Chapter 3 - Preventative Detention
This chapter will outline the proposed regime for
Commonwealth preventative detention orders and discuss the issues and concern
raised during the inquiry in respect of that regime.
Outline of the preventative detention regime
Item 24 of Schedule 4 amends the Criminal Code to insert new Division 105. The new
Division provides for a regime of preventative detention for up to 48 hours for
the purpose of preventing an imminent terrorist act occurring and to prevent
the destruction of evidence relating to a terrorist act. These objectives are stated in
proposed section 105.1 and reflected in the new subsections 105.4 (4) and (6).
The latter subsections provide the grounds for two distinct types of detention:
detention before a terrorist act occurs in order to prevent an act of terrorism; and
detention after an act of terrorism
occurs to preserve evidence.
The scheme provides that AFP members may apply for
either type of preventative detention order.
The AFP member applying for an order must set out the facts and grounds upon
which the application is based. The information must be sworn or affirmed if
the application is for a continued preventative detention order.
Members of the AFP of the rank of superintendent or above
may grant and extend initial preventative
detention orders for a period up to 24 hours.
preventative detention order may be granted by a serving Federal Judge or
Magistrate, a retired judge of a superior court, the President or Deputy President
of the AAT in respect of a person
already detained under an initial preventative detention.
A continuing preventative detention order may be granted, extended and
further extended to bring the total period of continuous preventative detention
to a maximum of 48 hours. An order
cannot be applied for or made for a person under the age of 16 years.
To make or extend preventative detention orders to prevent an imminent terrorist act, the
issuing authorities must be satisfied on the basis of information provided by
the AFP that there are reasonable grounds to suspect that the person:
will engage in a terrorist act; or
possesses a thing that is connected with the
preparation for, or the engagement of a person in, a terrorist act; or
has done an act in preparation for, or planning,
of a terrorist act.
The issuing authority must also be satisfied that:
the order would substantially assist in
preventing an imminent terrorist act;
detaining the person for the period for which
the person is to be detained under the order is reasonably necessary to achieve
that purpose; and
the terrorist act is imminent and expected to
occur within the next 14 days.
Proposed subsection 105.4 (6) provides that a
preventative detention order can also be made where the issuing authority is
a terrorist act has occurred within the
preceding 28 days; and
it is necessary to detain the person to preserve
evidence of or relating to the terrorist act; and
detaining the subject for the specified period
is reasonably necessary to preserve evidence of or relating to the terrorist
The person detained must be given a copy of the initial
order and a summary of the grounds, excluding information which is 'likely to
prejudice national security' (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act
2004). The effect of an initial preventative
detention order must be explained to the detainee, as soon as practicable,
after the person has been taken into custody.
This obligation includes a requirement to inform the person of their right to
seek a remedy in a federal court and their right to complain to the
Commonwealth Ombudsman under the
Complaints (Australian Federal Police) Act 1981 or to an equivalent State
or Territory body.
A detainee may be held in police custody or at a prison
or remand centre of a State or Territory during the period of the preventative
detention order. Proposed section
105.33 requires that a person taken into custody or detained under a
preventative detention order must be treated with humanity, with respect for
human dignity and must not be subjected to cruel, inhuman or degrading
Police interrogation of the detainee is prohibited
except to: confirm the detainee's identity; ensure the detainee's safety and
well being; or otherwise to allow the police to carry out their obligations
under the Division. However, it is
apparent that preventative detention orders can operate in conjunction with:
ASIO’s compulsory questioning and detention
powers under the Division 3 of Part III of the ASIO Act; and
police investigation and questioning related to
suspected criminal offences, including questioning governed by Part 1AA and
Part IC of the Crimes Act.
Proposed section 105.34 restricts a detainee's ability
to contact other people. It provides that a detainee is prevented from
contacting anyone, except where permitted by the Bill.
The proposed section permits a detainee to have contact with certain classes of
people by telephone, fax or email but 'solely'
for the purpose of letting those persons know the detainee is ‘safe but is not able to be contacted for
the time being'.
Special contact rules apply to a detainee who is under
18 years old or who are considered incapable of managing their affairs. These allow the detainees to disclose: the
fact of the detention order; that the person is being held subject to the order;
and the period of detention. A detained minor is entitled to a minimum of 2
hours contact with a parent, guardian etc per day or longer at the discretion
of the AFP or as specified in the order. Contact may be made by visit as well
as by telephone, fax or email.
Proposed section 105.41 makes it an offence for a
detainee to make an unauthorised disclosure. It also criminalises secondary
disclosures by a person who has been contacted by the detainee (such as a
lawyer or a family member or guardian of a person under 18 years). The offence provisions also apply to interpreters
and police officers who have assisted in the monitoring of contact with the
detainee (see below). The offences
apply while the person is being detained under the preventative detention order
and attract a maximum of five years imprisonment.
The right to contact with other people is also subject to
the discretion of the issuing authority. The issuing authority may issue a
prohibited contact order to prevent communication by the detainee with another
person where the issuing authority is satisfied that the exclusion 'would assist in achieving the objectives of
the preventative detention order’.
A prohibited contact order may be applied to a
particular lawyer. However, in those
circumstances, or where a person is unable to contact a lawyer of their choice,
there is an obligation to provide reasonable assistance to the person to
identify and contact another lawyer for the purpose of providing advice about
rights in relation to a preventative detention order. Proposed section 105.37 imposes
restrictions on the scope of legal advice and representation that may be
provided by a lawyer to the person while the person is in custody.
Proposed section 105.38 requires that all communication
between the detainee and other people must done is such a way that the meaning
and content of the communication can be subject to monitoring. The requirement
to monitor communications includes, among others, all communications between
the detainee and their lawyer.
A senior AFP member, who is not involved in the making
of the preventative detention order, must be nominated to oversee the exercise
of powers and performance of obligations in relation to the preventative
detention order. It is the duty of
this senior member to receive and consider representations from the detainee,
their lawyer, parent, guardian or another person representing the detainee's
interests. Representations may be
made in relation to the exercise of any powers or obligation, including the
revocation of the preventative detention order and prohibited contact orders
and the treatment of the person while in detention.
A preventative detention order must be revoked on the application of the AFP, where
the grounds on which the order was made cease to exist. As noted above, the
detainee, their lawyer or other person representing their interests may make
representations to nominated senior AFP member for revocation of the order.
The Bill recognises the
general right of detainees to access a court for a remedy in relation to a
preventative detention order or their treatment while held in detention. The
right to make an application to a federal court may be made at any time and a
person must be informed of their right to do so.
However, proposed subsection 105.51(4) excludes the application of the Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act) to any decision made under Division 105.
The Bill provides
detainees with a right to apply to the Security Appeals Division of the
Administrative Appeals Tribunal for merits review of a decision to issue,
extend or further extend an initial or continued Commonwealth preventative
detention order. The Tribunal may
declare the order void and order compensation.
The application for review cannot be made while the order is in force. Proposed subsection 105.51(9) provides
that the Administrative Appeals Tribunal
Act 1975 (AAT Act) will apply to an application to the AAT to review, subject to any modifications
specified in regulations to be made under that Act.
A State or Territory Court has no jurisdiction in
proceedings for a remedy in relation to a Commonwealth preventative detention
order or treatment of the person detained under a Commonwealth order while the
order is in force. If the
person is also detained under a State order and brings proceedings for review
of that order in a State or Territory Court, that court may review the
Commonwealth order on the same grounds and grant the same remedies available
under State or Territory law that would apply to the review of the State order.
Proposed subsections 105.52(3) and (4) provides that a State or
Territory Court may order the AFP Commissioner to give the court and parties to
the proceedings the information that was put before the person who issued the
Commonwealth order - subject to the requirements of the National Security Information (Criminal and Civil Proceedings) Act
Comparison with overseas laws
The committee understands that the Bill's
provisions were modelled in part on the counter terrorism laws enacted in the
United Kingdom (UK). The following section summarises some of the key UK
provisions as well as relevant Canadian law
Contrast with the Terrorism Act
The Terrorism Act
2000 (UK) provides
for arrest without warrant of a person reasonably suspected of being a
‘terrorist’ in the context of a terrorist investigation. A ‘terrorist’ is defined by that Act as a
person who has committed certain offences or is or has been concerned in the
commission, preparation or instigation of acts of terrorism.
It does not require reasonable suspicion of a specific
criminal offence and may not necessarily result in a charge. However, the UK
detention regime is not preventative detention per se, but is better described as pre-charge detention which is
explicitly linked to the investigation of terrorist offences.
Police review (within 48 hours)
The police may detain terror suspects for up to 48
hours from the time of their arrest. The detention is subject to review by a
reviewing officer, who is a senior police officer not involved in the
investigation. An initial review must be
conducted by an inspector as soon as practicable after arrest and at 12 hourly
intervals. After 24 hours, the review must be conducted by a superintendent. Before authorising a person's
continued detention, a review officer must give the detained person or their
solicitor an opportunity to make representations – either orally or in writing.
Continued detention may be authorised by the reviewing
officer only if the review officer is satisfied that it is necessary to: obtain
relevant evidence whether by questioning him or otherwise; preserve relevant
evidence; detain pending the making of a deportation notice by the Home
Secretary; or detain pending a decision whether or not to charge the person. A review officer is subject to a duty not to
authorise continued detention for the purpose of obtaining or preserving
evidence, unless he is satisfied the investigation is being conducted diligently
Inter partes hearing to extend
detention beyond 48 hours
legislation provides that a warrant to extend the detention for 7 days may be
sought from a judicial authority. The period of detention without charge was
increased to 14 days in January 2004. The grounds for extension are limited to the purpose
of obtaining or preserving evidence relating to that person's
commission of an offence. The judicial
authority must be satisfied there are reasonable grounds for believing the
further detention of the person is necessary to:
obtain relevant evidence whether by questioning
him or otherwise: or
preserve relevant evidence; and
the investigation is being conducted diligently
means evidence relevant to a specific office or indicating he is a person that
is or has been concerned in the commission, preparation or instigation of acts
An application for a warrant to extend the detention
may not be heard unless the person has been given notice of:
the fact that the application has been made;
the time it was made; and
the time at which it is to be heard and grounds
upon which further detention is sought.
The detainee must be given an opportunity to make oral
or written submissions to the judicial authority. The detainee has a right to representation. A
hearing may also be adjourned to enable the person to obtain legal representation.
However, there is no absolute right of appearance and the judicial authority
can exclude both the detainee and his representative.
Contrast with Canadian Criminal
The Canadian Criminal
Code provides a preventative arrest power exercised by a judge. An exception is created for emergency
circumstances in which a police officer can effect an arrest for a limited time
and based on narrower criteria. The person detained must be brought before a
judge within 24 hours and an information laid before that judge. The use of
preventative arrest power is regarded as exceptional and has never been
exercised in the three reporting periods from December 2001 to December 2004.
Key issues or concerns raised in respect of the Bill
Key concerns raised with the committee about the
proposed preventative detention regime include the following:
adequacy of the procedural safeguards. Concerns were raised that the
threshold for making, extending or further extending initial and continued
preventative detention orders is lower that that which applies to the arrest or
detention of criminal suspects. Moreover, the Bill allows detention for the
purpose of preserving evidence in the 28 days following a terrorist act without
the necessity to establish any connection between the subject of the order and
any terrorist related activity. Other concerns included: empowering police to
take non-suspects into custody and detain them for 24 hours without prior judicial
authorisation; the lack of an inter
partes hearing at any stage when orders are authorised; and the lack of an
opportunity to test police information. The lack of any mechanism to address
the adverse impact of procedural unfairness was also a concern.
the courts: Concerns here included: detainees' lack of a right to be
provided with detailed reasons and with the factual material upon which the
order is based and which impedes access to a federal court for judicial review
(due to limited information on which to base an appeal); decisions made under the
proposed Division 105 being excluded from the ADJR Act; and the bar on access
to the AAT and a State or Territory Court while a Commonwealth order remains in
of detention and standards of treatment: A key concern here was the
prohibition on police interrogation and the interaction of a preventative
detention order with the compulsory questioning and detention regime under the
ASIO Act. Another concern was the lack of an external ongoing oversight of the
implementation of the preventative detention regime. The conditions governing
detention of minors were also raised as a concern.
discretion to prohibit contact with the outside world. That is, the wide
discretion available to the AFP and issuing authorities to prohibit contact
with the outside world; detainees being prohibited from disclosing the fact of
the preventative detention, the period of detention or their whereabouts except
in strictly limited circumstances as well as the imposition of criminal liability
for unauthorised contact with the outside world.
relationship: Concerns here included: the restrictions imposed on
detainees' lawyers and their discussions with their client during detention; the
blanket authorisation to monitor and record all communications between a detainee
and his or her lawyer; and scope to use otherwise privileged information and
conversations in subsequent proceedings or investigations.
Effectiveness of procedural
It is apparent from submissions received by the committee
that Division 105 of the Bill raises significant
concerns with respect to the presumption of innocence, freedom from unlawful
and arbitrary detention and the right to fair trial. Numerous submissions and
witnesses argued that the procedures for Commonwealth orders envisaged by the Bill
are not a sufficient protection against unjustified infringement on these
fundamental principles. These arguments are based on constitutional, common law
and international law grounds. The values of Australian democracy were also
cited. The Law Council, for example, opposed
both preventative detention and control order as the creation of a 'de
facto new criminal law system'. Its President,
North, advised the committee that:
Australia's formal criminal justice system embraces
critically important guarantees and safeguards, including the right of an
accused to a fair trial, rules of evidence which are fair, the presumption of
innocence and the requirement that guilt be established beyond reasonable
doubt. These safeguards and minimum guarantees have been in place for centuries
to try and punish those who can be convicted beyond reasonable doubt. It is
unheard of in Australian law to have people held or detained for long periods
under very strict conditions unless we follow these legal safeguards.
Similarly, the ACT Human Rights Commissioner said:
without charge or trial is inherently problematic in respecting the human
rights of individuals given the fundamental significance of the right to
liberty in a democracy. It should only be used in the most exceptional circumstances
and in strict accordance with the principles of international human rights law.
General Comments of the Human Rights Committee, which monitors compliance with
the ICCPR, have clarified that use of preventive detention for public security
reasons must still comply with the right to liberty in article 9; it must not
be arbitrary, it must be based on grounds and procedures established by law
(that is, sufficiently circumscribed by law and specifically authorised), information
on the reasons must be given, and court control of the detention must be available.
HREOC echoed the same view. Its President, Mr John
Van Doussa QC, stressed that, if preventative detention is to be adopted on
national security grounds, it must be
according to law, must not be arbitrary (in the sense of being unjust,
unreasonable or disproportionate, taking into account the facts of each case)
and must represent the least restrictive means of achieving the purpose. HREOC maintained that the issuing, extension,
and revocation of a preventative detention order are all a determination of the
rights and obligations of the individual and, as such, the right to a fair
trial in this context requires procedural equality. This includes an effective
opportunity to contest the information upon which an order is based.
The threshold for preventative detention orders to
prevent a terrorist act was criticised as vague and overly broad.
The threshold of reasonable grounds to suspect is a lower than the test of 'reasonable belief' required by police to arrest a person. It is also lower than the threshold
required at the committal stage of a criminal proceeding. While this is in
keeping with the preventative purpose of the scheme, there is concern that only
the most minimal disclosure of information to an issuing authority is required
to meet the test.
Witnesses also criticised the threshold for the issuing
of preventative detention orders for the purpose of preserving evidence. It was
noted that proposed subsection 105.4(6) permits an application to be made for a
preventative detention order even against persons who are not expected to
engage in terrorist acts or who possess a thing connected with its preparation.
The issuing authority only needs to be satisfied that:
a terrorist act has occurred within the last 28
it is necessary to detain the subject to
preserve evidence of, or relating to a terrorist act; and
detaining the subject for the period for which
the person is to be detained under the order is reasonably necessary for the above-mentioned
In this regard, proposed subsection 105(6) appears
significantly different to provisions which permit pre-charge detention under
terrorism legislation (described above).
Proposed subsection 105.4(6) was criticised for being
drafted so broadly that any person may be subject to an order whether or not he
or she has any involvement with or connection in the act or people involved in
the act itself. Dr
Carne argued, for example, that:
The breadth 105.4(6)) is
striking... This provision is drafted so broadly that any innocent person at the
site or within proximity to a terrorist act – i.e. an innocent bystander,
victim or person in the wrong place at the wrong time – could be subject to a
preventative detention order on the grounds of evidence preservation with some
nexus or connection – which need not be direct, immediate or specific – to the
terrorist act. In relation to forensic material, this section potentially
applies detention to hundreds of innocent people.
The Australian Broadcasting Corporation (ABC) argued that
this provision is of particular concern because it does not contain the kind of
safeguards against detention that are contained in equivalent or analogous legislation, such as the ASIO Act (which requires
a warrant approved by an independent authority). The ABC noted that:
While it is hoped that the
power would not be used in such a way, there is nothing, it would seem, to
prevent a journalist or other media personnel (such as producers, researchers, editors,
camerapersons and sound recordists) from being detained in order to preserve evidence
relating to a terrorist act. It would be open, therefore, for the AFP, without
further authority, to detain media personnel on the basis of a judgement that
it is necessary to ensure that a recording or transcript of an interview, for example,
The committee notes that AFP Commissioner has explained
that a primary purpose of preventative detention orders in the context of a
bombing is to enable police to detain people who are at or near the site of the
attack. In response to questioning,
the Department acknowledged that, if necessary, a preventative detention order
could be sought for that purpose. However, the Department argued that it is
unlikely that an order to preserve evidence would be applied to people who are
mere witnesses to an event or, for example, a journalist who acquires certain
materials, when that evidence can easily be obtained and without the use of
The ABC argued that, rather than ensuring such evidence
is preserved, the fear of possible detention is likely to encourage media personnel
to divest themselves of such material before any preventative detention order
can be made:
As with the notice to
produce provisions, it is of concern that no protection is afforded to information
or material that may be the subject of legal professional privilege nor
journalists’ obligations to protect the identity of confidential sources.
The Media, Entertainment and Arts Alliance expressed
similar concern. It argued that the lack of protection in subsection 105.4(6)
against requests for information will lead to demands for journalists to
identify sources, turn over notes and documents received in confidence. This, it argued, would conflict with
their professional responsibilities, ethics and values.
In response to the above, the Committee notes that, in
respect of both types of preventative detention orders, the Bill requires that
the issuing authority be satisfied that the order is 'reasonably
necessary' for the purpose for which it is
sought Dr Mathew generally welcomes this move, but
argued that the key issue is whether the facts of the individual case justify
the period of detention.
HREOC also welcomed the introduction of an element of
proportionality assessment but expressed concern that the current formula does
not fully express the proportionality test.
HREOC has recommended that proposed subsections 105.4(4) and (6) be
amended to also require the issuing authority to be satisfied that the purpose for
which the order is made cannot be achieved by a less restrictive means. This
would make explicit the requirement to assess the proportionality of the
restriction on liberty to achieve the purpose of preventing an imminent
terrorist act occurring or to preserve evidence.
Initial preventative detention
Particular concerns were expressed about the reliance
on a senior AFP member to issue an initial order for preventative detention on
the unsworn/unaffirmed application of a more junior AFP member. Dr
Carne, for example, criticised this aspect
of process for its failure to ensure independence and rigorous scrutiny. Professors Charlesworth and Byrne
also raised concerns about the potential for abuse and the 'clear
apprehension of bias' where both the authority
to apply and the power to issue a preventative detention order are vested in
the same law enforcement agency.
The Lauterpacht Centre for International Law argued that
the Bill's reliance on a senior AFP member to
issue an initial preventative detention order is an insufficient safeguard
against arbitrary detention:
While the order is limited in time to 24
hours, it still involves a substantial restriction on the right to liberty, and
in the circumstances should involve a judge.
This view was shared by Dr
Watchirs, the ACT Human Rights Commissioner,
who maintained that all preventative detention orders should be issued by an
independent judicial officer.
Other witnesses and submitters were prepared for senior
AFP officers to issue such orders, albeit in more limited circumstances. Dr
Carne, for example, argued that:
The issuing authority of a
senior AFP member should be strictly confined to limited, exceptional,
emergency circumstances, subject to review at the earliest possible opportunity
by a Magistrate or judicial issuing authority.
HREOC had a similar view. It argued that while an ex parte order may be warranted in some
special circumstances where there are legitimate grounds for urgency, this
should not be the norm.
In this regard, the committee notes recent media
comment that doubling of the size of ASIO over the next five years (with an
influx of new staff and the consequential need to develop skills) increases the
risk of a lack of objectivity and errors in identification.
The committee also note media reports about a civil proceedings being
commenced against the Commonwealth in the NSW District Court following a
reported mistaken raid by ASIO and the AFP on a Melbourne
home in 2001.
The committee also notes that differing approaches
appear to have been taken on this issue at the State level. South Australia's
proposed complementary legislation, for example, provides that a senior police
officer may only authorise detention up to a maximum period of 24 hours if
there is an urgent need to do so, and it is not reasonably practicable in the
circumstances to have the application dealt with by a judge. The committee understands that the
proposed New South Wales
legislation does not provide an equivalent power. Rather, interim (or urgent) preventative
detention orders are to be issued by the New South Wales Supreme Court.
Continued preventative detention order
Proposed section 105.2 provides that the Minister may
appoint the following as an issuing authority for continued preventative
a serving judge of a State or Territory Supreme
a serving Federal Judge or Magistrate;
a person who is a retired judge of a superior
court with five years service;
the President and Deputy President of the AAT.
An issuing authority exercises their power in a
personal capacity. The Bill casts the process as
an exercise of non-judicial power - an administrative process conducted ex parte. That is, without the
interested parties present and therefore without the opportunity to test the
information laid by the police. The constitutional issues arising from this
aspect of the Bill are canvassed briefly in
The involvement of serving and retired judicial
officers injects a degree of impartiality and scrutiny into the preventative
detention regime. However, many witnesses still regard the procedures as
inadequate. Critics argued that:
the issue of orders which intrude extensively on
personal liberty should depend on a judicial determination based on evidence,
rather than on untested information by law enforcement agencies; and
reliance on the AAT President and Deputy
President may lack the required criminal justice expertise.
Proposed section 105.11 requires the application for a
continued preventative detention order to set out, among other things, the
facts and grounds on which the AFP member considers the order should be made.
The process is a fresh application and there is no requirement to set out the
facts and grounds that were relied for the initial preventative detention order.
It is therefore possible that the continued preventative detention order may be
made on entirely different grounds.
argued that the Bill's
requirement that the issuing authority consider afresh the merits of making the
order is not a form of judicial review:
There is no capacity for
the issuing authority to have representations made, hear evidence, submission
or cross examination from the subject of the ... order or representative of that
person ... This omission is oddly inconsistent with the capacity of a person
detained ... or their lawyer being able to make representations to the
nominated senior AFP member during the course of (but not limited to) an
initial ... order, which has been issued by a senior AFP officer.
also drew the committee's attention to the
possibility of a conflict of interest arising if a person appointed as an
issuing authority under proposed section 105.12 were also to be appointed as a
Prescribed Authority under the ASIO Act. Section 34B of that Act provides that
a retired judge of a superior court, a serving judge of a State or Territory
Supreme Court and the President or Deputy President of the AAT may be appointed
in their personal capacity as a Prescribed Authority responsible for
supervising the questioning by ASIO officials under a compulsory questioning or
questioning and detention warrant (see below).
The Casten Centre for Human Rights proposed that, if
preventative detention is to be introduced in Australia,
it be dealt with as a matter of State law. The Centre argued that this would:
overcome the constitutional complexities; allow serving Judges to exercise the
function of authorising orders; and provide greater scope for procedural
fairness at the issuing stage and a wider basis for subsequent review of
Rules of evidence
An important difference of opinion emerged during the
hearings at to whether the Evidence Act
1995 (Cth) (the Evidence Act) will apply to procedures envisaged by the Bill,
including the issuing procedure for a preventative detention order. The
Department subsequently clarified that applications for preventative detention
orders, including applications for extensions of order, are not proceedings
before a court and therefore the Evidence Act will not apply. As such, all the
material that supports the application can be properly placed before the
issuing authority – not just the material that would be admissible under that Act.
Many witnesses expressed concern about the reliability
of information on which an application for, or a decision to issue, such an
order might be based. For example, Mr Zagor
expressed concern about the possible use of unreliable evidence, including
hearsay and false accusation, which may result in severe restrictions on civil
liberties, which cannot be effectively tested or challenged in Court. Other witnesses noted the need to
also prohibit expressly the use of information obtained through torture. Dr
Watchirs, for example, noted that the Council of Europe Guidelines on Human Rights and the Fight Against Terrorism specify
that national counterterrorism measures must respect the basic principles of a
fair trial, be subject to proper judicial supervision, and must not use
information or intelligence that is the product of torture.
A Public Interest Monitor
The Bill currently recognises
the role of the Public Interest Monitor (PIM) in relation to proceedings to
confirm a control order where the order has been made in Queensland
or the person is resident in Queensland. The Queensland Law Society proposed
that if ex parte hearings for issuing
a preventative detention orders are retained, provision should be made for a
PIM to be present at the hearing. In a similar vein, HREOC asked the committee
to consider the value of a PIM or a Special Advocate (see below).
The Queensland PIM is a statutory appointment under the
Police Powers and Responsibility Act 2000
and Crime and Misconduct Act 2001(Qld). Although independent, the office is
appointed by the executive rather than the court. The role of the PIM is to
monitor compliance by police officers with the laws concerning applications for
surveillance warrants and covert search warrants and to appear at hearings to
test the validity of such applications. The PIM or a lawyer representing the
PIM may be present at the hearings.
It is understood that the role of the PIM includes:
examination and cross examination of any
making submissions on the appropriateness of granting
the application; and
to gather statistical information about the use
and effectiveness of warrants.
The Queensland PIM may at any time give the Police
Commissioner a report on non-compliance and must provide an annual report to
the Minister on the use of warrants.
The PIM's establishment was intended to safeguard the interests of the
individual by ensuring that warrants comply with legal requirements.
The PIM does not have a statutory responsibility to
represent the interests of the particular individual who is the subject of any
warrant. This in contrast to the role of the Special
Advocate in the UK,
which evolved in response to the particular problems of dealing with national
security information in security sensitive proceedings.
Witnesses and submitters recommended that provision
should be made in the Bill for a court appointed
and security cleared Special Advocate.
The concept of a Special Advocate was examined
exhaustively by the Australian Law Reform Commission in its 2004 report Keeping Secrets: The Protection of
Classified and Security Sensitive Information.
In summary, a Special Advocate is an independent counsel from the
independent bar appointed by the Court on an ongoing basis. The idea derives from the Special Immigration
Appeals committee and the Proscribed Organisations Appeal Committee in the UK
and is similar to counsel assisting a Royal Commission. The role of the Special Advocate is
to provide assistance to the issuing authority by: testing the intelligence and
police information; scrutinising all the information and documentation which
supports the application for a preventative detention order; and examining and
cross examining witnesses. The Special Advocate has a statutory responsibility
to represent the interests of the person to be subject to the order, but this
role is in addition to any rights to legal representation that the person may
The benefit of a Special Advocate was acknowledged by
the UK Court of Appeal in a recent decision concerning the detention of a man
terrorism laws on evidence that the court considered 'was wholly unreliable and
should not have been used to justify detention'.
Judicial and merits review
Right to Reasons
Particular concerns were raised about detainees' lack
of a statutory right to be provided with the reasons why the initial or
continued preventative detention order was granted.. As noted above, proposed section
105.28 requires that the effect of the preventative detention order be
explained to the detainee. Proposed
section 105.32 also requires that the detainee be provided with a copy of the
order and a summary of the grounds on which the order is based as soon as
practicable after the person is first taken into custody. He or she may also request
that a copy be sent to his or her lawyer (unless the lawyer is a prohibited
While these measures provide some access to relevant
information, they were criticised as falling short of what is necessary to
ensure the person knows the case against them and is able to contest the order. Witnesses and submissions pointed to the need
to expand the obligation to provide a summary of grounds into a full right to
reasons, subject to redactions or omissions on national security grounds. This
extended to provision of the material upon which the order is based.
It was argued that the lack of such a right would impede a detainee's
ability to challenge a preventative detention order in a federal court or in
the AAT. As the Administrative
Review Council (ARC) stated:
The opportunity for
someone to seek administrative review of a decision is contingent to a large
degree on the extent to which information about the reasons for the decision is
available to that person...the requirement that decision makers give reasons for
their decisions may be the single most important reform in the Commonwealth
administrative review package of the 1970s.
SC advised the committee that a full
statement of reasons was critical to exercising the right to challenge an
order. He argued that the current provisions provided no guarantee that the
summarised information would in fact be the authentic grounds upon which the
issuing authority has granted the order. This argument is set out in more
detail in relation to control orders (see Chapter 4).
The ARC also argued that detainees should be provided
with a full statement of reasons, not just a summary, albeit subject to any
necessary exclusions of information on security grounds. However, it argued
that further consideration should be given to who will make the decision that
information is 'likely to prejudice national
security' and should not be disclosed. The ARC also noted that the copy of the order
and the reasons for detention should
be given to the detainee:
...at the time they are taken into custody, and,
if that is not possible, as soon as practicable thereafter. This seems
particularly important in view of the short duration of the period of
also recommended that proposed section 105.32(6) be amended to provide an
automatic notification of the terms of the order to the detainee's nominated
Access to a court
The lack of an express statutory right to appeal a
preventative detention order means that a detainee must rely on common law
principles of judicial review and prerogative writs. Access to the original
jurisdiction of the Federal Court and the High Court of Australia is guaranteed
by s. 75 (v) of the Commonwealth
Constitution and section 39(B) Judiciary
Act 1903 (Cth). There has been some uncertainty concerning the scope and
efficacy of remedies available under the latter. The Explanatory Memorandum
merely indicates that:
It may be possible to seek
injunctive relief to stop the detention in the equitable jurisdiction of the Federal
Lawyers for Human Rights criticised the scope for judicial review as too
limited. That is, a person can only apply to the Federal Court or High Court
for a writ of habeas corpus to
challenge the legality of detention or on narrow procedural grounds. Similarly, HREOC argued that judicial review
on narrow questions of law is not sufficient to provide a detainee with an
effective remedy because it fails to provide a sufficiently broad basis to
investigate and evaluate the facts. Witnesses also drew attention to the fact
that the National Security Information
(Criminal and Civil Proceedings) Act 2004 will apply, allowing the Attorney
General to issue a certificate to exclude security sensitive information or
particular witnesses from those proceedings where disclosure is likely to
prejudice national security.
Many witnesses acknowledged that revisions to the Bill
prior to introduction into the House of Representatives, have improved the individual's
right of access to the court. Access to
State and Territory courts and to the Security Appeals Division of the
Administrative Appeals Tribunal for merit review are now included in the Bill. However, it is apparent that some still
question the rationale for excluding access to the State and Territory Courts
and the AAT until the Commonwealth order has expired. The Explanatory
Memorandum provides no assistance in this regard.
The ARC observed that this is a new jurisdiction for
the AAT, which presently has jurisdiction in relation to review of adverse and
qualified security assessments under the ASIO Act. Procedures have been
developed by the AAT specifically in relation to the execution of that
particular jurisdiction. The ARC proposed that:
Rather than giving the
Tribunal the power to declare a decision in relation to the issue of an order 'void' (s.105.51 (70(a)), the Council considers that
it would be preferable simply to provide for the Tribunal to 'set aside' the decision if it would have taken that
course when the order was in force.
The ARC suggested that
this would be more in keeping with the Tribunal's
administrative rather than judicial function.
The ARC noted that the Bill
proposes that the AAT's procedures will be modified as necessary by way of
regulation to accommodate the new jurisdiction:
The Council assumes that
decisions of the Tribunal are excluded like all other decisions under Division
105, from judicial review under the ADJR Act but notes the provision for review
under the AAT Act as a means of affording protection to individual rights.
Some submissions also criticised the Bill
for creating different remedies depending upon the type of order. Proposed
section 105.51 provides that persons detained under a Commonwealth order can
apply to the federal courts for a remedy at any time, but, if the person is
subsequently detained under a State or Territory law (that is, under state preventative
detention orders), review of the Commonwealth order is effectively denied
access until the order has expired.
Preventative Detention and Minors
Witnesses and submitters raised concerns about the
application of preventative detention orders to persons under 18 years old. It was
argued that preventative detention orders may breach article 37(b) of the
Convention on the Rights of the Child (CRC), which requires that the detention
of a minor should be a measure of last resort and for the shortest possible
time. It was also claimed that
current provisions fail to reflect the obligation of an issuing authority under
article 3 of the CRC to give consideration to the best interests of the young
person who is the subject of such an application.
Submissions expressed concern that detainees who are
not charged with any criminal offence may be held in prisons and remand centres
contrary to article 10 (2)(a) of the ICCPR.
There is no express exception in the Bill
to prevent young people under 18 being held with adult prisoners. Submission
noted that doing so may breach of article 10(2)(b) of the ICCPR and article 37 of
the CRC. The committee notes that,
in contrast to the Bill, the proposed
complementary NSW legislation requires a detainee who is under 18 years to be
held in a juvenile facility.
As noted above, the Department advised the committee
that the Bill had been thoroughly vetted by the Department's
Office of International Law, which confirmed that the Bill
is consistent with Australia's
obligations under the CRC. The
Department also noted that the age of criminal responsibility applies generally
from the age of 14 years and that there is a real possibility of young people
under 18 years being involved in terrorist related activity.
The committee notes that ASIO warrants may be sought in
respect of a minor between the ages of 16 to 18 years where the Minister and
the issuing authority are satisfied on reasonable grounds that it is likely
that the person will commit, is committing or has committed a terrorism
The Department noted that the AFP rely on police cells
to detain young people as well as adults for federal crimes and expressed a
belief that detention under a Commonwealth order, which is for a maximum of 48
hours, will most likely be in police cells.
The Department assured the committee that there is a commitment to comply with,
and have practice and policies consistent with, internationally accepted
standards that apply to people in detention. The Department explained that:
some of the exact details
of the detention under these orders are still being worked in the negotiations
and discussion with the states....there is a consciousness of the need to keep
However, there is currently no provision in the Bill
which takes account of the particular vulnerability of minors in police
custody, remand centres or adult prisons.
Nor does the Bill expressly require that
a juvenile be held in a juvenile facility.
The Committee notes that an ASIO Protocol has been
developed to guide ASIO's practices when
executing a compulsory questioning and detention warrant. In relation to
juveniles, it provides that 'questioning and
detention may only take place under conditions that take full account of the
subject's particular needs and any special
requirements having regard to their age.'
HREOC has proposed that a Protocol that
address questions of the conditions of detention and treatment of detainees be
developed to guide the practice of preventative detention. (The Bill's
special contact rules that apply to detained minors are discussed below.)
Preventative detention and criminal
notes that the efficacy of preventative detention in assisting the police to
investigate and prosecute suspected terrorists may be open question. Unlike the UK
Terrorism Act 2000, which provides
for pre-charge detention of terrorist suspects to assist a criminal investigation,
the Bill introduces preventative detention for
the express purpose of preventing an imminent act of terrorism and preserving
relevant evidence. While preventative detention for these purposes may assist a
criminal investigation, this is not an explicit purpose of the Bill.
Police interrogation of the detainee is prohibited
except to: confirm their identity; ensure the safety and well being of the
person; or otherwise allow the police to carry out their obligations under the
Division. The prohibition on police questioning is
replicated in the complementary legislation introduced in South
Australia and New South Wales.
However, it is apparent that preventative detention
orders will operate in conjunction with police questioning or arrest under the Crimes
Act. During hearings, the AFP
explained that the powers are necessary to:
allow police to detain
suspected terrorists in order to protect the community while either ruling the
detainees out of the investigation or forming the reasonable belief the
detainees can be released from [preventative] detention, arrested and
questioned under part 1C of the Crimes Act.
It is unclear
how this will be achieved without the ability to question a detainee, except
that it provides an opportunity to collect evidence under separate search and
The prohibition on police questioning provides a
safeguard in this respect. However, Dr Carne has suggested should be videotaped
to ensure that questioning does not exceed the permitted purposes of proposed paragraphs
105.42(1)(a)(b) and (c), and preferably occur in the presence of the detainee's
lawyer. The Commonwealth Ombudsman
and Inspector General of Intelligence and Security have also recommended that a
detainee be advised about the limitations on what that they can be questioned
about while in detention.
Preventative detention orders will also operate in
conjunction with ASIO’s compulsory questioning and detention powers under the ASIO
Where an ASIO warrant for compulsory questioning or questioning and detention
is in force, the AFP must release the person from preventative detention to be
dealt with by ASIO. ASIO are then permitted to question a person
for up to 24 hours and 48 hours where an interpreter is used. Release from preventative detention
for questioning or detention under an ASIO warrant, or otherwise for arrest and
charge under the Crimes Act, does not
extend the period that the preventative detention order remains in force and a person
cannot be re-detained under the order (if it has expired).
The Committee notes that intelligence obtained (eg,
anything said or thing produced) under an ASIO compulsory questioning warrant
cannot be used in evidence against the person in criminal proceedings. This protection against self
incrimination does not extend derivative use immunity or to civil or
administrative proceedings, such as a proceeding for a control order or an
administrative process for the removal of a non national from Australia on national security grounds.
Conditions of detention and
treatment of detainees
Standards of treatment
Proposed section 105.33 expressly requires that a
person detained under a preventative detention order must be treated with
humanity and with respect for human dignity and must not be subject to cruel,
inhuman or degrading treatment. The provision incorporates Articles 7 and 10
of the ICCPR.
It is clear that proposed section 105.33 is an
important safeguard. However, it has been suggested that this alone provides little
guidance to police officers or detainees without further elaboration or
clarification as to the conditions and standards of treatment that apply. For example, HREOC has raised a
concern about the possible use of solitary confinement. It recommended that
such matters be dealt with in a Protocol, which should generally address issues
relating to conditions of detention.
Professor John McMillan, the Commonwealth Ombudsman and
Mr Ian Carnell, the Inspector General of Intelligence and Security (IGIS) made
a similar proposal and referred the Committee to the Protocol developed to
guide the implementation of ASIO's compulsory
questioning and detention warrants as a useful model. The ASIO Protocol is a
publicly available document which covers matters such as facilities and
accommodation, food, sleep, personal hygiene, health care, religion and so
and Mr Carnell
advised the Committee that:
A detailed statement of
this sort, of the guarantees that a reasonable person would expect to apply to
detention in these circumstances, can be a useful document in establishing a
framework for good administrative practice and the protection of individual
rights. A second useful purpose of a statement of protocols, if the Bill either
contained or required such a protocol to be developed, might be to further
specify how preventative detention orders and questioning and detention
warrants would operate together in a practical sense, if both applied to a
Oversight of conditions of detention
and treatment of detainees
The Bill requires a
nominated senior AFP member to oversee the exercise of powers under, and the
performance of obligations in relation to, the preventative detention order.
That officer is also responsible for ensuring that provisions relating to the
revocation of preventative detention orders and the issuing and implementation
of prohibited contact orders are complied with.
It is unclear on the face of the legislation whether
there is any intention that the role of the nominated officer will extend
beyond supervision of the conduct of police officers. It seems unlikely the
senior police officer will have any jurisdiction in relation to conditions of
detention or standards of treatment in a State or Territory prison or remand
centre, except in relation to police conduct.
The role of the nominated senior officer will cease once the person is
released from preventative detention.
Part 1C of the Crimes Act will apply a detainee is
released from preventative detention in order to be arrested and dealt with
under that Act. Detainees released for the purpose of an ASIO compulsory
questioning warrant may be questioned in the same police station and in the
presence of AFP officers. However, the supervision of that questioning is the
responsibility of a Prescribed Authority under the ASIO Act. The IGIS may also be
present to monitor the standards of treatment and receive any complaints.
The IGIS and the Commonwealth Ombudsman have extensive
powers and play an important role in oversighting government activity, which
has the potential to infringe liberty or otherwise lead to adverse outcomes for
combined submission of the Ombudsman and the IGIS sets out in some detail, the
scope of those powers and the relevance of their respective offices to
oversight of the powers proposed by the Bill. It was noted that the Bill
does not provide the Ombudsman with a clear right of entry to premises used for
and IGIS observed that consideration could be given to specifying in subsection
105.19(7) that the nominated senior AFP member’s responsibilities include the
requirement to ensure that the conditions of detention fully comply with proposed
section 105.33 (and with any protocol, procedures or guidelines). Further, the Bill
could require the nominated AFP member to advise the issuing authority and/or
the Ombudsman where there is a breach of the statement of procedures. It has also been suggested that the nominated
senior AFP member should be required to provide the Ombudsman immediately with
a copy of the detention and contact orders, and of the summary of reasons, in
cases where a legal adviser is not available to the subject of the order or
Information about rights
The effect of an initial and continued preventative
detention order and any extension to those orders must be explained to the
detainee as soon as practicable after the order has been made. The information must include:
the fact the order has been made;
the period of detention;
any restrictions which apply to contact with the
the right to complain to the Commonwealth
Ombudsman in relation to the AFP or equivalent State authority in relation to
the fact the person may seek a remedy from a federal
court in relation to the order or their treatment under the order;
the fact they are entitled to contact a lawyer; and
the name and work number of supervising senior
The Ombudsman and IGIS have proposed that information
concerning the above-mentioned right to apply to the AAT on expiration of the
order should be included in the above. The right to apply to the Supreme Court
for review of the Commonwealth order if the person is subsequently detained
under a State order is also omitted from the above list. The Committee was
The subject of the order
should also be advised about the limitations in item 105.42 on what that person
can be questioned about while in detention under the preventative detention
order should also be included.
The ARC also proposed that the information on the
effect of the order should be provided to the detainee at the time the person
is taken into custody, rather than 'as soon as
Limited contact with the outside
Part IC of the Crimes
Act 1914 provides persons under arrest or being questioned by police with an
express right to communicate with a friend, relative and legal practitioner
before being questioned by police.
In contrast, proposed section 105.34 takes
as its starting point that a detainee has no right to contact with any other
person and is prevented from contacting anyone except where permitted by the Bill.
(See the discussion on prohibited contact orders below.)
Proposed section 105.35 permits, subject to a prohibited
contact order, a detainee to contact: one of his or her family members;and one person from each of the
categories listed in that provision. These categories include: another person
with whom he or she lives; an employer; an employee; a business partner or
another person if the detaining police officer agrees.
Communications are strictly limited and the detainee
must not disclose: the fact that a preventative detention order has been made;
the fact that he or she is being detained; or the period of the detention.
It follows that a detainee must not disclose their whereabouts and there
is no provision for visits. Contact may
be made by telephone, fax or email, but is solely to let the person know that
he or she is ‘safe' but cannot be contacted
for the ‘time being’. It is an
offence carrying a penalty of up to 5 years imprisonment to breach the rules of
disclosure (see below).
The Victorian Council for Civil Liberties expressed
their concern that the limits on what can be said are disproportionate and will
not achieve their objective:
We are also concerned
about the provision which places strict limits on what a person subject to the
order may say to their family and other limited categories of person about
their detention. Presumably the provision is designed to ensure that the fact
of a person’s detention is not capable of communication to others with whom the
person may have been preparing to engage in terrorist activity. If this is so,
the provision will not achieve its objective. It would be simple to have a
pre-determined form of words, perhaps couched in the language of the statutory
provision, which would indicate clearly to others what had actually occurred.
The cost to others who had not reasonably have been detained would be
substantial however. They would be
cut off entirely from family, friends and associates who may be in a position
to offer them some assistance even if only of an emotional kind.
As explained above, special contact rules will apply to
minors or people who lack capacity to manage their own affairs. A minor is entitled to contact each
of their parents or guardians or another person who is able to represent their
interests. They are permitted to disclose the fact of the detention order and that
the person is being held subject to the order and the period of detention. These special contact provisions for
minors remain subject to the issue of prohibited contact order and the criminal
offences provisions concerning unauthorised disclosure (see below).
Proposed section 105.37 preserves the right of a
detainee to contact the Commonwealth Ombudsman under section 22 of the Complaints (Australian Federal Police) Act
1981 and an equivalent State or Territory authority. There is no explicit
provision in the Bill for the Ombudsman to visit
a detainee in a police cell or State or Territory correctional facility. A
right of access to a lawyer is also preserved under certain restrictions (see
The committee notes the concerns that the Bill,
as currently drafted, will create practical difficulties for communications
between detainees and their families and for the ability of detainees' family
members to communicate with each other and others. It notes that an alternative
approach might have been to regulate contact with family members through the
use of prohibited contact orders rather than imposing a blanket ban on
detainees' contact with others except where permitted by the Bill.
Prohibited contact orders
The limited provision for communication with the
outside world may be further restricted by the operation of proposed new sections
105.15 and 105.16. These provisions confer a wide discretion on the AFP and
other issuing authorities to issue a prohibited contact order to prevent
communication by the detainee with ‘a person’ where the issuing authority is
satisfied that the exclusion: 'would assist in
achieving the objectives of the preventative detention order'.
The order may be issued by a senior AFP member on the
unsworn information of a more junior officer when making or during an initial
order; or by another issuing authority when the continued detention order is
made or at another time while the continued detention order is in force. The application must set out the
terms of the order sought and the facts and grounds on which the AFP member
considers the order should be made, and must be sworn or affirmed if the person
is being detained under a continued preventative detention order.
The purpose of prohibited contact orders was explained
in the EM in the following terms:
This is designed to ensure
the 'preventative' purpose of the order is not defeated by the
person in detention being able to contact other persons, including
co-conspirators or those who might be in custody of evidence relating to a
terrorist act, and, for example, instructing such a person to further the
terrorist act in the person's
absence, or destroy evidence of a terrorist act.
The provision for prohibited contact orders are to be
replicated in State and Territory complementary legislation.
Many witnesses have argued that this aspect of the Bill
is disproportionate; the discretion is too broad and lacks proper judicial
supervision. Prohibited contact orders create the possibility of detention that
is secretive and is very close to being detention incommunicado, which is prohibited as a protection against ill-treatment.
Of particular concern to some was the low and generalised
threshold for the grant of a prohibited contact order: that is, that 'making
the prohibited contact order will assist in achieving the objectives of the
preventative detention order'. Dr Carne
... this phrase could mean
anything, and is wide open to abuse. If prohibited contact orders are to be
retained, the threshold must be dramatically increased ... the issuing authority
of prohibited contact orders should be removed from senior AFP officers.
HREOC also had concerns with the breadth of the
nondisclosure requirements. It observed that:
.... for example, why should
an employer be prevented from giving instructions solely for the running of a
legitimate business? Why should an employee be prevented from telling their
employer what steps need to be taken on an urgent task? And who bears the
financial consequences for any loss arising from these restrictions?
also questioned the lack of protection against unfair dismissal by an employer and
against possible penalties that could be applied to a person dependent upon a
Centrelink payment. He suggested that it be an offence for an employer to
dismiss or penalise a person subject to a detention order and that a similar
protection from a Centrelink penalty should be provided.
HREOC argued that the restrictions raise issues under article
10(1) of the ICCPR, which provides that all persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the
human person. In particular, HREOC pointed to internationally accepted minimum
standards for the treatment of detainees.
HREOC argued that the latter are designed to avoid 'incommunicado detention',
which has been found to breach the right to be treated with humanity and
HREOC formed the view that the limited contact
permitted under the Bill falls short of these
minimum international standards:
The Bill does not provide a right to receive visits
from family members (rule 37 of the Standard Minimum Rules) – such contact is
only guaranteed in the case of people aged between 16 and 18 years of age. The
limits on what may be disclosed also fail to meet the requirements of Principle
16 of the Body of Principles. Some departure from those standards is
permissible in exceptional circumstances. For example, the notification
required under rule 37 may be delayed for a ‘reasonable period’ where the
‘exceptional needs of the investigation so require’. The Commission doubts that
such exceptions justify the approach taken in the Bill: a family member who is
involved in a terrorist conspiracy would be likely to be alerted to the fact
that the person is being preventatively detained by virtue of the somewhat odd
communication envisaged under proposed s105.35(1). An ‘innocent’ family member
is simply likely to be alarmed.
The Committee notes that, in contrast to the Bill,
the UK Terrorism Act 2000 provides for an express
right to communicate with a friend, family or another person interested in
their welfare and to let those people know when the detainee is moved to
another police station. As
explained below, communications with others may be delayed, but there is no ban
on informing family of the reasons for detention, the period of detention of
the whereabouts of the detainee.
The UK legislation provides that a senior police
officer of the rank of inspector or above, who has no connection with the
investigation, may delay (but not preclude) contact between a detainee and
their family, friend or solicitor. This
may only occur if he has reasonable grounds to believe that any of the following
specified grounds apply:
interference with or harm to evidence of a
serious arrestable offence;
interference with or physical injury to any
alerting of persons suspected of an arrestable
offence who have not been arrested;
hindering recovery of property obtained as a
result of a serious arrestable offence
interference with gathering information about
the commission, preparation or instigation of acts of terrorism;
alerting a person making it more difficult to
prevent an act of terrorism.
As noted above, the Bill
provides that a detainee commits a criminal offence with a penalty of up to 5
years imprisonment if he or she intentionally discloses:
the fact of the detention order;
that he or she is detained under an order;
how long the person is being detained; or
or any other information given during the
The offence provisions extend the non-disclosure
obligation to anyone with whom the detainee has contact and are intended to
strictly prohibit all secondary disclosures. The offences specifically include
the lawyer and the family member or guardian contacted by the detainee. If any
person receives improperly disclosed information, it is an offence to
intentionally pass that information on to another person.
The offences also apply to the interpreter and police
officers monitoring the communication (although the maximum penalty in respect
of these classes of people is 2 years as opposed to 5 years).
There is a limited exception for lawyers, where the
disclosure is for the purpose of proceedings in a federal court, a complaint to
the Ombudsman or equivalent State authority or making representations to the
nominated senior AFP member responsible for supervising the execution of the
order. The lawyer is unable to make any disclosure
within his or her own practice, even for the purpose of preparing an
application to a federal court. The Explanatory Memorandum states:
There is no provision for
the person's lawyer to disclose information he or she
lawfully obtains from the person under new section 105.37 because if the lawyer
wishes to seek advice from a barrister, for example, it should not be necessary
to disclose the fact of the particular person's detention to that barrister.
It has been pointed out that it would be a criminal
offence for a lawyer to make representations on the person's
behalf to their Member of Parliament unless the disclosure was for the purpose
of a Parliamentary inquiry in which case it would attract parliamentary
Where the detainee is under 18 years, it is not an
offence for the family member or guardian to let another person know the
detainee 'is safe but is not able to be contacted for the time being'.
However, it is an offence for the parent or guardian to disclose the
fact the order has been made, that the person is being detained under the order
and the period of detention if the detainee has not already had contact with
that other parent under the special contact rules provided for in section
In response to questioning, Dr
I think the five year
penalty for breach of disclosure provisions and breach of control orders is
grossly disproportionate. They are civil offences and a civil administrative
process, particularly in preventative detention, and to have a criminal offence
of five years is not proportionate.
The Victorian Council for Civil Liberties agreed:
We are disturbed by the
disclosure offences and the severe penalties that attach to such unauthorized
communications. As the proposed law stands, a family member who is either told
or divines that the subject has been placed on a preventative detention order
is prohibited from informing any other family member on pain of five years imprisonment.
To provide that an intra-familial communication should attract such a draconian
penalty goes far beyond what is proportionate in the circumstances. It is
difficult to imagine that any one in the community would accept that a father’s
communication to a mother that their son or daughter has been placed on a
preventative detention order should attract a long-term sentence of
imprisonment. In these circumstances, we recommend that the disclosure
provisions of the Bill be removed and further reviewed if some other
means of engendering a certain measure of secrecy is required.
The Media, Entertainment and Arts Alliance argued against
the nondisclosure provisions and the threat of criminal penalty:
105.33 of the Bill affords persons detained under the legislation the right 'to
be treated with humanity and respect for human dignity' and states that such persons must not be
subjected to cruel, inhuman or degrading treatment'. Yet, in the event the rights of such a person
are violated, the Bill denies the opportunities for such a violation
to be reported in the media. Just as astonishing is the fact that the penalty
for an officer who commits an offence ...is 2 years imprisonment, compared to the
five years sentence a journalist could face or disclosing the fact of a
noted that the ASIO Act contains secrecy provisions which are also of concern
to them. However, unlike the Bill, that Act
includes a provision which provides that it: 'does not apply to the extent (if
any) that it would infringe any constitutional doctrine of implied freedom of
political communication' 
The Committee notes equivalent ASIO provisions apply
secrecy obligations to the compulsory questioning and detention warrant regime
for 2 years. The Bill
provides that a commonwealth preventative detention order is limited to 48
hours and the disclosure offence provisions apply only for the period of
detention. However, the committee understands that the combined effect of a
Commonwealth and subsequent State order may mean that a person could be held in
preventative detention for up to 16 days.
The committee notes that the States appear to have
taken differing approaches on this issue. Proposed subsection 35(2) of the
South Australian Terrorism (Preventative Detention) Bill 2005 replicates the
Commonwealth provision and prohibits disclosure of the facts relating to the
preventative detention order. However, proposed subsection 26ZE(2) of the New
South Wales Terrorism (Police Powers) Amendment (Preventative Detention) Bill
2005 does permit a detainee to disclose: the fact that a preventative detention
order has been made; the fact that the person is being detained and the period
for which the person is being detained.
Lawyer/ Client Relationship
Restricted access to legal advice
and monitoring lawyer client communications
Proposed section 105.37 indicates that a detainee may
contact a lawyer for the specific purposes of:
obtaining advice about their legal rights in
relation to the preventative detention order or their treatment during their
detention under the order;
instructing their lawyer to act in proceedings
in a federal court in relation to the order or their treatment while in
instructing their lawyer to act in relation to
making a complaint to the Ombudsman or to an equivalent State or Territory
Where a prohibited contact order precludes contact with
a particular lawyer, the police officer must 'give
the person reasonable assistance' to choose another lawyer for the person to
Proposed section 105.38 requires that all communications
between the lawyer and his or her client be monitored by the police.
In respect of the Bill,
numerous witnesses and submissions objected to: the restrictions on access to a
lawyer; the breadth of the test to be applied for prohibiting contact with a
lawyer of choice; and the monitoring of lawyer/client communications, which
they regard as excessive and unjustified.
Witnesses also argued that a detainee's right to
confidential communications with their lawyer is a fundamental human rights
norm at the international level (such as under the UN Body of Principles for
the Protection of All Persons under Any Form of Detention and the UN Basic
Principles on the Role of Lawyers).
The Law Council complained to the committee that:
the Bill's restriction on the role of the lawyers
is a very significant and unacceptable diminution of the right to legal advice;
the monitoring of lawyer/client communications
abandons the rules in relation to client/lawyer confidentiality and is an
anathema to a system of justice which depends in significant part on the
sacrosanct nature of client/lawyer communications; and
access to a lawyer should be facilitated within
a reasonable time of an initial preventative detention order being made.
The Australian Council for Civil Liberties (ACCL) noted
legal advice it had obtained was that the provisions for contacting a lawyer
and monitoring a lawyer will allow police to tape record a lawyer talking to
his or her client who is held in preventative detention while that client is
held in a police station, watch house or prison. The Department also agreed
that monitoring of lawyer/client communications included the possibility of
tape recording and that there are no provisions in the Bill
to limit how long a record of the communication can be kept. The ACCL argued that:
It has been a central
aspect of the law and practice relating to lawyer talking to their clients in
police custody for hundred of years that that communication can not be listened
to or eavesdropped on. The rationale for this longstanding provision is obvious
and that is that if a preventatively detained person knows that his conversation
with his lawyer is being monitored and tape recorded he simply will not be
prepared to talk to his lawyer for fear that what he says will then be used to
carry out further investigations and so result in the detained person being
charged with a criminal offence and being further detained.
Proposed subsection 105.38(5) provides that any lawyer
/client communication is inadmissible against the person in any proceedings in
a court. However, the Department confirmed that this use immunity extends only
to communications which fall within the strict limits for which access to legal
advice is allowed under the Bill. It has no application to
communication that falls outside the scope of those limits. It does not, for
example, protect a detainee who discloses information that indicates his
possible involvement in a criminal offence and seeks advice, for example, in
relation to whether any admissions should be made or may implicate another
The Department noted that the disclosure offences which
apply to police officer monitoring lawyer/client communication will provide a
safeguard. However, the Queensland
Law Society and Queensland Bar Association noted that:
There is no real
protection afforded by the prohibition on disclosure by a police monitor
(s.105.41 (7)) Other persons, including law enforcement officials, are not
inhibited from accessing and making whatever use they care to of the contents
of the recording (save for the limitation on admitting certain parts of it in
In assessing the overall impact of these measures, the
Law Council concluded that:
These measures hinder the
administration of justice. Such measures will seriously impede a detained
person in giving sensible instructions to his or her lawyer in which sensitive
but innocent information is contained which could form, in part at least, the
basis of an application challenging such an order to be brought to the Federal
Court, in circumstances where that information is fed directly to the State. It
constitutes an unacceptable obstruction to lawyers performing their duty to the
The equivalent UK
terrorism law expressly recognises the right of detainees to consult a
solicitor as soon as is reasonably practicable, privately and at any time. The UK
law allow contact with a solicitor to be delayed on the authority of a
Superintendent, but not precluded. Terrorism laws in the UK
and the United States (US) also allow contact between 'detainees' and their
lawyers to be monitored. However, the US and UK
legislation contain a threshold test that must be met before communications
between a solicitor and client can be monitored, which does not include the
ability to tape record those communications.
The Terrorism Act
2000 (UK) allows for a
consultation between lawyer and detainee to be held "in the sight and
hearing" of a police officer, if a senior police officer has reasonable
grounds to believe that such consultation would lead to interference with the
investigation on the basis of grounds elaborated in the Act (see above).
Separate provisions, in relation to Scotland,
similarly allow for an officer "to be present during a consultation".
In the US,
the Attorney General must certify that "reasonable suspicion exists to
believe that an inmate may use communications with attorneys or their agents to
further or facilitate acts of violence or terrorism". The rule relevantly
[I]n those cases
where the Attorney General has certified that reasonable suspicion exists to
believe that an inmate may use communications with attorneys or their agents to
further or facilitate acts of violence or terrorism, this rule amends the
existing regulations to provide that the Bureau is authorized to monitor mail
or communications with attorneys in order to deter such acts, subject to
specific procedural safeguards, to the extent permitted under the Constitution
and laws of the United States.
The committee's view
The committee received a significant amount of evidence
in relation to the preventative detention provisions in the Bill.
With the exception of the evidence from the Attorney-General's Department and
the AFP, this evidence indicated significant opposition to the potential impact
of these provisions.
At the same time, the committee is cognisant that the
purpose of the proposed provisions is to protect the community. The committee
also recognises that the preventative detention regime is intended to apply in
exceptional circumstances and, while many witnesses are opposed to the scheme,
the emphasis during this inquiry has been on possible amendments to strengthen
procedural safeguards. The committee also notes the advice from the AFP that it
did not oppose any such amendments which would not unduly undermine its
operational capacity to respond in a time of emergency.
In this context, the committee's
view is that further amendments are required to the proposed preventative
detention regime in order ensure that the regime will be both fair and
effective. These recommended amendments are listed below. In making these
recommendations, the committee had regard to precedent that existed in overseas
jurisdictions, including those who had suffered terrorism attacks. The committee
is satisfied that none of its recommended amendments will unduly impinge on effective
law enforcement or the objectives of the preventative detention regime.
The committee recommends that proposed section 105.12
be amended, or a new provision inserted into the Bill, to provide a detainee with
an express statutory right to present information to the independent issuing
authority for a continued preventative detention order, to be legally
represented and to obtain the published reasons for the issuing authority's decision.
The committee recommends that:
- the Bill
be amended to expressly require that young people between the ages of 16 and 18
years of age must not be detained with adults while in police custody;
- proposed section 105.27 be amended to require
the segregation of minors from adults in State and Territory facilities; and
- proposed section 105.33 be amended to expressly
require that minors must be treated in a manner that is consistent with their
status as minors who are not arrested on a criminal charge.
The committee recommends that proposed section 105.28
be amended to place an obligation on police officers to ensure access to a
detainee by a lawyer and an interpreter, as necessary, in cases where there are
reasonable grounds to believe that the detainee is unable to understand fully the
effect of the preventative detention order because of inadequate knowledge of
the English language or a mental or physical disability.
The committee recommends that proposed sections 105.28
and 105.29 be amended to expressly require that detainees be advised that they
can make representations to the nominated senior AFP member concerning
revocation of the preventative detention order.
The committee recommends that proposed section 105.28
be amended to expressly require that the detainee be advised that he or she can
contact the family members referred to in proposed section 105.35.
The committee recommends that proposed section 105.32
be amended to provide that the detainee shall be provided with a copy of the
order and the reasons for the decision, including the materials on which the
order is based, subject to any redactions or omissions made by the issuing
authority on the basis that disclosure of the information concerned is 'likely
to prejudice on national security' (as defined in the National Security Information (Criminal and Civil Proceedings) Act 2004
The committee recommends that proposed sections 105.15
and 105.16 be amended to elaborate the grounds for a prohibited contact order. The
committee also recommends that these grounds be equivalent to those provided in
the UK terrorism
- interference with
or harm to evidence of a terrorism related offence;
- interference with
or physical injury to any person;
- alerting of
persons suspected of a terrorism related offence who have not been arrested;
- hindering recovery
of property obtained as a result of a terrorism related offence;
- interference with
gathering information about the commission, preparation or instigation of acts
of terrorism; and
- alerting a person and
thereby making it more difficult to prevent an act of terrorism.
The committee recommends that the Bill
be amended to:
- authorise oversight
by the Commonwealth Ombudsman of the preventative detention regime, including
conferral of a statutory right for the Ombudsman to enter any place used for
detention under a preventative detention order; and
- require the nominated senior AFP officer - in
circumstances when a legal adviser is not available to the detainee - to notify
the Ombudsman when a preventative detention order and a prohibited contact
order is made and to provide the Ombudsman with a copy of any such order and
reasons for those orders.
The committee recommends that the Bill be amended to
require the Minister - in consultation with HREOC, the Ombudsman and the Inspector-General
for Intelligence and Security – to develop a Protocol governing the minimum
conditions of detention and standards of treatment applicable to any person who
is the subject of a preventative detention order.
The committee recommends that proposed paragraph 105.41(3)(c)
be amended to refer to the persons whom the detainee has a right to contact
instead of persons with whom the detainee has had contact.
The committee recommends that proposed subsection
105.42(1) be amended to require that any questioning which takes place during
the period of the preventative detention order be videotaped and generally occur
in the presence of the detainee's lawyer.
The committee recommends that the Bill
be amended to remove the restrictions on lawyer/client communications and to allow
a legal representative to advise his/her client on any matter. The committee also recommends that proposed section
105.37 be amended to affirm the right of a detainee, subject to a prohibited
contact order, to contact their lawyer of choice and to consult their lawyer at
any time and in privately.
The committee recommends that proposed section 105.38
be amended to permit monitoring of detainees' consultation with their lawyers
only where the nominated AFP officer has reasonable grounds to believe that the
consultation will interfere with the purpose of the order.
The committee recommends that the Bill
be amended to prohibit reliance on hearsay evidence in proceedings for the
issue of a continued preventative detention order.
The committee recommends that proposed section 105.47
be amended to require the Attorney General to report on Commonwealth
preventative detention orders on a six monthly basis and that, in addition to
the matters currently set out in that provision, the information should include
the number of orders voided or set aside by the AAT.
The committee recommends that the Bill be amended to
include an express requirement for a public and independent five year review of
the operation of Division 105 adopting the same mechanism and similar terms as
that provided by section 4 of the Security
Legislation Amendment (Terrorism) Act 2002 (Cth), which established the
The committee recommends that proposed section 105.53 be
amended to include a sunset clause of five years applicable to Schedule 4.
Navigation: Previous Page | Contents | Next page