Preventative detention orders
The police can detain people under preventative detention orders only:
- where there is a threat of a terrorist attack that is capable of being carried out, and could occur, within the next 14 days, and the order might help prevent it
- immediately after a terrorist act if it is likely vital evidence will be lost.
A person can be detained for a maximum of:
- 48 hours under Commonwealth law
- 14 days under state and territory laws
- 14 days under a combination of Commonwealth and state and territory regimes.
Australia's Commonwealth laws on preventative detention orders are found under Division 105 of the Criminal Code Act 1995. This department administers the Act.
Rights under a preventative detention order
A person detained under a preventative detention order has the right to:
- be treated humanely and not be subjected to cruel, inhuman or degrading treatment
- contact a lawyer
- contact family members and employers to let them know they are safe
- not be questioned
- have a copy of the preventative detention order, which contains a summary of the reasons for making the order
- an interpreter if they have difficulty with English.
Children under 16 years old cannot be detained. Someone at least 16 years old but under 18 can be detained but must be detained separately from adults. They can have a parent or guardian visit them while they are detained.
States and territories
States and territories have enacted their own legislation allowing for the detention of a person for up to 14 days.
- New South Wales: Part 2A of Terrorism (Police Powers) Act 2002
- Queensland: Terrorism (Preventative Detention) Act 2005
- South Australia: Terrorism (Preventative Detention) Act 2005
- Tasmania: Terrorism (Preventative Detention) Act 2005
- Victoria: Part 2A of Terrorism (Community Protection) Act 2003
- Western Australia: Terrorism (Preventative Detention) Act 2006
- Australian Capital Territory: Terrorism (Extraordinary Temporary Powers) Act 2006
- Northern Territory: Part 2B of Terrorism (Emergency Powers) Act
Control orders and preventative detention orders annual reports
The Home Affairs Minister, as the minister responsible for the AFP, is required by sections 104.29 and 105.47 of the Criminal Code to provide an annual report in respect of control orders and preventative detention orders made during the year.