George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

I do not, Senator, for a different reason. This is not about the threshold test. The threshold test remains unchanged. This is, as it were, the jurisdictional requirement. Preventative detention orders under the pre-existing division 105 of the Criminal Code can only be sought where there is an imminent terrorist act, but they can also only be sought if the person applying for the preventative detention order is satisfied to the appropriate level of satisfaction that a preventative detention order is reasonably necessary to prevent a terrorist act from occurring and would substantially assist in the prevention of a terrorist act. So we are talking about two different things. You are talking about the standard of satisfaction that has to be met before a preventative detention order issues, and that does not change as a result of this amendment. What we are talking about here, though, is the jurisdictional precondition of seeking a preventative detention order, and that is that the terrorist act, previously described as imminent, is now one that is capable of occurring and could occur within the next 14 days.

In other words, there is a double test here. It cannot be just a theoretical possibility, which I think is maybe what you are getting at. It cannot just be that there is a theoretical possibility that a terrorist act is capable of occurring and could occur within the next 14 days—of course there is. The national terrorism alert level is at 'probable' and has been for more than two years, so today it is the case in Australia that a terrorist act is capable of being carried out and could occur within the next 14 days. That is not the point. The point is you do not get a preventative detention order unless you are reasonably satisfied that it is reasonably necessary to obtain one and that obtaining one would substantially assist in preventing that act. In order to establish those thresholds of satisfaction, you would need to put facts before the relevant issuing authority.

I am sorry if I may be repeating myself, but what we are speaking of now is not the threshold but merely changing or giving more definition to the jurisdictional condition that is imminence.