Criminal Code Act 1995
Section 3CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH Part 5.3 - Terrorism Division 105 - Preventative detention orders
On application by an AFP member, an issuing authority may make a continued preventative detention order under this section in relation to a person if:
(a) an initial preventative detention order is in force in relation to the person; and
(b) the person has been taken into custody under the order (whether or not the person is being detained under the order).
Certain judges, AAT members and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2 ).
Subsection (1) has effect subject to sections 105.4 , 105.5 and 105.6 . Sections 105.4 requires the issuing authority to consider afresh the merits of making the order and to be satisfied, after taking into account relevant information (including any information that has become available since the initial preventative detention order was made), of the matters referred to in subsection 105.4(4) or (6) before making the order. (3)
A continued preventative detention order under this section is an order that the person specified in the order may be detained during a further period that:
(a) starts at the end of the period during which the person may be detained under the initial preventative detention order; and
(b) ends a specified period of time after the person is first taken into custody under the initial preventative detention order. (4)
The order must be in writing. (5)
The period of time specified under paragraph (3)(b) must not exceed 48 hours. (6)
A continued preventative detention order under this section must set out:
(a) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person ' s true name is not known but an alias is known for the person - the alias of the person in relation to whom the order is made;
(iii) if, after reasonable inquiries have been made, the person ' s true name is not known and no alias is known for the person - a description sufficient to identify the person in relation to whom the order is made; and
(b) the further period during which the person may be detained under the order; and
(c) the date on which, and the time at which, the order is made; and
(d) a summary of the grounds on which the order is made.
To avoid doubt, paragraph (6)(d) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ). (7)
If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.29(2) is the period of more than 2 hours that is specified in the order.(8)
The senior AFP member nominated under subsection 105.19(5) in relation to the continued preventative detention order must, as soon as reasonably practicable after the order is made:
(a) notify the Commonwealth Ombudsman in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a copy of the order; and
(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the order.