Control orders and preventative detention orders
Control Orders
Division 104 of the Criminal Code sets out the control order regime.
Control orders are protective measures akin to domestic apprehended violence orders that allow controls to be placed on the movements and activities of people who pose a terrorist risk to the community.
An application for a control order can be initiated by the AFP but requires the consent of the Attorney-General.
The orders are issued by a court.
The legislation requires that each and every one of the obligations, prohibitions and restrictions to be imposed on a person by an order must be reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. When determining whether to impose each of the obligations, prohibitions and restrictions on the person, the court must take into account their impact on the person’s circumstances, including the person’s financial and personal circumstances. In addition there are a number of protective safeguards on the issuing of a control order:
- The request must provide an explanation as to why each of the obligations, prohibitions and restrictions should be imposed on the person.
- An interim control order can be made in the absence of the person who is the subject of the order to prevent tipping off.
- The court can list a confirmation hearing where the person who is subject to the order may attend the court and make representations on their behalf.
- The control order does not come into effect until the person is notified and must not last linger than 12 months.
- The person can apply for the order to be varied, revoked or declared void as soon as the person is notified that an order is confirmed.
- The person and their lawyer are able to obtain a copy of the order which contains the summary of the grounds for the order.
- Normal judicial review processes apply to decisions to issue or revoke control orders.
- Control orders will not apply to people under 16 and apply in a modified way to people between 16 and 18.
- Each year, the Attorney-General must report to Parliament on the operation of control orders.
Provisions for control orders will sunset after 10 years and will be reviewed by the Council of Australian Governments after five years.
Preventative Detention
Commonwealth laws
Division 105 of the Criminal Code sets out the Commonwealth regime for preventative detention.
In extremely rare situations, where there has been a terrorist act or where a terrorist act is imminent, a person may be preventatively detained for a maximum period of up to 48 hours, providing the following safeguards are met:
- There are reasonable grounds to suspect the person will engage in or prepare for terrorist acts and the preventative detention order would substantially assist in preventing this occurring.
- Questioning of the person in preventative detention is prohibited. However, a person may be questioned for up to 24 hours if they have been released from preventative detention to be questioned under the Crimes Act 1914 or periodically for up to 24 hours (or for 48 hours where interpreters are used) under the ASIO Act 1979.
- The person must be treated with humanity and dignity and not be subjected to cruel, inhuman or degrading treatment.
- Preventative detention will not apply to people under 16. Special rules apply for people between the ages of 16 and 18 and people incapable of managing their own affairs. These include contact with parents or guardians and detention separately from adults held under preventative detention laws, although there is flexibility to provide for exceptional circumstances, such as keeping together two family members where one is over 18 and the other is under 18.
- An opportunity to contact a lawyer as well as being entitled to contact a family member and employer solely for the purpose of letting them know they are safe but are not able to be contacted for the time being.
- Provision of an interpreter where the person has difficulty with English.
- Advising a detained person of their right to contact the Ombudsman. The Ombudsman is notified of the making of the order, given a copy of the initial preventative detention order and notified when the person is taken into custody.
Offences apply for breaching the above safeguards.
Provisions for preventative detention will sunset after 10 years and will be reviewed by the Council of Australian Governments after five years.
States and Territories
States and Territories have enacted the following legislation to allow for the detention of a person for up to 14 days:
NSW: Part 2A of Terrorism (Police Powers) Act 2002
QLD: Terrorism (Preventative Detention) Act 2005
SA: Terrorism (Preventative Detention) Act 2005
TAS: Terrorism (Preventative Detention) Act 2005
VIC: Terrorism (Community Protection) (Amendment) Act 2006
WA: Terrorism (Preventative Detention) Act 2005
ACT: Terrorism (Extraordinary Temporary Powers) Act 2006
NT: Part 2B of Terrorism (Emergency Powers) Act