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 105.4   Basis for applying for, and making, preventative detention orders  

(1)    
An AFP member may apply for a preventative detention order in relation to a person only if the AFP member meets the requirements of subsection (4) or (6).

(2)    
An issuing authority may make a preventative detention order in relation to a person only if the issuing authority meets the requirements of subsection (4) or (6).

Note:

For the definition of issuing authority , see subsection 100.1(1) and section 105.2 .

(3)    
The person in relation to whom the preventative detention order is applied for, or made, is the subject for the purposes of this section.

(4)    
A person meets the requirements of this subsection if:

(a) in the case of an AFP member - the member suspects, on reasonable grounds, that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a terrorist act; and

(b) in the case of an issuing authority - the issuing authority is satisfied there are reasonable grounds to suspect that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a terrorist act; and

(c) the person is satisfied that making the order would substantially assist in preventing a terrorist act occurring; and

(d) the person is satisfied that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (c).

(5)    
A terrorist act referred to in subsection (4) must be one that:

(a) for paragraphs (4)(a) and (c) - the AFP member suspects, on reasonable grounds; or

(b) for paragraphs (4)(b) and (c) - the issuing authority is satisfied there are reasonable grounds to suspect;

is capable of being carried out, and could occur, within the next 14 days.

(6)    
A person meets the requirements of this subsection if the person is satisfied that:

(a) a terrorist act has occurred within the last 28 days; and

(b) it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

(7)    
An issuing authority may refuse to make a preventative detention order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.