Division 105 of the Criminal Code Act 1995
Overview of the provisions
4.1
Division 105 of the Criminal Code sets out the circumstances in which a preventative detention order (PDO) may be issued. A PDO allows an individual to be taken into custody and detained for a short period of time (not exceeding 24 hours) in order to:
prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or
preserve evidence of, or relating to, a recent terrorist act.
4.2
A PDO can only be issued in relation to a person aged 16 years and older.
4.3
In order to issue a PDO, an AFP officer and/or other issuing agent must, on reasonable grounds, suspect that the person:
will engage in a terrorist act; or
possess 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, a terrorist act.
4.4
Alternatively, a person may also meet the threshold for a PDO if a terrorist event has occurred within the last 28 days, and it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act.
4.5
Division 105 makes provision for initial PDOs and continued PDOs. An initial PDO authorises detention for up to 24 hours and may be issued by a senior AFP member following an application from an AFP member. A continued PDO authorises detention for up to 48 hours and may be issued by those appointed by the Attorney-General in accordance with the following:
a person who is a judge of a State or Territory Supreme Court; or
a person who is a Judge of the Federal Court of Australia or of the Federal Circuit Court of Australia; or
has served as a judge in one or more superior courts for a period of 5 years; and
no longer holds a commission as a judge of a superior court; or
holds an appointment to the Administrative Appeals Tribunal as President or Deputy President; and
is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and
has been enrolled for at least 5 years.
4.6
Division 105 restricts the use of multiple PDOs against a subject. Where a subject of an initial PDO is taken into custody, another initial PDO cannot be applied for, or made, in relation to the same subject on the basis of assisting in preventing the same terrorist act occurring within that period.
4.7
A subsequent order can only be made for the purpose of preventing a different terrorist act unless the application, or the order, is based on information that had become available after the initial PDO was made.
4.8
An application may be made orally or via electronic communication if the AFP member believes this is necessary due to urgent circumstances.
4.9
The application for an initial PDO must also include details of:
the facts of the case and grounds on which the application is made;
the specific period of time the PDO will be in effect;
the age of the person detailed (if the AFP officer has that information);
the particulars of any previous applications for PDOs, applications for interim control orders and any variations or revocations on control orders, as well as outcomes of the same, for the subject of the application;
information about any detention orders made under corresponding State preventative legislation regime; and
a summary of the grounds on which the PDO should be made.
4.10
If an individual is not taken into custody within 48 hours of the order being created, the order ceases to have effect.
Prohibited contact orders
4.11
Following application by an AFP member, an issuing authority for the preventative detention order may make a prohibited contact order in relation to a person’s detention under a PDO they be satisfied that it is reasonably necessary to:
avoid a risk to action being taken to prevent a terrorist act; or
to prevent serious harm to a person; or
to preserve evidence of, or relating to, a terrorist act; or
to prevent interference with the gathering of information about:
the preparation for, or the planning of, a terrorist act; or
the arrest of a person who is suspected of having committed an offence against this Part; or
the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or
the service on a person of a control order.
4.12
A prohibited contact order can be applied for when a PDO is being sought or when it is already in place.
Sunset provision
4.13
The recent passage of the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021 extended the sunset provision related to PDOs to the end of 7 December 2022, extended from the original sunset date of 7 September 2021. Upon sunset, any PDO or prohibited contact order that is in force ceases to have effect.
Review history
4.14
The PDO regime has been reviewed multiple times since its inception. The Committee’s previous report, Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime, published in February 2018, provides a detailed summary of these reviews.
4.15
In 2012, the former INSLM, Mr Bret Walker SC, found that PDOs were not necessary and should be repealed:
There is no demonstrated necessity for these extraordinary powers, particularly in light of the ability to arrest, charge and prosecute people suspected of involvement in terrorism. No concrete and practical examples of when a PDO would be necessary to protect the public from a terrorist act because police could not meet the threshold to arrest, charge and remand a person for a terrorism offence have been provided or imagined.
Police should instead rely on their established powers to take action against suspected criminals through the arrest, charge, prosecution and lengthy incarceration of suspected terrorists.
4.16
In 2013, a Committee of the COAG concluded that PDO provisions should be repealed:
The majority of the Committee concludes, based on these powerful considerations, that the preventative detention scheme is, as presently structured, neither effective nor necessary. A scheme that is not likely to be used could scarcely be regarded as effective; nor could it, for the same reason, be considered necessary. While we are conscious that the Federal/State scheme could be restructured, the majority consider that the additional safeguards that would need to be built into the scheme (to emulate, for example, the ACT model or a substantial part of it) would simply diminish the operational effectiveness of the scheme and lead to an even greater level of reluctance and a determination on the part of police not to use the legislation, even in an emergency situation.
…
The Committee’s recommendation is, by majority, that Division 105 should be repealed, as should the complementary State and Territory legislation dealing with preventative detention.
4.17
In 2014, the Committee noted a proposal to extend the PDO scheme to December 2025. However, the Committee recommended that the PDO provisions be extended to two years after the 2016 Federal election.
4.18
The Parliamentary Joint Committee on Human Rights concluded that the PDO regime significantly limited human rights:
The committee notes that the PDO regime involves very significant limitations on human rights. Notably, it allows the imposition of a PDO on an individual without following the normal criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt. Effectively, PDOs permit a person's detention by the executive without charge or arrest. The provision for detention of an innocent person (who may not themselves pose a risk to society) for the purpose of preserving evidence is beyond the scope of what is recognised as a permissible denial of the traditional human right to liberty. These have usually been limited to situations where there is reason to believe that an individual would pose a serious danger to society if not detained.
…
In light of the above, and in the absence of further information, the committee considers that the PDO regime is likely to be incompatible with [relevant human rights].
4.19
In 2016, the Committee’s Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 recommended two amendments to the PDO regime which were accepted by Government:
1
Amending the basis upon which a PDO may be applied for by the AFP to relate to reasonable grounds to suspect that a terrorist act ‘is capable of being carried out, and could occur, within the next 14 days.’ Prior to this amendment, the legislation provided that the terrorist act must be ‘imminent’ and ‘is expected to occur, in any event, at some time in the next 14 days’; and
2
Removing the ability for serving or retired judges of the Family Court of Australia to be appointed as issuing authorities in relation to PDOs.
2017 review by the former INSLM
4.20
In 2017, the former INSLM, Dr James Renwick SC, concluded a statutory review into the PDO regime. The former INSLM noted that the majority of submissions to the inquiry recommended that the provisions be repealed. The arguments made for repeal rested on the following matters:
the availability of alternative measures that could reasonably achieve the same outcome as an alternative to PDOs to prevent an imminent terrorist attack;
the disproportionality of the human rights limitations of a PDO when compared with the outcome of preserving evidence;
perceived inadequacies with safeguards associated with PDOs; and
concerns that a PDO may apply when the conduct of a person was not illegal at the time.
4.21
The AFP and the Attorney-General’s Department submitted that the PDO scheme was a valuable tool to disrupt an imminent terrorist attack. The AFP said that they would be more likely to use complementary state legislation due to the extended detention time available under state-based schemes. The AFP used the example of Operation Appleby, where state PDOs were applied for the purpose of a counter-terrorism investigation, and noted that having the ability to enact PDOs across multiple places with multiple people that could be kept separate to preserve information would be valuable way to use the PDO scheme.
4.22
The former INSLM also noted that the AFP and the Attorney-General’s Department did not consider the non-use of the powers as a reason to allow them to lapse and agreed with these views:
…neither the AFP nor AGD considered that the absence of any application for a PDO under div 105 should be determinative of the question whether the provisions should be allowed to lapse. Although the PDO regime is not one that is used by ASIO, the Director-General of Security described it as important to have ‘the facility and the ability to bring about what is essentially a critical disruption to a complicated and potentially several groups connected or several individuals connected’.
…
I agree with the views of the AFP and AGD, echoed by the Director-General of Security at the public hearing, that a conclusion of redundancy does not automatically follow from the non-use of a particular law enforcement tool.
4.23
The former INSLM concluded that the PDO regime was necessary and proportionate to the terrorism threat, and that the regime adequately protected human rights:
Like COAG, I find the issue to be finely balanced and difficult, even dealing with a 48-hour limit. But in view of the nature and extent of current terrorist threats, I find that a preventative detention regime in terms of div 105 is necessary and proportionate to that threat. There is also adequate protection of individual rights. As to that threat, I repeat what I have earlier said above about div 104; as to its necessity I am not prepared to reject what has been said by the AFP, AGD, ASIO and Mr Lawler, noting also the support of the NSW Police. The significant changes both in the modus operandi of terrorist attacks and those carrying them out warrant, in my view, some form of preventative detention regime.
4.24
The former INSLM recommended the powers continue for a further five years, but noted that the ongoing utility of the powers could be affected by developments in other jurisdictions.
2018 review by the Committee
4.25
In 2018, the Committee conducted a statutory review into the PDO powers provided by Division 105 of the Criminal Code.
4.26
In its review, the Committee considered contentious issues related to the PDO regime including threshold tests, the questioning of subjects, the preservation of evidence and the impact of a PDO on human rights.
4.27
The Committee referred to the INSLM’s report in its commentary on the continued necessity of the PDO provisions. The Committee concluded that a sunset period of three years should apply:
The Committee considers…that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. This further review will provide an opportunity to examine the continued necessity of for the PDO regime in light of the security environment at the time and any developments in order legislation.
4.28
The Committee made three recommendations in its report:
that the PDO regime be continued for another three years;
that the Intelligence Services Act 2001 (Cth) be amended to allow the Committee to conduct a further review into these provisions prior to their sunset date; and
that the AFP be required to notify the Committee as soon as possible after a preventative detention order is made, and be available to brief the Committee if requested.
4.29
These recommendations were supported by Government and incorporated into the Criminal Code.
Use of the provisions
4.30
The Commonwealth PDO powers have not been used since they were introduced.
State and territory use
4.31
The Commonwealth PDO scheme is supported by state and territory provisions. Where the Commonwealth PDO scheme allows for a total period of detention not to exceed 48 hours, the state and territory schemes allow for a period of detention up to 14 days.
4.32
The joint agency submission by the Attorney-General’s Department, the AFP and the Department of Home Affairs said that the Commonwealth scheme provides an important baseline for state and territory schemes:
While PDOs have not been used yet, Commonwealth PDOs provide an important baseline level of national consistency for the AFP, and complement State and Territory PDO schemes. Joint Counter Terrorism Team (JCTT) arrangements provide police with the full range of State/Territory and Commonwealth powers and offences, including PDO powers. The JCTT model allows law enforcement to consider and utilise the best tools available in any particular investigation, whether they be State/Territory or Commonwealth.
4.33
According to the AFP submission, state and territory powers have been used four times on two occasions between 2014 and 2015 with the occasions set out as follows:
in 2014, 3 individuals were held for a period of 48 hours under NSW PDO provisions as part of Operation Appleby for the purpose of preventing an imminent terrorist attack; and
in 2015, Mr Harun Causevic was held for a period of three days under Victorian PDO provisions for the purpose of preventing an imminent terrorist attack.
4.34
The joint Academic Submission said that the use of the PDO scheme in those cases occurred when the police had sufficient evidence to arrest the individuals:
All four uses of the PDO regime appear to have occurred when the police already had sufficient evidence for an arrest. Causevic was arrested immediately following his release from detention under a PDO and charged with the offence of planning a terrorist attack (charges which were later withdrawn). The three unnamed men detained under PDOs on 18 September 2014 had been arrested by the AFP as part of Operation Appleby.
4.35
The AHRC said that the NSW PDO provision had been overtaken by the introduction of new investigative detention powers in Part 2AA of the Terrorism (Police Powers) Act 2002 (NSW):
The New South Wales Ombudsman recommended that the New South Wales PDO regime be allowed to sunset in December 2018. The primary reason for this was the introduction of new investigative detention powers in Part 2AA of the Terrorism (Police Powers) Act 2002 (NSW) which the Ombudsman considered removed ‘any occasion for future use’ of the PDO regime. A statutory review of these powers in 2018 by the NSW Department of Justice considered that it was ‘premature’ to allow the PDO regime to sunset at that stage because the investigative detention powers were ‘yet to be operationally tested’. The New South Wales regime is currently due to sunset on 16 December 2021.
Necessity of the provisions
4.36
As mentioned above, the AFP said that the PDO powers provided by the Criminal Code had not been used. Similarly to the power of stop, search and seizure, the AFP submit that this lack of use reflects their ‘judicious’ use of the regime and not the lack of usefulness of the powers.
4.37
Mr Scott Lee, Assistant Commissioner of Counter Terrorism and Special Investigations at the AFP said that the PDO regime would continue to be useful in relation to the preservation of evidence:
Say two persons of interest are arrested following a terrorist attack that has occurred. In the course of questioning these suspects, police discover that they have given crucial evidence to support a terrorism charge – for example, a mobile phone containing evidential material – to their brother to destroy. It is not known whether the brother has any connection to the attack, and the suspects have informed police that the brother isn’t actually aware of the significance of what he has been asked to carry. The police, therefore, do not have reasonable suspicion that the brother has been in any way involved in planning or carrying out the attack. Then police locate the brother and apply for a preventative detention order under 105.4(6) to preserve this evidence in the event that the brother does not willingly provide the evidence.
4.38
The joint department submission said that PDO provisions were a valuable tool to disrupt terrorist activity:
In the current threat environment, where there is an increase in the threat of smaller-scale opportunistic attacks by lone actors, and where there is less time for law enforcement agencies to respond to an attack, the PDO provides a valuable tool to assist police in disrupting terrorist activity. Where there is little to no lead time to disrupt a terrorist act, there may not be sufficient information available regarding the individual to meet the arrest thresholds. The PDO fills this gap by either preventing a person’s immediate engagement in a terrorist act, or providing authorities with additional time to secure evidence following a terrorist act.
4.39
The joint Academic Submission said that evidence to previous inquiries indicated that law enforcement would be unlikely to use PDO provisions:
Multiple submissions by federal, State and Territory police forces to the INSLM and the COAG Review indicated that law enforcement is unlikely to use the PDO provisions because other, more suitable, detention powers are available.
4.40
The AHRC said that the AFP’s view was that they would be unlikely to use the Commonwealth PDO scheme because of the more generous State and Territory provisions:
At the time of the last review of these provisions in 2017, the AFP confirmed that it had not used a Commonwealth PDO since the relevant legislation was introduced. There were a number of reasons for this, but a particularly significant reason was the view of the AFP that they were unlikely to use the Commonwealth provisions in circumstances where they had access to more extensive State and Territory regimes through cooperation with polices forces in those jurisdictions. Those State and Territory regimes provide for detention of up to 14 days.
4.41
Mr Edward Santow, Human Rights Commissioner of the AHRC, said that ‘there has been no compelling justification that PDOs are necessary to protect the community from people who might engage in terrorism’ and there were no powers particular to the PDO regime which filled an existing gap in the law.
4.42
The Muslim Legal Network New South Wales (MLN NSW) said that PDO’s infringe on legal professional privilege because a person’s communication with their lawyer must be monitored:
Another issue with PDOs is that such orders infringe on legal professional privilege because a person’s communication with their lawyer must be monitored effectively by police, which hampers the full and frank disclosure of salient information afforded to an individual. Secondly, the common law principle of ‘innocence until proven guilty’ is non existent.
4.43
The AHRC said that the strict limitation on communication with others would engage human rights consideration:
The strict limitations on communication with others also engages a range of rights including the right to freedom of expression (article 19 of the ICCPR) and the guarantee against arbitrary interference with the family (article 17 of the ICCPR).
4.44
The Law Council said that they saw no ‘persuasive case for retaining the PDO regime beyond the sunset date of 7 September 2021’ and recommended that the PDO regime not be renewed.
4.45
The Law Council said they were concerned with the ‘uncertainty of predicting future terrorist attacks’. Dr David Neal said that the Law Council would prefer the implementation of the extended supervision order (ESO) regime envisaged by the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 as ‘it’s a less intrusive option on human rights concerns.’
Committee Comment
4.46
The Committee notes the considerable history associated with these powers, and agrees that the powers are intrusive and extraordinary. The Committee notes that the concerns raised in submissions to this inquiry accord with the views raised in previous reviews.
4.47
The Committee considers that a review into such powers presents a challenge as these powers continue of ‘last resort’ and can only be used in extraordinary circumstances. Whilst the non-use of these powers seems to reflect a considered approach by law enforcement, it also presents the Committee with a difficult circumstance as the Committee is left to consider hypotheticals and provides little justification for the continued use of these powers.
4.48
However, the Committee acknowledges the importance of law enforcement having a full range of powers to respond to domestic terrorist attacks around Australia, and that the changing nature of terrorism provides ongoing challenges to law enforcement and intelligence agencies in addressing these threats. The Committee supports the intent of these powers to equip law enforcement to respond to plots and attacks on Australian soil.
4.49
The Committee has considered carefully the arguments put forward by submitters in relation to extending the powers and those which advocate for the repeal or sunset of the powers at the end of 2021.
4.50
The Committee notes that the State and Territory-based preventative detention powers by law enforcement allow for longer periods of detention than the Commonwealth regime, and on the two occasions when the use of such powers were deemed necessary, law enforcement relied on NSW and Victorian preventative detention powers and not the Commonwealth provisions.
4.51
The Committee agrees with the conclusion of the former INSLM that non-use of the powers does not indicate lack of usefulness. The Committee considers that in light of the national security threat environment the PDO powers should not be repealed.
4.52
The Committee notes the extension of the sunset provisions for PDO powers to 7 December 2022, and extension from the previous sunset date of 7 September 2021.
4.53
The Committee recommends that the powers continue for an additional three years beyond the current sunset of 7 December 2022.
4.54
The Committee recommends that the preventative detention order regime in Division 105 of the Criminal Code Act 1995 be continued for a period of three years and sunset on 7 December 2025.
4.55
The Committee notes the issuing authorities for a continued preventative detention order under Division 105.2 of the Criminal Code Act 1995, and considers that this division be amended so that a continued PDO can no longer be issued by a member of the AAT (other than the AAT President or a Deputy President who also holds a commission as a Federal Court Judge), or a judge of the Federal Circuit Court.
4.56
The Committee recommends that Division 105 of the Criminal Code Act 1995 be amended to remove:
a member of the Administrative Appeals Tribunal (other than the AAT President or a Deputy President who also holds a commission as a Federal Court Judge); and
a Judge of the Federal Circuit Court.
4.57
The Committee notes the evidence from the AHRC regarding developments in NSW legislation that would make the NSW PDO provisions largely redundant. The Committee also notes that the former INSLM identified the potential for additional developments in State and Territory schemes. The Committee notes that should State and Territories move away from a PDO model, the proposition that the Commonwealth PDO provisions provide a baseline is no longer valid.
4.58
The Committee also notes that it may be necessary to use the Commonwealth PDO provisions prior to the sunset of the powers and that in such an event, the Committee would be in a more preferable position to evaluation the proportionality and necessity of the powers.
4.59
The Committee recommends that the Intelligence Services Act 2001 be amended to provide that the Committee may conduct a review into the necessity and proportionality of the powers prior to the recommended sunset date in Recommendation 7.
4.60
The Committee recommends that section 29 of the Intelligence Service Act 2001 be amended to provide that the Committee may commence a review the provisions of Division 105 of the Criminal Code Act 1995 prior to the sunset of the provisions.