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 C - Carrying out preventative detention orders  

SECTION 105.26   Release of person from preventative detention  

(1)    
The police officer who is detaining a person under a preventative detention order may release the person from detention under the order.

Note:

A person may be released, for example, so that the person may be arrested and otherwise dealt with under the provisions of Division 4 of Part IAA , and IC of the Crimes Act 1914 .

(2)    
If the police officer detaining the person under the order is not an AFP member:

(a) the police officer must not release the person from detention without the approval of a senior AFP member; and

(b) the senior AFP member must approve the person ' s release if the person is being released so that the person may be dealt with in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 .

(3)    
The police officer who releases the person from detention under the preventative detention order must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.

(4)    
Subsection (3) does not apply if the police officer releases the person from detention so that the person may be dealt with:

(a) in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 ; or

(b) under the provisions of Division 4 of Part IAA , and Part IC , of the Crimes Act 1914 .

(5)    
To avoid doubt, a person may be taken to have been released from detention under a preventative detention order even if:

(a) the person is informed that he or she is being released from detention under the order; and

(b) the person is taken into custody, and detained in custody, on some other basis immediately after the person is informed that he or she is being released from detention under the order.

(6)    
To avoid doubt, a person is taken not to be detained under a preventative detention order during a period during which the person is released from detention under the order.

Note:

During this period, the provisions of this Division that apply to a person who is being detained under a preventative detention order (for example, section 105.34 which deals with the people the person may contact) do not apply to the person.

(7)    
To avoid doubt:

(a) the release of the perosn under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order remains in force; and

(b) a person released under subsection (1) from detention under a preventative detention order may again be taken into custody and detained under the order at any time while the order remains in force in relation to the person.

Note:

Paragraph (a) - this means that the time for which the person may be detained under the order continues to run while the person is released.