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TERRORISM (PREVENTATIVE DETENTION) BILL

The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to authorise temporary detention in order to prevent the occurrence of a terrorist act or preserve evidence of, or relating to, a recent terrorist act; and for other purposes. Read a first time.

The Hon. M.J. ATKINSON: I move:

That this bill be now read a second time.

#41The Council of Australian Governments held a special meeting on counter-terrorism on 27 September 2005. The communique contained many policy announcements. Some of the most urgent of these were pledges to change the law on counter-terrorism. This part of the communique read:

COAG considered the evolving security environment in the context of the terrorist attacks in London in July 2005 and agreed that there is a clear case for Australia's counter-terrorism laws to be strength­ened. Leaders agreed that any strengthened counter-terrorism laws must be necessary, effective against terrorism and contain appropri­ate safeguards against abuse, such as parliamentary and judicial review, and be exercised in a way that is evidence-based, intelli­gence-led and proportionate. Leaders also agreed that COAG would review the new laws after five years and that they would sunset after 10 years.

COAG agreed to the Commonwealth Criminal Code being amended to enable Australia better to deter and prevent potential acts of terrorism and prosecute where these occur. This includes amendments to provide for control orders and preventative detention for up to 48 hours to restrict the movement of those who pose a terrorist risk to the public. The commonwealth's ability to proscribe terrorist organisations will be expanded to include organisations that advocate terrorism. Other improvements will be made, including improvements to offences about the financing of terrorism.

State and territory leaders agreed to enact legislation to give effect to measures which, because of constitutional constraints, the commonwealth could not enact, including preventative detention for up to 14 days and stop, question and search powers in areas such as transport hubs and places of mass gatherings. COAG noted that most states and territories already had or had announced stop, question and search powers.

Commitment to that part of the communique which deals with strengthening counter-terrorism laws obliges states and territories, including South Australia, to legislate in three general areas of criminal law and police powers. These areas are:

×special police powers to stop and search people, places and things;

×special police powers to search items carried or possessed by people at or entering places of mass gatherings and transport hubs; and

×preventative detention laws which `top up' commonwealth proposals where there is advice that the commonwealth (but not the states) lacks constitutional power to legislate.

The first two of those three commitments are in the Terrorism (Police Powers) Bill 2005, which we debated last night. This bill deals solely with the third of those pledges, preventative detention. I seek leave to incorporate the remainder of my second reading speech in Hansard without my reading it.

Leave granted.

The COAG communiqué lacked detail, for practical reasons. After the COAG agreement, Commonwealth, State and Territory officers went to work on draft provisions, exploring every detail of a possible draft Bill, the results of which the Prime Minister wanted before the Australian Parliament by November 1, 2005. South Australia had, as we all know, a very particular problem. With so few sitting weeks before the break and then an election looming, there was little legislative time and space in which to accomplish the pledge—unless it was to be delayed for months. As the world knows, a first draft was produced in early October. The world also knows it because Chief Minister Stanhope of the ACT put it on his website. The Commonwealth was not amused. But the complexity of the task ahead was revealed for all to see.

The pledge of the States and Territories was about only one part (albeit an important part) of the draft Bill. That part was the provisions on preventative detention. Put another way, perhaps to the comfort of all States and Territories, they were not called upon to enact State or Territory versions of control orders or sedition offences, nor the extension of the notions of terrorist act and terrorist organization. Those matters were left solely to the Commonwealth.

However, the Commonwealth determined to enact a regime of preventative detention modelled on that in the United Kingdom. The object of a preventative detention order is that a person is to be detained without charge, trial or any other official reason for a short period to either (a) prevent an imminent terrorist attack occurring or (b) preserve evidence of, or relating to, a recent terrorist attack. The Commonwealth had advice that it could not constitutionally legislate for the preventative detention of a person for more than 48 hours. The primary reason for this lay in the provisions of Chapter III of the Commonwealth Constitution and its interpretation by the High Court. Stripped of technicalities, the effect of the advice was that the High Court was likely to uphold preventative detention for the purposes outlined for a short period, but the longer the period the more likely that it would be held to be punitive rather than preventative—and hence unconstitutional as authorising the use of judicial power to punish without the benefit of judicial due process as required by Chapter III. Forty-eight hours was a rough guess of where the High Court might put the boundary. However, the Commonwealth wanted detention for 14 days to be possible (as was so in the United Kingdom) and hence the communiqué obliged the States and Territories to take up the slack. It is fair to say, in general terms, that the States do not suffer under quite the same constitutional strictures as the Commonwealth in this respect, although the extent to which this is so is conjectural and one result of this legislation may be a detailed exploration of that proposition. Constitutionally, though, this State Bill makes it quite clear that a Supreme Court Judge acts in his or her personal capacity only, not as a court, and always with that person's continuing consent to act.

This Bill, the Terrorism (Preventative Detention) Bill 2005, has been drafted with close reference to successive Commonwealth drafts of its Bill, called (to date) the Anti-Terrorism Bill 2005. The reasons for this are clear and compelling. Although it is true that the decision was made early in the process that the States and Territories should enact free-standing preventative-detention legislation that did not require Commonwealth detention as a pre-condition for State detention, that eventuality could not be ruled out. Indeed, it may be regarded as probable that Commonwealth detainees could well become State detainees. Not only would it make no sense at all for the States and Territories to have differently operating regimes, but it would also be nonsense for each State and the Commonwealth to have different regimes. That does not mean word-for-word transcrip­tion. The States require some legal changes—for example, com­plaints against police are made to the Ombudsman in the Common­wealth but to the Police Complaints Authority in South Australia. Judicial review processes are different, as are the jurisdictions of courts. Constitutional requirements are different (as already remarked), and so on. In addition, house-drafting styles differ and some Commonwealth refinements are unnecessary at a State level. Most important of all, though, was that it was necessary to bear steadily in mind that detention of this kind for 14 days was a different proposition than detention for a comparatively mere 48 hours at most.

The Premiers collectively fought for and won concessions to civil liberties in the State version of the Bill. These included, most importantly, judicial review, a sunset clause and reversal of the Commonwealth position on what became known as the "shoot to kill" power."

The Bill proposes the enactment of a free-standing State preventative-detention regime. The Bill contemplates that either a senior police officer or a Judge of the Supreme Court or District Court, a retired Judge of the Supreme Court or District Court, may make a preventative detention order but severely restricts the occasions on which a senior police officer may do so. The policy of the Bill is that, so far as is reasonably practical, all applications should be issued by an officer of judicial rank. That officer is an officer who acts in his or her personal capacity and by written consent and does not act as a Court or as a Judge of a Court. The occasions on which a police officer of or above the rank of Assistant Commissioner can make an order are if (a) there is an urgent need for the order; and (b) it is not reasonably practicable in the circum­stances to have the application for the order dealt with by a Judge. Even so, such a police issued order is limited to 24 hours.

There are two grounds on which an order can be made. These might helpfully be thought of as orders of a preventive type and orders of a reactive type. The first (preventive order) is that the issuing authority or officer:

(a) suspects on reasonable grounds 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) is satisfied on reasonable grounds that making the order would substantially assist in preventing a terrorist act occurring; and

(c) is satisfied on reasonable grounds that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose; and

in addition, the terrorist act must be one that is imminent; and must be one that is expected to occur, in any event, at some time in the next 14 days.

The second type (reactive order) can be issued if:

(a) a terrorist act has occurred within the last 28 days; and

(b) the issuing authority or officer is satisfied on reason­able grounds that it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

(c) the issuing authority or officer is satisfied on reason­able grounds that detaining the subject for the period for which the person is to be detained under the order is reason­ably necessary for the purpose referred to.

The order may be made for any period by a judicial officer up to a limit of 14 days. There are detailed provisions designed to ensure that orders cannot be piggy-backed onto other orders to by-pass this essential restriction. What is more, the 14 days includes any time spent in preventative detention under any corresponding Common­wealth or State preventative detention law. The 14 days cannot be extended by jurisdiction hopping either. There are close restrictions placed on the capacity of the detaining authorities to question the detainee. Obviously, it is not possible to prohibit all questioning. The question “would you like access to your rights?” would seem, in most cases at least, innocuous enough and there has to be scope for it. However, if police want to question (in the legal sense) a suspect who is being held in preventative detention, they can take that suspect out of preventative detention and treat that person as an ordinary suspect, in which case the ordinary rules apply. If that happens, investigative time elapsed counts as time in preventative detention. That includes time counting as investigative time under ASIO legislation. If the Commonwealth authorities want to invoke that power at any time, they can do so and time continues to run.

The Bill contains things called prohibited-contact orders. These are orders that are ancillary to preventative detention orders and are made in the same way. The effect of the order is that the person named in the order is prohibited from making contact with a person or persons named in the order for the currency of the order (which runs with the accompanying preventative detention order). The prohibited contact order cannot run for longer than the preventative detention order to which it relates. The purpose of such an order (and other disclosure offences, detailed below) is obvious. It is to prevent communication between a cabal that it has been rumbled.

After detailed negotiation with the Commonwealth, and other States and Territories, there has been agreement that the drastic nature of the consequences of a successful application under this statute should be leavened by as effective a provision for formal judicial oversight as possible. There is a general provision preserving existing general rights of action at law. In addition, a Part of the Bill has been included which requires that as soon as possible after a preventative detention order is made, the police officer detaining the subject must bring him or her before the Supreme Court acting in its full judicial capacity for review of the order. This review process can be expedited by audio or video-link. The Court is given wide ranging powers to make any orders about the detention that it thinks fit. It is intended that this be a full inter partes review of the order. It should not escape notice that, in order to aid this process, the detaining authority is obliged to provide the detainee with a copy of the detention order and a summary of the grounds on which the order is made. In addition, the detainee must be informed of the existence of this review procedure.

During the course of this heated debate, necessarily constrained by time, there has been controversy over the authorisation of the use of force in enforcing a preventative-detention order. The Bill contains a careful provision about this. There was much said about shoot-to-kill. Whatever may be so about the Commonwealth Bill (and that matter is not addressed here at all), the State Bill is consistent with the pledge made by the Premier. There is an injunction about the use of force generally confining it to that which is necessary and reasonable, and reference to the lawful use of force in self-defence and defence of another. That is designed as reference to the existing and much debated provisions on the Criminal Law Consolidation Act that have been considered by Parliament more than once since 1991. Whatever the newly-drafted Commonwealth provisions might mean, it is intended that the State provisions be clear. The existing State law of self-defence and defence of another applies to a police officer as it does now. The existing State law of the use of force in making an arrest applies to a police officer as it does now. The enforcement of a State detention order under this Bill is not, in and of itself, the making of an arrest. It is a general State offence to resist or hinder a State police officer in the execution of his or her duty. That will continue to be so. That offence can be enforced—as now. The existing law prevails.

These general provisions are supplemented by much detail. This is a complicated measure. The detail is helpfully outlined in the clause notes. What follows is a general indication of topics which may be of interest or otherwise attract attention.

· There are special provisions for people under the age of 16 and 18 years of age. It is true that any age is in that sense arbitrary. The Bill tries to take a principled and consistent position about it.

· There are various and very detailed provisions about what must be in applications for, and in orders made as a result of those applications. All have been carefully thought about for the protection of the person the subject of the orders.

· There are relevant and limited authority to enforce the provisions, including power to demand identification, searches and the power to break and enter premises.

· Safeguards include the requirement to explain a lengthy range of matters to the person detained, the period of detention and any other extension of the order, the supply of a copy of the order, the requirement of humane treatment, the right to contact family members, a lawyer and the Police Complaints Authority, and serious offences of breaching the protections inhering to the detainee under the Bill.

· On the other hand, it cannot be denied that there are severe offences attached to the unauthorised disclosure of information about the fact of detention (and its character) that is not within the ambit of the protections offered by the Bill. There are serious attempts within these offences to provide a measure of protection to the legitimate interests of the person detained given the hurdles that have already been jumped to authorise such an extraordinary detention.

· There is a serious attempt to give an annual report meaningful content and the legislation sunsets after 10 years.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Object

The object of the measure is to allow a person to be taken into custody and detained for a short period of time in order to—

× prevent an imminent terrorist act occurring; or

× preserve evidence of, or relating to, a recent terrorist act.

A terrorist act is defined by reference to Part 5.3 of the Criminal Code of the Commonwealth.

3—Interpretation

Definitions necessary for the measure are set out in this clause.

4—Issuing authorities and limitation on powers

The issuing authority for a preventative detention order is—

× a Supreme Court or District Court Judge, or retired Supreme Court or District Court Judge, appointed by the Minister with consent;

× the Police Commissioner, Deputy Police Commis­sioner or an Assistant Commissioner, but only if—

× there is an urgent need for the order; and

× it is not reasonably practicable in the circum­stances to have the application for a preventative deten­tion order dealt with by a Judge.

The powers of a senior police officer are limited:

× the officer may only authorise detention up to a maximum period of detention ending 24 hours after the subject is first taken into custody under the order;

× the officer may not exercise, in relation to the subject, any other power conferred on an issuing authority under the measure after the end of the maximum deten­tion period except the power to revoke an order.

5—Police officer detaining person under a preventative detention order

This clause places responsibility on the most senior of a number of police officers involved in the detention of a person under a preventative detention order.

Part 2—Preventative detention orders

6—Basis for applying for, and making, preventative detention orders

There are 2 grounds for an application for and the making of a preventative detention order:

× the police officer and issuing authority—

× must suspect on reasonable grounds that the subject—

× will engage in an imminent terrorist act; or

× possesses a thing that is connected with the preparation for, or the engagement of a person in, an imminent terrorist act; or

× has done an act in preparation for, or planning, an imminent terrorist act; and

(An imminent terrorist act must also be one that is expected to occur, in any event, at some time in the next 14 days.)

× must be satisfied on reasonable grounds that—

× making the order would substantially assist in preventing an imminent terrorist act occurring; and

× detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for that purpose; or

× if a terrorist act has occurred within the last 28 days, the police officer and issuing authority must be satisfied on reasonable grounds that—

× it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

× detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for that purpose.

7—No preventative detention order in relation to person under 16 years of age

An order cannot be made in relation to a child under 16 and, if a police officer who is detaining a person under an order is satisfied on reasonable grounds that the person is under 16, the person must be released.

8—Restrictions on multiple preventative detention orders

Only 1 order for detention of a particular person may be made to prevent the same terrorist act within a particular period. A further order may be made to prevent a different terrorist act, but only if relevant information became available to put before an issuing authority after the making of the earlier order.

Only 1 order for detention of a particular person may be made to preserve evidence of or relating to the same terrorist act.

The period for which a person may be detained under a preventative detention order may not be extended by using a combination of orders from different jurisdictions.

9—Application for preventative detention order

This clause sets out what must be in an application for an order and requires the information in the application to be sworn or affirmed by the police officer.

10—Making of preventative detention order

A preventative detention order is an order that a specified person be taken into custody and detained for a specified period. If the order is issued by a Judge, the period may be up to 14 days. If the order is issued by a senior police officer, the period may be up to 24 hours.

11—Duration of preventative detention order

A person may only be taken into custody under an order within 48 hours of the making of the order.

12—Extension of preventative detention order

If an order is issued by a senior police officer for a period of custody that is less than 24 hours or an order is issued by a Judge for a period of custody that is less than 14 days, the order for detention may be extended by an issuing authority on application if the issuing authority is satisfied on reason­able grounds that is reasonably necessary for the purposes of the order.

The order must still cease to have effect—

× if the extension is granted by a senior police officer—no later than 24 hours after the person is first taken into custody;

× if the extension is granted by a Judge—no later than 14 days after the person is first taken into custody.

13—Prohibited contact order (person in relation to whom preventative detention order is being sought)

A prohibited contact order may be applied for and made in conjunction with a preventative detention order if the issuing authority is satisfied on reasonable grounds that it will assist in achieving the purpose of the preventative detention order. The order prohibits the detainee, while being detained, from contacting a specified person.

14—Prohibited contact order (person in relation to whom preventative detention order is already in force)

A prohibited contact order may also be sought subsequent to the making of a preventative detention order.

15—Revocation of preventative detention order or prohibited contact order

This clause provides for revocation of an order if the grounds on which the order was made cease to exist.

16—Status of person making preventative detention order

An issuing authority is given the same protection and immunity as a Judge of the Supreme Court.

Functions conferred on a judge are conferred on the judge in a personal capacity and not as a court or a member of a court.

Part 3—Review of preventative detention orders

17—Review of preventative detention order

As soon as practicable after a person is detained under a preventative detention order, the police officer detaining the person must bring him or her before the Supreme Court for a review of the order.

The Supreme Court may, however, relieve the police officer from the obligation to bring the subject before the Court and conduct the review proceedings by audio/videolink or audiolink if satisfied that is it appropriate in the circum­stances to do so.

On a review the Supreme Court may exercise any of the following powers:

× it may quash the order and release the subject from detention;

× it may remit the matter to the issuing authority with a direction to reduce the period of detention under the order or not to extend the period of detention beyond a specified limitation;

× it may award compensation against the Crown if satisfied that the subject has been improperly detained;

× it may give directions about the issue of further preventative detention orders against the subject.

18—Review not to affect extension etc of preventative detention order

Subject to any direction made in the review proceedings by the Supreme Court, an issuing authority may, during the course of those proceedings, exercise powers under this Act—

× to extend or further extend the preventative detention order; or

× to revoke the order.

Subject to any direction made in the review proceedings by the Supreme Court, the police officer detaining the subject may exercise powers under this Act to release the subject from detention during the course of the review proceedings.

Part 4—Carrying out preventative detention orders

19—Power to detain person under preventative detention order

Any police officer may take a person into custody and detain the person under a preventative detention order.

When a preventative detention order is made, the Commis­sioner of Police must nominate a senior police officer to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.

The detainee, the detainee's lawyer, and a parent/guardian or other person with whom a detainee who is a child or is incapable of managing his or her affairs has had contact, may make representations to the nominated senior police officer.

20—Endorsement of order with date and time person taken into custody

The order must be endorsed with the date and time when the person is first taken into custody.

21—Requirement to provide name etc

A police officer may require a person who the police officer believes on reasonable grounds may be able to assist in executing a preventative detention order to provide his or her name and address.

22—Power to enter premises

A police officer may enter premises using necessary and reasonable force to search for a person to be detained under an order if the police officer believes on reasonable grounds that the person is on the premises.

However, a dwelling house may not be entered between 9pm and 6am unless the police officer believes on reasonable grounds that—

× it would not be practicable to take the person into custody, either at the dwelling house or elsewhere, at another time; or

× it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.

23—Use of force

This clause limits the police officer in respect of the force used or the extent to which the person is subjected to indignity, but recognises that it may be necessary to use force in self-defence or defence of another.

24—Power to conduct a frisk search

A police officer may conduct a frisk search of a person taken into custody under a preventative detention order if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items.

A frisk search is—

× a search of a person conducted by quickly running the hands over the person's outer garments; and

× an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

A seizable item is anything that—

× would present a danger to a person; or

× could be used to assist a person to escape from lawful custody; or

× could be used to contact another person or to operate a device remotely.

25—Power to conduct an ordinary search

A police officer may conduct an ordinary search of a person taken into custody under a preventative detention order if the police officer suspects on reasonable grounds that the person is carrying evidence of, or relating to, a terrorist act or a seizable item.

An ordinary search is a search of a person or of articles in the possession of a person that may include—

× requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

× an examination of those items.

26—Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979

A police officer detaining a person under a preventative detention order must take steps as necessary (including temporarily releasing the person from detention) to ensure that the person may be dealt with in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979.

27—Release of person from preventative detention

A police officer detaining a person under a preventative detention order may release the person from detention. Written notice of the release must be given to the person unless the person is to be dealt with under an ASIO warrant or for a suspected offence. If the period of detention has not expired, the person may be taken back into custody under the order after being released (ie the release can be temporary).

28—Arrangement for detainee to be held in prison or remand centre

A senior police officer may arrange for a detainee to be detained at a prison or remand centre.

Part 5—Informing person detained about preventative detention order

29—Effect of preventative detention order to be explained to person detained

This clause sets out matters that must be explained by a police officer to a person being taken into custody under an order.

It is enough if the police officer informs the person in substance of these matters. An interpreter must be provided if the police officer has reasonable grounds to believe that the person is unable to communicate with reasonable fluency in the English language.

30—Person being detained to be informed of extension of preventative detention order

A police officer detaining a person under an order must inform the person of any extension of the order.

31—Compliance with obligations to inform

A police officer need not comply with the requirements to inform a person detained under an order if the actions of the detainee make it impracticable to do so.

32—Copy of preventative detention order and summary of grounds

A detainee is to be given a copy of the order, a summary of the grounds on which the order is made and of any extension of the order and can request that a copy be given to a lawyer.

There is no requirement to provide a copy of a prohibited contact order.

Part 6—Treatment of person detained

33—Humane treatment of person being detained

A person being taken into custody, or being detained, under a preventative detention order—

× must be treated with humanity and with respect for human dignity; and

× must not be subjected to cruel, inhuman or degrading treatment,

by anyone exercising authority under the order or implement­ing or enforcing the order.

34—Restriction on contact with other people

Except as set out in the measure, while a person is being detained under a preventative detention order, the person—

× is not entitled to contact another person; and

× may be prevented from contacting another person.

35—Contacting family members etc

The person being detained is entitled to contact—

× 1 of his or her family members; and

× if he or she—

× lives with another person and that other person is not a family member of the person being detained; or

× lives with other people and those other people are not family members of the person being detained, that other person or 1 of those other people; and

× if he or she is employed—his or her em­ployer; and

× if he or she employs people in a business—1 of the people he or she employs in that business; and

× if he or she engages in a business together with another person or other people—that other person or 1 of those other people; and

× if the police officer detaining the person agrees to the person contacting another person—that other person,

by telephone, fax or email but solely for the purposes of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being.

A prohibited contact order may override this entitlement in relation to particular family members.

36—Contacting Police Complaints Authority

The person being detained is entitled to contact the Police Complaints Authority in accordance with the Police (Com­plaints and Disciplinary Proceedings) Act 1985.

37—Contacting lawyer

The person being detained is entitled to contact a lawyer but solely for the purpose of—

× obtaining advice from the lawyer about the person's legal rights in relation to—

× the preventative detention order; or

× the treatment of the person in connection with the person's detention under the order; or

× arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, the review of the preventative detention order by the Supreme Court; or

× arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, proceedings in a court for a remedy relating to—

× the preventative detention order; or

× the treatment of the person in connection with the person's detention under the order; or

× arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Police Complaints Authority under the Police (Complaints and Disciplinary Proceedings) Act 1985 in relation to—

× the application for, or the making of, the preventa­tive detention order; or

× the treatment of the person by a police officer in connection with the person's detention under the order; or

× arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court that is to take place while the person is being detained under the order.

Certain assistance must be provided in relation to choosing a lawyer. A prohibited contact order may override this entitlement in relation to a particular lawyer.

38—Monitoring contact with family members etc or lawyer

Contact with family members or a lawyer must be monitored by a police officer. The contact may only be in a language other than English if an interpreter is present.

39—Special contact rules for person under 18 or inca­pable of managing own affairs

A child or person who is incapable of managing his or her affairs is entitled to have contact with—

× a parent or guardian of the person; or

× another person who—

× is able to represent the person's interests; and

× is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and

× is not a police officer; and

× is not employed in duties related to the administra­tion of the police force; and

× is not a member (however described) of a police force of the Commonwealth, another State or a Territory; and

× is not an officer or employee of the Australian Security Intelligence Organisation.

In this case the person is not limited to telling the parent etc that he or she is safe and unable to be contacted but may inform the parent etc about the order and the period for which the person is detained. In addition the contact may be through a visit of up to 2 hours each day or such longer period as is specified in the order. A prohibited contact order may override this entitlement.

40—Entitlement to contact subject to prohibited contact order

A prohibited contact order may override the entitlements to contact particular family members or particular lawyers.

41—Disclosure offences

Offences are established in relation to intentional disclosure of matters relating to preventative detention orders. Detain­ees, lawyers, parents/guardians and interpreters are all obliged not to disclose information relating to preventative detention orders. Police officers who monitor contact with a lawyer are obliged not to disclose information communicated in the course of the contact.

42—Questioning of person prohibited while person is detained

The only questioning that can take place during detention is questioning for the purposes of—

× determining whether the person is the person specified in the order; or

× ensuring the safety and well being of the person being detained; or

× allowing the police officer to comply with a requirement of the measure in relation to the person's detention under the order.

43—Taking identification material

Identification material may be taken from a detainee who is over 18 years of age and capable of managing his or her affairs if the person consents.

Identification material may be taken from a detainee who is under 18 years of age and capable of managing his or her affairs if—

× the person consents to the taking of identification material and either—

× a parent, guardian or other appropriate person as defined consents; or

× a Magistrate so orders; or

× a parent, guardian or other appropriate person as defined consents and a Magistrate so orders.

Identification material may be taken by a sergeant or police officer of higher rank from a detainee who is under 18 years of age or is incapable of managing his or her affairs if the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person specified in the order and a Magistrate so orders, but then only in the presence of a parent or guardian or another appropriate person.

Identification material may be taken by a sergeant or police officer of higher rank from a detainee who is over 18 years of age and capable of managing his or her affairs without the detainee's consent if the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person specified in the order.

44—Use of identification material

The identification material may be used only for the purpose of determining whether the person is the person specified in the order. The material must be destroyed after 12 months if not then required for specified purposes.

45—Offences of contravening safeguards

An intentional contravention of the listed provisions is an offence.

Part 7—Miscellaneous

46—Nature of functions of Magistrate

The functions of a Magistrate in relation to the taking of identification material are conferred on the Magistrate in a personal capacity and not as a court or a member of a court. The Magistrate is given the same protection and immunity as if the function were performed as, or as a member of, the Magistrates Court.

47—Supreme Court to establish procedures for ensuring secrecy of proceedings under this Act while terrorist threat exists

Despite any rule or practice to the contrary, proceedings under the measure are not to be conducted in public nor publicised in any public list of the Supreme Court's business.

The Supreme Court must establish appropriate procedures to ensure that information about—

× the Court's proceedings on review of a preventa­tive detention order under the measure; and

× any other proceedings brought before the Court in relation to a preventative detention order or a prohibited contact order;

is confined within the narrowest possible limits.

The Court is not, however, required to suppress the publica­tion of information if—

× the Minister authorises its publication; or

× the Court determines that the publication of the information could not conceivably prejudice national security and that its publication should be authorised in the public interest.

48—Annual report

An annual report is required in relation to the following:

× the number of preventative detention orders made during the year;

× whether a person was taken into custody under each of those orders and, if so, how long the person was detained for;

× particulars of any complaints in relation to the detention of a person under a preventative detention order made or referred during the year to—

× the Police Complaints Authority; or

× the internal investigation division of the police force;

× the number of prohibited contact orders made during the year.

49—Police Complaints Authority's functions and powers not limited

The measure does not derogate from a function or power of the Police Complaints Authority under the Police (Com­plaints and Disciplinary Proceedings) Act 1985.

50—Law relating to legal professional privilege not affected

The measure does not affect the law relating to legal profes­sional privilege.

51—Legal proceedings in relation to preventative detention orders

Proceedings may be brought in a court for a remedy in relation to—

× a preventative detention order; or

× the treatment of a person in connection with the person's detention under such an order.

52—Sunset provision

A preventative detention order, or a prohibited contact order, that is in force at the end of 10 years after the day on which the measure commences ceases to be in force at that time.

A preventative detention order, and a prohibited contact order, cannot be applied for, or made, after the end of 10 years after the day on which the measure commences.

The Hon. DEAN BROWN secured the adjournment of the debate.