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Control orders & Preventative Detention Orders

According to a report to the Australian Government for the year ending 30 June 2009 being the Annual Report required by ss.104.29 and 105.47 of the Criminal Code, no Control Orders or Preventative Detention Orders were made in the year 2008-2009.

Whilst significant public concern was expressed at the time the raft of counter terrorism legislation was enacted, it appears that both Federal and State police have simply continued to rely upon other police powers of arrest of surveillance.

In any event the High Court has declared valid the power of the Commonwealth of Australia to enact legislation which confers power to make control orders and in particular interim control orders (see Thomas v Mowbray [2007] HCA 33). 

It is appropriate to set out in brief terms the nature and extent of control orders and preventative detention orders even though they appear to be rarely used.

Control Orders

A control order is defined in Schedule 5 of the Criminal Code to mean “an interim control order or a confirmed control order”.

An interim control order is usually the first step in the process.

An interim control order is made an issuing Court.  An issuing Court includes the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court of Australia.  An interim control order can be made by the issuing Court if it is satisfied on the “balance of probabilities” that the making of the order would substantially assist in preventing a terrorist act or that the person has provided training to or received training from a list of terrorist organisations.  The issuing Court also has to be satisfied simply on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (s.104.4 of the Criminal Code).  The restrictions imposed upon a citizen under an interim control order can be very broad (see for example Jabbour v Thomas [2006] FMCA 1286).  The interim control order does not come into force until it has been personally served on the individual.  Once served then the interim control order may be confirmed, declared void or revoked.  The individual has the right to seek that the order either be revoked, varied or declared void.  However, it is offence to fail to meet the obligations set out in a schedule to any interim control order and the penalty for contravening any of the obligations is a maximum period of imprisonment of 5 years (see sub-s.104.27 and sub-s.101 of the Criminal Code).

The issuing Court in making an interim control order in the absence of the individual is able to make the order if satisfied on the balance of probabilities based upon information provided by a Senior Member of the Australian Federal Police and information received and considered by the issuing Court in the absence of the individual.

The restrictions imposed upon an individual referred to under the Criminal Code as “obligations” may be quite onerous.  They can include reporting requirements to police stations, the provision of fingerprints, restrictions on leaving Australia, prohibition from communicating or associating with a number of individuals including those individuals known to be a member of the listed/specific terrorist organisation.  The individual may be restricted in terms of accessing a wide range of telecommunications or other technology.

An update of the list of terrorist organisations is referred to further in this brief overview.

Preventative Detention Orders

There are initial and preventative detention orders which can be made under the law.

Though rarely used the preventative detention order whether initial or continued allow for an individual to be taken into custody and detained for a short period of time in order to prevent an imminent terrorist attack occurring or preserve evidence of or relating to a recent terrorist act (sub-s.105.1 of the Criminal Code).

For the purpose of continued preventative detention orders a discretion is given to the Minister to appoint an issuing Authority.  That Authority can be a person who is a Judge of a State or a Territory Supreme Court, a person who is a Judge, a person who is a Federal Magistrate or a person who has served as a Judge in one or more superior Courts for a period of 5 years and no longer holds a Commission as a Judge of a Superior Court or a person who holds an appointment to the Administrative Appeals Tribunal as a President or Deputy-President and is enrolled as a legal practitioner of the Federal Court or the Supreme Court of a State or Territory and has been enrolled for at least 5 years. 

It is most important to note that the person who the Minister appoints must consent to being appointed and at the time when a preventative detention order is made that consent should be in force.  

An issuing Authority goes well beyond those judicial officers who currently hold a judicial appointment in a State or Territory or persons who are a Judge or Federal Magistrate. 

Presidents of the Administrative Appeals Tribunal are Federal Court Judges the Deputy Presidents of that Tribunal do not hold judicial office and not all the current appointments are tenured in the same manner as Judges.  The requirement of consent effectively means that the person self nominates as an issuing Authority though the starting point will be with the Minister and accordingly the number of issuing Authority persons may be very narrow.  The issuing Authority acts in a personal role rather than as an independent judicial officer of a recognised Court.

The issuing Authority for a preventative detention order has very wide powers under the Criminal Code.  They include the making of initial preventative detention order issued by the Australian Federal Police which can operate to hold a person’s preventative detention for up to 24 hours.  That period of time can be extended later to up to 48 hours.

Whilst detained, limits can be placed on an individual as to whom an individual may speak to during detention.  This may include the individual’s lawyer or family.  All communications can be monitored and if necessary an interpreter will be present so that police can understand the communication.  A limit is placed upon the information which can be provided and a penalty of prison up to 5 years applies in the event that the information goes beyond simply telling family that the individual is not contactable and otherwise safe (see sub-s.105.37 of the Criminal Code).

A preventative detention order cannot be made in relation to a person who is under 16 years of age.  Persons who are detained under a preventative detention order may be given special assistance pursuant to sub-s.105.5A of the Criminal Code to be assisted by an interpreter and be informed of the extent of an order for any extension or further extension of the order and the persons rights into relation to the order if the police officer detains the person under a preventative detention order has “reasonable grounds to believe the person is unable because inadequate knowledge of the English language or a disability to communicate with reasonable fluency in that language”.  The Criminal Code provides that the individual has the right to consult a lawyer (see sub-s.105.37).

Even when applying for an initial Preventative Detention Order the police officer can claim that the information provided to the issuing Authority is likely to prejudice national security and the information is therefore not included in the summary to be viewed by the individual who happens to be the subject of the initial detention order.

Any person taken into custody or detained under the preventative detention order has to be treated with humanity and respect for human dignity and must not be subject to cruel, inhumane or degrading treatment by anyone exercising authority under the order (see sub-s.105.33 of the Criminal Code).

Presumably the restrictions on contact with family friends or lawyer is not regarded as inhumane treatment or in any way a breach of the obligation of a person exercising authority to treat the person detained with humanity, respect or otherwise not subject the person to cruel, inhuman or degrading treatment.

Hence, although the right to a lawyer can be found in the Criminal Code that right is subject to monitoring by the police (see sub-s.105.38 of the Criminal Code).

Once a person is held under a preventative detention order there is no provision for review of that decision.