Bills Digest No. 17, 2022–23
PDF version [420KB]
Dr Shannon Torrens
Law and Bills Digest Section
23 September 2022
- This Bill extends for 12 months (from 7 December 2022 until 7 December 2023) the sunsetting dates for stop, search and seizure powers, control orders and preventative detention orders.
- The Government believes that these powers are critical to support Australia’s counter‑terrorism framework.
- The Parliamentary Joint Committee on Intelligence and Security (PJCIS) conducted a statutory review of these powers and presented its report in October 2021. The PJCIS recommended extending these powers until 2025, subject to certain amendments, including the introduction of additional safeguards.
- In order to respond to the PJCIS’s recommendations, as well as consult with states/territories and prepare draft legislation, the Government is seeking to extend the relevant sunsetting dates.
- Stakeholders, including the Law Council of Australia and the Australian Human Rights Commission, have previously raised concerns about extending these powers.
Purpose of the Bill
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Key issues and provisions
Date introduced: 8
House: House of
day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at September 2022.
Legislation Amendment (AFP Powers and Other Matters) Bill 2022 extends the
following Australian Federal Police (AFP) counter-terrorism powers for 12 months:
stop, search, and seizure powers in Division 3A of Part IAA of the Crimes Act 1914
control order regime in Division 104 of the Criminal Code Act
1995 (Criminal Code)
preventative detention order (PDO) regime in Division 105 of the Criminal Code.
These powers are currently scheduled to sunset on 7
December 2022 with the amendments in the Bill extending the operation of these
provisions until 7 December 2023.
counter terrorism framework
Responsibility for the counter-terrorism laws of Australia
between the Attorney‑General’s Department (AGD) and the Department of
Home Affairs (Home Affairs). Policy
responsibility for most counter-terrorism laws lies with Home Affairs while the
AGD has administrative responsibility.
These counter-terrorism laws focus on:
Australia’s main terrorism laws are contained in Part 5.3
(terrorism) of the Criminal Code which were introduced after
the 11 September 2001 terrorist attacks in the United States of America.
Part 5.3 contains offences relating to terrorism, terrorist organisations and
the financing of terrorism.
Prominently, the Security
Legislation Amendment (Terrorism) Act 2002 amended the Criminal Code
and in doing so:
a ‘terrorist act’
offences that criminalise acts involving the planning and committing of a
offences that criminalise a person’s involvement or association with a
the Government the power to proscribe (list) an organisation as a terrorist
organisation by way of regulation in limited circumstances.
Part 5.5 (foreign incursions and recruitment) of the
Criminal Code prohibits individuals from engaging in hostile activity in a
foreign country and from preparing to do so. Part 5.5 also prohibits
individuals from intentionally entering or remaining in an area designated as a
declared area by the Minister for Foreign Affairs.
Part 5.1 (treason and related offences) also contains
For the purposes of this Bill, the passage of the Anti-Terrorism Act
(No. 2) 2005, following the July 2005 terrorist attacks in London, introduced
Division 3A into the Crimes Act, and Divisions 104 and 105 into the
Federal Police (AFP) has responsibility for investigating and preventing
crime including terrorism. On counter-terrorism measures, the AFP has
Counter Terrorism contributes to safeguarding Australia's
national security, through a whole of government approach, facilitated by
national and international cooperation, coordination and collaborative working
Terrorism remains a major security challenge for Australia.
In recent years, a number of plots have been disrupted by the coordinated
efforts of Australia’s security and law enforcement agencies, as well as our
The AFP has further
highlighted Australia’s multi-layered approach to counter-terrorism:
Australia’s national strategic approach to countering
terrorism (prepare for, prevent, respond to and recover from a terrorist act)
requires a multi-layered and collaborative approach based on strong
relationships between governments, private industry, members of the community
and international partners.
The Department of Foreign Affairs and Trade (DFAT) has said
on Australia’s counter-terrorism strategy:
Underpinning Australia's fight against terrorism is Australia's
Counter-Terrorism Strategy, which is based on partnerships between all
levels of government, communities and the private sector.
The purpose of Australia’s counter-terrorism effort is to
safeguard Australia, its people and its interests from the harms of terrorism
and violent extremism. This will be achieved through:
1. countering violent extremism in all its forms by
preventing radicalisation of individuals before an attack takes place, and
rehabilitating and reintegrating violent extremist offenders
2. equipping our law enforcement, security intelligence and
other operational agencies with the resources and powers to tackle terrorist
3. ensuring our counter-terrorism arrangements are resilient,
collaborative, consistent and proportionate both nationally and
The Commonwealth Director of Public Prosecutions has outlined
its work on counter-terrorism prosecutions:
Counter-terrorism prosecutions play an important part in
deterring those who seek to cause harm to persons or property, with the
intention of coercing or intimidating Australia or its people and advancing a
political, religious or ideological cause.
There has been an increase in the number of counter terrorism
prosecutions conducted by the CDPP since 2014. The matters prosecuted by the
CDPP include domestic terrorism plots, matters in which support has been
provided to international terrorist organisations and matters where the offender
has engaged in, or prepared to engage in, hostile activity in a foreign
Joint Committee on Intelligence and Security review
As required under subparagraphs 29(1)(bb)(i) and (ii) of
Services Act 2001, the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) commenced
a review of AFP powers, specifically examining:
3A of Part IAA of the Crimes Act (police powers in relation to
terrorism) and any other provision of the Crimes Act as it relates to
104 and 105 of the Criminal Code (control orders and preventative detention
orders in relation to terrorism) and any other provision of the Criminal Code
as it relates to those Divisions.
The review was announced on 18 June 2020 and the examination
into these two issues was due to be completed by 7 January 2021.
The scope of the review was then expanded in August 2020
review into the operation, effectiveness, and implications of Division 105A of
the Criminal Code (continuing detention orders) and any other provision of that
Code as far as it relates to that Division.
These three reviews were completed as one inquiry with the PJCIS
presenting its report
to Parliament in October 2021.
Upon the release of the report the PJCIS
Chair Senator James Paterson said: ‘The committee has assessed the use and
effectiveness of these powers and has found they will continue to provide law
enforcement the tools they need to counter the threat of terrorism’.
The PJCIS recommended that the following powers be extended to 7 December 2025 (Recommendations
3, 7 and 14):
search and seizure powers under subsections 3UK(1), (2) and (3) of the Crimes
order regime under Division 104 of the Criminal Code
detention order regime in Division 105 of the Criminal Code.
Including these, 19
recommendations were made in the final report (pp. xiii-xvii):
amendment of Division 3A of the Crimes Act regarding notifications
relating to declarations of a prescribed security zone (Recommendation 1)
amendment of the Crimes Act relating to matters that the Minister must
consider before declaring a prescribed security zone (Recommendation 2)
the stop, search and seizure powers under the Crimes Act, subsections
3UK(1), (2) and (3) be extended to 7 December 2025 (Recommendation 3)
the Intelligence Services Act be extended
to provide the PJCIS with the option to conduct a further review prior to the
sunset date into Division 3A of Part IAA of the Crimes Act relating to
the operation, effectiveness, and implications of the stop, search, and seizure
powers (Recommendation 4)
the AGD consider the appropriateness of implementing a duty judge system for
expedited applications for search warrants (Recommendation 5)
section 3UEA of the Crimes Act be amended to require any agency that
enters premises relating to this section to obtain an ex post facto warrant as
soon as possible (Recommendation 6)
the control order regime in Division 104 of the Criminal Code be extended to 7 December 2025
the definition of ‘issuing court’ in the Criminal Code be amended to only the Federal
Court of Australia (Recommendation 8)
section 29 of the Intelligence Services Act be amended to provide that
the PJCIS may commence a review of Division 104 of the Criminal Code prior to
the sunset of the provisions (Recommendation 9)
subsection 104.5(3) of the Criminal Code be amended to align the conditions
that can be imposed as part of the control orders scheme with the Counter-Terrorism
Legislation Amendment (High Risk Terrorist Offenders Bill 2020) (Recommendation
10). Note that this Bill has since been enacted as the Counter‑Terrorism Legislation
Amendment (High Risk Terrorist Offenders) Act 2021
the Government review the range of conditions that could be imposed as part of
a control order and report back to the PJCIS (Recommendation 11)
Division 104 of the Criminal Code be amended so that the AFP may provide
conditions on control orders with the consent of both parties (Recommendation
the AGD investigate the cost of providing legal aid for those subject to
proceedings under Division 104 of the Criminal Code including continuing
detention orders and control orders and provide a report to the PJCIS within 12
months of the tabling of the PJCIS’s report into AFP powers (Recommendation 13)
the preventative detention order regime in Division 105 of the Criminal Code be
continued for a period of three years and sunset on 7 December 2025
Division 105 of the Criminal Code relating to issuing authorities be amended to
remove: a member of the Administrative Appeals Tribunal (other than the AAT
President or a Deputy President who also holds a commission as a Federal Court
Judge); and a Judge of the Federal Circuit Court (Recommendation 15)
section 29 of the Intelligence Services Act be amended to provide that
the Committee may commence a review of the provisions of Division 105 of the
Criminal Code prior to the sunset date of the provisions (Recommendation 16)
section 29 of the Intelligence Services Act be amended to provide that
the Committee may conduct a further review into the operation, effectiveness,
and implications of the continuing detention order regime in Division 105A of
the Criminal Code prior to the sunset date (Recommendation 17)
Home Affairs coordinates with relevant state and territory departments to
source appropriate accommodations to facilitate interim and confirmed
continuing detention orders (Recommendation 18)
the Criminal Code be amended to require public reporting requirements on the
use and implementation of Division 105A (Recommendation 19).
response to the PJCIS Review
The Government has not yet finalised its response to the
report and has not fully implemented changes to support the recommendations
which is why
the Bill is seeking to extend the sunsetting dates for the relevant AFP
In his second reading speech on the Bill, the
Attorney-General, Mark Dreyfus KC, justified the extension of the sunsetting
The Parliamentary Joint Committee on Intelligence and
Security conducted a statutory review of these powers during the term of the
last parliament and presented its report in October 2021. The committee
unanimously supported the extension of the powers subject to certain
amendments, including the introduction of additional safeguards.
The Attorney-General highlighted the need for additional
time to consider the PJCIS’s recommendations:
Due to the complexity of a number of the committee's proposed
amendments, and the need to consult with states and territories in relation to
any proposed amendments to part 5.3 of the Criminal Code Act 1995.
stated that more time was needed to:
the Government's response to the Committee's report and each of its detailed
legislation to implement the Government's response
with, and obtain the agreement of, state and territory governments to draft
and secure passage of the legislation through the Parliament.
In terms of specific amendments, the
Attorney-General said: ‘This bill would extend the relevant sunset dates by
12 months so that there is sufficient time to consult on, and then implement,
the government's response to the committee's bipartisan recommendations over
the coming months’.
The Bill’s Explanatory
Memorandum (EM) argues that these powers are ‘critical’ in supporting
Australia’s counter-terrorism framework and in ensuring that there are
‘appropriate tools to protect the community from terrorism risks.’ (p. 3)
The EM also notes that these amendments are made in
response to Australia’s National Security Threat level being classified as
‘probable’, based on credible intelligence assessed by Australia’s security
agencies that individuals and groups have the ‘intent and capability’ to commit
terrorism in Australia (p. 3).
Other reviews of Australia’s counter-terrorism laws
There have been several other reviews of Australia’s
counter-terrorism laws which have focused on the powers the Bill is seeking to
extend, notably by the Independent National
Security Legislation Monitor (INSLM).
A primary function of INSLM
is that the body, ‘independently reviews the operation, effectiveness and
implications of national security and counter-terrorism laws; and considers
whether the laws contain appropriate protections for individual rights, remain
proportionate to terrorism or national security threats, and remain necessary’.
Three relevant reports by INSLM have been released on:
Also relevant is the Report
of the Council of Australian Governments (COAG) Review of Counter-Terrorism
Legislation. This review evaluated the operation, effectiveness and
implications of key Commonwealth, state, and territory counter-terrorism laws.
The Review Committee was chaired by Anthony Whealy KC and six members jointly
chosen by the Prime Minister, state premiers and territory chief ministers.
COAG had tasked the Committee to review an extensive range
of new and amended counter‑terrorism legislation passed by the
Commonwealth and state and territory Parliaments in 2005 following the London
report was released on 1 March 2013 and was tabled in Parliament on 14 May
2013 by the Attorney-General. There were 47 recommendations (see pp. x-xvi of
the report) ranging from the definition of a terrorist act through to
processing items connected with terrorist acts, the proscription of terrorist
organisations, funding a terrorist organisation and associating with terrorist
The final report focused on the following recommendations
in relation to topics of relevance to the Bill:
orders and issues (Recommendations 26–38)
detention (Recommendations 39–40)
search and seizure powers (Recommendations 43–47).
At the time of writing, the Bill has not been referred to
a committee for inquiry.
Senate Standing Committee for Selection of Bills
The Senate Standing Committee for the Selection of Bills has
deferred consideration of this Bill until its next meeting (Report no.
4 of 2022).
Senate Standing Committee for Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills has
not considered the Bill at the time of writing.
position of non-government parties/independents
At the time of writing, non-government parties and independents
have not commented publicly on the Bill.
major interest groups
Human Rights Commission (AHRC) has addressed the human rights implications
of Australia’s counter-terrorism laws generally, noting:
Aspects of Australia’s counter-terrorism laws have been
criticised for containing inadequate safeguards against potential human rights
Unlike the United Kingdom, Australia does not have a Charter
of Rights. The Commission is concerned that some counter-terrorism laws (for
example, ASIO’s powers to detain and question non-suspects) do not have
adequate safeguards against abuse or to correct mistakes.
has said that counter-terrorism laws ‘can have a profound impact on
fundamental human rights and freedoms’ which include:
right to a fair trial
right to freedom from arbitrary detention and arrest
right not to be subject to torture
right to privacy
right to freedom of association and expression
right to non-discrimination
right to an effective remedy for a breach of human rights.
These rights are outlined in a number of core
international human rights treaties to which Australia is a state party.
orders, the AHRC has said:
Criticisms of Australia’s control order scheme have focused
on the lack of safeguards to ensure the restrictions imposed by control orders
do not breach basic human rights, and the ex-parte nature of interim control
made a submission in 2020 to the PJCIS in relation to its review of AFP
powers (discussed above). In doing so, the AHRC said in relation to the stop,
search and seize powers:
If the PJCIS decides to recommend that the stop, search and
seize powers continue, the Commission submits that they should continue to be
viewed as temporary, emergency powers and subject to a further sunsetting
Further, in relation to control orders the AHRC said:
The Commission submits that if a control order regime is
retained in some form, it should be more tightly targeted to people
demonstrated to be a risk to the community. It should be limited to people who
have been convicted of a terrorist offence and who would still present
unacceptable risks to the community at the end of their sentence if they were
free of all restraint upon release from imprisonment.
On the PDOs, the AHRC said:
On the basis of publicly available evidence, this is a clear
example of a power that is not necessary. The Commission’s submission [concludes]
… that in every case where relevant authorities have suggested a PDO might be
used, there are alternative, less restrictive options available that are just
As part of its anti-terrorism
reform project, the Law Council of Australia has
consolidated previous advocacy it has undertaken with respect to
Australia’s anti-terrorism laws, including over 50 separate submissions to
Parliamentary inquiries, the Australian Law Reform Commission and other
national and international bodies.
issues raised by the Law Council of relevance to this Bill include:
offences in Part 5.3 of the Criminal Code
search and seizure powers in Part 1AA, Division 3A of the Crimes Act
orders and preventative detention orders in Divisions 104 and 105 of the
Council provided a submission to the PJCIS in September 2020 to its review
of the counter-terrorism powers of the AFP. The Law Council said:
For the reasons set out in this submission, the Law Council’s
primary position is that, with the exception of certain powers under Division
3A of Part IAA of the Crimes Act, the powers under review are not necessary or
proportionate responses to the threat of terrorism and should not be renewed
beyond their sunset dates.
Alternatively, if some or all of these powers are to remain
in force, the Law Council recommends several amendments to strengthen
applicable safeguards, particularly in issuing thresholds and procedural
requirements governing their execution. In addition, the Law Council’s
recommendations (particularly with respect to CDOs) are intended to promote
community safety by ensuring that offenders are rehabilitated.
states that the Bill ‘would have no financial impact on Government expenditure
or revenue’ (p. 2).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible (see EM, p. 2).
While the Government believes that the Bill is compatible
with human rights, the Explanatory
Memorandum notes that the Bill engages a range of rights including (pp. 3–4):
right to freedom from arbitrary detention and arrest, and the right to liberty
and security of the person (International
Covenant on Civil and Political Rights (ICCPR), Art 9)
right to freedom of movement (ICCPR, Art 12)
right to a fair trial, the right to minimum guarantees in criminal proceedings
and the presumption of innocence (ICCPR, Art 14)
right to protection against arbitrary and unlawful interference with one’s
privacy or home (ICCPR, Art 17)
right to freedom of expression (ICCPR, Art 19)
right to freedom of association (ICCPR, Art 22)
prohibition on cruel, inhuman or degrading treatment or punishment (ICCPR,
Art 7; Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), Arts 2 and 16)
right of the child to have the child’s best interests as a primary
consideration by the courts, administrative authorities or legislative bodies (Convention
on the Rights of the Child (CRC), Art 3).
Joint Committee on Human Rights
The Committee has
not reported on the Bill at the time of writing.
The three primary amendments contained in the Bill are the
extension of the current sunsetting provisions for a period of twelve months:
1 of the Bill amends the sunsetting provisions contained in subsections
3UK(1), (2) and (3) of the Crimes Act to extend the operation of the
stop, search and seizure powers in Division 3A by omitting “7 December 2022”
and substituting “7 December 2023”
2 of the Bill amends the sunsetting provisions contained in subsections
104.32(1) and (2) of the Criminal Code to extend the operation of the control
order regime by omitting “7 December 2022” and substituting “7 December 2023”
3 of the Bill amends the sunsetting provisions contained in subsections
105.53(1) and (2) of the Criminal Code to extend the operation of the PDO
regime by omitting “7 December 2022” and substituting “7 December 2023”.
The following section will outline the key features of the
powers the Bill is seeking to extend.
search and seizure powers
Pursuant to Division 3A of Part IAA of the Crimes Act,
the Minister has the power to declare a ‘Commonwealth
place’ to be a ‘prescribed security zone’ for the purpose of preventing a
terrorist attack, or in response to a terrorist attack (subsection 3UJ(1)).
When an area is declared as such, this gives police increased powers within
that zone (see EM, p. 3).
Key elements of these powers include:
police officer pursuant to this Division can stop, question and search persons
and seize items in a Commonwealth place without requiring a warrant to exercise
these powers. This can be done if the police officer suspects on reasonable
grounds that the person may have just committed, be committing or be about to
commit, a terrorist act (paragraph 3UB(1)(a); see also EM, p. 4).
police officer can exercise these powers in a prescribed security zone even
without reasonable grounds to believe that the person may have just committed,
be committing or be about to commit a terrorist act (paragraph 3UB(1)(b)).
a police officer can enter premises (even if the premises are not a
Commonwealth place or prescribed security zone) if they suspect on reasonable
grounds that it is necessary to search the premises for an item and to seize it
if they find it there to prevent that item from being used in connection with a
terrorism offence and it is necessary to do so without a search warrant because
there is a serious and imminent threat to a person’s life, health or safety (section
The Government has noted that ‘Division 3A of the Crimes
Act contains safeguards to ensure that police cannot exercise these powers
in an arbitrary way’, which it has outlined in the EM (p. 5).
In its submission
to the PJCIS review, the AFP noted that these powers have not been used
since their introduction in December 2005 (p. 8).
Control order regime
The control order regime in Division 104 of the Criminal
Code allows an issuing court to impose obligations, prohibitions, and
restrictions on a person for the purposes of (see EM, p. 6):
the public from a terrorist act
the provision of support for, or the facilitation of, a terrorist act
the provision of support for, or the facilitation of, the engagement in a
hostile activity in a foreign country.
The Government has stated that the aim of these orders is
to protect Australia’s national security interests and prevent terrorist acts
(see EM, p. 7).
Key elements of the regime include (see EM, pp. 6–7):
senior member of the AFP can only apply to an issuing court for an interim
control order subject to the written consent of the Minister (sections 104.2
court can make the control order if it is satisfied on the balance of
probabilities that the requirements of the Criminal Code have been met (paragraph
104.4(1)(c)) and that the order is ‘reasonably necessary, and reasonably
appropriate and adapted’ to meet the purposes of the order (paragraph
conditions that may be placed on a controlee are outlined in subsection
104.5(3) and include that the controlee must remain in Australia, at certain
premises between certain hours and wear a tracking decide, restrictions on the
use of communications and technology.
order must be confirmed by a court at least seven days after the control order
is made (subsection 104.5(1A)). The court will consider the ongoing need for
the control order and the conditions that are imposed.
control order can be granted for up to 12 months, or three months for a person
between 14 and 17 years of age. There is a prohibition on making orders for
people under 14 years of age (section 104.28).
The Government has stated that ‘the control order regime
contains safeguards that ensure the regime is reasonable, necessary, and
proportionate’ which include (see EM, pp. 7–8):
Minister must consent before an interim control order application is made (section
control order must be issued by an independent judicial authority
court must be satisfied each of the conditions imposed by the order are
reasonably necessary and reasonably appropriate and adapted to achieving its
purpose (paragraph 104.4(1)(d))
court must consider the impact of the conditions on a person’s circumstances
persons between 14 and 17 years of age, a court must consider the best interests
of the young person, the objects of the control order and the impact on the
person’s circumstances (subsection 104.4(2))
must (aside from some exceptions) appoint a lawyer to act for a young person
between 14 and 17 if the person has no lawyer (subsections 104.28(4) and (5))
may apply to vary an interim control order (section 104.11A)
may apply to vary, revoke, or declare void a control order (section 104.18)
can only last up to 12 months and only three months for young people (sections
104.5, 104.16 and 104.28)
Minister must table in Parliament an annual report about matters relating to
the regime (section 104.29).
Preventative detention order regime
Through a preventative detention order, an individual can
be taken into custody. The individual can be detained for up to 24 hours for an
initial order or up to 48 hours for a continued order. This is intended to
prevent a terrorist act from occurring as well as to preserve evidence of, or
relating to, a terrorist attack (see EM
Key aspects of the PDO regime under Division 105 of the
Criminal Code include (see EM, pp. 13–14):
105 makes provision for initial PDOs and continued PDOs, with the maximum
period a person can be detained being 48 hours.
initial PDO authorises detention for up to 24 hours and may be issued by a
senior AFP member following an application from an AFP member (sections 105.7
and 105.80). An initial PDO can also be extended but the maximum period a
person can be detained is 24 hours (section 105.10).
continued PDO authorises detention for up to 48 hours and can only be issued by
an issuing authority following an application by an AFP member if it is
considered reasonably necessary (sections 105.11 and 105.12).
issuing authority can be a judge of a state or territory Court, or a Judge of
the Federal Court of Australia or the Federal Circuit and Family Court of
Australia (Division 2). An issuing authority can also be someone who has
previously served as a judge in a superior court for five years or a legal
practitioner of at least five years standing who holds an appointment to the
Administrative Appeals Tribunal as President or Deputy President (section
the PDO is issued to prevent a terrorist attack, the AFP and the issuing
authority must be satisfied that: (1) a terrorist act is capable of being
carried out and could occur within the next 14 days, (2) the order would substantially
assist in preventing the terrorist act from occurring, (3) detaining the person
is reasonably necessary to prevent a terrorist act from occurring (subsections
105.4(4) and (5)).
the PDO is issued to preserve evidence of a terrorist act, the AFP and issuing
authority must also be satisfied: (1) that the terrorist act occurred within
the last 28 days, (2) that it is necessary to detain the person to preserve
evidence of the act, (3) that detention is a reasonably necessary step in
achieving this outcome (subsection 105.4(6)).
application by an AFP member, an issuing authority for the PDO may make a
prohibited contact order in relation to a person’s detention under a PDO (section
prohibited contact order can be sought to: (1) prevent serious harm to a person,
(2) avoid a risk to action being taken to prevent the occurrence of a terrorist
act, (3) or other risk (section 105.14A).
The Government has stated that the ‘PDO regime contains
safeguards to ensure the regime is reasonable, necessary, and proportionate’, which
include (EM, p. 14):
must be reasonable grounds to suspect the person subject to the PDO will engage
in a terrorist act or possesses an object in relation to a terrorist act or has
done an act in preparation for such an act (section 105.4).
issuing authority must be satisfied that it is reasonably necessary for the
person to be detained (paragraph 105.4(6)(c)).
PDO can be refused if the AFP does not provide further information on the
request of the issuing authority (subsection 105.4(7)).
is a prohibition on PDOs for people under 16 years of age (subsection 105.5(1)).
the individual under a PDO has inadequate knowledge of English or a disability
which hinders communication, special assistance must be provided (section
subsequent PDO cannot be made if there is already one for the same period
PDO can only be extended if it is deemed to be reasonably necessary by the
issuing authority (section 105.10).
No Commonwealth PDOs have been issued since 2005 when the
regime commenced which ‘reflects the policy intent that these orders should
only be invoked only in limited circumstances’ (EM,
In its submission
to the PJCIS review, the AFP noted that ‘[t]he Joint Counter Terrorism
Teams (JCTTs) have, however, relied on complementary State-based equivalent
powers on four occasions in 2014 and 2015’ (p. 9). States and territories have
enacted their own legislation allowing for the detention of a person for up
to 14 days.
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