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 105.7   Application for initial preventative detention order  

(1)    
An AFP member may apply to an issuing authority for an initial preventative detention order 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) .

(2)    
The application must:

(a) be made either:

(i) in writing (other than writing by means of an electronic communication); or

(ii) if the AFP member considers it necessary because of urgent circumstances - orally in person or by telephone, or by fax, email or other electronic means of communication; and

(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and

(c) specify the period for which the person is to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should be detained for that period; and

(d) set out the information (if any) that the applicant has about the person ' s age; and

(e) set out the following:

(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;

(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders), and all previous applications for post-sentence orders or interim post-sentence orders, in relation to the person;

(iii) the outcomes and particulars of all previous applications for variations of control orders or of post-sentence orders made in relation to the person;

(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person;

(v) the outcomes and particulars of all previous applications for revocations of post-sentence orders or interim post-sentence orders made in relation to the person;

(vi) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;

(vii) the outcomes and particulars of all previous applications for review of post-sentence orders made in relation to the person; and

(f) set out the information (if any) that the applicant has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and

(g) set out a summary of the grounds on which the AFP member considers that the order should be made.

Note:

Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.

(2A)    
To avoid doubt, paragraph (2)(g) 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 ).

(2B)    
If the application is made orally, information given by the AFP member to the issuing authority in connection with the application must be verified or given on oath or affirmation, unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.

(3)    
If:

(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under the order; and

(c) an application is made for another initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;

the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.

Note:

See subsection 105.6(2) .

(4)    
If:

(a) an order for a person ' s detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under that order; and

(c) an application is made for an initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;

the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.

Note:

See subsection 105.6(5) ).