The purpose of a preventative detention order (PDO) is to provide a mechanism under Australian criminal law to address terrorism concerns. Essentially, a PDO permits the detention of a person for a short period in order to prevent an imminent terrorist act from occurring or to preserve evidence relating to a recent terrorist act.

Procedure and Grounds for Issuing a Preventative Detention Order

At the Commonwealth level, the process of obtaining a PDO depends on the type a police officer is seeking. For example, a senior AFP officer can issue an Initial Detention Order (IDO) whilst a Continued PDO is granted by a judicial officer.

In NSW, a PDO (interim or otherwise) may only be issued by the Supreme Court of NSW.

A PDO may only be issued in the following circumstances:

  • There are reasonable grounds, that the person:
    • will engage in a terrorist act; or
    • possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
    • has done an act in preparation for, or planning, a terrorist act.
  • The following requirements are met:
    • a terrorist act has occurred within the last 28 days, and
    • it is necessary to detain the person to preserve evidence of, or relating to, the terrorist act, and
    • detaining the person for a period under the order is reasonably necessary for the purpose of preserving any such evidence.

Time periods

The maximum period to which a PDO can apply is 48 hours under Commonwealth law and 14 days under NSW law. There are also restrictions if multiple PDOs are issued.

Age limit on PDO

A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.

Rights of detained persons

A person’s rights subject to a PDO include:

  • Right to be treated humanely with human dignity and cannot be subject to cruel, inhuman or degrading treatment;
  • Right to contact a family member, employer or another person that the detaining police officer agrees to contact;
  • Right to contact a lawyer;
  • Right not to be questioned by police subject to exceptions (i.e. questions relating to the safety of the detainee).

There are also special contact rules which apply to detainees between 16 – 18 years of age and for detainees who are not able to manage their own affairs. Persons should also be aware that contact between a detainee and another specified person (i.e. lawyer) must be effectively monitored by the police.

Furthermore, it is an offence for a detainee, a detainee’s lawyer, or a detainee’s parent or guardian to disclose to another person that a PDO has been made under Commonwealth legislation.

How often are PDOs used?

To date, no PDO has been made under Commonwealth legislation. However, three PDOs have been made under NSW law and one PDO issued in Victoria.

Why are PDOs controversial?

It has been argued that Australian PDO regimes place very severe restrictions on the human rights and civil liberties of those subject to them. For example, the Australian Human Rights Commission has highlighted that the Commonwealth regime:

  • Infringes on the freedom of expression as it prevents persons from freely communicating with others;
  • Does not require the detainee to be informed of the reasons for their detention;
  • Does not allow for meaningful review of the merits of the issuance of a PDO by a competent judicial authority.

Another issue with PDOs is that such orders infringe on legal professional privilege because a person’s communication with their lawyer must be monitored effectively by police, which hampers the full and frank disclosure of salient information.

Recommendations of the Independent National Security Legislation Monitor (INSLM)

The INSLM is statutory position created to review and ensure that Australia’s national security and counter-terrorism legislation is consistent with Australia’s international obligations including those pertaining to human rights and international security obligations.

The first and second INSLM have raised issues relating to lack of functional purpose that PDOs provide because police powers of pre-emptive arrest are easier to exercise as a means of disrupting imminent terrorist attacks. Stringent requirements for obtaining a PDO might also explain their prudent use.

However, the INSLM’s 2017 annual report emphasises that non-use of Commonwealth PDOs did not mean that they were redundant as law enforcement tools. Rather, the INSLM opined that there was a need for the continuing availability of PDOs. The INSLM noted a PDO’s strong interference with a person’s rights. But despite such intrusion and given that the terrorism threat level in Australia remains at ‘probable’, the present PDO regime remained proportionate and necessary. The INSLM recommended for the Commonwealth PDO regime to continue for another five years.