Submission of the Human Rights and Equal Opportunity Commission, Preventative Detention Orders

New terrorism laws should adhere to human rights principles. John von Doussa QC

Extreme Changes Kate Ellis MP not punishing people Senator Despoja responsive politicians PC How To: Antonios Symeonakis People need practical help Senator Linda Kirk For the benefit of all Australians Senator Grant Chapman

• the Bill should set out the minimum content to be included in the summary to be provided to the subject and specifically require that it include sufficient factual material to alert the subject of the order to the factual basis upon which the order was made; and

• consideration should be given to the use of the Special Advocate procedure and/or a Public Interest Monitor in the case of security sensitive material.

Sedition offences
Recommendation 21: In relation to the defences to the new proposed sedition offences:

• that section 80.3 should be broadened so as to extend to expression which could be characterised as ‘attempting to encourage discussion on matters of public interest’ if such expression falls within the proposed sections 80.2(7) or (8); and

• that proposed section 80.3 should be broadened to expressly provide a defence in respect of anything said or done in good faith in the performance, exhibition or distribution of an artistic work; the course of any statement, publication or discussion or debate held for any genuine purpose; or, in making or publishing of a fair and accurate report of a particular matter.

Discussion

Preventative Detention Orders

General outline of the scheme

11. It appears from the Bill and the COAG communiqué that there will potentially be three distinct stages of detention under the Preventative Detention Order (PDO) regime:

• In all cases, the first step will be that an AFP officer makes an application for an ‘initial’ PDO to an ‘issuing authority’, being at this stage of the process a senior AFP officer². An initial PDO may be made for a period of up to 24 hours, calculated from the time the person is first taken into detention. ³If the order is first made for a period less than the 24 hour maximum, the senior AFP officer can extend the duration of detention on written application.⁴However, the entire period of detention, as extended, or further extended, cannot exceed a maximum total of 24 hours.⁵The application is made in the absence of the person to be detained.
• The Bill then provides for a period of further detention (beyond 24 hours) which must be authorised by a ‘continuing’ PDO. A continuing PDO can be granted by an ‘issuing authority’ – at this stage of the process defined to mean a person who is a Federal Judge or a Magistrate, a State or Territory Supreme Court judges, a retired judge or the President or a Deputy President of the AAT.⁶A continuing PDO cannot be granted unless the person is subject to an initial PDO. Like initial PDOs, a continuing PDO may be extended. However, a continuing PDO, as extended or further extended, must only allow for

2 Defined to mean the Commissioner, a deputy Commissioner or an AFP officer above the rank of superintendent (see Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 21).

3 See proposed s 105.8 (5) of the Criminal Code Act 1995 (Cth) (the ‘Criminal Code’).

4 See proposed s105.10 of the Criminal Code.

5 Proposed clause 105.10(5) provides that: "The period as extended, or further extended, must end no later than 24 hours after the person is first taken into custody under the order."

6 See proposed clause 105.2 (1) of the Criminal Code.

detention up to a period of 48 hours, after the person is first taken into detention under an initial PDO. The application is made in the absence of the person to be detained.
• According to the COAG communiqué, a period of further detention is then to be available under state and territory legislation. This will allow for detention from the 48 hour mark to a total of 14 days. The detail of that legislation is yet to be revealed.

12. There are two distinct bases for the making of a PDO. The first relates to the prevention of a terrorist act. To utilise that head, the issuing authority must be satisfied that:

(a) there are reasonable grounds to suspect that the subject:
1. (i) will engage in a terrorist act; or
2. (ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
3. (iii) has done, or will do, an act in preparation for, or planning, a terrorist act; and

(b) making the order would substantially assist in preventing a terrorist act occurring; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

13. The ‘terrorist act’ in question must be ‘imminent’. That term is not defined. However, the bill provides that it must at least be one that is expected to occur within 14 days.⁷

14. The second head for the making of a PDO relates to the protection of evidence. To utilise that head, the issuing authority must be satisfied that:

(a) a terrorist act has occurred within the last 28 days;
(b) it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

15. The powers to grant initial and continuing PDOs are subject to a number of safeguards. In particular:

• the detained person is entitled to contact the Commonwealth Ombudsman or relevant equivalent state authority;⁸
• the detained person is entitled to contact a lawyer (subject to certain limitations discussed below) to arrange for the lawyer to act for them to seek a remedy relating to the PDO or their treatment whilst detained;
• there are certain review rights available in the courts and the administrative appeals tribunal.⁹The limitations on those rights are discussed below;
• the "nominated senior AFP officer", who oversees the exercise of the powers under a PDO,¹⁰has certain obligations. They include an obligation to ‘consider’ representations made by the person who is being detained, their lawyer or parent or guardian (in the case of the detention of a person aged between 16 and 18).

16. The person who is detained is required to be given certain information. That includes a copy of the initial PDO and a ‘summary of the grounds’ upon which it was made.¹¹It is specifically

^{7 See proposed clause 105.4 (5) (b)
of the Criminal Code.

^{8 See proposed s105.36 of the
Criminal Code.

^{9 See proposed s105.51 of the
Criminal Code.

^{10 See proposed s105.19(5) of the
Criminal Code.

^{11 See proposed s105.32(1) of the
Criminal Code.}}}}}

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