What is a Preventative Detention Order?

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Under arrest

Being arrested and detained without being formally charged is considered a breach of human rights in many countries.

But counter terrorism laws allow police in NSW to arrest and detain a person as a “preventative” measure against terrorism, without charging them and without them knowing the grounds for their detention.

Although these laws have been in place for over a decade, very little use has been made of them until recently, when three people were detained under preventative detention orders in counter-terrorism raids in October.

In NSW, police are usually not allowed to arrest anyone without having a good reason to believe that they have committed a crime, and they can’t detain anyone for longer than a few hours without formally charging them.

If they do, it is considered a breach of police powers and a contravention of basic civil rights.

Legislation which was brought in as part of anti-terrorism measures allows police to detain a person for a short period of time under certain circumstances on the basis of nothing more tangible than the possibility that they may commit a crime at a later date.

The controversial preventative detention orders are part of the Terrorism (Police Powers) Act 2002 brought in after the 911 terrorist attacks.

The orders give police the power to take a person into custody and detain them for a “short” period of time.

To use the powers, police don’t need to have evidence that a person has committed a crime or an act of terrorism, they only need to have a “reasonable suspicion” that the person will engage in a terrorism act, or that they have done something to plan or prepare for such an act.

The maximum amount of time a person can be held under this type of order is 14 days.

Preventative detention orders can’t be taken out against anyone under the age of 16.

What rights does a person have under a preventative detention order?

If a person is held in custody under a preventative detention order they do still have some rights.

These include the right to contact a lawyer, and to contact their family and employer to let them know they are safe.

They also have the right to be treated humanely, and not to be subject to degrading or inhuman treatment.

A person over the age of 16 and under the age of 18 also has the right to be detained separately from adults and to have a parent or guardian visit them while they are being held in custody.

Non-native English speakers have the right to an interpreter if necessary.

What is an interim preventative detention order?

Preventative detention orders have to be made before the supreme court once all the criteria have been met.

In the event that it isn’t possible to determine the result of an application for a preventative detention order on the spot, the supreme court can make an interim order which lasts for 48 hours until such a time as the court is able to make a final decision on whether or not to make a final order.

What is the process for obtaining a preventative detention order?

A preventative detention order can be applied for by a police officer, and the application needs to be made in writing.

It needs to include all the information that is considered relevant to the order, including the grounds for the application and details of any previous applications or preventative detention orders taken out against the person.

Once the application has been made, the supreme court will make a decision as to whether or not to grant it.

Why are preventative detention orders so controversial?

Preventative detention orders have raised a number of concerns from civil liberties groups and legal organisations, mostly surrounding their potential to be misused.

In a recent case, a man was put under a preventative detention order for exercising his right to silence after he was arrested in counter-terrorism raids.

Although preventative detention orders are supposed to be used as a preventative measure, as their name would suggest, it appears that they were used as a punitive measure against the man who would not co-operate with police.

As well as going against the purpose for these types of orders, it could be argued that evidence obtained after the threat of a preventative detention order would not be admissible as it was given under duress.

The psychological effects of keeping a person in isolation for a long period of time have also raised concerns that this could be a breach of human rights, and could be misused as a punishment rather than as a preventative measure.

A suppression order was recently put in place over preventative detention orders, meaning that details of orders made can’t be published anywhere, for an indefinite period of time.

This raises further concerns about the secrecy of these proceedings and the lack of any public accountability or monitoring to ensure that the system isn’t being misused.

Preventative detention orders along with a number of other counter-terrorism measures are due to expire next year, but the federal government has indicated that it will attempt to keep them in place until 2025.

This move has raised concerns from civil liberties groups who have stated that argue they should be allowed to lapse.

When introduced, the laws were only intended to last for a few years as they were seen to be extraordinary measure in the wake of 9/11, and extreme to the point where they shouldn’t become part of mainstream legislation.

If the government is successful, preventative detention orders may well be here to stay, for another ten years at least.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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