Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 105 - Preventative detention orders  

Subdivision B - Preventative detention orders  

SECTION 105.8   Senior AFP member may make initial preventative detention order  

(1)  
On application by an AFP member, an issuing authority may, subject to subsection (1A), make an initial preventative detention order under this section in relation to a person.

Note 1:

Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1) ).

Note 2:

For the definition of senior AFP member , see subsection 100.1(1) .

(1A)  
If the application is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means.

(2)  
Subsection (1) has effect subject to sections 105.4 , 105.5 and 105.6 .

(3)  
An initial preventative detention order under this section is an order that the person specified in the order may be:


(a) taken into custody; and


(b) detained during the period that:


(i) starts when the person is first taken into custody under the order; and

(ii) ends a specified period of time after the person is first taken into custody under the order.

(4)  
The order must be in writing.

(5)  
The period of time specified in the order under subparagraph (3)(b)(ii) must not exceed 24 hours.

(6)  
An initial 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 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) the date and time after which the person may not be taken into custody under the order; and


(e) a summary of the grounds on which the order is made.

Note:

Paragraph (d) - see subsection 105.9(2) .

(6A)  
To avoid doubt, paragraph (6)(e) 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 105.39(2) is the period of more than 2 hours that is specified in the order.

(7A)  
If the order is made on an application that was made orally (see subparagraph 105.7(2)(a)(ii) ), the issuing authority must either:


(a) ensure that there is an audio, or audio-visual, recording of the application; or


(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.

(8)  
The senior AFP member nominated under subsection 105.19(5) in relation to the initial 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) if the person in relation to whom the order is made is taken into custody under the order - notify the Commonwealth Ombudsman in writing that the person has been taken into custody under the order; and


(d) if the person in relation to whom the order is made is taken into custody under the order - notify the Commonwealth Ombudsman in writing that the person has been taken into custody under the order.




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