order is revoked or varied under sub-section (7), the member of the force who is detaining the person under the preventative detention order must cause a copy of the order made under that sub-section to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
13O.Application by police 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 member of the force who is detaining the person under the order is satisfied that the grounds on which the order was made have ceased to exist—
the member must apply for the revocation of the order to the Supreme Court.
(2)If—
(a)a preventative detention order is in force in relation to a person; and
(b)the member of the force who is detaining the person under the order is satisfied that, because of new facts or circumstances that have arisen since the making of the order, it is appropriate that the order be varied—
the member must apply for a variation of the order to the Supreme Court.
(3)If—
(a)a preventative detention order is in force in relation to a person; and
(b)the Supreme Court is satisfied, on application by a member of the force under sub-section (1) or (2), that it is appropriate that the order be revoked or varied—
the Court, by order, must revoke or vary the order.
(4)To avoid doubt, if the variation applied for relates to the place or places where the person may be, must be, or must not be, detained under the preventative detention order, the Supreme Court must have regard to the requirements of section 13F(8).
(5)If the person in relation to whom the preventative detention order is in force is being detained in a prison or juvenile justice facility and the order is revoked or varied under sub-section (3), the applicant for the revocation or variation must cause a copy of any order made under that sub-section to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
(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 member of the force who is detaining the person under the preventative detention order is satisfied that because of new facts or circumstances that have arisen since the making of the prohibited contact order that 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 member must apply for the revocation or a variation of the prohibited contact order to the Supreme Court.
(7)If—
(a)a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and
(b)the Supreme Court is satisfied, on application by a member of the force under sub-section (6), that it is appropriate that the prohibited contact order be revoked or varied—
the Court, by order, must revoke or vary the prohibited contact order.
(8)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 or juvenile justice facility and the prohibited contact order is revoked or varied under sub-section (7), the applicant for the revocation or variation must cause a copy of any order made under that sub-section to be given to the Secretary to the Department of Justice or the Secretary to the Department of Human Services (as the case requires) as soon as practicable after it is made.
(9)A person in relation to whom a preventative detention order is in force may make representations to the senior police officer nominated under section 13P(4) 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.
Division 3—Carrying out Preventative Detention Orders
13P.Power to detain person under preventative detention order
(1)While a preventative detention order is in effect in relation to a person—
(a)any member of the force may take the person into custody; and
(b)any member of the force may detain the person.
(2)A member of the force may, for the purpose of taking a person into custody under a preventative detention order or preventing him or her from escaping from detention under the order, exercise any of the powers that he or she would have if he or she were apprehending the person under a belief on reasonable grounds that the person had committed an indictable offence in Victoria or was escaping from legal custody.
(3)Sub-section (2) does not apply to the extent to which particular powers are provided for in this Part.
(4)If a preventative detention order is made in relation to a person, the Chief Commissioner of Police must nominate a member of the force of or above the rank of superintendent (the nominated senior police officer) to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.
(5)The nominated senior police officer must be someone who was not involved in the making of the application for the preventative detention order.
(6)The nominated senior police officer must—
(a)oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and
(b)without limiting paragraph (a), ensure that the provisions of section 13O (which deals with the revocation or variation of preventative detention orders and prohibited contact orders) are complied with in relation to the preventative detention order; and
(c)receive and consider any representations that are made under sub-section (7).
(7)The following persons—
(a)the person being detained under a preventative detention order;
(b)the Ombudsman under the Ombudsman Act 1973 or the Director, Police Integrity under the Police Regulation Act 1958;
(c)a lawyer acting for the person being detained under a preventative detention order in relation to the order or a prohibited contact order;
(d)a person with whom the person being detained under a preventative detention order has contact under section 13ZH(2);
(e)a person exercising authority under the order or implementing or enforcing the order (including a person taken to be such a person by force of section 13W(5)(b))—
are entitled to make representations to the nominated senior police officer in relation to—
(f)the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and
(g)without limiting paragraph (f), compliance with the provisions of section 13O (which deals with the revocation or variation of preventative detention orders and prohibited contact orders) in relation to the preventative detention order; and
(h)the person's treatment in connection with the person's detention under the preventative detention order.
13Q.Endorsement of order with date and time person taken into custody or detained
As soon as practicable after a person is first taken into custody or detained under a preventative detention order, the member of the force who is detaining the person under the order must endorse on the order—
(a)the date on which, and time at which, the person is first taken into custody or detained under the order; and
(b)particulars of where the person is being detained.
13R.Requirement to provide name etc.
(1)If a member of the force believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the member may be able to assist the member in executing a preventative detention order, the member may request the person to provide his or her name or address, or name and address, to the member.
(2)If a member of the force—
(a)makes a request of a person under sub-section (1); and
(b)informs the person of the reason for the request; and
(c)if the member is not in uniform—shows the person evidence that he or she is a member of the force; and
(d)complies with sub-section (4) if the person makes a request under that sub-section—
the person must not—
(e)refuse or fail to comply with the request; or
(f)give a name or address that is false in a material particular.
Penalty:20 penalty units.
(3)Sub-section (2) does not apply if the person has a reasonable excuse.
(4)If a member of the force who makes a request of a person under sub-section (1) is requested by the person to provide to the person any of the following—
(a)his or her name;
(b)the address of his or her place of duty;
(c)his or her identification number if he or she has an identification number;
(d)his or her rank if he or she does not have an identification number—
the member must not—
(e)refuse or fail to comply with the request; or
(f)give a name, address, number or rank that is false in a material particular.
Penalty:5 penalty units.
(5)Sub-section (4) does not apply if the member of the force has a reasonable excuse.
13S.Power to enter premises
(1)Subject to sub-section (2), if—
(a)a preventative detention order is in force in relation to a person; and
(b)a member of the force believes on reasonable grounds that the person is on any premises—
the member may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other members of the force 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 member of the force must not enter any premises that are used for residential purposes at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the member believes on reasonable grounds that—
(a)it would not be practicable to take the person into custody, either at those premises or elsewhere, at another time; or
(b)it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.
13T.Power to conduct search
(1)A member of the force who takes a person into custody under a preventative detention order, or who is present when the person is taken into custody, may, if the member suspects on reasonable grounds—
(a)that it is prudent to do so in order to ascertain whether the person is carrying any seizable items; or
(b)that the person is carrying—
(i)evidence of, or relating to, a terrorist act; or
(ii)a seizable item—
conduct a search of the person in the prescribed manner at, or soon after, the time when the person is taken into custody, and seize any such thing found as a result of the search.
(2)Any thing seized under sub-section (1) must be dealt with in accordance with the regulations.
13U.Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth
(1)This section applies if—
(a)a person is being detained under a preventative detention order; and
(b)a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth is in force in relation to the person; and
(c)a copy of the warrant is given to the member of the force who is detaining the person under the preventative detention order.
(2)The member of the force must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.
(3)Without limiting sub-section (2), the member of the force may, under section 13V, release, or arrange in writing for the release of, the person from detention under the preventative detention order so that the person may be dealt with in accordance with the warrant.
(4)To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be—
(a)questioned before a prescribed authority under the warrant; or
(b)detained under the warrant in connection with that questioning—
does not extend the period for which the preventative detention order remains in force in relation to the person.
Note:See section 13V(6)(a).
13V.Release of person from preventative detention
(1)The member of the force who is detaining a person under a preventative detention order may release the person from detention under the order or arrange in writing for his or her release from detention under the order.
Note:A person may be released, for example, so that the person may be arrested and otherwise dealt with under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958.
(2)The member of the force who releases, or arranges in writing for the release of, a person from detention under a 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 member.
(3)Sub-section (2) does not apply if the member of the force releases, or arranges in writing for the release of, the person from detention so that the person may be dealt with—
"visitor" means a person who visits a juvenile justice facility to have contact with a detainee.
488B.Visitors required to comply with orders
(1)The officer in charge of the juvenile justice facility may give to a visitor such orders as are necessary for the management and good order and security of the juvenile justice facility.
(2)A visitor must not disobey an order given under sub-section (1).
Penalty:5 penalty units.
488C.Visitors to give prescribed information
(1)The officer in charge of the juvenile justice facility may require any person who wishes to enter, or who has entered, a juvenile justice facility as a visitor to give the officer information as to—
(a)the purpose of the visit or intended visit;
(b)the person's identity, address, occupation and age;
(c)the person's relationship (if any) to any detainee the person wishes to visit.
(2)A person who wishes to enter or has entered a juvenile justice facility as a visitor must not knowingly give to the officer in charge of the facility or any other officer information that is false or misleading.
Penalty:5 penalty units.
(3)If, when asked, a person does not give the required information to the officer in charge of the juvenile justice facility or gives information to that officer or any other officer that is false or misleading, the officer in charge of the facility may—
(a)if the person has not entered the facility, by order prohibit the person from entering the facility; or
(b)if the person has entered the facility, order the person to leave the facility immediately.
(4)A person must not disobey an order under sub-section (3).
Penalty:5 penalty units.
(5)A person ordered to leave a juvenile justice facility under this section may only re-enter the facility with the permission of the officer in charge of the facility.
488D.Officer in charge may refuse or terminate visits for security reasons
(1)If the officer in charge of a juvenile justice facility believes on reasonable grounds that the security of the facility or the safety of a visitor is threatened, the officer may—
(a)by order prohibit a person from entering the facility as a visitor; or
(b)order the visitor to leave the facility immediately.
(2)Without limiting any other power of the Secretary under this Act, if the Secretary believes on reasonable grounds that the good order or security of juvenile justice facilities or the safety of detainees or visitors to juvenile justice facilities is threatened, the Secretary may by order prohibit a person from entering all or any juvenile justice facilities in Victoria as a visitor.
(3)An order under sub-section (2) in relation to a matter prevails over any order under sub-section (1) in relation to that matter.
(4)A person must not disobey an order under this section.
Penalty:5 penalty units.
488E.Search of visitors
(1)In this section—
"electronic metal detection device" means an electronic device that is capable of detecting the presence of metallic objects;
"frisk search" means—
(a)a search of a visitor conducted by quickly running the hands over the visitor's outer clothing or by passing an electronic metal detection device over or in close proximity to the visitor's outer clothing; and
(b)an examination of anything worn or carried by the visitor that is conveniently and voluntarily removed by the visitor, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing;
"ordinary search" means a search of a visitor or of things in the possession or under the control of a visitor that may include—
(a)requiring the visitor to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and
(b)an examination of those items;
"strip search" means a search of a visitor or of things in the possession or under the control of a visitor that may include—
(a)requiring the visitor to remove all of his or her clothes; and
(b)an examination of the visitor's body (but not of the visitor's body cavities) and of those clothes.
(2)The officer in charge of a juvenile justice facility may cause any person who wishes to enter the facility as a visitor to be asked to submit to a frisk search or an ordinary search to detect the presence of any article or thing which the officer carrying out the search believes on reasonable grounds jeopardises or is likely to jeopardise the security of the facility or the safety of persons in the facility (including any article or thing of a kind covered by section 501(1)(b)).
(3)The officer in charge of a juvenile justice facility may cause any person who is in the facility as a visitor to be asked to submit to a search of a kind referred to in sub-section (2) if he or she suspects on reasonable grounds that the visitor may have in his or her possession or under his or her control any article or thing of a kind referred to in that sub-section.
(4)In carrying out a frisk search, the officer carrying it out may, if he or she has asked the visitor to remove a coat or jacket, treat the visitor's outer clothing as being the visitor's outer clothing after the coat or jacket has been removed.
(5)A visitor must not be asked to submit to a strip search or a search of his or her body cavities.
(6)If, when asked, a person does not submit to a search authorised to be carried out under this section, an officer may prohibit the person from entering the juvenile justice facility or, if the person is in the juvenile justice facility, order the person to leave the facility immediately.
(7)A person must not disobey an order under sub-section (6).
Penalty:5 penalty units.
(8)An officer is not liable for injury or damage caused in carrying out searches in accordance with this section.
(9)The officer in charge of the juvenile justice facility may at any time make an order terminating a search under this section.
488F.Search requirements
(1)Before carrying out a search of a person under section 488E, the officer who is to carry out the search must—
(a)inform the person of his or her authority to carry out the search; and
(b)inform the person that he or she may refuse the search; and
(c)inform the person of the consequences of refusal.
(2)If a person consents to a search, the officer who is to carry out the search must—
(a)ask the person if he or she has in his or her possession an article or thing of a kind referred to in section 488E(2); and
(b)ask the person to produce any article or thing referred to in paragraph (a).
(3)An officer carrying out a search of a person under section 488E must do so—
(a)expeditiously; and
(b)with regard to the decency and self-respect of the person searched; and
(c)in compliance with any other prescribed requirement.
488G.Seizure
(1)In carrying out a search of a person under section 488E an officer may seize any article or thing of a kind referred to in section 488E(2) that is found in the person's possession or produced in response to a request under section 488F(2)(b).
(2)An officer who seizes any thing under sub-section (1) must immediately inform the officer in charge of the juvenile justice facility.
(3)The officer in charge of the juvenile justice facility must deal in accordance with the regulations with any article or thing seized under this section.'.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 16 November 2005
Legislative Council: 28 February 2006
The long title for the Bill for this Act was "to amend the Terrorism (Community Protection) Act 2003 to provide for the making of preventative detention orders and the detention of persons subject to those orders, to give members of the police force special powers in connection with terrorist acts and to expand the circumstances in which covert search warrants may be issued, to amend the Corrections Act 1986 to provide for the legal custody of persons subject to preventative detention orders, to amend the Children and Young Persons Act 1989 and the Children, Youth and Families Act 2005 to provide for the searching of visitors to juvenile justice facilities and generally regulate visits to those facilities and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 16 November 2005
Legislative Council: 28 February 2006
Absolute majorities:
Legislative Assembly: 9 February 2006
Legislative Council: 1 March 2006
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