TERRORISM (EMERGENCY POWERS) ACT 2003

NORTHERN TERRITORY OF AUSTRALIA TERRORISM (EMERGENCY POWERS) ACT 2003 As in force at 5 January 2018 Table of provisions Part 1 Preliminary 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Act binds the Crown ........................................................................ 1 4 Interpretation ................................................................................... 1 4A Extraterritoriality of terrorist act no barrier........................................ 4 5 Terrorist act ..................................................................................... 4 Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations 6 When authorisation may be given ................................................... 6 7 Purposes for which authorisation may be given .............................. 6 8 Who may give authorisation ............................................................ 7 9 Form of authorisation ....................................................................... 7 10 Duration of authorisation.................................................................. 8 11 Revocation of authorisation ............................................................. 8 12 Legality of authorisation ................................................................... 9 12A Power to give directions to public authorities ................................... 9 13 Report to be given to Attorney-General and Police Minister ............ 9 14 Report to be tabled in Legislative Assembly .................................. 10 Division 2 Powers given by authorisation 15 Purposes for which powers under authorisation may be exercised ....................................................................................... 10 16 Power to make person disclose identity and address .................... 10 17 Power to search persons ............................................................... 11 18 Power to search vehicles ............................................................... 11 19 Power to enter and search premises ............................................. 12 20 Power to enter premises for surveillance or to protect persons ..... 12 Part 2A Powers exercisable under special area declaration Division 1 Preliminary matters 20A Definitions ...................................................................................... 13 -- 1 of 104 -- Terrorism (Emergency Powers) Act 2003 ii Division 2 Making special area declaration 20B Special area declaration ................................................................ 14 20C Form of declaration........................................................................ 14 20D Duration of declaration .................................................................. 14 20E Revocation of declaration .............................................................. 15 20F Legality of declaration .................................................................... 15 20G Effect of failure to publish .............................................................. 15 20H Report to be given to Attorney-General and Police Minister .......... 16 20J Report to be tabled in Legislative Assembly .................................. 16 Division 3 Powers given by special area declaration 20K Powers which may be exercised under declaration ....................... 16 20L Power to make person disclose identity and address .................... 16 20M Power to search persons ............................................................... 17 20N Power to search vehicles ............................................................... 18 Division 4 Seizure of terrorism related items and serious offence related items 20P Seizure of items ............................................................................. 18 20Q Seizure notice ................................................................................ 18 20R Return of seized item ..................................................................... 19 20S Forfeiture of seized item ................................................................ 19 20T Application to Local Court Judge ................................................... 20 Part 2B Preventative detention orders Division 1 Preliminary matters 21 Object ............................................................................................ 21 21A Definitions ...................................................................................... 21 21B Same terrorist act .......................................................................... 22 21C Eligible Judges .............................................................................. 23 21D Authorised police officers............................................................... 23 Division 2 Preventative detention orders 21E Application for preventative detention order .................................. 23 21F Form and content of application .................................................... 24 21G When preventative detention order may be made ......................... 26 21H Nature and content of preventative detention order....................... 27 21J Commissioner of Correctional Services or CEO (Youth Justice) to be given copy of preventative detention order if person detained in custody ............................................................ 28 21K Maximum period of detention ........................................................ 28 21L When order starts and ceases to have effect ................................ 29 21M No preventative detention order in relation to person under 16 ..... 29 -- 2 of 104 -- Terrorism (Emergency Powers) Act 2003 iii 21N Multiple preventative detention orders ........................................... 30 21P Review of preventative detention order by Supreme Court ........... 30 21Q Prohibited contact order – person in relation to whom preventative detention order being sought .................................... 31 21R Prohibited contact order – person in relation to whom preventative detention order in force ............................................. 32 21S Application by detainee for revocation or variation of preventative detention order or prohibited contact order ............... 33 21T Application by police officer for revocation or variation of preventative detention order or prohibited contact order ............... 34 21U Hearing procedures for proceedings in relation to orders .............. 36 Division 3 Carrying out preventative detention orders 21V Power to detain person under preventative detention order .......... 36 21W Senior police officer with functions under preventative detention order .............................................................................. 37 21X Nominated police officer to oversee order ..................................... 37 21Y Endorsement of order with date and time person taken into custody .......................................................................................... 38 21Z Power to require disclosure of identity ........................................... 38 21ZA Power to enter premises and vehicles ........................................... 39 21ZB Release of person from preventative detention ............................. 39 21ZC Arrangement for detainee to be held in custodial correctional facility ............................................................................................ 40 Division 4 Informing person detained about preventative detention orders 21ZD Effect of preventative detention order to be explained to person detained ............................................................................. 42 21ZE Compliance with obligation to inform ............................................. 43 21ZF Copy of preventative detention order and summary of grounds .... 43 Division 5 Treatment of person detained 21ZG Humane treatment of person being detained................................. 45 21ZH Restriction on contact with other people ........................................ 45 21ZI Contacting family members etc. .................................................... 45 21ZJ Contacting Ombudsman and Ethical and Professional Standards Command ..................................................................... 46 21ZK Contacting lawyer .......................................................................... 47 21ZL Special contact rules for person under 18 or incapable of managing own affairs .................................................................... 49 21ZM Monitoring contact with certain persons ........................................ 50 21ZN Entitlement to contact subject to prohibited contact order ............. 51 21ZO Disclosure offences ....................................................................... 51 21ZP Questioning of person prohibited while person is detained ........... 57 21ZQ Taking identification material ......................................................... 57 -- 3 of 104 -- Terrorism (Emergency Powers) Act 2003 iv 21ZR Use of identification material.......................................................... 59 Division 6 Miscellaneous matters 21ZS Annual reports to be given to Police Minister................................. 60 21ZT Law relating to client legal privilege not affected ........................... 61 21ZU Legal proceedings for remedy in relation to orders........................ 61 21ZV Sunset provision ............................................................................ 62 Part 3 Powers relating to public health and safety Division 1 Movement of persons and vehicles 22 Vehicles may be required to be moved or prevented from entering area ................................................................................. 62 22A Movement into and out of area may be restricted.......................... 62 23 Person may be directed to leave, remain in or not enter area ....... 63 Division 2 Quarantine 24 Police officer may direct person to submit to decontamination and quarantine for up to 48 hours.................................................. 64 25 Chief Health Officer may direct person to submit to decontamination and quarantine for more than 48 hours .............. 64 Division 3 Contaminated or unsafe property 26 Premises may be made safe ......................................................... 65 27 Decontamination etc. of things ...................................................... 66 Part 3A Covert search warrants Division 1 Preliminary matters 27A Interpretation ................................................................................. 66 Division 2 Authorisations to apply for covert search warrants 27B Who may apply for covert search warrant ..................................... 67 27C Form of authorisation ..................................................................... 67 Division 3 Applications for, and issue of, covert search warrants 27D Power to apply for covert search warrant ...................................... 67 27E Application for warrant in person ................................................... 67 27F Special warrant .............................................................................. 68 27G Information in application for warrant ............................................. 69 -- 4 of 104 -- Terrorism (Emergency Powers) Act 2003 v 27H Determining application for covert search warrant......................... 70 27J Record of determination by Supreme Court Judge........................ 71 27K Further application for warrant after refusal ................................... 71 27L Contents of covert search warrant ................................................. 71 Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 1 Preliminary matters 27M Interpretation ................................................................................. 72 Subdivision 2 Powers exercisable under covert search warrants 27N Powers automatically conferred by covert search warrant ............ 73 27P Powers expressly conferred by covert search warrant .................. 73 27Q Power of re-entry ........................................................................... 74 27R Power to stop, detain and search etc. ........................................... 75 Subdivision 3 Execution and currency of covert search warrant 27S Use of assistants to execute warrant ............................................. 75 27T Expiry of covert search warrant ..................................................... 75 Subdivision 4 Provisions applying after warrants executed 27U Report to Supreme Court Judge on execution of warrant .............. 76 27V Defects in covert search warrants ................................................. 78 Division 5 Miscellaneous matters 27W Matters to be dealt with in absence of public ................................. 78 27X False or misleading information in applications or reports ............. 78 27Y No publication or disclosure of information about covert search warrants ......................................................................................... 78 27Z Annual reports to be given to Police Minister................................. 79 Part 4 Other powers Division 1 Enforcement 28 Use of force ................................................................................... 80 29 Power to seize and detain things etc. ............................................ 81 30 Securing of crime scene ................................................................ 81 31 Compulsory reporting of thefts and unusual sales of potential terrorism hazards........................................................................... 82 -- 5 of 104 -- Terrorism (Emergency Powers) Act 2003 vi Division 2 Assistance with enforcement 32 Recognition of other law enforcement officers ............................... 83 33 Recognised law enforcement officers to have police powers ........ 84 34 Police officer may require assistance from members of public ...... 84 35 Protection of persons acting under this Act ................................... 85 Division 3 Offences 36 Offence of failing to comply with direction ..................................... 85 37 Offence of obstructing or hindering exercise of powers ................. 86 38 Offence of resisting or inciting resistance to exercise of powers ........................................................................................... 86 Part 5 Duties under this Act 39 Police officer to give details to certain persons .............................. 86 40 Conditions of search of persons .................................................... 86 41 Return of seized things .................................................................. 87 42 Acquisition ..................................................................................... 87 Part 6 Miscellaneous 43 Relationship with other Acts .......................................................... 87 44 Onus of proof ................................................................................. 88 45 Authorisation may constitute reasonable grounds for suspicion .... 88 46 Regulations.................................................................................... 88 47 Review of Act................................................................................. 88 Schedule ENDNOTES -- 6 of 104 -- NORTHERN TERRITORY OF AUSTRALIA ____________________ As in force at 5 January 2018 ____________________ TERRORISM (EMERGENCY POWERS) ACT 2003 An Act to provide powers to prevent and respond to terrorist acts Part 1 Preliminary 1 Short title This Act may be cited as the Terrorism (Emergency Powers) Act 2003. 2 Commencement This Act comes into operation on the date fixed by the Administrator by notice in the Gazette. 3 Act binds the Crown This Act binds the Crown in right of the Territory and, to the extent that the legislative powers of the Legislative Assembly permit, the Crown in all its other capacities. 4 Interpretation (1) In this Act: adjoining place, for Part 3A, has the meaning in section 27A. authorisation means an authorisation given under section 8. authorised police officer has the meaning in: (a) for Part 2B – section 21A; or (b) for Part 3A – section 27A. business day means a day that is not: (a) a Saturday or Sunday; or (b) a day that is declared to be a public holiday under the Public Holidays Act 1981. -- 7 of 104 -- Part 1 Preliminary Terrorism (Emergency Powers) Act 2003 2 CEO (Youth Justice) means the Chief Executive Officer (as defined in section 19 of the Public Sector Employment and Management Act 1993) of the Agency responsible for youth justice. Commissioner means the Commissioner of Police. confirmed preventative detention order, for Part 2B, has the meaning in section 21A. contaminant means a radioactive substance, biological organism, gas or poison or any other substance that is a risk to public health or public safety. corresponding law, for Part 2B, has the meaning in section 21A. custodial correctional facility, see section 11(1)(a) of the Correctional Services Act 2014. decontamination procedure does not include the internal examination of a person. eligible Judge, for Part 2B, has the meaning in section 21A. Ethical and Professional Standards Command, for Part 2B, has the meaning in section 21A. identification material, for Part 2B, has the meaning in section 21A. lawyer, for Part 2B, has the meaning in section 21A. national security, for Part 2B, has the meaning in section 21A. nominated police officer, for Part 2B, has the meaning in section 21A. person assisting a police officer means a person acting in accordance with a request under section 34. place, for Part 3A, has the meaning in section 27A. Police Minister means the Minister with primary responsibility for the administration of the Police Administration Act 1978. police officer means a member of the Police Force. premises includes: (a) residential premises; (b) a building or structure; and -- 8 of 104 -- Part 1 Preliminary Terrorism (Emergency Powers) Act 2003 3 (c) a place, whether built on or not. preventative detention order, for Part 2B, has the meaning in section 21A. prohibited contact order, for Part 2B, has the meaning in section 21A. responsible police officer, for Part 2A, has the meaning in section 20A. same terrorist act, for Part 2B, has the meaning in section 21A. seized item, for Part 2A, has the meaning in section 20A. senior police officer, for Part 2B, has the meaning in section 21A. serious indictable offence, for Part 2A, has the meaning in section 20A. serious offence related item, for Part 2A, has the meaning in section 20A. special area, for Part 2A, has the meaning in section 20A. special area declaration, for Part 2A, has the meaning in section 20A. special event, for Part 2A, has the meaning in section 20A. special warrant, for Part 3A, has the meaning in section 27A. subject place, for Part 3A, has the meaning in section 27A. target has the meaning in section 7(2). terrorism related item, for Part 2A, has the meaning in section 20A. terrorist act has the meaning in section 5. vehicle includes any mode of transport whatsoever by land, water or through the air Note for subsection (1) The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act. -- 9 of 104 -- Part 1 Preliminary Terrorism (Emergency Powers) Act 2003 4 (2) In this Act: (a) a reference to public health or public safety includes a reference to the public health or public safety of a State, of another Territory or of a country other than Australia; (b) a reference to public health includes a reference to the health of a section of the public; and (c) a reference to public safety includes a reference to the safety of a section of the public. (3) For the purposes of this Act: (a) a reference to a person in an area that is the target of an authorisation includes a reference to a person who is about to enter the area or who has recently left the area; (b) a reference to a vehicle in an area that is the target of an authorisation includes a reference to a vehicle that is about to enter the area or that has recently left the area; and (c) a reference to a person in or on a vehicle includes a reference to a person who is in or on a thing attached to the vehicle or who has recently left the vehicle or thing. 4A Extraterritoriality of terrorist act no barrier To avoid doubt, powers and functions conferred by this Act in relation to a terrorist act may be exercised or performed whether or not the terrorist act has been, is being, or is likely to be committed in the Territory. 5 Terrorist act (1) In this Act, terrorist act means an action or threat of an action if: (a) the action falls within subsection (2) and does not fall within subsection (3); (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or -- 10 of 104 -- Part 1 Preliminary Terrorism (Emergency Powers) Act 2003 5 (ii) intimidating the public or a section of the public. (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; (b) causes serious damage to property; (c) causes a person's death; (d) endangers a person's life, other than the life of the person taking the action; (e) creates a serious risk to public health or public safety; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system, including but not limited to: (i) an information system; (ii) a telecommunications system; (iii) a financial system; (iv) a system used for the delivery of essential government services; (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) it is not intended: (i) to cause serious harm that is physical harm to a person; (ii) to cause a person's death; (iii) to endanger a person's life, other than the life of the person taking the action; or (iv) to create a serious risk to public health or public safety. (4) In this section, a reference to a person or property is a reference to a person or property wherever situated, within or outside the Territory (including within or outside Australia). -- 11 of 104 -- Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations Terrorism (Emergency Powers) Act 2003 6 Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations 6 When authorisation may be given A person may give an authorisation under section 8 if the person is satisfied there are reasonable grounds for believing: (a) a terrorist act has occurred or is likely to occur in the near future; and (b) the exercise of the powers under the authorisation will substantially assist in: (i) preventing the terrorist act or minimising the risk to public health or public safety relating to the terrorist act; or (ii) finding, preserving or removing evidence relating to the terrorist act; or (iii) apprehending a person responsible for committing the terrorist act or intending to commit the terrorist act. 7 Purposes for which authorisation may be given (1) An authorisation may authorise the exercise of powers given under Division 2 for one of the following purposes or any combination of them: (a) for the purpose of finding a person named or described (including by a photograph or drawing or other visual depiction) in the authorisation; (b) for the purpose of finding a particular vehicle, or a vehicle of a particular kind, described in the authorisation; (c) for the purpose of preventing a terrorist act occurring in the near future in a particular area described in the authorisation or apprehending in the area a person who may be responsible for committing a terrorist act or be intending in the near future to commit a terrorist act; (d) for the purpose of minimising, in the particular area described in the authorisation, the risk to public health or public safety relating to a terrorist act or terrorist act likely to occur in the near future; -- 12 of 104 -- Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations Terrorism (Emergency Powers) Act 2003 7 (e) for the purpose of finding, preserving or removing evidence relating to a terrorist act or terrorist act likely to occur in the near future. (2) The person, vehicle or area referred to in subsection (1) is referred to in this Act as the target of the authorisation. 8 Who may give authorisation (1) The Commissioner, or a police officer who is authorised in writing by the Commissioner, may give an authorisation. (2) If an authorisation is sought as a matter of urgency and the Commissioner or a police officer authorised under subsection (1) is not able to be contacted, a police officer of the rank of Assistant Commissioner may give an authorisation. (3) Subject to subsection (4), an authorisation may only be given with the agreement of the Police Minister. (4) An authorisation may be given without the agreement of the Police Minister if the authorisation is sought as a matter of urgency and the Police Minister could not be contacted at the time the authorisation was given. (5) If an authorisation is given in accordance with subsection (4): (a) the person who gave the authorisation must ensure that the Police Minister is notified as soon as possible; and (b) the authorisation ceases to have effect if the Police Minister has not confirmed the authorisation within 48 hours after the authorisation was given. 9 Form of authorisation (1) An authorisation may be given orally or in writing. (2) If an authorisation is given orally, it is to be confirmed in writing as soon as it is reasonably practicable to do so. (3) An authorisation is to: (a) specify that it is given under this Act; (b) describe the general nature of the terrorist act to which it applies; -- 13 of 104 -- Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations Terrorism (Emergency Powers) Act 2003 8 (c) name or describe the person, vehicle, or area, who or that is the target of the authorisation and the purpose or purposes for which the authorisation is given; and (d) specify the time at which the authorisation is given and the time at which it is to cease to have effect. 10 Duration of authorisation (1) Subject to this Act, an authorisation has effect for the period, specified in the authorisation, beginning at the time the authorisation is given and ending at the time that is specified in the authorisation as the time at which the authorisation is to cease to have effect. (2) Subject to subsections (3) and (5), a period specified under subsection (1) in an authorisation may not be longer than 7 days, beginning on the day on which the authorisation is given. (3) The Commissioner, or a police officer authorised under section 8(1), may extend the period for which an authorisation has effect by giving, with the agreement of the Police Minister, one further authorisation. (4) An authorisation in accordance with subsection (3) may be given for a period of not more than 7 days specified in the authorisation. (5) The Police Minister may extend the period for which an authorisation (which may be a further authorisation in accordance with subsection (3)) has effect. (6) An extension under subsection (5) has effect for the period of not more than 14 days, beginning at the time the extension is given and ending at the time that is specified in the extension as the time at which the extension is to cease to have effect. 11 Revocation of authorisation (1) A police officer who gave an authorisation may revoke the authorisation. (2) The Commissioner may revoke an authorisation, other than an authorisation extended under section 10(5). (3) The Police Minister may revoke an authorisation. -- 14 of 104 -- Part 2 Powers exercisable under authorisations Division 1 Giving of authorisations Terrorism (Emergency Powers) Act 2003 9 12 Legality of authorisation (1) The cessation of an authorisation (by revocation or otherwise) does not affect anything lawfully done in reliance on the authorisation before it ceased to have effect. (2) An authorisation and a decision of the Police Minister under this Part in relation to an authorisation may not be: (a) challenged, reviewed, quashed or called into question on any grounds whatsoever before a court, tribunal, body or person in legal proceedings; or (b) restrained, removed or otherwise affected by an injunction or proceedings in the nature of prohibition or mandamus. (3) The powers conferred on a police officer by virtue of an authorisation may be exercised by any police officer, whether or not he or she has been provided with, or notified of, the terms of the authorisation. 12A Power to give directions to public authorities (1) The Commissioner or other police officer mentioned in section 8(1) may, for facilitating the exercise of the special powers conferred by this Part, give a public authority directions in relation to the exercise or performance of the authority's powers or functions. (2) The authority must comply with the direction. (3) In this section: public authority includes an Agency, statutory corporation and local government council and any member or officer of a public authority, but does not include a parliamentary or judicial body or its members or officers 13 Report to be given to Attorney-General and Police Minister As soon as practicable after an authorisation ceases to have effect, the Commissioner must provide a report in writing to the Attorney- General and the Police Minister: (a) setting out the terms of the authorisation and the period in which it had effect; (b) identifying as far as reasonably practicable the matters that were relied on for giving the authorisation; -- 15 of 104 -- Part 2 Powers exercisable under authorisations Division 2 Powers given by authorisation Terrorism (Emergency Powers) Act 2003 10 (c) describing generally the powers exercised under the authorisation and the manner in which they were exercised; and (d) specifying the results of the exercise of the powers. 14 Report to be tabled in Legislative Assembly The Police Minister must, within 6 months after receiving the Commissioner's report on an authorisation, lay a copy of the report in the Legislative Assembly. Division 2 Powers given by authorisation 15 Purposes for which powers under authorisation may be exercised The powers under this Part may be exercised for the purposes for which an authorisation is given. 16 Power to make person disclose identity and address (1) A police officer may request a person to disclose the person's identity and residential address if: (a) the police officer suspects on reasonable grounds that the person is the target of an authorisation; (b) the person is found in suspicious circumstances in the company of a person who the police officer suspects on reasonable grounds is the target of an authorisation; (c) the person is in or on a vehicle that the officer suspects on reasonable grounds is the target of an authorisation; or (d) the person is in an area that is the target of an authorisation. (2) A person to whom a request is made under subsection (1) must not, without reasonable excuse, fail or refuse to comply with the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. (3) A person to whom a request is made under subsection (1) must not, without reasonable excuse, give in response to the request: (a) a name that is false in a material particular; or -- 16 of 104 -- Part 2 Powers exercisable under authorisations Division 2 Powers given by authorisation Terrorism (Emergency Powers) Act 2003 11 (b) an address other than the person's full and correct address. Maximum penalty: 100 penalty units or imprisonment for 6 months. (4) A police officer may request a person to whom a request is made under subsection (1) to provide to the officer proof of the person's identity. (5) A person to whom a request is made under subsection (4) must not, without reasonable excuse, fail or refuse to comply with the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. 17 Power to search persons (1) A police officer may, without a warrant, stop and search a person and anything in the possession of or under the control of the person if: (a) the police officer suspects on reasonable grounds that the person is the target of an authorisation; (b) the person is found in suspicious circumstances in the company of a person who the police officer suspects on reasonable grounds is the target of an authorisation; (c) the person is in or on a vehicle that the police officer suspects on reasonable grounds is the target of an authorisation; or (d) the person is in an area that is the target of an authorisation. (2) A police officer may detain a person stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the person or anything in the possession of or under the control of the person. 18 Power to search vehicles (1) A police officer may, without a warrant, stop and search a vehicle and anything in, on or attached to the vehicle, if: (a) the police officer suspects on reasonable grounds that the vehicle is the target of an authorisation; (b) the police officer suspects on reasonable grounds that a person in or on the vehicle is the target of an authorisation; or -- 17 of 104 -- Part 2 Powers exercisable under authorisations Division 2 Powers given by authorisation Terrorism (Emergency Powers) Act 2003 12 (c) the vehicle is in an area that is the target of an authorisation. (2) A police officer may detain a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle and anything in, on or attached to the vehicle. (3) A police officer may detain a person who is in or on a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle. 19 Power to enter and search premises (1) A police officer may, without a warrant, enter and search premises if: (a) the police officer suspects on reasonable grounds that a person who is the target of an authorisation: (i) may be on the premises; or (ii) is an occupant of the premises; or (iii) is an owner, or is concerned in the management or control of the premises; or (b) the police officer suspects on reasonable grounds that a vehicle that is the target of an authorisation may be on the premises; or (c) the premises are in an area that is the target of an authorisation. (2) A police officer may detain a person who is on premises entered under subsection (1) for as long as is reasonably necessary to conduct a search of the premises. 20 Power to enter premises for surveillance or to protect persons (1) A police officer may, without a warrant, enter, search and remain on premises that are in an area that is the target of an authorisation if he or she suspects on reasonable grounds that it is necessary to do so for one of the following purposes or both: (a) to enable the surveillance or observation of a person who the officer suspects on reasonable grounds may have committed a terrorist act or may be intending in the near future to commit a terrorist act; (b) to ensure the health or safety of a person by ensuring that a person on the premises leaves or remains at the premises. -- 18 of 104 -- Part 2A Powers exercisable under special area declaration Division 1 Preliminary matters Terrorism (Emergency Powers) Act 2003 13 (2) A police officer may direct a person who is on premises that are entered under subsection (1) to remain on the premises, or to leave the premises, for as long as is reasonably necessary to do so for a purpose specified in subsection (1). Part 2A Powers exercisable under special area declaration Division 1 Preliminary matters 20A Definitions In this Part: responsible police officer, for a seized item, means the police officer from time to time responsible for the item. seized item means an item seized under section 20P(2). serious indictable offence means an indictable offence punishable by imprisonment for life or for a term of 5 years or more. serious offence related item means a thing a police officer conducting a search under Division 3 reasonably suspects: (a) might be used in a serious indictable offence; or (b) is connected with the preparation for, or the engagement of a person in, a serious indictable offence; or (c) is evidence of, or relating to, a serious indictable offence; special area means an area for which a declaration under section 20B(1) is in force. special area declaration means a declaration made by the Commissioner under section 20B(1) declaring an area to be a special area. special event means a community, cultural, arts, entertainment, recreational, sporting or similar event that is to be held over a limited period of time. terrorism related item means a thing a police officer conducting a search under Division 3 reasonably suspects: (a) might be used in a terrorist act; or -- 19 of 104 -- Part 2A Powers exercisable under special area declaration Division 2 Making special area declaration Terrorism (Emergency Powers) Act 2003 14 (b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or (c) is evidence of, or relating to, a terrorist act. Division 2 Making special area declaration 20B Special area declaration (1) Subject to subsections (2) and (3), the Commissioner may declare any of the following to be a special area: (a) the site of an airport, train station, bus station or ship or ferry terminal; (b) the site of a special event; (c) a public area where people gather in large numbers. (2) The Commissioner must not make a declaration under subsection (1) unless satisfied the declaration is required because of the nature of the site or area and the risk of occurrence of a terrorist act. (3) The Commissioner must not make the declaration without the approval of the Police Minister. 20C Form of declaration (1) A special area declaration must be notified in the Gazette. (2) The declaration must: (a) state it is made under this Act; and (b) describe the site or area and define its boundaries; and (c) specify the times and dates the declaration comes into operation and ceases operation. 20D Duration of declaration (1) A special area declaration comes into operation at the time and date specified in the declaration. (2) Unless earlier revoked under section 20E, the declaration ceases to operate at the time and date specified in it. (3) The period the declaration operates must not exceed 28 days. -- 20 of 104 -- Part 2A Powers exercisable under special area declaration Division 2 Making special area declaration Terrorism (Emergency Powers) Act 2003 15 (4) However, a further declaration may be made for the same site or area to extend the period of operation of an earlier declaration. (5) The period the further declaration operates must not exceed 7 days. (6) The provisions of this Part relating to a special area declaration (except subsection (3)) apply to a further declaration. 20E Revocation of declaration (1) A special area declaration may be revoked at any time by the Commissioner. (2) The Commissioner must revoke the declaration if directed to do so by the Police Minister. (3) The revocation of the declaration must be notified in the Gazette. 20F Legality of declaration (1) The cessation of operation of the declaration (by revocation or otherwise) does not affect anything lawfully done in reliance on the declaration before it ceased to operate. (2) A declaration or decision of the Police Minister under this Part in relation to a declaration cannot be: (a) challenged, reviewed, quashed or called into question on any grounds whatsoever before a court, tribunal, body or person in a legal proceeding; or (b) restrained, removed or otherwise affected by an injunction or proceeding in the nature of prohibition or mandamus. (3) The powers conferred on a police officer because of a declaration may be exercised by any police officer, whether or not the officer has been provided with, or notified of, the terms of the declaration. 20G Effect of failure to publish A failure to notify in the Gazette a declaration of a special area or the revocation of a declaration does not make the declaration or revocation ineffective to any extent. -- 21 of 104 -- Part 2A Powers exercisable under special area declaration Division 3 Powers given by special area declaration Terrorism (Emergency Powers) Act 2003 16 20H Report to be given to Attorney-General and Police Minister As soon as practicable after a special area declaration ceases to operate, the Commissioner must give a written report to the Attorney-General and Police Minister: (a) specifying the terms of the declaration and the period in which it had effect; and (b) identifying as far as reasonably practicable the matters relied on for making the declaration; and (c) describing generally the powers exercised under the declaration and the manner in which they were exercised; and (d) specifying the results of the exercise of the powers. 20J Report to be tabled in Legislative Assembly The Police Minister must, within 7 sitting days after receiving the Commissioner's report on a declaration, table a copy of the report in the Legislative Assembly. Division 3 Powers given by special area declaration 20K Powers which may be exercised under declaration The powers under this Part may be exercised by a police officer in relation to: (a) a person or vehicle in a special area; or (b) a person or vehicle about to enter, or has recently left, a special area. 20L Power to make person disclose identity and address (1) A police officer may request a person to give the officer the following details: (a) the person's name; (b) the person's residential address; (c) the person's date of birth; (d) the person's reason for being in the special area. -- 22 of 104 -- Part 2A Powers exercisable under special area declaration Division 3 Powers given by special area declaration Terrorism (Emergency Powers) Act 2003 17 (2) A person to whom a request is made under subsection (1) must not, without reasonable excuse, contravene the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. (3) A person to whom a request is made under subsection (1) must not, without reasonable excuse, give in response to the request: (a) a name that is false in a material particular; or (b) an address other than the full and correct address of the person's ordinary place of residence. Maximum penalty: 100 penalty units or imprisonment for 6 months. (4) A police officer may request a person to whom a request is made under subsection (1) to give the officer proof of the person's identity. (5) A person to whom a request is made under subsection (4) must not, without reasonable excuse, contravene the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. 20M Power to search persons (1) A police officer may, without a warrant, stop and detain a person for the purposes of conducting a search under subsection (2). (2) The police officer may conduct one or more of the following searches for a terrorism related item: (a) an ordinary search or frisk search of the person; (b) a search of anything that is, or that the officer suspects on reasonable grounds to be, in the possession of or under the control of the person; (c) a search of anything that the person has, or that the officer suspects on reasonable grounds the person has, brought into the special area. (3) The police officer may detain a person stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the person or anything in the possession of or under the control of the person. -- 23 of 104 -- Part 2A Powers exercisable under special area declaration Division 4 Seizure of terrorism related items and serious offence related items Terrorism (Emergency Powers) Act 2003 18 (4) For section 112(1) of the Criminal Code, a person detained under subsection (1) is in the lawful custody of the police officer while so detained. 20N Power to search vehicles (1) A police officer may, without a warrant, stop and search a vehicle and anything in, on or attached to the vehicle. (2) A police officer may detain a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle and anything in, on or attached to the vehicle. (3) A police officer may detain a person who is in or on a vehicle stopped under subsection (1) for as long as is reasonably necessary to conduct a search of the vehicle. (4) For section 112(1) of the Criminal Code, a person detained under subsection (3) is in the lawful custody of the police officer while so detained. Division 4 Seizure of terrorism related items and serious offence related items 20P Seizure of items (1) This section applies to a police officer who in the course of a search under Division 3 finds any of the following: (a) a terrorism related item; (b) a serious offence related item. (2) The police officer may seize the item. 20Q Seizure notice (1) The responsible police officer for a seized item must serve a seizure notice within 7 days after the day the item was seized. (2) The notice must be served on: (a) the owner of the item; or (b) if the owner of the item cannot be identified after reasonable inquiries – the person from whom the item was seized. -- 24 of 104 -- Part 2A Powers exercisable under special area declaration Division 4 Seizure of terrorism related items and serious offence related items Terrorism (Emergency Powers) Act 2003 19 (3) However, subsections (1) and (2) do not apply if: (a) the item was not seized from a person and the owner of the item cannot be identified after reasonable inquiries; or (b) it is not possible to serve the person required to be served under subsection (2). (4) The notice must: (a) identify the item; and (b) state: (i) the date the item was seized; and (ii) the ground or grounds on which the item was seized; and (iii) the item will be forfeited to the Territory if the owner does not request the return of the item within 90 days after the date of the notice. 20R Return of seized item (1) The owner of the seized item may request the return of the item. (2) Subject to subsection (3), the responsible police officer must return the seized item to the owner if the owner requests the return of the item. (3) The police officer must not return the item to the owner if: (a) the officer suspects, on reasonable grounds that, if the item is returned to the owner, the item is likely to be used in the commission of a terrorist act or serious indictable offence; or (b) the item is evidence of, or relating to, a terrorist act or serious offence. 20S Forfeiture of seized item (1) The seized item is forfeited to the Territory if the owner of the item does not request the return of the item before the end of the due date. (2) Subsection (3) applies if: (a) before the end of the due date the owner of the seized item requests the return of the item; and -- 25 of 104 -- Part 2A Powers exercisable under special area declaration Division 4 Seizure of terrorism related items and serious offence related items Terrorism (Emergency Powers) Act 2003 20 (b) the item has not been returned to the owner by the end of the due date. (3) The responsible police officer must, within 5 days after the due date: (a) return the item to the owner; or (b) apply to a Local Court Judge for an order under section 20T. (4) In this section: due date means: (a) the 90th day after the date of the seizure notice in relation to an item; or (b) if section 20Q(3) applies – the 90th day after the date the item was seized. 20T Application to Local Court Judge (1) A police officer may apply to a Local Court Judge for an order under subsection (3), (4) or (5) for a seized item. (2) The Judge must allow the owner of the item to appear and be heard at the determination of the application. (3) If the Judge is satisfied the item is evidence of, or relating to, a terrorist act or serious indictable offence, the Judge must order the item be retained by the police officer for the period specified in the order. (4) If the Judge is satisfied there are reasonable grounds to suspect that, if the item is returned to the owner, the item is likely to be used in the commission of a terrorist act or serious indictable offence, the Judge may order that the item: (a) be retained by the police officer for the period specified in the order; or (b) is forfeited to the Territory; or (c) be sold and the proceeds given to the owner; or (d) be otherwise sold or disposed of. (5) If the Judge is satisfied the item poses a threat to the health or safety of persons or a threat to the environment, the magistrate may order the item be destroyed or otherwise disposed of. -- 26 of 104 -- Part 2B Preventative detention orders Division 1 Preliminary matters Terrorism (Emergency Powers) Act 2003 21 (6) If the Judge is not satisfied as to the matters mentioned in subsections (3), (4) and (5), the Judge must order the item be returned to the owner. Part 2B Preventative detention orders Division 1 Preliminary matters 21 Object The object of this Part is to allow a person to be taken into custody and detained for a short period of time in order to: (a) prevent a terrorist act occurring in the near future; or (b) preserve evidence of, or relating to, a recent terrorist act. Note for section 21 Section 21ZP provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes. 21A Definitions In this Part, unless the contrary intention appears: authorised police officer means a police officer authorised under section 21D. confirmed preventative detention order means a preventative detention order that has been confirmed (with or without variation) by the Supreme Court under section 21P. corresponding law means: (a) Division 105 of the Criminal Code (Cth) and the regulations and other instruments made under that Division, as in force from time to time; or (b) a law of a State or another Territory that provides for preventative detention of persons in relation to terrorist acts (including a law of a State or another Territory declared by regulation to be a corresponding law). eligible Judge means a Supreme Court Judge for whom a declaration is in force under section 21C. -- 27 of 104 -- Part 2B Preventative detention orders Division 1 Preliminary matters Terrorism (Emergency Powers) Act 2003 22 Ethical and Professional Standards Command means the part of the Police Force (however named) that oversees the ethical and professional standards of police officers. identification material, in relation to a person, means samples taken from a part of the person's body from which a DNA profile may be derived, prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings other than recordings made in the ordinary course of operation of a security camera fitted at, or in the immediate vicinity of, a place where the person is being detained under a preventative detention order) of the person. lawyer means an Australian legal practitioner as defined in section 6(a) of the Legal Profession Act 2006. national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). nominated police officer means a police officer nominated under section 21X(1). preventative detention order means a preventative detention order made under section 21G, as varied under section 21P, 21S or 21T. prohibited contact order means an order made under section 21Q or 21R, as varied under section 21S or 21T. same terrorist act has the meaning in section 21B. senior police officer means a police officer of or above the rank of Assistant Commissioner 21B Same terrorist act (1) A terrorist act ceases to be the same terrorist act if there is a change in the date on which the terrorist act is expected to occur. (2) A terrorist act that is expected to occur at a particular time does not cease to be the same terrorist act merely because of: (a) a change in the persons expected to carry out the act at that time; or (b) a change in how or where the act is expected to be carried out at that time. -- 28 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 23 21C Eligible Judges (1) The Administrator may, in writing, declare a Supreme Court Judge to be an eligible Judge for this Part. (2) A declaration cannot be made for a Supreme Court Judge unless the Judge has consented in writing to the declaration. (3) An eligible Judge who has given consent for this section may, in writing, revoke the consent. (4) An eligible Judge has, in relation to the exercise of a power or performance of a function conferred on an eligible Judge by this Part, the same protection and immunity as a Supreme Court Judge has in relation to proceedings in the Court. (5) A power or function conferred on an eligible Judge by this Part, is conferred on the Judge in a personal capacity and not as a court or a member of a court. 21D Authorised police officers A senior police officer may, in writing, authorise a police officer of or above the rank of superintendent to be an authorised police officer for making applications under sections 21E, 21Q and 21R. Division 2 Preventative detention orders 21E Application for preventative detention order (1) An authorised police officer may apply to an eligible Judge for a preventative detention order in relation to a person if: (a) the applicant is satisfied: (i) there are reasonable grounds to suspect the person: (A) will engage in a terrorist act; or (B) possesses or has under the person's control (whether solely or jointly with anyone else) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or (C) has done an act in preparation for, or planning, a terrorist act; and (ii) making the order would substantially assist in preventing a terrorist act occurring; and -- 29 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 24 (iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring; or (b) the applicant is satisfied: (i) a terrorist act has occurred within the last 28 days; and (ii) it is necessary to detain the person to preserve evidence in the Territory or elsewhere of, or relating to, the terrorist act, and (iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving any such evidence. (2) A terrorist act mentioned in subsection (1)(a) must be imminent and, in any event, be expected to occur at some time in the next 14 days. Note for section 21E As a consequence of the operation of section 4A, it does not matter whether the location of the suspected terrorist act is in the Territory or elsewhere. 21F Form and content of application (1) An application for a preventative detention order must: (a) subject to subsection (4), be made by affidavit; and (b) specify the facts and other grounds on which the applicant considers the order should be made; and (c) specify the period for which the person is to be detained under the order and the facts and other grounds on which the applicant considers the person should be detained for that period; and (d) specify the information (if any) the applicant has about the person's age and capacity to manage his or her affairs; and (e) specify the following: (i) the outcomes and particulars of all previous applications for preventative detention orders made in relation to the person; -- 30 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 25 (ii) the information (if any) the applicant has about any periods for which the person has been detained under an order made under a corresponding law; (iii) the information (if any) the applicant has about any control order (including any interim control order) made in relation to the person under Division 104 of the Criminal Code (Cth); (iv) a summary of the grounds on which the applicant considers the order should be made. (2) To avoid doubt, subsection (1)(e)(iv) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security. (3) The application must also fully disclose all relevant matters of which the applicant is aware, both favourable and adverse, to the making of the order. (4) An application for a preventative detention order that is required urgently may be made by telephone, fax, email or other electronic communication. (5) If: (a) a 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 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 only after the order mentioned in paragraph (a) was made. (6) If: (a) an order for a person's detention is made under a corresponding 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 -- 31 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 26 (c) an application is made for a 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 only after the order mentioned in paragraph (a) was made. (7) If, when an application for a preventative detention order is made, the person in relation to whom the order is being sought is in detention under: (a) a preventative detention order; or (b) an order for the person's detention made under a corresponding law, written notice of the application must be given to the person. 21G When preventative detention order may be made (1) An eligible Judge may, on an application, make a preventative detention order in relation to a person only if: (a) satisfied on reasonable grounds: (i) the person: (A) will engage in a terrorist act; or (B) possesses or has under the person's control (whether solely or jointly with anyone else) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or (C) has done an act in preparation for, or planning, a terrorist act; and (ii) making the order would substantially assist in preventing a terrorist act occurring; and (iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act occurring; or (b) satisfied on reasonable grounds: (i) a terrorist act has occurred within the last 28 days; and -- 32 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 27 (ii) it is necessary to detain the person to preserve evidence in the Territory or elsewhere of, or relating to, the terrorist act, and (iii) detaining the person for the period for which the person is to be detained under the order is reasonably necessary for the purpose of preserving any such evidence. (2) A terrorist act mentioned in subsection (1)(a) must be imminent and, in any event, be expected to occur at some time in the next 14 days. (3) The Judge may refuse to make a preventative detention order unless the applicant gives the Judge any further information the Judge requests concerning the grounds on which the order is sought. (4) If the application is made under section 21F(4): (a) an order made under this section must be sent to the applicant by fax, email or other electronic communication; or (b) the applicant must complete a form of a preventative detention order as directed by the Judge. (5) The copy of the original order sent, or the form of the order completed, under subsection (4) has the same force and effect as the original order. 21H Nature and content of preventative detention order (1) A preventative detention order is an order that the person in relation to whom it is made may be: (a) taken into custody (unless the person is already being detained under a preventative detention order, or an order for the person's detention made under a corresponding law, that is in force or was in force immediately before the making of the new order); and (b) detained during the period that: (i) starts when the person is first taken into custody or detained under the order (the start); and (ii) ends a specified period after the start. (2) A preventative detention order must be in writing. -- 33 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 28 (3) A preventative detention order must specify: (a) the name of the person in relation to whom it is made; and (b) the period during which the person may be detained under the order; and (c) the date on which, and the time at which, the order is made; and (d) the date and time after which the person may not be taken into custody under the order; and (e) a summary of the grounds on which the order is made. (4) To avoid doubt, subsection (3)(e) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security. (5) If the person in relation to whom the order is made is: (a) under 18 years of age; or (b) incapable of managing his or her affairs, the order may specify a period of longer than 2 hours as the period the person is entitled under section 21ZL(2) to have contact with another person each day. 21J Commissioner of Correctional Services or CEO (Youth Justice) to be given copy of preventative detention order if person detained in custody If the person in relation to whom a preventative detention order is made is being detained in the custody of the Commissioner of Correctional Services or CEO (Youth Justice), the applicant for the order must give a copy of the order to the Commissioner or CEO (Youth Justice), as the case may be. 21K Maximum period of detention (1) The maximum period for which a person may be detained under a preventative detention order is 14 days less any period the person is actually detained under a preventative detention order, or an order for the person's detention made under a corresponding law against the person, in relation to the same terrorist act. (2) Despite subsection (1), the maximum period for which a person may be detained under a preventative detention order made on the basis of preserving evidence of, or relating to, a terrorist act that -- 34 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 29 has occurred is not reduced by any period for which the person is detained under a preventative detention order, or an order for the person's detention under a corresponding law, made on the basis of preventing a terrorist act. 21L When order starts and ceases to have effect (1) A preventative detention order in relation to a person starts to have effect: (a) if the order so provides, on an order for the person's detention made under a corresponding law ceasing to have effect; or (b) otherwise, when it is made. (2) A preventative detention order in relation to a person under which the person is required to be taken into custody ceases to have effect at the end of the period of 48 hours after the order is made if the person has not been taken into custody under the order within that period. (3) If a preventative detention order does not cease to have effect under subsection (2), it ceases to have effect when whichever of the following first occurs: (a) the period during which the person may be detained under the order ends; (b) the order is revoked under section 21P, 21S or 21T. 21M No preventative detention order in relation to person under 16 (1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age. (2) If: (a) a person is being detained under a preventative detention order (or a purported preventative detention order); and (b) the police officer who is detaining the person is satisfied on reasonable grounds the person is under 16 years of age, the officer must release the person, as soon as practicable, from detention under the order. -- 35 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 30 21N Multiple preventative detention orders (1) More than one preventative detention order may be made in relation to the same terrorist act (whether or not against the same person). (2) A preventative detention order can be made against a person to take effect on the expiration of detention under another preventative detention order made against the person or an order for the person's detention made under a corresponding law. Note for section 21N This Division does not authorise the extension of the period of an order. However, an eligible Judge may make further orders for the same terrorist act as long as the maximum period of detention under section 21K is not exceeded in relation to the total period of the orders. 21P Review of preventative detention order by Supreme Court (1) As soon as practicable after a person (the subject) is first taken into custody, or is first in detention, under a preventative detention order, an authorised police officer must apply to the Supreme Court for a review of the order. (2) The Court in the review proceeding must not be constituted by the eligible Judge who made the preventative detention order. (3) In the review proceeding: (a) the subject is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions; but (b) the subject's absence does not prevent the Court from deciding the application. (4) In deciding the review, the Court may, by order: (a) confirm the preventative detention order; or (b) confirm the preventative detention order with the variation of the period specified in the order as the period during which the subject may be detained under it; or (c) give directions about the making of further preventative detention orders in relation to the subject; or (d) if not satisfied as mentioned in section 21G(1): (i) revoke the preventative detention order and release the subject from detention; or -- 36 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 31 (ii) if the subject has been released from detention – declare the preventative detention order to have been void from its making. (5) Subject to any direction made by the Court in the proceeding for the review of the preventative detention order, the police officer detaining the subject may exercise powers and perform functions under this Part to release the subject from detention during the course of the proceeding. 21Q Prohibited contact order – person in relation to whom preventative detention order being sought (1) A police officer who applies to an eligible Judge for a preventative detention order in relation to a person may also apply to the Judge for a prohibited contact order under this section in relation to the person's detention under the preventative detention order. (2) The application must: (a) be made by affidavit; and (b) specify: (i) the terms of the order sought; and (ii) the facts and other grounds on which the applicant considers the order should be made. (3) However, an application for a prohibited contact order that is required urgently may be made by telephone, fax, email or other electronic communication. (4) If the Judge: (a) makes the preventative detention order; and (b) is satisfied on reasonable grounds that making the prohibited contact order will assist in achieving the purpose of the preventative detention order, the Judge may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact another person specified in the prohibited contact order. (5) The prohibited contact order must be in writing. -- 37 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 32 (6) If the application is made under subsection (3): (a) the order must be sent to the applicant by fax, email or other electronic communication; or (b) the applicant must complete a form of a prohibited contact order as directed by the Judge. (7) The copy of the original order sent, or the form of the order completed, under subsection (6) has the same force and effect as the original order. (8) The Judge may refuse to make a prohibited contact order unless the applicant gives the Judge any further information the Judge requests concerning the facts and other grounds on which the order is sought. 21R Prohibited contact order – person in relation to whom preventative detention order in force (1) If a preventative detention order is in force in relation to a person (the subject), an authorised police officer may apply to an eligible Judge for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order. (2) The application must: (a) be made by affidavit; and (b) specify: (i) the terms of the order sought; and (ii) the facts and other grounds on which the applicant considers the order should be made. (3) However, an application for a prohibited contact order that is required urgently may be made by telephone, fax, email or other electronic communication. (4) If the Judge is satisfied on reasonable grounds that making the prohibited contact order will assist in achieving the purpose for which the preventative detention order was made, the Judge may make a prohibited contact order under this section that the person is not, while being detained under the preventative detention order, to contact another person specified in the prohibited contact order. (5) The prohibited contact order must be in writing. -- 38 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 33 (6) If the application is made under subsection (3): (a) the order must be sent to the applicant by fax, email or other electronic communication; or (b) the applicant must complete a form of a prohibited contact order as directed by the Judge. (7) The copy of the original order sent, or the form of the order completed, under subsection (6) has the same force and effect as the original order. (8) The Judge may refuse to make a prohibited contact order unless the applicant gives the Judge any further information the Judge requests concerning the facts and other grounds on which the order is sought. 21S Application by detainee for revocation or variation of preventative detention order or prohibited contact order (1) A person in relation to whom a preventative detention order is in force (the subject) may apply to the Supreme Court for: (a) if the order is a confirmed preventative detention order – the revocation or variation of the order; or (b) the revocation or variation of any prohibited contact order in force in relation to the subject's detention under the preventative detention order. (2) If the Court is satisfied, because of new facts or circumstances that have arisen since the Court reviewed the making of the preventative detention order, it is appropriate that the order be revoked or varied, the Court must, by order, revoke or vary the order. (3) If the subject is being detained in the custody of the Commissioner of Correctional Services or CEO (Youth Justice) and the preventative detention order is revoked or varied under subsection (2), the police officer who is detaining the subject under the order must give a copy of the order made under the subsection to the Commissioner or CEO (Youth Justice), as the case may be, as soon as practicable after it is made. (4) If: (a) a prohibited contact order is in force in relation to the subject's detention under a preventative detention order; and -- 39 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 34 (b) either of the following apply: (i) if the order is a confirmed preventative detention order – the Court is satisfied, because of new facts or circumstances that have arisen since the making of the prohibited contact order, it is appropriate that the prohibited contact order be revoked or varied; (ii) otherwise – the Court is satisfied it is appropriate that the prohibited contact order be revoked or varied, the Court must, by order, revoke or vary the prohibited contact order. (5) If the subject is being detained in the custody of the Commissioner of Correctional Services or CEO (Youth Justice) and a prohibited contact order in force in relation to the subject is revoked or varied under subsection (4), the police officer who is detaining the subject under the preventative detention order must give a copy of the order made under the subsection to the Commissioner or CEO (Youth Justice), as the case may be, as soon as practicable after it is made. 21T Application by police officer for revocation or variation of preventative detention order or prohibited contact order (1) If: (a) a preventative detention order is in force in relation to a person; and (b) the nominated police officer in relation to the order is satisfied the grounds on which the order was made have ceased to exist, the officer must apply to the Supreme Court for the revocation of the order. (2) If: (a) a preventative detention order is in force in relation to a person; and (b) the nominated police officer in relation to the order is satisfied, because of new facts or circumstances that have arisen since the making of the order, it is appropriate that the order be varied, the officer must apply to the Court for a variation of the order. -- 40 of 104 -- Part 2B Preventative detention orders Division 2 Preventative detention orders Terrorism (Emergency Powers) Act 2003 35 (3) If: (a) a preventative detention order is in force in relation to a person; and (b) the Court is satisfied, on application by a police officer under subsection (1) or (2), it is appropriate that the order be revoked or varied, the Court must, by order, revoke or vary the order. (4) If the person in relation to whom a preventative detention order is in force is being detained in the custody of the Commissioner of Correctional Services or CEO (Youth Justice) and the order is revoked or varied under subsection (3), the applicant for the revocation or variation must give a copy of the order made under the subsection to the Commissioner or CEO (Youth Justice), as the case may be, as soon as practicable after it is made. (5) If: (a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and (b) the nominated police officer in relation to the preventative detention order is satisfied, because of new facts or circumstances that have arisen since the making of the prohibited contact order, it is appropriate that the prohibited contact order be revoked or varied (including that the grounds on which the order was made have ceased to exist), the officer must apply to the Court for the revocation or a variation of the prohibited contact order. (6) If: (a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and (b) the Court is satisfied, on application by a police officer under subsection (5), it is appropriate that the prohibited contact order be revoked or varied, the Court must, by order, revoke or vary the prohibited contact order. (7) If the person in relation to whose detention under a preventative detention order a prohibited contact order is in force is being detained in the custody of the Commissioner of Correctional Services or CEO (Youth Justice) and the prohibited contact order is -- 41 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 36 revoked or varied under subsection (6), the applicant for the revocation or variation must give a copy of the order made under the subsection to the Commissioner or CEO (Youth Justice), as the case may be, as soon as practicable after it is made. (8) A person in relation to whom a preventative detention order is in force may make representations to the nominated police officer in relation to the order with a view to having the order, or a prohibited contact order that is in force in relation to the person's detention under the preventative detention order, revoked or varied under this section. 21U Hearing procedures for proceedings in relation to orders (1) This section applies to the following proceedings before the Supreme Court: (a) the review of a preventative detention order; (b) an application for the revocation or variation of a preventative detention order or prohibited contact order. (2) The proceeding must be heard in the absence of the public. (3) For the proceeding, the Court may take into account any evidence or information the Court considers credible or trustworthy in the circumstances and, in that regard, is not bound by principles or rules governing the admission of evidence. (4) The Court may, in relation to the proceeding, make the orders relating to the suppression of publication of the whole or any part of the proceeding or of the evidence given in the proceeding, that in its opinion, are necessary to secure the object of this Part. (5) Despite subsection (4), the Court must, by order, suppress publication of information likely to prejudice national security. (6) A person must not disclose information knowing the disclosure contravenes an order under subsection (4) or (5). Maximum penalty: Imprisonment for 5 years. Division 3 Carrying out preventative detention orders 21V Power to detain person under preventative detention order (1) While a preventative detention order is in force in relation to a person: (a) any police officer may take the person into custody; and -- 42 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 37 (b) any police officer may detain the person. (2) A police officer has, for the purpose of taking a person into custody under a preventative detention order or preventing the person escaping from that custody, the same powers and functions as the officer would have if the officer were taking the person into custody in relation to the commission of an offence or preventing the person escaping from that custody. (3) Subsection (2) does not apply to the extent to which particular powers and functions are provided for in this Part. 21W Senior police officer with functions under preventative detention order If: (a) a number of police officers are detaining, or involved in the detention of, a person under a preventative detention order at a particular time; and (b) a function (other than a power) is expressed in this Part to be imposed on a police officer detaining the person, the function is imposed at that time on the most senior of those officers. 21X Nominated police officer to oversee order (1) If a preventative detention order is made in relation to a person, a senior police officer must nominate a police officer of or above the rank of superintendent to oversee the exercise of functions under or in relation to the order. (2) The nominated police officer must be someone who was not involved in the making of the application for the preventative detention order. (3) The nominated police officer must: (a) oversee the exercise of functions under the preventative detention order; and (b) consider any representations made under subsection (4) in relation to any of the matters mentioned in subsection (5). -- 43 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 38 (4) The representations may be made to the nominated police officer by any of the following persons: (a) the person being detained under the preventative detention order; (b) the Ombudsman or officer in charge of the Ethical and Professional Standards Command; (c) a lawyer acting for that person in relation to the order; (d) a person with whom that person has contact under section 21ZL. (5) The matters are: (a) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and (b) without limiting paragraph (a), compliance with section 21T in relation to the preventative detention order; and (c) the person's treatment in relation to the person's detention under the preventative detention order. 21Y Endorsement of order with date and time person taken into custody As soon as practicable after a person is first taken into custody under a preventative detention order, the police officer who is detaining the person under the order must endorse on the order the date on which, and time at which, the person is first taken into custody under the order. 21Z Power to require disclosure of identity (1) This section applies if a police officer believes on reasonable grounds a person may be able to assist the officer in executing a preventative detention order. (2) The police officer may request the person to give the officer the following details: (a) the person's name; (b) the person's residential address; (c) the person's date of birth. -- 44 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 39 (3) A person to whom a request is made under subsection (2) must not, without reasonable excuse, contravene the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. (4) A person to whom a request is made under subsection (2) must not, without reasonable excuse, give in response to the request: (a) a name that is false in a material particular; or (b) an address other than the full and correct address of the person's ordinary place of residence. Maximum penalty: 100 penalty units or imprisonment for 6 months. (5) A police officer may request a person to whom a request is made under subsection (2) to give the officer proof of the person's identity. (6) A person to whom a request is made under subsection (5) must not, without reasonable excuse, contravene the request. Maximum penalty: 100 penalty units or imprisonment for 6 months. 21ZA Power to enter premises and vehicles If: (a) a preventative detention order is in force in relation to a person; and (b) a police officer believes on reasonable grounds the person is on any premises or in or on any vehicle, the officer may enter the premises or vehicle at any time of the day or night for the purpose of searching the premises or vehicle for the person or taking the person into custody. 21ZB 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. Notes for subsection (1) 1. A person may be released, for example, so that the person may be arrested and otherwise dealt with for a suspected offence. In these circumstances, Part VII of the Police Administration Act 1978 applies. -- 45 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 40 2. Also, a person for whom a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 (Cth) is in force may be released so that the person may be dealt with under the warrant. (2) 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. (3) The statement must be signed by the police officer. (4) 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 on some other basis immediately after the person is informed that he or she is being released from detention under the order. (5) 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 for subsection (5) During this period, the provisions of this Part that apply to a person who is being detained under a preventative detention order (for example, the provisions dealing with the people the person may contact) do not apply to the person. (6) To avoid doubt: (a) the release of a person under subsection (1) from detention under the preventative detention order does not extend the period for which the 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. 21ZC Arrangement for detainee to be held in custodial correctional facility (1) A police officer who is detaining a person (the detainee) under a preventative detention order may arrange, with the Commissioner of Correctional Services, for the detainee to be detained under the order at a custodial correctional facility. -- 46 of 104 -- Part 2B Preventative detention orders Division 3 Carrying out preventative detention orders Terrorism (Emergency Powers) Act 2003 41 (2) If an arrangement is made under subsection (1): (a) the police officer making the arrangement must give the person in charge of the custodial correctional facility written notice of the arrangement, a copy of the preventative detention order and any prohibited contact order in force in relation to the detainee's detention; and (b) the preventative detention order is taken to authorise the person in charge of the custodial correctional facility to detain the detainee at the custodial correctional facility while the order is in force in relation to the detainee; and (c) section 21ZG applies in relation to the detainee's detention under the preventative detention order at the custodial correctional facility as if: (i) the person in charge of that custodial correctional facility; or (ii) any other person involved in the detainee's detention at that custodial correctional facility, were a person exercising authority under the order or implementing or enforcing the order; and (d) the officer who made the arrangement (or another police officer designated by a senior police officer) is taken, while the detainee is detained at the custodial correctional facility, to be the police officer detaining the detainee for this Part; and (e) a police officer may, for exercising functions under the order, enter at any time the prison and visit the detainee in the custodial correctional facility. (3) A regulation may exclude the detainee from the application of any of the provisions of, or provisions made under, the Correctional Services Act 2014 or Youth Justice Act 2005. (4) An arrangement under subsection (1) does not prevent the detainee being returned to the custody of a police officer. (5) Subsections (6) and (7) apply if the detainee is under 18 years of age. (6) A reference in this section to a custodial correctional facility is, in relation to the detainee, a reference to a detention centre within the meaning of the Youth Justice Act 2005 and the reference to the Commissioner of Correctional Services is a reference to the superintendent of the centre. -- 47 of 104 -- Part 2B Preventative detention orders Division 4 Informing person detained about preventative detention orders Terrorism (Emergency Powers) Act 2003 42 (7) During any period the detainee is not detained under an arrangement in force under this section, a police officer must not detain the detainee together with persons who are 18 years or older unless the nominated police officer considers there are exceptional circumstances and approves that detention. Division 4 Informing person detained about preventative detention orders 21ZD Effect of preventative detention order to be explained to person detained (1) As soon as practicable after a person is first taken into custody under a preventative detention order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2). Maximum penalty: Imprisonment for 2 years. (2) The matters covered by this subsection are: (a) the fact that the preventative detention order has been made in relation to the person; and (b) the period during which the person may be detained under the order; and (c) the requirement for there to be a review of the order by the Supreme Court and the fact that the person will have an opportunity to be heard on the review; and (d) the people the person is entitled to contact under sections 21ZI and 21ZL and the restrictions that apply to that contact; and (e) any right the person has to complain to the Ombudsman or officer in charge of the Ethical and Professional Standards Command in relation to: (i) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and (ii) without limiting subparagraph (i), compliance with section 21T in relation to the preventative detention order; and (iii) the person's treatment in relation to the person's detention under the preventative detention order; and -- 48 of 104 -- Part 2B Preventative detention orders Division 4 Informing person detained about preventative detention orders Terrorism (Emergency Powers) Act 2003 43 (f) the fact that the person may seek from a court a remedy relating to the order, a prohibition contact order or the treatment of the person in relation to the person's detention under the order; and (g) the person's entitlement under section 21ZK to contact a lawyer; and (h) the name and work telephone number of the nominated police officer to oversee the exercise of functions under the order. 21ZE Compliance with obligation to inform (1) Section 21ZD(1) does not apply if the actions of the person being detained under the preventative detention order make it impracticable for the police officer to comply with the section. (2) The police officer detaining the person under the preventative detention order complies with section 21ZD(1) if the officer informs the person in substance of the matters covered by section 21ZD(2) (even if this is not done in language of a precise or technical nature). (3) The police officer who is detaining the person under the preventative detention order must arrange for the assistance of an interpreter in complying with section 21ZD(1) if the officer has reasonable grounds to believe the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language. (4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone. (5) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with subsection (3) or section 21ZD(1). 21ZF Copy of preventative detention order and summary of grounds (1) As soon as practicable after a person is first taken into custody under a preventative detention order, the police officer who is detaining the person under the order must give the person: (a) a copy of the order and any prohibited contact order in force in relation to the person's detention; and (b) a summary of the grounds on which the preventative detention order or prohibited contact order is made. -- 49 of 104 -- Part 2B Preventative detention orders Division 4 Informing person detained about preventative detention orders Terrorism (Emergency Powers) Act 2003 44 (2) To avoid doubt, subsection (1)(b) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security. (3) A police officer does not need to have a copy of the order with him or her, or to produce a copy of the order to the person being taken into custody, when the officer takes the person into custody. (4) A person who is being detained under a preventative detention order may ask the police officer who is detaining the person under the order to give a copy of the following to a lawyer acting for the person in relation to the order: (a) the order and any prohibited contact order in force in relation to the person's detention; (b) any summary given to the person under subsection (1)(b). (5) The police officer must make arrangements for a copy of an order or summary to be given to the lawyer as soon as practicable after the request is made. (6) Without limiting subsection (5), the copy of an order may be faxed or emailed to the lawyer. (7) To avoid doubt, subsection (5) does not entitle the lawyer to be given a copy of, or see, a document other than the preventative detention order or prohibited contact order or any summary given under subsection (1)(b). (8) The police officer who gives: (a) the person being detained under a preventative detention order; or (b) a lawyer acting for the person, a copy of the order under this section must endorse on the copy the date on which, and time at which, the person was first taken into custody under the order. (9) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with this section. -- 50 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 45 Division 5 Treatment of person detained 21ZG Humane treatment of person being detained (1) A person being taken into custody, or being detained, under a preventative detention order: (a) must be treated with humanity and with respect for human dignity; and (b) must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the order or implementing or enforcing the order. (2) A person who contravenes subsection (1) is guilty of an offence. Maximum penalty: Imprisonment for 2 years. 21ZH Restriction on contact with other people Except as provided by this Division, while a person is being detained under a preventative detention order, the person: (a) is not entitled to contact another person; and (b) may be prevented from contacting another person. Note for section 21ZH A person's entitlement to contact other people under this Division is subject to a prohibited contact order. 21ZI Contacting family members etc. (1) The person being detained is entitled to contact once: (a) one of his or her family members; and (b) if he or she: (i) lives with another person and the other person is not a family member of the person being detained; or (ii) lives with other people and those other people are not family members of the person being detained; the other person or one of those other people; and (c) if he or she is employed – his or her employer; and -- 51 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 46 (d) if he or she employs people in a business – one of the people he or she employs in the business; and (e) if he or she engages in a business together with another person or other people – the other person or one of those other people; and (f) if the police officer detaining the person being detained agrees to the person contacting another person – the person, by telephone, fax or email but solely for the purposes of letting the person contacted know that he or she is safe and is being detained. (2) To avoid doubt, the person being detained is entitled, under subsection (1), to disclose: (a) the fact that a preventative detention order has been made in relation to the person; and (b) the fact that the person is being detained; and (c) the period for which the person is being detained. (3) In this section: family member, of a person, means: (a) the person's spouse or de facto spouse; or (b) a parent, step-parent or grandparent of the person; or (c) a child, step-child or grandchild of the person; or (d) a brother, sister, step-brother or step-sister of the person; or (e) a guardian or carer of the person. 21ZJ Contacting Ombudsman and Ethical and Professional Standards Command The person being detained is entitled to contact the Ombudsman or the officer in charge of the Ethical and Professional Standards Command. -- 52 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 47 21ZK Contacting lawyer (1) The person being detained is entitled to contact a lawyer but solely for the purpose of: (a) obtaining advice from the lawyer about the person's legal rights in relation to: (i) the preventative detention order; or (ii) a prohibited contact order in force in relation to the person's detention; or (iii) the treatment of the person in relation to the person's detention under the order; or (b) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a proceeding in the Supreme Court relating to: (i) the review, revocation or variation of the preventative detention order; or (ii) the revocation or variation of a prohibited contact order in relation to the person's detention; or (c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a proceeding in a court for a remedy relating to the treatment of the person in relation to the person's detention under the order; or (d) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Ombudsman or officer in charge of the Ethical and Professional Standards Command in relation to: (i) the exercise of powers under, and the performance of duties in relation to, the preventative detention order; and (ii) without limiting subparagraph (i), compliance with section 21T in relation to the preventative detention order; and (iii) the person's treatment in relation to the person's detention under the preventative detention order; or (e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court that is to take place while the person is being detained under the order. -- 53 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 48 (2) The form of contact that the person being detained is entitled to have with a lawyer under subsection (1) includes: (a) being visited by the lawyer; and (b) communicating with the lawyer by telephone, fax or email. (3) If: (a) the person being detained asks to be allowed to contact a particular lawyer under subsection (1); and (b) either: (i) the person is not entitled to contact that lawyer because of a prohibited contact order; or (ii) the person is not able to contact that lawyer, the police officer who is detaining the person must give the person reasonable assistance to choose another lawyer for the person to contact under subsection (1). (4) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe: (a) the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language; and (b) the person may have difficulties in choosing or contacting a lawyer because of that inability, the officer must give the person reasonable assistance (including, if appropriate, by arranging for the assistance of an interpreter) to choose and contact a lawyer under subsection (1). (5) In recommending lawyers to the person being detained as part of giving the person assistance under subsection (3), the police officer who is detaining the person may give priority to lawyers who have been given a security clearance at an appropriate level by the Attorney-General's Department of the Commonwealth. (6) Despite subsection (5) but subject to any prohibited contact order, the person being detained is entitled under this section to contact a lawyer who does not have a security clearance of the kind mentioned in subsection (5). -- 54 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 49 21ZL Special contact rules for person under 18 or incapable of managing own affairs (1) This section applies if the person being detained under a preventative detention order (the detainee): (a) is under 18 years of age; or (b) is incapable of managing his or her affairs. (2) The detainee is entitled, while being detained under the order, to have contact with: (a) a parent, guardian or decision maker (as defined in the Advance Personal Planning Act 2013) of the detainee; or (b) another person who: (i) is able to represent the detainee's interests; and (ii) is, as far as practicable in the circumstances, acceptable to the detainee and to the police officer who is detaining the detainee; and (iii) is not a police officer; and (iv) is not an AFP member or AFP employee within the meaning of the Australian Federal Police Act 1979 (Cth); and (v) is not a member (however described) of a police force of a State or another Territory; and (vi) is not an officer or employee of the Australian Security Intelligence Organisation. (3) To avoid doubt: (a) if the detainee has 2 parents or 2 or more guardians or decision makers, the detainee is entitled, subject to any prohibited contact order, to have contact under subsection (2) with each of those parents, guardians or decision makers; and (b) the detainee is entitled to disclose the following to a person with whom the detainee has contact under subsection (2): (i) the fact that a preventative detention order has been made in relation to the detainee; (ii) the fact that the detainee is being detained; -- 55 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 50 (iii) the period for which the detainee is being detained. (4) The form of contact that the detainee is entitled to have with another person under subsection (2) includes: (a) being visited by that other person; and (b) communicating with that other person by telephone, fax or email. (5) The period for which the detainee is entitled to have contact with another person each day under subsection (2) is: (a) 2 hours; or (b) the longer period specified in the preventative detention order. (6) Despite subsection (5), the police officer who is detaining the detainee may permit the detainee to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5). (7) If: (a) the detainee has contact under subsection (2) with a parent, guardian or decision maker of the detainee (person A); and (b) a prohibited contact order is in force in relation to another parent, guardian or decision maker of the detainee (person B); the nominated police officer in relation to the preventative detention order must inform person A that person A must not disclose to person B information of the kind mentioned in section 21ZO(3)(b). Maximum penalty for subsection (7): Imprisonment for 5 years. 21ZM Monitoring contact with certain persons (1) The contact the person being detained has with another person under section 21ZI, 21ZK or 21ZL may take place only if it is conducted in a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under the preventative detention order. (2) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter. -- 56 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 51 (3) Without limiting subsection (2), the interpreter mentioned in that subsection may be a police officer. (4) If the person being detained indicates that he or she wishes the contact to take place in a language other than English, the police officer who is detaining the person must: (a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and (b) if it is reasonably practicable to do so, arrange for those services to be provided as soon as practicable. (5) Any communication between: (a) a person who is being detained under a preventative detention order; and (b) a lawyer, for a purpose mentioned in section 21ZK is not admissible in evidence against the person in any proceeding in a court. 21ZN Entitlement to contact subject to prohibited contact order Sections 21ZI, 21ZK and 21ZL have effect subject to any prohibited contact order made in relation to the person's detention. 21ZO Disclosure offences (1) A person (the detainee) commits an offence if: (a) the detainee is being detained under a preventative detention order; and (b) the detainee discloses to another person: (i) the fact that a preventative detention order has been made in relation to the detainee; or (ii) the fact that the detainee is being detained; or (iii) the place where the detainee is being detained; or (iv) the fact that a prohibited contact order has been made in relation to the detainee's detention; and (c) the disclosure occurs while the detainee is being detained under the order; and -- 57 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 52 (d) the disclosure is not one that the detainee is entitled to make under section 21ZI, 21ZJ, 21ZK or 21ZL. Maximum penalty: Imprisonment for 5 years. (2) A person (the lawyer) commits an offence if: (a) a person being detained under a preventative detention order (the detainee) contacts the lawyer under section 21ZK or a person with whom the detainee has contact under section 21ZL contacts the lawyer as mentioned in subsection (3)(e)(ii) of this section; and (b) the lawyer discloses to another person: (i) the fact that a preventative detention order has been made in relation to the detainee; or (ii) the fact that the detainee is being detained; or (iii) the place where the detainee is being detained; or (iv) any information that the detainee or other person gives the lawyer in the course of the contact; and (c) the disclosure occurs while the detainee is being detained under the order; and (d) the disclosure is not made for the purposes of: (i) a proceeding in the Supreme Court for a remedy relating to the preventative detention order, a prohibited contact order or the treatment of the detainee in relation to the detainee's detention under the preventative detention order; or (ii) a complaint to the Ombudsman or Ethical and Professional Standards Command in relation to the application for the preventative detention order or a prohibited contact order or the treatment of the detainee by a police officer in relation to the detainee's detention under the preventative detention order; or (iii) making representations to the nominated police officer in relation to the preventative detention order, or another police officer involved in the detainee's detention, about: (A) the exercise of powers under the order or the performance of functions in relation to the order; or -- 58 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 53 (B) the treatment of the detainee in relation to the detainee's detention under the order. Maximum penalty: Imprisonment for 5 years. (3) A person (the parent/guardian) commits an offence if: (a) a person being detained under a preventative detention order (the detainee) has contact with the parent/guardian under section 21ZL; and (b) the parent/guardian discloses to another person: (i) the fact that a preventative detention order has been made in relation to the detainee; or (ii) the fact that the detainee is being detained; or (iii) the place where the detainee is being detained; or (iv) any information that the detainee gives the parent/guardian in the course of the contact; and (c) the other person is not a person the detainee is entitled to have contact with under section 21ZL; and (d) the disclosure occurs while the detainee is being detained under the order; and (e) the disclosure is not made for the purposes of: (i) a complaint to the Ombudsman or Ethical and Professional Standards Command in relation to the application for the preventative detention order or a prohibited contact order or the treatment of the detainee by a police officer in relation to the detainee's detention under the preventative detention order; or (ii) contacting a lawyer whom the detainee is entitled to contact under section 21ZK for any purpose for which the detainee is entitled to contact that lawyer under that section; or (iii) making representations to the nominated police officer in relation to the preventative detention order, or another police officer involved in the detainee's detention, about: (A) the exercise of powers under the order or the performance of functions in relation to the order; or -- 59 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 54 (B) the treatment of the detainee in relation to the detainee's detention under the order. Maximum penalty: Imprisonment for 5 years. (4) To avoid doubt, a person does not contravene subsection (2) or (3) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period. (5) A person (the parent/guardian) commits an offence if: (a) the parent/guardian is a parent or guardian of a person who is being detained under a preventative detention order (the detainee); and (b) the detainee has contact with the parent/guardian under section 21ZL; and (c) while the detainee is being detained under the order, the parent/guardian intentionally discloses information of the kind mentioned in subsection (3)(b) to another parent or guardian of the detainee (the other parent/guardian); and (d) when the disclosure is made, the detainee has not had contact with the other parent/guardian under section 21ZL while being detained under the order; and (e) when the disclosure is made, the parent/guardian has been informed under section 21ZL(7) by the nominated police officer in relation to the order that the parent/guardian must not disclose information of that kind to the other parent/guardian. Maximum penalty: Imprisonment for 5 years. (6) If: (a) a person (the parent/guardian) is a parent or guardian of a person being detained under a preventative detention order (the detainee); and (b) the parent/guardian informs the nominated police officer in relation to the order that the parent/guardian proposes to disclose information of the kind mentioned in subsection (3)(b) to another parent or guardian of the detainee (the other parent/guardian), -- 60 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 55 that police officer may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 21ZL. Note for subsection (6) The parent/guardian may commit an offence against subsection (3) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 21ZL and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of subsection (3)(c). (7) A person (the interpreter) commits an offence if: (a) the interpreter is an interpreter who assists in monitoring the contact that a person being detained under a preventative detention order (the detainee) has with someone while the detainee is being detained under the order; and (b) the interpreter discloses to another person: (i) the fact that a preventative detention order has been made in relation to the detainee; or (ii) the fact that the detainee is being detained; or (iii) the place where the detainee is being detained; or (iv) any information that interpreter obtains in the course of assisting in the monitoring of that contact; and (c) the disclosure occurs while the detainee is being detained under the order. Maximum penalty: Imprisonment for 5 years. (8) A person (the disclosure recipient) commits an offence if: (a) a person (the earlier discloser) discloses to the disclosure recipient: (i) the fact that a preventative detention order has been made in relation to a person; or (ii) the fact that a person is being detained under a preventative detention order; or (iii) the place where the person is being detained; or -- 61 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 56 (iv) any information that a person who is being detained under a preventative detention order communicates to a person while the person is being detained under the order; and (b) the disclosure by the earlier discloser to the disclosure recipient contravenes: (i) subsection (1), (2), (3), (5) or (7); or (ii) this subsection; and (c) the disclosure recipient discloses that information to another person; and (d) the disclosure by the disclosure recipient occurs while the person mentioned in paragraph (a)(i), (ii) or (iii) is being detained under the order; and (e) the disclosure is not made to a person exercising authority under the preventative detention order or implementing or enforcing the order or with responsibility for the safety or well- being of the person being detained under the order. Maximum penalty: Imprisonment for 5 years. (9) A person (the monitor) commits an offence if: (a) the monitor is: (i) a police officer who monitors; or (ii) an interpreter who assists in monitoring, contact that a person being detained under a preventative detention order has with a lawyer under section 21ZK while the detainee is being detained under the order; and (b) information is communicated in the course of that contact; and (c) the information is communicated for one of the purposes mentioned in section 21ZK; and (d) the monitor discloses the information to another person. Maximum penalty: Imprisonment for 5 years. -- 62 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 57 21ZP Questioning of person prohibited while person is detained (1) A police officer must not question a person while the person is being detained under a preventative detention order except for the purposes of: (a) determining whether the person is the person specified in the order; or (b) ensuring the safety and well-being of the person being detained; or (c) allowing the officer to comply with a requirement of this Part in relation to the person's detention under the order. Maximum penalty: Imprisonment for 2 years. (2) A police officer must not question a person while the person is being detained under an order made under a corresponding law. Maximum penalty: Imprisonment for 2 years. Note for section 21ZP This section will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person). 21ZQ Taking identification material (1) A police officer must not take identification material from a person who is being detained under a preventative detention order other than under this section. Maximum penalty: Imprisonment for 2 years. (2) A police officer who is of or above the rank of sergeant may take identification material from the person, or cause identification material from the person to be taken, if: (a) the person consents in writing; or (b) the officer believes on reasonable grounds it is necessary to do so for the purpose of confirming the person's identity as the person specified in the order; or (c) the officer believes on reasonable grounds it is necessary to do so for documenting an illness or injury suffered by the person while being detained under the order. -- 63 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 58 (3) Subject to this section, a police officer may only take identification material (other than hand prints, fingerprints, footprints or toe prints) from a person who: (a) is under 18 years of age; or (b) is incapable of managing his or her affairs, if a Local Court Judge orders that the material be taken. (4) The taking of identification material from a person who: (a) is under 18 years of age; or (b) is incapable of managing his or her affairs, must be done in the presence of: (c) a parent or guardian of the person; or (d) if a parent or guardian is not acceptable to the person – another appropriate person. (5) Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if: (a) subsections (6) and (7) are satisfied; or (b) subsection (6) or (7) is satisfied (but not both) and a Local Court Judge orders that the material be taken. (6) For subsection (5), this subsection is satisfied if the person agrees in writing to the taking of the material. (7) For subsection (5), this subsection is satisfied if either: (a) a parent or guardian of the person; or (b) if a parent or guardian is not acceptable to the person – another appropriate person, agrees in writing to the taking of the material. (8) Despite this section, identification material may be taken from a person who: (a) is at least 18 years of age; and (b) is capable of managing his or her affairs, -- 64 of 104 -- Part 2B Preventative detention orders Division 5 Treatment of person detained Terrorism (Emergency Powers) Act 2003 59 if the person consents in writing. (9) In this section: appropriate person, in relation to another person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, means a person who: (a) is capable of representing the subject's interests; and (b) as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and (c) is none of the following: (i) a police officer; (ii) an AFP member or AFP employee within the meaning of the Australian Federal Police Act 1979 (Cth); (iii) a member (however described) of a police force of another State or Territory; (iv) an officer or employee of the Australian Security Intelligence Organisation. 21ZR Use of identification material (1) This section applies if identification material is taken under section 21ZQ from a person being detained under a preventative detention order. (2) The material may be used only for the purpose of determining whether the person is the person specified in the order. (3) A person who uses identification material in contravention of subsection (2) is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (4) If: (a) a period of 12 months elapses after the identification material is taken; and (b) a proceeding has not been brought, or has been brought and discontinued or completed, within the period in relation to: (i) the preventative detention order; or -- 65 of 104 -- Part 2B Preventative detention orders Division 6 Miscellaneous matters Terrorism (Emergency Powers) Act 2003 60 (ii) the treatment of the person in relation to the person's detention under the order, the material must be destroyed as soon as practicable after the end of the period. Division 6 Miscellaneous matters 21ZS Annual reports to be given to Police Minister (1) The Commissioner must report annually on the exercise of powers under this Part by police officers. (2) The report must be given, within 4 months after each 30 June, to the Police Minister. (3) Without limiting subsection (1), the report must include the following matters relating to the year ending on 30 June: (a) the number of preventative detention orders made during the year and the number of applications for orders made during the year; (b) the number of applications for preventative detention orders in relation to adults and the number in relation to persons under 18 years of age; (c) the duration of each order made; (d) a statement as to whether each order was made to prevent a terrorist act or to preserve evidence; (e) a statement as to whether a person was taken into custody under each order and, if so, the period for which the person was detained; (f) a statement as to whether the person detained under an order was principally detained in a custodial correctional facility, youth detention centre, police facility or other place; (g) the number of prohibited contact orders made during the year and the number of applications for such orders, the duration of each order and the number made in relation to adults and the number made in relation to persons under 18 years of age; (h) the number of applications for revocation or variation of an order and the number of revocations and variations granted; -- 66 of 104 -- Part 2B Preventative detention orders Division 6 Miscellaneous matters Terrorism (Emergency Powers) Act 2003 61 (i) particulars of any complaints in relation to the detention of a person under a preventative detention order made or referred during the year to the Ombudsman and the outcome of complaints made; (j) a statement confirming the destruction of identification material required to be destroyed under section 21ZR(4). (3) The report may be combined with any other annual report of the Police Force of the Territory. (4) The Police Minister must table a copy of the report in the Legislative Assembly within 7 sitting days after receiving it. 21ZT Law relating to client legal privilege not affected To avoid doubt, this Part does not affect the law relating to client legal privilege. 21ZU Legal proceedings for remedy in relation to orders (1) This Part does not limit legal proceedings that may be brought in a court for a remedy in relation to: (a) a preventative detention order; or (b) a prohibited contact order; or (c) the treatment of a person in relation to the person's detention under a preventative detention order. (2) If a person applies to a court for a remedy in relation to: (a) the application for, or the making of, a preventative detention order or a prohibited contact order or the person's treatment in connection with the person's detention under a preventative detention order; and (b) the person applies to the court for an order under this subsection, the court may order the Commissioner to give the court, and the parties to the proceeding, the information that was put before the eligible Judge when the application for the order was made. (3) Subsection (2) does not require information to be given to the court, or the parties to the proceeding, if the disclosure of the information is likely to prejudice national security. -- 67 of 104 -- Part 3 Powers relating to public health and safety Division 1 Movement of persons and vehicles Terrorism (Emergency Powers) Act 2003 62 21ZV Sunset provision (1) A preventative detention order, or prohibited contact order, that is in force at the end of 30 June 2026 ceases to be in force at that time. (2) A preventative detention order, and prohibited contact order, cannot be applied for, or made, after 30 June 2026. Part 3 Powers relating to public health and safety Division 1 Movement of persons and vehicles 22 Vehicles may be required to be moved or prevented from entering area (1) A police officer may direct the driver of a vehicle to stop the vehicle and to take the vehicle out of an area or not to take the vehicle into an area, if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred or is imminent; and (b) it is necessary or desirable in the interests of public health or public safety that the vehicle leave the area or not enter the area. (2) A police officer may arrange for a vehicle to be taken out of an area if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred or is imminent; and (b) it is necessary or desirable in the interests of public health or public safety that the vehicle leave the area. (3) A police officer who arranges for a vehicle to be taken out of an area must, as soon as reasonably practicable, take all reasonable measures to inform the driver or the owner of the vehicle of the place to which the vehicle has been taken. 22A Movement into and out of area may be restricted (1) A police officer may restrict movement into or out of an area if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred or is imminent; and (b) it is necessary or desirable in the interests of public health or public safety that a person not enter or leave the area. -- 68 of 104 -- Part 3 Powers relating to public health and safety Division 1 Movement of persons and vehicles Terrorism (Emergency Powers) Act 2003 63 (2) Movement into and out of an area is restricted under subsection (1) if the area is cordoned off by a tape or other barrier that: (a) clearly indicates that a person is not permitted to enter or to exit the area; and (b) that extends across all usual entry points to, or exit points from, the area. (3) However, if the use of a tape or barrier is not practical, the police officer may restrict movement into or out of the area by: (a) specifying the area to be restricted by coordinates or other description; and (b) taking all reasonable steps to notify members of the public within the area and its vicinity that movement into or out of the area is restricted. (4) A person must not, without reasonable excuse, enter or leave the area unless directed to do so by a police officer. Maximum penalty: 200 penalty units or imprisonment for 12 months. (5) A person must not, without reasonable excuse, tamper with or remove a tape or other barrier used to cordon off an area under subsection (2). Maximum penalty: 200 penalty units or imprisonment for 12 months. 23 Person may be directed to leave, remain in or not enter area (1) A police officer may direct a person to leave an area, or not to enter an area, if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred or is imminent; and (b) it is necessary or desirable in the interests of public health or public safety that the person leave the area or not enter the area. (2) A police officer may direct a person to remain in an area if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred or is imminent; and (b) it is necessary or desirable in the interests of public health or public safety that the person remain in the area. -- 69 of 104 -- Part 3 Powers relating to public health and safety Division 2 Quarantine Terrorism (Emergency Powers) Act 2003 64 Division 2 Quarantine 24 Police officer may direct person to submit to decontamination and quarantine for up to 48 hours A police officer may, without a warrant, direct a person: (a) to remain at a place for a period of not more than 48 hours and submit to a decontamination procedure at the place; (b) to remain at a place for a period of not more than 48 hours so as to prevent the spread of a contaminant; (c) to go to a place, remain at the place for a period of not more than 48 hours and submit to a decontamination procedure at the place; or (d) to go to a place and remain at the place for a period of not more than 48 hours so as to prevent the spread of a contaminant, if the police officer suspects on reasonable grounds that: (e) a terrorist act has occurred; and (f) the exercise of the power is necessary or desirable in the interests of public health or public safety, because the person may have come into contact with a contaminant used in, or released as a consequence of, the terrorist act. 25 Chief Health Officer may direct person to submit to decontamination and quarantine for more than 48 hours The Chief Health Officer may, without a warrant, direct a person: (a) to remain at a place for a period and submit to a decontamination procedure at the place; (b) to remain at a place for a period so as to prevent the spread of a contaminant; (c) to go to a place, remain at the place for a period and submit to a decontamination procedure at the place; or (d) to go to a place and remain at the place for a period so as to prevent the spread of a contaminant, if the Chief Health Officer suspects on reasonable grounds that: (e) a terrorist act has occurred; and -- 70 of 104 -- Part 3 Powers relating to public health and safety Division 3 Contaminated or unsafe property Terrorism (Emergency Powers) Act 2003 65 (f) the exercise of the power is necessary or desirable in the interests of public health or public safety, because the person may have come into contact with a contaminant used in, or released as a consequence of, the terrorist act. Division 3 Contaminated or unsafe property 26 Premises may be made safe (1) A police officer may, without a warrant, enter and search premises to determine whether reasonable measures may be required to be taken to make the premises safe, if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred, or is imminent, on the premises or in the vicinity of the premises; (b) the terrorist act or imminent terrorist act has made, or may make, the premises unsafe; and (c) it is necessary or desirable in the interests of public health or public safety to determine whether reasonable measures are required to be taken to make the premises safe. (2) A police officer may, after entering premises under this Act, take reasonable measures to make the premises safe, or arrange for such measures to be taken, if the police officer suspects on reasonable grounds that: (a) a terrorist act has occurred, or is imminent, on the premises or in the vicinity of the premises; (b) the terrorist act has made, or may make, the premises unsafe; and (c) it is necessary or desirable in the interests of public health or public safety to take reasonable measures to make the premises safe or to arrange for such measures to be taken. (3) The Commissioner may authorise the making of arrangements for the decontamination of premises if he or she suspects on reasonable grounds that the premises have become contaminated as a consequence of a terrorist act or preparation for a terrorist act or imminent terrorist act. (4) In this section: reasonable measures include but are not limited to the shutting down of gas, water or electricity services to premises. -- 71 of 104 -- Part 3A Covert search warrants Division 1 Preliminary matters Terrorism (Emergency Powers) Act 2003 66 27 Decontamination etc. of things (1) A police officer may detain and make arrangements for the disposal, destruction or decontamination of a thing seized in connection with a search under this Act, if he or she suspects on reasonable grounds that the thing: (a) is a risk to public health or public safety, including because it has become contaminated as a consequence of a terrorist act or preparation for a terrorist act or an imminent terrorist act; or (b) may significantly increase the risk to public health or public safety as a consequence of a terrorist act that has occurred or may significantly increase the risk to public health or public safety if an imminent terrorist act occurs. (2) A power given by this section to detain a thing includes: (a) a power to remove a thing from the place where it is found; and (b) a power to guard the thing in or on the place where it is found. Part 3A Covert search warrants Division 1 Preliminary matters 27A Interpretation (1) In this Part, unless the contrary intention appears: adjoining place means a place that adjoins or provides access to a subject place. authorised police officer means a police officer: (a) mentioned in section 27B(1); or (b) authorised under section 27B(2). place means premises or a vehicle. special warrant means a warrant mentioned in section 27F. subject place, for a warrant or application for a warrant, means the place the subject of the warrant or application. -- 72 of 104 -- Part 3A Covert search warrants Division 3 Applications for, and issue of, covert search warrants Terrorism (Emergency Powers) Act 2003 67 (2) In this Part, a reference to the search of a place includes a reference to the search for information that may be derived from, or anything in, on or attached to the place. Division 2 Authorisations to apply for covert search warrants 27B Who may apply for covert search warrant (1) A police officer with the rank of or above Assistant Commissioner is authorised to apply for a covert search warrant for a place. (2) A police officer mentioned in subsection (1) may authorise another police officer to apply for a covert search warrant for a place. 27C Form of authorisation (1) An authorisation given under section 27B(2) must be in writing. (2) However, if it is not practicable to issue the authorisation in writing because of an urgent need, the authorisation may be given orally. (3) An authorisation given orally must be put in writing as soon as practicable after it is given. Division 3 Applications for, and issue of, covert search warrants 27D Power to apply for covert search warrant An authorised police officer may apply to a Supreme Court Judge for a warrant (a covert search warrant) to enter and search a place if the officer suspects or believes on reasonable grounds: (a) a terrorist act has been, is being, or is likely to be, committed; and (b) the entry to and search of the place will substantially assist in responding to or preventing the terrorist act; and (c) it is necessary for the entry and search of the place to be conducted without the knowledge of any occupier of the place. 27E Application for warrant in person (1) An application for a covert search warrant must be made: (a) by the authorised police officer in person; and (b) by affidavit. -- 73 of 104 -- Part 3A Covert search warrants Division 3 Applications for, and issue of, covert search warrants Terrorism (Emergency Powers) Act 2003 68 (2) A Supreme Court Judge must not issue a covert search warrant unless the information given by the applicant in relation to the application is verified before the Supreme Court Judge on oath or by affidavit. (3) This section does not apply to a special warrant. 27F Special warrant (1) An authorised police officer may apply by telephone, fax, email or other electronic communication for a covert search warrant. (2) A Supreme Court Judge must not issue a covert search warrant on an application under this section unless the Supreme Court Judge is satisfied the warrant is required urgently and it is not practicable for the application to be made in person. (3) An application must be made by fax if the facilities to do so are readily available for that purpose. (4) If it is not practicable for an application for a covert search warrant under this section to be made directly to a Supreme Court Judge, the application may be sent to the Supreme Court Judge by another police officer on behalf of the applicant. (5) A Supreme Court Judge who issues a covert search warrant on an application under this section must: (a) complete and sign the warrant; and (b) give the warrant to the police officer who made the application or inform the officer of the terms of the warrant and of the date when it was signed. (6) If a covert search warrant is issued on an application made by telephone and the applicant was not given the warrant, the applicant must: (a) complete a form of warrant in the terms indicated by the Judge under subsection (5); and (b) write on it the name of the Judge and the date when the warrant was signed; and (c) give the warrant to the Judge within 2 business days after the issue of the warrant. (7) A form of covert search warrant so completed is taken to be a warrant issued under this Division. -- 74 of 104 -- Part 3A Covert search warrants Division 3 Applications for, and issue of, covert search warrants Terrorism (Emergency Powers) Act 2003 69 (8) A covert search warrant must be given by a Supreme Court Judge by fax if the facilities to do so are readily available, and the copy produced is taken to be the original warrant. 27G Information in application for warrant (1) A Supreme Court Judge must not issue a covert search warrant unless the application for the warrant includes the following information: (a) the full name, rank and registered number of the applicant; (b) the address or other description of the subject place; (c) particulars of the grounds on which the application is based; (d) the name of the following persons: (i) any person believed to be knowingly concerned in the commission of the terrorist act for which the application is made; (ii) if no such person is an occupier of the subject place – any occupier (if known) of the place; (e) if it is proposed that an adjoining place be entered for the purposes of entering the subject place – the address or other description of the adjoining place and particulars of the grounds on which entry to the adjoining place is required; (f) the powers proposed to be exercised on entry to the subject place; (g) a description of the kinds of things proposed to be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested; (h) if power is sought to remove anything from the subject place and replace it with a substitute: (i) a description of the thing; and (ii) the reasons why the power is needed; (i) if power is sought to re-enter the subject place to return anything removed from, or to retrieve anything substituted in, the place when first entered under the warrant: (i) a description of the thing; and (ii) the reasons why the power is needed; -- 75 of 104 -- Part 3A Covert search warrants Division 3 Applications for, and issue of, covert search warrants Terrorism (Emergency Powers) Act 2003 70 (j) if a previous application for the same warrant was refused – details of the refusal and any additional information provided as required by section 27K; (k) details of any covert search warrant that has previously been issued for the subject place; (l) any other information required by regulation. (2) The applicant must give (either orally or in writing) the further information the Judge requires concerning the grounds on which the warrant is being sought. 27H Determining application for covert search warrant (1) A Supreme Court Judge to whom an application for a covert search warrant is made may, if satisfied there are reasonable grounds for doing so, issue a covert search warrant. (2) A Supreme Court Judge, when determining whether there are reasonable grounds to issue a covert search warrant, must consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information; (b) whether there is a connection between the terrorist act for which the application has been made and the kinds of things that are proposed to be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested; (c) the nature and gravity of the terrorist act; (d) the extent to which the exercise of powers under the warrant would assist in the prevention of, or response to, the terrorist act; (e) alternative means of obtaining the information sought to be obtained; (f) the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the terrorist act is likely to be affected if the warrant is issued; (g) if it is proposed that an adjoining place be entered for the purposes of entering the subject place, whether it is reasonably necessary to: (i) enable access to the subject place; or -- 76 of 104 -- Part 3A Covert search warrants Division 3 Applications for, and issue of, covert search warrants Terrorism (Emergency Powers) Act 2003 71 (ii) avoid compromising the investigation of the terrorist act; (h) whether any conditions should be imposed by the Judge in relation to the execution of the warrant. 27J Record of determination by Supreme Court Judge (1) A Supreme Court Judge who determines an application for a covert search warrant must record all relevant particulars of the grounds the Supreme Court Judge has relied on to justify the issue of the warrant or refusal to issue the warrant. (2) A regulation may provide for any of the following: (a) the keeping of records relating to the issue and execution of covert search warrants; (b) the inspection of the records; (c) any other matter relating to the records. (3) Any matter that might disclose the name or residential address of a person must not be recorded under this section if the Judge is satisfied to do so might jeopardise the safety of any person. 27K Further application for warrant after refusal If an application by a police officer for a covert search warrant is refused by a Supreme Court Judge, the officer (or any other police officer who is aware of the application) may not make a further application for the same warrant to that or any other Supreme Court Judge unless the further application provides additional information that justifies the making of the further application. 27L Contents of covert search warrant A covert search warrant must state the following matters: (a) the full name, rank and registered number of the applicant; (b) the address or other description of the subject place; (c) the name of the following persons: (i) any person believed to be knowingly concerned in the commission of the terrorist act for which the warrant is issued; (ii) if no such person is an occupier of the subject place – any occupier (if known) of that place; -- 77 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 1 Preliminary matters Terrorism (Emergency Powers) Act 2003 72 (d) a description of the kinds of things that may be searched for, seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested; (e) if the warrant authorises the re-entry of the subject place to return anything removed from, or to retrieve anything substituted in, the place when it is first entered under the warrant – a description of the thing; (f) the date and time the warrant is issued; (g) the date the warrant expires (being a date not more than 30 days after the date the warrant is issued); (h) any conditions imposed in relation to the execution of the warrant; (i) any other matter required by regulation. Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 1 Preliminary matters 27M Interpretation (1) In this Division: serious indictable offence means an indictable offence punishable by imprisonment for life or for a term of 5 years or more (2) A reference in this Division to a relevant thing (including electronic equipment and information) found by a police officer is a reference to a thing the officer has reasonable grounds to suspect or believe will substantially assist in responding to or preventing a terrorist act. (3) For this Division, a thing is connected with a serious indictable offence only if it is: (a) a thing with respect to which there are reasonable grounds for suspecting or believing the offence has been, is being, or will be committed; or (b) a thing that there are reasonable grounds for suspecting or believing will provide evidence of the commission or intended commission of the offence; or -- 78 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 2 Powers exercisable under covert search warrants Terrorism (Emergency Powers) Act 2003 73 (c) a thing that there are reasonable grounds for suspecting or believing has been, is being, or is intended to be used, in relation to the offence. Subdivision 2 Powers exercisable under covert search warrants 27N Powers automatically conferred by covert search warrant A covert search warrant authorises the police officer named in the warrant: (a) to enter, without any occupier's knowledge, the subject place; and (b) to impersonate another person for the purposes of executing the warrant; and (c) to use the force that is reasonably necessary for the purposes of entering and searching the subject place; and (d) to search the subject place for any kind of thing or class of thing described in the warrant; and (e) to break open any receptacle in or on the subject place for the purposes of that search if it is reasonably necessary to do so; and (f) to seize and detain any other thing found in the course of executing the warrant and that is connected with a serious indictable offence. 27P Powers expressly conferred by covert search warrant In addition to the powers mentioned in section 27N, if it expressly so authorises, a covert search warrant authorises the police officer named in the warrant: (a) to enter an adjoining place specified in the warrant, using the force that is reasonably necessary, for the purposes of entering the subject place; and (b) to seize and detain a thing of a kind described in the warrant and any relevant thing found in the course of executing the warrant; and (c) to place a thing of a kind described in the warrant on the subject place in substitution for a thing seized under paragraph (b); and -- 79 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 2 Powers exercisable under covert search warrants Terrorism (Emergency Powers) Act 2003 74 (d) to copy, photograph or otherwise record a thing of a kind described in the warrant and any relevant thing found in the course of executing the warrant; and (e) to operate any electronic equipment of a kind described in the warrant and any relevant electronic equipment found in the course of executing the warrant; and (f) to print, copy or otherwise record from the equipment information of a kind described in the warrant to be printed, copied or recorded and any relevant information found in the course of executing the warrant; and (g) to test a thing of that kind and any relevant thing found in the course of executing the warrant. 27Q Power of re-entry (1) If it expressly so authorises, a covert search warrant authorises the police officer to re-enter the place to return anything removed from, or to retrieve anything substituted in, the place when it was first entered under the warrant. (2) If a covert search warrant authorises the re-entry of the subject place under subsection (1): (a) the place may be re-entered only for the purpose of returning a thing removed from, or to retrieve a thing substituted in, the place when it was first entered under the warrant; and (b) the re-entry must occur within: (i) 7 days after the date on which the place was first entered; or (ii) a longer period authorised by a Supreme Court Judge before the end of the 7 days; and (c) for the purpose of re-entering the place and returning or retrieving the thing, the police officer may exercise any of the powers under section 27N, and any of the powers under section 27P expressly authorised by the warrant, that are reasonably necessary; and (d) despite section 27T, the warrant continues in effect subject to this subsection. -- 80 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 3 Execution and currency of covert search warrant Terrorism (Emergency Powers) Act 2003 75 27R Power to stop, detain and search etc. (1) If a police officer reasonably believes it is necessary to do so to protect the safety of any person, including the officer, who is in or near the suspect place when a covert search warrant is being executed, the warrant authorises the officer to exercise the following powers: (a) to stop and detain a person who is in the place; (b) to search the person; (c) to order the person to leave the place or its vicinity; (d) to order a person not to enter a place or its vicinity; (e) to seize and retain any weapon or other thing in the place that could endanger a person. (2) For section 112(1) of the Criminal Code, a person detained under subsection (1)(a) is in the lawful custody of the officer while so detained. Subdivision 3 Execution and currency of covert search warrant 27S Use of assistants to execute warrant A police officer who is authorised under Subdivision 2 to execute a covert search warrant may do so with the assistants the officer considers necessary. 27T Expiry of covert search warrant A covert search warrant ceases to have effect on the earlier of the following: (a) the expiry date stated in the warrant; (b) if it is withdrawn by the Supreme Court Judge who issued it – when it is withdrawn; (c) when it is executed. -- 81 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 4 Provisions applying after warrants executed Terrorism (Emergency Powers) Act 2003 76 Subdivision 4 Provisions applying after warrants executed 27U Report to Supreme Court Judge on execution of warrant (1) The authorised police officer named in a covert search warrant must give to the Supreme Court Judge who issued the warrant a written report that includes the following information: (a) the address or other description of the subject place; (b) whether or not the warrant was executed; (c) the other particulars prescribed by regulation. (2) If a covert search warrant was executed, the report must also include the following information: (a) the date on which the warrant was executed; (b) the name of the officer who executed the warrant; (c) the name of any person who assisted in the execution of the warrant and the nature of the assistance provided; (d) the name of: (i) any person believed to be knowingly concerned in the commission of the terrorist act for which the warrant was executed; and (ii) if no such person is an occupier of the place – any occupier (if known) of the place at which the warrant was executed; (e) the powers that were exercised under the warrant; (f) the result, set out briefly, of the execution of the warrant (including a brief description of anything seized, placed in substitution for a seized thing, copied, photographed, recorded, operated, printed or tested); (g) if: (i) under section 27P the covert search warrant expressly authorises the copying, photographing, recording, operation, printing or testing of a thing of a kind described in the warrant; and -- 82 of 104 -- Part 3A Covert search warrants Division 4 Execution of covert search warrants and provisions applying after warrants executed Subdivision 4 Provisions applying after warrants executed Terrorism (Emergency Powers) Act 2003 77 (ii) a thing was copied, photographed, recorded, operated, printed or tested in the course of executing the warrant; and (iii) the thing was not of a kind expressly authorised by the warrant to be copied, photographed, recorded, operated, printed or tested, the particulars of the grounds on which the thing was believed to be a relevant thing or connected with a serious indictable offence; (h) a description of anything tested or seized for the purposes of testing and the type of information obtained (or proposed to be obtained) by testing; (i) whether or not the execution of the warrant assisted in the prevention of, or response to, the terrorist act for which the warrant was executed and, if so, how it assisted; (j) whether or not the execution of the warrant assisted in the prevention of, or response to, any other terrorist act or any serious indictable offence and, if so, how it assisted. (3) If a covert search warrant was not executed, the report must also include the reasons, set out briefly, why the warrant was not executed. (4) The report must be given to the Judge: (a) if a covert search warrant was executed – within 10 days after it was executed; or (b) otherwise – within 10 days after: (i) the expiry date specified in the warrant; or (ii) the date the warrant was withdrawn by the Judge. (5) If the place is re-entered for the purposes of returning or retrieving a thing under section 27Q, a written report must also be given to the Judge who issued a covert search warrant stating: (a) the address or other description of the place; and (b) the date on which the place was re-entered; and (c) the name of any person who entered the place for the purposes of the return or retrieval; and -- 83 of 104 -- Part 3A Covert search warrants Division 5 Miscellaneous matters Terrorism (Emergency Powers) Act 2003 78 (d) a brief description of the thing; and (e) if the thing was not returned or retrieved – the reasons why the thing was not returned or retrieved; and (f) the other particulars prescribed by regulation. (6) The report must be given to the Judge within 10 days after the re-entry to the place for the purposes of retrieving or returning the thing under section 27Q. 27V Defects in covert search warrants A covert search warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular. Division 5 Miscellaneous matters 27W Matters to be dealt with in absence of public An application under this Part and any other matter arising under this Part that is dealt with by a Supreme Court Judge must be dealt with in the absence of the public. 27X False or misleading information in applications or reports (1) A police officer must not, in relation to an application for a covert search warrant or a report, give information to a Supreme Court Judge the officer knows is false or misleading in a material particular. Maximum penalty: 100 penalty units or imprisonment for 2 years. (2) This section applies to an application for a special warrant as well as an application for a covert search warrant made in person. (3) This section applies whether or not the information given is also verified on oath or by affidavit. 27Y No publication or disclosure of information about covert search warrants (1) A person must not publish any confidential information in relation to a covert search warrant except in accordance with the approval of the Supreme Court. Maximum penalty: Imprisonment for 5 years. -- 84 of 104 -- Part 3A Covert search warrants Division 5 Miscellaneous matters Terrorism (Emergency Powers) Act 2003 79 (2) If, in any legal proceeding an issue arises relating to the disclosure of confidential information and apart from this section a person would be entitled to require another person to disclose the information, the court may excuse the person from the requirement to disclose if satisfied: (a) disclosure would prejudice the prevention, investigation or prosecution of a terrorist act or suspected terrorist act; and (b) the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosure. (3) In this section: confidential information, in relation to a covert search warrant, means any information about or derived from: (a) an application for the warrant or proceeding on the application; or (b) a report given under section 27U. disclose, includes disclosure, whether by order, subpoena or otherwise, by the: (a) inspection, production or discovery of documents; and (b) giving of evidence; and (c) answering of interrogatories; and (d) provision of particulars. 27Z Annual reports to be given to Police Minister (1) The Commissioner must report annually on the exercise of powers under this Part by police officers. (2) The report must be given, within 4 months after each 30 June, to the Police Minister. (3) Without limiting subsection (1), the report must include the following matters relating to the year ending on 30 June: (a) the number of applications for covert search warrants made under this Part and the number of those applications granted; (b) the number of applications for special warrants and the number of those applications granted; (c) the number of covert search warrants executed; -- 85 of 104 -- Part 4 Other powers Division 1 Enforcement Terrorism (Emergency Powers) Act 2003 80 (d) the number of covert search warrants under which any things were seized; (e) the number of covert search warrants under which any things were placed in substitution for seized things; (f) the number of covert search warrants under which any things were returned or retrieved; (g) the number of covert search warrants under which any things were copied, photographed or otherwise recorded; (h) the number of covert search warrants under which any electronic equipment was operated by police officers; (i) the number of covert search warrants under which anything was tested; (j) the number of arrests made in relation to a terrorist act for which a covert search warrant was executed and the number of those arrests that have led to the laying of charges in relation to the terrorist act; (k) the number of complaints made under any Act about conduct relating to the execution of a covert search warrant by a police officer and the number of those complaints that are, or have been, the subject of an investigation under any Act; (l) other matters requested by the Attorney-General or Police Minister. (4) The report may be combined with any other annual report of the Police Force of the Territory. (5) The Police Minister must table a copy of the report in the Legislative Assembly within 7 sitting days after receiving it. Part 4 Other powers Division 1 Enforcement 28 Use of force (1) Subject to this section, it is lawful for a police officer exercising a power under this Act in relation to a person, premises, vehicle or thing, and for a person assisting a police officer in the exercise of such a power, to use the force that is reasonably necessary to exercise the power. -- 86 of 104 -- Part 4 Other powers Division 1 Enforcement Terrorism (Emergency Powers) Act 2003 81 (2) It is lawful for a police officer, and a person assisting a police officer, to use the force that is reasonably necessary to ensure that a person ceases to contravene or to fail to comply with a direction given under this Act. (3) It is lawful for a police officer, and a person assisting a police officer, to use the force that is reasonably necessary to ensure that: (a) a person leaves an area or place that the person is required to leave or not to enter under section 22 or 30; or (b) a person ceases to tamper with, or to remove, a tape or other barrier in contravention of section 22 or 30. (4) In exercising a power under this Act a police officer, and a person assisting the officer in the exercise of the power, may only cause damage to a thing or premises if it is reasonably necessary to do so to enable the effective exercise of the power. 29 Power to seize and detain things etc. (1) A police officer may seize and detain all or part of a thing, found in connection with a search under this Act, that the police officer suspects on reasonable grounds: (a) may have been used, or is or was reasonably likely to be, or to have been intended to be, used to commit a terrorist act; (b) may provide evidence of the commission of an indictable offence (whether or not related to a terrorist act); or (c) may significantly increase the risk to public health or public safety as a consequence of a terrorist act or may significantly increase the risk to public health or public safety if an imminent terrorist act occurs. (2) A power given by this section to seize and detain a thing includes: (a) a power to remove the thing from the place where it is found; and (b) a power to guard the thing at the place where it is found. 30 Securing of crime scene (1) A police officer may direct a person to leave a place, or not to enter a place, if the police officer suspects on reasonable grounds that the place may contain evidence of a terrorist act or an imminent terrorist act. -- 87 of 104 -- Part 4 Other powers Division 1 Enforcement Terrorism (Emergency Powers) Act 2003 82 (2) A police officer may direct a person not to interfere with or remove a thing from a place, if the police officer suspects on reasonable grounds that the thing may provide evidence of a terrorist act or an imminent terrorist act. (3) A police officer may cordon off a place that the officer suspects on reasonable grounds may contain evidence of a terrorist act or an imminent terrorist act. (4) A place is cordoned off under subsection (3) if a tape, or other barrier, that is marked "CRIME SCENE – NO ENTRY" or that otherwise clearly indicates that a person is not permitted to enter the place, extends around the place or across all usual entry points to, or exit points from, the place. (5) A person must not, without reasonable excuse, enter a place that is cordoned off under subsection (3). Maximum penalty: 200 penalty units or imprisonment for 12 months. (6) A person must not, without reasonable excuse, tamper with or remove a tape or other barrier used to cordon off a place under subsection (3). Maximum penalty: 200 penalty units or imprisonment for 12 months. 31 Compulsory reporting of thefts and unusual sales of potential terrorism hazards (1) The Commissioner, or a person authorised in writing by the Commissioner, may, by notice in writing to a supplier of a potential terrorism hazard specified in the notice, require him or her to tell a police officer about: (a) a theft of the potential terrorism hazard from the supplier, whether the theft occurred before or after the notice is given; or (b) a sale, attempt to purchase, or inquiry about, the potential terrorism hazard, whether the sale, attempt or inquiry occurred before or after the notice is given. -- 88 of 104 -- Part 4 Other powers Division 2 Assistance with enforcement Terrorism (Emergency Powers) Act 2003 83 (2) The Commissioner may, by notice published in a newspaper circulating within the Territory, require a supplier of a potential terrorism hazard specified in the notice to tell a police officer about: (a) a theft of the potential terrorism hazard from the supplier, whether the theft occurred before or after the notice is published; or (b) a sale, attempt to purchase, or inquiry about, the potential terrorism hazard, whether the sale, attempt or inquiry occurred before or after the notice is published. (3) A person must not, without reasonable excuse, contravene or fail to comply with a requirement of a notice given to him or her or published under subsection (1) or (2). Maximum penalty: 200 penalty units or imprisonment for 12 months. (4) In this section: potential terrorism hazard means a substance or thing that may be used in the commission of a terrorist act. Division 2 Assistance with enforcement 32 Recognition of other law enforcement officers (1) The Commissioner may, in writing, appoint any of the following: (a) members of the Australian Federal Police; (b) members of the police force of a State or another Territory, to be recognised law enforcement officers for the purpose of this Act. (2) An appointment under subsection (1) may be made subject to conditions. (3) Subject to this Act, an appointment has effect for the period, specified in the appointment, beginning at the time the appointment is made and ending at the time that is specified in the appointment as the time at which the appointment is to cease to have effect. (4) Subject to subsection (5), a period specified under subsection (3) in an appointment may not be longer than 14 days, beginning on the day on which the appointment is made. -- 89 of 104 -- Part 4 Other powers Division 2 Assistance with enforcement Terrorism (Emergency Powers) Act 2003 84 (5) The Police Minister may, in writing, extend the period of an appointment under subsection (1) for an additional period of not more than 14 days. (6) An appointment under subsection (1) may be extended under subsection (5) as often as the Police Minister thinks fit. (7) The Commissioner or the Police Minister may, at any time, in writing, revoke an appointment under subsection (1). (8) A person remains, for the period of his or her appointment under subsection (1) as a recognised law enforcement officer, under the command and control of the police force of which he or she is a member. 33 Recognised law enforcement officers to have police powers Subject to any limitations imposed by the conditions of his or her appointment under section 32, a recognised law enforcement officer has and may exercise all the powers and functions, immunities, liabilities and responsibilities that a police officer of the rank of constable under the Police Administration Act 1978 has and may exercise: (a) under this Act; and (b) in any matter arising under this Act – under any law of the Territory (including the common law), including functions conferred after the commencement of this section. 34 Police officer may require assistance from members of public A police officer may require a person to assist him or her: (a) in the exercise of a power or the performance of a function of the police officer under this Act; or (b) in the exercise of a power of a police officer to arrest or detain under an Act (including an Act of the Commonwealth) a person who the police officer suspects on reasonable grounds has committed, is committing or is intending to commit: (i) a terrorist act within the meaning of this Act; or (ii) a terrorist act, or an act of terrorism, within the meaning of that other Act. -- 90 of 104 -- Part 4 Other powers Division 3 Offences Terrorism (Emergency Powers) Act 2003 85 35 Protection of persons acting under this Act (1) This section applies to a person who is or has been: (a) the Chief Health Officer; (b) a police officer; or (c) a person assisting a police officer. (2) No civil or criminal proceedings lie against a person to whom this section applies in relation to an act done, or an omission made, in good faith in the exercise or purported exercise of a power or the performance or purported performance of a function under this Act or the Regulations. (3) Subsection (2) does not affect any liability that the Territory would, but for that subsection, have for an act or omission. (3A) Subsections (2) and (3) have effect subject to Part VIIA of the Police Administration Act 1978 to the extent it relates to the civil liability of a person who is or has been a police officer. (4) The Territory is liable for the actions of a person assisting a police officer, in relation to anything done, or omitted to be done, in good faith by the person. (5) The Territory is not to be held liable merely because: (a) there was an irregularity or defect in the giving of an authorisation; or (b) the person who gave an authorisation did not have jurisdiction to do so. Division 3 Offences 36 Offence of failing to comply with direction A person to whom a direction is given under this Act must not, without reasonable excuse, contravene or fail to comply with the direction. Maximum penalty: 200 penalty units or imprisonment for 12 months. -- 91 of 104 -- Part 5 Duties under this Act Terrorism (Emergency Powers) Act 2003 86 37 Offence of obstructing or hindering exercise of powers A person must not, without reasonable excuse, obstruct or hinder a police officer, or a person assisting a police officer, in the exercise of a power under this Act. Maximum penalty: 200 penalty units or imprisonment for 12 months. 38 Offence of resisting or inciting resistance to exercise of powers A person must not: (a) resist a police officer in the execution of the officer's duty under this Act or resist a person assisting a police officer in the execution of the officer's duty under this Act; or (b) aid, or incite, another person to resist a police officer in the execution of the officer's duty under this Act or to resist a person assisting a police officer in the execution of the officer's duty under this Act. Maximum penalty: 200 penalty units or imprisonment for 12 months. Part 5 Duties under this Act 39 Police officer to give details to certain persons A police officer must, before or at the time of exercising a power under this Act, or as soon as is reasonably practicable after exercising the power, give the person subject to the exercise of the power the reason for the exercise of the power and, if requested by the person, the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform); (b) the police officer's name and place of duty. 40 Conditions of search of persons The Schedule applies to the search of a person carried out, or authorised to be carried out, by a police officer under this Act. -- 92 of 104 -- Part 6 Miscellaneous Terrorism (Emergency Powers) Act 2003 87 41 Return of seized things (1) A police officer who seizes a thing under this Act must return it to its owner, or to the person who had lawful possession of the thing when it was seized, if the officer is satisfied that: (a) the thing does not need to be retained as evidence; (b) it is lawful for the person to have possession of the thing; (c) the thing does not pose a risk to public health or public safety; and (d) the thing has not been destroyed under this Act. (2) A court may, on the application of a person, order that a thing that has been seized under this Act and that has not been destroyed: (a) be delivered to the person who appears to be lawfully entitled to the thing; or (b) if the person who is lawfully entitled to the thing cannot be determined – be dealt with as the court thinks fit. 42 Acquisition If, but for this section, property is acquired under this Act otherwise than on just terms: (a) the person from whom the property is acquired is entitled to receive just compensation for the acquisition; and (b) a court of competent jurisdiction may determine the amount of the compensation or make the orders necessary to ensure that the compensation is on just terms. Part 6 Miscellaneous 43 Relationship with other Acts (1) Other Acts do not limit any powers, or prevent a police officer from exercising any powers, that the police officer has under this Act. (2) This Act does not limit any powers, or prevent a police officer from exercising any powers, that the police officer has under another Act. -- 93 of 104 -- Part 6 Miscellaneous Terrorism (Emergency Powers) Act 2003 88 44 Onus of proof The onus of proof of reasonable excuse in proceedings for an offence against this Act or the Regulations lies on the person accused of the offence. 45 Authorisation may constitute reasonable grounds for suspicion (1) For the purposes of this Act, it is grounds for a police officer to have a reasonable suspicion that: (a) a terrorist act has occurred if, at the time the suspicion is held, there is in force an authorisation given on the grounds that a terrorist act has occurred; and (b) a terrorist act is likely to occur in the near future if, at the time the suspicion is held, there is in force an authorisation given on the grounds that a terrorist act is likely to occur in the future. (2) Subsection (1) does not limit the grounds on which a reasonable suspicion may be held for the purposes of this Act. 46 Regulations (1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Regulations may create offences punishable by a maximum penalty of not more than 100 penalty units. 47 Review of Act The Police Minister must, within 5 years after the commencement of the Terrorism (Emergency Powers) Amendment Act 2006: (a) review the operation of this Act; and (b) table a copy of the report of the review in the Legislative Assembly. -- 94 of 104 -- Schedule Terrorism (Emergency Powers) Act 2003 89 Schedule section 40 1. Definitions In this Schedule: electronic metal detection device means an electronic device that is capable of detecting the presence of metallic objects. frisk search means: (a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing; and (b) an examination of a thing worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to the thing. ordinary search means a search of a person, or of things in the possession of a person, that may include: (a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and (b) an examination of those things. strip search means a search of a person, or of things in the possession of a person, that may include: (a) requiring the person to remove all of his or her clothes; and (b) an examination of the person's body (but not of the person's body cavities) and of those clothes. 2. Frisk searches and ordinary searches (1) A police officer who is authorised to search a person may carry out a frisk search or an ordinary search of the person for any purpose for which the search may be conducted. -- 95 of 104 -- Schedule Terrorism (Emergency Powers) Act 2003 90 (2) In conducting a frisk search, a police officer may, if the police officer has asked the person to remove a coat or jacket, treat the person's outer clothing as being the person's outer clothing after the coat or jacket has been removed. 3. Strip searches A police officer who is authorised to search a person may conduct a strip search of the person: (a) if the person is suspected of being the target of an authorisation; and (b) if the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out. 4. Preservation of privacy and dignity during search (1) A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this clause. (2) The police officer must inform the person to be searched whether the person will be required to remove clothing during the search and why it is necessary to remove the clothing. (3) The police officer must ask for the person's co-operation. (4) The police officer must conduct the search: (a) in a way that provides reasonable privacy for the person searched; and (b) as quickly as is reasonably practicable. (5) The police officer must conduct the least invasive kind of search practicable in the circumstances. (6) The police officer must not search: (a) the genital area of the person searched; or (b) the breasts of a female or of a transgender person who identifies as a female, unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search. -- 96 of 104 -- Schedule Terrorism (Emergency Powers) Act 2003 91 (7) Only a police officer of the same sex as the person to be searched or a person of the same sex under the direction of the police officer may conduct a search of the person. (8) A search of a person is not to be carried out while the person is being questioned. (9) If questioning has not been completed before a search is carried out, questioning is to be suspended while the search is carried out. (10) A person is to be allowed to dress as soon as a search is finished. (11) If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing. (12) In this clause: questioning of a person includes carrying out an investigation in which the person participates. transgender person means a person: (a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex; (b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, whether or not the person is a recognised transgender person, and includes a reference to a person who is thought of as a transgender person, whether or not the person is, or was, in fact a transgender person. 5. Rules for conduct of strip searches (1) A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances: (a) conduct the strip search in a private area; (b) ensure that the strip search is not conducted in the presence or view of a person who is of the opposite sex to the person being searched; and -- 97 of 104 -- Schedule Terrorism (Emergency Powers) Act 2003 92 (c) except as provided by this clause – ensure that the strip search is not conducted in the presence or view of a person whose presence is not necessary for the purposes of the search. (2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. (3) A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, is, unless it is not reasonably practicable in the circumstances, to be conducted in the presence of: (a) a parent or guardian of the person being searched; or (b) if it is not acceptable to the child or person to comply with paragraph (a) – in the presence of another person (other than a police officer) who is capable of representing the interests of the child or person and who is, or appears to be, acceptable to the child or person. (4) A strip search is not to involve a search of a person's body cavities or an examination of the body by touch. (5) A strip search is not to involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (6) A strip search is not to involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (7) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present. (8) This clause is in addition to the other requirements of this Act relating to searches. (9) In this clause: impaired intellectual functioning means: (a) total or partial loss of a person's mental functions; (b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or -- 98 of 104 -- Schedule Terrorism (Emergency Powers) Act 2003 93 (c) a disorder, illness or disease that: (i) affects a person's thought processes, perceptions of reality, emotions or judgment; or (ii) results in disturbed behaviour. 6. No strip searches of children under 10 years of age A strip search is not to be conducted on a person who is under the age of 10 years. -- 99 of 104 -- ENDNOTES Terrorism (Emergency Powers) Act 2003 94 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Terrorism (Emergency Powers) Act 2003 (Act No. 22, 2003) Assent date 29 May 2003 Commenced 2 July 2003 (Gaz G26, 2 July 2003, p 2) Police Administration Amendment (Powers and Liability) Act 2005 (Act No. 11, 2005) Assent date 17 March 2005 Commenced 20 April 2005 (Gaz G16, 20 April 2005, p 5) Statute Law Revision Act 2005 (Act No. 44, 2005) Assent date 14 December 2005 Commenced 14 December 2005 Terrorism (Emergency Powers) Amendment Act 2006 (Act No. 17, 2006) Assent date 18 May 2006 Commenced 28 June 2006 (Gaz G26, 28 June 2006, p 3) Statute Law Revision Act 2007 (Act No. 4, 2007) Assent date 8 March 2007 Commenced 8 March 2007 Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007) Assent date 17 May 2007 Commenced s 10: 1 July 2007; rem: 17 May 2007 (s 2 and Gaz G26, 27 June 2007, p 3) Statute Law Revision Act 2009 (Act No. 25, 2009) Assent date 1 September 2009 Commenced 16 September 2009 (Gaz G37, 16 September 2009, p 3) -- 100 of 104 -- ENDNOTES Terrorism (Emergency Powers) Act 2003 95 Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010) Assent date 18 November 2010 Commenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations Act 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011, p 4) Public and Environmental Health Act 2011 (Act No. 7, 2011) Assent date 16 March 2011 Commenced 1 July 2011 (Gaz S28, 3 June 2011) Penalties Amendment (Chief Minister's and Other Portfolios) Act 2011 (Act No. 27, 2011) Assent date 31 August 2011 Commenced 21 September 2011 (Gaz G38, 21 September 2011, p 5) Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012 (Act No. 23, 2012) Assent date 21 November 2012 Commenced 1 January 2013 (Gaz G51, 19 December 2012, p 4) Advance Personal Planning (Consequential Amendments) Act 2013 (Act No. 36, 2013) Assent date 19 December 2013 Commenced pt 3: 5 February 2014 (Gaz G5, 5 February 2014, p 2); rem: 17 March 2014 (Gaz S14, 17 March 2014) Correctional Services (Related and Consequential Amendments) Act 2014 (Act No. 27, 2014) Assent date 4 September 2014 Commenced 9 September 2014 (Gaz S80, 9 September 2014, p 2) Statute Law Revision Act 2014 (Act No. 38, 2014) Assent date 13 November 2014 Commenced 13 November 2014 Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Terrorism (Emergency Powers) Amendment Act 2016 (Act No. 26, 2016) Assent date 29 June 2016 Commenced 29 June 2016 Youth Justice Legislation Amendment Act 2017 (Act No. 19, 2017) Assent date 30 October 2017 Commenced 5 January 2018 (Gaz G51, 20 December 2017, p 4) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 4, 21A, 21ZB, 21ZC, 21ZL, 33 and 35. -- 101 of 104 -- ENDNOTES Terrorism (Emergency Powers) Act 2003 96 4 LIST OF AMENDMENTS lt sub No. 17, 2006, s 4 s 4 amd No. 17, 2006, s 5; No. 7, 2011, s 140; No. 27, 2014, s 57; No. 19, 2017, s 39 s 4A ins No. 17, 2006, s 6 s 5 amd No. 17, 2006, s 7 s 6 sub No. 17, 2006, s 8 s 7 amd No. 17, 2006, s 9 s 9 amd No. 17, 2006, s 10 s 12A ins No. 17, 2006, s 11 s 16 amd No. 27, 2011, s 4 s 19 amd No. 17, 2006, s 12 s 20 amd No. 17, 2006, s 13 pt 2A hdg ins No. 17, 2006, s 14 pt 2A div 1 hdg ins No. 17, 2006, s 14 s 20A ins No. 17, 2006, s 14 pt 2A div 2 hdg ins No. 17, 2006, s 14 ss 20B – 20J ins No. 17, 2006, s 14 pt 2A div 3 hdg ins No. 17, 2006, s 14 s 20K ins No. 17, 2006, s 14 s 20L ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 ss 20M – 20N ins No. 17, 2006, s 14 pt 2A div 4 hdg ins No. 17, 2006, s 14 ss 20P – 20R ins No. 17, 2006, s 14 ss 20S – 20T ins No. 17, 2006, s 14 amd No. 8, 2016, s 45 pt 2B hdg ins No. 17, 2006, s 14 pt 2B div 1 hdg ins No. 17, 2006, s 14 s 21 ins No. 17, 2006, s 14 s 21A ins No. 17, 2006, s 14 amd No. 7, 2007, s 16; No. 8, 2016, s 45 s 21B ins No. 17, 2006, s 14 s 21C ins No. 17, 2006, s 14 amd No. 8, 2016, s 45 s 21D ins No. 17, 2006, s 14 pt 2B div 2 hdg ins No. 17, 2006, s 14 ss 21E – 21HT ins No. 17, 2006, s 14 s 21J ins No. 17, 2006, s 14 amd No. 27, 2014, s 57; No. 19, 2017, s 39 ss 21K – 21R ins No. 17, 2006, s 14 ss 21S – 21T ins No. 17, 2006, s 14 amd No. 27, 2014, s 57; No. 19, 2017, s 39 s 21U ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 pt 2B div 3 hdg ins No. 17, 2006, s 14 ss 21V – 21Y ins No. 17, 2006, s 14 s 21Z ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 -- 102 of 104 -- ENDNOTES Terrorism (Emergency Powers) Act 2003 97 ss 21ZA – 21ZB ins No. 17, 2006, s 14 s 21ZC ins No. 17, 2006, s 14 amd No. 4, 2007, s 7; No. 27, 2014, s 57 pt 2B div 4 hdg ins No. 17, 2006, s 14 s 21ZD ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 ss 21ZE – 21ZF ins No. 17, 2006, s 14 pt 2B div 5 hdg ins No. 17, 2006, s 14 s 21ZG ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 s 21ZH ins No. 17, 2006, s 14 s 21ZI ins No. 17, 2006, s 14 amd No. 38, 2014, s 2 ss 21ZJ – 21ZK ins No. 17, 2006, s 14 s 21ZL ins No. 17, 2006, s 14 amd No. 27, 2011, s 4; No. 36, 2013, s 139 ss 21ZM – 21ZN ins No. 17, 2006, s 14 s 21ZO – 21ZP ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 s 21ZQ ins No. 17, 2006, s 14 amd No. 27, 2011, s 4; No. 8, 2016, s 45 s 21ZR ins No. 17, 2006, s 14 amd No. 27, 2011, s 4 pt 2B div 6 hdg ins No. 17, 2006, s 14 s 21ZS ins No. 17, 2006, s 14 amd No. 4, 2007, s 7; No. 27, 2014, s 57 s 21ZT ins No. 17, 2006, s 14 amd No. 23, 2012, s 32 ss 21ZU – 21ZV ins No. 17, 2006, s 14 amd No. 26, 2016, s 3 s 21 renum No. 17, 2006, s 15 s 22 sub No. 17, 2006, s 16 s 22A ins No. 17, 2006, s 16 amd No. 27, 2011, s 4 pt 3A hdg ins No. 17, 2006, s 17 pt 3A div 1 hdg ins No. 17, 2006, s 17 s 27A ins No. 17, 2006, s 17 pt 3A div 2 hdg ins No. 17, 2006, s 17 ss 27B – 27C ins No. 17, 2006, s 17 pt 3A div 3 hdg ins No. 17, 2006, s 17 ss 27D – 27K ins No. 17, 2006, s 17 amd No. 8, 2016, s 45 s 27L ins No. 17, 2006, s 17 pt 3A div 4 hdg ins No. 17, 2006, s 17 -- 103 of 104 -- ENDNOTES Terrorism (Emergency Powers) Act 2003 98 pt 3A div 4 subdiv 1 hdg ins No. 17, 2006, s 17 s 27M ins No. 17, 2006, s 17 pt 3A div 4 subdiv 2 hdg ins No. 17, 2006, s 17 ss 27N – 27P ins No. 17, 2006, s 17 s 27Q ins No. 17, 2006, s 17 amd No. 8, 2016, s 45 s 27R ins No. 17, 2006, s 17 pt 3A div 4 subdiv 3 hdg ins No. 17, 2006, s 17 s 27S ins No. 17, 2006, s 17 s 27T ins No. 17, 2006, s 17 amd No. 8, 2016, s 45 pt 3A div 4 subdiv 4 hdg ins No. 17, 2006, s 17 s 27U ins No. 17, 2006, s 17 amd No. 25, 2009, s 9; No. 8, 2016, s 45 s 27V ins No. 17, 2006, s 17 pt 3A div 5 hdg ins No. 17, 2006, s 17 s 27W ins No. 17, 2006, s 17 amd No. 8, 2016, s 45 s 27X ins No. 17, 2006, s 17 amd No. 40, 2010, s 118; No. 27, 2011, s 4; No. 8, 2016, s 45 s 27Y ins No. 17, 2006, s 17 amd No. 27, 2011, s 4 s 27Z ins No. 17, 2006, s 17 ss 30 – 31 amd No. 27, 2011, s 4 s 35 amd No. 11, 2005, s 26; No. 44, 2005, s 35 ss 36 – 38 amd No. 27, 2011, s 4 s 45 amd No. 17, 2006, s 18 s 46 amd No. 27, 2011, s 4 s 47 sub No. 17, 2006, s 19 -- 104 of 104 --