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Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime

The Law Council welcomes the opportunity to provide this submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) regarding its inquiry into the the following three provisions:

Part 1AA, division 3A of the Crimes Act allows police to stop, question, search, enter and seize in Commonwealth Places or a prescribed zone without a warrant in emergency circumstances where an officer suspects on reasonable grounds that material relevant to a terrorism offence is on the premises, or there is a risk to a person’s life, health or safety.

Under Division 104 of the Criminal Code, a CO can be made by a federal court on the application of the Australian Federal Police (AFP) to impose potentially far-reaching obligations, prohibitions and restrictions on a controlee, but these ‘controls’ fall short of actual detention. The objects of a CO are to protect the public from a terrorist act and to prevent the provision of support for, or the facilitation of either a terrorist act or the engagement in a hostile activity in a foreign country.

Under Division 105 of the Criminal Code, a PDO can be made to prevent the occurrence of a terrorist act that is capable of being carried out and could occur within the next 14 days or preserve evidence of or relating to a recent terrorist act. Division 105 allows a person to be detained for a short period of time, namely, no more than 48 hours.

The Law Council notes that the PJCIS’s inquiry follows the release of the recent Independent National Security Legislation Monitor’s (INSLM) reports on Review of division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers1 and Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders.2

You can read the full submission below.

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