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09 October 2014

Preventative detention orders 'used as a tool to break terrorism suspects'

Legal group says order designed to prevent imminent terrorist attack being deployed as a ‘psychological use of force’ by police

Search warrants were executed across Sydney’s north-west suburbs on 18 September. Photograph: NSW Police A man arrested in the recent New South Wales counter-terrorism raids was placed under a controversial preventative detention order after he exercised his right to silence, raising concerns about whether the orders were used appropriately.

On Friday Neil Gaughan, an Australian federal police assistant commissioner, told the parliamentary joint committee on intelligence and security that one of the men issued with a preventative detention order (PDO) in September’s raids was placed on the order after he stopped cooperating with police. He had already been detained by police at the time.

The details are the first information that has been publicly released on the circumstances of the orders. A broad and indefinite suppression order is in place over reporting of the orders. All three men who were placed on the PDOs have been released without charge.

PDOs are seen as controversial within the legal community because they allow people to be detained without charge – sometimes for up to two weeks – in isolation and without knowing the evidence against them or the reasons for their detention.

Gaughan was responding to questions about extending the preventative detention order regime, which was due to expire next year. Members of the parliamentary committee have already expressed some concerns about the narrow timeframe given to review whether the orders should be extended.

Gaughan said: “We already have questioning powers when we arrest somebody for an offence prior to the issuance of the PDO. I suppose the example I can give in reality is what occurred in Sydney last month with Operation Appleby, where we took a number of people into custody for questioning. One person exercised his right to silence and then he was issued with a PDO. A couple of others continued to talk with us for a while.”

The use of the order after the individuals were arrested has raised concerns that they may have been used in a punitive way against one of the men after he stopped cooperating with police. PDOs are designed as a preventive measure to stop an imminent terrorist attack.

Greg Barns, a spokesman for the Australian Lawyers Alliance, slammed the use of the orders in this way, and said it could render any evidence gained from questioning inadmissible.
“A court might take a view that any evidence obtained from that individual should not be admitted because it’s a clear case of effectively a use of force by police,” he said. “It’s not a physical use of force but certainly a psychological use of force by police in order to extract information from people.”

“It is no different to the days when police officers used to lock people up in cells in isolation for long periods of time until they broke.”

The second national security bill proposes lowering the threshold for obtaining PDOs, which has led to criticism from leading criminal lawyers.

During the parliamentary hearings Karen Horsfall, the principal legal officer at the attorney-general’s department, said this change could allow people to be placed on PDOs, removed for questioning, and then placed back in detention.

“With the lowering of that threshold, if the person is in preventative detention and the AFP get some additional information perhaps, and they think the person has information they might be able to give them about their own conduct or another person’s conduct, you can take the person out of preventative detention. You arrest them, you ask them questions, they may or may not answer, and it is also open to return the person to preventative detention and detain them for up to 48 hours, with the extension,” she said.

Greens senator Penny Wright said the extension of the PDO regime proposed in the new bill was concerning

“The secrecy around the use of preventative detention orders last month is really very concerning,” she said. “The Australian Greens do not support the extension of preventative detention orders. These laws are even tougher than what the US put in place after September 11 and every inquiry that has looked at them has said they need to go.”

“Now they will be extended so anyone can be detained without charge for up to 14 days, purely on the hunch of a government official, and we’ve seen there’s a risk they could be used as a punitive measure.”

Barns said using PDOs in this way would be an inappropriate use of police power: “There are strong public policy reasons that police and Asio [Australian Security Intelligence Organisation] officers should not misuse PDOs for the purposing of extracting information.”

An AFP spokesman said on Tuesday: “Three people were subject to preventative detention orders from 18 September to 19 September 2014. No additional PDOs were sought or exercised as part of this activity.

“A person can first be arrested and then if appropriate, a relevant PDO can be exercised. However, it is not necessary for a person to first be arrested, prior to a PDO being exercised.”

The parliamentary committee is due to report on the second national security bill by 17 October.