4. Preventative detention orders

Overview of the provisions

4.1
A Commonwealth preventative detention order (PDO) allows a person to be taken into custody by police and detained for a period of time (up to 48 hours) in order to:
1
prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or
2
preserve evidence of, or relating to, a recent terrorist act.1
4.2
A PDO may be made in relation to any person over 16 years of age.
4.3
To make a PDO, the issuing authority2 must be satisfied that there are reasonable grounds to suspect that the subject:
1
will engage in a terrorist act, or
2
possess a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act, or
3
has done an act in preparation for or planning a terrorist act.
4.4
Further, the issuing authority must be satisfied that making the order would substantially assist in preventing a terrorist act occurring, and that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary.
4.5
A PDO may also be made against a subject if the issuing authority is satisfied that:
1
a terrorist act has occurred within the last 28 days, and
2
it is reasonably 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 is reasonably necessary for preserving that evidence.3
4.6
The police must not question the subject while he or she is detained, except for the purpose of identifying the person, ensuring the person’s safety and well-being, or allowing the police to comply with a requirement under the Criminal Code in relation to the person’s detention under the PDO.4
4.7
There are restrictions on who the subject of the PDO can contact while detained. The subject may contact a family member or employer; however, such contact can be monitored by police and can only occur for the purposes of letting the contacted person know that the subject being detained is safe but is not able to be contacted for the time being.5

Review history

2012 INSLM review

4.8
In his 2012 review of the PDO provisions, INSLM Walker found that ‘preventative detention orders are not effective, not appropriate and not necessary. They should simply be abolished’.6
4.9
INSLM Walker explained this conclusion:
The combination of non-criminal detention, a lack of contribution to CT [counter-terrorism] investigation and the complete lack of any occasion so far considered appropriate for their use is enough to undermine any claim that PDOs constitute a proportionate interference with liberty.7
4.10
INSLM Walker found that PDOs offered no benefit beyond other available counter-terrorism powers. The inability to question a person subject to a PDO was particularly problematic.8
4.11
He continued:
There is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism. No concrete and practical examples of when a PDO would be necessary to protect the public from a terrorist act because police could not meet the threshold to arrest, charge and remand a person for a terrorism offence have been provided or imagined.9
4.12
INSLM Walker concluded with the recommendation that the PDO provisions be repealed.10

2013 COAG review

4.13
In its 2013 review, a majority of the COAG Committee concluded that the preventative detention scheme was neither effective nor necessary and should be repealed, as should the complementary State and Territory legislation dealing with preventative detention.11 The COAG Committee was persuaded by, amongst other things, submissions from the police forces of Victoria, South Australia and Western Australia that, from an operational perspective, those police forces would be unlikely to use the preventative detention regime:
Various reasons have been provided to the Committee as to why this is so. First, the complexities of preparing an initial detention application, compliance with the law and securing an initial order was thought by some to be unduly onerous and cumbersome. Secondly, the ‘thresholds’ were, to others impractical. (What if, for example, the available intelligence suggested an attack in the next few weeks rather than within 14 days? What if the date of the attack was known as ‘soon’ but nevertheless uncertain?). Thirdly, there was overall agreement that the inability to question a detained suspect, even if he or she were willing to give information, was virtually fatal to operational effectiveness. Finally, the view was expressed that, at a practical level, if there were sufficient material to found a detention order, there would be, more likely than not, sufficient material to warrant conventional arrest and charge. State enforcement agencies, it might be said, were clearly more comfortable with this traditional procedure and much less comfortable with the complexities of the detention procedure.12

2014 review by the Committee

4.14
In 2014, the Committee considered the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 which proposed, amongst other things, for the PDO regime to be extended for a further 10 years (until 15 December 2025). In its review, the Committee supported the continued operation of the PDO regime, noting:
While there has been very limited use of the regime until recently, the increased threat environment demands appropriate tools are available to law enforcement to both prevent and prosecute terrorist acts.13
4.15
However, the Committee did not support any change to the regime to allow for questioning. The Committee found:
As raised in evidence, the PDO regime is focussed on preventing a terrorist act, rather than an information gathering tool to assist with investigations and prosecutions. Any change to allow questioning would fundamentally change the nature of the regime.14
4.16
The Committee concluded by recommending that the Bill be amended so that the PDO regime sunsets 24 months after the date of the next Federal election.15

2014 review by the Parliamentary Joint Committee on Human Rights

4.17
In its review of proposed amendments to the PDO regime via the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Human Rights (the PJCHR) undertook a ‘foundation assessment’ of whether the PDO powers are compatible with human rights. The PJCHR found:
The committee considers that PDOs engage a number of human rights, including the right to security of the person and the right to be free from arbitrary detention; the right to a fair trial; the right to freedom of expression; the right to freedom of movement; the right to privacy; the right to be treated with humanity and dignity; the right to protection of the family; and the rights to equality and non-discrimination.16
4.18
The PJCHR continued:
The committee notes that the PDO regime involves very significant limitations on human rights. Notably, it allows the imposition of a PDO on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt. Effectively, PDOs permit a person’s detention by the executive without charge or arrest. The provision for detention of an innocent person (who may not themselves pose a risk to society) for the purpose of preserving evidence is beyond the scope of what is recognised as a permissible denial of the traditional human right to liberty. These have usually been limited to situations where there is reason to believe that an individual would pose a serious danger to society if not detained.17
4.19
The PJCHR ultimately determined that the PDO regime is likely to be incompatible with the human rights engaged above.18

Committee review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015

4.20
In its review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, the Committee supported two amendments to the PDO regime:
1
amending the basis upon which a PDO may be applied for by the AFP to relate to reasonable grounds to suspect that a terrorist act ‘is capable of being carried out, and could occur, within the next 14 days’. Prior to this amendment, the legislation provided that the terrorist act must be ‘imminent’ and ‘is expected to occur, in any event, at some time in the next 14 days’, and
2
removing the ability for serving or retired judges of the Family Court of Australia to be appointed as issuing authorities in relation to PDOs.19

2017 INSLM review

4.21
In his review, INSLM Renwick found that the non-use of PDOs did not automatically lead to a finding that the powers are redundant. He observed that the rise of lone actor threats, who provide little to no investigative lead time for authorities, means there may be a need to act quickly to disrupt those threats, including via use of the PDO regime. Nonetheless, INSLM Renwick accepted that the PDO regime was
of significantly less utility than the complementary regimes which are in force pursuant to state and territory legislation. Given the significant degree of cooperation between law enforcement agencies at the Commonwealth and state and territory level, in particular through the JCTT [Joint Counter-Terrorism Team], there is a real question as to whether the regime in div 105 will ever be used in preference to a state or territory PDO, should circumstances arise which call for a PDO.20
4.22
INSLM Renwick observed that the issue of proportionality of PDOs was ‘finely balanced and difficult’, but
in view of the nature and extent of current terrorist threats, I find that a preventative detention regime in terms of div 105 is necessary and proportionate to that threat.21
4.23
INSLM Renwick recommended that the PDO provisions be continued for a further period of five years. However, he observed that he was not convinced that Division 105 adequately responds to its intended purpose. He stated that the AFP had conceded in evidence to him that complementary state and territory regimes were more likely to be invoked than Division 105, and that the use of Division 105 was ‘likely to be limited to a case where there is a disagreement between the AFP and relevant state police force as to the need for a PDO (or, in the case of NSW, investigative detention).’22

Use of the provisions

4.24
The AFP has not used a Commonwealth PDO since the introduction of the regime in 2005.23
4.25
State and territory PDOs have been used on two occasions, in relation to three individuals in New South Wales in 2014 and one individual in Victoria in 2015.24

Developments in other legislation

4.26
Complementary PDO legislation in states and territories allows for detention of an individual for a period of up to 14 days, rather than the 48 hours allowed for under the Commonwealth regime.25
4.27
Separately, pre-charge detention under Part IC of the Crimes Act 1914 enables persons arrested for terrorism offences to be detained for the purpose of investigating whether they committed the offence, committed another Commonwealth offence, or both. The time for which a person can be detained is complex with certain limitations and provisions for extension in certain circumstances —for more details see Appendix C.
4.28
In 2014, the threshold for police to arrest a person without warrant was lowered from ‘belief on reasonable grounds’ to ‘suspicion on reasonable grounds’ for terrorism offences.26 This became the new threshold that determines whether a person can be held in pre-charge detention under Part IC.27 In reviewing the pre-charge detention model in 2016, INSLM Gyles commented that the lower arrest threshold ‘significantly added to the breadth of practical operation of the power of arrest and subsequent detention prior to charge’.28
4.29
In 2016, NSW introduced ‘investigative detention’ into the Terrorism (Police Powers) Act 2002 (NSW), which used similar thresholds to PDOs to enable detention and questioning of terrorism suspects for up to 14 days.29
4.30
Also in 2016, COAG agreed to introduce nationally consistent laws for pre-charge detention for terrorism suspects, with the NSW model as the basis for any such consistent model.30
4.31
Victoria’s Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers recommended in 2017 that Victoria enhance its preventative detention and investigation powers, in response to perceived deficiencies in the state’s current scheme and in line with the COAG agreement. This would include a new power for police to question a detained person regarding the terrorist act in relation to which they were detained.31 The Victorian Government indicated that it had accepted in-principle the Expert Panel’s recommendations.32
4.32
In October 2017, COAG agreed to the enhancement of the existing Commonwealth pre-charge detention regime under Part IC of the Crimes Act.33 The key features of the proposed model to enhance the Commonwealth pre-charge detention model are:
an initial detention period of 8 hours;
a maximum overall detention period of 14 days, based on a tiered extension application process that enables:
magistrate approved extensions for up to 7 days based on the existing extension application criteria under section 23DF, and
magistrate approved extensions for a further 7 days based on a magistrate being satisfied to a higher threshold that ongoing detention is necessary.
removing disregarded and specified time provisions for Commonwealth terrorism offences, and creating a clear cap on the maximum period of detention.34
4.33
The Attorney-General’s Department submitted that if the proposed COAG enhancements are implemented, then states and territories may ‘no longer find it desirable to implement a model similar to the NSW investigative detention regime’.35

Necessity of the provisions

4.34
Despite the non-use of the Commonwealth provisions to date, the AFP submitted that PDOs play a ‘critical’ role in providing the AFP with powers to prevent terrorist attacks. According to the AFP, the powers are particularly important where
police need to act quickly, and with little warning to prevent a potentially catastrophic attack or to preserve vital evidence in the aftermath of an attack. In those circumstances, traditional policing powers may not be sufficient.
To date, the AFP has not used a Commonwealth PDO since their introduction in 2005. However, the JCTTs have used state-based PDO legislation on a number of occasions in NSW and Victoria, where PDO legislation permits police to detain a person for considerably longer.
The AFP considers Commonwealth PDOs an important emergency power that complements state and territory PDO powers. The JCTT model allows law enforcement to utilise the best tools available in any particular investigation, whether they be state/territory or Commonwealth powers. Decisions around which powers to use are made jointly between Commonwealth and the relevant state/territory police agency.36
4.35
Non-government submitters to this inquiry generally did not agree with the AFP’s submission, or the findings of INSLM Renwick, instead arguing that the PDO regime was unnecessary, disproportionate to its objective, and should be repealed.
4.36
For example, Legal Aid New South Wales submitted that Division 105 ‘should be allowed to expire as these powers are an unnecessary and disproportionate response to the threat of terrorism.’37
4.37
Similarly, Dr Jessie Blackbourn et al submitted that PDOs are an extraordinary power, are unnecessary and should be repealed. They argued:
The power to detain individuals incommunicado on the basis that they are reasonably suspected of involvement in terrorism is extraordinary and does not exist in any comparable nation. Division 105 clearly infringes the freedoms of movement, association and from arbitrary detention. It also infringes client legal privilege as any communication between the person and a lawyer must be capable of being monitored. The infringement of these rights is unjustified.38
4.38
Dr Blackbourn et al noted that a range of other law enforcement powers are likely to be available to prevent an imminent terrorist act from occurring which are likely to be more effective than PDOs due to the prohibition on questioning persons subject to a PDO. They submitted:
where evidence is available to support Ground A (i.e. to prevent an imminent terrorist attack from occurring), one would expect a range of alternative measures to be available. These include: questioning under the pre-charge detention regime in Part IC of the Crimes Act 1914 (Cth); laying of charges for preparatory or other terrorism offences (especially in combination with the inchoate offences of attempt, conspiracy and incitement); obtaining control orders over relevant persons; or, finally, applying for an Australian Security Intelligence Organisation Questioning Warrant. Each of these measures is likely to be far more effective in preventing terrorism because it permits questioning of the subject.39
4.39
They argued that in light of the range of other powers that are likely to be available, and the ‘extreme impact of detention as a means of preserving evidence’, PDOs are unnecessary and should be repealed.40
4.40
INSLM Walker raised similar concerns in his 2012 review:
There is, simply, no actual experience of any kind to draw on when reporting on the CT Laws’ innovation which is the PDO. None has been made. No-one has seriously considered seeking a PDO, according to an exhaustive review of all relevant files. This must raise serious doubts about the effectiveness, appropriateness and necessity of the PDO provisions. These doubts do not lessen upon consideration of these provisions as policy and in principle.41
4.41
INSLM Walker concluded that, rather than using PDOs, police should instead rely on their established powers to take action against suspected criminals through the arrest, charge, prosecution and lengthy incarceration of suspected terrorists:
This traditional law enforcement approach operates in accordance with fair trial and due process rights and is undoubtedly more effective as a preventive tool. The best possible outcome from a policing perspective is to prosecute individuals involved in terrorism. The prosecution, conviction and incarceration of such people will protect the public for a far greater period of time, with lengthy incarceration unquestionably more effective as a preventive strategy than detention for a maximum of two days under a PDO (or 14 days under a State or Territory PDO).42
4.42
In light of the range of powers available to law enforcement agencies to deal with terrorism threats, INSLM Walker noted that:
There is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism. No concrete and practical examples of when a PDO would be necessary to protect the public from a terrorist act because police could not meet the threshold to arrest, charge and remand a person for a terrorism offence have been provided or imagined.43
4.43
In response to these concerns, the Attorney-General’s Department and the AFP explained that the purposes of the various powers available to law enforcement vary. The purpose of a PDO is to protect the public from harm by detaining an individual for the purpose of preventing a terrorist act, or to preserve evidence relating to a terrorist act. In contrast, the purpose of detaining a person post-arrest under Part IC of the Crimes Act 1914 is to investigate whether a person has committed an offence. The legislative gap that PDOs are intended to fill and their relationship with other powers was described as follows:
To obtain a PDO, it is not necessary that an individual be arrested pursuant to section 3WA [of the Crimes Act]. However, nothing prevents an individual who has been detained under a PDO from being later arrested on suspicion of having committed a Commonwealth terrorism offence and being transferred to detention under Part IC.
In the current threat environment, where there is an increase in the threat of smaller-scale opportunistic attacks by lone actors, and where there is less time for law enforcement agencies to respond to an attack, the PDO is a valuable tool which enables police to disrupt terrorist activity. Where there is little to no lead time to disrupt a terrorist act, there may not be sufficient information available on the individual(s) to meet the arrest threshold under section 3WA of the Crimes Act 1914. Under such circumstances, a PDO will enable police to detain an individual for up to 48 hours, in order to prevent a terrorist act.44
4.44
The Committee sought to ascertain whether the agreed enhancements to the Commonwealth pre–charge detention regime, agreed to by COAG in October 2017, would reduce the need for separate PDO provisions. In particular, the Committee sought to clarify whether the threshold for pre-charge detention under Part IC of the Crimes Act would be amended under the enhancements. In doing so, the Committee noted that the ‘investigative detention’ regime implemented in New South Wales allows a person to be taken into custody and questioned using a similar threshold to that available under a PDO.45 However, the AFP confirmed that the existing arrest threshold would continue to apply to the Part IC regime:
The threshold for arrest would still be ‘reasonable suspicion’ of the commission of a terrorist offence, whereas PDOs are more directed at wanting to prevent a terrorist act from happening or where a terrorist incident has occurred—where there’s been a bomb going off or what have you. That’s a lower threshold than suspecting the commission of an offence itself. The COAG reforms would be looking to streamline and clarify how long we can hold a person for detention after arrest and how questioning works during that period, with an ultimate cap of 14 days, to make it clear. State PDO legislation is 14 days. In theory, they could look like they run alongside, but the key difference for the part 1C powers is being able to question the person while your investigation is continuing.46
4.45
Legal Aid New South Wales considered that the short life span of a Commonwealth PDO—a person may be detained for up to 48 hours in total—meant that ‘the powers are unlikely to be used, as most states have powers to detain that extend for up to 14 days.’47
4.46
INSLM Renwick similarly found this to be an issue. He stated:
as the AFP acknowledged at the public hearing, the PDO regime in div 105 is of significantly less utility than the complementary regimes which are in force pursuant to state and territory legislation. Given the significant degree of cooperation between law enforcement agencies at the Commonwealth and state and territory level, in particular through the JCTT, there is a real question as to whether the regime in div 105 will ever be used in preference to a state or territory PDO, should circumstances arise which call for a PDO.48
4.47
However, the Department and the AFP disputed any suggestions that state powers, which are potentially available under JCTT arrangements, make Commonwealth PDOs unnecessary:
there are a number of reasons why Commonwealth PDO powers are not rendered unnecessary by these arrangements. State and Territory PDO regimes are not uniform, and Commonwealth PDOs have the benefit of applying consistently across Australia. Furthermore, State and Territories may review and amend their powers as they see fit. Given AFP counter-terrorism teams work across all jurisdictions, Commonwealth PDOs provide an important baseline level of national consistency for the AFP.
Given the differences in PDO regimes across the State and Territory jurisdictions there are some hypothetical scenarios in which the JCTTs may consider using Commonwealth PDO powers. For example, NSW interim PDOs can only be issued by the NSW Supreme Court, whereas a Commonwealth PDO may be issued by a senior AFP member (an AFP member of, or above, the rank of Superintendent). In a scenario where the NSW JCTT needed a PDO to be issued very urgently, it would likely be faster to apply for a Commonwealth PDO. This would of course be balanced by the different periods of detention available under the State and Commonwealth regimes.
As another example, in the ACT, a PDO cannot be issued for a child under the age of 18 years, whereas Commonwealth PDOs may be issued in relation to a person who is 16 years of age or older. In circumstances where the AFP needed to detain a 16 or 17 year old for preventative purposes, the AFP would consider applying for a Commonwealth PDO.49
4.48
The Committee asked the AFP and the Attorney-General’s Department for hypothetical scenarios which would demonstrate why PDOs were necessary, and what gap in legislative powers they filled. In response the AFP provided the following hypothetical example.

Box 4.1:   Hypothetical example

Mass casualty attack
Consider there has been an explosion in a crowded place in the Melbourne central business district. There are significant casualties. Police arrest a person suspected of causing the explosion and establish that the terrorist suspect had called an unknown associate around the time of the attacks. The associate is previously unknown to police, and at this stage, there is insufficient information to reach the threshold for arrest, and further investigation is required. A Commonwealth PDO is issued by a senior AFP member in relation to the associate.50

Questioning a detained person

4.49
A further issue considered during this inquiry was the impact on counter-terrorism investigations of the inability to question a person subject to a PDO. In 2012, INSLM Walker found that this prohibition on questioning was particularly problematic:
The inability to question a person detained under a PDO for law enforcement or intelligence purposes renders them useless as an investigative tool… This is a complete and automatic statutory bar on all communication between police or intelligence officers and a person detained under a PDO and applies even where the detained person volunteers to cooperate and answer questions or provide information that may assist in preventing a terrorist act.51
4.50
INSLM Walker suggested that this prohibition on questioning ‘could have a detrimental effect on the prevention of terrorist acts by preventing the voluntary sharing of information with police and intelligence agencies.’52
4.51
The Attorney-General’s Department and the AFP explained that the purpose of this prohibition ‘is to ensure there is a clear demarcation between those police powers which are preventative in nature, and those which are investigative in nature.’ They continued:
The PDO regime serves a preventative purpose by ensuring that police officers have a disruption tool available where there is not sufficient evidence to arrest an individual in relation to a Commonwealth terrorism offence. Where an individual is arrested on suspicion of having committed a Commonwealth terrorism offence under section 3WA of the Crimes Act 1914, they may be detained under Part IC and questioned for the purposes of laying charges.
A clear demarcation between preventative and investigative police powers ensures that there is clarity for law enforcement agencies in the application of these powers. It ensures that at any point in time during the course of detention, both police officers and the detainee are aware of the purpose of detention.53
4.52
The Attorney-General’s Department and the AFP acknowledged that comparable nations, such as the United Kingdom, Canada, New Zealand and the United States, ‘do not have powers directly equivalent to the PDO regime’. However, they advised that those countries
have other mechanisms, with similar effect, allowing police to detain, control and monitor individuals suspected of conducting terrorism acts prior to charging those individuals. For example, the United Kingdom permits up to 14 days of investigative detention without charge for individuals suspected of committing terrorism offences, or individuals concerned in the commission or preparation of terrorist acts. The Canadian Criminal Code also has preventative arrest provisions which allow for a peace officer to arrest and detain an individual if it is likely to prevent terrorist activity.54
4.53
In his report, INSLM Renwick observed that, in light of the increase in the threat of smaller-scale opportunistic attacks by lone actors, with the concomitant risk of little to no lead time to prevent a spontaneous attack, the need to act quickly to disrupt terrorist activity, and prevent potentially catastrophic consequences, may call for the use of PDOs.55
4.54
However, the Australian Human Rights Commission questioned the INSLM’s finding that the advent of lone-actor attacks justified the retention of PDOs. In its view, PDOs ‘would appear to be much more relevant to responding to complex plots involving multiple parties and significant planning than to simple attacks by lone actors.’ The Commission submitted that it remained unclear why PDOs are necessary and well-adapted to respond to this increased lone-actor threat, particularly in light of the range of police powers to arrest a person suspected of committing terrorism offences.56

Use of PDOs for preservation of evidence

4.55
Dr Jessie Blackbourn et al expressed their concerns about the prospect of the PDO powers being used for the purpose of preserving evidence of a terrorist act. They submitted:
where evidence is available to support Ground B (i.e. to preserve evidence relating to a recent terrorist attack), it is arguably easier to appreciate the function that a PDO may serve. However, even though it aims to assist criminal investigations, detention of individuals – without any requirement of wrongdoing or even suspicion of wrongdoing on their part – is an extraordinary measure. It may potentially allow detention of large groups of people from ‘suspect communities’ based upon crude racial profiling in the wake of a terrorist incident. This occurred in the United States after September 11, with many people held under ‘material witness’ provisions. This is a highly undesirable way in which to conduct efficient police investigations that respect the rights of innocent people.57
4.56
INSLM Walker, in his 2012 review, similarly expressed concern at a PDO being issued against an innocent person. He stated:
A person should not be detained solely on the basis of their having some evidence of a terrorist act. The PDO provisions do not even require that the evidence be material evidence, just that it be evidence. The situation where an innocent bystander with no guilty knowledge of or involvement in a terrorist act has such crucial evidence that their detention is necessary to preserve the evidence is an unlikely one, bordering on the fantastic. Such an unlikely situation could be dealt with by normal police powers to search and seize evidence (search warrants are readily available to the police on a reasonable suspicion basis). The arrest provisions in the Crimes Act will adequately capture a situation where an accomplice to a terrorist act has evidence of the terrorist act and their detention is necessary to preserve that evidence. The arrest provisions under the Crimes Act provide police with the power to arrest a person where a police officer believes on reasonable grounds that the person has committed or is committing an offence and their arrest is necessary to prevent the concealment, loss or destruction of evidence relating to the offence. And questioning warrants under the ASIO Act … are made to measure for this situation.58
4.57
In response to a question from the Committee, the Attorney-General’s Department and the AFP provided the following explanation as to the circumstances in which a PDO may be available against a non-suspect for the purpose of preserving evidence of a terrorist act:
The AFP would consider applying for a PDO for the purpose of preserving evidence in a situation where there are reasonable grounds to suspect an individual possesses a thing that is connected to a terrorist act. As a hypothetical example, the AFP may consider applying for a PDO in a situation where a terrorist suspect has given a bag containing an explosive device to a second person who is believed to have no knowledge of its contents and refuses to cooperate with police.
In order to apply for a Commonwealth PDO, the applicant must be satisfied that detaining the subject for the specified period is reasonably necessary for the purpose for which the PDO has been applied for. Where a less restrictive power is available and appropriate, it is unlikely the AFP would satisfy the test for a Commonwealth PDO. The availability of other, less restrictive powers would depend on the specific circumstances of the case, including the degree of information available to support use of other powers including arrest, and for a non-suspect, whether that person is cooperating voluntarily with police directions. Where an individual is not a suspect and is cooperating with police, it is unlikely that police would apply for a PDO.59
4.58
In response to a further question, the AFP stated:
The AFP considers that a PDO (whether under Commonwealth or State/Territory legislation) may be an appropriate response for dealing with a non-suspect for the purpose of preserving evidence in limited circumstances. Such circumstances may arise, for example, where it is clear that a terrorist attack has occurred but police do not yet have any other information available to them to support the use of other powers. In this scenario, it may not be clear whether the person is a suspect or not. If the person fails to cooperate with police, there may not be any alternative powers for police to rely on to contain the threat presented by the person or to preserve vital evidence.60

Human rights considerations

4.59
A number of submitters expressed their concerns with the way in which, in their view, the PDO regime restricts human rights.
4.60
For example, Dr Jessie Blackbourn et al observed that ‘Division 105 clearly infringes the freedoms of movement, association and from arbitrary detention. It also infringes client legal privilege as any communication between the person and a lawyer must be capable of being monitored. The infringement of these rights is unjustified.61
4.61
Australian Lawyers for Human Rights suggested that PDOs:
violate a person’s right to freedom from arbitrary detention and the right to a fair trial. Moving perilously close to a system which allows arbitrary detention at the discretion of the executive arm of government does not make Australia a safer place. In fact it makes us less safe by threatening the principles that form the fundamental structure of our criminal justice system.62
4.62
The Australian Human Rights Commission submitted that the PDO regime is ‘extraordinary’ and places ‘very severe restrictions on the human rights of those subject to them’. In particular, the Commission suggested the PDO regime:
Does not require the subject of a PDO to be informed of the reasons for their detention, impinging significantly on article 9(2) of the ICCPR. Applications for a PDO are made ex parte and key information supporting the PDO application may be withheld on national security grounds.
Does not allow for meaningful review of the merits of the issuance of a PDO by a competent judicial authority while the PDO remains in force. The subject of the PDO, therefore, has no meaningful opportunity to challenge their detention, contrary to article 9(4) of the ICCPR.
Arguably infringes the right to a fair trial in a suit at law, contrary to article 14(1) of the ICCPR. The subject of a PDO is, in effect, being restricted by punitive measures without ever having been convicted of a criminal offence. The opportunity to challenge the information supporting the order is restricted, if not impossible. The subject of a PDO also has limited opportunity to speak with a legal representative and such communication is not protected by legal professional privilege.63
4.63
As a result, the Commission recommended that ‘in the absence of compelling evidence that the provisions are necessary and proportionate to achieving a legitimate objective, Division 105 of Part 5.3 of the Criminal Code should be repealed.’64
4.64
The Australian Lawyers Alliance similarly argued that PDOs ‘effectively constitute incommunicado detention, without charge or trial’65 and that ‘there should be no place for such powers in a liberal democracy such as Australia.’66 The Alliance added that PDOs:
impact on the right to liberty, and can have broader ramifications in relation to a person’s ability to work, maintain a family life or engage in education. They also impact on the right to freedom of expression of the detainee, or anyone who knows about the order, imposing criminal sanctions for disclosing the existence of the order or other details.67
4.65
Similar concerns were expressed to INSLM Renwick during his review. INSLM Renwick ultimately concluded that Division 105 was proportionate to the current terrorist threats, and provides ‘adequate protection of individual rights’.68

Threshold test

4.66
The Law Council submitted that the current legislative test for the issue of a PDO—that a terrorist act is one that ‘is capable of being carried out, and could occur, within the next 14 days’—is too broad and may not ensure that only situations where there is a real risk of a terrorist act occurring are captured. The Law Council argued:
The current test does not appear to balance the intrusion on a person’s liberty against the low possibility of a terrorist attack occurring. A more appropriate balance needs to be struck. 69
4.67
As a result, the Law Council recommended that the threshold be amended from ‘a terrorist act is one that … is capable of being carried out, and could occur, within the next 14 days’ to ‘a terrorist act is one … that is likely to occur within the next 14 days.’70
4.68
Jacinta Carroll of the National Security College questioned the appropriateness of this threshold change in a counter-terrorism environment where plots can emerge with little warning. She noted:
… We have seen, for example—I’ll note two things—a disruption that occurred in Bankstown last year that you would be aware of, where there were two young men who were assessed to be minutes away from conducting a terrorist attack using bladed weapons. The Joint Counter Terrorism Team, which was watching this from some distance away and linked effectively into the police operational response, could see this thing happening and did not have the time to be able to deploy the right specialist people to respond to it. General duties police in the local area command had to respond to this incident. It’s useful in that situation that these people, because of their associations, were under active investigation and real-time investigation by the JCTT, but that won’t always be the case.
So, we have two elements: what can the first responders do, and, secondly, in a case for the first responder just comes upon an action and an attack that is in progress, without any assessed understanding of what else might be going on, then they need to have all the powers that they need to be able to protect the public.71
4.69
In response to the Law Council’s recommendation, the AFP stated:
I think each time you try and adjust the threshold it creates more challenges for where we can and cannot use the powers. We’ve worked to a point where we think that the settings in the current legislation are probably the most appropriate. Any further raising of the threshold, which those words might do, would make it a bit more problematic for us to use, noting that we would probably only use them in very limited circumstances.72
4.70
INSLM Renwick considered the Law Council’s proposed threshold change during his review, but ultimately did not support it:
The test that the LCA advocates imposes a less onerous requirement than the original provision, formulated as it is in terms of likelihood. Nonetheless, it requires a higher level of certainty than is, to my view, practical in view of the threat of terrorist activity in the present day. Subject to the views that I have expressed above regarding the availability of PDOs more generally, I am satisfied that the test in s 105.4 of the Criminal Code is appropriately formulated; if div 105 remains in force, it should remain in place.73
4.71
A similar recommendation was also considered by the Committee in its review of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, which introduced the current threshold (as outlined earlier in this chapter). The Committee did not accept the proposal at that time, and considered that it was unclear that such an amendment would overcome the problems with the existing overly-restrictive requirement that a terrorist act must be ‘expected to occur, at any event, within 14 days’.74

Committee comment

4.72
The Committee recognises at the outset that the PDO regime is extraordinary. No comparable country possesses similar powers to detain people without suspicion or charge in order to prevent a terrorist act or preserve evidence relating to a terrorist act.
4.73
The Committee supports the intention of this legislation—the protection of the community from terrorist acts—and reiterates its long-stated position that Australia’s law enforcement and security agencies must be suitably equipped to respond to the security environment. However, the powers must be tailored and proportionate to their legitimate purpose, and subject to scrutiny and oversight.
4.74
The powers were introduced in 2005 to respond to what was seen, at the time, as the principal threat to Australia from terrorism: sophisticated, large-scale attacks, such as that which had just occurred in London. The Committee notes the evidence of the AFP that, while those large-scale threats have not gone away, the current security environment also faces smaller-scale, lone-actor attacks. These threats present significant challenges for law enforcement and security agencies to identify and address.
4.75
The question for the Committee, therefore, is whether these extraordinary powers remain necessary, appropriately targeted and proportionate in the current threat environment.
4.76
INSLM Renwick pointed to the ‘lone-actor’ threat as, in part, justification for his recommendation that the PDO regime be continued. The Committee notes the view of INSLM Renwick that, despite the issue being ‘finely balanced and difficult’, the regime is necessary and proportionate to the current threat. INSLM Renwick also concluded that there is adequate protection of human rights.
4.77
The Committee acknowledges the views of some submitters to this inquiry that the non-use of the provisions in twelve years, and the potential availability of alternative law enforcement powers (including, state-based PDO regimes and the Commonwealth pre-charge detention regime), points to a conclusion that Commonwealth PDOs are unnecessary.
4.78
However, the Committee considers PDOs to be a power of ‘last resort’ that are only expected to be used in times of an unfolding emergency (or in its immediate aftermath) and when the traditional investigative powers available to law enforcement are inadequate to contain the threat. The fact that the AFP has never used PDOs at a Commonwealth level reflects that this purpose is understood. Similarly, the existence of state and territory powers does not obviate the need for the Commonwealth regime.
4.79
The bar on questioning a person subject to a PDO has led some to conclude that the powers are not necessary, as they do not assist the investigation of terrorism acts. However, the Committee notes that the purpose of the provisions is the protection of the community via the prevention of terrorism acts, not the investigation of terrorism offences. Alternative powers are available to law enforcement and security agencies for the purpose of investigations include pre-charge detention of terrorism suspects under Part IC of the Crimes Act, and coercive questioning powers under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
4.80
The Committee accepts evidence from the AFP that Commonwealth PDOs are important emergency powers that complement state and territory PDO powers. In the current threat environment, it is important that the AFP be empowered to respond to a range of possible threats to the community. The Committee therefore considers that the PDO regime should be continued.
4.81
INSLM Renwick recommended that the PDO regime continue for a further five years. The Committee considers, however, that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will provide an opportunity to examine the continued necessity for the PDO regime in light of the security environment at the time and any developments in other legislation.

Recommendation 11

4.82
The Committee recommends that the preventative detention regime in Division 105 of the Criminal Code Act 1995 be continued, with the provisions sunsetting after three years.

Recommendation 12

4.83
The Committee recommends that the Intelligence Services Act 2001 be amended to require the Committee to conduct a further review into the operation, effectiveness and implications of the preventative detention order regime in Division 105 of the Criminal Code Act 1995 prior to the sunset date.
4.84
Under paragraphs 29 (baa) and (bab) of the Intelligence Services Act 2001, it is currently a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code (including the PDO regime) and to report its findings to the Parliament. In line with this existing function, the Committee recommends that that the AFP be required to notify this Committee as soon as practicable after any PDO is made. The Committee may then request a written or oral briefing on the circumstances surrounding the making of the order.

Recommendation 13

4.85
The Committee recommends that the Australian Federal Police be required to notify the Committee as soon as practicable after a preventative detention order is made under Division 105 of the Criminal Code Act 1995, and to brief the Committee if requested.
Mr Andrew Hastie MP
Chair

  • 1
    Criminal Code Act 1995, s. 105.1
  • 2
    Division 105 makes provision for initial PDOs and continued PDOs. To obtain an initial PDO (which authorises detention for up to 24 hours), an AFP member may apply for an initial PDO to a senior AFP member. To obtain a continued PDO (which authorises detention for up to 48 hours), applications may be made to persons appointed by the Attorney-General who are a judge of a State or Territory Supreme Court, or of the Federal Court or Federal Circuit Court, or a person who has served as a judge in a superior court, or a person who is the President or Deputy President of the Administrative Appeals Tribunal.
  • 3
    Criminal Code, s. 105.4(6).
  • 4
    Criminal Code, s. 105.42.
  • 5
    Criminal Code, s. 105.35.
  • 6
    Independent National Security Legislation Monitor (INSLM), Declassified Annual Report 20th December 2012, p. 4.
  • 7
    INSLM, Declassified Annual Report 20th December 2012, p. 45.
  • 8
    INSLM, Declassified Annual Report 20th December 2012, p. 57.
  • 9
    INSLM, Declassified Annual Report 20th December 2012, p. 67.
  • 10
    INSLM, Declassified Annual Report 20th December 2012, p. 67.
  • 11
    Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, p. 71.
  • 12
    Council of Australian Governments, Review of Counter-Terrorism Legislation, 2013, pp. 69-70.
  • 13
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 68.
  • 14
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 68.
  • 15
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, p. 79.
  • 16
    Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 20.
  • 17
    Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 21.
  • 18
    Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament, 2014, p. 22.
  • 19
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, February 2016, pp. 151, 154.
  • 20
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.
  • 21
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.
  • 22
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, pp. 80-81.
  • 23
    Australian Federal Police, Submission 9, p. [5].
  • 24
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 5.
  • 25
    See Attorney-General’s Department, ‘Preventative Detention Orders’, <https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/PreventativeDetentionOrders.aspx> viewed 17 January 2018.
  • 26
    Crimes Act 1914, section 3WA.
  • 27
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 19.
  • 28
    INSLM, Certain Questioning and Detention Powers in Relation to Terrorism, October 2016, p. 32.
  • 29
    Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 (NSW).
  • 30
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.
  • 31
    State of Victoria (Department of Premier and Cabinet), Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers – Report 1, 2017, p. 24.
  • 32
    Victorian Government, Submission 5, p. [1].
  • 33
    Council of Australian Governments, Special Meeting of the Council of Australian Governments on Counter-Terrorism: Communiqué, Canberra, 5 October 2017, p. 2.
  • 34
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 20.
  • 35
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.
  • 36
    Australian Federal Police, Submission 9, p. [4].
  • 37
    Legal Aid New South Wales, Submission 11, pp. 8-9.
  • 38
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 3.
  • 39
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 4.
  • 40
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 6.
  • 41
    INSLM, Declassified Annual Report 20th December 2012, p. 45.
  • 42
    INSLM, Declassified Annual Report 20th December 2012, p. 67.
  • 43
    INSLM, Declassified Annual Report 20th December 2012, p. 67.
  • 44
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 19.
  • 45
    Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 (NSW). The provisions define a ‘terrorism suspect’ as a person for whom there are reasonable grounds for suspecting that the person has committed or will commit a terrorist act; or the person is or has been involved in preparing or planning for a terrorist act, or the person possesses a thing that is connected with the commission of, or the preparation or planning for, a terrorist act.
  • 46
    Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 37.
  • 47
    Legal Aid New South Wales, Submission 11, p. 8.
  • 48
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.
  • 49
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 23.
  • 50
    Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 3.
  • 51
    INSLM, Declassified Annual Report 20th December 2012, p. 56.
  • 52
    INSLM, Declassified Annual Report 20th December 2012, p. 57.
  • 53
    Attorney-General’s Department and Australian Federal Police, Submission 13, p. 21.
  • 54
    Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 19-20.
  • 55
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.
  • 56
    Australian Human Rights Commission, Submission 3.1, p. 15.
  • 57
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, pp. 4-5.
  • 58
    INSLM, Declassified Annual Report 20th December 2012, p. 56.
  • 59
    Attorney-General’s Department and Australian Federal Police, Submission 13, pp. 23-24.
  • 60
    Attorney-General’s Department and Australian Federal Police, Submission 13.1, p. 3.
  • 61
    Dr Jessie Blackbourn, Professor Andrew Lynch, Dr Nicola McGarrity, Dr Tamara Tulich, and Professor George Williams AO, Submission 2, p. 3.
  • 62
    Australian Lawyers for Human Rights, Submission 10, p. 15.
  • 63
    Australian Human Rights Commission, Submission 3, pp. 15-16.
  • 64
    Australian Human Rights Commission, Submission 3, p. 19.
  • 65
    Australian Lawyers Alliance, Submission 4, p. 13.
  • 66
    Australian Lawyers Alliance, Submission 4, p. 14.
  • 67
    Australian Lawyers Alliance, Submission 4, pp. 17-18.
  • 68
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 80.
  • 69
    Law Council of Australia, Submission 12, pp. 14-15.
  • 70
    Law Council of Australia, Submission 12, p. 15.
  • 71
    Ms Jacinta Carroll, National Security College, Committee Hansard, Canberra, 1 December 2017, p. 22.
  • 72
    Ms Elsa Sengstock, Australian Federal Police, Committee Hansard, Canberra, 1 December 2017, p. 37.
  • 73
    INSLM, Reviews of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders, 2017, p. 82.
  • 74
    Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, February 2016, p. 149.

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