Terrorism (Community Protection) Act 2003FILE/03-7a038.docx · Web viewOCPC Victoria, Word 2007, Template Release Microsoft Word. Part 1—Preliminary. Terrorism (Community Protection)

Version No. 038

Terrorism (Community Protection) Act 2003No. 7 of 2003

Version incorporating amendments as at1 March 2019

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 23 Definitions 24 What is a terrorist act? 114A Extraterritoriality of terrorist act no barrier 134B Providing documents or information facilitating

terrorist acts 13

Part 1A—Public Interest Monitor 15

Division 1—Role in relation to order and warrant applications 15

4C Application of this Division 154D Information to be given to Public Interest Monitor 154E Full disclosure to Public Interest Monitor 164F Role of Public Interest Monitor 16

Division 2—Role in relation to preventative police detention 17

4G Authorised police officer to notify Public Interest Monitor about certain things relating to police detention decisions 17

4H Nominated senior police officer to notify Public Interest Monitor about certain matters relating to police detention decisions 19

4I Full disclosure to a Public Interest Monitor 194J Secrecy obligations do not apply 204K Role of Public Interest Monitor in relation to periodic

reviews 204L Public Interest Monitor to be given written record of

police detention decision 224M Public Interest Monitor to be given access to

documents related to police detention decisions and periodic reviews 22

4N Return of documents 22

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Part 1B—Role of the Commission for Children and Young People 24

4O Functions of Commission for Children and Young People in relation to detention of children 24

4P Access to children in detention for the purpose of monitoring their treatment 25

4Q Access to documents and information 254R Assistance to be given to Commission for Children

and Young People for performance of its functions and exercise of powers 26

Part 2—Covert search warrants 27

5 Jurisdiction 276 Covert search warrants 277 Application for warrant 287A Notice to Public Interest Monitor of application 298 Determining the application 299 What does a warrant authorise? 3010 Warrant may be granted by telephone 3211 Report to the Victorian Inspectorate 3412 No publication of report of proceeding 35

Part 2AA—Preventative police detention 36

Division 1—Preliminary 36

13AA Object of Part 36

Division 2—Police detention decisions 36

13AB What is a police detention decision? 3613AC Authorised police officer may make police detention

decision 3713AD Nature of police detention decisions in relation to

children—detention in youth justice facilities 3813AE Recording of police detention decision 3913AF When a police detention decision starts and ceases to

have effect 4113AG Detained persons under 14 years to be released without

delay 41

Division 3—Carrying out police detention decisions 42

13AH Power to detain person under authority of police detention decision 42

13AI Person must be informed of detention when taken into custody 43

13AJ Endorsement of record with date and time person taken into custody or detained 43

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13AK Summary explaining police detention decision to be given to detained person 43

13AL Summary explaining police detention decision to be given to detained person's lawyer 44

13AM Compliance with section 13AK or 13AL not required if impractical because of actions of detained person 44

13AN Lawfulness of person's detention not affected by non-compliance with section 13AK or 13AL 45

13AO Requirement to provide name etc. 4513AP Power to enter premises for purpose of searching for,

or taking into custody, a person 4613AQ Power to conduct search of a person taken into custody

under this Part 4713AR Detention of children in a youth justice facility 4813AS Application of Children, Youth and Families Act 2005

to children detained under this Part in a youth justice facility 50

13AT Transfer of detained child into legal custody of Chief Commissioner for questioning 51

13AU Return of child to youth justice facility at end of questioning 52

13AV Effect on period of detention of transfers of custody of children for questioning purposes 52

Division 4—Informing person detained about police detention decision 53

13AW Effect of police detention decision to be explained to person detained 53

13AX Compliance with obligations to inform 55

Division 5—Treatment of person detained 56

13AY Humane treatment of person being detained 5613AZ Detention of children 5613AZA Restrictions on contact with other people 5713AZB Special assistance for person with inadequate

knowledge of English language or disability 58

Division 6—Questioning 59

Subdivision 1—Authority to question 59

13AZC Questioning during detention 5913AZD Questioning to be deferred to allow for interpreter 6113AZE Questioning to be deferred to enable communication

with lawyer or consular office 6113AZF Role of lawyers during questioning 6113AZG Questioning of children 62

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13AZH Communication with lawyers, consular officials, parents, guardians or independent person may be restricted 63

Subdivision 2—Recording of questioning 64

13AZI Definitions 6413AZJ Digital recordings 6713AZK Recording of questioning 6713AZL Person questioned to be given copy of recordings 6813AZM Evidence of representations 6913AZN Offences in relation to recordings 6913AZO Court may give directions in relation to a recording 7213AZP Retention of copy of recording 72

Division 7—Contact with other people 74

13AZQ Contacting family members etc. 7413AZR Contacting the Ombudsman or the IBAC 7613AZS Contacting the Commission for Children and

Young People 7613AZT Contact with consular office 7613AZU Contact with special counsel 7613AZV Contacting lawyer 7713AZW Police assistance in choosing a lawyer in certain cases 7813AZX Monitoring contact under section 13AZQ with family

members etc. 8013AZY Monitoring contact under section 13AZV with lawyers 8113AZZ Special contact rules for person who is a child or

incapable of managing own affairs 8213AZZA Nominated senior police officer must inform parent or

guardian not to disclose certain information 8513AZZB Contact prohibited in certain cases 86

Division 8—Taking and using identification material 87

13AZZC References to appropriate person in this Division 8713AZZD Taking identification material 8713AZZE Use of identification material 9013AZZF Destruction of identification material 90

Division 9—End of and release from detention 91

13AZZG When does detention under this Part end? 9113AZZH Process for release of person from detention by police

officer 9213AZZI Warrant under section 34D of the Australian Security

Intelligence Organisation Act 1979 of the Commonwealth 93

4

Division 10—Oversight by nominated senior police officers 94

13AZZJ Nominated senior police officers 9413AZZK Role of nominated senior police officer 9413AZZL Representations to a nominated senior police officer 9513AZZM Integrity and children oversight bodies to be notified

of police detention decision and person being taken into custody 96

13AZZN Periodic review of detention under this Part 96

Division 11—Restrictions on disclosure of information relating to detention 98

13AZZO Definitions 9813AZZP Detainees prohibited from disclosing certain

information 9913AZZQ Lawyers prohibited from disclosing certain

information 9913AZZR Parents or guardians prohibited from disclosing certain

information 10113AZZS Parent or guardian of detainee prohibited from

disclosing certain information to another parent or guardian 104

13AZZT Nominated senior police officer may inform parent or guardian they cannot contact other parent or guardian in certain cases 105

13AZZU Interpreters prohibited from disclosing certain information 105

13AZZV Disclosure recipient prohibited from disclosing certain information they receive 106

13AZZW Monitors of contact between detainee and lawyer prohibited from disclosing certain information 107

Division 12—Miscellaneous 107

13AZZX Offences of contravening safeguards 10713AZZY Police detaining person under a police detention

decision 10813AZZZ Ombudsman etc. functions and powers not affected 10813AZZZA Law relating to legal professional privilege and client

legal privilege not affected 10913AZZZB Report to the Victorian Inspectorate 10913AZZZC Person's detention does not prevent provision of

medical, dental, psychiatric, physiological or pharmaceutical services 110

Part 2A—Preventative detention orders 111


13A Object of Part 111

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Division 2—Preventative detention orders 112

13C Application for preventative detention order 11213D Form and content of application 11313DA Public Interest Monitor to be notified of application 11713E Preventative detention orders 11813F Nature of preventative detention order 12313G Duration of preventative detention orders 12813H When order starts and ceases to have effect 12913I Extension of preventative detention order 13013J No preventative detention order in relation to person

under 14 years of age 13313JA Special assistance for person with inadequate

knowledge of English language or disability 13313K Restrictions on multiple preventative detention orders 13413KA Basis for applying for, and making, prohibited contact

order 13613L Prohibited contact order (person in relation to whom

preventative detention order is being sought) 13713M Prohibited contact order (person in relation to whom

preventative detention order is already in force) 13913N Application by detainee for revocation or variation of

preventative detention order or prohibited contact order 141

13O Application by police for revocation or variation of preventative detention order or prohibited contact order 143

Division 3—Carrying out preventative detention orders 147

13P Power to detain person under preventative detention order 147

13Q Endorsement of order with date and time person taken into custody or detained 149

13R Requirement to provide name etc. 15013S Power to enter premises 15113T Power to conduct search 15213U Warrant under section 34D of the Australian Security

Intelligence Organisation Act 1979 of the Commonwealth 153

13V Release of person from preventative detention 15413W Arrangement for detainee to be held in prison 15713WA Arrangement for detainee to be held in youth justice

facility 16213WB Transfer of detained person into legal custody of Chief

Commissioner for questioning 16613WC Return of person to place of detention at end of

questioning 167

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13WD Effect on period of detention of transfers of custody of persons for questioning purposes 168

Division 4—Informing person detained about preventative detention order 168

13X Effect of preventative detention order to be explained to person detained 168

13Y Person being detained to be informed of extension of preventative detention order 172

13Z Compliance with obligations to inform 17213ZA Copy of preventative detention order 173

Division 5—Treatment of person detained 175

13ZB Humane treatment of person being detained 17513ZBA Detention of persons under 18 17613ZC Restriction on contact with other people 17713ZD Contacting family members etc. 17913ZE Contacting Ombudsman etc. 18113ZF Contacting lawyer 18113ZFA Contacting the Commission for Children and Young

People 18513ZFB Contact with consular office 18513ZFC Contact with special counsel 18613ZG Monitoring contact under section 13ZD or 13ZF 18613ZH Special contact rules for person under 18 or incapable

of managing own affairs 18713ZI Entitlement to contact subject to prohibited contact

order 19113ZJ Disclosure offences 19113ZK Questioning of person prohibited while person is

detained if Court orders 20013ZL Taking identification material 20213ZM Use of identification material 20513ZN Offences of contravening safeguards 206

Division 5A—Questioning 207

Subdivision 1—Preliminary 207

13ZNA Application 207

Subdivision 2—Authority to question 207

13ZNB Questioning during detention 20713ZNC Questioning to be deferred to allow for interpreter 20913ZND Questioning to be deferred to enable communication

with lawyer or consular office 21013ZNE Role of lawyers during questioning 21013ZNF Questioning of children 211

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13ZNG Communication with lawyers, consular officials, parents, guardians or independent person may be restricted 212

Subdivision 3—Recording of questioning 213

13ZNH Definitions 21313ZNI Digital recordings 21613ZNJ Recording of questioning 21613ZNK Person questioned to be given copy of recordings 21713ZNL Evidence of representations 21713ZNM Offences in relation to recordings 21813ZNN Court may give directions in relation to a recording 22113ZNO Retention of copy of recording 221

Division 6—Miscellaneous 223

13ZO Standard of proof 22313ZP Nature of proceedings 22313ZQ Police detaining person under a preventative detention

order 22313ZS Ombudsman etc. functions and powers not affected 22413ZT Law relating to legal professional privilege and client

legal privilege not affected 224

Part 3—Police powers to detain and decontaminate 226

14 Interpretation 22615 Definitions 22616 Authorisation 22717 How may an authorisation be given? 22718 What is authorised? 22818A Requests for communication and medical treatment by

persons detained 23019 When does an authorisation lapse? 23120 Extended authorisation 23121 Use of reasonable and necessary force 232

Part 3A—Special police powers 233


21A Definitions 23321AB Deputy Commissioners may exercise powers of Chief

Commissioner 234

Division 2—Authorisation to exercise special powers 234

21B Authorisation of special powers to protect persons attending events from a terrorist act 234

21C Extension of authorisation under section 21B 238

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21D Authorisation of special powers to prevent, or reduce the impact of, a terrorist act 239

21E Authorisation of special powers relating to the investigation of, or recovery from, a terrorist act 242

21F Authorisation of special powers to protect essential services from a terrorist act 245

21G Persons, vehicles or areas targeted by authorisation 24721H How authorisation may be given 24721I Duration of authorisation 24821IA Variation of interim authorisation 25021IB Premier may delegate power to approve interim

authorisation 25021J Interim authorisations not open to challenge 25021K Exercise of special powers by police officers and

protective services officers 25121L Power to give directions to public entities 252

Division 3—Powers 253

21N Purposes for which special powers may be exercised 25321O Power to obtain disclosure of identity 25321P Power to search persons 25421Q Power to search vehicles 25621R Power to move vehicles 25721S Power to enter and search premises 25821SA Powers in respect of premises within area that is the

target of an authorisation 25921SB Powers in respect of things within area that is the

target of an authorisation 26021SC Compensation for loss or damage 26121T Cordon around target area 26221U Power to seize and detain things 26221V Use of force generally 26421W Offence to obstruct or hinder search or other powers 26421X Supplying police officer's or protective services

officer's details and other information 265

Part 4—Mandatory reporting about prescribed chemicals and other substances 266

22 Reporting about prescribed chemical or other substance 266

Part 5—Protection of counter-terrorism intelligence 268

Division 1—General protection in legal proceedings 268

23 General protection of counter-terrorism intelligence in legal proceedings 268

24 Court may inspect documents 270

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Division 2—Protection in applications under this Act 270

25 Application for counter-terrorism intelligence protection order 270

26 Public Interest Monitor to be notified of protection application 271

27 Determining protection application 27128 Court may dispense with hearing by consent 27229 Admissibility of protected counter-terrorism

intelligence 272

Division 3—Procedural requirements in protection applications and substantive applications involving protected counter-terrorism intelligence 273

30 Application of Division 27331 Applications to be heard in closed court unless

otherwise ordered 27332 Appointment of special counsel 27533 Role of special counsel 27634 Adjournment to allow special counsel to communicate

with subject 279

Division 4—Offences 279

35 Offence to enter closed court 27936 Offence to publish report of hearing 28037 Disclosure, receipt or solicitation of protected counter-

terrorism intelligence 28137A Disclosure, receipt or solicitation of other confidential

material 282

Part 6—Role of Victorian Inspectorate 285

37B Regular inspections of records of Victoria Police 28537C The Inspector and authorised Victorian Inspectorate

officers may perform or exercise inspection functions and powers 287

37D Reports to Parliament on investigations by Victorian Inspectorate 288

Part 6A—Annual reporting 291

37E Definitions 29137F Annual reports of Chief Commissioner 296

Part 7—General 298

38 Review 29839 Operation of Act 29839A Supreme Court—limitation of jurisdiction 29840 Regulations 298

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41 Expiry 300

Part 8—Transitional provisions 301

42 Justice Legislation Amendment (Terrorism) Act 2018—authorised police officers 301

Schedule 1—Conduct of personal searches under Part 3A 302

═══════════════

Endnotes 309

1 General information 309

2 Table of Amendments 311

3 Amendments Not in Operation 315

4 Explanatory details 317

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Version No. 038


Version incorporating amendments as at1 March 2019

The Parliament of Victoria enacts as follows:

Part 1—Preliminary1 Purposes

The main purposes of this Act are—

(a) to provide new powers and obligations relating to the prevention of, and the response to, terrorist acts; and

(b) to provide for the application for, and the grant and execution of, warrants authorising the covert search of premises by police officers; and

(baa) to provide for the making of police detention decisions; and

(ba) to provide for the application for, and the making of, preventative detention orders; and

(c) to provide for mandatory reporting of the theft or loss or discrepancies in quantity of certain chemicals and other substances; and

* * * * *

(e) to protect counter-terrorism methods from disclosure in legal proceedings.

1

S. 1(b) amended by No. 37/2014 s. 10(Sch. item 167.1).

S. 1(baa) inserted by No. 32/2018 s. 3.

S. 1(ba) inserted by No. 5/2006 s. 12.

S. 1(c) amended by No. 67/2004 s. 17(1)(a).

S. 1(d) repealed by No. 76/2014 s. 8(1).

2 Commencement

(1) This Part and Parts 3, 5, 7 and 8 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), Parts 2, 4 and 6 come into operation on a day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 1 July 2004, it comes into operation on that day.

3 Definitions

(1) In this Act—

AFP member has the same meaning as in Part 5.3 of the Criminal Code of the Commonwealth;

Assistant Commissioner means an Assistant Commissioner of Police for Victoria;

authorised police officer means a police officer appointed by the Chief Commissioner under subsection (2);

Chief Commissioner means the Chief Commissioner of Police for Victoria;

child means a person under 18 years of age;

2

S. 3 amended by No. 32/2018 s. 4(3) (ILA s. 39B(1)).

S. 3(1) def. of AFP member inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of Assistant Commis-sioner substituted by No. 30/2006 s. 4(1)(a).S. 3(1) def. of authorised police officer inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of Chief Commis-sioner substituted by No. 30/2006 s. 4(1)(b).S. 3(1) def. of child inserted by No. 32/2018 s. 4(1).

Commission for Children and Young People means the Commission established by section 6 of the Commission for Children and Young People Act 2012;

Commonwealth control order has the same meaning as control order has in Part 5.3 of the Criminal Code of the Commonwealth;

corresponding preventative detention law means—

(a) Division 105 of the Criminal Code of the Commonwealth; or

(b) a law of another State or of a Territory, or particular provisions of a law of another State or of a Territory, that—

(i) corresponds or correspond to this Part; or

(ii) is or are declared by the regulations to correspond to this Part;

* * * * *

counter-terrorism intelligence means any information, document or other thing relating to a terrorist act or suspected terrorist act in Victoria or elsewhere, the disclosure of which could reasonably be expected to—

3

S. 3(1) def. of Commission for Children and Young People inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of Common-wealth control order inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of correspond-ing preventative detention law inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of counter-terrorism information repealed by No. 32/2018 s. 64(b).

S. 3(1) def. of counter-terrorism intelligence inserted by No. 32/2018 s. 64(a).

(a) prejudice a criminal investigation, including by revealing intelligence-gathering methodologies, investigative techniques or technologies, or covert practices; or

(b) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or

(c) endanger a person's life or physical safety; or

(d) threaten significant damage to infrastructure or other property; or

(e) prejudice national security;

counter-terrorism intelligence protection order has the meaning given in section 25(1);

* * * * *

Deputy Commissioner means a Deputy Commissioner of Police for Victoria;

essential service has the same meaning as it has in section 74B of the Emergency Management Act 2013;

4

S. 3(1) def. of counter-terrorism intelligence protection order inserted by No. 32/2018 s. 64(a).

S. 3(1) def. of declared essential service repealed by No. 76/2014 s. 8(2)(a).

S. 3(1) def. of Deputy Commis-sioner substituted by No. 30/2006 s. 4(1)(c).S. 3(1) def. of essential service substituted by No. 76/2014 s. 8(2)(b).

family member of a person means—

(a) the person's spouse, de facto spouse or same-sex partner; 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;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011;

identification material, in relation to a person, means—

(a) samples taken from a part of the person's body from which a DNA profile may be derived; or

(b) prints of the person's hands, fingers, feet or toes; or

(c) recordings of the person's voice, or

(d) samples of the person's handwriting; or

(e) photographs (including video recordings other than video recordings made in the ordinary course of operation of a security camera fitted at,

5

S. 3(1) def. of family member inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of IBAC inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of IBAC Com-missioner inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of identification material inserted by No. 32/2018 s. 4(1).

or in the immediate vicinity of, a place where the person is being detained under Part 2AA or a preventative detention order) of the person;

interim preventative detention order means an interim preventative detention order made by the Supreme Court under section 13E;

lawyer means an Australian lawyer;

legal advice has the same meaning as in the Legal Aid Act 1978;

maximum police detention period means—

(a) for an adult—a period of 4 days;

(b) for a child—a period of 36 hours;Note

See also sections 13AH and 13G.

* * * * *

member of Victoria Police personnel has the same meaning as in the Victoria Police Act 2013;

6

S. 3(1) def. of interim preventative detention order inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of lawyer inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of legal advice inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of maximum police detention period inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of member of the force repealed by No. 37/2014 s. 10(Sch. item 167.2(b)).

S. 3(1) def. of member of Victoria Police personnel inserted by No. 32/2018 s. 72.

nominated senior police officer means a police officer appointed under section 13AZZJ;

* * * * *

periodic review means a review under section 13AZZN;

police detention decision—see section 13AC;

police gaol has the same meaning as in the Corrections Act 1986;

police officer has the same meaning as in the Victoria Police Act 2013;

premises includes—

(a) land; and

(b) a building or vehicle; and

(c) a part of a building or vehicle; and

(d) any place, whether built on or not;

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S. 3(1) def. of nominated senior police officer inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of operator repealed by No. 76/2014 s. 8(2)(a).

S. 3(1) def. of periodic review inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of police detention decision inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of police gaol inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 167.2(a)).

prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;

preventative detention order means an order made under section 13E, as varied under section 13N or 13O, and includes an interim preventative detention order;

prison has the same meaning as in the Corrections Act 1986;

prohibited contact order means an order made under section 13L or 13M, as varied under section 13N or 13O;

protected counter-terrorism intelligence means counter-terrorism intelligence that is the subject of a counter-terrorism intelligence protection order;

protection application means an application under section 25 for a counter-terrorism intelligence protection order;

protective services officer has the same meaning as in the Victoria Police Act 2013;

Public Interest Monitor means—

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S. 3(1) def. of prescribed authority inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of preventative detention order inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of prison inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of prohibited contact order inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of protected counter-terrorism intelligence inserted by No. 32/2018 s. 64(a).

S. 3(1) def. of protection application inserted by No. 32/2018 s. 64(a).

S. 3(1) def. of protective services officer inserted by No. 32/2018 s. 45.

S. 3(1) def. of Public Interest Monitor inserted by No. 32/2018 s. 4(1).

(a) the Principal Public Interest Monitor appointed under section 6 of the Public Interest Monitor Act 2011; or

(b) a Deputy Public Interest Monitor appointed under section 7 of the Public Interest Monitor Act 2011;

questioning limitation condition—see section 13E(2A)(b);

questioning prohibition condition—see section 13E(2A)(a);

seizable item means anything that—

(a) would present a danger to a person; or

(b) could be used to assist a person to escape from lawful custody; or

(c) could be used to contact another person or to operate a device remotely;

substantive application means an application for—

(a) a preventative detention order; or

(b) an extension of a preventative detention order; or

(c) a revocation or variation of a preventative detention order; or

(d) a prohibited contact order; or

(e) a revocation or variation of a prohibited contact order;

terrorist act has the meaning given by section 4;

9

S. 3(1) def. of questioning limitation condition inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of questioning prohibition condition inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of seizable item inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of substantive application inserted by No. 32/2018 s. 64(a).

thing includes any object, article or material;.

remote entry, in relation to a covert search warrant under Part 2, means accessing electronic equipment on premises named or described in the warrant from a location other than those premises;

vehicle includes a vessel and an aircraft;

Victoria Legal Aid means Victoria Legal Aid established under section 3 of the Legal Aid Act 1978;

Victoria Police has the same meaning as in the Victoria Police Act 2013;

Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011;

youth justice facility means a service established under section 478 of the Children, Youth and Families Act 2005.

(2) The Chief Commissioner may appoint, in writing, police officers, or a class or classes of police

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S. 3(1) def. of thing amended by No. 70/2015 s. 4(1).

S. 3(1) def. of remote entry inserted by No. 70/2015 s. 4(2).

S. 3(1) def. of vehicle inserted by No. 70/2015 s. 4(2).

S. 3(1) def. of Victoria Legal Aid inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of Victoria Police inserted by No. 70/2015 s. 4(2), amended by No. 32/2018 s. 4(2).

S. 3(1) def. of Victorian Inspectorate inserted by No. 32/2018 s. 4(1).

S. 3(1) def. of youth justice facility inserted by No. 32/2018 s. 4(1).

S. 3(2) inserted by No. 32/2018 s. 4(3).

officers, to be authorised police officers for the purpose of making—

(a) police detention decisions; and

(b) applications under sections 13C, 13I and 13M.

4 What is a terrorist act?

(1) In this Act, terrorist act means an action or threat of action where—

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(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

(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; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

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(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to—

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services by any entity (whether publicly or privately owned); or

(v) a system used for, or by, an essential public utility (whether publicly or privately owned); 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) is not intended—

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

* * * * *

4A Extraterritoriality of terrorist act no barrier

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S. 4(2)(f)(iv) amended by No. 30/2006 s. 4(2)(a).

S. 4(2)(f)(v) amended by No. 30/2006 s. 4(2)(b).

Note to s. 4 repealed by No. 30/2006 s. 4(3).

S. 4A inserted by No. 5/2006 s. 7.

To avoid doubt, functions, powers or duties 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 Victoria.

4B Providing documents or information facilitating terrorist acts

(1) A person commits an offence if—

(a) the person has possession or control of a document or information; and

(b) the person intentionally provides the document or information to another person; and

(c) the person does so with the intention of facilitating preparation for, the engagement of a person in or assistance in a terrorist act.

Penalty:Level 5 imprisonment (10 years maximum).

Note

An offence against subsection (1) is a category 2 offence under the Sentencing Act 1991. See subsection (2H) of section 5 of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

(3) If—

(a) an act or omission by a person is both an offence against subsection (1) and an offence against Part 5.3 of the Criminal Code of the Commonwealth; and

(b) the person has been punished for the offence under that Part—

13

S. 4B inserted by No. 30/2006 s. 5.

Note to s. 4B(1) inserted by No. 65/2016 s. 22.

the person is not liable to be punished for the offence against subsection (1).

14

Part 1A—Public Interest Monitor

Division 1—Role in relation to order and warrant applications

4C Application of this Division

This Division applies if a person is required under this Act to give notice to a Public Interest Monitor of an application for—

(a) a covert search warrant; or

(b) a preventative detention order; or

(c) an extension of a preventative detention order; or

(d) a variation or revocation of a preventative detention order; or

(e) a prohibited contact order; or

(f) a variation or revocation of a prohibited contact order; or

(g) a counter-terrorism intelligence protection order.

4D Information to be given to Public Interest Monitor

(1) If the application is made in writing, the applicant must give the Public Interest Monitor a copy of the application and any affidavit required to be

Pt 1A (Heading and ss 4C–4F) inserted by No. 72/2011 s. 44.

Pt 1A Div. 1 (Heading) inserted by No. 32/2018 s. 5.

S. 4C (Heading) amended by No. 32/2018 s. 6(1).

S. 4C inserted by No. 72/2011 s. 44, amended by No. 32/2018 s. 6(2).

S. 4C(f) amended by No. 32/2018 s. 65(a).

S. 4C(g) inserted by No. 32/2018 s. 65(b).

S. 4D inserted by No. 72/2011 s. 44.

Part 1—Preliminary


15

given to the Supreme Court in support of the application.

(2) If the application is to be made by telephone, the applicant must give the Public Interest Monitor the information required to be given to the Supreme Court on a telephone application.

(3) An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to the Public Interest Monitor, whether imposed under an Act or by a rule of law, does not apply to the provision of information under this Division.

4E Full disclosure to Public Interest Monitor

(1) The applicant must fully disclose to the Public Interest Monitor all matters of which the applicant is aware that are adverse to the application.

(2) The applicant must not knowingly or recklessly fail to comply with subsection (1).

Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.

4F Role of Public Interest Monitor

(1) The Public Interest Monitor is entitled—

(a) to appear at the hearing of the application to test the content and sufficiency of the information relied on and the circumstances of the application; and

(b) for the purpose of testing the content and sufficiency of the information relied on and the circumstances of the application—

(i) to ask questions of any person giving information in relation to the application; and

S. 4D(3) amended by No. 32/2018 s. 6(2).

S. 4E inserted by No. 72/2011 s. 44.

S. 4F inserted by No. 72/2011 s. 44.



16

(ii) to make submissions to the Supreme Court about the appropriateness of granting the application.

(2) Without limiting subsection (1), the Public Interest Monitor is entitled to make submissions to the Supreme Court in the presence of the judge or by phone, fax, email or any other reasonable way.

(3) If a Public Interest Monitor is not reasonably able to be contacted for an application (other than an application for a covert search warrant)—

(a) the application may proceed without a Public Interest Monitor being notified; and

(b) a Public Interest Monitor must be notified as soon as possible and given any information requested by the Public Interest Monitor that the Public Interest Monitor would have been entitled to obtain for or during the application.

(4) As soon as practicable after the application is heard, the Public Interest Monitor must return to the applicant any documents given by the applicant to the Public Interest Monitor under section 4D or 4E or subsection (3) of this section in relation to the applications.

Division 2—Role in relation to preventative police detention

4G Authorised police officer to notify Public Interest Monitor about certain things relating to police detention decisions

(1) An authorised police officer must notify a Public Interest Monitor of the things set out in column 2 of the Table within the time specified in column 3 of the Table opposite that thing.

Pt 1A Div. 2 (Heading and ss 4G–4N) inserted by No. 32/2018 s. 7.

S. 4G inserted by No. 32/2018 s. 7.



17

Table

Column 1

Item

Column 2Thing to be notified to a Public Interest Monitor

Column 3

When notification must be given

1 The making of a police detention decision

As soon as practicable after the police detention decision is made

2 The date and time a person to whom a police detention decision applies is taken into custody and detained under Part 2AA

As soon as practicable after the person is taken into custody (but no later than 2 hours after the person is taken into custody)

3 The name and contact details of the nominated senior police officer in relation to a person to whom a police detention decision applies

As soon as practicable after the police detention decision is made

4 A police detention decision ceasing to have effect under section 13AF(2)(a)

As soon as practicable after the police detention decision ceases to have effect

(2) A notification under subsection (1) must be in accordance with the regulations.

Note

See also section 4K(3)(b).



18

4H Nominated senior police officer to notify Public Interest Monitor about certain matters relating to police detention decisions

(1) A nominated senior police officer must notify a Public Interest Monitor of—

(a) when a periodic review is to be conducted as soon as practicable after deciding when to conduct it; andNote

See also section 13AZZN.

(b) the date and time the detention under Part 2AA of a person to whom a police detention decision relates ends as soon as practicable after the end of that detention.

(2) A notification under subsection (1) must be in accordance with the regulations.

Note

See also section 4K(3)(b) and Division 9 of Part 2AA.

4I Full disclosure to a Public Interest Monitor

(1) The following persons must fully disclose to a Public Interest Monitor all matters of which they are aware that are adverse to the making of a police detention decision or the conduct of a periodic review—

(a) the authorised police officer who made the police detention decision;

(b) the nominated senior police officer in relation to a periodic review they conduct;

(c) a police officer exercising powers or performing duties under Part 2AA.

S. 4H inserted by No. 32/2018 s. 7.

S. 4I inserted by No. 32/2018 s. 7.



19

(2) An authorised police officer, a nominated senior police officer or a police officer exercising powers or performing duties under Part 2AA must not knowingly or recklessly fail to comply with subsection (1).


4J Secrecy obligations do not apply

An obligation to maintain secrecy in relation to, or that otherwise restricts, the provision of information to a Public Interest Monitor, whether imposed under an Act or by rule of law, does not apply to the provision of information under this Division.

4K Role of Public Interest Monitor in relation to periodic reviews

(1) A Public Interest Monitor is entitled—

(a) to test the content and sufficiency of the information to be relied on for the purposes of conducting a periodic review; and

(b) for the purpose of testing the content and sufficiency of the information to be relied on for the purposes of conducting a periodic review—

(i) to ask questions of any of the following persons—

(A) the authorised police officer who made the police detention decision;

S. 4J inserted by No. 32/2018 s. 7.

S. 4K inserted by No. 32/2018 s. 7.



20

(B) the nominated senior police officer in relation to a periodic review they conduct;

(C) a police officer exercising powers or performing duties under Part 2AA in relation to a person detained under that Part; and

(ii) to make submissions to the nominated senior police officer in relation to the conduct of a periodic review.

Note

A nominated senior police officer conducts periodic reviews under section 13AZZN.

(2) Without limiting subsection (1), a Public Interest Monitor is entitled to make submissions to the nominated senior police officer in person or by telephone or electronic communication or any other reasonable way.

(3) If a Public Interest Monitor is not reasonably able to be contacted before the nominated senior police officer conducts a periodic review—

(a) the nominated senior police officer may conduct the periodic review, without a Public Interest Monitor being notified; and

(b) a Public Interest Monitor must—

(i) be notified as soon as practicable after the completion of the periodic review; and

(ii) be given any information requested by a Public Interest Monitor that the Public Interest Monitor would have been entitled to obtain for the purposes of exercising a power under subsection (1) or (2).



21

4L Public Interest Monitor to be given written record of police detention decision

An authorised police officer must ensure that a copy of the written record of the police detention decision made under section 13AE is given to a Public Interest Monitor as soon as practicable after they make the decision.

4M Public Interest Monitor to be given access to documents related to police detention decisions and periodic reviews

For the purposes of performing a function or exercising a power under section 4K, a Public Interest Monitor may have, and must be given, access to any document or information relating to a police detention decision or the conduct of a periodic review kept by—

(a) the authorised police officer who made the police detention decision; or

(b) the nominated senior police officer who conducts the periodic review.

4N Return of documents

(1) A Public Interest Monitor must return to an appropriate person any documents given to the Public Interest Monitor under this Division—

(a) if detention of the person to whom the police detention decision relates ends—as soon as practicable after the Public Interest Monitor is notified of the end of that detention; or

(b) if the police detention decision ceases to have effect under section 13AF(2)(a)—as soon as practicable after the Public Interest Monitor is notified of the decision ceasing to have effect.

S. 4L inserted by No. 32/2018 s. 7.

S. 4M inserted by No. 32/2018 s. 7.

S. 4N inserted by No. 32/2018 s. 7.



22

Note

See also section 4G or 4H.

(2) In this section—

appropriate person means—

(a) in the case of a document given to the Public Interest Monitor relating to a police detention decision—the authorised police officer who made the decision; and

(b) in the case of a document given to the Public Interest Monitor relating to the conduct of a periodic review—the nominated senior police officer who conducted the review.



23

Part 1B—Role of the Commission for Children and Young People

4O Functions of Commission for Children and Young People in relation to detention of children

In addition to any other function conferred on the Commission for Children and Young People under this Part or Part 2AA or 2A, the Commission for Children and Young People has the following functions in relation to Part 2AA or 2A—

(a) to monitor the treatment of a child while being detained under Part 2AA or under a preventative detention order;

(b) to promote the interests of a child detained under Part 2AA or under a preventative detention order;

(c) to access any document or information in accordance with section 4Q;

(d) to provide advice to the Attorney-General, the Minister administering the Commission for Children and Young People Act 2012 or the Chief Commissioner about a child's treatment while in detention under Part 2AA or under a preventative detention order;

(e) any other function that is prescribed.

Pt 1B (Heading and ss 4O–4R) inserted by No. 32/2018 s. 8.

S. 4O inserted by No. 32/2018 s. 8.



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4P Access to children in detention for the purpose of monitoring their treatment

For the purposes of performing any function or exercising any power under or in relation to this Part, Part 2AA or 2A, the Commission for Children and Young People must be given access to a child that is in detention under Part 2AA or under a preventative detention order.

Note

See also section 4R.

4Q Access to documents and information

(1) For the purposes of performing any function or exercising any power under or in relation to this Part, Part 2AA or 2A, the Commission for Children and Young People may have, and must be given, access to any document or information relating to a child's treatment while in detention under Part 2AA or under a preventative detention order that is kept by any of the following people—

(a) the Chief Commissioner;

(b) the Secretary to the Department of Justice and Regulation.


document includes an audio recording or audiovisual recording referred to in Division 6 of Part 2AA or Division 5A of Part 2A.

Note

See also section 4R.

S. 4P inserted by No. 32/2018 s. 8.

S. 4Q inserted by No. 32/2018 s. 8.



25

4R Assistance to be given to Commission for Children and Young People for performance of its functions and exercise of powers

The Chief Commissioner and the Secretary to the Department of Justice and Regulation must ensure that the Commission for Children and Young People is given any assistance in connection with the reasonable performance of the Commission's functions, or the reasonable exercise of the Commission's powers, under or in relation to this Part, Part 2AA or 2A that the Commission reasonably requires.

S. 4R inserted by No. 32/2018 s. 8.



26

Part 2—Covert search warrants5 Jurisdiction

A covert search warrant under this Part may only be issued by the Supreme Court.

6 Covert search warrants

(1) A police officer, with the approval of the Chief Commissioner, a Deputy Commissioner or an Assistant Commissioner, may apply to the Supreme Court for the issue of a warrant under this Part in respect of any premises if the police officer suspects or believes, on reasonable grounds, that—

(a) any of the following applies—

(i) a terrorist act has been, is being, or is likely to be, committed;

(ii) a person who resides at, or visits, those premises—

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

(B) has provided to, or received from, a terrorist organisation (within the meaning of Division 102 of the Criminal Code of the Commonwealth) training connected with preparation for, or planning, or engaging in or assisting, a terrorist act;

(iii) there has been, or is, activity on those premises connected with preparation for, or planning, or engaging in or assisting, a terrorist act; and

S. 6(1) amended by No. 37/2014 s. 10(Sch. item 167.3).

S. 6(1)(a) substituted by No. 5/2006 s. 8(1).



27

(b) the entry and search of the premises would substantially assist in preventing (including by gaining knowledge of an act being done in preparation for, or planning, a terrorist act or connected with the engagement of a person in, or assistance in, a terrorist act) or responding to a terrorist act or suspected terrorist act; and

(c) it is necessary for that entry and search to be conducted without the knowledge of any occupier of those premises.

(1A) An application for a warrant under this Part may be made even if the suspicion or belief does not relate to a specific terrorist act.

(2) An application for a warrant is to be heard in closed court.

7 Application for warrant

(1) An application for a warrant under this Part must be made in writing, supported by an affidavit, setting out the grounds on which the warrant is sought.

(2) The Supreme Court must not issue a warrant unless—

(a) the application for the warrant sets out the grounds on which the warrant is being sought; and

(b) the applicant has given the Court, either orally or in writing, any further information that it requires concerning the grounds on which the warrant is being sought; and

(c) the information given by the applicant is verified before the Court on oath (or affirmation) or by affidavit.

S. 6(1)(b) amended by No. 5/2006 s. 8(2)(a)(b).

S. 6(1A) inserted by No. 5/2006 s. 8(3).



28

(3) A Judge of the Supreme Court may administer an oath or affirmation or take an affidavit for the purposes of an application for a warrant.

7A Notice to Public Interest Monitor of application

The applicant for a warrant under this Part must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.

8 Determining the application

(1) The Supreme Court may issue a warrant under this Part if the Court is satisfied that there are reasonable grounds for the suspicion or belief founding the application for the warrant.

(2) In determining whether a warrant should be issued, the Court must have regard to—

(a) the nature and gravity of the terrorist act or suspected terrorist act; and

(b) the extent to which the exercise of powers under the warrant would assist the prevention of, or response to, the terrorist act or suspected terrorist act; and

(c) the extent to which the privacy of any person is likely to be affected; and

(d) any conditions to which the warrant may be made subject; and

(e) any submissions made by a Public Interest Monitor.

(3) A warrant must specify—

(a) that the purpose of the warrant is to assist the prevention of, or response to, a terrorist act or suspected terrorist act; and


S. 8(2)(d) amended by No. 72/2011 s. 46(1).

S. 8(2)(e) inserted by No. 72/2011 s. 46(2).



29

(b) the address or location of any premises to which the warrant relates; and

(c) the name of the applicant; and

(d) the name or a description of any other person who may enter premises named or described in the warrant; and

(e) whether more than one entry of premises named or described in the warrant is authorised; and

(f) the date on which the warrant is issued; and

(g) the period during which the warrant is in force, being a period not exceeding 30 days; and

(h) if known, the names of occupiers of premises named or described in the warrant; and

(i) if relevant, the name or a description of the kind of thing to be searched for, seized, placed, copied, photographed, recorded, operated, printed, tested or sampled; and

(j) if applicable, any further conditions to which the warrant is subject.

(4) Nothing in this Part prevents the issue of a further warrant in respect of premises in respect of which a warrant under this Part has previously been issued.

9 What does a warrant authorise?

(1) A warrant issued under this Part authorises the person to whom it is directed, together with any other person named or described in the warrant and with any necessary equipment—

(a) to enter, by force or impersonation if necessary, any premises named or described in the warrant, or other specified premises adjoining or providing access to the premises

S. 9(1)(a) amended by No. 70/2015 s. 5(1).



30

for any of the purposes referred to in paragraph (b), (c), (d), (e), (f), (fa) or (g); and

(b) to search the premises for any kind of thing named or described in the warrant; and

(c) if the warrant authorises seizure of a kind of thing, to seize any thing of that kind; and

(d) if the warrant authorises placing a kind of thing, to place any thing of that kind on the premises in substitution for a thing seized under paragraph (c); and

(e) if the warrant authorises copying, photographing or otherwise recording a description of a kind of thing, to copy, photograph or otherwise record a description of any thing of that kind on the premises; and

(f) to operate any electronic equipment that is on the premises and copy, print or otherwise record information held in, or accessible from, that equipment; and

(fa) to operate, by way of remote entry, any electronic equipment that is on the premises and copy, print or otherwise record information held in, or accessible from, that equipment; and

(g) if the warrant authorises testing, or taking and keeping a sample of, a kind of thing, to test, or take and keep a sample of, any thing of that kind.

(2) The Supreme Court may direct that any thing seized under a warrant be returned to its owner, subject to any condition that the Court thinks fit, if in the opinion of the Court it can be returned consistently with the interests of justice.

S. 9(1)(f) amended by No. 70/2015 s. 5(2).

S. 9(1)(fa) inserted by No. 70/2015 s. 5(3).



31

(3) Except as provided by this Part, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this Part.

10 Warrant may be granted by telephone

(1) If, in urgent circumstances, a police officer considers it necessary to do so, he or she may apply for a warrant under this Part by telephone in accordance with this section.

(2) Before making the application, the police officer must prepare an affidavit setting out the grounds on which the warrant is sought, but may, if necessary, make the application before the affidavit has been sworn or affirmed.

(3) If transmission by facsimile machine is available, the police officer must transmit a copy of the affidavit, whether sworn or affirmed, or unsworn or not affirmed, to the Supreme Court.

(4) Subject to sections 7(2) and 8(1) and having regard to the factors in section 8(2), the Supreme Court may issue a warrant on an application made by telephone after considering—

(a) the terms of the affidavit; and

(b) any further information required by the Court concerning the grounds on which the warrant is sought.

(5) If the Supreme Court issues a warrant on an application made by telephone, it must—

(a) inform the applicant of the terms of the warrant and of the date on which and the time at which it was issued, and record on

S. 10(1) amended by No. 37/2014 s. 10(Sch. item 167.4(a)).

S. 10(2) amended by Nos 37/2014 s. 10(Sch. item 167.4(b)), 6/2018 s. 68(Sch. 2 item 124.1).

S. 10(3) amended by Nos 37/2014 s. 10(Sch. item 167.4(b)), 6/2018 s. 68(Sch. 2 item 124.2).



32

the warrant the reasons for issuing the warrant; and

(b) if transmission by facsimile machine is available, transmit a copy of the warrant to the applicant.

(6) If a copy of the warrant has not been transmitted by facsimile machine, the applicant must—

(a) complete a form of warrant in the terms furnished to the applicant by the Supreme Court and must write on it the name of the Judge who constituted the Court and the date on which and the time at which the warrant was issued; and

(b) not later than the day following the date of the execution of the warrant or the expiry of the warrant, whichever is earlier, send the form of warrant completed by the applicant to the Court.1

(7) If an application is made by telephone, whether or not a warrant is issued, the applicant must, not later than the day following the day on which the application was made, send the original affidavit duly sworn to the Supreme Court.

(8) In any proceeding, if it is material for a court to be satisfied that an entry, search or seizure was authorised in accordance with this section, and a warrant issued by the Supreme Court in accordance with this section authorising the entry, search or seizure is not produced in evidence, the court must assume, unless the contrary is proved, that the entry, search or seizure was not authorised by such a warrant.



33

11 Report to the Victorian Inspectorate

(1) The person to whom a warrant is issued under this Part must, no later than 7 days after the warrant expires, make a report in accordance with this section to the Victorian Inspectorate.

Penalty:Level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum) or both.

(2) The report must—

(a) state which powers were exercised under the warrant; and

(b) give details of the compliance with the conditions, if any, to which the warrant was subject; and

(c) state the period during which the entry and search was conducted; and

(d) state the name or description of any person who entered premises named or described in the warrant; and

(e) if known, state the names of the occupiers of premises entered; and

(f) give details of the seizure, placement, copying, photographing, recording, operation, printing, testing or sampling of any thing; and

(g) if known, give details of the benefit of the execution of the warrant to the prevention of or response to the terrorist act or suspected terrorist act.

S. 11 (Heading) amended by No. 32/2018 s. 73(1).

S. 11(1) amended by No. 32/2018 s. 73(2).



34

12 No publication of report of proceeding

A person must not publish—

(a) a report of the whole or any part of a proceeding on an application for a warrant under this Part; or

(b) any information derived from a proceeding referred to in paragraph (a)—

* * * * *

unless the Supreme Court orders otherwise.

Penalty:In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In the case of a body corporate, 1000 penalty units for a first offence and 20 000 penalty units for a subsequent offence.

* * * * *

S. 12(b) amended by No. 32/2018 s. 74(1).

S. 12(c) repealed by No. 32/2018 s. 74(2).

S. 13 amended by Nos 25/2009 s. 53, 37/2014 s. 10(Sch. item 167.5), 70/2015 s. 6, repealed by No. 32/2018 s. 75.



35

Part 2AA—Preventative police detention

Division 1—Preliminary

13AA Object of Part

The object of this Part is to allow for the taking into custody and detention of an adult for a period not exceeding 4 days, or a child for a period not exceeding 36 hours, in order to—

(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days; or

(b) preserve evidence of, or relating to, a recent terrorist act.

Division 2—Police detention decisions13AB What is a police detention decision?

A police detention decision is a decision made in relation to a person that authorises—

(a) the taking into custody of the person (unless the person is already being detained under a preventative detention order or an order for the person's detention made under a corresponding preventative detention law); and

(b) subject to this Part, the detention of the person under this Part for a period not exceeding the maximum police detention period which—

Pt 2AA (Headings and ss 13AA–13AZZZC) inserted by No. 32/2018 s. 9.

S. 13AA inserted by No. 32/2018 s. 9.

S. 13AB inserted by No. 32/2018 s. 9.



36

(i) starts when the person is first taken into custody under section 13AH(2)(a) or detained under section 13AH(2)(b); and

(ii) ends under Division 9.

13AC Authorised police officer may make police detention decision

(1) Subject to this Division, an authorised police officer may make a police detention decision in relation to a person who is 14 years old or older if—

(a) the authorised police officer is satisfied that—

(i) there are reasonable grounds to suspect that the person—

(A) will engage in a terrorist act; or

(B) possesses or has under the person's control (whether solely or jointly with any other person) 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 decision would substantially assist in preventing a terrorist act occurring; and

(iii) detaining the person is reasonably necessary for the purpose referred to in subparagraph (ii); or

(b) the authorised police officer is satisfied that—

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

S. 13AC inserted by No. 32/2018 s. 9.



37

(ii) it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and

(iii) detaining the person is reasonably necessary for the purpose referred to in subparagraph (ii).

(2) A terrorist act referred to in subsection (1)(a) must be capable of being carried out, and could occur, within the next 14 days.

(3) A police detention decision must not be made on the same basis as a previous police detention decision unless the previous police detention decision ceased to have effect under section 13AF(2)(a).

(4) For the purposes of subsection (3), a police detention decision is made on the same basis as a previous police detention decision if—

(a) in the case of a decision made on the basis of preventing a terrorist act from occurring, that decision and the previous decision relate to the same terrorist act; and

(b) in the case of a decision made on the basis of preserving evidence of, or relating to, a terrorist act, that decision and the previous decision relate to the same terrorist act.

13AD Nature of police detention decisions in relation to children—detention in youth justice facilities

(1) An authorised police officer who makes a police detention decision in relation to a child must, as part of that decision, direct that the child be detained in a youth justice facility unless the officer is satisfied that it is reasonably necessary for the child to be detained at a place other than a youth justice facility.

S. 13AD inserted by No. 32/2018 s. 9.



38

(2) For the purposes of subsection (1), the authorised police officer must have regard to the following—

(a) the child's age and vulnerability;

(b) the likely impact that detention in a place other than a youth justice facility will have on the child;

(c) the grounds on which the police detention decision is made;

(d) the risk posed by the child to—

(i) the national or international security of Australia; or

(ii) other persons detained in a youth justice facility; or

(iii) the good order and safe operation of a youth justice facility;

(e) the availability of a place in a youth justice facility for the child to be detained in compliance with this Part.

Note

See also section 13AR.

13AE Recording of police detention decision

(1) An authorised police officer who makes a police detention decision must make, or cause to be made, a written record of the decision.

(2) The record must set out—

(a) the facts and other grounds which the authorised police officer considered in making the police detention decision; and

(b) the information (if any) that the authorised police officer has about the person's age and capacity to manage their affairs; and

S. 13AE inserted by No. 32/2018 s. 9.



39

(c) the outcomes and particulars of any previous police detention decisions in relation to the person; and

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

(e) the information (if any) that the authorised police officer has about the following—

(i) the outcomes and particulars of all previous requests for Commonwealth control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(ii) the outcomes and particulars of all previous applications for variations of Commonwealth control orders made in relation to the person;

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

(f) if the police detention decision relates to a child, whether the child is to be detained under this Part in a youth justice facility; andNote

See also section 13AD.

(g) the information (if any) that the authorised police officer has about any periods for which the person has been detained under an order made under a corresponding preventative detention law; and

(h) a summary of the grounds on which the police detention decision was made.



40

(3) To avoid doubt, subsection (2)(h) does not require counter-terrorism intelligence to be included in the summary.

(4) The information in the record must be sworn or affirmed by the authorised police officer.

13AF When a police detention decision starts and ceases to have effect

(1) A police detention decision in relation to a person starts to have effect when it is made.Note

When a police detention decision starts to have effect it authorises the person to be taken into custody and detained under this Part (see section 13AB). The period for which the person may be detained only starts to run when the person is first taken into custody or detained under this Part (see section 13AH).

(2) A police detention decision in relation to a person ceases to have effect—

(a) at the end of the period of 48 hours after the decision is made if the person has not been taken into custody under the order within that period; or

(b) when the person's detention under this Part ends under Division 9.

13AG Detained persons under 14 years to be released without delay

(1) This section applies if—

(a) a person is being detained under this Part pursuant to a police detention decision or a purported police detention decision; and

(b) the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 14 years of age.

S. 13AF inserted by No. 32/2018 s. 9.

S. 13AG inserted by No. 32/2018 s. 9.



41

(2) The police officer must release the person or arrange in writing for the person's release without delay from detention under this Part.

Division 3—Carrying out police detention decisions13AH Power to detain person under authority of police

detention decision

(1) This section applies if a police detention decision is made in relation to a person.

(2) While the police detention decision is in effect in relation to a person—

(a) any police officer may take the person into custody; andNote

See also section 6D(2AA) of the Corrections Act 1986.

(b) any police officer may detain the person.

(3) A police officer may, for the purpose of taking a person into custody under a police detention decision or preventing the person from escaping from detention under this Part, exercise any of the powers that the officer would have if the officer were apprehending the person under a belief on reasonable grounds that the person—

(a) had committed an indictable offence in Victoria; or

(b) was escaping from legal custody.

(4) Subsection (3) does not apply to the extent to which particular powers are provided for in this Part.

S. 13AH inserted by No. 32/2018 s. 9.



42

13AI Person must be informed of detention when taken into custody

At the time the police officer is taking the person into custody under section 13AH, the police officer must inform the person that they are being taken into custody for the purposes of detention under this Part.

13AJ Endorsement of record with date and time person taken into custody or detained

As soon as practicable after a person is first taken into custody or detained under section 13AH, the police officer who is detaining the person under that section must endorse on the record of the police detention decision authorising that first taking into custody or detention—

(a) the date on which, and time at which, the person is first taken into custody or detained; and

(b) particulars of where the person is being detained.

13AK Summary explaining police detention decision to be given to detained person

(1) As soon as practicable after a person is first taken into custody or detained under section 13AH, the police officer who is detaining the person under that section must give the person a written summary of the grounds on which the police detention decision was made.Note

A contravention of this subsection may be an offence under section 13AZZX.

(2) To avoid doubt, subsection (1) does not require counter-terrorism intelligence to be included in the summary.

S. 13AI inserted by No. 32/2018 s. 9.

S. 13AJ inserted by No. 32/2018 s. 9.

S. 13AK inserted by No. 32/2018 s. 9.



43

(3) Despite section 13AH(3), when a police officer takes a person into custody, the police officer does not need to—

(a) have a copy of the record of the police detention decision or the summary mentioned in subsection (1) with them; or

(b) produce a copy of the record or summary to the person being taken into custody.

13AL Summary explaining police detention decision to be given to detained person's lawyer

(1) A person who is being detained under section 13AH may request a police officer who is detaining them to arrange for a copy of the summary mentioned in section 13AK(1) to be given to a lawyer acting for the person in relation to the detention.

(2) The police officer must make arrangements for a copy of the summary to be given to the lawyer as soon as practicable after the request is made.Note


(3) Without limiting subsection (2), the copy of the summary may be sent to the lawyer by electronic communication.

(4) To avoid doubt, subsection (2) does not entitle the lawyer to be given a copy of, or see, a document other than the summary.

13AM Compliance with section 13AK or 13AL not required if impractical because of actions of detained person

Section 13AK or 13AL does not apply if the actions of the person being detained under section 13AH make it impracticable for the police officer to comply with either section.

S. 13AL inserted by No. 32/2018 s. 9.

S. 13AM inserted by No. 32/2018 s. 9.



44

13AN Lawfulness of person's detention not affected by non-compliance with section 13AK or 13AL

The lawfulness of a person's detention under section 13AH is not affected by a failure to comply with section 13AK or 13AL.

13AO Requirement to provide name etc.

(1) This section applies if a police officer believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the police officer may be able to assist the police officer in executing a power under section 13AH.

(2) The police officer may request the person to provide their name or address, or name and address, to the police officer.

(3) A person commits an offence if—

(a) a police officer—

(i) makes a request of a person under subsection (2); and

(ii) informs the person of the reason for the request; and

(iii) if the police officer is not in uniform—shows the person evidence that they are a police officer; and

(iv) complies with subsection (5) if the person makes a request under that subsection; and

(b) the person—

(i) refuses or fails to comply with the request; or

(ii) gives a name or address that is false in a material particular.

Penalty: 20 penalty units.

S. 13AN inserted by No. 32/2018 s. 9.

S. 13AO inserted by No. 32/2018 s. 9.



45

(4) Subsection (3) does not apply if the person has a reasonable excuse.

(5) If a police officer who makes a request of a person under subsection (2) is requested by the person to provide to the person any of the following—

(a) their name;

(b) the address of their place of duty;

(c) their identification number if they have an identification number;

(d) their rank if they do not have an identification number—

the police officer must not—

(e) refuse or fail to comply with the request; or

(f) give a name, address, number or rank that is false in a material particular.


(6) Subsection (5) does not apply if the police officer has a reasonable excuse.

13AP Power to enter premises for purpose of searching for, or taking into custody, a person


(a) a police detention decision is in effect in relation to a person; and

(b) a police officer believes on reasonable grounds that the person is on any premises.

(2) The police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of—

(a) searching the premises for the person; or

(b) taking the person into custody.

S. 13AP inserted by No. 32/2018 s. 9.



46

(3) A police officer must not enter any premises that are used for residential purposes at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the police officer believes on reasonable grounds that—

(a) it would not be practicable to take the person into custody, either at those premises or elsewhere, at another time; or

(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.

13AQ Power to conduct search of a person taken into custody under this Part

(1) This section applies if a police officer who takes a person into custody under section 13AH, or who is present when the person is taken into custody, suspects on reasonable grounds—

(a) that it is prudent to conduct a search of the person in order to ascertain whether the person is carrying any seizable items; or

(b) that the person is carrying—

(i) evidence of, or relating to, a terrorist act; or

(ii) a seizable item.

(2) The police officer may—

(a) conduct a search of the person in the prescribed manner at, or soon after, the time when the person is taken into custody; and

(b) seize any such thing found as a result of the search.

(3) Any thing seized under subsection (2) must be dealt with in accordance with the regulations.

S. 13AQ inserted by No. 32/2018 s. 9.



47

13AR Detention of children in a youth justice facility

(1) This section applies if a police detention decision is made in relation to a child.

(2) If the police detention decision provides that the child must be detained under this Part in a youth justice facility, the police officer who is detaining the child must request the Secretary to the Department of Justice and Regulation to authorise the detention of that child in a youth justice facility.Note

See also section 13AD.

(3) In all other cases, the police officer who is detaining the child under this Part may request the Secretary to the Department of Justice and Regulation to authorise the detention of that child in a youth justice facility.

(4) A request under subsection (2) or (3) must be accompanied by a written record that—

(a) specifies that a police detention decision has been made in relation to the child; and

(b) sets out—

(i) the date on which, and time at which, the child was first taken into custody or detained under this Part; and

(ii) whether any contact with the child has been prohibited under section 13AZZB and the terms of any prohibition.

(5) The information in the record under subsection (4) must be sworn or affirmed by the authorised police officer.

(6) If requested to do so under subsection (2) or (3), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the

S. 13AR inserted by No. 32/2018 s. 9.



48

detention in a youth justice facility of a child being detained under this Part.

(7) On the giving of an authorisation under subsection (6), a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the child into the facility.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cab) of the Corrections Act 1986.

(8) If a child is being detained in a youth justice facility under this Part—

(a) the officer in charge of the facility is taken to be authorised to detain the child under this Part at the facility while the police detention decision is in effect in relation to the child; and

(b) section 13AY applies in relation to the child's detention under this Part at the facility as if—

(i) the officer in charge of that facility; or

(ii) any other person involved in the child's detention at that facility—

were a police officer exercising authority under this Part in relation to the detention of the child; and

(c) the police officer who made the request under subsection (2) or (3) is taken, while the child is detained at the facility, to be the police officer detaining the child for the purposes of Divisions 4, 5 and 7; and

(d) a police officer may at any time enter the facility and visit the child being detained in the facility in connection with the exercise of powers under this Part and the performance



49

of obligations in relation to the child's detention under this Part.

(9) The Secretary to the Department of Justice and Regulation, by instrument, may delegate any function or power of the Secretary under this section (except this power of delegation) to any person, or class of person, employed in the Department of Justice and Regulation under Part 3 of the Public Administration Act 2004.

13AS Application of Children, Youth and Families Act 2005 to children detained under this Part in a youth justice facility

(1) No provision of the Children, Youth and Families Act 2005 applies in respect of the detention of a child under this Part in a youth justice facility other than the following provisions of that Act—

(a) section 17(1) and, to the extent that it relates to section 597(3) or 597(4), section 17(2);

(b) section 482(1) other than paragraphs (b) to (d);

(c) section 482(2) other than paragraphs (a) and (b);

(d) section 482(3);

(e) section 483(1) and 483(1A);

(f) section 487 other than paragraph (f) to the extent that that paragraph applies to discriminatory treatment that is reasonable and necessary having regard to the nature of the child's detention;

(g) sections 488A to 488G;

(h) section 501;

(i) section 597.

S. 13AS inserted by No. 32/2018 s. 9.



50

(2) If a provision of the Children, Youth and Families Act 2005 applies (with or without modification) in respect of the detention under this Part of a child in a youth justice facility, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications.

(3) The Children, Youth and Families Act 2005, in its application in respect of the detention of a child under this Part in a youth justice facility, has effect subject to this Part and, in the event of any inconsistency between that Act and this Part, this Part prevails over that Act.

13AT Transfer of detained child into legal custody of Chief Commissioner for questioning


(a) a child is being detained under this Part in a youth justice facility; and

(b) a police officer wants to question the child under Division 6.

(2) An authorised police officer may request the Secretary to the Department of Justice and Regulation to release the child from detention in the youth justice facility into the custody of a police officer.

(3) A request under subsection (2) must be accompanied by a written record that—

(a) specifies that a police detention decision has been made in relation to the child; and

(b) sets out the date on which, and time at which, the child was first taken into custody or detained under this Part.

S. 13AT inserted by No. 32/2018 s. 9.



51

(4) The information in the record under subsection (3) must be sworn or affirmed by the authorised police officer.

(5) If requested to do so under subsection (2), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the release of the child from detention in the youth justice facility into the custody of a police officer.

(6) On the giving of an authorisation under subsection (5), a police officer may take physical custody of the child.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6D(2AA) of the Corrections Act 1986.

13AU Return of child to youth justice facility at end of questioning

(1) This section applies if a police officer has taken custody of a child under section 13AT(6) for the purpose of questioning that child under Division 6.

(2) At the cessation of the questioning, the police officer who is detaining the child under this Part must deliver the child back to the youth justice facility at which the child was detained at the time of the request under section 13AT(2).Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cab) of the Corrections Act 1986.

13AV Effect on period of detention of transfers of custody of children for questioning purposes

To avoid doubt, the transfer of the custody of a child under section 13AT or 13AU does not

S. 13AU inserted by No. 32/2018 s. 9.

S. 13AV inserted by No. 32/2018 s. 9.



52

extend the maximum period for which the child may be detained under this Part.

Division 4—Informing person detained about police detention decision

13AW Effect of police detention decision to be explained to person detained

(1) As soon as practicable after a person is first detained under section 13AH, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).Notes

1 A contravention of this subsection may be an offence under section 13AZZX.

2 A contravention of this section does not affect the lawfulness of the person's detention under this Part (see section 13AX(5)).

(2) The matters covered by this subsection are—

(a) the fact that a police detention decision has been made in relation to the person; and

(b) the reasons for the making of the police detention decision; and

(c) the maximum period for which the person may be detained under this Part; and

(d) the fact that an interim preventative detention order or preventative detention order may be applied for in relation to the person; and

(e) the maximum period for which the person may be detained under a preventative detention order; and

(f) the fact that the person may be questioned by a police officer while in detention under this Part and the person's entitlement to reasonable breaks during questioning; and

S. 13AW inserted by No. 32/2018 s. 9.



53

(g) the people that the person may contact while being detained under this Part; and

(h) any restrictions that may apply to the people that the person may contact while the person is being detained under this Part; and

(i) the fact that the person's communication with persons referred to in section 13AZQ, and with their lawyer, may be monitored under section 13AZX or 13AZY;

(j) the person's entitlement under section 13AZZL to make representations to the nominated senior police officer in relation to—

(i) the exercise of powers under this Part and the performance of obligations in relation to the detention of a person under this Part; orExample

Powers and obligations of police officers under Division 9.

(ii) the treatment of the person while in detention under this Part; and

(k) any right the person has to complain to the Ombudsman under the Ombudsman Act 1973 or the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—

(i) the making of the police detention decision in relation to the person; or


(l) the fact that the person may seek from a court a remedy relating to—

(i) the police detention decision; or



54


(m) in the case of a child being detained under this Part, the child's entitlement to contact the Commission for Children and Young People under section 13AZS; and

(n) the person's entitlement to contact a lawyer under section 13AZV; and

(o) the person's entitlement to contact a consular office under section 13AZE or 13AZT; and

(p) the person's entitlement to an interpreter under section 13AZB or 13AZD; and

(q) the name and work telephone number of the nominated senior police officer referred to in paragraph (j).

13AX Compliance with obligations to inform

(1) Section 13AW(1) does not apply if the actions of the person being detained under this Part make it impracticable for the police officer to comply with that subsection.

(2) The police officer detaining the person under this Part complies with section 13AW(1) if the police officer informs the person in substance of the matters covered by section 13AW(2) (even if this is not done in language of a precise or technical nature).

(3) The police officer detaining the person under this Part must arrange for the assistance of an interpreter in complying with section 13AW(1) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

S. 13AX inserted by No. 32/2018 s. 9.



55

(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.

(5) The lawfulness of a person's detention under this Part is not affected by a failure to comply with section 13AW(1) or subsection (3) of this section.

Division 5—Treatment of person detained13AY Humane treatment of person being detained

A person being taken into custody, or being detained, under this Part—

(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 this Part or implementing or enforcing the police detention decision in relation to the person.

Note

A contravention of this section may be an offence under section 13AZZX.

13AZ Detention of children

(1) Subject to subsection (2), the police officer detaining a child under this Part must ensure that the child is not detained together with persons who are 18 years of age or older.Note


(2) Subsection (1) does not apply if the nominated senior police officer in relation to the child approves the child being detained together with persons who are 18 years of age or older.

(3) The nominated senior police officer in relation to the child may give an approval under subsection

S. 13AY inserted by No. 32/2018 s. 9.

S. 13AZ inserted by No. 32/2018 s. 9.



56

(2) only if there are exceptional circumstances justifying the giving of the approval.

(4) An approval under subsection (2) must—

(a) be given in writing; and

(b) set out the exceptional circumstances that justify the giving of the approval.

13AZA Restrictions on contact with other people

(1) Except as provided under this Division, Division 6 and Division 7, while a person is being detained under this Part, the person—

(a) is not entitled to contact another person; and

(b) may be prevented from contacting another person.

(2) While a child is being detained under this Part in a youth justice facility, the child is required to give to a police officer exercising authority under this Part any letter that the child wishes to send to any person other than—

(a) the Ombudsman under the Ombudsman Act 1973; or

(b) the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

(c) the Commission for Children and Young People.

(3) The officer in charge of a youth justice facility who receives—

(a) from a child being detained under this Part in the facility a letter required by subsection (2) to be given to a police officer referred to in that subsection; or

(b) a letter sent to a child being detained under this Part in the facility—

S. 13AZA inserted by No. 32/2018 s. 9.



57

must as soon as practicable give that letter to such a police officer.

(4) Subsections (2) and (3) apply to legal documents exchanged between a lawyer and a child being detained under this Part in a youth justice facility as if that document were a letter.

(5) A child being detained under this Part in a youth justice facility may retain any legal documents that are in the child's possession, subject to reasonable quantity limits imposed by the officer in charge of the youth justice facility.

13AZB Special assistance for person with inadequate knowledge of English language or disability

If the police officer who is detaining a person under this Part has reasonable grounds to believe that the person is unable because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—

(a) the police officer has an obligation under section 13AX(3) to arrange for the assistance of an interpreter in informing the person about—

(i) the effect of the police detention decision in relation to the person; and

(ii) the person's rights in relation to their detention under this Part; and

(b) the police officer has an obligation under section 13AZW(2) to give the person reasonable assistance to—

(i) choose a lawyer to act for the person in relation to the order; and

(ii) contact the lawyer.

S. 13AZB inserted by No. 32/2018 s. 9.



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Division 6—Questioning

Subdivision 1—Authority to question13AZC Questioning during detention

(1) Subject to this Division, a police officer may question a person being detained under this Part in connection with—

(a) a terrorist act in relation to which the police detention decision relating to the person was made; or

(b) any other terrorist act that—

(i) has occurred within 28 days before the day on which the police detention decision relating to the person was made; or

(ii) the authorised police officer who made the police detention decision has reasonable grounds to suspect could occur within 14 days after the day on which the police detention decision relating to the person was made.

(2) Before any questioning under subsection (1) commences, the police officer must inform the person being detained under this Part that—

(a) the person does not have to say or do anything but that anything the person does say or do may be given in evidence; and

(b) the person may communicate with or attempt to communicate with a lawyer (whether the term legal practitioner or lawyer is used); and

S. 13AZC inserted by No. 32/2018 s. 9.



59

(c) if the person is not a citizen or permanent resident of Australia—the person may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen; and

(d) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—the person may request the assistance of an interpreter.

(3) In addition, before any questioning under subsection (1) commences, the police officer must inform the person being detained under this Part of the reasons for the making of the police detention decision.

(4) The duration of any period of questioning of a person being detained under this Part must be reasonable.

(5) The person must also be given—

(a) a rest from questioning for a continuous period of 8 hours in any period of 24 hours of detention; and

(b) reasonable breaks during any period of questioning.

(6) This section does not prevent the questioning of a person being detained under this Part for the purposes of—

(a) ensuring the safety and wellbeing of the person; or



60

(b) allowing a police officer to comply with a requirement imposed by law on the police officer in relation to the detention of the person.

13AZD Questioning to be deferred to allow for interpreter

(1) This section applies if a police officer has reasonable grounds to believe that a person being detained under this Part is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

(2) A police officer must, before any questioning commences section 13AZC, arrange for the presence of a competent interpreter and defer the questioning until the interpreter is present.

13AZE Questioning to be deferred to enable communication with lawyer or consular office

Subject to section 13AZH or 13AZZB, a police officer must defer questioning under section 13AZC for a time that is reasonable in the circumstances to enable the person being detained to communicate, or attempt to communicate, with—

(a) a lawyer; orNote

See also sections 13AZV and 13AZW.

(b) if the person is not a citizen or permanent resident of Australia—the consular office of the country of which the person is a citizen.

13AZF Role of lawyers during questioning

If a person being detained under this Part arranges for a lawyer to be present during the questioning under section 13AZC, the police officer conducting the questioning, subject to section 13AZH or 13AZZB, must—

S. 13AZD inserted by No. 32/2018 s. 9.

S. 13AZE inserted by No. 32/2018 s. 9.

S. 13AZF inserted by No. 32/2018 s. 9.



61

(a) before any questioning commences, allow the person to communicate with the lawyer; and

(b) allow the lawyer to be present during any questioning and to give advice to the person.

13AZG Questioning of children

(1) This section applies if a person being detained under this Part is a child.

(2) Subject to section 13AZH or 13AZZB, a police officer must not question the child under section 13AZC unless—

(a) a parent or guardian of the child or, if a parent or guardian is not available, an independent person is present; and

(b) before any questioning commences, the police officer has allowed the child to communicate with the child's parent or guardian or the independent person.

(3) In addition but subject to subsection (5), if the child, or parent or guardian of the child, does not arrange for a lawyer to be present during questioning under section 13AZC, a police officer must request Victoria Legal Aid to arrange for a lawyer to be present during questioning.

(4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must arrange a lawyer (a VLA arranged lawyer) to be present during questioning and to offer to provide legal advice to the child.

(5) If during questioning of the child, a police officer believes on reasonable grounds that the VLA arranged lawyer is unreasonably interfering with the questioning, the police officer may stop that lawyer from being present during that questioning.Note

S. 13AZG inserted by No. 32/2018 s. 9.



62

In the case of a lawyer who is not a VLA arranged lawyer, see section 13AZH.

(6) During any questioning of the child, the child, the child's parent or guardian, the independent person or any lawyer who is present during questioning may request a break in the questioning if the child becomes distressed or unable to concentrate.

(7) A police officer conducting the questioning must not unreasonably refuse to accede to a request under subsection (6).

13AZH Communication with lawyers, consular officials, parents, guardians or independent person may be restricted

A police officer does not have to comply with section 13AZE, 13AZF or 13AZG(2) if the police officer believes on reasonable grounds that—

(a) the communication or contact would result in—

(i) a risk arising in relation to action being taken to prevent a terrorist act occurring; or

(ii) serious harm to a person; or

(iii) the destruction of evidence of, or relating to, a terrorist act; or

(iv) interference with the gathering of information about—

(A) a terrorist act; or

(B) the preparation for, or the planning of, a terrorist act; or

(v) a risk arising in relation to—

(A) the arrest of a person who is suspected of having committed

S. 13AZH inserted by No. 32/2018 s. 9.



63

an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(B) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or

(C) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(D) the service on a person of a Commonwealth control order; or

(b) the questioning is so urgent, having regard to the safety of other people, that it should not be delayed; or

(c) in the case of a lawyer who is present during the questioning, the lawyer is unreasonably interfering with the questioning.

Subdivision 2—Recording of questioning13AZI Definitions

In this Subdivision—

authorised person means any of the following—

(a) a member of Victoria Police personnel (other than a protective services officer);

(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;

S. 13AZI inserted by No. 32/2018 s. 9.



64

(c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;

(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;

(f) a lawyer representing—

(i) the State; or

(ii) an informant;

(g) a lawyer representing a person recorded under section 13AZK;

(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;

(i) a court or a person acting under the direction of a court;

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;

(k) the Information Commissioner appointed under the Freedom of Information Act 1982 or the Privacy and Data Protection Deputy Commissioner appointed under the Privacy and Data Protection Act 2014;

(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under



65

the direction of the Chief Examiner or an Examiner;

(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under the direction of the Commissioner;

(n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under the direction of the Inspector;

(o) a member of the Legislative Assembly or Legislative Council or a person acting under the direction of the member;

(p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition;

(q) a police officer or person acting under the direction of the police officer;

(r) a person engaged by a Department or agency to store or retrieve a record;

publish means—

(a) insert in a newspaper or other publication; or

(b) disseminate by broadcast, telecast or cinematograph; or

(c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;

recording means a recording made in accordance with section 13AZK;



66

representation has the same meaning as in the Evidence Act 2008.

13AZJ Digital recordings

If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the prescribed requirements, if any, in relation to the method of recording have been met.

13AZK Recording of questioning

(1) A police officer who questions a person under this Division must, in accordance with this section, record the following things (the questioning matter)—

(a) the questioning of the person;

(b) the giving of information to the person under section 13AZC(2) and (3);

(c) the person's responses (if any) to any questions and the giving of that information.

(2) If the person being questioned is a child, the police officer must make an audiovisual recording of the questioning matter.

(3) If the person being questioned is not a child, the police officer must ensure that—

(a) an audiovisual recording is made of the questioning matter if it is practicable to do so; or

(b) an audio recording is made of the questioning matter if it is not practicable for an audiovisual recording to be made of the questioning matter.

S. 13AZJ inserted by No. 32/2018 s. 9.

S. 13AZK inserted by No. 32/2018 s. 9.



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13AZL Person questioned to be given copy of recordings

(1) If the questioning of a person or the giving of information is recorded as required under section 13AZK, the police officer must give to the person or the person's lawyer without charge—

(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and

(b) if both an audio recording and an audiovisual recording were made—

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.

(2) The person or the lawyer representing the person may request an additional copy of the audiovisual recording referred to in subsection (1).

(3) On receiving a request under subsection (2), a police officer must give an additional copy of the audiovisual recording.

S. 13AZL inserted by No. 32/2018 s. 9.



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13AZM Evidence of representations

(1) Subject to subsection (2), evidence of a representation made by a person detained under this Part that is adverse to the person's interests is inadmissible as evidence against the person in a proceeding for an offence unless—

(a) that representation was recorded by audio recording or audiovisual recording under section 13AZK; and

(b) if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.

(2) A court may admit evidence of a representation made by a person detained under this Part that is otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—

(a) are exceptional; and

(b) justify the reception of the evidence.

13AZN Offences in relation to recordings

(1) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the person who was questioned and given information under section 13AZC and the audio recording or audiovisual recording is a recording of that questioning and that giving of information; or

S. 13AZM inserted by No. 32/2018 s. 9.

S. 13AZN inserted by No. 32/2018 s. 9.



69

(b) is a lawyer representing the person referred to in paragraph (a); or

(c) is an authorised person acting in the performance of their duties; or

(d) has possession of the recording in a sealed package in the course of their duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.

Penalty: In the case of a natural person, level 8 imprisonment (1 year maximum);

In the case of a body corporate, 600 penalty units.

(2) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with any civil or criminal proceeding and any inquiry before any court or tribunal; or

(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

(c) the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or

(d) the recording is played for purposes connected with disciplinary action against a lawyer; or

(e) the recording is played in accordance with the direction of a court under section 13AZO; or



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(f) the recording is played by an authorised person acting in the course of their duties.



(3) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—

(a) the person in relation to whom the recording was made; or

(b) a lawyer representing the person referred to in paragraph (a); or

(c) an authorised person acting in the performance of their duties; or

(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.



(4) A person, other than an authorised person acting in the performance of their duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 13AZO.




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(5) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 13AZP, except in accordance with the direction of a court under section 13AZO.



(6) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 13AZO.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum);


13AZO Court may give directions in relation to a recording

A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.

13AZP Retention of copy of recording

(1) The Chief Commissioner must keep a copy of a recording, if the recording has been made by a police officer under this Division, in safe custody.

(2) A recording referred to in subsection (1) must be kept for a period of 7 years from the making of the recording.

S. 13AZO inserted by No. 32/2018 s. 9.

S. 13AZP inserted by No. 32/2018 s. 9.



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(3) If a court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner retain the copy for a further period specified in the order.

(4) An application for an order under subsection (3) may be made by—


(b) an authorised person acting in the performance of the person's duties.

(5) The court must not make an order under subsection (3) unless—

(a) the court is satisfied that the applicant has given reasonable notice of the application to—

(i) the person in relation to whom the recording was made; and

(ii) the Chief Commissioner; and

(b) the court has given that person and the Chief Commissioner a reasonable opportunity to be heard.


court means—

(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding;

(b) in any other case, the Magistrates' Court.



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Division 7—Contact with other people13AZQ Contacting family members etc.

(1) This section applies subject to section 13AZZB.

(2) A person being detained under this Part is entitled to contact once any one or more of the following persons solely for the purposes of letting the person contacted know that the person being detained is safe and is being detained—

(a) the person's parents or one of person's other family members;

(b) if the person—

(i) lives with another person and that 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—

that other person or one of those other people;

(c) if the person is employed—the person's employer;

(d) if the person employs people in a business—one of the people the person employs in that business;

(e) if the person engages in a business together with another person or other people—that other person or one of those other people;

(f) if the police officer detaining the person agrees to the person contacting another person—that person.

S. 13AZQ inserted by No. 32/2018 s. 9.



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(3) The form of contact that the person being detained is entitled to have with another person under subsection (2) is by telephone or electronic communication.

(4) To avoid doubt, the person being detained under this Part is entitled, under subsection (2), to disclose—

(a) the fact that a police detention decision 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.

(5) In addition, a police officer detaining a person under this Part must allow the person, while being detained, to have further contact with one or more of the person's family members or any other person if it is reasonably practicable for that contact to happen.

(6) To avoid doubt, the person being detained is entitled to disclose the following to a person with whom the person has contact under subsection (5)—

(a) the fact that a police detention decision has been made in relation to the person;

(b) the fact that the person is being detained;


(7) The form of contact that the person being detained under this Part is entitled to have with another person under subsection (5) includes—

(a) being visited by that other person; and



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(b) communicating with that other person by telephone or electronic communication.

13AZR Contacting the Ombudsman or the IBAC

A person being detained under this Part is entitled to contact the Ombudsman under the Ombudsman Act 1973 or the IBAC.

13AZS Contacting the Commission for Children and Young People

(1) A person being detained under this Part who is a child is entitled to contact the Commission for Children and Young People.

(2) The form of contact that the child is entitled to have with another person under subsection (1) includes—



13AZT Contact with consular office


(2) A person being detained under this Part who is not a citizen or permanent resident of Australia is entitled to contact the consular office of the country of which the person is a citizen.

13AZU Contact with special counsel

A person being detained under this Part is entitled to contact a special counsel appointed under section 32 to represent the person's interests under Part 5 for the purposes of section 33(1)(b) or (2)(b).

S. 13AZR inserted by No. 32/2018 s. 9.

S. 13AZS inserted by No. 32/2018 s. 9.

S. 13AZT inserted by No. 32/2018 s. 9.

S. 13AZU inserted by No. 32/2018 s. 9.



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13AZV Contacting lawyer


(2) A person being detained under this Part is entitled to contact a lawyer but solely for the purpose of—

(a) the person's entitlement to communicate with a lawyer under section 13AZE or 13AZF; or

(b) obtaining advice from the lawyer about the person's legal rights in relation to—

(i) the police detention decision made in relation to the person; or

(ii) the questioning of the person under Division 6; or

(iii) the treatment of the person while in detention under this Part; 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—

(i) for a remedy relating to—

(A) the police detention decision made in relation to the person; or

(B) the treatment of the person while in detention under this Part; or

(ii) relating to an application for a preventative detention order, a prohibited contact order or a counter-terrorism intelligence protection 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

S. 13AZV inserted by No. 32/2018 s. 9.



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under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013 or an investigation by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—

(i) the making of the police detention decision in relation to the person; or

(ii) the treatment of the person by a police officer while in detention under this Part; or

(e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court or tribunal in a proceeding to which the person is a party or in which the person otherwise has standing to appear that is to take place while the person is being detained under this Part.

(3) The form of contact that the person being detained under this Part is entitled to have with a lawyer under subsection (2) includes—

(a) being visited by the lawyer; and

(b) communicating with the lawyer by telephone or electronic communication; and

(c) exchanging legal documents with the lawyer.

13AZW Police assistance in choosing a lawyer in certain cases

(1) If—

(a) the person being detained under this Part (or, if the person is a child or is incapable of managing their affairs, a person with whom the person has contact under section 13AZZ) asks to be allowed to contact a particular lawyer under section 13AZV(2); and

S. 13AZW inserted by No. 32/2018 s. 9.



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(b) either—

(i) the person is not entitled to contact that lawyer because of section 13AZH or 13AZZB; 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 section 13AZV(2).Note


(2) If the police officer who is detaining a person under this Part has reasonable grounds to believe that—

(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 police 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 section 13AZV(2).

(3) In recommending lawyers as part of giving a person assistance under subsection (1) or (2), 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



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Attorney-General's Department of the Commonwealth.

(4) Despite subsection (3) but subject to section 13AZZB, the person is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (3).

13AZX Monitoring contact under section 13AZQ with family members etc.

(1) The contact that a person being detained under this Part has with another person under section 13AZQ may take place only if it is conducted in such 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 this Part.

(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.

(3) Without limiting subsection (2), the interpreter referred to in that subsection may be a police officer.

(4) If the person being detained indicates that they wish 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.

S. 13AZX inserted by No. 32/2018 s. 9.



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13AZY Monitoring contact under section 13AZV with lawyers

(1) Subject to subsection (2), the contact that a person being detained under this Part has with a lawyer under section 13AZV must not be monitored.Note


(2) The contact that a person being detained under this Part has with a lawyer under section 13AZV may be monitored if the nominated senior police officer in relation to the detained person is satisfied that it is reasonably necessary that the contact be monitored.

(3) If the contact that a person being detained under this Part has with a lawyer under section 13AZV is to be monitored, the contact may take place only if it is conducted in such 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 this Part.



(6) If the person being detained indicates that they wish the contact to take place in a language other

S. 13AZY inserted by No. 32/2018 s. 9.



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than English, the police officer who is detaining the person must—



(7) The following are not admissible in evidence against the person who is being, or has been, detained under this Part in any proceedings in a court or tribunal—

(a) any communication between the person and a lawyer for a purpose referred to in section 13AZV(2)(a), (b), (c), (d) or (e);

(b) any information derived from, or obtained as a result of, the monitoring of any communication between the person and a lawyer for a purpose referred to in section 13AZV(2)(a), (b), (c), (d) or (e).

(8) This section does not apply to any contact the person being detained has with a lawyer under section 13AZV for the purpose of any communication under section 33(1)(b) or (2)(b).

13AZZ Special contact rules for person who is a child or incapable of managing own affairs

(1) This section applies—

(a) if the person being detained under this Part—

(i) is a child; or

S. 13AZZ inserted by No. 32/2018 s. 9.



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(ii) is incapable of managing their affairs; and

(b) subject to section 13AZZB.

(2) The person is entitled, while being detained, to have contact with—

(a) a parent or guardian of the person; or

(b) another person who—

(i) is able to represent the person's interests; and

(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and

(iii) is not a police officer; and

(iv) is not an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth); and

(v) is not a member (however described) of a police force or police service of another State or of a Territory; and

(vi) is not an officer or employee of the Australian Security Intelligence Organisation.

(3) To avoid doubt—

(a) if the person being detained (the detainee) has 2 parents or 2 or more guardians, the detainee is entitled to have contact, under subsection (2), with each of those parents or guardians; and



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(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 police detention decision has been made in relation to the detainee;

(ii) the fact that the detainee is being detained;

(iii) the period for which the detainee is being detained.

(4) The form of contact that the person being detained is entitled to have with another person under subsection (2) includes—


(b) communicating with the other person by telephone or electronic communication.

(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is—

(a) 2 hours; or

(b) any longer period that is permitted by the police officer who is detaining the person.

(6) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under this Part.

(7) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in



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that language can be effectively monitored with the assistance of an interpreter.


(9) If the person being detained indicates that they wish the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must—



13AZZA Nominated senior police officer must inform parent or guardian not to disclose certain information


(a) the person being detained under this Part has contact under section 13AZZ(2) with a parent or guardian of the person; and

(b) contact with another parent or guardian of the person is prohibited under section 13AZZB.

(2) The nominated senior police officer in relation to the person being detained must inform the parent or guardian with whom the person has had contact that the parent or guardian must not disclose to the other parent or guardian information of the kind referred to in section 13AZZR(1)(b)(i), (ii) or (iii).

S. 13AZZA inserted by No. 32/2018 s. 9.



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Note


13AZZB Contact prohibited in certain cases

The authorised police officer who made the police detention decision that relates to the person being detained under this Part may prohibit contact under section 13AZQ, 13AZT, 13AZV, or 13AZZ if the officer believes on reasonable grounds that contact would result in—

(a) a risk arising in relation to action being taken to prevent a terrorist act occurring; or

(b) serious harm to a person; or

(c) the destruction of evidence of, or relating to, a terrorist act; or

(d) interference with the gathering of information about—

(i) a terrorist act; or

(ii) the preparation for, or the planning of, a terrorist act; or

(e) a risk arising in relation to—

(i) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(ii) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or

S. 13AZZB inserted by No. 32/2018 s. 9.



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(iii) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(iv) the service on a person of a Commonwealth control order.

Division 8—Taking and using identification material

13AZZC References to appropriate person in this Division

A reference in this Division to an appropriate person in relation to a child or a person who is incapable of managing their affairs (a vulnerable person), is a reference to a person who—

(a) is capable of representing the vulnerable person's interests; and

(b) as far as is practicable in the circumstances, is acceptable to the vulnerable person and the police officer who is detaining the vulnerable person under this Part; and

(c) is none of the following—

(i) a police officer;

(ii) an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth);

(iii) a member (however described) of a police force or police service of another State or of a Territory;

(iv) an officer or employee of the Australian Security Intelligence Organisation.

13AZZD Taking identification material

S. 13AZZC inserted by No. 32/2018 s. 9.

S. 13AZZD inserted by No. 32/2018 s. 9.



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(1) A police officer must not take identification material from a person who is being detained under this Part except in accordance with this section.Note


(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 police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person in relation to whom the police detention decision is made; or

(c) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of documenting an illness or injury suffered by the person while being detained under this Part.

(3) A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4) Subject to this section, a police officer must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from—

(a) a child; or

(b) a person who is incapable of managing their affairs—



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unless the Magistrates' Court or the Children's Court (in the case of a child) orders that the material be taken.Note


(5) In deciding whether to make an order referred to in subsection (4), the Magistrates' Court or the Children's Court (as the case requires) must have regard to—

(a) the age, or any disability, of the person; and

(b) such other matters as it thinks fit.

(6) The taking of identification material from a child, or a person who is incapable of managing their affairs, must be done in the presence of—


(b) if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Notes

1 For appropriate person, see section 13AZZC.

2 A contravention of this subsection may be an offence under section 13AZZX.

(7) Despite this section, identification material may be taken from a child, or a person who is capable of managing their affairs, if—

(a) subsections (9) and (10) are satisfied; or

(b) subsection (9) or (10) is satisfied (but not both) and the Children's Court orders that the material be taken.

(8) In deciding whether to make an order referred to in subsection (7)(b), the Children's Court



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must have regard to the matters set out in subsection (5).

(9) For the purposes of subsection (7), this subsection is satisfied if the child or person agrees in writing to the taking of the material.

(10) For the purposes of subsection (7), this subsection is satisfied if either of the following agrees in writing to the taking of the material—

(a) a parent or guardian of the child or person;

(b) if a parent or guardian is not acceptable to the child or person—another appropriate person.

Note

For appropriate person, see section 13AZZC.

13AZZE Use of identification material

(1) This section applies if identification material is taken under section 13AZZD from a person being detained under this Part.

(2) The material may be used only for the purpose of determining whether the person is the person in relation to whom the police detention decision is made.Note


(3) To avoid doubt, if the person is being detained in a youth justice facility under this Part, the material may be provided to the Secretary to the Department of Justice and Regulation and used by them only for the purpose of identifying the person while the person is detained in the youth justice facility.

13AZZF Destruction of identification material


S. 13AZZE inserted by No. 32/2018 s. 9.

S. 13AZZF inserted by No. 32/2018 s. 9.



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(a) a period of 12 months elapses after the identification material is taken under this Division from a person detained under this Part (the holding period); and

(b) proceedings in respect of—

(i) the police detention decision relating to the person; or

(ii) the treatment of the person while in detention under this Part—

have not been commenced, or have been commenced and discontinued or completed, within the holding period.

(2) The identification material (including identification material provided to the Secretary to the Department of Justice and Regulation) must be destroyed as soon as practicable after the end of the holding period.

Division 9—End of and release from detention13AZZG When does detention under this Part end?

(1) Subject to this section, a person's detention under this Part ends—

(a) at the end of the maximum police detention period; or

(b) if the person—

(i) is taken into custody for the purposes of Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958 in relation to the commission of an indictable offence in Victoria; or

(ii) is arrested under Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth; or

S. 13AZZG inserted by No. 32/2018 s. 9.



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(iii) becomes a protected suspect (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth).

(2) A person's detention under this Part must end before the end of the maximum police detention period if the police officer detaining the person, or the nominated police senior officer in relation to that person, is satisfied that the grounds on which the police detention decision in relation to the person was made have ceased to exist.Note

The nominated police senior officer may be satisfied that the grounds on which the police detention decision in relation to the person cease to exist after the conduct of a periodic review.

(3) In addition, if a preventative detention order is made in relation to the person and the order takes effect before the end of the maximum police detention period, the person's detention under this Part ends when the order takes effect.

(4) If subsection (1)(a) or (2) applies, the police officer who is detaining a person under this Part must, without delay, release the person from detention or arrange for the person's release from detention.

13AZZH Process for release of person from detention by police officer

(1) The police officer who releases, or arranges in writing for the release of, a person from detention under this Part must give the person a written statement that the person is being released from

S. 13AZZH inserted by No. 32/2018 s. 9.



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that detention. The statement must be signed by the police officer.

(2) Subsection (1) does not apply if the police officer releases, or arranges in writing for the release of, the person from detention so that the person may be dealt with—

(a) under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; or

(b) in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; orNote

See also section 13AZZI.

(c) under the provisions of Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth.

13AZZI Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth


(a) a person is being detained under this Part; and

(b) a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth is in force in relation to the person; and

(c) a copy of the warrant is given to the police officer who is detaining the person under this Part.

(2) The police officer must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.

S. 13AZZI inserted by No. 32/2018 s. 9.



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(3) Without limiting subsection (2), the police officer may, under section 13AZZH, release, or arrange in writing for the release of, the person from detention under this Part so that the person may be dealt with in accordance with the warrant.

(4) To avoid doubt, the fact that the person is released from detention under this Part so that the person may be—

(a) questioned before a prescribed authority under the warrant; or

(b) detained under the warrant in connection with that questioning—

does not extend the period for which the police detention decision remains in effect in relation to the person.

Division 10—Oversight by nominated senior police officers

13AZZJ Nominated senior police officers

(1) The Chief Commissioner, as soon as practicable after the making of the police detention decision in relation to a person, must nominate a police officer of or above the rank of superintendent (a nominated senior police officer) in relation to that person.

(2) A nominated senior police officer must be someone who was not involved in the making of the police detention decision.

13AZZK Role of nominated senior police officer

A nominated senior police officer must—

S. 13AZZJ inserted by No. 32/2018 s. 9.

S. 13AZZK inserted by No. 32/2018 s. 9.



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(a) oversee the exercise of powers under this Part and the performance of obligations in relation to the detention of the person under this Part; and

(b) in accordance with section 13AZZN, undertake reviews as to whether the person's detention under this Part should continue; and

(c) receive and consider any representations that are made under section 13AZZL.

13AZZL Representations to a nominated senior police officer

(1) The following persons are entitled to make representations to a nominated senior police officer in relation to a specified matter—

(a) a person being detained under this Part;

(b) the Ombudsman under the Ombudsman Act 1973 or the IBAC Commissioner;

(c) the Commission for Children and Young People;

(d) a lawyer acting for a person being detained under this Part;

(e) a person with whom a person being detained under this Part has contact under section 13AZZ(2);

(f) a person exercising authority under the police detention decision in relation to the person or implementing or enforcing the decision (including, if a child is detained in a youth justice facility under this Part, the officer in charge of the facility or any other person involved in the child's detention at that facility).

S. 13AZZL inserted by No. 32/2018 s. 9.



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(2) For the purposes of subsection (1), a specified matter is—

(a) the exercise of powers under this Part and the performance of obligations in relation to the detention of a person under this Part; or

(b) without limiting paragraph (a), compliance with Division 9; or

(c) the treatment of the person while in detention under this Part.

(3) A representation under subsection (1) may be made for the purpose of a periodic review.

13AZZM Integrity and children oversight bodies to be notified of police detention decision and person being taken into custody

(1) The nominated senior police officer in relation to a person being detained under this Part must give written notice of the specified information to the following entities as soon as practicable after the officer knows of that information—

(a) the Ombudsman under the Ombudsman Act 1973;

(b) the IBAC Commissioner;

(c) if the person is a child—

(i) the Secretary to the Department of Justice and Regulation; and

(ii) the Commission for Children and Young People.

(2) For the purposes of subsection (1), the specified information is—

(a) the making of the police detention decision; and

(b) if the person in relation to whom the police detention decision is made is taken into

S. 13AZZM inserted by No. 32/2018 s. 9.



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custody under this Part, that the person has been taken into custody.

13AZZN Periodic review of detention under this Part

(1) The nominated senior police officer in relation to a person being detained under this Part must review whether the person's detention under this Part should continue.

(2) Without limiting subsection (1), the nominated senior police officer must—

(a) review the basis for detention under this Part including, whether the grounds on which the police detention decision in relation to the person was made have ceased to exist; and

(b) assess—

(i) whether there are reasonable grounds to believe that the person has committed an indictable offence in Victoria; or

(ii) whether there is sufficient information for an investigating official to arrest the person in respect of the commission of an offence in Victoria, and because of that information, for the person to be in the company of an investigating official to be questioned or to participate in an investigation in order to determine the person's involvement (if any) in the commission of that offence; or

(iii) whether there are reasonable grounds to believe that the person has committed a Commonwealth offence (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth); or

(iv) whether the person could be a protected suspect (within the meaning of Part IC

S. 13AZZN inserted by No. 32/2018 s. 9.



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of the Crimes Act 1914 of the Commonwealth).

(3) In conducting a review, the nominated senior police officer must have regard to—

(a) any submission of a Public Interest Monitor under section 4K in relation to the review; and

(b) any representation made under section 13AZZL.

(4) The nominated senior police officer must conduct a review as soon as practicable after the person is taken into custody under this Part and, after that, no later than 12 hours after the last review.

(5) In deciding when to conduct a review, the nominated senior police officer must have regard to a Public Interest Monitor's availability to perform and exercise the Monitor's functions and powers under Division 2 of Part 1A in relation to the review before it is conducted.

(6) For the purposes of subsection (5), the nominated senior police officer must contact a Public Interest Monitor, in accordance with the regulations, to ascertain that availability.

(7) On completing a review, the nominated senior police officer must, without delay, notify, in writing, the police officer who is detaining that person under this Part of the nominated senior police officer's conclusions on the review.Note

See also section 4H.


investigating official has the meaning given by section 464(2) of the Crimes Act 1958.



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Division 11—Restrictions on disclosure of information relating to detention

13AZZO Definitions

In this Division—

detainee means a person detained under this Part.

13AZZP Detainees prohibited from disclosing certain information

A detainee commits an offence if—

(a) the detainee intentionally discloses to another person—

(i) the fact that a police detention decision has been made in relation to them; or

(ii) the fact that they are being detained under this Part; or

(iii) the fact that contact has been prohibited under this Part; and

(b) the disclosure occurs while the detainee is being detained under this Part; and

(c) the disclosure is not one that the detainee is entitled to make under section 13AZQ, 13AZR, 13AZS, 13AZT, 13AZU, 13AZV or 13AZZ.

Penalty: Level 6 imprisonment (5 years maximum).

13AZZQ Lawyers prohibited from disclosing certain information

(1) A lawyer commits an offence if—

(a) the detainee contacts the lawyer under section 13AZV or a person with whom the detainee has contact under section 13AZZ contacts the lawyer for a purpose for which

S. 13AZZO inserted by No. 32/2018 s. 9.

S. 13AZZP inserted by No. 32/2018 s. 9.

S. 13AZZQ inserted by No. 32/2018 s. 9.



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the detainee is entitled to contact a lawyer under section 13AZV; and

(b) the lawyer intentionally discloses to another person—

(i) the fact that a police detention decision has been made in relation to the detainee; or

(ii) the fact that the detainee is being detained under this Part; or

(iii) 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 this Part; and

(d) the disclosure is not made for the purposes of—

(i) a proceeding in a court for a remedy relating to—

(A) the police detention decision made in relation to the detainee; or

(B) the treatment of the detainee while in detention under this Part; or

(ii) a proceeding in a court relating to an application for a preventative detention order, a prohibited contact order or a counter-terrorism intelligence protection order; or

(iii) a complaint to the Ombudsman under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013, a complaint under section 52 of the Independent Broad-based Anti-corruption Commission



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Act 2011 or an investigation by the IBAC under Part 3 of that Act in relation to—

(A) the making of the police detention decision; or

(B) the treatment of the detainee by a police officer while in detention under this Part; or

(iv) communicating with the Commission for Children and Young People in relation to the performance or exercise of the Commission's functions or powers under or in relation to this Part; or

(v) making representations to the nominated senior police officer in relation to the detainee, or another police officer involved in the detainee's detention, about—

(A) the exercise of powers under this Part; or

(B) the performance of obligations in relation to the detainee's detention under this Part; or

(C) the treatment of the detainee while in detention under this Part.


(2) To avoid doubt, a lawyer does not contravene subsection (1) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period.

13AZZR Parents or guardians prohibited from disclosing certain information

S. 13AZZR inserted by No. 32/2018 s. 9.



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(1) A parent or guardian of a detainee commits an offence if—

(a) the detainee has contact with the parent or guardian under section 13AZZ; and

(b) the parent or guardian intentionally discloses to another person—



(iii) any information that the detainee gives the parent or 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 13AZZ; and

(d) the disclosure occurs while the detainee is being detained under this Part; and

(e) the disclosure is not made for the purposes of—

(i) a complaint to the Ombudsman under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 in relation to the making of the police detention decision or the treatment of the detainee by a police officer while in detention under this Part; or



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(ii) contacting a lawyer whom the detainee is entitled to contact under section 13AZV for any purpose for which the detainee is entitled to contact that lawyer under that section; or

(iii) making representations to the nominated senior police officer in relation to the detainee, or another police officer involved in the detainee's detention, about—

(A) the exercise of powers under this Part; or

(B) the performance of obligations in relation to the detainee's detention under this Part; or

(C) the treatment of the detainee while in detention under this Part.


(2) A person who is employed in the Department of Justice and Regulation, or the Department of Health and Human Services, under Part 3 of the Public Administration Act 2004 does not contravene subsection (1) merely by making a disclosure to another person employed in that Department in the exercise of powers or performance of functions under or in connection with any Act.Note

A child may be in the custody of the Secretary to the Department of Justice and Regulation under the Children, Youth and Families Act 2005. The Secretary to the Department of Health and Human Services may have parental responsibility for a child under that Act or be the guardian of a child under the Adoption Act 1984. A Secretary's functions may be delegated to staff in the Department.



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(3) To avoid doubt, a person does not contravene subsection (1) merely by letting another person know that the detainee is safe but is not able to be contacted for a specified period.

13AZZS Parent or guardian of detainee prohibited from disclosing certain information to another parent or guardian

A parent or guardian of a detainee commits an offence if—

(a) the detainee has contact with the parent or guardian under section 13AZZ; and

(b) while the detainee is being detained under this Part, the parent or guardian intentionally discloses any of the following information to another parent or guardian of the detainee (the other parent or guardian)—

(i) the fact that a police detention decision has been made in relation to the detainee;

(ii) the fact that the detainee is being detained under this Part;

(iii) any information that the detainee gives the parent or guardian in the course of the contact; and

(c) when the disclosure is made, the detainee has not had contact with the other parent or guardian under section 13AZZ while being detained under this Part; and

S. 13AZZS inserted by No. 32/2018 s. 9.



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(d) when the disclosure is made, the parent or guardian has been informed under section 13AZZA(2) by the nominated senior police officer in relation to the detainee that the parent or guardian must not disclose information of that kind to the other parent or guardian.


13AZZT Nominated senior police officer may inform parent or guardian they cannot contact other parent or guardian in certain cases

(1) This section applies if a parent or guardian of a detainee informs the nominated senior police officer in relation to the detainee that the parent or guardian proposes to disclose information of the kind mentioned in section 13AZZS(b) to another parent or guardian of the detainee.

(2) The nominated senior police officer may inform the parent or guardian that the detainee is not entitled to contact the other parent or guardian under section 13AZZ.

Note

The parent or guardian may commit an offence against section 13AZZS if the other parent or guardian is a person the detainee is not entitled to have contact with under section 13AZZ and the parent or guardian does disclose information of that kind to the other parent or guardian. This is because of the operation of section 13AZZS(c).

13AZZU Interpreters prohibited from disclosing certain information

A person who is an interpreter and who assists in monitoring the contact that a detainee has with someone while the detainee is being detained under this Part commits an offence if—

S. 13AZZT inserted by No. 32/2018 s. 9.

S. 13AZZU inserted by No. 32/2018 s. 9.



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(a) the person intentionally discloses to another person—



(iii) any information that the person obtains in the course of assisting in the monitoring of that contact; and

(b) the disclosure occurs while the detainee is being detained under this Part.


13AZZV Disclosure recipient prohibited from disclosing certain information they receive

A person (a disclosure recipient) commits an offence if—

(a) a person (an earlier discloser) discloses to the disclosure recipient—

(i) the fact that a police detention decision has been made in relation to a person; or

(ii) the fact that a person is being detained under this Part; or

(iii) any information that a person communicates to a person while the person is being detained under this Part; and

(b) the disclosure by the earlier discloser to the disclosure recipient contravenes—

(i) section 13AZZP, 13AZZQ, 13AZZR, 13AZZS or 13AZZU; or

S. 13AZZV inserted by No. 32/2018 s. 9.



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(ii) this section; and

(c) the disclosure recipient intentionally discloses that information to another person; and

(d) the disclosure by the disclosure recipient occurs while the person referred to in paragraph (a)(i), (ii) or (iii) is being detained under this Part; and

(e) the disclosure is not made to a person exercising authority under this Part or implementing or enforcing the decision or with responsibility for the safety or wellbeing of the person being detained under this Part.


13AZZW Monitors of contact between detainee and lawyer prohibited from disclosing certain information

A person commits an offence if—

(a) the person, under section 13AZY, monitors, or assists in the monitoring of, contact that a detainee has with a lawyer under section 13AZV; and

(b) information is communicated in the course of that contact; and

(c) the information is communicated for one of the purposes referred to in section 13AZV(2); and

(d) the person intentionally discloses that information to another person.

S. 13AZZW inserted by No. 32/2018 s. 9.



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Note

See also section 13AZZ(5).

Division 12—Miscellaneous13AZZX Offences of contravening safeguards


(a) the person does an act or omits to perform an act; and

(b) the act or omission contravenes—

(i) section 13AK(1); or

(ii) section 13AL(2); or

(iii) section 13AW(1); or

(iv) section 13AY; or

(v) section 13AZ(1); or

(vi) section 13AZW(1); or

(vii) section 13AZY(1); or

(viii) section 13AZZA(2); or

(ix) section 13AZZD(1), (4) or (6); or

(x) section 13AZZE(2).


13AZZY Police detaining person under a police detention decision


(a) a number of police officers are detaining, or involved in the detention of, a person under this Part at a particular time; and

S. 13AZZX inserted by No. 32/2018 s. 9.

S. 13AZZY inserted by No. 32/2018 s. 9.



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(b) a power or obligation is expressed in this Part to be conferred or imposed on the police officer detaining the person.

(2) For the purposes of this Part, the power or obligation is conferred or imposed at that time on the most senior of those police officers.

13AZZZ Ombudsman etc. functions and powers not affected

This Part does not affect a function or power of the Ombudsman under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 or Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

13AZZZA Law relating to legal professional privilege and client legal privilege not affected

To avoid doubt, this Part does not affect the law relating to legal professional privilege or client legal privilege.

13AZZZB Report to the Victorian Inspectorate

(1) If an authorised police officer makes a police detention decision in relation to a person and that person's detention under this Part ends in accordance with Division 9, the authorised police officer must, no later than 7 days after the end of the person's detention, make a report to the Victorian Inspectorate in accordance with this section.

(2) The report must state—

(a) the name of the authorised police officer who made the police detention decision; and

(b) the date and time that the person was taken into custody and detained under this Part; and

S. 13AZZZ inserted by No. 32/2018 s. 9.

S. 13AZZZA inserted by No. 32/2018 s. 9.

S. 13AZZZB inserted by No. 32/2018 s. 9.



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(c) the date and time that the detention of the person under this Part ended; and

(d) whether the person was arrested, detained under a preventative detention order or released in accordance with Division 9; and

(e) the name of the nominated senior police officer in relation to the person.

13AZZZC Person's detention does not prevent provision of medical, dental, psychiatric, physiological or pharmaceutical services

Nothing in this Part or a police detention decision prevents a person detained under this Part being taken to a place and detained there in connection with the carrying out of an examination for, or the provision of, any necessary medical, dental, psychiatric, physiological or pharmaceutical services.

S. 13AZZZC inserted by No. 32/2018 s. 9.



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Part 2A—Preventative detention orders


13A Object of Part

The object of this Part is to allow a person to be taken into custody and detained for up to 14 days in order to—

(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days; or

(b) preserve evidence of, or relating to, a recent terrorist act.

* * * * *

* * * * *

Pt 2A (Headings and ss 13A–13ZV) inserted by No. 5/2006 s. 4.


S. 13A(a) substituted by No. 32/2018 s. 41(1).

Note to s. 13A repealed by No. 32/2018 s. 41(2).

S. 13B inserted by No. 5/2006 s. 4, amended by Nos 48/2006 s. 42(Sch. item 35.1), 82/2012 s. 167(1), 17/2014 s. 160(Sch. 2 item 97), 37/2014 s. 10(Sch. item 167.6), repealed by No. 32/2018 s. 10.



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Division 2—Preventative detention orders13C Application for preventative detention order

(1) Subject to subsection (1A), an authorised police officer (the applicant) may apply to the Supreme Court for a preventative detention order in relation to a person (the subject) if—

(a) the applicant is satisfied that—

(i) there are reasonable grounds to suspect that the subject—


(B) possesses or has under his or her control (whether solely or jointly with any other person) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or


(ii) making the order would substantially assist in preventing a terrorist act occurring; and

(iii) detaining the subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii); or

S. 13C inserted by No. 5/2006 s. 4.

S. 13C(1) amended by Nos 37/2014 s. 10(Sch. item 167.7), 32/2018 s. 11(1).



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(b) the applicant is satisfied that—


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

(iii) detaining the subject for the period for which the applicant is seeking to have him or her detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii).

(1A) An authorised police officer must make an application under subsection (1) if the person is a child and is in detention under Part 2AA as soon as practicable after the child is taken into custody under that Part but no later than 36 hours after the child is taken into custody under that Part.


13D Form and content of application

(1) An application under section 13C must—

(a) be made in writing; and

(b) set out the facts and other grounds on which the applicant considers that the preventative detention order should be made; and

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

S. 13C(1A) inserted by No. 32/2018 s. 11(2).

S. 13C(2) substituted by No. 32/2018 s. 42.




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(d) set out the information (if any) that the applicant has about the person's age and capacity to manage his or her affairs; and

(e) set out the following—

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

(ii) the information (if any) that the applicant has about—

(A) the outcomes and particulars of all previous requests for Commonwealth control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(B) the outcomes and particulars of all previous applications for variations of Commonwealth control orders made in relation to the person;

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

(iia) set out the information (if any) that the applicant has about any periods for which the person has been detained under Part 2AA; and

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

S. 13D(1)(e)(ii)(C) amended by No. 32/2018 s. 12(1)(a).

S. 13D(1)(e)(iia) inserted by No. 32/2018 s. 12(1)(b).



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

(2) To avoid doubt, subsection (1)(g) does not require counter-terrorism intelligence to be included in the summary.

(3) 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 preventative detention order referred to in paragraph (a) was made.Note

See section 13K(1).

(3A) If—

(a) a police detention decision 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 Part 2AA; and

S. 13D(2) substituted by No. 32/2018 s. 12(2).

S. 13D(3A) inserted by No. 32/2018 s. 12(3).



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(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 police detention decision was made.Note

See section 13K(1A).

(4) If—

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

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

(c) an application is made for 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 referred to in paragraph (a) was made.Note

See section 13K(2).



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(5) The information in the application must be sworn or affirmed by the applicant.

* * * * *

(6) An application may only be made without notice of it being given to the person in relation to whom the preventative detention order is being sought if the person is not in detention—

(a) under Part 2AA; or

(b) under an order made under a corresponding preventative detention law.

(7) The applicant must give notice of the application to the Secretary to the Department of Justice and Regulation if the person in relation to whom a preventative detention order is being sought is under 18 years of age.

(8) The validity of an application is not affected by a failure to comply with subsection (7).

13DA Public Interest Monitor to be notified of application

The applicant for a preventative detention order must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.

S. 13D(5) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 13D(5) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).S. 13D(6) substituted by No. 32/2018 s. 12(4).

S. 13D(7) inserted by No. 30/2006 s. 6(1), amended by No. 32/2018 s. 79(1).

S. 13D(8) inserted by No. 30/2006 s. 6(1).

S. 13DA inserted by No. 72/2011 s. 47.



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13E Preventative detention orders

(1) The Supreme Court may, on an application under section 13C, make a preventative detention order in relation to a person if—

(a) satisfied on reasonable grounds that—

(i) the person—


(B) possesses or has under his or her control (whether solely or jointly with any other person) a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or


(ii) making the order would substantially assist in preventing a terrorist act occurring; and

(iii) detaining the person for the period for which he or she is to be detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii); or

(b) satisfied on reasonable grounds that—


(ii) it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act; and

(iii) detaining the person for the period for which he or she is to be detained under the order is reasonably necessary for the purpose referred to in subparagraph (ii).




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(1A) In making an order under this section, the Supreme Court must have regard to any submissions made by the Public Interest Monitor.

(1B) The Supreme Court may decide that it is satisfied as required by subsection (1) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a preventative detention order.


(2A) Without limiting subsection (1), the Supreme Court may make a preventative detention order subject to—

(a) a condition that prohibits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order (a questioning prohibition condition); or

(b) a condition (a questioning limitation condition) that limits the questioning, under Division 5A, of the person in relation to whom the order is made while the person is detained under the order to specified times in a day or for a specified period, or both.

(2B) The Supreme Court may make a preventative detention order subject to a questioning prohibition condition or questioning limitation condition if it is satisfied, on reasonable grounds, that in all the circumstances it is appropriate to do so.

S. 13E(1A) inserted by No. 72/2011 s. 48(1).S. 13E(1B) inserted by No. 32/2018 s. 66.

S. 13E(2) substituted by No. 32/2018 s. 43.

S. 13E(2A) inserted by No. 32/2018 s. 13(1).

S. 13E(2B) inserted by No. 32/2018 s. 13(1).



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(2C) Without limiting subsection (1), in the case of an application under section 13C in relation to a child, the Supreme Court may make a preventative detention order subject to conditions if it is satisfied, on reasonable grounds, that in all the circumstances it is appropriate to do so.

(3) The Supreme Court may refuse to make a preventative detention order unless—

(a) the authorised police officer applying for it gives the Court any further information that it requests concerning the grounds on which the order is sought; and

(b) in the case of an application under section 13C in relation to a child and in relation to which the Court is considering making the order subject to conditions, the authorised police officer applying for the order satisfies the Court that any such conditions can be met.

(4) The Supreme Court may, if in its opinion it is desirable to do so, make an interim preventative detention order pending the hearing and final determination of the application.Note

The maximum period during which a person may be detained under an interim order is 48 hours or until the final determination of the application, whichever is the later: see subsection (6) and section 13G(2).

(5) If the Supreme Court makes an interim preventative detention order, it must—

(a) specify a day on which, and time at which, the hearing of the application is to be resumed; and

S. 13E(2C) inserted by No. 32/2018 s. 13(1).

S. 13E(3) amended by No. 37/2014 s. 10(Sch. item 167.7), substituted by No. 32/2018 s. 13(2).

S. 13E(4) amended by No. 32/2018 s. 13(3).



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(b) direct the applicant to cause notice of the resumed hearing to be given to—

(i) the person in relation to whom the interim order is made; and

(ii) if the applicant is aware of the identity of a lawyer who acts for that person in relation to any matter, that lawyer.

(5A) The applicant must notify a Public Interest Monitor of the resumed hearing in accordance with the regulations under the Public Interest Monitor Act 2011.

(6) An interim preventative detention order that, but for this subsection, would cease to have effect before the application is finally determined, continues to have effect, subject to section 13G(1), until the application is finally determined.

(7) On finally determining an application following the making of an interim preventative detention order, the Supreme Court may by order—

(a) confirm the order without variation or vary the period specified in the order as the period during which the person in relation to whom it is made may be detained under it or vary the order to include, or omit, a provision of a kind referred to in section 13F(6); orNote

The period of detention in the confirmed order may be extended, or further extended, under section 13I.

(b) revoke the order if not satisfied as mentioned in subsection (1).

(8) If the person in relation to whom the interim preventative detention order is made is being detained in a prison or youth justice facility, the applicant for that order must cause a copy of any


S. 13E(8) amended by Nos 48/2006 s. 42(Sch. item 35.2), 32/2018 s. 79(2).



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order made under subsection (7) to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

(9) On the hearing by the Supreme Court of an application under section 13C (including a resumed hearing referred to in subsection (5))—

(a) the person in relation to whom a preventative detention order is being sought (including a person in relation to whom an interim preventative detention order is in force or a person detained under Part 2AA) is entitled to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions; but

(b) the absence of that person does not prevent the Supreme Court from determining, or finally determining, the application.

(10) If the person who is the subject of an application to the Supreme Court under section 13C is not legally represented on the hearing of the application (including a resumed hearing referred to in subsection (5)), the Supreme Court may order Victoria Legal Aid to provide legal representation for that person on that hearing if satisfied that it is in the interests of justice to do so having regard to the financial circumstances of that person or any other circumstances.

(11) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (10).

13F Nature of preventative detention order

(1) A preventative detention order is an order that the person in relation to whom it is made may be—

S. 13E(9)(a) amended by No. 32/2018 s. 13(4).




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(a) taken into custody unless the person is already being detained under—

(i) a preventative detention order, or an order for the person's detention made under a corresponding preventative detention law, that is in force or was in force immediately before the making of the new order; or

(ii) Part 2AA; and

(b) detained under the preventative detention order 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 of time after the start.

(2) The order must be in writing.

(3) Subject to section 13G, the period of time specified in the order under subsection (1)(b)(ii) must not exceed 14 days.

(4) A preventative detention order must set out—

(a) the name of the person in relation to whom it is made or, if the name of the person is uncertain, any name or names by which the person is known to Victoria Police; and

(b) the period during which the person may be detained under the order; and

(c) the place or places where the person may be, or must not be, detained under the order or, if the person is under 18 years of age, the

S. 13F(1)(a) substituted by No. 32/2018 s. 14(1)(a).

S. 13F(1)(b) amended by No. 32/2018 s. 14(1)(b).

S. 13F(4)(a) amended by No. 70/2015 s. 7.



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place or class of place where the person must be detained under the order; andNote

See subsection (8) for rules as to where a person under 18 years of age may be detained.

(d) the date on which, and the time at which, the order is made; and

(da) the fact that the person may be questioned by a police officer while detained under the order if the order is not subject to a condition referred to in section 13E(2A)(a); and

(e) whether the person is allowed to have any further contact with a person under section 13ZD(4) and, if so—

(i) the person or persons with whom he or she may have contact;

(ii) the period for which he or she may have contact on any day and the number of days on which he or she may have such contact;

(iii) any other conditions applicable to the contact; and

(f) if applicable, particulars of the order for the person's detention made under a corresponding preventative detention law on the ceasing to have effect of which the order is to start to have effect; andNote

See section 13H(1).

(g) if applicable, the date and time after which the person may not be taken into custody under the order; and

S. 13F(4)(da) inserted by No. 32/2018 s. 14(2)(a).



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Note

See section 13H(2).

(ga) any questioning prohibition condition or questioning limitation condition to which it is subject; and

(gb) if the order is in relation to a child, any condition under section 13E(2C) to which it is subject; and

(h) a summary of the grounds on which the order is made.

(5) To avoid doubt, subsection (4)(h) does not require counter-terrorism intelligence to be included in the summary.

(6) A preventative detention order may contain a provision directing that the contact that the person in relation to whom it is made has with a lawyer under section 13ZF must not be monitored in accordance with section 13ZG if the Supreme Court is satisfied that it is appropriate to give such a direction.

(7) 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 provide that the period each day for which the person is entitled to have contact with another person under section 13ZH(2) is the period of more than 2 hours that is specified in the order.

(8) If the person in relation to whom the order is made is under 18 years of age, the order must provide that the person must be detained in a youth justice facility unless the Supreme Court, having considered any evidence given or submissions made by or on behalf of the Secretary

S. 13F(4)(ga) inserted by No. 32/2018 s. 14(2)(b).

S. 13F(4)(gb) inserted by No. 32/2018 s. 14(2)(b).

S. 13F(5) substituted by No. 32/2018 s. 14(3).

S. 13F(8) amended by Nos 30/2006 s. 6(2), 48/2006 s. 42(Sch. item 35.3(a)), 32/2018 s. 79(1).



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to the Department of Justice and Regulation, is satisfied that it is reasonably necessary for the person to be detained at a place other than a youth justice facility having regard to—

(a) the person's age and vulnerability;

(b) the likely impact that detention in a place other than a youth justice facility will have on the person;

(c) the grounds on which the order is made;

(d) the risk posed by the person to—

(i) the national or international security of Australia; or

(ii) other persons detained in a youth justice facility; or

(iii) the good order and safe operation of a youth justice facility;

(e) the availability of a place in a youth justice facility for the person to be detained in compliance with the terms of the order;

(f) any other factor that the Supreme Court considers relevant.

(8A) Nothing in subsection (8) prevents the application of Part 3.10 of the Evidence Act 2008.

(9) Nothing in this Part or a preventative detention order prevents a person detained under a preventative detention order being taken to a

S. 13F(8)(b) amended by No. 48/2006 s. 42(Sch. item 35.3(a)).

S. 13F(8)(d)(ii) amended by No. 48/2006 s. 42(Sch. item 35.3(a)).

S. 13F(8)(d)(iii) amended by No. 48/2006 s. 42(Sch. item 35.3(a)).

S. 13F(8)(e) amended by No. 48/2006 s. 42(Sch. item 35.3(a)).

S. 13F(8A) inserted by No. 69/2009 s. 54(Sch. Pt 1 item 55.1).

S. 13F(9) amended by No. 48/2006 s. 42(Sch. item 35.3(b)), substituted by No. 32/2018 s. 14(4).



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place and detained there in connection with the carrying out of an examination for, or the provision of, any necessary medical, dental, psychiatric, physiological or pharmaceutical services.Note

Division 3 of Part 8 of the Corrections Act 1986 (as modified by section 13W(6) of this Act) provides for the issue of a custodial community permit to a person detained in a prison for a purpose relating to his or her health. Section 597 of the Children, Youth and Families Act 2005 (as applied by section 13WA(5) of this Act) provides for medical services and operations in the case of a person detained in a youth justice facility.

(10) The senior police officer nominated under section 13P(4) in relation to the preventative detention order must—

(a) notify the Ombudsman under the Ombudsman Act 1973 and the IBAC in writing of the making of the order; and

(b) give the Ombudsman and the IBAC a copy of the order; and

(c) if the person in relation to whom the order is made is taken into custody under the order, notify the Ombudsman and the IBAC in writing that the person has been taken into custody under the order.

(11) In addition, in the case of a preventative detention order relating to a child, the senior police officer

S. 13F(10)(a) amended by Nos 34/2008 s. 143(Sch. 2 item 13.1), 82/2012 s. 167(2)(a).

S. 13F(10)(b) amended by No. 82/2012 s. 167(2)(b).

S. 13F(10)(c) amended by No. 82/2012 s. 167(2)(b).

S. 13F(11) inserted by No. 32/2018 s. 14(5).



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nominated under section 13P(4) in relation to that order must—

(a) notify the Commission for Children and Young People, in writing, of the making of the order; and

(b) give the Commission for Children and Young People a copy of the order; and

(c) if the child is taken into custody under the order, notify the Commission for Children and Young People, in writing, that the child has been taken into custody under the order.

13G Duration of preventative detention orders

(1) Subject to subsection (2), the maximum period (including that period, as extended, or further extended, under section 13I) that may be specified in a preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 14 days less any period during which the person is actually detained under—

(a) an order for the person's detention made under a corresponding preventative detention law on the same basis; and

(b) Part 2AA on the same basis.

(2) The maximum period that may be specified in an interim preventative detention order made by the Supreme Court as the period during which a person may be detained under the order is 48 hours.Note


S. 13G(1) amended by No. 32/2018 s. 15.

S. 13G(1)(a) inserted by No. 32/2018 s. 15.

S. 13G(1)(b) inserted by No. 32/2018 s. 15.



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The order may continue to have effect after the 48 hours: see section 13E(6).

(3) To avoid doubt, for the purposes of subsection (1) orders are made on the same basis if—

(a) in the case of orders made on the basis of preventing a terrorist act from occurring, they relate to the same terrorist act occurring within the same period; and

(b) in the case of orders made on the basis of preserving evidence of, or relating to, a terrorist act, they relate to the same terrorist act.

13H 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 preventative detention order so provides, on an order for the person's detention made under a corresponding preventative detention law ceasing to have effect; or

(b) in any other case, when it is made.Notes

1 When the order starts to have effect it authorises the person to be taken into custody, if necessary (see section 13F(1)(a)). The period for which the person may be detained under the order only starts to run when the person is first taken into custody or detained under the order (see section 13F(1)(b)).

2 See also Division 9 of Part 2AA.

(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.


Note to s. 13H(1) substituted as Notes by No. 32/2018 s. 16.



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(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 end of—

(i) the period specified in the order as the period during which the person may be detained under the order; or

(ii) if that period is extended or further extended under section 13I—that period as extended or further extended;

(b) the revocation of the order under section 13E, 13N or 13O.

Note

The order does not cease to have effect merely because the person is released from detention under the order.

13I Extension of preventative detention order

(1) If—

(a) a preventative detention order is made by the Supreme Court in relation to a person on the final determination of an application under section 13C; and

(b) the order is in force in relation to the person—

an authorised police officer may apply to the Supreme Court for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.


S. 13I(1) amended by No. 37/2014 s. 10(Sch. item 167.7).



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(2) The application must—


(b) set out the facts and other grounds on which the applicant considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; andNote

See section 13E(1) for the purpose for which a preventative detention order may be made.

(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.


* * * * *

(4) The applicant must cause notice of the application to be given to the person in relation to whom the preventative detention order is in force.

(5) The person in relation to whom the preventative detention order is in force is entitled to appear on the hearing and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions. However, his or her absence does not prevent the Supreme Court from determining the application.

(5A) The applicant must notify a Public Interest Monitor of the application in accordance with the regulations under the Public Interest Monitor Act 2011.

S. 13I(3) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 13I(3) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).

S. 13I(5A) inserted by No. 72/2011 s. 49(1).



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(5B) In determining whether an order should be made under this section, the Supreme Court must have regard to any submissions made by the Public Interest Monitor.

(6) The Supreme Court may, by order, extend, or further extend, the period for which the order is to be in force in relation to the person if it is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.

(6A) The Supreme Court may decide that it is satisfied as required by subsection (6) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify the extension or further extension.

(7) The extension, or further extension, must not result in the preventative detention order specifying a period in excess of the maximum period permissible under section 13G(1).

(8) If the person in relation to whom the order is in force is being detained in a prison or youth justice facility and the Supreme Court makes an order under subsection (6) that extends, or further extends, the period for which the order is to be in force, the applicant must cause a copy of the order under that subsection to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

13J No preventative detention order in relation to person under 14 years of age

S. 13I(5B) inserted by No. 72/2011 s. 49(1).

S. 13I(6A) inserted by No. 32/2018 s. 67.

S. 13I(8) amended by Nos 48/2006 s. 42(Sch. item 35.4), 32/2018 s. 79(2).

S. 13J (Heading) amended by No. 32/2018 s. 17(1).




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(1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 14 years of age.Note

See also section 13ZH and section 13ZL(4) to (10) for the special rules for people who are under 18 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 that the person is under 14 years of age—

the police officer must release the person or arrange in writing for his or her release, as soon as practicable, from detention under the order or purported order.

13JA Special assistance for person with inadequate knowledge of English language or disability

If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that the person is unable because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—

(a) the police officer has an obligation under section 13Z(3) to arrange for the assistance of an interpreter in informing the person about—

(i) the effect of the order or any extension, or further extension, of the order; and

(ii) the person's rights in relation to the order; and

S. 13J(1) amended by No. 32/2018 s. 17(2).

S. 13J(2) amended by No. 37/2014 s. 10(Sch. item 167.8(b)).

S. 13J(2)(b) amended by Nos 37/2014 s. 10(Sch. item 167.8(a)), 32/2018 s. 17(2).

S. 13JA inserted by No. 5/2006 s. 4, amended by No. 37/2014 s. 10(Sch. item 167.9(a)).

S. 13JA(a) amended by No. 37/2014 s. 10(Sch. item 167.9(b)).



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(b) the police officer has an obligation under section 13ZF(4) to give the person reasonable assistance to—

(i) choose a lawyer to act for the person in relation to the order; and

(ii) contact the lawyer.

13K Restrictions on multiple preventative detention orders

(1) 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 being detained under that order—

another preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the preventative detention order referred to in paragraph (a) was made.

(1A) If—

(a) a police detention decision 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 being detained under Part 2AA—

S. 13JA(b) amended by No. 37/2014 s. 10(Sch. item 167.9(b)).


S. 13K(1A) inserted by No. 32/2018 s. 18.



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a preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the police detention decision was made.

(2) If—

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

(b) the person is being detained under that order—

a preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available only after the order referred to in paragraph (a) was made.

13KA Basis for applying for, and making, prohibited contact order

(1) An authorised police officer may apply for a prohibited contact order in relation to a person only if the officer is satisfied as set out in subsection (4).

S. 13KA inserted by No. 5/2006 s. 4.

S. 13KA(1) amended by No. 37/2014 s. 10(Sch. item 167.10(a)).



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(2) The Supreme Court may make a prohibited contact order in relation to a person's detention under a preventative detention order only if the Court is satisfied as set out in subsection (4).

(2A) The Supreme Court may decide that it is satisfied as set out in subsection (4) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify making a prohibited contact order.

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

(4) The authorised police officer and the Supreme Court must be satisfied that making the prohibited contact order is reasonably necessary—

(a) to avoid a risk to action being taken to prevent a terrorist act occurring; or

(b) to prevent serious harm to a person; or

(c) to preserve evidence of, or relating to, a terrorist act; or

(d) to prevent interference with the gathering of information about—

(i) a terrorist act; or

(ii) the preparation for, or the planning of, a terrorist act; or

(e) to avoid a risk to—

(i) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(ii) the taking into custody of a person in relation to whom the preventative

S. 13KA(2A) inserted by No. 32/2018 s. 68.

S. 13KA(4) amended by No. 37/2014 s. 10(Sch. item 167.10(b)).



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detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(iia) the taking into custody of a person in relation to whom a police detention decision has been made, or in relation to whom a police detention decision is likely to be made; or

(iii) the service on a person of a Commonwealth control order.

(5) The Supreme Court may refuse to make a prohibited contact order unless the authorised police officer applying for the order gives the Court any further information that it requests concerning the grounds on which the order is sought.

13L Prohibited contact order (person in relation to whom preventative detention order is being sought)

(1) An authorised police officer who applies for a preventative detention order in relation to a person (the subject) may also apply for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order.

(2) The application must set out—

(a) the terms of the order sought; and

(b) the facts and other grounds on which the applicant considers that the order should be made.


* * * * *

S. 13KA(4) (e)(iia) inserted by No. 32/2018 s. 19.

S. 13KA(5) amended by No. 37/2014 s. 10(Sch. item 167.10(b)).


S. 13L(1) amended by No. 37/2014 s. 10(Sch. item 167.11).

S. 13L(3) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 13L(3) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



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(4) The person in relation to whose detention an application for a prohibited contact order is made to the Supreme Court under this section is entitled to be given notice of the application and to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions in relation to it. However, his or her absence does not prevent the Supreme Court from determining the application.


(4B) In determining whether a prohibited contact order should be made under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.

(5) If the Supreme Court—

(a) makes the preventative detention order; and

(b) is satisfied as set out in section 13KA(4)—

the Court may make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact a person specified in the prohibited contact order.Note


(6) The prohibited contact order must be in writing.


S. 13L(4A) inserted by No. 72/2011 s. 50(1).

S. 13L(4B) inserted by No. 72/2011 s. 50(1).



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(a) notify the Ombudsman under the Ombudsman Act 1973 and the IBAC in writing of the making of the prohibited contact order; and

(b) give the Ombudsman and the IBAC a copy of the prohibited contact order.

13M Prohibited contact order (person in relation to whom preventative detention order is already 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 the Supreme Court for a prohibited contact order under this section in relation to the subject's detention under the preventative detention order.

(2) The application must set out—

(a) the terms of the order sought; and

(b) the facts and other grounds on which the applicant considers that the order should be made.


* * * * *

(4) The person in relation to whose detention under a preventative detention order an application for a

S. 13L(7)(a) amended by Nos 34/2008 s. 143(Sch. 2 item 13.2), 82/2012 s. 167(3)(a).

S. 13L(7)(b) amended by No. 82/2012 s. 167(3)(b).

S. 13M inserted by No. 5/2006 s. 4.

S. 13M(1) amended by No. 37/2014 s. 10(Sch. item 167.11).

S. 13M(3) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 13M(3) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



139

prohibited contact order is made to the Supreme Court under this section is entitled to be given notice of the application and to appear and give evidence, call witnesses, examine and cross-examine witnesses, adduce material and make submissions in relation to it. However, his or her absence does not prevent the Supreme Court from determining the application.


(4B) In determining whether a prohibited contact order should be made under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.

(5) If the Supreme Court is satisfied as set out in section 13KA(4), the Court may make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact a person specified in the prohibited contact order.Note


(6) The prohibited contact order must be in writing.


(a) notify the Ombudsman under the Ombudsman Act 1973 and the IBAC in writing of the making of the prohibited contact order; and

S. 13M(4A) inserted by No. 72/2011 s. 50(2).

S. 13M(4B) inserted by No. 72/2011 s. 50(2).

S. 13M(7)(a) amended by Nos 34/2008 s. 143(Sch. 2 item 13.3), 82/2012 s. 167(4)(a).



140

(b) give the Ombudsman and the IBAC a copy of the prohibited contact order.

13N 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 made by the Supreme Court is in force may, with the leave of the Supreme Court, apply to the Supreme Court for—

(a) the revocation or a variation of the order; or

(b) the revocation or a variation of any prohibited contact order that is in force in relation to the person's detention under the preventative detention order.

(2) The Supreme Court must not grant leave to apply for the revocation or a variation of an order unless it is satisfied that new facts or circumstances have arisen since the making of the order.

(3) To avoid doubt, an application for leave to apply for the revocation or a variation of an order does not operate as a stay of the order.

(4) If—

(a) a preventative detention order made by the Supreme Court is in force in relation to a person; and

(b) the Supreme Court grants leave to that person to apply for the revocation or a variation of the order; and

(c) the Supreme Court is satisfied, on the application of that person, that because of new facts or circumstances that have arisen since the making of the order that it is

S. 13M(7)(b) amended by No. 82/2012 s. 167(4)(b).




141

appropriate that the order be revoked or varied—

the Court, by order, must revoke or vary the order.

(5) To avoid doubt, if the variation applied for relates to the place or places where the person may be, must be, or must not be, detained under the preventative detention order, the Supreme Court must have regard to the requirements of section 13F(8).

(6) If the person in relation to whom a preventative detention order made by the Supreme Court is in force is being detained in a prison or youth justice facility and the order is revoked or varied under subsection (4), the police officer who is detaining the person under the order must cause a copy of the order made under that subsection to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

(7) If—

(a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order made by the Supreme Court; and

(b) the Supreme Court grants leave to that person to apply for the revocation or a variation of the prohibited contact order; and

(c) the Supreme Court is satisfied, on the application of that person, that because of new facts or circumstances that have arisen since the making of the prohibited contact order that it is appropriate that the order be revoked or varied—


S. 13N(6) amended by Nos 48/2006 s. 42(Sch. item 35.4), 37/2014 s. 10(Sch. item 167.11), 32/2018 s. 79(3).



142

(8) If the person in relation to whose detention under a preventative detention order a prohibited contact order is in force is being detained in a prison or youth justice facility and the prohibited contact order is revoked or varied under subsection (7), the police officer who is detaining the person under the preventative detention order must cause a copy of the order made under that subsection to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

13O Application by police 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 police officer who is detaining the person under the order is satisfied that the grounds on which the order was made have ceased to exist—

the police officer must apply for the revocation of the order to the Supreme Court.

(2) If—


(b) the police officer who is detaining the person under the order is satisfied that, because of new facts or circumstances that have arisen since the making of the order, it is

S. 13N(8) amended by Nos 48/2006 s. 42(Sch. item 35.4), 37/2014 s. 10(Sch. item 167.11), 32/2018 s. 79(3).


S. 13O(1) amended by No. 37/2014 s. 10(Sch. item 167.12(a)(ii)).

S. 13O(1)(b) amended by No. 37/2014 s. 10(Sch. item 167.12(a)(i)).

S. 13O(2) amended by Nos 37/2014 s. 10(Sch. item 167.12(a)(ii)), 70/2015 s. 8(2).

S. 13O(2)(b) amended by Nos 37/2014 s. 10(Sch. item 167.12(a)(i)), 70/2015 s. 8(1).



143

appropriate that the order be revoked or varied—

the police officer must apply for the revocation or variation of the order to the Supreme Court.

(3) If—


(b) the Supreme Court is satisfied, on application by a police officer under subsection (1) or (2), that it is appropriate that the order be revoked or varied—


(4) To avoid doubt, if the variation applied for relates to the place or places where the person may be, must be, or must not be, detained under the preventative detention order, the Supreme Court must have regard to the requirements of section 13F(8).

(5) If the person in relation to whom the preventative detention order is in force is being detained in a prison or youth justice facility and the order is revoked or varied under subsection (3), the applicant for the revocation or variation must cause a copy of any order made under that subsection to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

(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 police officer who is detaining the person under the preventative detention order is satisfied that because of new facts or circumstances that have arisen since the

S. 13O(3)(b) amended by No. 37/2014 s. 10(Sch. item 167.12(b)).

S. 13O(5) amended by Nos 48/2006 s. 42(Sch. item 35.4), 32/2018 s. 79(4).

S. 13O(6) amended by No. 37/2014 s. 10(Sch. item 167.12(c)(ii)).

S. 13O(6)(b) amended by No. 37/2014 s. 10(Sch. item 167.12(c)(i)).



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making of the prohibited contact order that 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 police officer must apply for the revocation or a variation of the prohibited contact order to the Supreme Court.

(7) If—

(a) a prohibited contact order is in force in relation to a person's detention under a preventative detention order; and

(b) the Supreme Court is satisfied, on application by a police officer under subsection (6), that it is appropriate that the prohibited contact order be revoked or varied—

the Court, by order, must revoke or vary the prohibited contact order.

(7A) The applicant must notify a Public Interest Monitor of an application under this section in accordance with the regulations under the Public Interest Monitor Act 2011.

(7B) In determining whether a preventative detention order or a prohibited contact order should be revoked or varied under this section, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.

(7C) The Supreme Court may decide that it is satisfied as required by subsection (3)(b) or (7)(b) only if it is satisfied by acceptable, cogent evidence that is of sufficient weight to justify revoking or varying the order.

(8) If the person in relation to whose detention under a preventative detention order a prohibited contact

S. 13O(7)(b) amended by No. 37/2014 s. 10(Sch. item 167.12(d)).

S. 13O(7A) inserted by No. 72/2011 s. 51.

S. 13O(7B) inserted by No. 72/2011 s. 51.

S. 13O(7C) inserted by No. 32/2018 s. 69.

S. 13O(8) amended by Nos 48/2006 s. 42(Sch. item 35.4), 32/2018 s. 79(4).



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order is in force is being detained in a prison or youth justice facility and the prohibited contact order is revoked or varied under subsection (7), the applicant for the revocation or variation must cause a copy of any order made under that subsection to be given to the Secretary to the Department of Justice and Regulation as soon as practicable after it is made.

(9) A person in relation to whom a preventative detention order is in force may make representations to the senior police officer nominated under section 13P(4) 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.

Division 3—Carrying out preventative detention orders

13P Power to detain person under preventative detention order

(1) While a preventative detention order is in effect in relation to a person—

(a) any police officer may take the person into custody; and

Note


S. 13P(1)(a) amended by No. 37/2014 s. 10(Sch. item 167.13).

Note to s. 13P(1)(a) inserted by No. 32/2018 s. 20(1).



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See also sections 6(ca) and 6D(1) of the Corrections Act 1986.

(b) any police officer may detain the person.

(2) A police officer may, for the purpose of taking a person into custody under a preventative detention order or preventing him or her from escaping from detention under the order, exercise any of the powers that he or she would have if he or she were apprehending the person under a belief on reasonable grounds that the person had committed an indictable offence in Victoria or was escaping from legal custody.

(3) Subsection (2) does not apply to the extent to which particular powers are provided for in this Part.

(4) If a preventative detention order is made in relation to a person, the Chief Commissioner of Police must nominate a police officer of or above the rank of superintendent (the nominated senior police officer) to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.

(5) The nominated senior police officer must be someone who was not involved in the making of the application for the preventative detention order.

(6) The nominated senior police officer must—

(a) oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and

(b) without limiting paragraph (a), ensure that the provisions of section 13O (which deals

S. 13P(1)(b) amended by No. 37/2014 s. 10(Sch. item 167.13).

S. 13P(2) amended by No. 37/2014 s. 10(Sch. item 167.13).

S. 13P(4) amended by No. 37/2014 s. 10(Sch. item 167.13).



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with the revocation or variation of preventative detention orders and prohibited contact orders) are complied with in relation to the preventative detention order; and

(c) receive and consider any representations that are made under subsection (7).

(7) The following persons—

(a) the person being detained under a preventative detention order;

(b) the Ombudsman under the Ombudsman Act 1973 or the IBAC Commissioner;

(ba) the Commission for Children and Young People;

(c) a lawyer acting for the person being detained under a preventative detention order in relation to the order or a prohibited contact order;

(d) a person with whom the person being detained under a preventative detention order has contact under section 13ZH(2);

(e) a person exercising authority under the order or implementing or enforcing the order (including a person taken to be such a person by force of section 13W(5)(b))—

are entitled to make representations to the nominated senior police officer in relation to—

(f) the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and

S. 13P(7)(b) amended by Nos 34/2008 s. 143(Sch. 2 item 13.4), 82/2012 s. 167(5).

S. 13P(7)(ba) inserted by No. 32/2018 s. 20(2).



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(g) without limiting paragraph (f), compliance with the provisions of section 13O (which deals with the revocation or variation of preventative detention orders and prohibited contact orders) in relation to the preventative detention order; and

(h) the person's treatment in connection with the person's detention under the preventative detention order.

13Q Endorsement of order with date and time person taken into custody or detained

As soon as practicable after a person is taken into custody or detained under a preventative detention order, the police officer who is detaining the person under the order must endorse on the order—

(a) the date on which, and time at which, the person is taken into custody or detained under the order; and

(b) particulars of where the person is being detained.

13R Requirement to provide name etc.

(1) If a police officer believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the police officer may be able to assist the police officer in executing a preventative detention order, the police officer may request the person to provide his or her name or address, or name and address, to the police officer.

(2) If a police officer—

S. 13Q inserted by No. 5/2006 s. 4, amended by Nos 37/2014 s. 10(Sch. item 167.14), 32/2018 s. 21.

S. 13Q(a) amended by No. 32/2018 s. 21.


S. 13R(1) amended by Nos 37/2014 s. 10(Sch. item 167.15(a)), 21/2015 s. 3(Sch. 1 item 54.1).

S. 13R(2) amended by No. 37/2014 s. 10(Sch. item 167.15(b)(i)).



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(a) makes a request of a person under subsection (1); and

(b) informs the person of the reason for the request; and

(c) if the police officer is not in uniform—shows the person evidence that he or she is a police officer; and

(d) complies with subsection (4) if the person makes a request under that subsection—

the person must not—


(f) give a name or address that is false in a material particular.

Penalty:20 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable excuse.

(4) If a police officer who makes a request of a person under subsection (1) is requested by the person to provide to the person any of the following—

(a) his or her name;

(b) the address of his or her place of duty;

(c) his or her identification number if he or she has an identification number;

(d) his or her rank if he or she does not have an identification number—

the police officer must not—


(f) give a name, address, number or rank that is false in a material particular.


S. 13R(2)(c) substituted by No. 37/2014 s. 10(Sch. item 167.15(b)(ii)).

S. 13R(4) amended by No. 37/2014 s. 10(Sch. item 167.15(c)).



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(5) Subsection (4) does not apply if the police officer has a reasonable excuse.

13S Power to enter premises

(1) Subject to subsection (2), if—


(b) a police officer believes on reasonable grounds that the person is on any premises—

the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.

(2) A police officer must not enter any premises that are used for residential purposes at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the police officer believes on reasonable grounds that—

S. 13R(5) amended by No. 37/2014 s. 10(Sch. item 167.15(d)).

S. 13S inserted by No. 5/2006 s. 4.

S. 13S(1) amended by No. 37/2014 s. 10(Sch. item 167.16(a)(ii)(iii)).

S. 13S(1)(b) amended by No. 37/2014 s. 10(Sch. item 167.16(a)(i)).

S. 13S(2) amended by No. 37/2014 s. 10(Sch. item 167.16(b)).



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(a) it would not be practicable to take the person into custody, either at those premises or elsewhere, at another time; or

(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.

13T Power to conduct search

(1) A police officer who takes a person into custody under a preventative detention order, or who is present when the person is taken into custody, may, if the police officer suspects on reasonable grounds—

(a) that it is prudent to do so in order to ascertain whether the person is carrying any seizable items; or

(b) that the person is carrying—

(i) evidence of, or relating to, a terrorist act; or

(ii) a seizable item—

conduct a search of the person in the prescribed manner at, or soon after, the time when the person is taken into custody, and seize any such thing found as a result of the search.

(2) Any thing seized under subsection (1) must be dealt with in accordance with the regulations.

13U Warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth


(a) a person is being detained under a preventative detention order; and

S. 13T inserted by No. 5/2006 s. 4.

S. 13T(1) amended by No. 37/2014 s. 10(Sch. item 167.17).

S. 13U inserted by No. 5/2006 s. 4.



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(b) a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth is in force in relation to the person; and

(c) a copy of the warrant is given to the police officer who is detaining the person under the preventative detention order.

(2) The police officer must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.

(3) Without limiting subsection (2), the police officer may, under section 13V, release, or arrange in writing for the release of, the person from detention under the preventative detention order so that the person may be dealt with in accordance with the warrant.

(4) To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be—

(a) questioned before a prescribed authority under the warrant; or

(b) detained under the warrant in connection with that questioning—

does not extend the period for which the preventative detention order remains in force in relation to the person.

Note

S. 13U(1)(c) amended by No. 37/2014 s. 10(Sch. item 167.18).

S. 13U(2) amended by No. 37/2014 s. 10(Sch. item 167.18).

S. 13U(3) amended by No. 37/2014 s. 10(Sch. item 167.18).



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See section 13V(6)(a).

13V 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 or arrange in writing for his or her release from detention under the order.Note

A person may be released, for example, so that the person may be arrested and otherwise dealt with under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958.

(1A) The police officer who is detaining a person under a preventative detention order must, without delay, release the person from detention under the order or arrange for the person's release from detention under the order if the police officer is satisfied that the grounds on which the order was made have ceased to exist.Note

The police officer must also apply for the revocation of the order to the Supreme Court: see section 13O(1).

(2) The police officer who releases, or arranges in writing for the release of, a person from detention under a preventative detention order must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.

(3) Subsection (2) does not apply if the police officer releases, or arranges in writing for the release of,

S. 13V inserted by No. 5/2006 s. 4.

S. 13V(1) amended by No. 37/2014 s. 10(Sch. item 167.19(a)).

S. 13V(1A) inserted by No. 70/2015 s. 9.

S. 13V(2) amended by No. 37/2014 s. 10(Sch. item 167.19(b)).

S. 13V(3) amended by No. 37/2014 s. 10(Sch. item 167.19(c)).



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the person from detention so that the person may be dealt with—

(a) under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; or

(b) in accordance with a warrant under section 34D of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth; or

(c) under the provisions of Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth.

(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

During this period, the provisions of this Part that apply to a person who is being detained under a preventative detention order (for example, section 13ZC which deals with the people the person may contact) do not apply to the person.


(a) the release of the person under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order



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remains in force in relation to the person; andNote

This means that the time for which the person may be detained under the order continues to run while the person is released.

(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.

13W Arrangement for detainee to be held in prison

(1) The police officer who is detaining a person under a preventative detention order may request the Secretary to the Department of Justice and Regulation to authorise the transfer of that person to a prison.Note

A person being detained under a preventative detention order may be received into a police gaol and thus be deemed to enter the legal custody of the Chief Commissioner of Police under section 6D(1) of the Corrections Act 1986.

(2) A request under subsection (1) must be accompanied by a copy of—

S. 13W inserted by No. 5/2006 s. 4.

S. 13W(1) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 32/2018 s. 79(5).



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(a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and

(b) any extension or further extension of the order under section 13I; and

(c) any prohibited contact order in force in relation to the person's detention.

(3) To avoid doubt, a request may be made under subsection (1) in respect of a person who is under 18 years of age if the preventative detention order provides for the person to be detained in a prison.Note

See section 13ZBA for the rules as to how persons under 18 are to be detained.

(4) If requested to do so under subsection (1), the Secretary to the Department of Justice and Regulation may, by instrument, authorise the transfer to a prison of a person being detained under a preventative detention order from a police gaol or other place where he or she is being detained.Note

The Secretary may delegate this power under section 8(1) of the Corrections Act 1986.

(4A) On the giving of an authorisation under subsection (4), a person at a prison acting under lawful authority on behalf of the Secretary may receive the person into the prison.Note

See also sections 6(ca), 6A(1) and 6E(1)(cac) of the Corrections Act 1986.

S. 13W(4) amended by No. 32/2018 s. 79(5).

S. 13W(4A) inserted by No. 32/2018 s. 22.



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(5) If a person is being detained in a prison under a preventative detention order—

(a) the preventative detention order is taken to authorise the Governor of the prison to detain the person at the prison while the order is in force in relation to the person; and

(b) section 13ZB applies in relation to the person's detention under the order at the prison as if—

(i) the Governor of that prison; or

(ii) any other person involved in the person's detention at that prison—

were a person exercising authority under the order or implementing or enforcing the order; and

(c) the police officer who made the request under subsection (1) is taken, while the person is detained at the prison, to be the police officer detaining the person for the purposes of Divisions 4 and 5, subject to subsection (5A); and

(d) a police officer may at any time enter the prison and visit the person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, the order.

(5A) Section 13ZB does not apply to the police officer referred to in subsection (5)(c) in respect of the person being detained at the prison to the extent that the police officer cannot reasonably perform any obligation under that section.

(6) The Corrections Act 1986 applies in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a

S. 13W(5)(c) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 70/2015 s. 10(1).

S. 13W(5)(d) amended by No. 37/2014 s. 10(Sch. item 167.20(a)).

S. 13W(5A) inserted by No. 70/2015 s. 10(2).



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corresponding preventative detention law as if the following provisions of that Act did not form part of it—

(a) section 11(7A);

(b) section 28;

(c) section 31;

(d) sections 37(1), 38(2) and (4), 40 and 41;

(e) section 47;

(f) sections 47A to 47D;

(g) Division 5 of Part 6;

(h) Part 7;

(i) section 56AA;

(j) section 56AB;

(k) section 56AC;

(l) paragraphs (b) and (c) of section 57(1) and paragraph (a) of that section to the extent that it relates to a purpose other than the purpose referred to in section 57A(1)(a);

(m) sections 57(2), 57A(1)(b) to (e), 57A(3)(a), 57B and 57C;

(n) section 84H.

(7) The provisions of Division 2 of Part 6 of the Corrections Act 1986 that apply in respect of the detention of a person in a prison under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law apply as if—

(a) in the definition of visitor in section 33—

(i) paragraphs (i) and (j) were omitted;

(ii) in paragraph (h) for the reference to section 37 there were substituted a



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reference to section 13ZD, 13ZF or 13ZH of this Act;

(iii) in paragraph (k) after "officer" the words "visiting under section 13W(5)(d) of the Terrorism (Community Protection) Act 2003" were inserted;

(iv) in paragraph (l) the words "or a residential visiting programme" were omitted;

(b) in section 37(2)—

(i) for the reference to a relative or friend who visits a prisoner there were substituted a reference to a person who visits a prisoner under section 13ZD, 13ZF or 13ZH of this Act;

(ii) the words "or residential visiting programme" were omitted;

(c) in section 37(3) for the word "under" there were substituted the words "referred to in";

(d) in section 38(1) for the reference to a prisoner's family and friends there were substituted a reference to persons who visit a prisoner under section 13ZD, 13ZF or 13ZH of this Act;

(e) in section 38(3) the words "or a residential visiting programme" were omitted;

(f) in section 39(1) or (2) for the reference to a relative or friend or person wishing to visit, or visiting, a prisoner under section 37 or 38 there were substituted a reference to a person wishing to visit, or visiting, a prisoner under section 13ZD, 13ZF or 13ZH of this Act;

(g) section 43 prevented a senior police officer nominated under section 13P(4) in relation to

S. 13W(7)(a)(iii) amended by No. 37/2014 s. 10(Sch. item 167.20(b)).



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the order being made the subject of an order under that section.

(8) If a provision of the Corrections Act 1986 applies (with or without modification) in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications.

(9) The Corrections Act 1986, in its application in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, has effect subject to this Part and to the terms of the order under which the person is detained and, in the event of any inconsistency between that Act and this Part or the order, this Part or the order (as the case requires) prevails over that Act.

(10) Nothing in this section prevents an AFP member entering a prison and visiting a person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, an order for the person's detention made under a corresponding preventative detention law.

13WA Arrangement for detainee to be held in youth justice facility

S. 13W(9) amended by No. 30/2006 s. 17(1).

S. 13WA (Heading) amended by No. 48/2006 s. 42(Sch. item 35.5(a)).S. 13WA inserted by No. 5/2006 s. 4.



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(1) If the preventative detention order in relation to a person who is under 18 years of age provides for him or her to be detained in a youth justice facility, the police officer who is detaining the person under the order must request the Secretary to the Department of Justice and Regulation to authorise the transfer of that person to a youth justice facility.



(b) any extension or further extension of the order under section 13I; and

(c) any prohibited contact order in force in relation to the person's detention.

(3) If requested to do so under subsection (1), the Secretary to the Department of Justice and Regulation may, by instrument, authorise the transfer to a youth justice facility of a person being detained under a preventative detention order from any place where he or she is being detained.

S. 13WA(1) amended by Nos 48/2006 s. 42(Sch. item 35.5(b)), 37/2014 s. 10(Sch. item 167.21), 32/2018 s. 79(6).

S. 13WA(3) amended by Nos 48/2006 s. 42(Sch. item 35.5(b)), 32/2018 s. 79(6).



162

(3A) On the giving of an authorisation under subsection (3), a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the person into the facility.Note

See also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cac) of the Corrections Act 1986.

(4) If a person is being detained in a youth justice facility under a preventative detention order—

(a) the preventative detention order is taken to authorise the officer in charge of the facility to detain the person at the facility while the order is in force in relation to the person; and

(b) section 13ZB applies in relation to the person's detention under the order at the facility as if—

(i) the officer in charge of that facility; or

(ii) any other person involved in the person's detention at that facility—

were a person exercising authority under the order or implementing or enforcing the order; and

(c) the police officer who made the request under subsection (1) is taken, while the person is detained at the facility, to be the police officer detaining the person for the purposes of Divisions 4 and 5; and

(d) a police officer may at any time enter the facility and visit the person being detained in the facility in connection with the exercise of powers under, and the performance of obligations in relation to, the order.

(5) No provision of the Children, Youth and Families Act 2005 applies in respect of the

S. 13WA(3A) inserted by No. 32/2018 s. 23(1).

S. 13WA(4) amended by No. 48/2006 s. 42(Sch. item 35.5(b)).

S. 13WA(4)(c) amended by No. 37/2014 s. 10(Sch. item 167.21).

S. 13WA(4)(d) amended by No. 37/2014 s. 10(Sch. item 167.21).

S. 13WA(5) amended by No. 48/2006 s. 42(Sch. items 35.5(b)(c)).



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detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law other than—

(a) section 17(1) and, to the extent that it relates to section 597(3) or 597(4), section 17(2);

(b) section 482(1) other than paragraphs (b) to (d);

(c) section 482(2) other than paragraphs (a) and (b);

(d) section 482(3);

(e) section 483(1) and 483(1A);

* * * * *

(g) section 487 other than paragraph (f) to the extent that that paragraph applies to discriminatory treatment that is reasonable and necessary having regard to the nature of the person's detention;

(h) sections 488A to 488G;

S. 13WA(5)(a) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(b) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(c) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(d) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).S. 13WA(5)(e) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(f) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)), repealed by No. 32/2018 s. 23(2).

S. 13WA(5)(g) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(h) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).



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(i) section 501;

(j) section 597.

(6) If a provision of the Children, Youth and Families Act 2005 applies (with or without modification) in respect of the detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications.

(7) The Children, Youth and Families Act 2005, in its application in respect of the detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, has effect subject to this Part and to the terms of the order under which the person is detained and, in the event of any inconsistency between that Act and this Part or the order, this Part or the order (as the case requires) prevails over that Act.

(8) Nothing in this section prevents an AFP member entering a youth justice facility and visiting a person being detained in the facility in connection with the exercise of powers under, and the performance of obligations in relation to, an order for the person's detention made under a corresponding preventative detention law.

S. 13WA(5)(i) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).

S. 13WA(5)(j) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)).



S. 13WA(8) amended by No. 48/2006 s. 42(Sch. item 35.5(b)).



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(9) The Secretary to the Department of Justice and Regulation may, by instrument, delegate any function or power of the Secretary under this section (except this power of delegation) to any person, or class of person, employed in the Department of Justice and Regulation under Part 3 of the Public Administration Act 2004.

13WB Transfer of detained person into legal custody of Chief Commissioner for questioning


(a) a person is being detained in a prison or youth justice facility under a preventative detention order; and

(b) a police officer wants to question the person under Division 5A.

(2) An authorised police officer may request the Secretary to the Department of Justice and Regulation to release the person from detention in the prison or youth justice facility into the custody of a police officer.



(b) any extension or further extension of the order under section 13I.

(4) If requested to do so under subsection (2), the Secretary to the Department of Justice and Regulation, by instrument, may authorise the release of the person from detention in the prison

S. 13WA(9) amended by No. 32/2018 s. 79(7).

S. 13WB inserted by No. 32/2018 s. 24.



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or youth justice facility into the custody of a police officer.

(5) On the giving of an authorisation under subsection (4), a police officer may take physical custody of the person.Notes

1 In the case of a person detained in a prison, see also sections 6B(3) and 6D(2AA) of the Corrections Act 1986.

2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6D(2AA) of the Corrections Act 1986.

13WC Return of person to place of detention at end of questioning

(1) This section applies if a police officer has taken custody of a person under section 13WB(5) for the purpose of questioning that person under Division 5A.

(2) At the cessation of the questioning, the police officer who is detaining the person under a preventative detention order must deliver the person back to the prison or youth justice facility at which the person was detained at the time of the request under section 13WB(2).Notes

1 In the case of a person detained in a prison, see also sections 6(ca), 6A(1) and 6E(1)(cac) of the Corrections Act 1986.

2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the Children, Youth and Families Act 2005 and section 6E(1)(cac) of the Corrections Act 1986.

13WD Effect on period of detention of transfers of custody of persons for questioning purposes

S. 13WC inserted by No. 32/2018 s. 24.

S. 13WD inserted by No. 32/2018 s. 24.



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To avoid doubt, the transfer of the custody of a person under section 13WB or 13WC does not extend the period for which the preventative detention order remains in force in relation to the person.

Division 4—Informing person detained about preventative detention order

13X Effect of preventative detention order to be explained to person detained

(1) As soon as practicable after a person is first detained 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).Notes

1 A contravention of this subsection may be an offence under section 13ZN.

2 A contravention of this subsection does not affect the lawfulness of the person's detention under the order (see section 13Z(5)).

(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 restrictions that apply to the people the person may contact while the person is being detained under the order; and

(ca) the fact that the person's communication with persons referred to in section 13ZD, and with their lawyer, may be monitored under section 13ZG; and

S. 13X inserted by No. 5/2006 s. 4.

S. 13X(1) amended by No. 37/2014 s. 10(Sch. item 167.21).

S. 13X(2)(ca) inserted by No. 32/2018 s. 25(a).



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(cb) the fact, if the Supreme Court has made the order subject to a questioning prohibition condition, that the person must not be questioned by a police officer under Division 5A while detained under the order but may be questioned under section 13ZK; and

(cc) the fact, if the Supreme Court has made the order not subject to a questioning prohibition condition, that the person—

(i) may be questioned by a police officer under Division 5A while detained under the order for a duration that is reasonable and that is consistent with any applicable questioning limitation condition; and

(ii) is entitled to breaks during questioning as specified in section 13ZNB(5)(a) and (b); and

(d) the person's entitlement under section 13O(9) to make representations to the senior police officer nominated under section 13P(4) in relation to the order with a view to having the order, or a prohibited contact order, revoked or varied under section 13O; and

(e) any right the person has to complain to the Ombudsman under the Ombudsman Act 1973 or the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—

(i) the application for the preventative detention order or a prohibited contact order or a counter-terrorism intelligence protection order; or

S. 13X(2)(cb) inserted by No. 32/2018 s. 25(a).

S. 13X(2)(cc) inserted by No. 32/2018 s. 25(a).

S. 13X(2)(e) amended by No. 82/2012 s. 167(6).

S. 13X(2)(e)(i) amended by No. 32/2018 s. 25(b).



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(ii) the treatment of the person in connection with the person's detention under the preventative detention order; and

(f) the fact that the person may seek from a court a remedy relating to—

(i) the preventative detention order; or

(ii) a prohibited contact order; or

(iia) a counter-terrorism intelligence protection order; or

(iii) the treatment of the person in connection with the person's detention under the preventative detention order; and

* * * * *

(g) the person's entitlement under section 13ZF to contact a lawyer; and

(ga) in the case of a child being detained under this Part, the child's entitlement to contact the Commission for Children and Young People under section 13ZFA; and

(gb) the person's entitlement to an interpreter under section 13JA or 13ZNC; and

(gc) the person's entitlement to contact a consular office under section 13ZFB or 13ZND; and

S. 13X(2)(f)(iia) inserted by No. 32/2018 s. 25(c).

Note to s. 13X(2)(f) amended by No. 30/2006 s. 17(2), repealed by No. 32/2018 s. 25(d).

S. 13X(2)(ga) inserted by No. 32/2018 s. 25(e).

S. 13X(2)(gb) inserted by No. 32/2018 s. 25(e).

S. 13X(2)(gc) inserted by No. 32/2018 s. 25(e).



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(h) the name and work telephone number of the senior police officer who has been nominated under section 13P(4) to oversee the exercise of powers under, and the performance of obligations in relation to, the order.

(3) Without limiting subsection (2)(c), the police officer who is detaining a person under a preventative detention order must inform the person under that subsection about the persons that he or she may contact under section 13ZD or 13ZH.

13Y Person being detained to be informed of extension of preventative detention order

If a preventative detention order is extended, or further extended, under section 13I, the police officer detaining the person under the order must inform the person of the extension, or further extension, as soon as practicable after the extension, or further extension, is made.Note

1 A contravention of this section may be an offence under section 13ZN.

2 A contravention of this section does not affect the lawfulness of the person's detention under the order (see section 13Z(5)).

13Z Compliance with obligations to inform

(1) Section 13X(1) or 13Y 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 that section.

(2) The police officer detaining the person under the preventative detention order complies with

S. 13X(3) amended by No. 37/2014 s. 10(Sch. item 167.21).

S. 13Y inserted by No. 5/2006 s. 4, amended by No. 37/2014 s. 10(Sch. item 167.21).

S. 13Z inserted by No. 5/2006 s. 4.

S. 13Z(1) amended by No. 37/2014 s. 10(Sch. item 167.22(a)).

S. 13Z(2) amended by No. 37/2014 s. 10(Sch. item 167.22(b)).



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section 13X(1) if the police officer informs the person in substance of the matters covered by section 13X(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 13X(1) or 13Y if the police officer has reasonable grounds to believe that 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 section 13X(1) or 13Y or subsection (3) of this section.

13ZA Copy of preventative detention order

(1) As soon as practicable after a person is first taken into custody or detained 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 of any prohibited contact order in force in relation to his or her detention; and

(b) a summary of the grounds on which any prohibited contact order is made.

Note

A contravention of this subsection may be an offence under section 13ZN.

S. 13Z(3) amended by No. 37/2014 s. 10(Sch. item 167.22(c)).

S. 13ZA inserted by No. 5/2006 s. 4.

S. 13ZA(1) amended by No. 37/2014 s. 10(Sch. item 167.23(a)).



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(2) To avoid doubt, subsection (1)(b) does not require counter-terrorism intelligence to be included in the summary.

(3) Despite section 13P(2), a police officer does not need to have a copy of the preventative detention order with him or her, or to produce a copy of the order to the person being taken into custody when the police officer takes the person into custody.

(4) As soon as practicable after a preventative detention order is extended, or further extended, under section 13I, the police officer who is detaining the person under the preventative detention order must give the person a copy of the order under section 13I(6).Note


(5) A person who is being detained under a preventative detention order may request a police officer who is detaining the person to arrange for a copy of—

(a) the preventative detention order or of any prohibited contact order in force in relation to his or her detention; or

(b) any summary given to the person under subsection (1)(b); or

(c) any order under section 13I(6)—

to be given to a lawyer acting for the person in relation to the order.Notes

1 Section 13ZF deals with the person's right to contact a lawyer and the obligation of the police officer detaining the person to give the person assistance to choose a lawyer.

S. 13ZA(2) substituted by No. 32/2018 s. 26(1).S. 13ZA(3) amended by No. 37/2014 s. 10(Sch. item 167.23(b)).

S. 13ZA(4) amended by No. 37/2014 s. 10(Sch. item 167.23(c)).


Notes to s. 13ZA(5) amended by No. 37/2014 s. 10(Sch. item 167.23(c)).



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2 Section 13ZI prevents the person from contacting a lawyer who is specified in a prohibited contact order.

(6) The police officer must make arrangements for a copy of an order or the summary to be given to the lawyer as soon as practicable after the request is made.Note


(7) Without limiting subsection (6), the copy of an order or the summary may be sent to the lawyer by electronic communication.

(8) To avoid doubt, subsection (6) does not entitle the lawyer to be given a copy of, or see, a document other than the preventative detention order, the prohibited contact order, any summary given under subsection (1)(b) or any order under section 13I(6).

(9) 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 preventative detention order under this section must endorse on the copy the date on which, and time at which, the person was first taken into custody or detained under the order.Note


(10) Subsection (1), (4), (6) or (9) 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 that subsection.


S. 13ZA(7) amended by No. 32/2018 s. 26(2).





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(11) The lawfulness of a person's detention under a preventative detention order is not affected by a failure to comply with subsection (1), (4), (6) or (9).

Division 5—Treatment of person detained13ZB Humane treatment of person being detained

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.

Note

A contravention of this section may be an offence under section 13ZN.

13ZBA Detention of persons under 18

(1) Subject to subsection (2), the police officer detaining a person who is under 18 years of age under a preventative detention order must ensure that the person is not detained together with persons who are 18 years of age or older.Note


(2) Subsection (1) does not apply if a senior police officer, nominated under section 13P(4) in relation to the preventative detention order, approves the person being detained together with persons who are 18 years of age or older.

S. 13ZB inserted by No. 5/2006 s. 4.

S. 13ZBA inserted by No. 5/2006 s. 4.

S. 13ZBA(1) amended by No. 37/2014 s. 10(Sch. item 167.24).

S. 13ZBA(2) amended by No. 32/2018 s. 27.



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(3) The senior police officer, nominated under section 13P(4) in relation to the preventative detention order, may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.

(4) An approval under subsection (2) must—

(a) be given in writing; and

(b) set out the exceptional circumstances that justify the giving of the approval.

13ZC Restriction on contact with other people

(1) Except as provided by sections 13ZD, 13ZE, 13ZF, 13ZFA, 13ZFB, 13ZFC, 13ZH or 13ZNF, 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.

(2) While a person is being detained in a prison or youth justice facility under a preventative detention order or an order for the person's detention made under a corresponding preventative detention law, the person is required to give to a police officer (within the meaning of this Act) or a police officer (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth), as the case requires, exercising authority under the order any letter that the person wishes to send to any person other than—

(a) the Ombudsman under the Ombudsman Act 1973; or

S. 13ZBA(3) amended by No. 32/2018 s. 27.

S. 13ZC inserted by No. 5/2006 s. 4.

S. 13ZC(1) amended by No. 32/2018 s. 28(1).

S. 13ZC(2) amended by Nos 48/2006 s. 42(Sch. item 35.6), 34/2008 s. 143(Sch. 2 item 13.5), 82/2012 s. 167(7), 37/2014 s. 10(Sch. item 167.25(a)), substituted by No. 32/2018 s. 28(2).



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(b) the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or

(c) the Commission for Children and Young People; or

(d) the Commonwealth Ombudsman under the Ombudsman Act 1976 of the Commonwealth; or

(e) the Commissioner or an AFP appointee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth) under Part V of that Act.

(3) A prison officer within the meaning of the Corrections Act 1986 or the officer in charge of a youth justice facility who receives—

(a) from a person being detained in a prison or youth justice facility under an order referred to in subsection (2) a letter required by that subsection to be given to a police officer (within the meaning of this Act) or a police officer (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth) exercising authority under the order; or

(b) a letter sent to a person being detained in a prison or youth justice facility under an order referred to in subsection (2)—

must as soon as practicable give that letter to such a police officer.

S. 13ZC(3) amended by Nos 48/2006 s. 42(Sch. item 35.6), 37/2014 s. 10(Sch. item 167.25(b)(ii)).

S. 13ZC(3)(a) amended by Nos 48/2006 s. 42(Sch. item 35.6), 37/2014 s. 10(Sch. item 167.25(b)(i)).

S. 13ZC(3)(b) amended by No. 48/2006 s. 42(Sch. item 35.6).



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(4) This section applies to legal documents exchanged between a lawyer and a person being detained in a prison or youth justice facility under an order referred to in subsection (2) as if that document were a letter.

(5) A person being detained in a prison or youth justice facility under an order referred to in subsection (2) may retain any legal documents that are in his or her possession, subject to reasonable quantity limits imposed by the Governor of the prison or the officer in charge of the youth justice facility (as the case requires).

Notes

1 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).

2 A person's entitlement to contact other people under sections 13ZD, 13ZF and 13ZH may be subject to a prohibited contact order made under section 13L or 13M (see section 13ZI).

13ZD Contacting family members etc.

* * * * *

(2) The person being detained is entitled to contact once—

(a) his or her parents or one of his or her other family members; and

(b) if he or she—

(i) lives with another person and that other person is not a family member of the person being detained; or

S. 13ZC(4) amended by No. 48/2006 s. 42(Sch. item 35.6).

S. 13ZC(5) amended by No. 48/2006 s. 42(Sch. item 35.6).

S. 13ZD inserted by No. 5/2006 s. 4.

S. 13ZD(1) repealed by No. 32/2018 s. 32.

S. 13ZD(2) amended by No. 32/2018 s. 29.



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(ii) lives with other people and those other people are not family members of the person being detained—

that other person or one of those other people; and

(c) if he or she is employed—his or her employer; and

(d) if he or she employs people in a business—one of the people he or she employs in that business; and

(e) if he or she engages in a business together with another person or other people—that other person or one of those other people; and

(f) if the police officer detaining the person agrees to the person contacting another person—that person—

by telephone or electronic communication but solely for the purposes of letting the person contacted know that the person being detained is safe and is being detained.

(3) To avoid doubt, the person being detained is entitled, under subsection (2), 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


(4) If the preventative detention order so allows, the person being detained, in addition to any entitlement under subsection (2), is entitled, while being detained under the order, to have further contact with one or more of his or her family

S. 13ZD(2)(f) amended by No. 37/2014 s. 10(Sch. item 167.26).



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members or any other person or persons, as specified in the order.

(5) To avoid doubt, the person being detained is entitled to disclose the following to a person with whom he or she has contact under subsection (4)—

(a) the fact that a preventative detention order has been made in relation to the person;

(b) the fact that the person is being detained;





(7) The period for which the person being detained is entitled to have contact with another person on any day under subsection (4), and the number of days on which he or she is entitled to have such contact, is as is specified in the preventative detention order.

13ZE Contacting Ombudsman etc.

The person being detained is entitled to contact the Ombudsman under the Ombudsman Act 1973 or the IBAC.

13ZF Contacting lawyer

S. 13ZD(6)(b) amended by No. 32/2018 s. 29.

S. 13ZE inserted by No. 5/2006 s. 4, amended by Nos 34/2008 s. 143(Sch. 2 item 13.6), 82/2012 s. 167(8).

S. 13ZF inserted by No. 5/2006 s. 4.



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(1) The person being detained is entitled to contact a lawyer but solely for the purpose of—

(aa) the person's entitlement to communicate with a lawyer under section 13ZND or 13ZNE; or

(a) obtaining advice from the lawyer about the person's legal rights in relation to—


(ii) a prohibited contact order in force in relation to his or her detention; or

(iia) the questioning of the person under Division 5A; or

(iii) the treatment of the person in connection with the person's detention under the preventative detention order; or

(iv) any counter-terrorism intelligence protection order; or

(b) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, proceedings in a court for a remedy relating to—


(ii) a prohibited contact order in force in relation to his or her detention; or

(iii) the treatment of the person in connection with the person's detention under the preventative detention order; or

S. 13ZF(1)(aa) inserted by No. 32/2018 s. 30(1)(a).

S. 13ZF(1) (a)(iia) inserted by No. 32/2018 s. 30(1)(b).

S. 13ZF(1) (a)(iv) inserted by No. 32/2018 s. 30(1)(c).



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(iv) any counter-terrorism intelligence protection order; or

(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Ombudsman under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013 or an investigation by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011 in relation to—

(i) the application for the preventative detention order or a prohibited contact order; or

(ii) the treatment of the person by a police officer in connection with the person's detention under the preventative detention order; or

(iii) any application for a counter-terrorism intelligence protection order; or

(d) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court or tribunal in a proceeding to which the person is a party or in which he or she otherwise has standing to appear that is to take place while the person is being detained under the order.

(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

S. 13ZF(1) (b)(iv) inserted by No. 32/2018 s. 30(1)(d).S. 13ZF(1)(c) amended by Nos 34/2008 s. 143(Sch. 2 item 13.7), 82/2012 s. 167(9), 37/2014 s. 10(Sch. item 167.27(a)(i)).

S. 13ZF(1)(c)(ii) amended by No. 37/2014 s. 10(Sch. item 167.27(a)(ii)).

S. 13ZF(1) (c)(iii) inserted by No. 32/2018 s. 30(1)(e).



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(b) communicating with the lawyer by telephone or electronic communication; and

(c) exchanging legal documents with the lawyer.

(3) If—

(a) the person being detained (or, if he or she is under 18 years of age or is incapable of managing his or her affairs, a person with whom he or she has contact under section 13ZH) 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 section 13ZI (prohibited contact order) or section 13ZNG; 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).Note


(4) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that—

(a) the person is unable, because of inadequate knowledge of the English language, or a

S. 13ZF(2)(b) amended by No. 32/2018 s. 30(2).

S. 13ZF(3) amended by No. 37/2014 s. 10(Sch. item 167.27(b)).

S. 13ZF(3)(b)(i) amended by No. 32/2018 s. 30(3).

S. 13ZF(4) amended by No. 37/2014 s. 10(Sch. item 167.27(c)).



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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 police 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 as part of giving a person assistance under subsection (3) or (4), 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 section 13ZI, the person is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (5).

13ZFA Contacting the Commission for Children and Young People

(1) A person being detained under a preventative detention order who is a child is entitled to contact the Commission for Children and Young People.

(2) The form of contact that the child is entitled to have with another person under subsection (1) includes—



13ZFB Contact with consular office

A person being detained under a preventative detention order who is not a citizen or permanent

S. 13ZF(5) amended by No. 37/2014 s. 10(Sch. item 167.27(d)).

S. 13ZFA inserted by No. 32/2018 s. 31.

S. 13ZFB inserted by No. 32/2018 s. 31.



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resident of Australia is entitled to contact the consular office of the country of which the person is a citizen.

13ZFC Contact with special counsel

A person detained under a preventative detention order is entitled to contact a special counsel appointed under section 32 to represent the person's interests under Part 5 for the purposes of section 33(1)(b) or (2)(b).

13ZG Monitoring contact under section 13ZD or 13ZF

(1) The contact the person being detained has with another person under section 13ZD or (unless the Supreme Court has otherwise directed under section 13F(6)) 13ZF may take place only if it is conducted in such 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.



(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—

S. 13ZFC inserted by No. 32/2018 s. 31.

S. 13ZG inserted by No. 5/2006 s. 4.

S. 13ZG(1) amended by No. 37/2014 s. 10(Sch. item 167.28).





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(5) The following are not admissible in evidence against the person who is being, or has been, detained under a preventative detention order in any proceedings in a court or tribunal—

(a) any communication between the person and a lawyer for a purpose referred to in section 13ZF(1)(aa), (a), (b), (c) or (d);

(b) any information derived from, or obtained as a result of, the monitoring of any communication between the person and a lawyer for a purpose referred to in section 13ZF(1)(aa), (a), (b), (c) or (d).

(6) The contact the person being detained has with a lawyer under section 13ZF must not be monitored in accordance with this section if the preventative detention order so provides under section 13F(6).Note


(7) This section does not apply to any contact the person being detained has with a lawyer under section 13ZF for the purpose of any communication under section 33(1)(b) or (2)(b).

13ZH 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—

(a) is under 18 years of age; or

S. 13ZG(5) substituted by No. 32/2018 s. 33(1).

S. 13ZG(7) inserted by No. 32/2018 s. 33(2).

S. 13ZH inserted by No. 5/2006 s. 4.



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(b) is incapable of managing his or her affairs.

(2) The person is entitled, while being detained under the order, to have contact with—


(b) another person who—

(i) is able to represent the person's interests; and

(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and

(iii) is not a police officer; and

(iv) is not an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth); and

(v) is not a member (however described) of a police force or police service of another State or of a Territory; and

(vi) is not an officer or employee of the Australian Security Intelligence Organisation.

S. 13ZH(2)(b)(ii) amended by No. 37/2014 s. 10(Sch. item 167.29(a)(i)).

S. 13ZH(2)(b)(iii) amended by No. 37/2014 s. 10(Sch. item 167.29(a)(i)).

S. 13ZH(2)(b)(v) amended by No. 37/2014 s. 10(Sch. item 167.29(a)(ii)).



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(a) if the person being detained (the detainee) has 2 parents or 2 or more guardians, the detainee is entitled, subject to section 13ZI, to have contact under subsection (2) with each of those parents or guardians; 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;

(iii) the period for which the detainee is being detained.




(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is—

(a) 2 hours; or

(b) such longer period as is specified in the preventative detention order.

S. 13ZH(4)(b) amended by No. 32/2018 s. 34.



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Note

See section 13F(7).

(6) Despite subsection (5), the police officer who is detaining the person may permit the person to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5).

(7) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under the preventative detention order.

(8) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in that language can be effectively monitored with the assistance of an interpreter.


(10) If the person being detained indicates that he or she wishes the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must—


(b) if it is reasonably practicable to do so—arrange for those services to be provided as

S. 13ZH(6) amended by No. 37/2014 s. 10(Sch. item 167.29(b)).






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soon as practicable.

(11) If—

(a) the person being detained has contact under subsection (2) with a parent or guardian of the person; and

(b) a prohibited contact order is in force in relation to another parent or guardian of the person—

the senior police officer nominated under section 13P(4) in relation to the preventative detention order must inform the parent or guardian with whom the person being detained has had contact that he or she must not disclose to the other parent or guardian information of the kind referred to in section 13ZJ(3)(b).Note


13ZI Entitlement to contact subject to prohibited contact order

Sections 13ZD, 13ZF, 13ZFB, 13ZH or 13ZNF have effect subject to any prohibited contact order made in relation to the person's detention.

13ZJ Disclosure offences

(1) A person (the subject) commits an offence if—

(a) the subject is being detained under a preventative detention order; and

(b) the subject intentionally discloses to another person—

(i) the fact that a preventative detention order has been made in relation to the subject; or

S. 13ZI inserted by No. 5/2006 s. 4, amended by No. 32/2018 s. 35.

S. 13ZJ inserted by No. 5/2006 s. 4.



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(ii) the fact that the subject is being detained; or

(iii) the fact that a prohibited contact order has been made in relation to the subject's detention; and

(c) the disclosure occurs while the subject is being detained under the order; and

(d) the disclosure is not one that the subject is entitled to make under section 13ZD, 13ZE, 13ZF, 13ZFA, 13ZFB, 13ZFC or 13ZH.


(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 13ZF or a person with whom the detainee has contact under section 13ZH contacts the lawyer as mentioned in subsection (3)(e)(ii) of this section; and

(b) the lawyer intentionally 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) 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

S. 13ZJ(1)(d) amended by No. 32/2018 s. 36(1).



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(d) the disclosure is not made for the purposes of—

(i) proceedings in a court for a remedy relating to the preventative detention order, a prohibited contact order or a counter-terrorism intelligence protection order or the treatment of the detainee in connection with the detainee's detention under the preventative detention order; or

(ii) a complaint to the Ombudsman under the Ombudsman Act 1973, a complaint to the IBAC under Part 9 of the Victoria Police Act 2013, a complaint under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or an investigation by the IBAC under Part 3 of that Act in relation to the application for the preventative detention order or a prohibited contact order or a counter-terrorism intelligence protection order or the treatment of the detainee by a police officer in connection with the detainee's detention under the preventative detention order; or

(iia) communicating with the Commission for Children and Young People in relation to the performance or exercise of the Commission's functions or powers under or in relation to this Part; or

S. 13ZJ(2)(d)(i) amended by No. 32/2018 s. 36(2)(a).

S. 13ZJ(2)(d)(ii) amended by No. 34/2008 s. 143(Sch. 2 item 13.7), substituted by No. 82/2012 s. 167(10)(a), amended by Nos 82/2012 s. 319, 37/2014 s. 10(Sch. item 167.30(a)(i)), 32/2018 s. 36(2)(a).

S. 13ZJ(2) (d)(iia) inserted by No. 32/2018 s. 36(2)(b).



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(iii) making representations to the senior police officer nominated under section 13P(4) in relation to the preventative detention order, or another police officer involved in the detainee's detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee's detention under the order.


(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 13ZH; and

(b) the parent/guardian intentionally discloses to another person—



(iii) 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 13ZH; and

S. 13ZJ(2)(d)(iii) amended by No. 37/2014 s. 10(Sch. item 167.30(a)(ii)).



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(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 under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 in relation to the application for the preventative detention order or a prohibited contact order or a counter-terrorism intelligence protection order or the treatment of the detainee by a police officer in connection with the detainee's detention under the preventative detention order; or

(ii) contacting a lawyer whom the detainee is entitled to contact under section 13ZF for any purpose for which the detainee is entitled to contact that lawyer under that section; or

(iii) making representations to the senior police officer nominated under section 13P(4) in relation to the preventative detention order, or another police officer involved in the detainee's detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee's detention under the order.


S. 13ZJ(3)(e)(i) amended by Nos 82/2012 s. 167(10)(b), 37/2014 s. 10(Sch. item 167.30(b)(i)), 32/2018 s. 36(3).

S. 13ZJ(3)(e)(iii) amended by No. 37/2014 s. 10(Sch. item 167.30(b)(ii)).



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(4) A person who is employed in the Department of Justice and Regulation, or the Department of Health and Human Services, under Part 3 of the Public Administration Act 2004 does not contravene subsection (3) merely by making a disclosure to another person employed in that Department in the exercise of powers or performance of functions under or in connection with any Act.Note

A child may be in the custody of the Secretary to the Department of Justice and Regulation under the Children, Youth and Families Act 2005. The Secretary to the Department of Health and Human Services may have parental responsibility for a child under that Act or be the guardian of a child under the Adoption Act 1984. A Secretary's functions may be delegated to staff in the Department.

(5) 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.

(6) 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 13ZH; and

(c) while the detainee is being detained under the order, the parent/guardian intentionally discloses information of the kind referred to in subsection (3)(b) to another parent or

S. 13ZJ(4) amended by No. 32/2018 s. 79(8).

Note to s. 13ZJ(4) amended by No. 48/2006 s. 42(Sch. item 35.7), substituted by No. 32/2018 s. 36(4).



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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 13ZH while being detained under the order; and

(e) when the disclosure is made, the parent/guardian has been informed under section 13ZH(11) by the senior police officer nominated under section 13P(4) in relation to the order that the parent/guardian must not disclose information of that kind to the other parent/guardian.


(7) 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 senior police officer nominated under section 13P(4) in relation to the order that the parent/guardian proposes to disclose information of the kind referred to in subsection (3)(b) to another parent or guardian of the detainee (the other parent/guardian)—

that senior police officer may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 13ZH.Note

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 13ZH and the parent/guardian does disclose



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information of that kind to the other parent/guardian. This is because of the operation of subsection (3)(c).

(8) 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 intentionally discloses to another person—



(iii) 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.


(9) 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



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(iii) 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), (6) or (8); or

(ii) this subsection; and

(c) the disclosure recipient intentionally discloses that information to another person; and

(d) the disclosure by the disclosure recipient occurs while the person referred to 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.


(10) A person (the monitor) commits an offence if—

(a) the monitor is—

(i) a police officer who monitors; or

S. 13ZJ(10)(a)(i) amended by No. 37/2014 s. 10(Sch. item 167.30(c)).



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(ii) an interpreter who assists in monitoring—

contact that a person being detained under a preventative detention order (the detainee) has with a lawyer under section 13ZF 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 referred to in section 13ZF(1); and

(d) the monitor intentionally discloses that information to another person.


Note

See also section 13ZG(5).

13ZK Questioning of person prohibited while person is detained if Court orders

(1AA) This section applies if the Supreme Court makes a preventative detention order subject to a questioning prohibition condition.

(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—

S. 13ZK (Heading) amended by No. 32/2018 s. 37(1).

S. 13ZK inserted by No. 5/2006 s. 4.

S. 13ZK(1AA) inserted by No. 32/2018 s. 37(2).

S. 13ZK(1) amended by No. 37/2014 s. 10(Sch. item 167.31(a)(i)).



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(a) determining whether the person is the person in relation to whom the order is made; or

(b) ensuring the safety and well-being of the person being detained; or

(c) allowing the police officer to comply with a requirement of this Part in relation to the person's detention under the order.

(2) A police officer must not question a person while the person is being detained under an order made under a corresponding preventative detention law.

(3) If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that—

(a) a video recording is made of the questioning if it is practicable to do so; or

(b) an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.

(4) Subsection (3) does not apply if—

(a) the questioning occurs to—

(i) determine whether the person is the person in relation to whom the order is made; or

(ii) ensure the safety and well-being of the person being detained; and

(b) complying with subsection (3) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.

S. 13ZK(1)(c) amended by No. 37/2014 s. 10(Sch. item 167.31(a)(ii)).

S. 13ZK(2) amended by No. 37/2014 s. 10(Sch. item 167.31(b)).

S. 13ZK(3) amended by No. 37/2014 s. 10(Sch. item 167.31(b)).



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(5) A recording made under subsection (3) must be kept for the period of 12 months after the recording is made.

Notes

1 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).

2 A contravention of this section may be an offence under section 13ZN.

13ZL Taking identification material

(1) A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.Note


(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 police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person's identity as the person in relation to whom the order is made; or

(c) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of documenting an illness or injury suffered by the person while being detained under the order.

S. 13ZL inserted by No. 5/2006 s. 4.

S. 13ZL(1) amended by No. 37/2014 s. 10(Sch. item 167.32(a)).

S. 13ZL(2) amended by No. 37/2014 s. 10(Sch. item 167.32(b)(i)).

S. 13ZL(2)(b) amended by No. 37/2014 s. 10(Sch. item 167.32(b)(ii)).

S. 13ZL(2)(c) amended by No. 37/2014 s. 10(Sch. item 167.32(b)(ii)).



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(3) A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4) Subject to this section, a police officer must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from the person if the person—


(b) is incapable of managing his or her affairs—

unless the Magistrates' Court or the Children's Court (in the case of a person under 18 years of age) orders that the material be taken.Note


(5) In deciding whether to make such an order, the Magistrates' Court or the Children's Court (as the case requires) must have regard to—

(a) the age, or any disability, of the person; and

(b) such other matters as it thinks fit.

(6) The taking of identification material from a person who—


(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 of the person is not acceptable to the person—another appropriate person.

Notes

1 For appropriate person, see subsection (10).

S. 13ZL(3) amended by No. 37/2014 s. 10(Sch. item 167.32(c)).S. 13ZL(4) amended by No. 37/2014 s. 10(Sch. item 167.32(c)).



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2 A contravention of this subsection may be an offence under section 13ZN.

(7) 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 (8) and (9) are satisfied; or

(b) subsection (8) or (9) is satisfied (but not both) and the Children's Court orders that the material be taken.

In deciding whether to make such an order, the Children's Court must have regard to the matters set out in subsection (5).

(8) For the purposes of subsection (7) this subsection is satisfied if the person agrees in writing to the taking of the material.

(9) For the purposes of subsection (7) this subsection is satisfied if either—


(b) if a parent or guardian is not acceptable to the person—another appropriate person—

agrees in writing to the taking of the material.Note

For appropriate person, see subsection (10).

(10) A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to 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

S. 13ZL(10)(b) amended by No. 37/2014 s. 10(Sch. item 167.32(d)(i)).



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(c) is none of the following—

(i) a police officer;

(ii) an AFP member or an AFP employee (within the meaning of the Australian Federal Police Act 1979 of the Commonwealth);

(iii) a member (however described) of a police force or police service of another State or of a Territory;

(iv) an officer or employee of the Australian Security Intelligence Organisation.

13ZM Use of identification material

(1) This section applies if identification material is taken under section 13ZL 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 in relation to whom the order is made.Note


(3) To avoid doubt, if the person is being detained in a prison or youth justice facility under the preventative detention order, the material may be provided to the Secretary to the Department of Justice and Regulation and used by him or her only for the purpose of identifying the person

S. 13ZL(10)(c)(i) substituted by No. 37/2014 s. 10(Sch. item 167.32(d)(ii)(A)).

S. 13ZL(10)(c)(iii) amended by No. 37/2014 s. 10(Sch. item 167.32(d)(ii)(B)).

S. 13ZM inserted by No. 5/2006 s. 4.

S. 13ZM(3) amended by Nos 48/2006 s. 42(Sch. item 35.6), 32/2018 s. 79(9).



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while he or she is detained in the prison or youth justice facility.

(4) If—

(a) a period of 12 months elapses after the identification material is taken; and

(b) proceedings in respect of—


(ii) the treatment of the person in connection with the person's detention under the order—

have not been brought, or have been brought and discontinued or completed, within that period—

the material (including material provided to the Secretary to the Department of Justice and Regulation) must be destroyed as soon as practicable after the end of that period.

13ZN Offences of contravening safeguards


(a) the person does an act or omits to perform an act; and

(b) the act or omission contravenes—

(i) section 13X(1); or

(ii) section 13Y; or

(iii) section 13ZA(1), (4), (6) or (9); or

(iv) section 13ZB; or

(v) section 13ZBA(1); or

(vi) section 13ZF(3); or

(vii) section 13ZG(6); or

(viii) section 13ZH(11); or

S. 13ZM(4) amended by No. 32/2018 s. 79(10).

S. 13ZN inserted by No. 5/2006 s. 4.



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(ix) section 13ZK(1), (2) or (3); or

(x) section 13ZL(1), (4) or (6); or

(xi) section 13ZM(2).


Division 5A—Questioning

Subdivision 1—Preliminary

13ZNA Application

This Division applies if—

(a) the Supreme Court makes a preventative detention order; and

(b) that order is not subject to a questioning prohibition condition.

Subdivision 2—Authority to question13ZNB Questioning during detention

(1) Subject to this Division, a police officer may question a person being detained under a preventative detention order in connection with—

(a) a terrorist act in relation to which the preventative detention order relating to the person was made; or

(b) any other terrorist act that—

(i) has occurred within 28 days before the day on which the preventative detention order relating to the person was made; or

Pt 2A Div. 5A (Headings and ss 13ZNA–13ZNO) inserted by No. 32/2018 s. 38.

S. 13ZNA inserted by No. 32/2018 s. 38.

S. 13ZNB inserted by No. 32/2018 s. 38.



206

(ii) the authorised police officer who applied for the preventative detention order has reasonable grounds to suspect could occur within 14 days after the day on which the police detention decision relating to the person was made.

(2) Before any questioning under subsection (1) commences, the police officer must inform the person being detained under the preventative detention order that—

(a) the person does not have to say or do anything but that anything the person does say or do may be given in evidence; and

(b) the person may communicate with or attempt to communicate with a lawyer (whether the term legal practitioner or lawyer is used); and

(c) if the person is not a citizen or permanent resident of Australia—the person may communicate with or attempt to communicate with the consular office of the country of which the person is a citizen; and

(d) if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language—the person may request the assistance of an interpreter.

(3) In addition, before any questioning under subsection (1) commences, the police officer must inform the person being detained under the preventative detention order of the reasons for the making of the preventative detention order.



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(4) The duration of any period of questioning of a person being detained under the preventative detention order must be—

(a) reasonable; and

(b) consistent with any questioning limitation condition.

(5) The person must also be given—

(a) a rest from questioning for a continuous period of 8 hours in any period of 24 hours of detention; and

(b) reasonable breaks during any period of questioning.

(6) This section does not prevent the questioning of a person being detained under the preventative detention order for the purposes of—

(a) ensuring the safety and wellbeing of the person; or

(b) allowing a police officer to comply with a requirement imposed by law on the police officer in relation to the detention of the person.

13ZNC Questioning to be deferred to allow for interpreter

(1) This section applies if a police officer has reasonable grounds to believe that a person being detained under a preventative detention order is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

(2) A police officer must, before any questioning under section 13ZNB commences, arrange for the presence of a competent interpreter and defer the questioning until the interpreter is present.

13ZND Questioning to be deferred to enable communication with lawyer or consular office

S. 13ZNC inserted by No. 32/2018 s. 38.

S. 13ZND inserted by No. 32/2018 s. 38.



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Subject to sections 13ZI and 13ZNG, a police officer must defer questioning under section 13ZNB for a time that is reasonable in the circumstances to enable the person being detained to communicate, or attempt to communicate, with—

(a) a lawyer; orNote

See also section 13ZF.

(b) if the person is not a citizen or permanent resident of Australia—the consular office of the country of which the person is a citizen.

13ZNE Role of lawyers during questioning

If a person being detained under a preventative detention order arranges for a lawyer to be present during the questioning under section 13ZNB, the police officer conducting the questioning, subject to sections 13ZI and 13ZNG, must—

(a) before any questioning commences, allow the person to communicate with the lawyer; and

(b) allow the lawyer to be present during any questioning and to give advice to the person.

13ZNF Questioning of children

(1) This section applies if a person being detained under a preventative detention order is a child.

(2) Subject to sections 13ZI and 13ZNG, a police officer must not question the child under section 13ZNB unless—

S. 13ZNE inserted by No. 32/2018 s. 38.

S. 13ZNF inserted by No. 32/2018 s. 38.



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(a) a parent or guardian of the child or, if a parent or guardian is not available, an independent person is present; and

(b) before any questioning commences, the police officer has allowed the child to communicate with the child's parent or guardian or the independent person.

(3) In addition but subject to subsection (5), if the child, or parent or guardian of the child, does not arrange for a lawyer to be present during questioning under section 13ZNB, a police officer must request Victoria Legal Aid to arrange for a lawyer to be present during questioning.

(4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must arrange a lawyer (a VLA arranged lawyer) to be present during questioning and to offer to provide legal advice to the child.

(5) If during questioning of the child, a police officer believes on reasonable grounds that the VLA arranged lawyer is unreasonably interfering with the questioning, the police officer may stop that lawyer from being present during that questioning.Note

In the case of a lawyer who is not a VLA arranged lawyer, see section 13ZNG.

(6) During any questioning of the child, the child, the child's parent or guardian, the independent person or any lawyer who is present during questioning may request a break in the questioning if the child becomes distressed or unable to concentrate.

(7) A police officer conducting the questioning must not unreasonably refuse to accede to a request



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under subsection (6).

13ZNG Communication with lawyers, consular officials, parents, guardians or independent person may be restricted

A police officer does not have to comply with section 13ZND, 13ZNE or 13ZNF(2) if the police officer believes on reasonable grounds that—

(a) the communication or contact would result in—

(i) a risk arising in relation to action being taken to prevent a terrorist act occurring; or

(ii) serious harm to a person; or

(iii) the destruction of evidence of, or relating to, a terrorist act; or

(iv) interference with the gathering of information about—

(A) a terrorist act; or

(B) the preparation for, or the planning of, a terrorist act; or

(v) a risk arising in relation to—

(A) the arrest of a person who is suspected of having committed an offence against Part 5.3 of the Criminal Code of the Commonwealth; or

(B) the taking into custody of a person in relation to whom a police detention decision is in effect, or in relation to whom a police detention decision is likely to be made; or

S. 13ZNG inserted by No. 32/2018 s. 38.



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(C) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(D) the service on a person of a Commonwealth control order; or

(b) the questioning is so urgent, having regard to the safety of other people, that it should not be delayed; or

(c) in the case of a lawyer who is present during the questioning, the lawyer is unreasonably interfering with the questioning.

Subdivision 3—Recording of questioning13ZNH Definitions

In this Subdivision—

authorised person means any of the following—

(a) a member of Victoria Police personnel (other than a protective services officer);

(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;

(c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;

(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

S. 13ZNH inserted by No. 32/2018 s. 38.



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(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;

(f) a lawyer representing—

(i) the State; or

(ii) an informant;

(g) a lawyer representing a person recorded under section 13ZNJ;

(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;

(i) a court or a person acting under the direction of a court;

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;

(k) the Information Commissioner appointed under the Freedom of Information Act 1982 or the Privacy and Data Protection Deputy Commissioner appointed under the Privacy and Data Protection Act 2014;

(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner;

(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under the direction of the Commissioner;



213

(n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under the direction of the Inspector;

(o) a member of the Legislative Assembly or Legislative Council or a person acting under the direction of the member;

(p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition;

(q) a police officer or person acting under the direction of the police officer;

(r) a person engaged by a Department or agency to store or retrieve a record;

publish means—

(a) insert in a newspaper or other publication; or

(b) disseminate by broadcast, telecast or cinematograph; or

(c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;

recording means a recording made in accordance with section 13ZNJ;

representation has the same meaning as in the Evidence Act 2008.

13ZNI Digital recordings

If this Subdivision requires an audio recording or an audiovisual recording to be made and the recording is made in a digitised format, the maker of the recording must certify that the recording has not been altered after its making and that the

S. 13ZNI inserted by No. 32/2018 s. 38.



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prescribed requirements, if any, in relation to the method of recording have been met.

13ZNJ Recording of questioning

(1) A police officer who questions a person under this Division must, in accordance with this section, record the following things (the questioning matter)—

(a) the questioning of the person;

(b) the giving of information to the person under section 13ZNB(2) and (3);

(c) the person's responses (if any) to any questions and the giving of that information.

(2) If the person being questioned is a child, the police officer must make an audiovisual recording of the questioning matter.

(3) If the person being questioned is not a child, the police officer must ensure that—

(a) an audiovisual recording is made of the questioning matter if it is practicable to do so; or

(b) an audio recording is made of the questioning matter if it is not practicable for an audiovisual recording to be made of the questioning matter.

13ZNK Person questioned to be given copy of recordings

(1) If the questioning of a person or the giving of information is recorded as required under section 13ZNJ, the police officer must give to the person or the person's lawyer without charge—

S. 13ZNJ inserted by No. 32/2018 s. 38.

S. 13ZNK inserted by No. 32/2018 s. 38.



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(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; and

(b) if both an audio recording and an audiovisual recording were made—

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after the transcript was made.

(2) The person or the lawyer representing the person may request an additional copy of the audiovisual recording referred to in subsection (1).

(3) On receiving a request under subsection (2), a police officer must give an additional copy of the audiovisual recording.

13ZNL Evidence of representations

(1) Subject to subsection (2), evidence of a representation made by a person detained under a preventative detention order that is adverse to the person's interests is inadmissible as evidence against the person in a proceeding for an offence unless—

(a) that representation was recorded by audio recording or audiovisual recording under section 13ZNJ; and

S. 13ZNL inserted by No. 32/2018 s. 38.



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(b) if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.

(2) A court may admit evidence of a representation made by a person detained under a preventative detention order that is otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—

(a) are exceptional; and

(b) justify the reception of the evidence.

13ZNM Offences in relation to recordings

(1) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the person who was questioned and given information under section 13ZNB and the audio recording or audiovisual recording is a recording of that questioning and that giving of information; or

(b) is a lawyer representing the person referred to in paragraph (a); or

(c) is an authorised person acting in the performance of his or her duties; or

(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.

S. 13ZNM inserted by No. 32/2018 s. 38.



217



(2) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with any civil or criminal proceeding and any inquiry before any court or tribunal; or

(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

(c) the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or

(d) the recording is played for purposes connected with disciplinary action against a lawyer; or

(e) the recording is played in accordance with the direction of a court under section13ZNN; or

(f) the recording is played by an authorised person acting in the course of his or her duties.




218


(3) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—


(b) a lawyer representing the person referred to in paragraph (a); or

(c) an authorised person acting in the performance of his or her duties; or

(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.



(4) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 13ZNN.



(5) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 13ZNO,



219

except in accordance with the direction of a court under section 13ZNN.



(6) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 13ZNN.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum);


13ZNN Court may give directions in relation to a recording

A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.

13ZNO Retention of copy of recording

(1) The Chief Commissioner must keep a copy of a recording, if the recording has been made by a police officer under this Division, in safe custody.

(2) A recording referred to in subsection (1) must be kept for a period of 7 years from the making of the recording.

(3) If a court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief

S. 13ZNN inserted by No. 32/2018 s. 38.

S. 13ZNO inserted by No. 32/2018 s. 38.



220

Commissioner retain the copy for a further period specified in the order.

(4) An application for an order under subsection (3) may be made by—


(b) an authorised person acting in the performance of the person's duties.

(5) The court must not make an order under subsection (3) unless—

(a) the court is satisfied that the applicant has given reasonable notice of the application to—

(i) the person in relation to whom the recording was made; and

(ii) the Chief Commissioner; and

(b) the court has given that person and the Chief Commissioner a reasonable opportunity to be heard.


court means—

(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding;

(b) in any other case, the Magistrates' Court.

Division 6—Miscellaneous13ZO Standard of proof

S. 13ZO inserted by No. 5/2006 s. 4.



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Any question of fact to be decided by a court on an application under this Part is to be decided on the balance of probabilities.

13ZP Nature of proceedings

(1) Proceedings on an application under this Part are civil in nature, except as otherwise provided by this Part.

(2) Despite subsection (1), the rules regulating the practice and procedure of a court in civil proceedings do not apply to a proceeding on an application under this Part.

* * * * *

13ZQ Police detaining person under a 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 power or obligation is expressed in this Part to be conferred or imposed on the police officer detaining the person—

the power or obligation is conferred or imposed at that time on the most senior of those police

S. 13ZP inserted by No. 5/2006 s. 4.

S. 13ZP(3) repealed by No. 32/2018 s. 70.

S. 13ZQ (Heading) amended by No. 37/2014 s. 10(Sch. item 167.33).

S. 13ZQ inserted by No. 5/2006 s. 4, amended by No. 37/2014 s. 10(Sch. item 167.34(c)).

S. 13ZQ(a) amended by No. 37/2014 s. 10(Sch. item 167.34(a)).

S. 13ZQ(b) amended by No. 37/2014 s. 10(Sch. item 167.34(b)).



222

officers.

* * * * *

13ZS Ombudsman etc. functions and powers not affected

This Part does not affect a function or power of the Ombudsman under the Ombudsman Act 1973 or the IBAC under Part 9 of the Victoria Police Act 2013 or Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

13ZT Law relating to legal professional privilege and client legal privilege not affected

To avoid doubt, this Part does not affect the law relating to legal professional privilege or client legal privilege.

* * * * *

* * * * *

S. 13ZR inserted by No. 5/2006 s. 4, amended by Nos 34/2008 s. 143(Sch. 2 item 13.8), 82/2012 ss 167(11), 319, 37/2014 s. 10(Sch. item 167.35), repealed by No. 32/2018 s. 76.

S. 13ZS inserted by No. 5/2006 s. 4, amended by Nos 34/2008 s. 143(Sch. 2 item 13.9), 82/2012 s. 167(12), 37/2014 s. 10(Sch. item 167.35).

S. 13ZT (Heading) amended by No. 69/2009 s. 54(Sch. Pt 1 item 55.2).S. 13ZT inserted by No. 5/2006 s. 4, amended by No. 69/2009 s. 54(Sch. Pt 1 item 55.3).S. 13ZU inserted by No. 5/2006 s. 4, repealed by No. 32/2018 s. 39.

S. 13ZV inserted by No. 5/2006 s. 4, repealed by No. 70/2015 s. 11.



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Part 3—Police powers to detain and decontaminate

14 Interpretation

In giving an authorisation or exercising powers under this Part, it is the intention of the Parliament that no unnecessary restrictions on personal liberty or privacy should be imposed.

15 Definitions

In this Part—

danger area means an area in respect of which an authorisation is given by a senior police officer under Part 3;

* * * * *

emergency has the same meaning as in the Emergency Management Act 2013;

emergency services agency means any of the following—

(a) the Country Fire Authority established under the Country Fire Authority Act 1958;

(b) the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958;

(c) an agency established by or under an Act of the Commonwealth or of another State or a Territory with functions corresponding to those of an agency referred to in paragraph (a) or (b);

S. 15 def. of DISPLAN repealed by No. 56/2011 s. 32(1).

S. 15 def. of emergency amended by No. 73/2013 s. 104(a).



225

(d) any other prescribed agency;

senior police officer means a police officer of or above the rank of inspector;

volunteer emergency worker, in relation to an emergency services agency, means a person who, with the approval of the agency, provides services (without remuneration or reward) on behalf of the agency for or in relation to the decontamination of any person.

16 Authorisation

(1) A senior police officer may, for the purpose of protecting people from chemical, biological or radiological contamination, give an authorisation to a police officer under this Part in relation to an area if that senior police officer forms a belief on reasonable grounds that—

(a) a terrorist act has or may have occurred; and

(b) that area, or people in that area, will be, or may have been exposed to such contamination.

(2) If the senior police officer who has given an authorisation under subsection (1) ceases to have the belief referred to in that subsection, he or she must immediately notify the Chief Commissioner of that fact.

17 How may an authorisation be given?

(1) An authorisation under this Part may be given orally or in writing.

S. 15 def. of senior police officer amended by No. 37/2014 s. 10(Sch. item 167.36).

S. 16(1) amended by No. 37/2014 s. 10(Sch. item 167.37).

S. 16(1)(b) amended by No. 30/2006 s. 7.



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(2) If the authorisation is given orally, it must be confirmed in writing as soon as reasonably practicable.

(3) An authorisation must—

(a) state that it is given under this Part; and

(b) generally describe the terrorist act or suspected terrorist act to which it relates; and

(c) specify the name or description of any police officer to which it is given; and

(d) name or describe the area that may have been exposed, or in which there are people that may have been exposed, to contamination; and

(e) specify the time at which it is given.

18 What is authorised?

(1) An authorisation may authorise a police officer to—

(a) direct another police officer to exercise powers referred to in paragraph (b), (c) or (d) in respect of people in the danger area suspected of exposure to contamination; and

(b) direct a person or group of people to enter, not to enter or to leave any particular premises or area; and

(c) detain a person (whether alone or with others); and

(ca) dispose of, destroy or seize—

S. 17(3)(c) amended by No. 37/2014 s. 10(Sch. item 167.37).


S. 18(1)(a) amended by No. 37/2014 s. 10(Sch. item 167.38(a)).

S. 18(1)(ca) inserted by No. 30/2006 s. 8(1).



227

(i) any source of contamination or possible contamination; or

(ii) any thing contaminated; and

(d) direct a person to submit to decontamination procedures by an officer of, or person employed by, or volunteer emergency worker of, an emergency services agency; and

(e) subject to subsections (4) and (5), enter a place in the danger area suspected of exposure to contamination without the consent of the occupier of that place and exercise a power referred to in paragraph (a), (b), (c), (ca) or (d), or subsection (3), at that place.

(2) If an oral direction is given to a group of people, it is deemed to have been given to each member of the group if the oral direction is made in a manner which is likely to be audible to all the members of the group or as many of them as reasonably practicable.

(3) An authorised police officer may exercise a power under subsection (1) for the purpose of preventing or limiting the spread of contamination caused by the terrorist act or suspected terrorist act and may give any direction necessary in connection with the exercise of the power.

(4) Subject to subsection (5), an authorised police officer must not enter a place referred to in subsection (1)(e) that is used only for residential purposes without the consent of the occupier of that place.

(5) An authorised police officer may enter a place used only for residential purposes in the danger

S. 18(1)(d) amended by No. 30/2006 s. 8(2).

S. 18(1)(e) inserted by No. 30/2006 s. 8(3).


S. 18(4) substituted by No. 30/2006 s. 8(4), amended by No. 37/2014 s. 10(Sch. item 167.38(a)).S. 18(5) inserted by No. 30/2006 s. 8(4), amended by No. 37/2014 s. 10(Sch. item 167.38(a)).



228

area suspected of exposure to contamination without the consent of the occupier of that place if the authorised police officer believes on reasonable grounds that immediate entry to that place is necessary to—

(a) ensure the safety of any person; or

(b) prevent or limit the spread of contamination caused by the terrorist act or suspected terrorist act.

(6) If, under an authorisation under this Part, an authorised police officer is authorised to exercise a power referred to in subsection (1)(b), (c), (ca), (d) or (e), the authorised police officer may exercise that power with any assistance from any other person that the authorised police officer considers reasonably necessary.

(7) A person must not refuse or fail to comply with a direction under subsection (1)(b) or (d) unless the person has a reasonable excuse.

Penalty:Level 9 fine (60 penalty units maximum).

(8) A person must not hinder, obstruct or delay a police officer authorised under this Part in the exercise of a power referred to in subsection (1) or (3).

Penalty:In the case of a natural person, level 9 fine (60 penalty units maximum);


18A Requests for communication and medical treatment by persons detained

A police officer must facilitate any reasonable request for communication or medical treatment made by a person detained under an authorisation under this Part.

S. 18(6) inserted by No. 30/2006 s. 8(4), amended by No. 37/2014 s. 10(Sch. item 167.38(b)).

S. 18(7) inserted by No. 30/2006 s. 8(4).

S. 18(8) inserted by No. 30/2006 s. 8(4), amended by Nos 28/2007 s. 3(Sch. item 65), 37/2014 s. 10(Sch. item 167.38(c)).

S. 18A inserted by No. 30/2006 s. 9, amended by No. 37/2014 s. 10(Sch. item 167.39).



229

19 When does an authorisation lapse?

(1) An authorisation (including an authorisation extended under section 20(1)) lapses—

(a) on notification to the Chief Commissioner under section 16(2);

(b) if the agency primarily responsible under the state emergency response plan under the Emergency Management Act 2013 for responding to the emergency caused by the suspected contamination notifies the Chief Commissioner that the authorisation should lapse, on that notification;

(c) in any event, 8 hours after the time at which it is given or on expiry of the extended period under section 20(1), as the case requires.

Note

By section 54 of the Emergency Management Act 2013, the state emergency response plan contains provisions identifying, in relation to each form of emergency specified, the agency primarily responsible for responding to the emergency.

(2) The Chief Commissioner must ensure that any person to whom an authorisation was given is notified of the lapse of that authorisation immediately after receiving a notification under subsection (1)(b) or section 16(2).

20 Extended authorisation

(1) The Chief Commissioner, a Deputy Commissioner or an Assistant Commissioner may

S. 19(1)(b) amended by Nos 56/2011 s. 32(2), 73/2013 s. 104(b).

Note to s. 19(1) amended by Nos 56/2011 s. 32(3) (as amended by No. 43/2012 s. 3(Sch. item 15)), 73/2013 s. 104(c).



230

extend the period of authorisation beyond the 8 hour period referred to in section 19(1)(c) if he or she decides that extended authorisation is necessary for the purpose of protecting public health.

(2) The extended period of authorisation must not be for more than 16 hours duration in total (whether that total is a continuous period or a cumulative total of separate periods).

(3) An extension may only be granted under subsection (1) with the agreement of the agency referred to in section 19(1)(b).

21 Use of reasonable and necessary force

If a person refuses to comply with a direction given under this Part, an authorised police officer, or another police officer acting under the direction of an authorised police officer, may use reasonable and necessary force to ensure compliance with that direction.

S. 21 amended by No. 37/2014 s. 10(Sch. item 167.39).



231

Part 3A—Special police powers


21A Definitions

(1) In this Part—

authorisation means an authorisation given under this Part in accordance with Division 2;

* * * * *

serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more;

target of an authorisation means the person in relation to whom, or the vehicle or kind of vehicle or the area in relation to which, an authorisation authorises the exercise of special powers.

* * * * *

(2) For the purposes of this Part—

(a) a person in an area that is the target of an authorisation includes a person who is about

Pt 3A (Headings and ss 21A–21X) inserted by No. 5/2006 s. 5.


S. 21A(1) def. of Chief Commis-sioner repealed by No. 37/2014 s. 10(Sch. item 167.40(a)).

S. 21A(1) def. of target amended by No. 70/2015 s. 12(1).

S. 21A(1) def. of vehicle repealed by No. 70/2015 s. 12(2).



232

to enter the area or who has recently left the area; and

(b) a vehicle in an area that is the target of an authorisation includes a vehicle that is about to enter the area or that has recently left the area.

(3) Despite any provision to the contrary made by or under this or any other Act (including section 19 of the Victoria Police Act 2013), a power, discretion, function, authority or duty of the Chief Commissioner under this Part cannot be delegated to any other person.

* * * * *

21AB Deputy Commissioners may exercise powers of Chief Commissioner

A Deputy Commissioner may exercise the powers and perform the functions of the Chief Commissioner under this Part as if the Deputy Commissioner were the Chief Commissioner.

Division 2—Authorisation to exercise special powers

21B Authorisation of special powers to protect persons attending events from a terrorist act

(1) Subject to subsection (2), the Chief Commissioner may apply to the Supreme Court for an order authorising the exercise of special powers conferred by this Part if the Chief Commissioner is satisfied—

S. 21A(3) amended by No. 37/2014 s. 10(Sch. item 167.40(b)).

S. 21A(4) repealed by No. 37/2014 s. 10(Sch. item 167.40(c)).

S. 21AB inserted by No. 37/2014 s. 10(Sch. item 167.41).




233

(a) that an event is taking place in Victoria or is likely to take place in Victoria in the near future; and

(b) that the event involves, or is likely to involve, the attendance of prominent persons or of a large number of people; and

(c) on reasonable grounds that the event might be the subject of a terrorist act; and

(d) that the giving of an authorisation targeting—

(i) the area in which the event is taking place or is likely to take place; or

(ii) any other area in which an activity connected with the event is taking place or is likely to take place—

is necessary to assist in protecting any person or persons attending the event from a terrorist act.

(2) An application under subsection (1) may only be made with the written approval of the Premier.

(3) An application under subsection (1) must—


(b) describe the event in respect of which the application is being made; and

(c) set out the facts and other grounds on which the Chief Commissioner considers that there are reasonable grounds for suspecting that the event might be the subject of a terrorist act; and

(d) explain why the giving of an authorisation targeting—

(i) the area in which the event is taking place or is likely to take place; or



234

(ii) any other area in which an activity connected with the event is taking place or is likely to take place—

is necessary to assist in protecting any person or persons attending the event from a terrorist act; and

(e) specify the special powers under Division 3 that, in the opinion of the Chief Commissioner, are reasonably necessary to ensure the safety of any person or persons attending the event; and

(f) describe any area sought to be made the target of an authorisation.

(4) The information in the application must be sworn or affirmed by the Chief Commissioner.

* * * * *

(5) The Supreme Court may require the Chief Commissioner to provide any additional information that the Court requires in relation to the application.

(6) The Supreme Court may, by order, give an authorisation for the exercise of special powers conferred by this Part if satisfied on reasonable grounds that the granting of the authorisation is reasonably necessary to ensure the safety of any person or persons attending the event.



S. 21B(4) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 21B(4) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



235

(b) describe the general nature of the event to which it applies; and

(c) describe any area targeted by the authorisation; and

(d) specify which of the special powers under Division 3 may be exercised; and

(e) specify the date on which and time at which it begins to have effect; and

(f) specify the date on which and time at which it ceases to have effect, not being later than 24 hours after the scheduled completion time of the event.Note

The period for which an authorisation has effect may be extended, or further extended, under section 21C.

(8) If, on an application under subsection (1) the Supreme Court considers it desirable to do so, it may make an interim order giving an authorisation pending the hearing and final determination of the application.

(9) If the Supreme Court makes an interim order, it must specify a day on which, and time at which, the hearing of the application is to be resumed.

(10) On finally determining an application following the making of an interim order, the Supreme Court may—

(a) confirm the order without variation or vary—

(i) the description of any area targeted by the authorisation; or

(ii) the special powers that may be exercised; or

(iii) the time or date when the order ceases to have effect; or



236

(b) revoke the order if not satisfied as mentioned in subsection (6).

21C Extension of authorisation under section 21B

(1) If—

(a) an authorisation is given by the Supreme Court under section 21B; and

(b) the authorisation has effect—

the Chief Commissioner, with the written approval of the Premier, may apply to the Supreme Court for an extension, or a further extension, of the period for which the authorisation has effect.

(2) The application must—


(b) set out the facts and other grounds on which the Chief Commissioner considers that the extension, or further extension, is reasonably necessary to ensure the achievement of the objective of the authorisation.

(3) The information in the application must be sworn or affirmed by the Chief Commissioner.

* * * * *

(4) The Supreme Court may, by order, extend, or further extend, the period for which the authorisation has effect if it is satisfied that the extension, or further extension, is reasonably necessary to ensure the achievement of the objective of the authorisation.


S. 21C(3) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 21C(3) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



237

21D Authorisation of special powers to prevent, or reduce the impact of, a terrorist act

(1) An interim authorisation for the exercise of the special powers conferred by this Part may be given by the Chief Commissioner in accordance with this Division if—

(a) the Chief Commissioner is satisfied on reasonable grounds that a terrorist act is occurring or is capable of being carried out, and could occur, within the next 14 days; and

(b) the Chief Commissioner is satisfied that the exercise of those powers will substantially assist in—

(i) preventing the terrorist act; or

(ii) reducing the impact of the terrorist act, or of the threat of a terrorist act, on the health or safety of the public or on property; and

(c) subject to subsection (1A), the Premier has approved in writing the giving of the authorisation.Note

The Premier may delegate the power of approval to a Minister—see section 21IB.

(1A) An interim authorisation may be given by the Chief Commissioner without the written approval of the Premier if—

(a) the Premier is not reasonably able to be contacted at the time it is given and the Premier has not delegated the power to


S. 21D(1) amended by No. 32/2018 s. 46(1).

S. 21D(1)(a) amended by No. 32/2018 ss 44, 46(2).

S. 21D(1)(b) amended by No. 32/2018 s. 46(3)(a).

S. 21D(1)(b)(ii) amended by No. 32/2018 s. 46(3)(b).

S. 21D(1)(c) inserted by No. 32/2018 s. 46(4).

S. 21D(1A) inserted by No. 32/2018 s. 46(5).



238

approve an interim authorisation under section 21IB; or

(b) the Premier has delegated that power and—

(i) the Minister to whom the power is delegated is not reasonably able to be contacted at the time it is given; and

(ii) the Premier is also not reasonably able to be contacted at the time it is given.

(2) As soon as practicable after the giving of an interim authorisation, the Chief Commissioner must, if he or she considers that an authorisation should have effect for a period in excess of 48 hours, make an application to the Supreme Court for an authorisation under this section.

(3) Without an interim authorisation having been given, the Chief Commissioner may make an application to the Supreme Court for an authorisation under this section.

(4) An application under subsection (2) or (3) must—


(b) set out the facts and other grounds on which the Chief Commissioner considers that a terrorist act is occurring or is capable of being carried out, and could occur, within the next 14 days; and

(c) explain how the exercise of the special powers conferred by this Part will substantially assist in—

(i) preventing the terrorist act; or

(ii) reducing the impact of the terrorist act, or of the threat of a terrorist act, on the health or safety of the public or on property.

S. 21D(2) amended by No. 32/2018 s. 46(6).

S. 21D(4)(b) amended by No. 32/2018 s. 44.



239

(5) The information in an application under subsection (2) or (3) must be sworn or affirmed by the Chief Commissioner.

* * * * *


(7) On an application under subsection (2) or (3) the Supreme Court may, by order—

(a) if satisfied, on reasonable grounds, as mentioned in paragraphs (a) and (b) of subsection (1), give an authorisation for the exercise of the special powers conferred by this Part and revoke any interim authorisation given by the Chief Commissioner that has effect; or

(b) revoke any interim authorisation that has effect if not so satisfied.

(8) The terms of an authorisation given by the Supreme Court may be the same as, or different to, the terms of any interim authorisation given by the Chief Commissioner.


S. 21D(5) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 21D(5) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



240



(a) confirm the order with or without variation; or

(b) revoke the order if not satisfied as mentioned in subsection (7)(a).

21E Authorisation of special powers relating to the investigation of, or recovery from, a terrorist act

(1) An interim authorisation for the exercise of the special powers conferred by this Part may be given by the Chief Commissioner in accordance with this Division if—

(a) the Chief Commissioner is satisfied that there are reasonable grounds for believing that a terrorist act has occurred or is occurring; and

(b) the Chief Commissioner is satisfied that the exercise of those powers will substantially assist in—

(i) apprehending the persons responsible for the terrorist act; or

(ii) the investigation of the terrorist act, including the preservation of evidence of, or relating to, the terrorist act; or

(iii) the necessary recovery process for the community in the aftermath of the terrorist act; and


S. 21E(1) amended by No. 32/2018 s. 47(1).

S. 21E(1)(a) amended by No. 32/2018 s. 47(2).

S. 21E(1)(b) amended by No. 32/2018 s. 47(3)(a).

S. 21E(1)(b)(iii) amended by No. 32/2018 s. 47(3)(b).



241

(c) subject to subsection (1A), the Premier has approved in writing the giving of the authorisation.Note

The Premier may delegate the power of approval to a Minister—see section 21IB.

(1A) An interim authorisation may be given by the Chief Commissioner without the written approval of the Premier if—

(a) the Premier is not reasonably able to be contacted at the time it is given and the Premier has not delegated the power to approve an interim authorisation under section 21IB; or

(b) the Premier has delegated that power and—

(i) the Minister to whom the power is delegated is not reasonably able to be contacted at the time it is given; and

(ii) the Premier is also not reasonably able to be contacted at the time it is given.

(2) As soon as practicable after the giving of an interim authorisation, the Chief Commissioner must, if he or she considers that an authorisation should have effect for a period in excess of 48 hours, make an application to the Supreme Court for an authorisation under this section.

(3) Without an interim authorisation having been given, the Chief Commissioner, with the written approval of the Premier, may make an application to the Supreme Court for an authorisation under this section.

S. 21E(1)(c) inserted by No. 32/2018 s. 47(4).


S. 21E(2) amended by No. 32/2018 s. 47(6).



242

(4) An application under subsection (2) or (3) must—


(b) set out the facts and other grounds on which the Chief Commissioner considers that a terrorist act has occurred, or is occurring; and

(c) explain how the exercise of the special powers conferred by this Part will substantially assist in—

(i) apprehending the persons responsible for the terrorist act; or

(ii) the investigation of the terrorist act, including the preservation of evidence of, or relating to, the terrorist act; or

(iii) the necessary recovery process for the community in the aftermath of the terrorist act.

(5) The information in an application under subsection (2) or (3) must be sworn or affirmed by the Chief Commissioner.

* * * * *


(7) On an application under subsection (2) or (3) the Supreme Court may, by order—

S. 21E(5) amended by No. 6/2018 s. 68(Sch. 2 item 124.4).

Note to s. 21E(5) repealed by No. 6/2018 s. 68(Sch. 2 item 124.5).



243

(a) if satisfied, on reasonable grounds, as mentioned in paragraphs (a) and (b) of subsection (1), give an authorisation for the exercise of the special powers conferred by this Part and revoke any interim authorisation given by the Chief Commissioner that has effect; or

(b) revoke any interim authorisation that has effect if not so satisfied.

(8) The terms of an authorisation given by the Supreme Court may be the same as, or different to, the terms of any interim authorisation given by the Chief Commissioner.




(a) confirm the order with or without variation; or

(b) revoke the order if not satisfied as mentioned in subsection (7)(a).

21F Authorisation of special powers to protect essential services from a terrorist act

(1) The Governor in Council may, on the recommendation of the relevant Minister made with the approval of the Premier and in accordance with the advice of the Chief Commissioner, by Order published in the




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Government Gazette give an authorisation for the exercise of special powers conferred by this Part.

(2) The relevant Minister may only recommend the making of an Order under subsection (1) if satisfied that—

(a) a part of the essential service is located in a particular area; and

(b) that part is a key part of the essential service; and

(c) the making of the Order is reasonably necessary—

(i) to protect that part from a terrorist act; or

(ii) to mitigate the effects of a terrorist act on the essential service or on persons in the vicinity of the area; or

(iii) for the recovery of the essential service from a terrorist act.

(3) An Order under subsection (1) must—

(a) state that the effect of the Order is to give an authorisation under this Part; and

(b) describe the area targeted by the authorisation and name or describe any person or vehicle targeted by it; and

(c) specify which of the special powers under Division 3 may be exercised; and

(d) specify the period or periods during which the authorisation has effect.


relevant Minister, in relation to an essential service, means the Minister for the time

S. 21F(2)(a) substituted by No. 76/2014 s. 8(3).



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being responsible for the essential service.

21G Persons, vehicles or areas targeted by authorisation

(1) Except as otherwise provided by this Part, an authorisation may authorise the exercise of the special powers conferred by this Part in relation to any or all of the following—

(a) a particular person named or described in the authorisation;

(b) a particular vehicle, or a vehicle of a particular kind, described in the authorisation;

(c) a particular area described in the authorisation.

(2) Without limiting subsection (1)(a), a person may be described by the use of a photograph or drawing.

21H How authorisation may be given

(1) This section applies to an interim authorisation given by the Chief Commissioner in accordance with this Division.

(2) An authorisation may be given orally or by instrument in writing.

(3) If the authorisation is given orally, it must be confirmed by instrument in writing as soon as it is reasonably practicable to do so and, in any event, before an application is made to the Supreme Court in respect of the matter.

(3A) If the Chief Commissioner gives an interim authorisation without the approval of the Premier in accordance with section 21D(1A) or 21E(1A), the Chief Commissioner must, as soon as practicable, give a copy of the authorisation to—

(a) the Premier; and



S. 21H(3A) inserted by No. 32/2018 s. 48.



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(b) if the Premier has delegated the power to approve an interim authorisation to a Minister, the Minister.



(b) describe the general nature of the terrorist act or threatened terrorist act to which it applies; and

(c) name or describe the person, vehicle or area targeted by the authorisation; and

(d) specify the date on which and time at which it begins to have effect; and

(e) specify the date on which and time at which it ceases to have effect.

21I Duration of authorisation

(1) An authorisation given has effect, unless sooner revoked, during the period beginning when it is given (or at such later time or date as is specified in the authorisation) and ending at the time and on the date specified in the authorisation.

(2) The period an authorisation has effect must not exceed—

(a) in the case of an interim authorisation given by the Chief Commissioner under section 21D or 21E—48 hours; or

(b) in the case of an authorisation given by the Supreme Court under section 21D or 21E—14 days.

(3) An authorisation given by Order in Council under section 21F has effect during the period or periods specified in it until the end date specified in it, not being a date later than the first anniversary of the date on which it is given.


S. 21I(2)(a) amended by No. 32/2018 s. 49(1).



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(4) The Chief Commissioner may at any time revoke an interim authorisation given by him or her.

(4A) The Premier may at any time revoke an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A) if the Premier is not satisfied of the matters in section 21D(1)(a) and (b) or 21E(1)(a) and (b) (as the case requires).

(4B) If the Premier has delegated the power to approve an interim authorisation under section 21IB, the Minister to whom the power is delegated may at any time revoke an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A) if the Minister is not satisfied of the matters in section 21D(1)(a) and (b) or 21E(1)(a) and (b) (as the case requires).

(4C) If the Premier or the Minister revokes an interim authorisation under subsection (4A) or (4B), the Premier or the Minister (as the case requires) must notify the Chief Commissioner in writing.

(4D) The revocation of an interim authorisation under subsection (4A) or (4B) takes effect when the Chief Commissioner receives the notification referred to in subsection (4C).

(5) 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.

(6) The cessation of an authorisation does not prevent a further authorisation being given.

S. 21I(4A) inserted by No. 32/2018 s. 49(2).

S. 21I(4B) inserted by No. 32/2018 s. 49(2).

S. 21I(4C) inserted by No. 32/2018 s. 49(2).

S. 21I(4D) inserted by No. 32/2018 s. 49(2).



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21IA Variation of interim authorisation

(1) The Premier, or if the Premier has delegated the power to approve an interim authorisation under section 21IB, the Minister to whom the power is delegated, may at any time vary an interim authorisation given by the Chief Commissioner in accordance with section 21D(1A) or 21E(1A).

(2) If the Premier or a Minister varies an interim authorisation under subsection (1), the Premier or Minister (as the case requires) must notify the Chief Commissioner in writing.

(3) The variation of an interim authorisation under subsection (1) takes effect when the Chief Commissioner receives the notification referred to in subsection (2).

(4) The variation of an interim authorisation does not affect anything lawfully done in reliance on the interim authorisation before it was varied.

21IB Premier may delegate power to approve interim authorisation

(1) The Premier may by instrument delegate to a Minister the power to approve an interim authorisation given by the Chief Commissioner under section 21D or 21E.

(2) The Premier must give the Chief Commissioner a copy of the delegation.

21J Interim authorisations not open to challenge

(1) An interim authorisation or purported interim authorisation given by the Chief Commissioner (and any decision or purported decision of the Premier or the Chief Commissioner with respect to such an interim authorisation or purported

S. 21IA inserted by No. 32/2018 s. 50.

S. 21IB inserted by No. 32/2018 s. 50.


S. 21J(1) amended by No. 69/2009 s. 54(Sch. Pt 2 item 52).



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interim authorisation) is not liable to be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal on any account or before any person acting judicially within the meaning of the Evidence (Miscellaneous Provisions) Act 1958.

(2) Without limiting subsection (1), no proceedings—

(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or an injunction; or

(b) seeking any order under the Administrative Law Act 1978 (whether on the ground of absence of jurisdiction or any other ground)—

may be brought against the Premier or the Chief Commissioner in respect of an interim authorisation or purported interim authorisation given by the Chief Commissioner or any decision or purported decision of the Premier or the Chief Commissioner with respect to such an interim authorisation or purported interim authorisation.

21K Exercise of special powers by police officers and protective services officers

(1) The special powers conferred by this Part may be exercised by any police officer or protective services officer or, subject to subsection (3), by any other person assisting the police officer or protective services officer in that exercise and

S. 21K(Heading) amended by Nos 37/2014 s. 10(Sch. item 167.42), 32/2018 s. 51(1).


S. 21K(1) amended by Nos 37/2014 s. 10(Sch. item 167.43(a)), 32/2018 s. 51(2).



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acting under the direction and control of the police officer or protective services officer.

(2) A police officer or protective services officer may exercise those powers whether or not he or she has been provided with a copy of the authorisation.

(3) A person assisting either a police officer or a protective services officer is not authorised to conduct a strip search of a person.

21L Power to give directions to public entities

(1) The Chief Commissioner may, for the purposes of facilitating the exercise of the special powers conferred by this Part, give a public entity (within the meaning of the Public Administration Act 2004) directions with respect to the exercise of the powers or functions of the agency.

(2) The public entity is authorised and required to comply with the direction.

* * * * *

S. 21K(2) amended by Nos 37/2014 s. 10(Sch. item 167.43(b)), 32/2018 s. 51(3).

S. 21K(3) amended by Nos 37/2014 s. 10(Sch. item 167.43(c)), 32/2018 s. 51(4).


S. 21M inserted by No. 5/2006 s. 5, amended by No. 70/2015 s. 13, repealed by No. 32/2018 s. 77.



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Division 3—Powers21N Purposes for which special powers may be exercised

The special powers under this Division may be exercised for the purposes of an authorisation given under this Part.

Note

Only the special powers specified in an authorisation under section 21B or 21F may be exercised for the purposes of that authorisation.

21O Power to obtain disclosure of identity

(1) A police officer or protective services officer may request a person whose identity is unknown to the police officer or protective services officer to disclose his or her identity if—

(a) the police officer or protective services officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in the company of the target of the authorisation); or

(b) the person is in or on a vehicle that the police officer or protective services officer suspects on reasonable grounds is the target of an authorisation; or

(c) the person is in an area that is the target of an authorisation.



S. 21O(1) amended by Nos 37/2014 s. 10(Sch. item 167.44(a)), 32/2018 s. 52.

S. 21O(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.44(a)(ii)), 32/2018 s. 52.

S. 21O(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.44(a)(ii)), 32/2018 s. 52.



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(2) A person who is so requested to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request.

Penalty:50 penalty units or 12 months imprisonment, or both.

(3) A person must not, without reasonable excuse, in response to any such request—

(a) give a name that is false in a material particular; or

(b) give an address other than the person's full and correct address.

Penalty:50 penalty units or 12 months imprisonment, or both.

(4) A police officer or protective services officer may request a person who is requested under this section to disclose his or her identity to provide proof of his or her identity.

(5) A police officer or protective services officer may detain a person for so long as is reasonably necessary for the purposes of this section.

21P Power to search persons

(1) A police officer or protective services officer may, without a warrant, stop and search a person, and anything in the possession of or under the control of the person, if—

S. 21O(4) amended by Nos 37/2014 s. 10(Sch. item 167.44(b)), 32/2018 s. 52.

S. 21O(5) amended by Nos 37/2014 s. 10(Sch. item 167.44(b)), 32/2018 s. 52.


S. 21P(1) amended by Nos 37/2014 s. 10(Sch. item 167.45(a)(i)), 32/2018 s. 53.



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(a) the police officer or protective services officer suspects on reasonable grounds that the person is the target of an authorisation (or the person is found in the company of the target of the authorisation); or

(b) the person is in or on a vehicle that the police officer or protective services officer suspects on reasonable grounds is the target of an authorisation; or

(c) the person is in an area that is the target of an authorisation.

(2) In conducting a search of anything in the possession of, or under the control of, a person, a police officer or protective services officer may—

(a) request the person—

(i) to produce and empty of its contents any bag, basket or other receptacle; or

(ii) to turn out his or her pockets; or

(b) search through any bag, basket or other receptacle; or

(c) search through and move the contents of any bag, basket or other receptacle; or

(d) search through and move the contents of the person's pockets turned out in accordance with paragraph (a)(ii).

(3) Schedule 1 applies to the search of a person conducted under this section.Note

Schedule 1 provides for the carrying out of ordinary searches, frisk searches and strip searches. A strip search may not be carried out unless the person is suspected of being the target of an authorisation.

S. 21P(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.45(a)(ii)), 32/2018 s. 53.S. 21P(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.45(a)(ii)), 32/2018 s. 53.

S. 21P(2) amended by Nos 37/2014 s. 10(Sch. item 167.45(b)), 32/2018 s. 53.



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(4) A police officer or protective services officer may detain a person for so long as is reasonably necessary to conduct a search under this section.

(5) A police officer or protective services officer may direct a person or group of people not to enter or to leave or not to leave an area that is the target of an authorisation.

21Q Power to search vehicles

(1) A police officer or protective services officer may, without a warrant, stop and search a vehicle, and anything in or on the vehicle, if—

(a) the police officer or protective services officer suspects on reasonable grounds that the vehicle is the target of an authorisation; or

(b) the police officer or protective services officer suspects on reasonable grounds that a person in or on the vehicle is the target of an authorisation; or

(c) the vehicle is in an area that is the target of an authorisation.

(2) A police officer or protective services officer may detain a vehicle for so long as is reasonably



S. 21Q inserted by No. 5/2006 s. 5.

S. 21Q(1) amended by Nos 37/2014 s. 10(Sch. item 167.46(a)(i)), 32/2018 s. 54.

S. 21Q(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.46(a)(ii)), 32/2018 s. 54.

S. 21Q(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.46(a)(ii)), 32/2018 s. 54.

S. 21Q(2) amended by Nos 37/2014 s. 10(Sch. item 167.46(b)), 32/2018 s. 54.



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necessary to conduct a search under this section.

(3) A police officer or protective services officer may direct the person driving or in charge of a vehicle searched under this section to remove the vehicle from, or keep the vehicle in, an area that is the target of an authorisation.

21R Power to move vehicles

(1) A police officer or protective services officer may move or cause to be moved a vehicle which is parked or left standing in an area that is the target of an authorisation if, in the opinion of the police officer or protective services officer, the vehicle is—

(a) a danger to other vehicles or persons in that area; or

(b) causing or likely to cause traffic congestion in that area; or

(c) hindering the exercise of special powers under this Division in that area.

(2) A police officer or protective services officer acting in accordance with this section may—

(a) enter a vehicle using, if necessary, reasonable force, for the purpose of conveniently or expeditiously moving it; and

(b) move the vehicle, or cause it to be moved, to the nearest convenient place.

(3) The Chief Commissioner may recover from the owner of a vehicle moved under this section any reasonable costs incurred in moving it.

S. 21Q(3) amended by Nos 37/2014 s. 10(Sch. item 167.46(b)), 32/2018 s. 54.


S. 21R(1) amended by Nos 37/2014 s. 10(Sch. item 167.47(a)), 32/2018 s. 55(1).

S. 21R(2) amended by Nos 37/2014 s. 10(Sch. item 167.47(b)), 32/2018 s. 55(2).



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(4) In this section, owner has the same meaning as it has in Part 7 of the Road Safety Act 1986.

21S Power to enter and search premises

(1) A police officer or protective services officer may, without a warrant, enter and search any premises if—

(a) the police officer or protective services officer suspects on reasonable grounds that a person who is the target of an authorisation may be on the premises; or

(b) the police officer or protective services 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) The police officer or protective services officer—

(a) must do as little damage as is reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does as little damage as is reasonably possible.

(3) A police officer or protective services officer may direct a person or group of people to leave, or not

S. 21S inserted by No. 5/2006 s. 5.

S. 21S(1) amended by Nos 37/2014 s. 10(Sch. item 167.48(a)(i)), 32/2018 s. 56(1).

S. 21S(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.48(a)(ii)), 32/2018 s. 56(1).

S. 21S(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.48(a)(ii)), 32/2018 s. 56(1).

S. 21S(2) amended by No. 37/2014 s. 10(Sch. item 167.48(b)), substituted by No. 32/2018 s. 56(2).

S. 21S(3) amended by Nos 37/2014 s. 10(Sch. item 167.48(b)), 32/2018 s. 56(1).



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to leave, any premises entered and searched under this Division.

21SA Powers in respect of premises within area that is the target of an authorisation

(1) This section applies if premises are within an area that is the target of an authorisation.

(2) A police officer or protective services officer may do any of the following if the police officer or protective services officer considers on reasonable grounds that it is necessary for the purposes of the authorisation—

(a) enter the premises;

(b) direct a person to leave, or not to leave, the premises or a part of the premises;

(c) exclude a person from the premises or a part of the premises;

(d) remove or cause to be removed from the premises, or a part of the premises, a person who—

(i) does not comply with a direction to leave under paragraph (b); or

(ii) has been excluded from the premises, or a part of the premises, under paragraph (c);

(e) disconnect or shut off electricity, gas, water or other services at the premises;

(f) direct a person at the premises to disconnect or shut off electricity, gas, water or other services at the premises.


S. 21SA inserted by No. 32/2018 s. 57.



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(a) must do as little damage as reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does not do any more damage than is reasonably necessary.

(4) If only part of a building or vehicle is within the area that is the target of the authorisation, the powers set out in subsection (2) may be exercised in respect of any part of that building or vehicle.

21SB Powers in respect of things within area that is the target of an authorisation


(a) a thing is within an area that is the target of an authorisation; or

(b) a thing is in a building or vehicle any part of which is within an area that is the target of an authorisation.

(2) A police officer or protective services officer may do any of the following if the police officer or protective services officer considers on reasonable grounds that it is necessary for the purposes of the authorisation—

(a) direct an owner of the thing, a person apparently in control of the thing or, if the thing is located at a premises, any other person at the premises—

(i) to place the thing in the control of a police officer or protective services officer; or

(ii) to make use of the thing as specified by a police officer or protective services officer;

S. 21SB inserted by No. 32/2018 s. 57.



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(b) without a warrant take possession of the thing;

(c) make use of the thing.


(a) must do as little damage as reasonably possible; and

(b) must ensure that a person assisting the police officer or protective services officer does as little damage as is reasonably possible.

21SC Compensation for loss or damage

(1) A person may apply to the Minister for compensation for the following kinds of loss or damage resulting from the exercise of a power under section 21SA(2) or 21SB(2)—

(a) economic loss suffered by the person;

(b) damage to the person's property (whether real or personal).

(2) The Minister must pay compensation to the person if the Minister is satisfied that—

(a) the person has suffered loss or damage of a kind referred to in subsection (1); and

(b) that loss or damage is a result of the exercise of a power under section 21SA(2) or 21SB(2).

(3) A person who applies for compensation under subsection (1) may apply to VCAT for review of a decision made on that application by the Minister under subsection (2).

S. 21SC inserted by No. 32/2018 s. 57.



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21T Cordon around target area

(1) A police officer or protective services officer may, for the purposes of stopping and searching under this Division persons, vehicles or premises in a target area, place a cordon around the target area or any part of it.

(2) A cordon may include any form of physical barrier, including a roadblock on any road in or in the vicinity of the target area.

(3) A police officer or protective services officer may direct a person or group of people not to enter or to leave or not to leave an area around which a cordon is placed.

21U Power to seize and detain things

(1) A police officer or protective services officer may, in connection with a search under this Division, seize and detain—

(a) all or part of a thing (including a vehicle) that the police officer or protective services officer suspects on reasonable grounds may be used, or may have been used, to commit a terrorist act; or

(b) all or part of a thing (including a vehicle) that the police officer or protective services officer suspects on reasonable grounds may provide evidence of the commission of a

S. 21T inserted by No. 5/2006 s. 5.

S. 21T(1) amended by Nos 37/2014 s. 10(Sch. item 167.49), 32/2018 s. 58.

S. 21T(3) amended by Nos 37/2014 s. 10(Sch. item 167.49), 32/2018 s. 58.

S. 21U inserted by No. 5/2006 s. 5.

S. 21U(1) amended by Nos 37/2014 s. 10(Sch. item 167.50(a)(i)), 32/2018 s. 59.

S. 21U(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.50(a)(ii)), 32/2018 s. 59.

S. 21U(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.50(a)(ii)), 32/2018 s. 59.



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serious indictable offence (whether or not related to a terrorist act).

(2) A power conferred by this section to seize and 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 at the place where it is found.

(3) A police officer or protective services officer who has seized and detained a thing under this section must take reasonable steps to return the thing to the person from whom it was seized if—

(a) that person may lawfully possess the thing; and

(b) the thing is no longer required for investigative or evidentiary purposes in relation to an offence.

(4) A thing seized or detained under this section that is—

(a) no longer required for investigative or evidentiary purposes in relation to an offence; and

(b) not required under subsection (3) to be returned to the person from whom it was seized—

is forfeited to the Crown and may be disposed of in any manner that the Chief Commissioner thinks fit.

21V Use of force generally

It is lawful for a police officer or protective services officer exercising a power under this Division in relation to a person or a thing, and anyone assisting the police officer or protective

S. 21U(3) amended by Nos 37/2014 s. 10(Sch. item 167.50(b)), 32/2018 s. 59.

S. 21V(Heading) amended by Nos 37/2014 s. 10(Sch. item 167.51), 32/2018 s. 60(1).

S. 21V inserted by No. 5/2006 s. 5, amended by Nos 37/2014 s. 10(Sch. item 167.52), 32/2018 s. 60(2).



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services officer, to use such force as is reasonably necessary to exercise the power.

21W Offence to obstruct or hinder search or other powers

A person must not, without reasonable excuse—

(a) obstruct or hinder a police officer or protective services officer in the exercise of a power under this Division to stop and search a person or vehicle, to enter and search premises or to seize and detain a thing; or

(b) fail to comply with a direction given by a police officer or protective services officer in the exercise of a power under this Division to give that direction.

Penalty:100 penalty units or imprisonment for 2 years, or both.

21X Supplying police officer's or protective services officer's details and other information

(1) A police officer or protective services officer must, before or at the time of exercising a power

S. 21W inserted by No. 5/2006 s. 5.

S. 21W(a) amended by Nos 37/2014 s. 10(Sch. item 167.53), 32/2018 s. 61.

S. 21W(b) amended by Nos 37/2014 s. 10(Sch. item 167.53), 32/2018 s. 61.

S. 21X (Heading) amended by Nos 37/2014 s. 10(Sch. item 167.54), 32/2018 s. 62(1).

S. 21X inserted by No. 5/2006 s. 5.

S. 21X(1) amended by Nos 37/2014 s. 10(Sch. item 167.55(a)), 32/2018 s. 62(2).



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under this Division, or as soon as is reasonably practicable after exercising the power, provide the person subject to the exercise of the power with the following if requested to do so—

(a) evidence that he or she is a police officer or protective services officer (unless the police officer or protective services officer is in uniform);

(b) the name of the police officer or protective services officer and his or her place of duty;

(c) the reason for the exercise of the power.

(2) The Chief Commissioner is to arrange for a written statement to be provided, on request made within 12 months after the search, to a person who was searched, or whose vehicle or premises were searched, under this Part stating that the search was conducted in pursuance of this Part.

S. 21X(1)(a) amended by Nos 37/2014 s. 10(Sch. item 167.55(a)), 21/2015 s. 3(Sch. 1 item 54.2), 32/2018 s. 62(2).

S. 21X(1)(b) amended by Nos 37/2014 s. 10(Sch. item 167.55(b)), 32/2018 s. 62(2).



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Part 4—Mandatory reporting aboutprescribed chemicals and other substances

22 Reporting about prescribed chemical or other substance

(1) An occupier of any premises, on becoming aware of any theft, attempted theft or unexplained loss from those premises of a quantity of a prescribed chemical or other prescribed substance—

(a) must inform a police officer of that fact without delay; and

(b) if so requested by a police officer, must supply a written report to the police officer setting out details of the theft, attempted theft or loss;

(c) in the case of a chemical or substance that is prescribed to be high consequence dangerous goods—

(i) must also inform the Victorian WorkCover Authority of that fact without delay; and

Pt 4 (Heading) amended by No. 67/2004 s. 17(1)(b).

S. 22 (Heading) amended by No. 67/2004 s. 17(1)(c).S. 22 amended by No. 67/2004 s. 17(1)(d)(i)(2)(ILA s. 39B(1)).

S. 22(1) amended by No. 30/2006 s. 10(1).

S. 22(1)(a) amended by No. 37/2014 s. 10(Sch. item 167.56(a)).

S. 22(1)(b) amended by Nos 67/2004 s. 17(1)(d)(i)(ii), 37/2014 s. 10(Sch. item 167.56(b)).

S. 22(1)(c) inserted by No. 67/2004 s. 17(1)(e).



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(ii) if so requested by the Victorian WorkCover Authority, must also supply a written report to the Authority setting out details of the theft, attempted theft or loss.

Penalty:In the case of a natural person, level 10 fine (10 penalty units maximum);


(2) In this section unexplained loss, in relation to a prescribed chemical or other prescribed substance, means any loss the cause of which cannot be explained by product density changes, spillage, calibration variances or the effects of humidity or other like things.

* * * * *

S. 22(2) inserted by No. 67/2004 s. 17(2), substituted by No. 30/2006 s. 10(2).

S. 22(3) inserted by No. 67/2004 s. 17(2), repealed by No. 30/2006 s. 10(2).



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Part 5—Protection of counter-terrorism intelligence

Division 1—General protection in legal proceedings

23 General protection of counter-terrorism intelligence in legal proceedings

(1) If, in any legal proceeding, an issue arises relating to the disclosure of any information, document or other thing and (but for this section) a person would be entitled to require another person to disclose that information, document or thing, the court may excuse that person from the requirement to disclose if satisfied that—

(a) the information, document or thing is counter-terrorism intelligence; and

(b) the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosure.

(2) Without limiting the matters the court may consider for the purposes of subsection (1), the court must consider the following—

(a) the importance of the information, document or thing in the legal proceeding;

(b) if the legal proceeding is a criminal proceeding, whether the party seeking disclosure is the accused or the prosecutor;

Pt 5 (Heading and ss 23, 24) amended by Nos 68/2009 s. 97(Sch. item 119), 69/2009 s. 54(Sch. Pt 2 item 52), substituted as Pt 5 (Headings and ss 23–37A) by No. 32/2018 s. 71.

S. 23 substituted by No. 32/2018 s. 71.



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(c) if the legal proceeding is a criminal appeal proceeding, including an application for leave to appeal, whether the party seeking disclosure was the accused or the prosecutor in the judgment or order from which the appeal is brought;

(d) the nature of the offence, cause of action or defence to which the information, document or thing relates, and the nature of the subject matter of the proceeding;

(e) the likely effect of disclosure of the information, document or thing and the means available to limit its publication;

(f) whether the substance of the information, document or thing has already been disclosed;

(g) if the proceeding is a criminal proceeding and the party seeking disclosure is the accused, whether the order is to be made subject to the condition that the prosecution be stayed.

(3) In deciding whether to excuse a person under this section from a requirement to disclose, the court may inform itself in any way it thinks fit.


court has the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958;

disclosure 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



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(d) provision of particulars;

legal proceeding has the same meaning as in the Evidence (Miscellaneous Provisions) Act 1958.

Note

Under the Evidence (Miscellaneous Provisions) Act 1958, legal proceeding includes a civil or criminal proceeding before a court, an inquest held by a coroner and a Royal Commission. Also under that Act, court includes a person acting judicially.

24 Court may inspect documents

If a question arises under section 23 in relation to a document, the court may order the production of the document and may inspect it for the purpose of determining the question.

Division 2—Protection in applications under this Act

25 Application for counter-terrorism intelligence protection order

(1) If an authorised police officer has made a substantive application on or after the commencement day, an authorised police officer may apply to the Supreme Court for an order (a counter-terrorism intelligence protection order) in relation to any information, document or other thing related to that substantive application that the authorised police officer making the protection application believes on reasonable grounds is counter-terrorism intelligence.

(2) A protection application must—

(a) be in writing; and

(b) state the grounds on which the order is sought; and

S. 24 substituted by No. 32/2018 s. 71.

New s. 25 inserted by No. 32/2018 s. 71.



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(c) be accompanied by an affidavit that addresses the grounds on which the order is sought.


commencement day means the day on which section 71 of the Justice Legislation Amendment (Terrorism) Act 2018 comes into operation.

26 Public Interest Monitor to be notified of protection application

The applicant for a counter-terrorism intelligence protection order must notify a Public Interest Monitor of the protection application in accordance with the regulations under the Public Interest Monitor Act 2011.

27 Determining protection application

(1) After hearing a protection application, the Supreme Court may make a counter-terrorism intelligence protection order in respect of all or any part of the information, document or other thing to which the application relates if the Court is satisfied that—

(a) the information, document, thing or part is counter-terrorism intelligence; and

(b) the reasons for maintaining the confidentiality of the counter-terrorism intelligence outweigh any prejudice or unfairness to the subject of the substantive application.

(2) If the Supreme Court makes a counter-terrorism intelligence protection order, the applicant in the substantive application must serve on the subject of the substantive application or a representative of the subject—

(a) a copy of the order; and





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(b) a summary of the protected counter-terrorism intelligence to the extent possible without compromising the reasons for which the intelligence is protected.

(3) If the Supreme Court declines to make a counter-terrorism intelligence protection order in respect of all or any part of the information, document or other thing—

(a) the applicant in the substantive application is not obliged to adduce that information, document, other thing or part in evidence in the proceeding on the substantive application; and

(b) the applicant in the substantive application may withdraw the substantive application.

(4) The applicant in the substantive application may also withdraw the substantive application if the Supreme Court at any time during the proceeding on the substantive application makes an order for discovery of all or any part of the information, document or other thing that was the subject of the protection application, whether or not a counter-terrorism intelligence protection order was made.

28 Court may dispense with hearing by consent

Despite section 27(1), if the parties to a protection application consent, the Supreme Court may determine the application without a hearing, on the basis of the parties' written submissions.

29 Admissibility of protected counter-terrorism intelligence

To avoid doubt, the making of a counter-terrorism intelligence protection order is not determinative of the admissibility of the protected counter-





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terrorism intelligence in evidence in the proceeding on the substantive application.

Division 3—Procedural requirements in protection applications and substantive applications involving

protected counter-terrorism intelligence30 Application of Division

(1) This Division applies to—

(a) a proceeding on a protection application; and

(b) any part of a proceeding on a substantive application in which protected counter-terrorism intelligence is sought to be admitted, or is adduced, in evidence.

(2) In this Division, the part of proceedings referred to in subsection (1)(b) is called the relevant part.

31 Applications to be heard in closed court unless otherwise ordered

(1) Unless the Supreme Court orders otherwise, a protection application or the relevant part of a proceeding on a substantive application must be heard in closed court.

(2) The Supreme Court may make an order under subsection (1) if it considers it appropriate to do so.

(3) If the protection application or relevant part is heard in closed court, the only persons who may be present at the hearing are—

(a) the authorised police officer who made the protected application or substantive application (as the case requires); and

(b) any lawyers representing the authorised police officer referred to in paragraph (a); and





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(c) a special counsel appointed under section 32; and

(d) any witnesses who may be called to give evidence; and

(e) the presiding judge and any court staff necessary for the hearing; and

(f) the Public Interest Monitor.

(4) If the protection application or relevant part is heard in closed court, the Supreme Court—

(a) must cause a notice to be posted on a door of the court containing the matters set out in subsection (5) and ensure that the notice remains so posted at all times the hearing is held in closed court; and

(b) may cause a copy of the notice to be posted in another conspicuous place where notices are usually posted at the court.

(5) The notice must state—

(a) that the hearing is being held in closed court; and

(b) who may be present at the hearing; and

(c) that it is an offence for anyone else to enter or attempt to enter the place where the hearing is being held.

Note

See section 35 for the offence referred to in paragraph (c).

(6) If a notice is posted under subsection (4)(a) in relation to a hearing, the Supreme Court must confirm on the transcript of the hearing—

(a) that a notice was posted and remained so posted at all times the hearing was held in closed court; and

(b) the content of the notice.



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(7) The authorised police officer who made the protection application or substantive application may withdraw the application if the Supreme Court makes an order under subsection (1).

32 Appointment of special counsel

(1) The Supreme Court may appoint a suitably qualified person as special counsel to represent the interests of the subject of the substantive application at the hearing of a protection application and the relevant part of the proceeding on the substantive application.

(2) A person is suitably qualified for appointment as special counsel if—

(a) the person is a barrister within the meaning of the Legal Profession Uniform Law (Victoria); and

(b) in the opinion of the Supreme Court, the person has the appropriate skills and ability to represent the interests of the subject of the substantive application; and

(c) the person has the security clearance determined by the Supreme Court to be appropriate in the circumstances.

(3) The Supreme Court may appoint another suitably qualified person as special counsel to represent the interests of the subject of the substantive application at the hearing of the relevant part of the proceeding on the substantive application if the person appointed under subsection (1) is unable to act in relation to that hearing or for any other reason the Supreme Court considers it appropriate to do so.




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33 Role of special counsel

(1) If a special counsel is appointed under section 32(1)—

(a) before the hearing of the protection application the applicant must serve on the special counsel—

(i) a summary of the grounds on which the protection application and the substantive application are made and of the evidence on which the applicant seeks to rely to the extent possible without revealing any relevant information; and

(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject, under paragraph (b)—a copy of the protection application, any affidavit required to be given to the Supreme Court in support of the protection application and the relevant information; and

(b) at any time before the special counsel obtains any relevant information, the special counsel may communicate with the subject of the substantive application, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the protection application or the substantive application; and

(c) at any time after the special counsel obtains any relevant information, the special counsel must not communicate




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with the subject of the substantive application or a representative of the subject.

(2) If a special counsel is appointed under section 32(3)—

(a) before the hearing of the relevant part of the proceeding on the substantive application the applicant must serve on the special counsel—

(i) a summary of the grounds on which the protection application and the substantive application were made and of the evidence on which the applicant seeks to rely in the substantive application to the extent possible without revealing any protected counter-terrorism intelligence; and

(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application, or a representative of the subject, under paragraph (b)—a copy of the protected counter-terrorism intelligence; and

(b) at any time before the special counsel obtains any protected counter-terrorism intelligence, the special counsel may communicate with the subject of the substantive application, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the substantive application; and

(c) at any time after the special counsel obtains any protected counter-terrorism intelligence, the special counsel must not communicate with the subject of the substantive application or a representative of the subject.



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(3) A special counsel appointed under section 32—

(a) must not perform the role of special counsel in a manner that compromises the confidentiality of all or any part of the relevant information or the protected counter-terrorism intelligence (as the case requires); and

(b) does not incur any liability to the subject of the substantive application in respect of anything done or omitted to be done by the special counsel in performing the role of special counsel.

(4) Legal professional privilege or client legal privilege applies to a communication between a special counsel appointed under section 32 and the subject of the substantive application or a representative of the subject in the same way as it would apply to a communication between a lawyer acting for the subject and the subject.

(5) The Supreme Court may direct that a special counsel appointed under section 32 may be present as an observer at any hearing of the substantive application other than the hearing of the relevant part.Note

Special counsel is entitled to be present at the hearing of the relevant part—see section 31(3)(c).

(6) The applicant for a counter-terrorism intelligence protection order must fully disclose to a special counsel appointed under section 32(1) all matters of which the applicant is aware that are adverse to the protection application.



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(7) The applicant for a counter-terrorism intelligence protection order must not knowingly or recklessly fail to comply with subsection (6).



relevant information, in relation to a protection application, means any information, or the original or a copy of any document or other thing, that is the subject of the application.

34 Adjournment to allow special counsel to communicate with subject

(1) The Supreme Court may adjourn a proceeding on a protection application or the relevant part of a proceeding on a substantive application to allow a special counsel appointed under section 32 to communicate with the subject of the substantive application, or a representative of the subject, in accordance with section 33.

(2) Subsection (1) does not limit any other power of the Supreme Court to adjourn a proceeding.

Division 4—Offences35 Offence to enter closed court

(1) A person not referred to in section 31(3) who knows, or is reckless as to the fact that, a hearing is being held in closed court under section 31 must not enter the place where the hearing is being held.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine





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(600 penalty units maximum) or both.

(2) If—

(a) a person is charged with an offence against subsection (1); and

(b) the prosecution proves that a notice was posted in accordance with section 31(4)(a) at the time of the alleged offence—

the person is presumed to have known, or to have been reckless as to the fact, that the hearing was being held in closed court unless the person presents or points to evidence that the person did not know and was not reckless as to that fact.

36 Offence to publish report of hearing

(1) Unless the Supreme Court orders otherwise, a person must not publish a report of a hearing of a protection application or the relevant part of a proceeding on a substantive application or any information derived from such a hearing.

Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both;

In the case of a body corporate, a level 2 fine (3000 penalty units maximum).

(2) The Supreme Court may make an order under subsection (1) if the Court considers it appropriate to do so.

(3) In this section, relevant part has the same meaning as in section 30(2).




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37 Disclosure, receipt or solicitation of protected counter-terrorism intelligence

(1) Subject to subsection (2), a person must not disclose, receive or solicit any information, document or other thing if the person knows or is reckless as to the fact that the information, document or other thing is protected counter-terrorism intelligence.



(2) Subsection (1) does not apply to—

(a) disclosure, receipt or solicitation of protected counter-terrorism intelligence that was in the public domain at the time of the disclosure, receipt or solicitation; or

(b) disclosure, receipt or solicitation of protected counter-terrorism intelligence by a law enforcement officer in the performance of duty; or

(c) disclosure of protected counter-terrorism intelligence by a person to a lawyer, or the receipt or solicitation of protected counter-terrorism intelligence by a lawyer from a person, in the course of the person consulting the lawyer for legal advice; or

(d) disclosure, receipt or solicitation of protected counter-terrorism intelligence that is published in accordance with an order of the Supreme Court under section 36(1); or




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(e) disclosure, receipt or solicitation of protected counter-terrorism intelligence that is required, authorised or permitted by or under this Act.

(3) A person does not commit an offence against subsection (1) if—

(a) the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in subsection (2) existed at the time of the alleged commission of the offence; and

(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.

37A Disclosure, receipt or solicitation of other confidential material

(1) This section applies to any information, document or other thing that was the subject of a protection application that was not granted by the Supreme Court.

(2) Subject to subsection (3), a person must not disclose, receive or solicit any information, document or other thing to which this section applies if the person knows or is reckless as to the fact that the information, document or other thing is information or a document or other thing to which this section applies.






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(3) Subsection (2) does not apply to—

(a) disclosure, receipt or solicitation of any information, document or other thing that was in the public domain at the time of the disclosure, receipt or solicitation; or

(b) disclosure, receipt or solicitation of any information, document or other thing that has been adduced in evidence by or on behalf of the applicant in relation to a substantive application; or

(c) disclosure, receipt or solicitation of any information, document or other thing by a law enforcement officer in the performance of duty; or

(d) disclosure of any information, document or other thing by a person to a lawyer, or the receipt or solicitation of any information, document or other thing by a lawyer from a person, in the course of the person consulting the lawyer for legal advice; or

(e) disclosure, receipt or solicitation of any information, document or other thing that is published in accordance with an order of the Supreme Court under section 36(1); or

(f) disclosure, receipt or solicitation of any information, document or other thing that is required, authorised or permitted by or under this Act.

(4) A person does not commit an offence against subsection (2) if—

(a) the person presents or points to evidence that suggests a reasonable possibility that a circumstance referred to in subsection (3) existed at the time of the alleged commission of the offence; and



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(b) the contrary is not proved (beyond reasonable doubt) by the prosecution.



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Part 6—Role of Victorian Inspectorate

37B Regular inspections of records of Victoria Police

(1) The Victorian Inspectorate must inspect the records of Victoria Police no later than 6 months after the commencement of this section, and after that initial inspection at intervals of no longer than 6 months, in order to ascertain the extent to which police officers and protective services officers have complied with the following since the last inspection under this section of the records of Victoria Police—

(a) Part 2 (Covert search warrants);

(b) Part 2AA (Preventative police detention);

(c) Part 3A (Special police powers).

(2) The Victorian Inspectorate, at any time, may inspect records of Victoria Police in order to ascertain the extent to which police officers and protective services officers have complied, during any period, with Part 2, 2AA or 3A.

Pt 6 (Heading and ss 25–37) amended by Nos 20/2005 s. 51, 30/2006 ss 11–14, 69/2007 ss 75, 76, 37/2014 s. 10(Sch. item 167.57), repealed by No. 76/2014 s. 8(1), new Pt 6 (Heading and ss 37B–37D) inserted by No. 32/2018 s. 78.




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(3) The Victorian Inspectorate must notify, in writing, the Chief Commissioner of the date or dates on which an inspection under subsection (1) will be conducted at least 7 days before the date or dates of inspection.

(4) After notifying the Chief Commissioner in accordance with subsection (3), the Victorian Inspectorate may enter any premises occupied by Victoria Police on the date or dates specified in the notice under that subsection for the purposes of an inspection under subsection (1).

(5) In addition, after notifying the Chief Commissioner, the Victorian Inspectorate may enter at any reasonable time premises occupied by Victoria Police for the purposes of an inspection under subsection (2).

(6) On entry into premises occupied by Victoria Police under subsection (4) or (5), the Victorian Inspectorate—

(a) subject to section 37C(2), is entitled to have full and free access to all records of Victoria Police at, or accessible from, the premises that are relevant to the inspection; and

(b) subject to section 37C(3), may require a member of Victoria Police personnel at the premises to give the Victorian Inspectorate any information that the Victorian Inspectorate considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.

(7) The Chief Commissioner must ensure that members of Victoria Police personnel give the Victorian Inspectorate any assistance the Victorian Inspectorate reasonably requires to



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enable the Victorian Inspectorate to perform a function, or exercise a power, under subsection (1), (2), (4), (5) or (6).


record includes part of a record.

37C The Inspector and authorised Victorian Inspectorate officers may perform or exercise inspection functions and powers

(1) Subject to subsections (2) and (3), the Inspector or an authorised Victorian Inspectorate officer may, on behalf of the Victorian Inspectorate, perform a function, or exercise a power, of the Victorian Inspectorate under section 37B(1), (2), (4), (5) or (6).

(2) The Inspector or an authorised Victorian Inspectorate officer must not, on behalf of the Victorian Inspectorate, inspect, under section 37B, a record that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables the Inspector or authorised Victorian Inspectorate officer to inspect that record.

(3) A member of Victoria Police personnel is not required, under section 37B, to give the Inspector or an authorised Victorian Inspectorate officer information that is counter-terrorism intelligence unless the Inspector or authorised Victorian Inspectorate officer has been given a security clearance at an appropriate level which enables the Inspector or authorised Victorian Inspectorate officer to be given that information.




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(4) On the Victorian Inspectorate notifying the Chief Commissioner of the date or dates of inspection under section 37B(3), the Chief Commissioner, as soon as practicable after receiving that notification, must advise, in writing, the Victorian Inspectorate as to the appropriate level of security clearance required for the Inspector or an authorised Victorian Inspectorate officer to enable them to, under section 37B—

(a) inspect a record or class of records that is counter-terrorism intelligence; or

(b) receive information that is counter-terrorism intelligence.

(5) The Victorian Inspectorate may authorise in writing a Victorian Inspectorate Officer to perform a function, or exercise a power, under section 37B(1), (2), (4), (5) or (6) on its behalf.


authorised Victorian Inspectorate officer means a Victorian Inspectorate Officer authorised under subsection (5);

Inspector has the same meaning as in the Victorian Inspectorate Act 2011;

record includes part of a record;

Victorian Inspectorate Officer has the same meaning as in the Victorian Inspectorate Act 2011, but does not include the Inspector within the meaning of that Act.

37D Reports to Parliament on investigations by Victorian Inspectorate

(1) The Victorian Inspectorate must make a report to Parliament at intervals of 6 months on the results




287

of each inspection conducted during that period under section 37B.

(2) Before the Victorian Inspectorate makes a report to Parliament under subsection (1), the Victorian Inspectorate must—

(a) give the Chief Commissioner a copy of any report under subsection (1); and

(b) give the Chief Commissioner a reasonable opportunity to provide an opinion on the report in accordance with subsection (3).

(3) The Chief Commissioner must advise the Victorian Inspectorate of any information included in a copy of a report received under subsection (2) that, in the Chief Commissioner's opinion, should be excluded from the report before the report is laid before Parliament because the information could reasonably be expected to—

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise operational activities or methodologies of Victoria Police.

(4) The Victorian Inspectorate must exclude from a copy of the report to be laid before the Parliament under subsection (6) information on which the Victorian Inspectorate has received advice under subsection (3).

(5) The Victorian Inspectorate must—

(a) cause the report to be transmitted to each House of the Parliament as soon as practicable after 1 January and 1 July each year; and

(b) give a copy of the report to the Minister at the same time as it is transmitted to each House.



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(6) The clerk of each House of the Parliament must cause the report to be laid before the House on the day on which it is received or on the next sitting day of that House.



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Part 6A—Annual reporting

37E Definitions

In this Part—

covert search warrant means a warrant issued under Part 2;

covert search warrant information means the following information in respect of a financial year—

(a) the number of applications for a covert search warrant during that year;

(b) the number of covert search warrants issued during that year;

(c) the number of telephone applications under section 10 during that year;

(d) the number of applications under Part 2 that were refused during that year;

(e) the number of premises covertly entered during that year under a covert search warrant;

(f) the number of occasions on which items were seized from premises during that year under a covert search warrant;

(g) the number of occasions on which items were placed in premises during that year under a covert search warrant;

(h) the number of occasions on which electronic equipment was operated by

Pt 6A (Heading and ss 37E, 37F) inserted by No. 32/2018 s. 78.




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way of remote entry during that year under a covert search warrant;

detain and decontaminate information means the following information in respect of each financial year—

(a) the number of authorisations given under Part 3 during that year;

(b) the terms of each authorisation mentioned in paragraph (a) and the period during which it had effect;

(c) a summary of the grounds that were relied on for the giving of an authorisation mentioned in paragraph (a);

(d) a general description of the powers exercised under an authorisation mentioned in paragraph (a) and the manner in which they were exercised;

(e) the result of the exercise of the powers mentioned in paragraph (d);

police detention decision information means the following information in respect of a financial year—

(a) the number of police detention decisions made during that year;

(b) the period of detention of each person detained under Part 2AA;

(c) whether a person mentioned in paragraph (b) was during that year—

(i) released at the end of the maximum police detention period; or

(ii) taken into custody for the purposes of Subdivision (30A)



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of Division 1 of Part III of the Crimes Act 1958; or

(iii) arrested under Division 4 of Part IAA, or Part IC, of the Crimes Act 1914 of the Commonwealth; or

(iv) a protected suspect (within the meaning of Part IC of the Crimes Act 1914 of the Commonwealth); or

(v) detained under a preventative detention order before the end of the maximum police detention period;

(d) the number of persons in relation to whom a police detention decision was made who were charged with an offence against Part 5.3 of the Criminal Code of the Commonwealth during that year;

(e) particulars of—

(i) any complaints made or referred to the Ombudsman during that year under the Ombudsman Act 1973; and

(ii) any complaints made during that year to the IBAC under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or referred during the year to the IBAC under Part 9 of the Victoria Police Act 2013; and



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(iii) any investigations during that year by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011—

in relation to the detention of a person under a police detention decision;

preventative detention order information means the following information in respect of a financial year—

(a) the number of applications for preventative detention orders that year;

(b) the number of preventative detention orders made during that year;

(c) whether a person was detained under each of those orders and, if so, how long the person was detained;

(d) the number of prohibited contact order applications during that year;

(e) the number of prohibited contact orders made during that year;

(f) the number of persons in relation to whom a preventative detention order was made who were charged with an offence against Part 5.3 of the Criminal Code of the Commonwealth during that year;

(g) particulars of—

(i) any complaints made or referred to the Ombudsman during that year under the Ombudsman Act 1973; and



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(ii) any complaints made to the IBAC during that year under section 52 of the Independent Broad-based Anti-corruption Commission Act 2011 or referred during the year to the IBAC under Part 9 of the Victoria Police Act 2013; and

(iii) any investigations during that year by the IBAC under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011—

in relation to the detention of a person under a preventative detention order;

special police powers information means the following information in respect of a financial year—

(a) the number of authorisations given under Part 3A during that year;

(b) the terms of each authorisation mentioned in paragraph (a) and the period during which it had effect;

(c) whether an authorisation mentioned in paragraph (a) was given without the written approval of the Premier or, if the Premier had delegated the power to approve an interim authorisation, the Minister to whom the power was delegated, in accordance with section 21D(1A) or 21E(1A);

(d) a summary of the grounds that were relied on for the giving of an authorisation mentioned in paragraph (a);



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(e) a general description of the powers exercised under an authorisation mentioned in paragraph (a) and the manner in which they were exercised;

(f) a record of which of these powers mentioned in paragraph (e) were exercised by police officers;

(g) a record of which of these powers mentioned in paragraph (e) were exercised by protective services officers;

(h) the result of the exercise of these powers mentioned in paragraph (e).

37F Annual reports of Chief Commissioner

(1) The Chief Commissioner must submit a report to the Minister that includes the following information in respect of each financial year—

(a) covert search warrant information;

(b) detain and decontaminate information;

(c) police detention decision information;

(d) preventative detention order information;

(e) special police powers information;

(f) any other information that the Minister considers appropriate and specifies in writing to the Chief Commissioner.

(2) The report must be submitted to the Minister as soon as practicable but no later than 3 months after the end of each financial year.

(3) The Chief Commissioner must advise the Minister of any information included in the report that, in the Chief Commissioner's opinion, should be excluded from the report before the report is laid




295

before Parliament because the information could reasonably be expected to—

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise operational activities or methodologies of Victoria Police.

(4) The Minister must exclude from a copy of the report to be laid before the Parliament under subsection (5) information on which the Minister has received advice under subsection (3) if the Minister is satisfied of any of the grounds under that subsection in relation to that information.

(5) The Minister must cause a copy of the report to be laid before each House of the Parliament within 12 sitting days of that House after the Minister receives it.



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Part 7—General38 Review

(1) The Minister must cause a review of the operation of this Act to be undertaken and completed by 31 December 2020.

(2) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament by 31 December 2020.

39 Operation of Act

This Act does not limit the operation of any other law including the Emergency Management Act 1986 or the Emergency Management Act 2013, the Public Health and Wellbeing Act 2008, the Surveillance Devices Act 1999 and the Radiation Act 2005.

39A Supreme Court—limitation of jurisdiction

It is the intention of section 21J to alter or vary section 85 of the Constitution Act 1975.

40 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

S. 38(1) amended by Nos 5/2006 s. 9, 33/2011 s. 3, 68/2012 s. 9, 68/2013 s. 18, 70/2015 s. 14(1).

S. 38(2) amended by Nos 5/2006 s. 9, 33/2011 s. 3, 68/2012 s. 9, 68/2013 s. 18, 70/2015 s. 14(2).

S. 39 amended by Nos 30/2006 s. 15, 46/2008 s. 289, 73/2013 s. 104(d).




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(2) Regulations made under this Act may be made so as to apply, adopt or incorporate any matter contained in a document formulated or published by any person or body, whether—

(a) without modification or as modified by the regulations; or

(b) as formulated or published at the time the regulations are made or at any time before then; or

(c) as formulated or published from time to time.

(3) Regulations made under this Act may be made—

(a) so as to apply—

(i) at all times or at a specified time; or

(ii) throughout the whole of the State or in a specified part of the State;

(b) so as to require a matter affected by the regulations to be—

(i) in accordance with a specified standard or specified requirement; or

(ii) approved by or to the satisfaction of a prescribed person;

(c) so as to confer a discretionary authority on a prescribed person;

(d) so as to provide, in a specified case or class of case, for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to the extent specified.

S. 40(3) inserted by No. 30/2006 s. 16.



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41 Expiry

This Act expires on 1 December 2021.

S. 41 amended by Nos 5/2006 s. 11, 70/2015 s. 15.



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Part 8—Transitional provisions

42 Justice Legislation Amendment (Terrorism) Act 2018—authorised police officers

An appointment under section 13B(2) that is in effect immediately before the commencement of section 4(3) of the Justice Legislation Amendment (Terrorism) Act 2018 is taken to be an appointment under section 3(2) on that commencement.

Pt 8 (Heading and ss 42–45) repealed by No. 5/2006 s. 13, new Pt 8 (Heading and new s. 42) inserted by No. 32/2018 s. 40.




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Schedule 1—Conduct of personal searches under Part 3A

Section 21P(3)

1 Application of Schedule

This Schedule applies to any search of a person carried out, or authorised to be carried out, by a police officer or protective services officer under Part 3A, except as otherwise provided by this Act or the regulations.

2 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 anything 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 that thing;

ordinary search means a search of a person or of things in the possession or under the control of a person that may include—

Sch. 1 inserted by No. 5/2006 s. 6.

Sch. 1 cl. 1 amended by Nos 37/2014 s. 10(Sch. item 167.58(a)), 32/2018 s. 63(1).



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(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 items;

strip search means a search of a person or of things in the possession or under the control 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.

3 Frisk searches and ordinary searches

(1) A police officer or protective services 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.

(2) In conducting a frisk search, a police officer or protective services officer may, if the police officer or protective services 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.

4 Strip searches

A police officer or protective services officer who is authorised to search a person may only conduct a strip search of the person—

Sch. 1 cl. 3(1) amended by Nos 37/2014 s. 10(Sch. item 167.58(a)), 32/2018 s. 63(2).

Sch. 1 cl. 3(2) amended by Nos 37/2014 s. 10(Sch. item 167.58(b)), 32/2018 s. 63(3).

Sch. 1 cl. 4 amended by Nos 37/2014 s. 10(Sch. item 167.58(c)(i)), 32/2018 s. 63(4).



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(a) if the person is suspected of being the target of an authorisation; and

(b) if the police officer or protective services officer believes 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.

5 Preservation of privacy and dignity during search

(1) A police officer or protective services officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this clause.

(2) The police officer or protective services officer must inform the person to be searched of the following matters—

(a) whether the person will be required to remove clothing during the search;

(b) why it is necessary to remove the clothing.

(3) The police officer or protective services officer must ask for the person's co-operation.

(4) The police officer or protective services 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.

Sch. 1 cl. 4(b) amended by Nos 37/2014 s. 10(Sch. item 167.58(c)(ii)), 32/2018 s. 63(4).

Sch. 1 cl. 5(1) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(i)), 32/2018 s. 63(5).

Sch. 1 cl. 5(2) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(ii)), 32/2018 s. 63(5).

Sch. 1 cl. 5(3) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(ii), 32/2018 s. 63(5).




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(5) The police officer or protective services officer must conduct the least invasive kind of search practicable in the circumstances.

(6) The police officer or protective services officer must not search the genital area of the person searched, or in the case of a female or a transgender person who identifies as a female, the person's breasts unless the police officer or protective services officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.

(7) A search must be conducted by a police officer or protective services officer of the same sex as the person searched or by a person of the same sex under the direction of the police officer or protective services officer.

(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.

(9) A person must be allowed to dress as soon as a search is finished.

(10) If clothing is seized because of the search, the police officer or protective services officer must ensure the person searched is left with or given reasonably appropriate clothing.


Sch. 1 cl. 5(6) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(iii)), 32/2018 s. 63(6).

Sch. 1 cl. 5(7) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(iv)), 32/2018 s. 63(6).

Sch. 1 cl. 5(10) amended by Nos 37/2014 s. 10(Sch. item 167.58(d)(v)), 32/2018 s. 63(5).



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(11) In this clause—

questioning of a person means questioning the person or carrying out an investigation (in which the person participates);

transgender person means a person, whether or not the person is a recognised transgender person—

(a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex; or

(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—

and includes a reference to the person being thought of as a transgender person, whether or not the person is, or was, in fact a transgender person.

6 Rules for conduct of strip searches

(1) A police officer or protective services officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—

(a) the strip search must be conducted in a private area;

(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched;

Sch. 1 cl. 6(1) amended by Nos 37/2014 s. 10(Sch. item 167.58(e)), 32/2018 s. 63(7).



305

(c) except as provided by this clause, the strip search must not be 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, must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a police officer or protective services officer) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.

(4) Subclause (3) does not apply if a parent, guardian or other acceptable person is not then present and the seriousness and urgency of the circumstances require the strip search to be conducted without delay.

(5) A strip search must not involve a search of a person's body cavities or an examination of the body by touch.

(6) A strip search must not 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.

Sch. 1 cl. 6(3) amended by Nos 37/2014 s. 10(Sch. item 167.58(e)), 32/2018 s. 63(7).



306

(7) A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(8) 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.

(9) This clause is in addition to the other requirements of this Act relating to searches.

(10) In this clause—

impaired intellectual functioning means—

(a) total or partial loss of a person's mental functions; or

(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or

(c) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.

7 No strip searches of children under 10 years

A strip search must not be conducted on a person who is under the age of 10 years.

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307

Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 27 February 2003

Legislative Council: 27 March 2003

The long title for the Bill for this Act was "to provide for the prevention of and response to terrorist acts, to amend the Freedom of Information Act 1982 and the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."

The Terrorism (Community Protection) Act 2003 was assented to on 15 April 2003 and came into operation as follows:

Parts 1, 3, 5, 7 and 8 on 16 April 2003: section 2(1); Part 2 on 16 October 2003: Government Gazette 16 October 2003 page 2624; Part 6 on 25 February 2004: Special Gazette (No. 42) 25 February 2004 page 1; Part 4 on 1 July 2004: section 2(3).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in



308

http://www.legislation.vic.gov.au/

a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E).



309

2 Table of AmendmentsThis publication incorporates amendments made to the Terrorism (Community Protection) Act 2003 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Dangerous Goods Legislation (Amendment) Act 2004, No. 67/2004Assent Date: 19.10.04Commencement Date: S. 17 on 19.10.04: s. 2(1)Current State: This information relates only to the provision/s

amending the Terrorism (Community Protection) Act 2003

Parliamentary Administration Act 2005, No. 20/2005Assent Date: 24.5.05Commencement Date: S. 51 on 1.7.05: s. 2(4)Current State: This information relates only to the provision/s


Terrorism (Community Protection) (Amendment) Act 2006, No. 5/2006Assent Date: 7.3.06Commencement Date: Ss 4–13 on 9.3.06: s. 2(2)Current State: This information relates only to the provision/s


Terrorism (Community Protection) (Further Amendment) Act 2006, No. 30/2006Assent Date: 6.6.06Commencement Date: Ss 4–17 on 7.6.06: s. 2Current State: This information relates only to the provision/s


Children, Youth and Families (Consequential and Other Amendments) Act 2006, No. 48/2006

Assent Date: 15.8.06Commencement Date: S. 42(Sch. item 35) on 23.4.07: s. 2(3)Current State: This information relates only to the provision/s


Statute Law Revision Act 2007, No. 28/2007Assent Date: 26.6.07Commencement Date: S. 3(Sch. item 65) on 27.6.07: s. 2(1)Current State: This information relates only to the provision/s




310

Transport Legislation Amendment Act 2007, No. 69/2007Assent Date: 11.12.07Commencement Date: Ss 75, 76 on 12.12.07: s. 2(1)Current State: This information relates only to the provision/s


Police Integrity Act 2008, No. 34/2008Assent Date: 1.7.08Commencement Date: S. 143(Sch. 2 item 13) on 5.12.08: Special Gazette

(No. 340) 4.12.08 p. 1Current State: This information relates only to the provision/s


Public Health and Wellbeing Act 2008, No. 46/2008Assent Date: 2.9.08Commencement Date: S. 289 on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Justice Legislation Amendment Act 2009, No. 25/2009Assent Date: 17.6.09Commencement Date: S. 53 on 18.6.09: s. 2(1)Current State: This information relates only to the provision/s


Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09Commencement Date: S. 97(Sch. item 119) on 1.1.10: Government Gazette

10.12.09 p. 3215Current State: This information relates only to the provision/s


Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 1 item 55), (Sch. Pt 2 item 52) on

1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Terrorism (Community Protection) Amendment Act 2011, No. 33/2011Assent Date: 5.7.11Commencement Date: S. 3 on 6.7.11: s. 2Current State: All of Act in operation



311

Emergency Management Legislation Amendment Act 2011, No. 56/2011 (as amended by No. 43/2012)

Assent Date: 2.11.11Commencement Date: S. 32 on 3.11.11: s. 2(1)Current State: This information relates only to the provision/s


Public Interest Monitor Act 2011, No. 72/2011Assent Date: 6.12.11Commencement Date: Ss 44–51 on 10.2.13: Special Gazette (No. 32) 6.2.13

p. 2Current State: This information relates only to the provision/s


Justice Legislation Amendment (Miscellaneous) Act 2012, No. 68/2012Assent Date: 20.11.12Commencement Date: S. 9 on 21.11.12: s. 2(1)Current State: This information relates only to the provision/s


Integrity and Accountability Legislation Amendment Act 2012, No. 82/2012Assent Date: 18.12.12Commencement Date: S. 167 on 10.2.13: Special Gazette (No. 32) 6.2.13

p. 2; s. 319 on 11.2.13: s. 2(5)Current State: This information relates only to the provision/s


Courts and Other Justice Legislation Amendment Act 2013, No. 68/2013Assent Date: 19.11.13Commencement Date: S. 18 on 19.11.13: s. 2(1)Current State: This information relates only to the provision/s


Emergency Management Act 2013, No. 73/2013Assent Date: 3.12.13Commencement Date: S. 104 on 1.7.14: Special Gazette (No. 148) 13.5.14

p. 1Current State: This information relates only to the provision/s


Legal Profession Uniform Law Application Act 2014, No. 17/2014Assent Date: 25.3.14Commencement Date: S. 160(Sch. 2 item 97) on 1.7.15: Special Gazette (No.

151) 16.6.15 p. 1Current State: This information relates only to the provision/s




312

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date: 3.6.14Commencement Date: S. 10(Sch. item 167) on 1.7.14: Special Gazette

(No. 200) 24.6.14 p. 2Current State: This information relates only to the provision/s


Assent Date: 21.10.14Commencement Date: S. 8 on 1.7.15: s. 2(2)Current State: This information relates only to the provision/s




313

Assent Date: 16.6.15Commencement Date: S. 3(Sch. 1 item 54) on 1.8.15: s. 2(1)Current State: This information relates only to the provision/s


Terrorism (Community Protection) Amendment Act 2015, No. 70/2015Assent Date: 15.12.15Commencement Date: 16.12.15: s. 2Current State: This information relates only to the provision/s


Sentencing (Community Correction Order) and Other Acts Amendment Act 2016, No. 65/2016

Assent Date: 15.11.16Commencement Date: S. 22 on 20.3.17: Special Gazette (No. 17) 31.1.17 p. 1Current State: This information relates only to the provision/s


Oaths and Affirmations Act 2018, No. 6/2018Assent Date: 27.2.18Commencement Date: S. 68(Sch. 2 item 124) on 1.3.19: s. 2(2)Current State: This information relates only to the provision/s


Justice Legislation Amendment (Terrorism) Act 2018, No. 32/2018Assent Date: 7.8.18Commencement Date: Ss 3–79 on 1.10.18: s. 2(2)Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



314

3 Amendments Not in OperationThis publication does not include amendments made to the Terrorism (Community Protection) Act 2003 by the following Act/s.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Terrorism (Community Protection) Act 2003, No. 7/2003 (as amended by Nos 5/2006, 70/2015)

Assent Date: 15.4.03Commencement Date: S. 41 on 15.4.03: s. 2(1)Note: S. 41 provides that the Terrorism (Community

Protection) Act 2003 expires on 1.12.21Current State: This information relates only to the provision/s


Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018, No. 33/2018

Assent Date: 14.8.18Commencement Date: S. 105 not yet proclaimedCurrent State: This information relates only to the provision/s


Emergency Management Legislation Amendment Act 2018, No. 36/2018Assent Date: 21.8.18Commencement Date: S. 39 not yet proclaimedCurrent State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

At the date of this publication, the following provisions amending the Terrorism (Community Protection) Act 2003 were Not in Operation:

Amending Act/s:

Terrorism (Community Protection) Act 2003, No. 7/2003 (as amended by Nos 5/2006, 70/2015)

41 Expiry

This Act expires on 1 December 2021.

——

S. 41 amended by Nos 5/2006 s. 11, 70/2015 s. 15.



315

Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018, No. 33/2018

105 Warrant may be granted by telephone

In section 10 of the Terrorism (Community Protection) Act 2003—

(a) in subsection (3), after "machine" insert "or other electronic communication";

(b) in subsection (5)(b), after "machine" insert "or other electronic communication";

(c) in subsection (6), after "machine" insert "or other electronic communication".

——

Emergency Management Legislation Amendment Act 2018, No. 36/2018

39 Terrorism (Community Protection) Act 2003

(1) In section 19(1)(b) of the Terrorism (Community Protection) Act 2003, for "response" substitute "management".

(2) The note at the foot of section 19(1) of the Terrorism (Community Protection) Act 2003 is repealed.



316

4 Explanatory details



317

1 S. 10(6): The amendment proposed by section 68(Schedule 2 item 124.3) of the Oaths and Affirmations Act 2018, No. 6/2018 is not included in this publication because the word "sworn" does not appear in section 10(6).

Section 68(Schedule 2 item 124.3) reads as follows:

Schedule 2—Further consequential amendments124Terrorism (Community Protection) Act 2003

124.3 In section 10(6), after "sworn" insert "or affirmed".

Documents

Terrorism (Community Protection) Act 2003FILE/03-7a038.docx · Web viewOCPC Victoria, Word 2007, Template Release Microsoft Word. Part 1—Preliminary. Terrorism (Community Protection)