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Type of power
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Approving authority
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Burden of proof/evidentiary requirement
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Operational effect
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Other considerations or requirements
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Control order
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Interim control order requested by senior AFP member, consented to by Attorney-General, then authorised by the Federal Court or Federal Circuit Court.
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Balance of probabilities that conditions imposed by the order are reasonably necessary, and responsibly appropriate and adapted, for the purpose of preventing a terrorist act or support for terrorist activities.
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A range of obligations, prohibitions and restrictions may be placed upon the person (excluding detention). Duration as determined in the order, up to a maximum of 12 months.
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Maximum of three months for a person aged between 14 and 17 years.
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Continuing detention order (Commonwealth)
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Attorney-General (or legal representative) may apply to a Supreme Court of a state or territory.
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The Court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the person poses an unacceptable risk of committing a serious terrorism offence if released; and satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
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Continued post-sentence detention for a period, up to three years, that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
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No limit on the number of orders that can be made.
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Preventative detention order (Commonwealth)
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Initial (up to 24 hours detention) – a senior AFP officer.
Continuing (up to 48 hours detention) – a relevant judge, retired judge, or AAT member appointed as an issuing authority.
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Issuing authority is satisfied there are reasonable grounds to suspect that
- the subject will engage in a terrorist act that is capable of being carried out, and could occur, within the next 14 days;
- possesses a thing in connection with such a terrorist act; or
- has done an act in preparation for, or planning, such a terrorist act.
Satisfied that making the order would substantially assist in preventing a terrorist act occurring; and that detaining for the specified period is reasonably necessary for this purpose.
OR
Satisfied that it is reasonably necessary to detain the subject to preserve evidence of, or relating to, a recent terrorist act that has occurred within the last 28 days.
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Person can be detained, for up to 48 hours, with restrictions on who they may contact.
Questioning for investigatory purposes is prohibited.
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Children under 16 years of age cannot be detained.
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Preventative detention order (states and territories)
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In most states (including NSW and Victoria), may only be issued by the Supreme Court of that state or by an eligible judge. Some states have similar approving powers to the Commonwealth (senior police officer).
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Mostly similar to Commonwealth requirements.
ACT – issuing authority must be satisfied that a PDO is the ‘least restrictive way’ of preventing the act.
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Person can be detained for up to 14 days.
Questioning for investigatory purposes is prohibited.
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Children under 16 years of age cannot be detained.
ACT – children under 18 years of age cannot be detained.
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Part IC Crimes Act 1914 detention powers
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Initial arrest by a police officer for a terrorism offence. Extensions to the investigation period must be sought from a magistrate.
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Person must be arrested for a terrorism offence. The threshold for arrest is ‘suspects on reasonable grounds’ (section 3WA).
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Person may be detained for the purpose of investigations (i.e. including questioning).
The duration of initial investigation period can be no longer than four hours after arrest.
Magistrate may extend investigation period any number of times, but cannot exceed 20 hours (24 hours total)
The investigation period time does not include any time disregarded under ss23DB(9). Magistrate may declare extra time as ‘specified time’ not exceeding seven days.
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If a person is under 18, an Aboriginal or Torres Strait Islander person, the initial maximum duration of the investigation period is no longer than 2 hours after arrest.
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New South Wales investigative detention powers
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Initial arrest by any police officer if satisfied that the investigative detention will substantially assist in responding to or preventing a terrorist act.
Senior police officer must review detention as soon as practicable after the arrest and every 12 hours after that.
An eligible Judge may issue a detention warrant that extends the maximum period of investigative detention.
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A police officer may, without a warrant, arrest a terrorism suspect for the purpose of investigative detention if:
(a) the terrorist act concerned occurred in the last 28 days, or
(b) the police officer has reasonable grounds to suspect that the terrorist act concerned could occur at some time in the next 14 days,
and the police officer is satisfied that the investigative detention will substantially assist in responding to or preventing the terrorist act.
‘Terrorism suspect’ is defined in similar terms to the requirements for a person subject to a preventative detention order (see above).
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The person may be detained and questioned for the purposes of investigation.
Maximum initial detention period of four days, or up to a maximum of 14 days extended through detention warrants.
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Person under 14 years of age cannot be detained.
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