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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Counter-Terrorism Legislation
Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(Attorney-General)
A Bill for an Act to amend the law relating to
counter-terrorism, and for related purposes
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Extended supervision orders
3
Part 1--Main amendments
3
Criminal Code Act 1995
3
Part 2--Main consequential amendments
74
Administrative Decisions (Judicial Review) Act 1977
74
Australian Security Intelligence Organisation Act 1979
74
Crimes Act 1914
74
National Security Information (Criminal and Civil Proceedings) Act
2004
82
Surveillance Devices Act 2004
87
Telecommunications (Interception and Access) Act 1979
115
Part 3--Other consequential amendments
135
Crimes Act 1914
135
Telecommunications (Interception and Access) Act 1979
135
Schedule 2--Contingent amendments
136
Telecommunications (Interception and Access) Act 1979
136
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
1
A Bill for an Act to amend the law relating to
1
counter-terrorism, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Counter-Terrorism Legislation Amendment (High
5
Risk Terrorist Offenders) Act 2020
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2
The later of:
(a) the start of the day after this Act receives
the Royal Assent; and
(b) the commencement of Part 1 of
Schedule 1 to the
Telecommunications
Legislation Amendment (International
Production Orders) Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
3
Schedule 1--Extended supervision orders
1
Part 1--Main amendments
2
Criminal Code Act 1995
3
1 Subsection 72.3(3) of the
Criminal Code
(note)
4
After "continuing detention orders", insert "and extended supervision
5
orders".
6
2 Subsection 100.1(1) of the
Criminal Code
7
Insert:
8
detained in custody
includes:
9
(a) detained in custody on remand; and
10
(b) detained in custody under arrest; and
11
(c) detained in custody subject to a continuing detention order or
12
interim detention order.
13
interim post-sentence order
has the meaning given by
14
section 105A.2.
15
monitoring device
means any electronic device capable of being
16
used to determine or monitor the location of a person or an object
17
or the status of an object.
18
Note:
See also the definition of
related monitoring equipment
in this
19
subsection.
20
personal information
has the same meaning as in the
Privacy Act
21
1988
.
22
post-sentence order
has the meaning given by section 105A.2.
23
related monitoring equipment
, in relation to a monitoring device,
24
means any electronic equipment necessary for operating the
25
monitoring device.
26
reside
includes reside temporarily.
27
residence
includes temporary residence.
28
Schedule 1
Extended supervision orders
Part 1
Main amendments
4
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
specified authority
: a person, or person in a class of persons, is a
1
specified authority
for a requirement or condition in a control
2
order, an extended supervision order or interim supervision order
3
in relation to another person (the
subject
) if:
4
(a) the person or class is any of the following:
5
(i) a police officer, or class of police officer;
6
(ii) if the requirement or condition relates to electronic
7
monitoring--a person, or class of person, who is
8
involved in electronically monitoring the subject;
9
(iii) for any requirement or condition in the order--any other
10
person, or class of person; and
11
(b) the Court making the order is satisfied that the person or class
12
is appropriate in relation to the requirement or condition; and
13
(c) the person or class is specified in the order.
14
3 Subsection 100.1(1) of the
Criminal Code
(definition of
15
tracking device
)
16
Repeal the definition.
17
4 Subsection 100.1(4) of the
Criminal Code
(note)
18
Omit "must warn the person about continuing detention orders",
19
substitute "or convicted of an offence relating to control orders or
20
extended supervision orders, may be required to warn the person about
21
continuing detention orders and extended supervision orders".
22
5 Subsection 102.1(1) of the
Criminal Code
(the definition of
23
close family member
)
24
Repeal the definition, substitute:
25
close family member
of a person (the
first person
) means:
26
(a) the first person's spouse or de facto partner; or
27
(b) a parent, step-parent or grandparent of the first person; or
28
(c) any other person who would be a parent, step-parent or
29
grandparent of the first person if the first person were a child
30
(within the meaning of Part VII of the
Family Law Act 1975
)
31
of the other person or a third person; or
32
(d) a child, step-child or grandchild of the first person; or
33
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
5
(e) any other person who would be a step-child or grandchild of
1
the first person if the other person were a child (within the
2
meaning of Part VII of the
Family Law Act 1975
) of a third
3
person; or
4
(f) a brother, sister, step-brother or step-sister of the first person;
5
or
6
(g) any other person who would be a brother, sister, step-brother
7
or step-sister of the first person if the other person were a
8
child (within the meaning of Part VII of the
Family Law Act
9
1975
) of a third person; or
10
(h) a guardian or carer of the first person.
11
6 Subsection 102.1(19) of the
Criminal Code
12
Repeal the subsection.
13
7 Subparagraph 104.3(e)(i) of the
Criminal Code
14
After "the orders)", insert ", and all previous applications for
15
post-sentence orders or interim post-sentence orders,".
16
8 Subparagraph 104.3(e)(ii) of the
Criminal Code
17
After "control orders", insert "or of post-sentence orders".
18
9 After subparagraph 104.3(e)(iii) of the
Criminal Code
19
Insert:
20
(iiia) the outcomes and particulars of all previous applications
21
for revocations of post-sentence orders or interim
22
post-sentence orders made in relation to the person;
23
(iiib) the particulars of any revocations that occur by
24
operation of this Act of continuing detention orders in
25
relation to the person;
26
(iiic) the outcomes and particulars of all previous applications
27
for review of post-sentence orders in relation to the
28
person;
29
10 Subsection 104.4(3) of the
Criminal Code
30
Repeal the subsection.
31
Schedule 1
Extended supervision orders
Part 1
Main amendments
6
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
11 Subparagraph 104.5(1)(d)(ii) of the
Criminal Code
1
Repeal the subparagraph, substitute:
2
(ii) if the order does not begin to be in force under
3
subsection (1D) when it is served personally on the
4
person--the order begins to be in force under
5
subsection (1E); and
6
12 Before subsection 104.5(1A) of the
Criminal Code
7
Insert:
8
Attendance of person at court
9
13 After subsection 104.5(1C) of the
Criminal Code
10
Insert:
11
Rules relating to the period an interim control order is in force
12
(1D) The interim control order does not begin to be in force when it is
13
served personally on the person if, at that time:
14
(a) the person is detained in custody; or
15
(b) an extended supervision order or interim supervision order is
16
in force in relation to the person.
17
(1E) The interim control order instead begins to be in force when all of
18
the following conditions are met:
19
(a) either of the following events occurs:
20
(i) the person ceases to be detained in custody;
21
(ii) the extended supervision order or interim supervision
22
order ceases to be in force in relation to the person;
23
(b) when the event occurs:
24
(i) the interim control order has not been confirmed under
25
section 104.14; and
26
(ii) the person is in the community without an extended
27
supervision order or interim supervision order being in
28
force in relation to the person.
29
(1F) To avoid doubt, the interim control order never comes into force if
30
the condition in subparagraph (1E)(b)(ii) is not met.
31
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
7
14 Subsection 104.5(2AA) of the
Criminal Code
(note)
1
Repeal the note.
2
15 Before subsection 104.5(2A) of the
Criminal Code
3
Insert:
4
National security information
5
16 Paragraph 104.5(3)(d) of the
Criminal Code
6
Repeal the paragraph, substitute:
7
(d) a requirement that the person be subject to electronic
8
monitoring (for example, by wearing a monitoring device at
9
all times), and comply with directions given by a specified
10
authority in relation to electronic monitoring;
11
(da) a requirement that:
12
(i) the person carry at all times a specified mobile phone;
13
and
14
(ii) the person be available to answer any call from a
15
specified authority or, as soon as reasonably practicable,
16
return a call that the person was unable to answer; and
17
(iii) the person comply with specified directions, or any
18
directions given by a specified authority, in relation to
19
the requirement in subparagraph (i) or (ii);
20
17 Subsection 104.5(3) of the
Criminal Code
(note)
21
Omit "Note", substitute "Note 1".
22
18 At the end of subsection 104.5(3) of the
Criminal Code
23
Add:
24
Note 2:
For paragraph (3)(d), see also:
25
(a) section 104.5A (obligations relating to monitoring devices); and
26
(b) section 104.28C (sharing information relating to electronic
27
monitoring); and
28
(c) section 104.28D (arrangements for electronic monitoring and
29
other functions and powers).
30
19 Subsections 104.5(3A) and (3B) of the
Criminal Code
31
Repeal the subsections, substitute:
32
Schedule 1
Extended supervision orders
Part 1
Main amendments
8
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(3A) A specified authority may give a direction under paragraph (3)(d)
1
or (da) only if the specified authority is satisfied that the direction
2
is reasonable in all the circumstances to give effect to:
3
(a) the requirement in that paragraph; or
4
(b) the objects of this Division (see section 104.1).
5
20 At the end of Subdivision B of Division 104 of the
Criminal
6
Code
7
Add:
8
104.5A Obligations relating to monitoring devices
9
Additional obligations on person
10
(1) If the issuing court imposes a requirement under
11
paragraph 104.5(3)(d) in a control order that a person wear a
12
monitoring device, then:
13
(a) the requirement must specify that the person wear the
14
monitoring device at all times; and
15
(b) the order must include the requirement referred to in
16
paragraph 104.5(3)(da); and
17
(c) the order must include a requirement that the person do all of
18
the following:
19
(i) allow a specified authority to enter the person's
20
residence at any reasonable time for any purpose
21
relating to the electronic monitoring of the person;
22
(ii) allow a specified authority to install, repair or fit the
23
monitoring device or any related monitoring equipment;
24
(iii) take the steps specified in the order (if any) and any
25
other reasonable steps to ensure that the monitoring
26
device and any related monitoring equipment are or
27
remain in good working order;
28
(iv) if the person becomes aware that the monitoring device
29
and any related monitoring equipment are not in good
30
working order--notify a specified authority as soon as
31
reasonably practicable;
32
(v) allow a specified authority, police officer or corrective
33
services officer to remove the monitoring device;
34
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
9
(vi) allow a police officer to remove any related monitoring
1
equipment.
2
Powers of specified authorities and others
3
(2) After including the requirement under paragraph 104.5(3)(d) in the
4
order, the court must also include in the order an authorisation for:
5
(a) one or more specified authorities to enter the person's
6
residence as specified in the order at any reasonable time for
7
any purpose relating to the electronic monitoring of the
8
person; and
9
(b) one or more specified authorities to install, repair or fit the
10
monitoring device and any related monitoring equipment;
11
and
12
(c) one or more specified authorities or police officers
to take the
13
steps specified in the order to ensure that the device and any
14
related monitoring equipment are or remain in good working
15
order; and
16
(d) one or more specified authorities, police officers
or corrective
17
services officers to remove the monitoring device; and
18
(e) one or more police officers to remove any related monitoring
19
equipment.
20
(3) If:
21
(a) a monitoring device is installed on the person; and
22
(b) either:
23
(i) the requirement under paragraph 104.5(3)(d) is removed
24
from the control order; or
25
(ii) the control order ceases to be in force;
26
the device and any related monitoring equipment may be removed
27
in accordance with paragraph (2)(d) or (e) even though no
28
authorisation under subsection (2) is in force.
29
Powers relating to monitoring devices and related electronic
30
equipment
31
(4) Before exercising a power referred to in paragraph (2)(a), (b), (d)
32
or (e), or subsection (3), a specified authority, police officer or
33
corrective services officer must inform the person:
34
Schedule 1
Extended supervision orders
Part 1
Main amendments
10
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(a) that the device and equipment are to be installed, repaired,
1
fitted or removed (as the case requires); and
2
(b) of the proposed timing of the taking of the action; and
3
(c) that the person may consent to the taking of the action; and
4
(d) that if consent is not given, reasonable force may be used to
5
take the action, or to enter the person's residence in order to
6
take the action.
7
(5) If the person does not give consent, reasonable force may be used
8
by a police officer to take the action, or to enter the person's
9
residence in order to take the action.
10
21 Paragraph 104.12A(4)(a) of the
Criminal Code
11
Before "the order", insert "if the order is in force--".
12
22 Subparagraph 104.12A(4)(b)(i) of the
Criminal Code
13
Repeal the subparagraph, substitute:
14
(i) annotate a copy of the order to indicate that it has ceased
15
to be in force or will not come into force (as the case
16
requires); and
17
23 Section 104.15 of the
Criminal Code
(heading)
18
Repeal the heading, substitute:
19
104.15 Effect of confirmation process on interim control orders
20
24 Before subsection 104.15(1) of the
Criminal Code
21
Insert:
22
Void interim control orders
23
25 Before subsection 104.15(2) of the
Criminal Code
24
Insert:
25
Revoked interim control orders
26
26 Before subsection 104.15(3) of the
Criminal Code
27
Insert:
28
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
11
Confirming interim control orders that were in force
1
27 Subsection 104.15(3) of the
Criminal Code
2
After "then", insert "(subject to subsection (4) of this section)".
3
28 At the end of section 104.15 of the
Criminal Code
4
Add:
5
Interim control orders that were not in force
6
(4) The interim control order never comes into force if:
7
(a) the court confirms the interim control order (with or without
8
variation) under section 104.14 in relation to a person; and
9
(b) the interim control order had not begun to be in force when it
10
was served personally on the person because of
11
subsection 104.5(1D).
12
(5) The confirmed control order begins to be in force when all of the
13
following conditions are met:
14
(a) the relevant interim control order did not begin to be in force
15
when it was served personally on the person because of
16
subsection 104.5(1D);
17
(b) either of the following events occurs:
18
(i) the person is released from custody into the community;
19
(ii) the extended supervision order or interim supervision
20
order referred to in paragraph 104.5(1D)(b) ceases to be
21
in force in relation to the person;
22
(c) when the event occurs, the person is in the community
23
without an extended supervision order or interim supervision
24
order being in force in relation to the person.
25
(6) To avoid doubt, the confirmed control order never comes into force
26
if the condition in paragraph (5)(c) is not met.
27
29 At the end of Subdivision D of Division 104 of the
Criminal
28
Code
29
Add:
30
Schedule 1
Extended supervision orders
Part 1
Main amendments
12
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
104.17A Cessation of a control order if post-sentence order made
1
(1) If:
2
(a) a control order or interim control order has already been
3
served on a person; and
4
(b) a post-sentence order or interim post-sentence order begins to
5
be in force in relation to the person;
6
then:
7
(c) if the control order or interim control order is in force--that
8
order immediately ceases to be in force; and
9
(d) an AFP member must:
10
(i) annotate a copy of that order to indicate that it has
11
ceased to be in force or will not come into force (as the
12
case requires); and
13
(ii) cause an annotated copy to be served personally on the
14
person; and
15
(iii) if the person is a resident of Queensland, or the court
16
made the order in Queensland--give the Queensland
17
public interest monitor an annotated copy.
18
30 Subsection 104.24(3) of the
Criminal Code
19
Repeal the subsection.
20
31 Section 104.27 of the
Criminal Code
(before the penalty)
21
Insert:
22
Note:
A court that is sentencing a person who has been convicted of an
23
offence against this section may be required to warn the person about
24
continuing detention orders and extended supervision orders (see
25
section 105A.23).
26
32 Section 104.27A of the
Criminal Code
(heading)
27
Omit "
tracking devices
", substitute "
monitoring devices
".
28
33 Paragraph 104.27A(1)(b) of the
Criminal Code
29
Omit "tracking device", substitute "monitoring device".
30
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
13
34 Paragraph 104.27A(1)(d) of the
Criminal Code
1
Omit "tracking device", substitute "monitoring device or any related
2
monitoring equipment".
3
35 After subsection 104.27A(1) of the
Criminal Code
(before
4
the penalty)
5
Insert:
6
Note:
A court that is sentencing a person who has been convicted of an
7
offence against this subsection may be required to warn the person
8
about continuing detention orders and extended supervision orders
9
(see section 105A.23).
10
36 Paragraph 104.27A(2)(b) of the
Criminal Code
11
Omit "tracking device", substitute "monitoring device".
12
37 Paragraph 104.27A(2)(d) of the
Criminal Code
13
Omit "tracking device", substitute "monitoring device or any related
14
monitoring equipment".
15
38 After section 104.28B of the
Criminal Code
16
Insert:
17
104.28C Sharing information relating to electronic monitoring
18
(1) An AFP member may disclose information (including personal
19
information), to a person employed or engaged by a body covered
20
by an arrangement under subsection 104.28D(1), for the purpose of
21
facilitating:
22
(a) the performance of functions and the exercise of powers
23
relating to the electronic monitoring of persons who are
24
subject to a requirement imposed in accordance with
25
paragraph 104.5(3)(d); or
26
(b) the performance of any other functions or the exercise of any
27
other powers relating to section 104.5A.
28
(2) A person (the
first person
) employed or engaged by a body
29
covered by an arrangement under subsection 104.28D(1) may
30
disclose information (including personal information) to another
31
Schedule 1
Extended supervision orders
Part 1
Main amendments
14
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
person if the first person reasonably believes that the disclosure is
1
authorised by the arrangement.
2
(3) This section applies despite any other law of the Commonwealth, a
3
State or a Territory (whether written or unwritten).
4
104.28D Arrangements for electronic monitoring and other
5
functions and powers
6
(1) The Commissioner of the Australian Federal Police may make an
7
arrangement with a State or Territory, or any other body, for:
8
(a) the performance of functions and the exercise of powers
9
relating to the electronic monitoring of persons who are
10
subject to a requirement imposed in accordance with
11
paragraph 104.5(3)(d); or
12
(b) the performance of any other functions or the exercise of any
13
other powers relating to section 104.5A.
14
(2) Without limiting subsection (1), for the purposes of
15
section 104.28C, the arrangement may authorise a person
16
employed or engaged by a body covered by the arrangement to
17
disclose information (including personal information).
18
(3) The Commissioner of the Australian Federal Police may, in
19
writing, delegate to a senior AFP member the Commissioner's
20
powers under subsection (1).
21
39 Subparagraph 105.7(2)(e)(ii) of the
Criminal Code
22
After "the orders)", insert ", and all previous applications for
23
post-sentence orders or interim post-sentence orders,".
24
40 Subparagraph 105.7(2)(e)(iii) of the
Criminal Code
25
After "control orders", insert "or of post-sentence orders".
26
41 Subparagraph 105.7(2)(e)(iv) of the
Criminal Code
27
Omit "person; and", substitute "person;".
28
42 At the end of paragraph 105.7(2)(e) of the
Criminal Code
29
Add:
30
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
15
(v) the outcomes and particulars of all previous applications
1
for revocations of post-sentence orders or interim
2
post-sentence orders made in relation to the person;
3
(vi) the particulars of any revocations that occur by
4
operation of this Act of continuing detention orders in
5
relation to the person;
6
(vii) the outcomes and particulars of all previous applications
7
for review of post-sentence orders made in relation to
8
the person; and
9
43 Subparagraph 105.11(2)(e)(ii) of the
Criminal Code
10
After "the orders)", insert ", and all previous applications for
11
post-sentence orders or interim post-sentence orders,".
12
44 Subparagraph 105.11(2)(e)(iii) of the
Criminal Code
13
After "control orders", insert "or of post-sentence orders".
14
45 Subparagraph 105.11(2)(e)(iv) of the
Criminal Code
15
Omit "person; and", substitute "person;".
16
46 At the end of paragraph 105.11(2)(e) of the
Criminal Code
17
Add:
18
(v) the outcomes and particulars of all previous applications
19
for revocations of post-sentence orders made in relation
20
to the person;
21
(vi) the particulars of any revocations that occur by
22
operation of this Act of continuing detention orders in
23
relation to the person;
24
(vii) the outcomes and particulars of all previous applications
25
for review of post-sentence orders made in relation to
26
the person; and
27
47 Subparagraph 105.14A(4)(e)(iii) of the
Criminal Code
28
After "control order", insert "or post-sentence order".
29
48 Subsections 105.35(3) and (4) of the
Criminal Code
30
Repeal the subsections, substitute:
31
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(3) In this section:
1
family member
of a person (the
first person
) means:
2
(a) the first person's spouse or de facto partner; or
3
(b) a parent, step-parent or grandparent of the first person; or
4
(c) any other person who would be a parent, step-parent or
5
grandparent of the first person if the first person were a child
6
(within the meaning of Part VII of the
Family Law Act 1975
)
7
of the other person or a third person; or
8
(d) a child, step-child or grandchild of the first person; or
9
(e) any other person who would be a step-child or grandchild of
10
the first person if the other person were a child (within the
11
meaning of Part VII of the
Family Law Act 1975
) of a third
12
person; or
13
(f) a brother, sister, step-brother or step-sister of the first person;
14
or
15
(g) any other person who would be a brother, sister, step-brother
16
or step-sister of the first person if the other person were a
17
child (within the meaning of Part VII of the
Family Law Act
18
1975
) of a third person; or
19
(h) a guardian or carer of the first person.
20
49 Division 105A of the
Criminal Code
(heading)
21
Repeal the heading, substitute:
22
Division 105A--Post-sentence orders
23
50 Section 105A.1 of the
Criminal Code
24
Repeal the section, substitute:
25
105A.1 Object
26
The object of this Division is to protect the community from
27
serious Part 5.3 offences by providing that terrorist offenders who
28
pose an unacceptable risk of committing such offences are subject
29
to:
30
(a) a continuing detention order; or
31
(b) an extended supervision order.
32
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17
51 Section 105A.2 of the
Criminal Code
1
Before "In this Division", insert "(1)".
2
52 Section 105A.2 of the
Criminal Code
3
Repeal the following definitions:
4
(a) the definition of
continuing detention order decision
;
5
(b) the definition of
continuing detention order proceeding
.
6
53 Section 105A.2 of the
Criminal Code
7
Insert:
8
exemption condition
has the meaning given by
9
subsection 105A.7C(2).
10
extended supervision order
means an order made under
11
subsection 105A.7A(1).
12
interim post-sentence order
means an interim detention order or an
13
interim supervision order.
14
interim supervision order
means an order made under
15
subsection 105A.9A(4).
16
post-sentence order
means a continuing detention order or an
17
extended supervision order.
18
post-sentence order decision
means:
19
(a) a decision on an application for a post-sentence order or an
20
interim post-sentence order; or
21
(b) a decision on an application to vary an extended supervision
22
order or interim supervision order; or
23
(c) a decision in a review of a post-sentence order to affirm,
24
revoke or vary the order; or
25
(d) a decision made under section 105A.15A (when a terrorist
26
offender is unable to engage a legal representative).
27
Note:
See also subsection (2).
28
post-sentence order proceeding
means a proceeding under
29
Subdivision C, CA, CB or D.
30
premises
includes a place, an aircraft, a vehicle and a vessel.
31
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54 Section 105A.2 of the
Criminal Code
(definition of
relevant
1
expert
)
2
Omit "if the offender is released into the community".
3
55 Section 105A.2 (definition of
terrorist offender
)
4
Repeal the definition, substitute:
5
terrorist offender
:
6
(a) has the meaning given by subsection 105A.3(1); and
7
(b) includes a person who meets the conditions in paragraphs
8
105A.3(1)(a) and (c) and:
9
(i) paragraphs 105A.3A(4)(a) and (b); or
10
(ii) paragraphs 105A.3A(5)(a) to (e).
11
Note:
This definition is affected by sections 105A.2A and 105A.18.
12
56 At the end of section 105A.2 of the
Criminal Code
13
Add:
14
(2) To avoid doubt, a decision on an application to a Supreme Court of
15
a State or Territory for a post-sentence order or interim
16
post-sentence order is not made until the Court determines the
17
application in accordance with section 105A.6A or
18
subsection 105A.9(1B) or 105A.9A(3).
19
57 Section 105A.2A of the
Criminal Code
20
Repeal the section, substitute:
21
105A.2A Persons who have escaped from custody
22
For the purposes of this Division (except section 105A.4) if:
23
(a) a person is detained in custody for a reason (for example,
24
because the person is serving a sentence of imprisonment, on
25
remand or subject to a continuing detention order); and
26
(b) the person escapes from custody;
27
the person is taken to be detained in custody for that reason until
28
the person is returned to custody.
29
Note:
For the definition of
detained in custody
, see subsection 100.1(1).
30
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19
58 Subdivision B of Division 105A of the
Criminal Code
1
(heading)
2
Repeal the heading, substitute:
3
Subdivision B--Post-sentence orders
4
59 Section 105A.3 of the
Criminal Code
5
Repeal the section, substitute:
6
105A.3 Who a post-sentence order may apply to and effect of
7
post-sentence orders
8
(1) A post-sentence order may be made under section 105A.7 or
9
105A.7A in relation to a person (the
terrorist offender
) if:
10
(a) the person has been convicted of:
11
(i) an offence against Subdivision A of Division 72
12
(international terrorist activities using explosive or
13
lethal devices); or
14
(ii) a serious Part 5.3 offence; or
15
(iii) an offence against Part 5.5 (foreign incursions and
16
recruitment), except an offence against
17
subsection 119.7(2) or (3) (publishing recruitment
18
advertisements); or
19
(iv) an offence against the repealed
Crimes (Foreign
20
Incursions and Recruitment) Act 1978
, except an
21
offence against paragraph 9(1)(b) or (c) of that Act
22
(publishing recruitment advertisements); and
23
(b) a subsection of section 105A.3A provides that the order may
24
be made in relation to the person; and
25
(c) the person will be at least 18 years old when the sentence for
26
the conviction referred to in paragraph (a) of this subsection
27
ends.
28
Note:
Before making the order, a Court must be satisfied of certain matters
29
under section 105A.7 or 105A.7A.
30
Effect of continuing detention order
31
(2) The effect of a continuing detention order is to commit the person
32
to detention in a prison for the period the order is in force.
33
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Note 1:
The period must not be more than 3 years (see subsection 105A.7(5)).
1
Note 2:
See also:
2
(a) section 105A.18C (effect of detention on post-sentence order);
3
and
4
(b) subsection 105A.21(2) (arrangements with States and
5
Territories); and
6
(c) section 105A.24 (effect of continuing detention orders on bail or
7
parole laws).
8
Effect of an extended supervision order
9
(3) The effect of an extended supervision order is to impose on the
10
person, for the period the order is in force, conditions
11
contravention of which is an offence.
12
Note 1:
The period must not be more than 3 years (see
13
paragraph 105A.7A(4)(d)).
14
Note 2:
See also section 105A.18C (effect of detention on post-sentence
15
order).
16
105A.3A Preconditions for post-sentence orders
17
Post-sentence orders--person detained in custody for
18
paragraph 105A.3(1)(a) offence
19
(1) A post-sentence order may be made in relation to a person if the
20
person is detained in custody serving a sentence of imprisonment
21
for an offence referred to in paragraph 105A.3(1)(a).
22
Post-sentence orders--continuing detention order in force
23
(2) A post-sentence order may be made in relation to a person if a
24
continuing detention order or interim detention order is in force in
25
relation to the person.
26
Post-sentence orders--person detained in custody for other
27
offences
28
(3) A post-sentence order may be made in relation to a person if:
29
(a) the person is detained in custody serving a sentence of
30
imprisonment for an offence other than an offence referred to
31
in paragraph 105A.3(1)(a); and
32
(b) either:
33
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21
(i) the person has been continuously detained in custody
1
since being convicted of the offence referred to in
2
paragraph 105A.3(1)(a); or
3
(ii) the person has been continuously detained in custody
4
since a continuing detention order or interim detention
5
order was in force in relation to the person.
6
Note:
For the definition of
detained in custody
, see subsection 100.1(1).
7
(4) A post-sentence order may be made in relation to a person if:
8
(a) the person is detained in custody serving a sentence of
9
imprisonment for an offence against section 105A.18A or
10
subsection 105A.18B(1) (offences relating to extended
11
supervision orders and interim supervision orders); and
12
(b) the person was charged with the offence before the later of:
13
(i) the relevant extended supervision order or interim
14
supervision order ceasing to be in force; and
15
(ii) the end of 6 months after the conduct constituting the
16
offence; and
17
(c) the Court making the post-sentence order is satisfied, as a
18
result of the offence referred to in paragraph (a), that the
19
person poses an unacceptable risk of committing a serious
20
Part 5.3 offence.
21
(5) A post-sentence order may be made in relation to a person if:
22
(a) the person served a sentence of imprisonment for an offence
23
referred to in paragraph 105A.3(1)(a); and
24
(b) before the person was released from custody:
25
(i) the AFP Minister's consent to a request for an interim
26
control order was sought under section 104.2; or
27
(ii) a request for an interim control order was made under
28
section 104.6; and
29
(c) the interim control order was made as a result of the request;
30
and
31
(d) the person is detained in custody serving a sentence of
32
imprisonment for an offence against section 104.27 or
33
subsection 104.27A(1) (offences relating to control orders) in
34
relation to:
35
(i) the interim control order; or
36
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No. , 2020
(ii) the control order that resulted from confirming the
1
interim control order; and
2
(e) the person was charged with the offence referred to in
3
paragraph (d) before the later of:
4
(i) the order referred to in that paragraph ceased to be in
5
force; and
6
(ii) the end of 6 months after the conduct constituting the
7
offence; and
8
(f) the Court making the post-sentence order is satisfied, as a
9
result of the offence referred to in paragraph (d), that the
10
person poses an unacceptable risk of committing a serious
11
Part 5.3 offence.
12
Supervision orders--supervision order in force
13
(6) An extended supervision order or interim supervision order may be
14
made in relation to a person if an extended supervision order or
15
interim supervision order is in force in relation to the person.
16
Supervision orders--person detained in custody for other offences
17
(7) An extended supervision order or interim supervision order may be
18
made in relation to a person if:
19
(a) the person is detained in custody serving a sentence of
20
imprisonment for an offence other than the offence referred
21
to in paragraph 105A.3(1)(a); and
22
(b) at the beginning of the person's detention in custody, an
23
extended supervision order or interim supervision order was
24
in force in relation to the person.
25
Note:
Paragraph (a)--an offence against section 105A.18A or
26
subsection 105A.18B(1) (relating to an extended supervision order or
27
interim supervision order) is an example of an offence other than the
28
offence referred to in paragraph 105A.3(1)(a).
29
Supervision orders--control orders requested before
30
commencement
31
(8) An extended supervision order or interim supervision order may be
32
made in relation to a person if:
33
(a) the person served a sentence of imprisonment for an offence
34
referred to in paragraph 105A.3(1)(a); and
35
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23
(b) before the person was released from custody, and before the
1
commencement of this subsection:
2
(i) the AFP Minister's consent to a request for an interim
3
control order was sought under section 104.2; or
4
(ii) a request for an interim control order was made under
5
section 104.6; and
6
(c) either:
7
(i) the interim control order is in force; or
8
(ii) the interim control order was confirmed and the
9
confirmed control order is in force.
10
Interpretation
11
(9) To avoid doubt, subsection (3) applies:
12
(a) whether the offence for which the person is serving the
13
sentence of imprisonment is an offence against a law of the
14
Commonwealth, a State or a Territory; and
15
(b) whether the sentence served for the offence referred to in
16
paragraph 105A.3(1)(a) was served concurrently or
17
cumulatively, or both, with:
18
(i) the sentence referred to in paragraph (3)(a) of this
19
section; or
20
(ii) any of the other sentences served by the person since
21
being convicted of the offence referred to in
22
paragraph 105A.3(1)(a) (the
other sentences
); and
23
(c) whether the sentence referred to in paragraph (3)(a) of this
24
section or the other sentences were imposed before or after,
25
or at the same time as, the sentence for the offence referred to
26
in paragraph 105A.3(1)(a); and
27
(d) whether or not the person has been continuously serving a
28
sentence of imprisonment for an offence since being
29
convicted of the offence referred to in
30
paragraph 105A.3(1)(a).
31
(10) To avoid doubt, subsection (7) applies whether the offence for
32
which the person is serving the sentence of imprisonment is an
33
offence against a law of the Commonwealth, a State or a Territory.
34
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No. , 2020
60 Subdivision C of Division 105A of the
Criminal Code
1
(heading)
2
Repeal the heading, substitute:
3
Subdivision C--Making post-sentence orders
4
61 Section 105A.5 of the
Criminal Code
(heading)
5
Repeal the heading, substitute:
6
105A.5 Applying for a post-sentence order
7
62 Subsection 105A.5(1) of the
Criminal Code
8
Repeal the subsection, substitute:
9
(1) The AFP Minister, or a legal representative of the AFP Minister,
10
(the
applicant
) may apply to a Supreme Court of a State or
11
Territory for either of the following:
12
(a) a continuing detention order in relation to a terrorist offender;
13
(b) an extended supervision order in relation to a terrorist
14
offender.
15
Note:
The court may make an extended supervision order under
16
section 105A.7A even if a continuing detention order is applied for.
17
63 Paragraph 105A.5(2)(a) of the
Criminal Code
18
Repeal the paragraph, substitute:
19
(a) a sentence of imprisonment referred to in
20
subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a),
21
(5)(d) or (7)(a); or
22
64 Paragraph 105A.5(2)(b) of the
Criminal Code
23
Omit "continuing detention order", substitute "post-sentence order".
24
65 At the end of subsection 105A.5(2) of the
Criminal Code
25
Add:
26
; or (c) if subsection 105A.3A(8) applies in relation to the offender--
27
the period the interim control order referred to in
28
subparagraph 105A.3A(8)(c)(i) or confirmed control order
29
referred to in subparagraph 105A.3A(8)(c)(ii) is in force.
30
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25
66 After subsection 105A.5(2) of the
Criminal Code
1
Insert:
2
(2AA) To avoid doubt, if both paragraphs (2)(a) and (b) apply in relation
3
to a terrorist offender, the application may be made in accordance
4
with either paragraph (even though the other paragraph may
5
prevent an application from being made in relation to the offender).
6
67 Subsection 105A.5(2A) of the
Criminal Code
7
Repeal the subsection, substitute:
8
(2A) The AFP Minister must ensure that reasonable inquiries are made
9
to ascertain any facts known to any Commonwealth law
10
enforcement officer or intelligence or security officer that would
11
reasonably be regarded as supporting a finding that:
12
(a) if the application is for a continuing detention order--neither
13
a continuing detention order nor an extended supervision
14
order should be made in relation to the offender; or
15
(b) if the application is for an extended supervision order--the
16
extended supervision order should not be made in relation to
17
the offender.
18
68 Paragraph 105A.5(3)(aa) of the
Criminal Code
19
Omit "the order", substitute "the order or orders mentioned in
20
paragraph (2A)(a) or (b) (as the case requires)".
21
69 After paragraph 105A.5(3)(c) of the
Criminal Code
22
Insert:
23
; and (d) if the application is for an extended supervision order--
24
include the following material:
25
(i) a copy of the proposed conditions;
26
(ii) an explanation as to why each of the proposed
27
conditions should be imposed on the offender;
28
(iii) if the AFP Minister is aware of any facts relating to why
29
any of those conditions should not be imposed on the
30
offender--a statement of those facts, except any facts
31
that are likely to be protected by public interest
32
immunity (whether the claim for public interest
33
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No. , 2020
immunity is to be made by the AFP Minister or any
1
other person); and
2
(e) if a report was obtained under section 105A.18D in relation
3
to the offender--include a copy of the report.
4
70 Subsection 105A.5(3) of the
Criminal Code
(note 1)
5
Repeal the note, substitute:
6
Note 1:
For paragraph (3)(c), the period must not be more than 3 years (see
7
subsection 105A.7(5) and paragraph 105A.7A(4)(d)).
8
71 Subsection 105A.5(3) of the
Criminal Code
(note 3)
9
Repeal the note, substitute:
10
Note 3:
A copy of the application must be given to the terrorist offender under
11
section 105A.14A.
12
72 Subsections 105A.5(4) to (10) of the
Criminal Code
13
Repeal the subsections (including the note at the end of
14
subsection 105A.5(10)).
15
73 Subsection 105A.6(1) of the
Criminal Code
16
Omit "continuing detention order is made", substitute "post-sentence
17
order is made under section 105A.5".
18
74 Subsection 105A.6(2) of the
Criminal Code
19
Omit "105A.5(4)", substitute "105A.14A(2)".
20
75 Subsection 105A.6(3) of the
Criminal Code
21
Omit "continuing detention order", substitute "post-sentence order".
22
76 Paragraph 105A.6(4)(a) of the
Criminal Code
23
Omit "if the offender is released into the community".
24
77 Subsection 105A.6(4) of the
Criminal Code
(note)
25
Repeal the note, substitute:
26
Note:
For giving documents to a terrorist offender who is in prison, see
27
section 105A.15.
28
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78 Subsection 105A.6(5A) of the
Criminal Code
1
Repeal the subsection, substitute:
2
(5A) The answer to a question or information given at the assessment,
3
and answering a question or giving information at the assessment,
4
are not admissible in evidence against the offender in:
5
(a) any criminal proceedings, except any proceedings relating to
6
sentencing for an offence against Division 104 or this
7
Division (including any appeal in relation to those
8
proceedings); or
9
(b) any civil proceedings against the offender, except
10
proceedings under Division 104 or this Division (including
11
any appeal in relation to those proceedings).
12
79 Subsection 105A.6(6) of the
Criminal Code
13
Repeal the subsection, substitute:
14
(6) The Court must ensure that the effect of subsections (5), (5A) and
15
(9) is explained to the offender.
16
80 Paragraphs 105A.6(7)(a) and (g) of the
Criminal Code
17
Omit "if the offender is released into the community".
18
81 At the end of section 105A.6 of the
Criminal Code
19
Insert:
20
Assessments conducted for certain purposes
21
(9) Without limiting subsection (5A), an assessment of an offender
22
conducted under paragraph (4)(a), and the report of the assessment,
23
may be taken into account in proceedings to make or vary any
24
post-sentence order or interim post-sentence order, or to review
25
any post-sentence order, in relation to the offender.
26
82 After section 105A.6 of the
Criminal Code
27
Insert:
28
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105A.6A Determining an application for a post-sentence order
1
Determining applications for continuing detention orders
2
(1) If an application is made under section 105A.5 to the Supreme
3
Court of a State or Territory for a continuing detention order in
4
relation to a terrorist offender, the Court may determine the
5
application by:
6
(a) making a continuing detention order under section 105A.7; or
7
(b) making an extended supervision order under
8
section 105A.7A; or
9
(c) dismissing the application.
10
Determining applications for extended supervision orders
11
(2) If an application is made under section 105A.5 to the Supreme
12
Court of a State or Territory for an extended supervision order in
13
relation to a terrorist offender, the Court may determine the
14
application by:
15
(a) making an extended supervision order under
16
section 105A.7A; or
17
(b) dismissing the application.
18
105A.6B Matters a Court must have regard to in making a
19
post-sentence order
20
(1) In deciding whether the Court is satisfied as referred to in
21
paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist
22
offender, a Supreme Court of a State or Territory must have regard
23
to the following matters:
24
(a) the object of this Division;
25
(b) any report of an assessment received from a relevant expert,
26
and the level of the offender's participation in the
27
assessment, under:
28
(i) section 105A.6; or
29
(ii) section 105A.18D;
30
(c) the results of any other assessment conducted by a relevant
31
expert of the risk of the offender committing a serious
32
Part 5.3 offence, and the level of the offender's participation
33
in any such assessment;
34
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29
(d) any report, relating to the extent to which the offender can
1
reasonably and practicably be managed in the community,
2
that has been prepared by:
3
(i) the relevant State or Territory corrective services; or
4
(ii) any other person or body who is competent to assess
5
that extent;
6
(e) any treatment or rehabilitation programs in which the
7
offender has had an opportunity to participate, and the level
8
of the offender's participation in any such programs;
9
(f) the level of the offender's compliance with any obligations to
10
which the offender is or has been subject while:
11
(i) on release on parole for any offence referred to in
12
paragraph 105A.3(1)(a); or
13
(ii) subject to a post-sentence order, interim post-sentence
14
order or control order;
15
(g) the offender's history of any prior convictions for, and
16
findings of guilt made in relation to, any offence referred to
17
in paragraph 105A.3(1)(a);
18
(h) the views of the sentencing court at the time any sentence for
19
any offence referred to in paragraph 105A.3(1)(a) was
20
imposed on the offender;
21
(i) any other information as to the risk of the offender
22
committing a serious Part 5.3 offence.
23
(2) Subsection (1) does not prevent the Court from having regard to
24
any other matter the Court considers relevant.
25
(3) To avoid doubt, section 105A.13 (civil evidence and procedure
26
rules in relation to post-sentence order proceedings) applies to the
27
Court's consideration of the matters referred to in subsections (1)
28
and (2) of this section.
29
83 Paragraph 105A.7(1)(b) of the
Criminal Code
30
Repeal the paragraph, substitute:
31
(b) after having regard to matters in accordance with
32
section 105A.6B, the Court is satisfied to a high degree of
33
probability, on the basis of admissible evidence, that the
34
offender poses an unacceptable risk of committing a serious
35
Part 5.3 offence; and
36
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84 Subsection 105A.7(1) of the
Criminal Code
(notes 1 and 2)
1
Repeal the notes, substitute:
2
Note 1:
An example of a less restrictive measure is an extended supervision
3
order. A court can make an extended supervision order under
4
section 105A.7A even if a continuing detention order was applied for
5
(see subsection 105A.6A(1)).
6
Note 2:
The rules of evidence and procedure for civil matters apply when the
7
Court has regard to matters in accordance with section 105A.6B, as
8
referred to in paragraph (1)(b) of this section (see
9
subsection 105A.6B(3) and section 105A.13).
10
85 Subsection 105A.7(2) of the
Criminal Code
11
Repeal the subsection, substitute:
12
(2) If the Court is not satisfied as mentioned in paragraph (1)(b) or (c)
13
(or both), then the Court must:
14
(a) seek the following material from the AFP Minister:
15
(i) a copy of the proposed conditions that would be sought
16
for an extended supervision order in relation to the
17
offender;
18
(ii) an explanation as to why each of the proposed
19
conditions should be imposed on the offender;
20
(iii) if the AFP Minister is aware of any facts relating to why
21
any of those conditions should not be imposed on the
22
offender--a statement of those facts, except any facts
23
that are likely to be protected by public interest
24
immunity (whether the claim for public interest
25
immunity is to be made by the AFP Minister or any
26
other person); and
27
(b) consider whether to make an extended supervision order
28
under section 105A.7A in relation to the offender.
29
Note:
A copy of the material must be given to the terrorist offender under
30
section 105A.14A.
31
86 At the end of subsection 105A.7(4) of the
Criminal Code
32
Add:
33
Note:
The order may be suspended during the period that it is in force if the
34
offender is detained in custody other than as a result of the order (see
35
section 105A.18C).
36
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31
87 Section 105A.8 of the
Criminal Code
1
Repeal the section, substitute:
2
105A.7A Making an extended supervision order
3
(1) A Supreme Court of a State or Territory may make a written order
4
under this subsection, in accordance with sections 105A.7B and
5
105A.7C, if:
6
(a) any of the following applies:
7
(i) an application is made in accordance with
8
section 105A.5 for an extended supervision order in
9
relation to a terrorist offender;
10
(ii) an application is made in accordance with
11
section 105A.5 for a continuing detention order in
12
relation to a terrorist offender, and the Court is not
13
satisfied as mentioned in paragraph 105A.7(1)(b) or (c)
14
(or both);
15
(iii) the Court has reviewed under section 105A.12 a
16
continuing detention order in relation to a terrorist
17
offender and the Court is not satisfied as mentioned in
18
paragraph 105A.12(4)(a); and
19
(b) after having regard to matters in accordance with
20
section 105A.6B, the Court is satisfied on the balance of
21
probabilities, on the basis of admissible evidence, that the
22
offender poses an unacceptable risk of committing a serious
23
Part 5.3 offence; and
24
(c) the Court is satisfied on the balance of probabilities that each
25
of the conditions to be imposed on the offender by the order
26
is reasonably necessary, and reasonably appropriate and
27
adapted, for the purpose of protecting the community from
28
that unacceptable risk.
29
Determining whether conditions are reasonably necessary,
30
appropriate and adapted
31
(2) For the purposes of paragraph (1)(c), in determining whether each
32
of the conditions to be imposed on the offender by the order is
33
reasonably necessary, and reasonably appropriate and adapted, the
34
Court must take into account, as a paramount consideration in all
35
cases, the object of this Division (see section 105A.1).
36
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Onus of satisfying Court
1
(3) The AFP Minister bears the onus of satisfying the Court of the
2
matters referred to in paragraphs (1)(b) and (c).
3
Content of order
4
(4) The order must:
5
(a) state that the Court is satisfied of the matters mentioned in
6
paragraphs (1)(b) and (c); and
7
(b) specify the name of the offender to whom the order relates;
8
and
9
(c) specify all of the conditions, and any exemption conditions,
10
that are to be imposed in accordance with section 105A.7B or
11
105A.7C on the offender by the order; and
12
(d) specify the period during which the order is to be in force,
13
which must be a period of no more than 3 years that the
14
Court is satisfied is reasonably necessary to prevent the
15
unacceptable risk; and
16
(e) state that the offender's lawyer may request a copy of the
17
order.
18
Note:
The order may be suspended during the period that it is in force if the
19
offender is detained in custody (see section 105A.18C).
20
Court may make successive extended supervision orders
21
(5) To avoid doubt, paragraph (4)(d) does not prevent a Supreme
22
Court of a State or Territory making an extended supervision order
23
in relation to a terrorist offender that begins to be in force
24
immediately after a previous extended supervision order, or
25
continuing detention order, in relation to the offender ceases to be
26
in force.
27
Automatic revocation of continuing detention orders etc.
28
(6) A continuing detention order or interim detention order that is in
29
force in relation to a terrorist offender is revoked by force of this
30
subsection if:
31
(a) a Court makes an extended supervision order in relation to
32
the offender; and
33
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(b) the continuing detention order or interim detention order is in
1
force immediately before the extended supervision order
2
begins to be in force.
3
105A.7B Conditions of extended supervision orders and interim
4
supervision orders
5
(1) The conditions that a Court may impose on a terrorist offender by
6
an extended supervision order or interim supervision order are any
7
conditions that the Court is satisfied, on the balance of
8
probabilities, are reasonably necessary, and reasonably appropriate
9
and adapted, for the purpose of protecting the community from the
10
unacceptable risk of the offender committing a serious Part 5.3
11
offence.
12
Note:
The Court may, under section 105A.7C, specify conditions from
13
which exemptions may be granted.
14
General rules about conditions
15
(2) To avoid doubt, without limiting subsection 33(3A) of the
Acts
16
Interpretation Act 1901
, a condition imposed under this section
17
may:
18
(a) prohibit or restrict specified conduct of the offender, or
19
impose obligations on the offender; or
20
(b) impose restrictions and obligations on the offender in relation
21
to classes of conduct, and prohibit other classes of that
22
conduct; or
23
(c) impose different restrictions, obligations and prohibitions in
24
relation to different classes of conduct; or
25
(d) for conduct that is prohibited by a condition described in a
26
paragraph of subsection (3)--impose restrictions and
27
obligations on the offender in relation to that conduct instead
28
of prohibiting that conduct; or
29
(e) for conduct described in a paragraph of subsection (3) or
30
(5)--impose different restrictions, obligations and
31
prohibitions in relation to that conduct.
32
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General conditions
1
(3) Without limiting this section, the conditions that the Court may
2
impose in accordance with subsection (1) include conditions
3
relating to the following:
4
(a) that the offender not be present at one or more of the
5
following:
6
(i) specified areas or places;
7
(ii) specified classes of areas or places;
8
(iii) any area or place determined by a specified authority;
9
(b) that the offender reside at specified premises, and not begin
10
to reside at any other premises without the prior permission
11
of a specified authority;
12
(c) that the offender remain at specified premises between
13
specified times each day, or on specified days, but for no
14
more than 12 hours within any 24 hours;
15
(d) that the offender not leave Australia, or the State or Territory
16
in which the offender's residence is located;
17
(e) that the offender provide a specified authority with the
18
offender's passport (or passports) while the order is in force;
19
(f) that the offender not change the offender's name, or use any
20
name that is not specified in the order;
21
(g) that the offender not apply for one or more of the following:
22
(i) any Australian travel document;
23
(ii) any travel document of a foreign country;
24
(iii) any licence to operate equipment, machinery, a heavy
25
vehicle or a weapon, or any licence to possess a
26
weapon;
27
(h) that the offender not communicate or associate by any means
28
(including through third parties) with one or more of the
29
following:
30
(i) specified individuals;
31
(ii) specified classes of individuals;
32
(iii) any individuals determined by a specified authority;
33
(i) that the offender not access or use specified forms of
34
telecommunication or other technology (including the
35
internet);
36
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(j) that the offender not possess or use specified articles or
1
substances;
2
(k) that the offender not carry out specified activities;
3
(l) that the offender not engage in one or more of the following:
4
(i) specified work;
5
(ii) specified classes of work;
6
(iii) specified activities relating to specified work or classes
7
of work;
8
(m) that the offender not in engage in any training or education
9
without the prior permission of a specified authority;
10
(n) that the offender do any or all of the following:
11
(i) attend and participate in treatment, rehabilitation or
12
intervention programs or activities;
13
(ii) undertake psychological or psychiatric assessment or
14
counselling;
15
as specified in the order or as directed by a specified
16
authority;
17
(o) that the offender attend and participate in interviews and
18
assessments (including for the purposes of paragraph (n)) as
19
specified in the order or as directed by a specified authority;
20
(p) that the offender allow the results of the interviews and
21
assessments referred to in paragraph (o), and any other
22
specified information, to be disclosed to a specified authority;
23
(q) that the offender provide specified
information to a specified
24
authority within a specified period or before a specified
25
event;
26
(r) that the offender comply with any reasonable direction given
27
to the offender by a specified authority in relation to any
28
specified condition (whether or not the condition is imposed
29
in accordance with this subsection).
30
Note:
See also subsection (8) and sections 100.1 and 105A.2 in relation to
31
references to premises, reside or residence, and work.
32
(4) If a condition of the order authorises a specified authority to give a
33
direction, the specified authority may give a direction only if the
34
specified authority is satisfied that the direction is reasonable in all
35
the circumstances to give effect to:
36
(a) the condition; or
37
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(b) the object of this Division (see section 105A.1).
1
Conditions relating to monitoring and enforcement
2
(5) Without limiting this section, the conditions that the Court may
3
impose in accordance with subsection (1) include conditions
4
relating to the following:
5
(a) that the offender submit to testing by a specified authority in
6
relation to the possession or use of specified articles or
7
substances;
8
(b) that the offender allow himself or herself to be photographed
9
by a specified authority;
10
(c) that the offender allow impressions of the offender's
11
fingerprints to be taken by a specified authority;
12
(d) that the offender be subject to electronic monitoring (for
13
example, by wearing a monitoring device at all times), and
14
comply with directions given by a specified authority in
15
relation to electronic monitoring;
16
(e) a condition that:
17
(i) the person carry at all times a specified mobile phone;
18
and
19
(ii) the person be available to answer any call from a
20
specified authority or, as soon as reasonably practicable,
21
return a call that the person was unable to answer; and
22
(iii) the person comply with specified directions, or any
23
directions given by a specified authority, in relation to
24
the condition in subparagraph (i) or (ii);
25
(f) that the offender attend at places, and report to persons, at
26
times, specified:
27
(i) in the order; or
28
(ii) by a specified authority;
29
(g) that the offender allow visits at specified premises from, and
30
entry to specified premises by, a specified authority at any
31
time for the purpose of ensuring the offender's compliance
32
with a condition imposed in accordance with
33
paragraph (3)(c);
34
(h) that the offender provide a specified authority with a
35
schedule setting out the offender's proposed movements for a
36
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specified period and comply with that schedule during the
1
period;
2
(i) that the offender allow any police officer to enter specified
3
premises and:
4
(i) search the offender; and
5
(ii) search the offender's residence or any premises which
6
the offender intends to be the offender's residence; and
7
(iii) search any other premises under the offender's control;
8
and
9
(iv) seize any item found during those searches, including to
10
allow the item to be examined forensically;
11
(j) that the offender facilitate access (including by providing
12
passwords or in any other way) to one or more of the
13
following:
14
(i) electronic equipment or technology;
15
(ii) any data held within, or accessible from, any electronic
16
equipment or technology;
17
owned or controlled by the offender, for the purposes of a
18
police officer searching and seizing any such equipment or
19
accessing such data (or both).
20
Note 1:
For paragraphs (5)(b) and (c), restrictions apply to the use of
21
photographs or impressions of fingerprints (see section 105A.7D).
22
Note 2:
For paragraph (5)(d), see also section 105A.7E (obligations relating to
23
monitoring devices).
24
(6) A power exercised under a condition imposed in accordance with
25
subsection (5) (other than a power to give a direction) may be
26
exercised only if the person exercising the power is satisfied that it
27
is reasonably necessary to do so in order to:
28
(a) give effect to the order; or
29
(b) facilitate or monitor compliance with the order.
30
Access to lawyers
31
(7) This section does not affect the offender's right to contact,
32
communicate or associate with the offender's lawyer unless the
33
offender's lawyer is a specified individual, or an individual in a
34
specified class of individuals, as mentioned in paragraph (3)(h). If
35
the offender's lawyer is so specified, the offender may contact,
36
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communicate or associate with any other lawyer who is not so
1
specified.
2
References to work
3
(8) In subsection (3), a reference to work includes a reference to
4
voluntary work.
5
105A.7C Conditions where exemptions may be granted
6
(1) A Supreme Court of a State or Territory that makes an extended
7
supervision order or interim supervision order in relation to a
8
terrorist offender may specify conditions included in the order that
9
are to be exemption conditions.
10
(2) An
exemption condition
is a condition specified in the order from
11
which the offender may apply for a temporary exemption.
12
(3) The Court may make provision in relation to applications for
13
temporary exemptions.
14
(4) The offender may apply, in writing, to a specified authority for an
15
exemption from an exemption condition. The application must:
16
(a) include a reason for the exemption; and
17
(b) comply with any other requirements provided for under
18
subsection (3).
19
(5) If the offender so applies, the specified authority may:
20
(a) require further information to be provided by the offender
21
before making a decision in relation to the application; and
22
(b) either:
23
(i) grant or refuse the exemption; or
24
(ii) grant the exemption subject to any reasonable directions
25
specified in writing by the specified authority.
26
105A.7D Treatment of photographs and impressions of fingerprints
27
(1) A photograph, or an impression of fingerprints, taken of or from a
28
terrorist offender as mentioned in paragraph 105A.7B(5)(b) or (c)
29
must be used only for the purpose of ensuring compliance with an
30
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extended supervision order or interim supervision order relating to
1
the offender.
2
(2) The photograph or the impression must be destroyed if:
3
(a) no extended supervision order or interim supervision order
4
has been in force in relation to the offender for 12 months;
5
and
6
(b) either:
7
(i) no proceedings relating to an extended supervision
8
order or interim supervision order relating to the
9
offender were on foot in that 12-month period; or
10
(ii) proceedings relating to an extended supervision order or
11
interim supervision order relating to the offender were
12
discontinued or completed within that 12-month period.
13
(3) A person commits an offence if:
14
(a) the person engages in conduct; and
15
(b) the conduct contravenes subsection (1).
16
Penalty: Imprisonment for 2 years.
17
105A.7E Obligations relating to monitoring devices
18
Additional obligations on terrorist offender
19
(1) If the Court imposes a condition under paragraph 105A.7B(5)(d) in
20
an extended supervision order or interim supervision order that a
21
terrorist offender wear a monitoring device, then:
22
(a) the condition must require the offender to wear the
23
monitoring device at all times; and
24
(b) the order must include the condition referred to in
25
paragraph 105A.7B(5)(e); and
26
(c) the order must include a condition that the offender do all of
27
the following:
28
(i) allow a specified authority to enter the offender's
29
residence at any reasonable time for any purpose
30
relating to the electronic monitoring of the offender;
31
(ii) allow a specified authority to install, repair or fit the
32
monitoring device or any related monitoring equipment;
33
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(iii) take the steps specified in the order (if any) and any
1
other reasonable steps to ensure that the monitoring
2
device and any related monitoring equipment are or
3
remain in good working order;
4
(iv) if the offender becomes aware that the monitoring
5
device and any related monitoring equipment are not in
6
good working order--notify a specified authority as
7
soon as reasonably practicable;
8
(v) allow a specified authority, police officer or corrective
9
services officer to remove the monitoring device;
10
(vi) allow a police officer to remove any related monitoring
11
equipment.
12
Powers of specified authorities and others
13
(2) After including the condition under paragraph 105A.7B(5)(d) in
14
the order, the Court must also include in the order an authorisation
15
for:
16
(a) one or more specified authorities to enter the offender's
17
residence as specified in the order at any reasonable time for
18
any purpose relating to the electronic monitoring of the
19
offender; and
20
(b) one or more specified authorities to install, repair or fit the
21
monitoring device and any related monitoring equipment;
22
and
23
(c) one or more specified authorities or police officers
to take the
24
steps specified in the order to ensure that the device and any
25
related monitoring equipment are or remain in good working
26
order; and
27
(d) one or more specified authorities, police officers
or corrective
28
services officers to remove the monitoring device; and
29
(e) one or more police officers to remove any related monitoring
30
equipment.
31
(3) If:
32
(a) a monitoring device is installed on the terrorist offender; and
33
(b) any of the following events occurs:
34
(i) the condition under paragraph 105A.7B(5)(d) is
35
removed from the order;
36
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(ii) the order ceases to be in force;
1
(iii) the offender is detained in custody;
2
the device and any related monitoring equipment may be removed
3
in accordance with paragraph (2)(d) or (e) even though:
4
(c) for subparagraph (b)(i) or (ii)--no authorisation under
5
subsection (2) is in force; or
6
(d) for subparagraph (b)(iii)--the offender is not required to
7
comply with a condition of the order because of
8
section 105A.18C.
9
Note:
For the definition of
detained in custody
, see subsection 100.1(1).
10
Powers relating to monitoring devices and related electronic
11
equipment
12
(4) Before exercising a power referred to in paragraph (2)(a), (b), (d)
13
or (e), or subsection (3), a specified authority, police officer or
14
corrective services officer must inform the offender:
15
(a) that the device and equipment are to be installed, repaired,
16
fitted or removed (as the case requires); and
17
(b) of the proposed timing of the taking of the action; and
18
(c) that the offender may consent to the taking of the action; and
19
(d) that if consent is not given, reasonable force may be used to
20
take the action, or to enter the offender's residence in order to
21
take the action.
22
(5) If the offender does not give consent, reasonable force may be used
23
by a police officer to take the action, or to enter the offender's
24
residence in order to take the action.
25
105A.7F Copy of an extended supervision order etc. must be given
26
to terrorist offender's lawyer
27
(1) A copy of an extended supervision order or interim supervision
28
order that is made under section 105.7A in relation to a terrorist
29
offender must be given to the offender's lawyer as soon as
30
practicable after being requested by the lawyer.
31
(2) This section does not entitle the lawyer to request, or be given a
32
copy of, a document other than the order.
33
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88 Before section 105A.9 of the
Criminal Code
1
Insert:
2
Subdivision CA--Making interim post-sentence orders
3
89 Before subsection 105A.9(1A) of the
Criminal Code
4
Insert:
5
Determining the application
6
90 After subsection 105A.9(1A) of the
Criminal Code
7
Insert:
8
(1B) The Court may determine the application by:
9
(a) making an interim detention order under subsection (2); or
10
(b) making an interim supervision order under section 105A.9A;
11
or
12
(c) dismissing the application.
13
Making an interim detention order
14
91 Subparagraphs 105A.9(2)(a)(i) and (ia) of the
Criminal
15
Code
16
Repeal the subparagraphs, substitute:
17
(i) if subsection 105A.3A(1), (3), (4) or (5) applies--the
18
sentence of imprisonment referred to in
19
subsection 105A.3A(1) or paragraph 105A.3A(3)(a),
20
(4)(a) or (5)(d);
21
92 At the end of subsection 105A.9(4) of the
Criminal Code
22
Add:
23
Note:
The order may be suspended during the period that it is in force if the
24
offender is detained in custody other than as a result of the order (see
25
section 105A.18C).
26
93 At the end of subsection 105A.9(6) of the
Criminal Code
27
Add ", unless the Court is satisfied that there are exceptional
28
circumstances".
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94 At the end of section 105A.9 of the
Criminal Code
1
Add:
2
When Court does not make interim detention order
3
(8) If the Court is not satisfied as mentioned in paragraph (2)(b), then
4
the Court must:
5
(a) seek the following material from the AFP Minister:
6
(i) a copy of the proposed conditions that would be sought
7
for an interim supervision order;
8
(ii) an explanation as to why each of the proposed
9
conditions should be imposed on the offender;
10
(iii) if the AFP Minister is aware of any facts relating to why
11
any of those conditions should not be imposed on the
12
offender--a statement of those facts, except any facts
13
that are likely to be protected by public interest
14
immunity (whether the claim for public interest
15
immunity is to be made by the AFP Minister or any
16
other person); and
17
(b) consider whether to make an interim supervision order under
18
section 105A.9A.
19
Note:
A copy of the material must be given to the terrorist offender under
20
section 105A.14A.
21
95 After section 105A.9 of the
Criminal Code
22
Insert:
23
105A.9A Interim supervision orders
24
(1) The AFP Minister, or a legal representative of the AFP Minister,
25
may apply to a Supreme Court of a State or Territory for an interim
26
supervision order in relation to a terrorist offender if an application
27
has been made to the Court for an extended supervision order in
28
relation to the offender.
29
(2) On receiving the application for the interim supervision order, the
30
Court must hold a hearing to determine whether to make the order.
31
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Determining the application
1
(3) The Court may determine the application by:
2
(a) making an interim supervision order under subsection (4); or
3
(b) dismissing the application.
4
Making an interim supervision order
5
(4) The Court may make a written order under this subsection, in
6
accordance with sections 105A.7B and 105A.7C, if:
7
(a) either:
8
(i) an application is made in accordance with subsection (1)
9
for an interim supervision order in relation to a terrorist
10
offender; or
11
(ii) an application is made in accordance with
12
section 105A.9 for an interim detention order in relation
13
to a terrorist offender and the Court is not satisfied as
14
mentioned in paragraph 105A.9(2)(b); and
15
(b) the Court is satisfied that any of the following relating to the
16
offender will end before the application for the continuing
17
detention order or extended supervision order has been
18
determined:
19
(i) a sentence of imprisonment referred to in
20
subsection 105A.3A(1) or paragraph 105A.3A(3)(a),
21
(4)(a), (5)(d) or (7)(a);
22
(ii) the period for which a post-sentence order or interim
23
post-sentence order is in force;
24
(iii) the period for which the interim control order referred to
25
in subparagraph 105A.3A(8)(c)(i) or confirmed control
26
order referred to in subparagraph 105A.3A(8)(c)(ii) is in
27
force; and
28
(c) the Court is satisfied that there are reasonable grounds for
29
considering that an extended supervision order will be made
30
in relation to the offender; and
31
(d) the Court is satisfied that there are reasonable grounds for
32
considering that each of the conditions to be imposed on the
33
offender by the order under this subsection is reasonably
34
necessary, and reasonably appropriate and adapted, for the
35
purpose of protecting the community from the unacceptable
36
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risk of the terrorist offender committing a serious Part 5.3
1
offence.
2
Note:
A series of interim supervision orders can be made in relation to a
3
person (see subsection (8)).
4
(5) For the purposes of paragraph (4)(d), in determining whether each
5
of the conditions to be imposed on the offender by the order is
6
reasonably necessary, and reasonably appropriate and adapted, the
7
Court must take into account, as a paramount consideration in all
8
cases, the object of this Division (see section 105A.1).
9
Effect of an interim supervision order
10
(6) The effect of an interim supervision order is to impose on the
11
offender, for the period the order is in force, conditions
12
contravention of which may be an offence.
13
Content of order
14
(7) The order must specify:
15
(a) that the Court is satisfied of the matters mentioned in
16
paragraphs (4)(b) to (d); and
17
(b) the matters mentioned in paragraphs 105A.7A(4)(b), (c) and
18
(e); and
19
(c) the period during which the order is in force, which must be a
20
period of no more than 28 days that the Court is satisfied is
21
reasonably necessary to determine the application for the
22
continuing detention order or extended supervision order.
23
Note:
The order may be suspended during the period that it is in force if the
24
offender is detained in custody (see section 105A.18C).
25
(8) The total period of all interim supervision orders made in relation
26
to the offender before the Court makes a decision on the
27
application for the continuing detention order or extended
28
supervision order must not be more than 3 months, unless the
29
Court is satisfied that there are exceptional circumstances.
30
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Offenders) Bill 2020
No. , 2020
Subdivision CB--Varying an extended supervision order or
1
interim supervision order
2
105A.9B Application for variations of extended supervision orders
3
and interim supervision orders
4
Who may apply
5
(1) Any of the following persons (the
applicant
) may apply to a
6
Supreme Court of a State or Territory to vary, under
7
section 105A.9C, an extended supervision order or interim
8
supervision order in relation to a terrorist offender, by adding,
9
varying or removing one or more conditions mentioned in
10
section 105A.7B:
11
(a) the AFP Minister or a legal representative of the AFP
12
Minister;
13
(b) the terrorist offender or a legal representative of the terrorist
14
offender.
15
Note:
If the application is made by or on behalf of the AFP Minister, a copy
16
of the application must be given to the offender under
17
section 105A.14A.
18
(2) The application must be made to the Supreme Court of the State or
19
Territory where the offender resides.
20
Note:
See section 100.1 for the definition of
reside
.
21
Contents of application
22
(3) An application under subsection (1) must include:
23
(a) a copy of the conditions as sought to be varied; and
24
(b) if the applicant is the AFP Minister or a legal representative
25
or the AFP Minister--the following material:
26
(i) an explanation as to why each condition that is sought to
27
be added or varied should be added or varied;
28
(ii) if the AFP Minister is aware of any facts relating to why
29
any of those conditions should not be added or varied--
30
a statement of those facts, except any facts that are
31
likely to be protected by public interest immunity
32
(whether the claim for public interest immunity is to be
33
made by the AFP Minister or any other person);
34
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(iii) the outcomes and particulars of all previous applications
1
made under this section (whether by or on behalf of the
2
AFP Minister or the terrorist offender) for variations of
3
the order; and
4
(c) if the applicant is the terrorist offender or a legal
5
representative of the terrorist offender--the outcomes and
6
particulars of all previous applications made under this
7
section by or on behalf of the terrorist offender for variations
8
of the order; and
9
(d) if a report was obtained under section 105A.18D in relation
10
to the terrorist offender for the purposes of determining
11
whether to apply for the variation--a copy of the report.
12
(4) If the applicant is the terrorist offender or a legal representative of
13
the terrorist offender, the applicant:
14
(a) may also include in the application an explanation as to why
15
each condition that is sought to be varied or removed should
16
be varied or removed; and
17
(b) must cause a copy of the application to be served on the AFP
18
Minister within 2 business days after the application is made.
19
Adducing additional evidence
20
(5) The following persons may adduce additional evidence (including
21
by calling witnesses or producing material), or make additional
22
submissions, to the Court in relation to the application to vary the
23
order:
24
(a) the AFP Minister;
25
(b) one or more AFP members;
26
(c) the terrorist offender;
27
(d) one or more representatives of the offender.
28
(6) Subsection (5) does not otherwise limit the power of the Court to
29
control proceedings in relation to an application to vary an
30
extended supervision order.
31
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105A.9C Varying an extended supervision order or interim
1
supervision order (other than by consent)
2
(1) If an application is made in accordance with
3
subsections 105A.9B(1) and (2) to a Supreme Court of a State or
4
Territory to vary an extended supervision order or interim
5
supervision order in relation to a terrorist offender, the Court may
6
vary the order, but only if:
7
(a) for an application for the order to be varied by adding or
8
varying conditions--the Court is satisfied on the balance of
9
probabilities that each of the conditions being added or varied
10
is reasonably necessary, and reasonably appropriate and
11
adapted, for the purpose of protecting the community from
12
the unacceptable risk of the offender committing a serious
13
Part 5.3 offence; and
14
(b) for an application for the order to be varied by removing
15
conditions--the Court is not satisfied on the balance of
16
probabilities that each of the conditions being removed is
17
reasonably necessary, and reasonably appropriate and
18
adapted, for the purpose of protecting the community from
19
the unacceptable risk of the offender committing a serious
20
Part 5.3 offence.
21
Note:
See section 105A.9E for the terms of a varied extended supervision
22
order or interim supervision order.
23
(2) For the purposes of subsection (1), in determining whether each of
24
the conditions to be added, varied or removed by the order is
25
reasonably necessary, and reasonably appropriate and adapted, the
26
Court must take into account, as a paramount consideration in all
27
cases, the object of this Division (see section 105A.1).
28
(3) The AFP Minister bears the onus of satisfying the Court of the
29
matters referred to in subsection (1).
30
Relevant experts
31
(4) The Court may appoint one or more relevant experts for the
32
purposes of the proceedings relating to the application. If the Court
33
does so, subsections 105A.6(4) to (7) apply in relation to the
34
proceedings.
35
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(5) The AFP Minister, the offender, or a legal representative of the
1
AFP Minister or offender, may nominate one or more relevant
2
experts for the purposes of subsection (4).
3
(6) Subsection (4) does not prevent the AFP Minister, the offender, or
4
a legal representative of the AFP Minister or offender, from calling
5
another relevant expert as a witness in the proceedings.
6
105A.9D Varying extended supervision order or interim supervision
7
order by consent
8
(1) Any of the following persons (the
applicant
) may apply to a
9
Supreme Court of a State or Territory to vary an extended
10
supervision order or interim supervision order in relation to a
11
terrorist offender by varying or removing one or more conditions
12
mentioned in section 105A.7B:
13
(a) the AFP Minister or a legal representative of the AFP
14
Minister;
15
(b) the terrorist offender or a legal representative of the terrorist
16
offender.
17
(2) The application must be made to the Court of the State or Territory
18
where the offender resides.
19
Note:
See section 100.1 for the definition of
reside
.
20
(3) The Court may vary the order if the Court is satisfied that:
21
(a) written consent to the variation has been given by:
22
(i) if the applicant is the AFP Minister or a legal
23
representative of the AFP Minister--the offender; or
24
(ii) if the applicant is the terrorist offender or a legal
25
representative of the terrorist offender--the AFP
26
Minister; and
27
(b) the variation does not involve adding any conditions to the
28
order; and
29
(c) the variation is appropriate in the circumstances.
30
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105A.9E Terms of a varied extended supervision order or interim
1
supervision order
2
An extended supervision order or interim supervision order in
3
relation to a person that is varied under section 105A.9C, 105A.9D
4
or 105A.12A must:
5
(a) state that the Court is satisfied:
6
(i) for a variation under subsection 105A.9C(1) or
7
105A.9D(3)--of the matters mentioned in that
8
subsection; or
9
(ii) for a variation under section 105A.12A--of the matters
10
mentioned in subsection 105A.12A(1), (3) or (4) (as the
11
case requires); and
12
(b) specify the variations to the conditions that are to be made;
13
and
14
(c) state the period during which the order, as varied, is in force;
15
and
16
(d) state that the offender's lawyer may request a copy of the
17
order.
18
96 Subdivision D of Division 105A of the
Criminal Code
19
(heading)
20
Omit "
continuing detention order
", substitute "
post-sentence order
".
21
97 Section 105A.10 of the
Criminal Code
(heading)
22
Omit "
continuing detention order
", substitute "
post-sentence order
".
23
98 Before subsection 105A.10(1A) of the
Criminal Code
24
Insert:
25
When application for review must be made
26
99 Subsection 105A.10(1A) of the
Criminal Code
27
Omit "continuing detention order", substitute "post-sentence order".
28
100 Subsection 105A.10(1A) of the
Criminal Code
(note)
29
Omit "Note", substitute "Note 1".
30
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101 At the end of subsection 105A.10(1A) of the
Criminal
1
Code
2
Add:
3
Note 2:
A copy of the application must be given to the terrorist offender under
4
section 105A.14A.
5
102 Subsection 105A.10(1B) of the
Criminal Code
6
Repeal the subsection, substitute:
7
(1B) The application must be made:
8
(a) before the end of 12 months after the order began to be in
9
force (unless paragraph (b) or (c) applies); or
10
(b) if the order has been reviewed under this Subdivision by a
11
Supreme Court of a State or Territory--before the end of 12
12
months after the most recent review ended (unless
13
paragraph (c) applies); or
14
(c) if paragraph (a) or (b) would otherwise apply and, at the time
15
described in that paragraph, the post-sentence order is
16
suspended under section 105A.18C because the offender is
17
detained in custody--on or before the day the offender's
18
detention ends.
19
(1C) Despite subsection (1A), an application for a review is not required
20
if an application for a new post-sentence order in relation to the
21
offender has been made and not withdrawn.
22
Review must be conducted before end of period
23
103 Subsection 105A.10(1) of the
Criminal Code
(note)
24
Omit "continuing detention order", substitute "post-sentence order".
25
104 Subsections 105A.10(2) and (3) of the
Criminal Code
26
Repeal the subsections, substitute:
27
Where application must be made
28
(3) The application must be made to the Court of the State or Territory
29
where:
30
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(a) for a continuing detention order--the prison in which the
1
offender is detained is located; or
2
(b) for an extended supervision order--the offender resides.
3
Note:
See section 100.1 for the definition of
reside
.
4
Order ceases to be in force if application not made
5
105 Section 105A.11 of the
Criminal Code
(heading)
6
Omit "
continuing detention order
", substitute "
post-sentence order
".
7
106 Subsection 105A.11(1) of the
Criminal Code
8
Repeal the subsection, substitute:
9
(1) The following persons may apply to a Supreme Court of a State or
10
Territory for review of a post-sentence order:
11
(a) the AFP Minister or a legal representative of the AFP
12
Minister;
13
(b) a terrorist offender, or a legal representative of a terrorist
14
offender, in relation to whom the post-sentence order is in
15
force.
16
Note 1:
For the process for reviewing a post-sentence order, see
17
section 105A.12.
18
Note 2:
A copy of the application must be given to the terrorist offender under
19
section 105A.14A.
20
(1A) The application must include a copy of any report obtained under
21
section 105A.18D for the purposes of determining whether an
22
application for a review of the extended supervision order should
23
be made.
24
107 Subsection 105A.11(4) of the
Criminal Code
25
Repeal the subsection, substitute:
26
(4) The application must be made to the Court of the State or Territory
27
where:
28
(a) for a continuing detention order--the prison in which the
29
offender is detained is located; or
30
(b) for an extended supervision order--the offender resides.
31
Note:
See section 100.1 for the definition of
reside
.
32
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108 Section 105A.12 of the
Criminal Code
(heading)
1
Omit "
continuing detention order
", substitute "
post-sentence order
".
2
109 Subsection 105A.12(1) of the
Criminal Code
3
Omit "continuing detention order", substitute "post-sentence order".
4
110 Subsections 105A.12(4) and (5) of the
Criminal Code
5
Repeal the subsections, substitute:
6
Affirming or revoking the order
7
(4) The Court may affirm the order (including affirm the order with
8
variations made under section 105A.12A) if, after having regard to
9
the matters in section 105A.6B, the Court is satisfied that the
10
Court:
11
(a) for a continuing detention order--could have made the order
12
under section 105A.7; or
13
(b) for an extended supervision order--could have made the
14
order under section 105A.7A, or could have made the order
15
disregarding paragraph 105A.7A(1)(c).
16
Note:
The rules of evidence and procedure for civil matters apply when the
17
Court has regard to matters in accordance with section 105A.6B, as
18
referred to in subsection (4) of this section (see subsection 105A.6B(3)
19
and section 105A.13).
20
(5) If the review is of a continuing detention order, and the Court does
21
not affirm the order under subsection (4), the Court must:
22
(a) consider making an extended supervision order in relation to
23
the offender under section 105A.7A; and
24
(b) seek the following material from the AFP Minister:
25
(i) a copy of the proposed conditions that would be sought
26
for an extended supervision order;
27
(ii) an explanation as to why each of the proposed
28
conditions should be imposed on the offender;
29
(iii) if the AFP Minister is aware of any facts relating to why
30
any of those conditions should not be imposed on the
31
offender--a statement of those facts, except any facts
32
that are likely to be protected by public interest
33
immunity (whether the claim for public interest
34
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immunity is to be made by the AFP Minister or any
1
other person); and
2
(c) if the court does not make an extended supervision order in
3
relation to the offender--revoke the continuing detention
4
order.
5
Note:
If the Court makes an extended supervision order in relation to the
6
offender, the continuing detention order is revoked under
7
subsection 105A.7A(6).
8
(5AA) If the Court does not affirm an extended supervision order under
9
subsection (4), the Court must revoke the order.
10
111 Subsection 105A.12(6) of the
Criminal Code
11
Omit "subsection (4)", substitute "section 105A.7 or 105A.7A".
12
112 Subsection 105A.12(6A) of the
Criminal Code
13
Omit all the words from and including "a finding that" to the end of the
14
subsection, substitute:
15
a finding that:
16
(c) the order should not be affirmed, or should not be affirmed in
17
the terms in which the order is made; or
18
(d) if the court is considering making an extended supervision
19
order under subsection (5)--an extended supervision order
20
should not be made.
21
113 Subsection 105A.12(7) of the
Criminal Code
22
Repeal the subsection.
23
114 At the end of Subdivision D of Division 105A of the
24
Criminal Code
25
Add:
26
105A.12A Varying post-sentence orders after review
27
Varying the period specified by a post-sentence order
28
(1) A Supreme Court of a State or Territory must vary a post-sentence
29
order in relation to a terrorist offender to specify a shorter period
30
for which the order will be in force if:
31
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(a) the Court affirms the order under subsection 105A.12(4); and
1
(b) the Court is not satisfied that the period currently specified is
2
reasonably necessary to prevent the unacceptable risk of the
3
offender committing a serious Part 5.3 offence.
4
The shorter period must be a period that the Court is satisfied is
5
reasonably necessary to prevent the unacceptable risk.
6
Note:
See section 105A.9E for the terms of a varied extended supervision
7
order.
8
Varying or removing conditions
9
(2) A Supreme Court of a State or Territory must vary, or remove, a
10
condition imposed by an extended supervision order if:
11
(a) the Court affirms the order under subsection 105A.12(4); and
12
(b) the Court is not satisfied that the condition is reasonably
13
necessary, and reasonably appropriate and adapted, for the
14
purpose of protecting the community from the unacceptable
15
risk of the offender committing a serious Part 5.3 offence.
16
(3) The Court must be satisfied that a condition that is varied under
17
subsection (2) is (after the variation) reasonably necessary, and
18
reasonably appropriate and adapted, for the purpose of protecting
19
the community from the unacceptable risk of the offender
20
committing a serious Part 5.3 offence.
21
Varying to add conditions
22
(4) The Court may vary an extended supervision order to add one or
23
more conditions if the Court is satisfied that the conditions are
24
reasonably necessary, and reasonably appropriate and adapted, for
25
the purpose of protecting the community from the unacceptable
26
risk of the offender committing a serious Part 5.3 offence.
27
Object of this Division
28
(5) For the purposes of subsections (3) and (4), in determining whether
29
a condition to be varied or imposed on the offender by the order is
30
reasonably necessary, and reasonably appropriate and adapted, the
31
Court must take into account, as a paramount consideration in all
32
cases, the object of this Division (see section 105A.1).
33
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Onus of satisfying court
1
(6) The AFP Minister bears the onus of satisfying the Court of the
2
matters referred to in subsection (1), (3) or (4).
3
115 Subdivision E of Division 105A of the
Criminal Code
4
Omit "
continuing detention order
", substitute "
post-sentence order
".
5
116 Section 105A.13 of the
Criminal Code
(heading)
6
Omit "
continuing detention order
", substitute "
post-sentence order
".
7
117 Subsection 105A.13(1) of the
Criminal Code
8
Omit "continuing detention order", substitute "post-sentence order".
9
118 Paragraph 105A.13(2)(a) of the
Criminal Code
10
Repeal the paragraph, substitute:
11
(a) the level of the offender's compliance with any conditions
12
(however described) to which he or she is or has been subject
13
while:
14
(i) on release on parole for any offence; or
15
(ii) subject to an extended supervision order, interim
16
supervision order or control order; and
17
119 Section 105A.14 of the
Criminal Code
18
Omit "continuing detention order", substitute "post-sentence order".
19
120 After section 105A.14 of the
Criminal Code
20
Insert:
21
105A.14A Giving copies of applications etc. to terrorist offenders
22
(1) This section applies if the AFP Minister, or a legal representative
23
of the AFP Minister, (the
applicant
) applies to a Supreme Court of
24
a State or Territory for:
25
(a) a post-sentence order or interim post-sentence order; or
26
(b) a variation of an extended supervision order or interim
27
supervision order under section 105A.9B; or
28
(c) a review of a post-sentence order;
29
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in relation to a terrorist offender.
1
(2) Within 2 business days after the application is made, the applicant
2
must (subject to sections 105A.14B to 105A.14D) give a copy of
3
the application to the offender personally, and to the offender's
4
legal representative.
5
Note:
For giving documents to a terrorist offender who is in prison, see
6
section 105A.15.
7
(3) If the Court seeks material from the AFP Minister under
8
paragraph 105A.7(2)(a), 105A.9(8)(a) or 105A.12(5)(b), within 2
9
business days after the material is provided to the Court, the
10
applicant must (subject to sections 105A.14B to 105A.14D) give a
11
copy of the material to the offender personally, and to the
12
offender's legal representative.
13
(4) If:
14
(a) the post-sentence order or interim post sentence order is
15
made or varied; and
16
(b) neither the offender nor a legal representative of the offender
17
is present during the proceedings in which the order is made
18
or varied;
19
the applicant must (subject to sections 105A.14B to 105A.14D),
20
within 2 business days after the order is made or varied, give to the
21
offender personally, and the offender's legal representative, a copy
22
of the order that is made, or of the order as varied.
23
105A.14B Information excluded from application or material--
24
national security information
25
(1) This section applies if the AFP Minister, or a legal representative
26
of the AFP Minister, (the
applicant
) gives a copy of an application
27
or material to a terrorist offender, or a terrorist offender's legal
28
representative, (the
recipient
) under subsection 105A.14A(2) or
29
(3).
30
(2) The applicant is not required to include any information in the
31
application or material if a Minister (the
decision-maker
) is likely
32
to take:
33
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(a) any actions in relation to the information under the
National
1
Security Information (Criminal and Civil Proceedings) Act
2
2004
; or
3
(b) seek an order of a court preventing or limiting disclosure of
4
the information.
5
(3) However, the applicant must (subject to subsection (4)) give the
6
recipient personally a complete copy of the application or material
7
if any of the following events occurs:
8
(a) the decision-maker decides not to take any of the actions
9
referred to in paragraph (2)(a) or (b);
10
(b) a Minister gives a certificate under Subdivision C of
11
Division 2 of Part 3A of the
National Security Information
12
(Criminal and Civil Proceedings) Act 2004
;
13
(c) a court makes an order in relation to any action taken by the
14
decision-maker under paragraph (2)(a) or (b).
15
(4) Subsection (3) is subject to:
16
(a) the certificate referred to in paragraph (3)(b); or
17
(b) any order made by a court.
18
(5) The copy of the application or material must be given under
19
subsection (3):
20
(a) within 2 business days of the event referred to in
21
subsection (3); and
22
(b) within a reasonable period before:
23
(i) if the application is for a post-sentence order--the
24
preliminary hearing referred to in section 105A.6; or
25
(ii) if the application is for an interim detention order--the
26
hearing referred to in subsection 105A.9(1A); or
27
(iii) if the application is for an interim supervision order--
28
the hearing referred to in subsection 105A.9A(2); or
29
(iv) if the application is for a variation or review of a
30
post-sentence order, or for a variation of an interim
31
post-sentence order--the hearing on the application.
32
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105A.14C Information excluded from application or material--
1
public interest immunity
2
(1) This section applies if:
3
(a) the AFP Minister, or a legal representative of the AFP
4
Minister, (the
applicant
) gives a copy of an application or
5
material to a terrorist offender, or a terrorist offender's legal
6
representative, under subsection 105A.14A(2) or (3); and
7
(b) information (however described) is excluded from the
8
application or material on the basis of public interest
9
immunity.
10
(2) The applicant must give written notice to the offender, and the
11
offender's legal representative, personally stating that the
12
information has been excluded on the basis of public interest
13
immunity. The notice must be given at the time that a copy of the
14
application or material is given to the offender or legal
15
representative.
16
(3) To avoid doubt, nothing in this section imposes an obligation on
17
the offender to satisfy the Court that a claim of public interest
18
immunity should not be upheld.
19
Note:
The offender may seek to access any information, material or facts
20
that are likely to be protected by public interest immunity (for
21
example, through a subpoena). Under the law of public interest
22
immunity, the person claiming the immunity must make and
23
substantiate the claim, and satisfy the Court that the claim should be
24
upheld.
25
105A.14D Information excluded from application and material--
26
terrorism material
27
(1) This section applies if:
28
(a) the AFP Minister, or a legal representative of the AFP
29
Minister, (the
applicant
) is required to give a copy of an
30
application or material to a terrorist offender, or a terrorist
31
offender's legal representative, under
32
subsection 105A.14A(2) or (3); and
33
(b) the application or material contains other material (
terrorism
34
material
) that:
35
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(i) advocates support for engaging in any terrorist acts or
1
violent extremism; or
2
(ii) relates to planning or preparing for, or engaging in, any
3
terrorist acts or violent extremism; or
4
(iii) advocates joining or associating with a terrorist
5
organisation.
6
(2) The applicant may apply to the Supreme Court of a State or
7
Territory referred to in subsection 105A.14A(1) for an order in
8
relation to the manner in which the terrorism material is to be dealt
9
with.
10
(3) The Court may make an order in relation to the manner in which
11
the terrorism material is to be dealt with, including that the
12
terrorism material:
13
(a) be provided to the offender's legal representative; or
14
(b) be available for inspection by the offender at specified
15
premises.
16
121 Section 105A.15 of the
Criminal Code
(heading)
17
Repeal the heading, substitute:
18
105A.15 Giving documents to terrorist offenders who are in prison
19
122 Paragraph 105A.15A(1)(a) of the
Criminal Code
20
Repeal the paragraph, substitute:
21
(a) an application is made to a Supreme Court of a State or
22
Territory for a continuing detention order, or a review of a
23
continuing detention order, in relation to a terrorist offender;
24
and
25
123 Section 105A.16 of the
Criminal Code
26
Omit "continuing detention order" (wherever occurring), substitute
27
"post-sentence order".
28
124 At the end of section 105A.16 of the
Criminal Code
29
Add:
30
Note:
See also subsection 105A.2(2) for when a Court makes a
31
post-sentence order decision.
32
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125 Paragraphs 105A.17(1)(a) and (2)(a) of the
Criminal Code
1
Omit "continuing detention order", substitute "post-sentence order".
2
126 Paragraph 105A.17(2)(b) of the
Criminal Code
3
Repeal the paragraph.
4
127 Subsection 105A.18(1) of the
Criminal Code
5
Omit "continuing detention order" (first occurring), substitute
6
"post-sentence order".
7
128 Subparagraphs 105A.18(1)(a)(i), (iii) and (v) of the
8
Criminal Code
9
Omit "continuing detention order", substitute "post-sentence order".
10
129 Paragraph 105A.18(1)(b) of the
Criminal Code
11
Omit ", the offender is released from custody because", substitute "one
12
of the following events occurs".
13
130 Subparagraphs 105A.18(1)(b)(i) to (ii) of the
Criminal
14
Code
15
Repeal the subparagraphs, substitute:
16
(i) a sentence of imprisonment referred to in
17
subsection 105A.3A(1) or paragraph 105A.3A(3)(a),
18
(4)(a), (5)(d) or (7)(a) ends;
19
(ii) a post-sentence order or interim post-sentence order in
20
relation to the offender ceases to be in force;
21
(iia) the interim control order referred to in
22
subparagraph 105A.3A(8)(c)(i) or confirmed control
23
order referred to in subparagraph 105A.3A(8)(c)(ii) in
24
relation to the offender ceases to be in force;
25
131 Subparagraph 105A.18(1)(b)(iii) of the
Criminal Code
26
Omit "continuing detention order", substitute "post-sentence order".
27
132 Subsection 105A.18(2) of the
Criminal Code
28
Repeal the subsection, substitute:
29
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(2) For the purposes of the post-sentence order proceeding, the
1
offender is taken to remain a terrorist offender:
2
(a) who is detained in custody serving a sentence of
3
imprisonment; or
4
(b) in relation to whom a post-sentence order, interim
5
post-sentence order or control order is in force;
6
despite being released from custody or despite the period for which
7
the order is in force ending.
8
133 After Subdivision E of Division 105A of the
Criminal
9
Code
10
Insert:
11
Subdivision EA--Offences relating to extended supervision
12
orders and interim supervision orders
13
105A.18A Offence for contravening an extended supervision order
14
or an interim supervision order
15
(1) A person commits an offence if:
16
(a) an extended supervision order or an interim supervision order
17
is in force in relation to the person, and not suspended under
18
section 105A.18C; and
19
(b) the person engages in conduct; and
20
(c) the conduct contravenes a condition the order imposes; and
21
(d) if the condition is an exemption condition--there is no
22
exemption in force at the time the conduct is engaged in that
23
exempts the offender from the application of the condition.
24
Note:
A court that is sentencing a person who has been convicted of an
25
offence against this section may be required to warn the person about
26
continuing detention orders and extended supervision orders (see
27
section 105A.23).
28
Penalty: Imprisonment for 5 years.
29
(2) A person commits an offence if:
30
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(a) an extended supervision order or an interim supervision order
1
is in force in relation to the person, and not suspended under
2
section 105A.18C; and
3
(b) the order includes an exemption condition; and
4
(c) an exemption is in force in relation to the condition; and
5
(d) a direction is specified in relation to the exemption condition
6
under subparagraph 105A.7C(5)(b)(ii); and
7
(e) the person engages in conduct; and
8
(f) the conduct contravenes the direction.
9
Note:
A court that is sentencing a person who has been convicted of an
10
offence against this section may be required to warn the person about
11
continuing detention orders and extended supervision orders (see
12
section 105A.23).
13
Penalty: Imprisonment for 5 years.
14
105A.18B Offence relating to monitoring devices
15
(1) A person commits an offence if:
16
(a) an extended supervision order or interim supervision order is
17
in force in relation to the person, and not suspended under
18
section 105A.18C; and
19
(b) the order requires the person to wear a monitoring device;
20
and
21
(c) the person engages in conduct; and
22
(d) the conduct results in interference with, or disruption or loss
23
of, a function of the monitoring device or any related
24
monitoring equipment.
25
Note:
A court that is sentencing a person who has been convicted of an
26
offence against this subsection may be required to warn the person
27
about continuing detention orders and extended supervision orders
28
(see section 105A.23).
29
Penalty: Imprisonment for 5 years.
30
(2) A person (the
perpetrator
) commits an offence if:
31
(a) the perpetrator knows that, or is reckless as to whether, an
32
extended supervision order or interim supervision order is in
33
force in relation to another person; and
34
(b) the order is not suspended under section 105A.18C; and
35
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(c) the perpetrator knows that, or is reckless as to whether, the
1
order requires the other person to wear a monitoring device;
2
and
3
(d) the perpetrator engages in conduct; and
4
(e) the conduct results in interference with, or disruption or loss
5
of, a function of the monitoring device or any related
6
monitoring equipment.
7
Penalty: Imprisonment for 5 years.
8
(3) Strict liability applies in relation to paragraph (2)(b).
9
134 Before section 105A.19 of the
Criminal Code
10
Insert:
11
105A.18C Effect of detention on post-sentence order
12
Effect of detention on post-sentence orders
13
(1) A continuing detention order or interim detention order in relation
14
to a terrorist offender is suspended during the period that the
15
offender is detained in custody other than as a result of the order.
16
Note:
For the definition of
detained in custody
, see subsection 100.1(1).
17
(2) An extended supervision order or interim supervision order in
18
relation to a terrorist offender is suspended during the period that
19
the offender is detained in custody.
20
Effect of suspension
21
(3) A post-sentence order or interim post-sentence order continues to
22
be in force during the period in which the order is suspended.
23
(4) However, the offender is not required to comply with any
24
condition in an extended supervision order or interim supervision
25
order during the period that the order is suspended.
26
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105A.18D AFP Minister may direct terrorist offenders to be
1
assessed
2
(1) The AFP Minister may direct any of the following terrorist
3
offenders to be subject to an assessment of the risk of the person
4
committing a serious Part 5.3 offence:
5
(a) a terrorist offender in relation to whom an application for a
6
post-sentence order could be made;
7
(b) a terrorist offender in relation to whom a post-sentence order
8
is in force.
9
(2) The AFP Minister may appoint a relevant expert to conduct the
10
assessment, and provide a report, for the purposes of determining
11
whether:
12
(a) an application for a post-sentence order or interim
13
post-sentence order in relation to the offender should be
14
made; or
15
(b) an application for a variation or review of a post-sentence
16
order or interim post-sentence order in relation to the
17
offender should be made.
18
(3) The relevant expert who is appointed must:
19
(a) conduct an assessment of the risk of the offender committing
20
a serious Part 5.3 offence; and
21
(b) provide a report of the expert's assessment to the AFP
22
Minister.
23
Note:
For giving documents to a terrorist offender who is in prison, see
24
section 105A.15.
25
Attendance and participation at assessment
26
(4) The offender must attend the assessment.
27
Note:
The assessment may be conducted over a number of sessions.
28
(5) The answer to a question or information given at the assessment,
29
and answering a question or giving information at the assessment,
30
are not admissible in evidence against the offender in:
31
(a) any criminal proceedings, except any proceedings relating to
32
sentencing for an offence against Division 104 or this
33
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Division (including any appeal in relation to those
1
proceedings); or
2
(b) any civil proceedings against the offender, except
3
proceedings under Division 104 or this Division (including
4
any appeal in relation to those proceedings).
5
(6) The AFP Minister must ensure that the effect of subsections (4),
6
(5) and (8) is explained to the offender.
7
Contents of report
8
(7) The expert's report may include any one or more of the following
9
matters:
10
(a) the expert's assessment of the risk of the offender committing
11
a serious Part 5.3 offence;
12
(b) reasons for that assessment;
13
(c) the pattern or progression to date of behaviour on the part of
14
the offender in relation to serious Part 5.3 offences, and an
15
indication of the nature of any likely future behaviour on the
16
offender's part in relation to serious Part 5.3 offences;
17
(d) efforts made to date by the offender to address the causes of
18
the offender's behaviour in relation to serious Part 5.3
19
offences, including whether the offender has actively
20
participated in any rehabilitation or treatment programs;
21
(e) if the offender has participated in any rehabilitation or
22
treatment programs--whether or not this participation has
23
had a positive effect on the offender;
24
(f) any relevant background of the offender, including
25
developmental and social factors;
26
(g) factors that might increase or decrease any risks that have
27
been identified of the offender committing a serious Part 5.3
28
offence;
29
(h) any other matters the expert considers relevant.
30
Assessments conducted for certain purposes
31
(8) Without limiting subsection (5), an assessment of an offender
32
conducted under paragraph (3)(a), and the report of the assessment,
33
may be taken into account:
34
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(a) by the Minister in determining whether to make any
1
application for a post-sentence order or interim post-sentence
2
order, or any application for a variation or review of a
3
post-sentence order or interim post-sentence order, in relation
4
to the offender; and
5
(b) by the Court in proceedings to make or vary any
6
post-sentence order or interim post-sentence order, or to
7
review any post-sentence order, in relation to the offender.
8
135 Subsection 105A.19(1) of the
Criminal Code
9
After "information", insert "(including personal information)".
10
136 After subsection 105A.19(2) of the
Criminal Code
11
Insert:
12
(2A) Despite any law of the Commonwealth, a State or a Territory
13
(whether written or unwritten), the person may provide the
14
information to the AFP Minister.
15
137 After section 105A.19 of the
Criminal Code
16
Insert:
17
105A.19A Sharing information relating to supervision orders
18
(1) An AFP member may disclose information (including personal
19
information), to a person employed or engaged by a body covered
20
by an arrangement under subsection 105A.21A(1), for the purpose
21
of facilitating the performance of any functions or the exercise of
22
any powers in relation to extended supervision orders or interim
23
supervision orders.
24
(2) A person (the
first person
) employed or engaged by a body
25
covered by an arrangement under subsection 105A.21A(1) may
26
disclose information (including personal information) to another
27
person if the first person reasonably believes that the disclosure is
28
authorised by the arrangement.
29
(3) This section applies despite any other law of the Commonwealth, a
30
State or a Territory (whether written or unwritten).
31
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138 Subsection 105A.21(2) of the
Criminal Code
1
Omit "at", substitute "in".
2
139 After section 105A.21 of the
Criminal Code
3
Insert:
4
105A.21A Arrangements by Australian Federal Police
5
Commissioner for functions and powers relating to
6
supervision orders
7
(1) The Commissioner of the Australian Federal Police may make an
8
arrangement with a State or Territory, or any other body, for the
9
performance of any functions or the exercise of any powers in
10
relation to extended supervision orders or interim supervision
11
orders.
12
(2) Without limiting subsection (1), for the purposes of
13
section 105A.19A, the arrangement may authorise a person
14
employed or engaged by a body covered by the arrangement to
15
disclose information (including personal information).
16
(3) The Commissioner of the Australian Federal Police may, in
17
writing, delegate to a senior AFP member the Commissioner's
18
powers under subsection (1).
19
140 Paragraph 105A.22(2)(a) of the
Criminal Code
20
Omit "continuing detention orders", substitute "each kind of
21
post-sentence order".
22
141 Paragraph 105A.22(2)(b) of the
Criminal Code
23
Omit "interim detention orders", substitute "each kind of interim
24
post-sentence order".
25
142 Paragraph 105A.22(2)(c) of the
Criminal Code
26
Omit "continuing detention orders", substitute "each kind of
27
post-sentence order".
28
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143 Paragraph 105A.22(2)(d) of the
Criminal Code
1
Omit "interim detention orders", substitute "each kind of interim
2
post-sentence order".
3
144 Paragraph 105A.22(2)(e) of the
Criminal Code
4
Omit "continuing detention orders", substitute "each kind of
5
post-sentence order".
6
145 After paragraph 105A.22(2)(e) of the
Criminal Code
7
Insert:
8
(ea) applications for review of each kind of post-sentence order
9
made by the AFP Minister, or a legal representative of the
10
AFP Minister, during the year;
11
146 Paragraphs 105A.22(2)(f) and (g) of the
Criminal Code
12
Omit "continuing detention orders", substitute "each kind of
13
post-sentence order".
14
147 Paragraph 105A.22(2)(h) of the
Criminal Code
15
Omit "continuing detention orders revoked", substitute "post-sentence
16
orders revoked (including by operation of this Act)".
17
148 Section 105A.23 of the
Criminal Code
(heading)
18
Omit "
continuing detention orders
", substitute "
post-sentence
19
orders
".
20
149 Subsection 105A.23(1) of the
Criminal Code
21
Repeal the subsection, substitute:
22
(1) This section applies if:
23
(a) a court is sentencing a person who has been convicted of:
24
(i) an offence referred to in paragraph 105A.3(1)(a); or
25
(ii) an offence against section 105A.18A or
26
subsection 105A.18B(1) if paragraph 105A.3A(4)(b)
27
applies in relation to the person; or
28
(b) both of the following apply:
29
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(i) a court is sentencing a person who has been convicted
1
of an offence referred to in section 104.27 or
2
subsection 104.27A(1);
3
(ii) the Director of Public Prosecutions informs the court
4
that a warning must be given under this section.
5
(1A) The court must:
6
(a) warn the person that an application may be made under this
7
Division for:
8
(i) a continuing detention order requiring the person to be
9
detained in a prison after the end of the person's
10
sentence; or
11
(ii) an extended supervision order imposing conditions on
12
the person after the end of the person's sentence, a
13
contravention of which is an offence; and
14
(b) inform the person that the application may be made:
15
(i) if paragraph (1)(a) applies--before the end of the
16
sentence for that offence, or before the end of any later
17
sentence if the person is continuously detained in
18
custody; or
19
(ii) if paragraph (1)(b) applies--before the end of the
20
sentence for the offence referred to in that paragraph.
21
150 Section 105A.25 of the
Criminal Code
22
Repeal the section, substitute:
23
105A.25 Sunset provision
24
A post-sentence order, and an interim post-sentence order, cannot
25
be applied for, affirmed or made, after 7 December 2026.
26
151 In the appropriate position in Division 106 of the
Criminal
27
Code
28
Insert:
29
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106.11 Application provision for certain amendments in the
1
Counter-Terrorism Legislation Amendment (High Risk
2
Terrorist Offenders) Act 2020
3
Amendments relating to control orders
4
(1) The following apply in relation to any interim control order or
5
confirmed control order (whether in force before or after this
6
section commences):
7
(a) the amendments of subsections 104.5(3), (3A) and (3B) made
8
by Schedule 1 to the
Counter-Terrorism Legislation
9
Amendment (High Risk Terrorist Offenders) Act 2020
;
10
(b) sections 104.5A, 104.28C and 104.28D as inserted by that
11
Schedule.
12
Arrangements for electronic monitoring
13
(2) Section 104.28D does not affect the validity of:
14
(a) any agreement in relation to the electronic monitoring of
15
persons under control orders that was in force immediately
16
before this section commences; or
17
(b) any actions taken under or for the purposes of such an
18
agreement before this section commences.
19
(3) The amendments of Division 105A made by Schedule 1 to the
20
Counter-Terrorism Legislation Amendment (High Risk Terrorist
21
Offenders) Act 2020
apply (subject to this section) in relation to:
22
(a) any person who, on the day this section commences, is
23
detained in custody; and
24
(b) any person who, on or after that day, begins a sentence of
25
imprisonment for an offence referred to in:
26
(i) paragraph 105A.3(1)(a) of this Code; or
27
(ii) paragraph 105A.3A(5)(d) of this Code;
28
(whether the conviction for the offence occurred before, on
29
or after that day); and
30
(c) any person who meets the conditions in
31
subsection 105A.3A(8) of this Code on the day this section
32
commences.
33
Note:
For the definition of
detained in custody
, see subsection 100.1(1).
34
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(4) To avoid doubt, the amendments of Division 105A made by
1
Schedule 1 to the
Counter-Terrorism Legislation Amendment
2
(High Risk Terrorist Offenders) Act 2020
apply in relation to a
3
person referred to in paragraph (3)(a) or (c), or
4
subparagraph (3)(b)(ii), of this section whose sentence of
5
imprisonment for an offence referred to in paragraph 105A.3(1)(a)
6
of this Code ended before the day this section commences.
7
Continuing applications on foot at commencement
8
(5) An application for:
9
(a) a continuing detention order or interim detention order; or
10
(b) a review of a continuing detention order;
11
made under Division 105A before this section commences that has
12
not been finally determined at that time is taken to be an
13
application made under that Division as amended by the
14
Counter-Terrorism Legislation Amendment (High Risk Terrorist
15
Offenders) Act 2020
.
16
Assessments of terrorist offenders
17
(6) Subsection 105A.6(5A), as in force immediately after this section
18
commences, applies in relation to assessments undertaken after that
19
time.
20
(7) Subsection 105A.6(9), as in force immediately after this section
21
commences, applies in relation to assessments undertaken before
22
or after that time.
23
Photographs and impressions of fingerprints
24
(8) Section 105A.7D applies in relation to photographs and
25
impressions of fingerprints taken after this section commences.
26
Providing applications and material
27
(9) Sections 105A.14A to 105A.14D apply in relation to applications
28
made after this section commences.
29
Extended supervision orders
Schedule 1
Main amendments
Part 1
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
73
AFP Minister may direct terrorist offenders to be assessed
1
(10) Section 105A.18D applies in relation to any terrorist offender who
2
is described in subsection 105A.18D(1) at the time, or any time
3
after, this section commences.
4
Annual reports
5
(11) The amendments of section 105A.22 apply in relation to any
6
30 June that occurs after this section commences.
7
Sentencing warning
8
(12) Section 105A.23 applies in relation to any sentence imposed after
9
this section commences.
10
Other amendments
11
(13) The amendments of sections 105A.11, 105A.12 and 105A.12A,
12
and section 105A.18C, apply in relation to:
13
(a) any post-sentence order that is in force when this section
14
commences; or
15
(b) any post-sentence order that is made after that time.
16
152 Subsection 117.1(2) of the
Criminal Code
(note)
17
After "continuing detention orders", insert "and extended supervision
18
orders".
19
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
74
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
Part 2--Main consequential amendments
1
Administrative Decisions (Judicial Review) Act 1977
2
153 After paragraph (dac) of Schedule 1
3
Insert:
4
(dad) decisions of the AFP Minister under Division 105A of the
5
Criminal Code
;
6
Australian Security Intelligence Organisation Act 1979
7
154 Subsection 35(2)
8
Repeal the subsection, substitute:
9
(2) To avoid doubt, none of the following is prescribed administrative
10
action:
11
(a) an obligation, prohibition or restriction imposed on a person
12
by a control order made under Division 104 of the
Criminal
13
Code
(control orders);
14
(b) a condition imposed on a person by an extended supervision
15
order or interim supervision order under Division 105A of
16
the
Criminal Code
(post-sentence orders);
17
(c) action covered by any of subsections 105A.7E(2) to (5) of the
18
Criminal Code
(actions relating to electronic monitoring).
19
Crimes Act 1914
20
155 Part IAAB (heading)
21
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
22
156 Section 3ZZJA
23
Repeal the section, substitute:
24
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
75
3ZZJA Simplified outline of this Part
1
A Part 5.3 supervisory order is any one of the following orders
2
made under Part 5.3 of the Criminal Code:
3
(a)
an interim control order;
4
(b)
a confirmed control order;
5
(c)
an interim supervision order;
6
(d)
an extended supervision order.
7
If a Part 5.3 supervisory order is in force in relation to a person,
8
and the person has a prescribed connection with premises, a
9
constable may enter and search the premises if:
10
(a)
the person is the occupier of the premises and consents
11
to the entry; or
12
(b)
the entry is made under a monitoring warrant.
13
If a Part 5.3 supervisory order is in force in relation to a person, a
14
constable may conduct an ordinary search or a frisk search of the
15
person if:
16
(a)
the person consents to the search; or
17
(b)
the search is conducted under a monitoring warrant.
18
A search must be for any of the following purposes (most of which
19
are called Part 5.3 objects):
20
(a)
the protection of the public from a terrorist act;
21
(b)
the prevention of the provision of support for, or the
22
facilitation of, a terrorist act;
23
(c)
the prevention of the provision of support for, or the
24
facilitation of, the engagement in a hostile activity in a
25
foreign country;
26
(d)
the protection of the community from the unacceptable
27
risk of a terrorist offender committing a serious Part 5.3
28
offence;
29
(e)
determining whether the Part 5.3 supervisory order has
30
been, or is being, complied with.
31
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
76
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
157 Section 3ZZJB
1
Insert:
2
extended supervision order
has the meaning given by
3
section 105A.2 of the
Criminal Code
.
4
interim supervision order
has the meaning given by
5
section 105A.2 of the
Criminal Code
.
6
Part 5.3 object
means:
7
(a) in relation to a control order--any of the following:
8
(i) the protection of the public from a terrorist act;
9
(ii) the prevention of the provision of support for, or the
10
facilitation of, a terrorist act;
11
(iii) the prevention of the provision of support for, or the
12
facilitation of, the engagement in a hostile activity in a
13
foreign country; or
14
(b) in relation to an extended supervision order or interim
15
supervision order--the protection of the community from the
16
unacceptable risk of a terrorist offender committing a serious
17
Part 5.3 offence.
18
Part 5.3 supervisory order
means:
19
(a) a control order; or
20
(b) an extended supervision order or interim supervision order.
21
serious Part 5.3 offence
has the meaning given by section 105A.2
22
of the
Criminal Code
.
23
terrorist offender
has the meaning given by section 105A.2 of the
24
Criminal Code
.
25
158 Paragraph 3ZZKA(1)(a)
26
Omit "control order", substitute "Part 5.3 supervisory order".
27
159 Subsection 3ZZKA(1)
28
Omit "any of", substitute "either of".
29
160 Paragraphs 3ZZKA(1)(c) to (f)
30
Repeal the paragraphs, substitute:
31
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
77
(c) achieving a Part 5.3 object;
1
(d) determining whether the Part 5.3 supervisory order has been,
2
or is being, complied with.
3
161 Paragraphs 3ZZKC(3)(a) to (d)
4
Repeal the paragraphs, substitute:
5
(a) a Part 5.3 object; or
6
(b) determining whether the relevant Part 5.3 supervisory order
7
has been, or is being, complied with.
8
162 Paragraphs 3ZZKE(2)(a) to (d)
9
Repeal the paragraphs, substitute:
10
(a) achieving a Part 5.3 object; or
11
(b) determining whether the relevant Part 5.3 supervisory order
12
has been, or is being, complied with.
13
163 Paragraphs 3ZZKE(3)(c) to (f)
14
Repeal the paragraphs, substitute:
15
(c) achieving a Part 5.3 object; or
16
(d) determining whether the relevant Part 5.3 supervisory order
17
has been, or is being, complied with.
18
164 Division 3 of Part IAAB (heading)
19
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
20
165 Subsection 3ZZLA(1)
21
Omit "control order" (first occurring), substitute "Part 5.3 supervisory
22
order".
23
166 Subsection 3ZZLA(1)
24
Omit "any of", substitute "either of".
25
167 Paragraphs 3ZZLA(1)(a) to (d)
26
Repeal the paragraphs, substitute:
27
(a) achieving a Part 5.3 object;
28
(b) determining whether the Part 5.3 supervisory order has been,
29
or is being, complied with.
30
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
78
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
168 Section 3ZZNH (heading)
1
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
2
169 Paragraph 3ZZNH(1)(b)
3
Omit "control order", substitute "Part 5.3 supervisory order".
4
170 Paragraph 3ZZOA(2)(a)
5
Omit "control order", substitute "Part 5.3 supervisory order".
6
171 Subparagraphs 3ZZOA(2)(c)(iv) to (vii)
7
Repeal the subparagraphs, substitute:
8
(iv) achieving a Part 5.3 object; or
9
(v) determining whether the Part 5.3 supervisory order has
10
been, or is being, complied with.
11
172 Paragraphs 3ZZOA(4)(a) to (f)
12
Repeal the paragraphs, substitute:
13
(a) in relation to a control order:
14
(i) the possibility that the person has engaged, is engaging,
15
or will engage, in a terrorist act;
16
(ii) the possibility that the person has provided, is
17
providing, or will provide, support for a terrorist act;
18
(iii) the possibility that the person has facilitated, is
19
facilitating, or will facilitate, a terrorist act;
20
(iv) the possibility that the person has provided, is
21
providing, or will provide, support for the engagement
22
in a hostile activity in a foreign country;
23
(v) the possibility that the person has facilitated, is
24
facilitating, or will facilitate, the engagement in a hostile
25
activity in a foreign country;
26
(b) in relation to an extended supervision order or interim
27
supervision order--the possibility that the person has
28
committed, is committing, or will commit, a serious Part 5.3
29
offence;
30
(f) in relation to any Part 5.3 supervisory order--the possibility
31
that the person has contravened, is contravening, or will
32
contravene, the order;
33
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
79
173 Paragraphs 3ZZOA(5)(i) and (k)
1
Omit "control order", substitute "Part 5.3 supervisory order".
2
174 Paragraph 3ZZOA(5)(l)
3
Repeal the paragraph, substitute:
4
(l) state whether the Part 5.3 supervisory order is:
5
(i) an interim control order; or
6
(ii) a confirmed control order; or
7
(iii) an interim supervision order; or
8
(iv) an extended supervision order; and
9
175 Paragraphs 3ZZOA(5)(m) and (n)
10
Omit "control order", substitute "Part 5.3 supervisory order".
11
176 Paragraphs 3ZZOA(5)(o) to (q)
12
Repeal the paragraphs, substitute:
13
(o) if the Part 5.3 supervisory order is an interim control order--
14
specify the date the order was served on the person; and
15
(p) if the Part 5.3 supervisory order is an extended supervision
16
order or an interim supervision order--specify when the
17
order comes into force; and
18
(q) if the Part 5.3 supervisory order is a confirmed control order,
19
an extended supervision order or an interim supervision
20
order--specify the end of the period during which the order
21
is in force; and
22
(r) if the warrant is issued for the purposes of determining
23
whether the Part 5.3 supervisory order has been, or is being,
24
complied with--include, in an attachment to the warrant, a
25
copy of the order.
26
177 Paragraph 3ZZOB(2)(a)
27
Omit "control order", substitute "Part 5.3 supervisory order".
28
178 Subparagraphs 3ZZOB(2)(b)(iii) to (vi)
29
Repeal the subparagraphs, substitute:
30
(iii) achieving a Part 5.3 object; or
31
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
80
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(iv) determining whether the Part 5.3 supervisory order has
1
been, or is being, complied with.
2
179 Paragraphs 3ZZOB(4)(a) to (f)
3
Repeal the paragraphs, substitute:
4
(a) in relation to a control order:
5
(i) the possibility that the person has engaged, is engaging,
6
or will engage, in a terrorist act;
7
(ii) the possibility that the person has provided, is
8
providing, or will provide, support for a terrorist act;
9
(iii) the possibility that the person has facilitated, is
10
facilitating, or will facilitate, a terrorist act;
11
(iv) the possibility that the person has provided, is
12
providing, or will provide, support for the engagement
13
in a hostile activity in a foreign country;
14
(v) the possibility that the person has facilitated, is
15
facilitating, or will facilitate, the engagement in a hostile
16
activity in a foreign country;
17
(b) in relation to an extended supervision order or interim
18
supervision order--the possibility that the person has
19
committed, is committing, or will commit, a serious Part 5.3
20
offence;
21
(c) in relation to any Part 5.3 supervisory order--the possibility
22
that the person has contravened, is contravening, or will
23
contravene, the order;
24
180 Paragraphs 3ZZOB(5)(h) and (i)
25
Omit "control order", substitute "Part 5.3 supervisory order".
26
181 Paragraph 3ZZOB(5)(j)
27
Repeal the paragraph, substitute:
28
(j) state whether the Part 5.3 supervisory order is:
29
(i) an interim control order; or
30
(ii) a confirmed control order; or
31
(iii) an interim supervision order; or
32
(iv) an extended supervision order; and
33
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
81
182 Paragraphs 3ZZOB(5)(k) and (l)
1
Omit "control order", substitute "Part 5.3 supervisory order".
2
183 Paragraphs 3ZZOB(5)(m) to (o)
3
Repeal the paragraphs, substitute:
4
(m) if the Part 5.3 supervisory order is an interim control order--
5
specify the date the order was served on the person; and
6
(n) if the Part 5.3 supervisory order is an extended supervision
7
order or an interim supervision order--specify when the
8
order comes into force; and
9
(o) if the Part 5.3 supervisory order is a confirmed control order,
10
an extended supervision order or an interim supervision
11
order--specify the end of the period during which the order
12
is in force; and
13
(p) if the warrant is issued for the purposes of determining
14
whether the Part 5.3 supervisory order has been, or is being,
15
complied with--include, in an attachment to the warrant, a
16
copy of the order.
17
184 Section 3ZZOD (heading)
18
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
19
185 Paragraph 3ZZOD(1)(a)
20
Omit "control order", substitute "Part 5.3 supervisory order".
21
186 Paragraph 3ZZOD(1)(b)
22
Repeal the paragraph, substitute:
23
(b) any of the following happens:
24
(i) the Part 5.3 supervisory order is a control order that is
25
revoked;
26
(ii) the Part 5.3 supervisory order is an extended
27
supervision order or interim supervision order in
28
relation to a terrorist offender that is revoked and no
29
further extended supervision order or interim
30
supervision order is made in relation to the terrorist
31
offender;
32
(iii) the Part 5.3 supervisory order is an interim control order
33
that a court declares to be void;
34
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
82
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(iv) a court varies the Part 5.3 supervisory order by
1
removing one or more obligations, prohibitions,
2
restrictions or conditions imposed on the person by the
3
order;
4
187 Paragraphs 3ZZRC(2)(a) to (d)
5
Repeal the paragraphs, substitute:
6
(a) achieving a Part 5.3 object;
7
(b) determining whether the relevant Part 5.3 supervisory order
8
has been, or is being, complied with.
9
188 Paragraphs 3ZZRD(a) to (d)
10
Repeal the paragraphs, substitute:
11
(a) achieving a Part 5.3 object;
12
(b) determining whether the relevant Part 5.3 supervisory order
13
has been, or is being, complied with;
14
National Security Information (Criminal and Civil
15
Proceedings) Act 2004
16
189 Section 7
17
Insert:
18
CDO
or
continuing detention order
means a continuing detention
19
order made under Division 105A of the
Criminal Code
.
20
control order
has the meaning given by section 100.1 of the
21
Criminal Code
.
22
Division 105A ESO proceeding
means a proceeding under
23
Division 105A of the
Criminal Code
in relation to an application:
24
(a) for an extended supervision order in relation to a terrorist
25
offender; or
26
(b) for a variation of an extended supervision order in relation to
27
a terrorist offender; or
28
(c) for a review of an extended supervision order in relation to a
29
terrorist offender; or
30
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
83
(d) to a Supreme Court of a State or Territory for a continuing
1
detention order in relation to a terrorist offender if, in the
2
proceeding:
3
(i) the Court is not satisfied as mentioned in
4
paragraph 105A.7(1)(b) or (c) of the Code; and
5
(ii) the Court is considering making an extended
6
supervision order as mentioned in
7
paragraph 105A.7(2)(b).
8
Note:
See also the definition of
ESO
or
extended supervision order
in this
9
section.
10
ESO
or
extended supervision order
means:
11
(a) an order made under subsection 105A.7A(1) of the
Criminal
12
Code
; or
13
(b) an interim supervision order made under Division 105A of
14
the
Criminal Code
.
15
terrorist offender
has the meaning given by section 105A.2 of the
16
Criminal Code
.
17
190 Paragraph 38I(1)(b)
18
Repeal the paragraph, substitute:
19
(b) if the court makes an order under subsection 38J(2), (3) or (4)
20
that the closed hearing requirements in this section are to
21
apply when information that is the subject of the order is
22
disclosed to the court at a hearing:
23
(i) in a proceeding under Division 104 of the
Criminal
24
Code
(about control orders); or
25
(ii) in a Division 105A ESO proceeding;
26
when the information is disclosed to the court at that hearing.
27
191 Subsection 38I(1) (note)
28
Omit "Note", substitute "Note 1".
29
192 At the end of subsection 38I(1)
30
Add:
31
Note 2:
The court may not make an order under subsection 38J(2), (3) or (4) if
32
the proceeding under Division 105A of the
Criminal Code
relates to
33
an application for a CDO (see subsections 38J(1) and (1A) of this Act,
34
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
84
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
and the definition of
Division 105A ESO proceeding
in section 7 of
1
this Act). If the court decides not to make the CDO and hears evidence
2
in a closed hearing in relation to an ESO, the court could reconsider
3
whether to make the CDO. However, the court could not take that
4
evidence into account in determining whether to make the CDO.
5
193 Paragraph 38I(3A)(b)
6
Repeal the paragraph, substitute:
7
(b) the proceeding is:
8
(i) under Division 104 of the
Criminal Code
(about control
9
orders); or
10
(ii) a Division 105A ESO proceeding; and
11
194 Section 38J (heading)
12
After "
control order
", insert "
or extended supervision order
".
13
195 Paragraph 38J(1)(a)
14
Repeal the paragraph, substitute:
15
(a) the court has held a hearing required by subsection 38G(1) or
16
38H(6) about the disclosure of information in:
17
(i) a proceeding under Division 104 of the
Criminal Code
18
relating to a request (the
control order request
) to the
19
court to make, confirm or vary a control order in
20
relation to a person (the
relevant person
); or
21
(ii) a Division 105A ESO proceeding relating to an
22
application (the
relevant application
) to make, vary or
23
review an extended supervision order in relation to a
24
terrorist offender (the
relevant person
); or
25
(iii) a Division 105A ESO proceeding relating to an
26
application (the
relevant application
) for a continuing
27
detention order in relation to a terrorist offender (the
28
relevant person
); and
29
196 Paragraph 38J(1)(c)
30
After "request", insert "or relevant application".
31
197 At the end of subsection 38J(1)
32
Add:
33
Note:
For the definition of
Division 105A ESO proceeding
, see section 7.
34
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
85
198 After subsection 38J(1)
1
Insert:
2
(1A) To avoid doubt, the court may not make an order under
3
subsection (2), (3) or (4) if the proceeding mentioned in
4
subparagraph (1)(a)(iii) is a proceeding:
5
(a) relating to an application for a continuing detention order if:
6
(i) the court is considering whether to make the order under
7
section 105A.7 of the
Criminal Code
; or
8
(ii) the court is considering whether to make an interim
9
supervision order under section 105A.9A of the Code as
10
mentioned in paragraph 105A.9(8)(b) of the Code; or
11
(b) relating to an application for an interim detention order under
12
section 105A.9 of the Code.
13
199 Subsections 38L(1) and (6) (at the end of the note)
14
Add "or in Division 105A ESO proceedings".
15
200 Subdivision C of Division 3 of Part 3A (heading)
16
After "
control order
", insert "
or extended supervision order
".
17
201 Paragraph 38PA(1)(a)
18
Repeal the paragraph, substitute:
19
(a) the proceeding is:
20
(i) a proceeding under Division 104 of the
Criminal Code
21
relating to a request to the court to make, confirm or
22
vary a control order in relation to the party; or
23
(ii) a Division 105A ESO proceeding to make, vary or
24
review an extended supervision order in relation to the
25
party; or
26
(iii) a Division 105A ESO proceeding relating to an
27
application for a continuing detention order in relation
28
to the party; and
29
202 Subsection 38PA(1) (note)
30
Omit "Note", substitute "Note 1".
31
Schedule 1
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Part 2
Main consequential amendments
86
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
203 At the end of subsection 38PA(1)
1
Add:
2
Note 2:
For the definition of
Division 105A ESO proceeding
, see section 7.
3
204 Subparagraph 38PE(3)(b)(i)
4
Repeal the subparagraph, substitute:
5
(i) the applicant in the proceedings for the control order, or
6
the applicant's legal representative, except if the
7
applicant is or would be the subject of the control order;
8
or
9
(ia) the applicant in the Division 105A ESO proceedings, or
10
the applicant's legal representative, except if the
11
applicant is or would be the subject of the extended
12
supervision order; or
13
205 Subparagraph 38PF(2)(a)(ii)
14
Repeal the subparagraph, substitute:
15
(ii) the applicant in the proceedings for the control order, or
16
the applicant's legal representative, except if the
17
applicant is or would be the subject of the control order;
18
or
19
(iia) the applicant in the Division 105A ESO proceedings, or
20
the applicant's legal representative, except if the
21
applicant is or would be the subject of the extended
22
supervision order; or
23
206 Paragraph 38PF(6)(a)
24
Repeal the paragraph, substitute:
25
(a) the applicant in the proceedings for the control order or the
26
Division 105A ESO proceedings, or the applicant's legal
27
representative, except if the applicant is or would be the
28
subject of the control order or extended supervision order; or
29
207 Section 46H (heading)
30
After "
control order
", insert "
or extended supervision order
".
31
208 Paragraphs 47(c) and (d)
32
Repeal the paragraphs, substitute:
33
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87
(c) states the number of orders made under section 38J (about
1
special court orders in a proceeding under Division 104 of
2
the
Criminal Code
or a Division 105A ESO proceeding); and
3
(d) identifies the proceedings under Division 104 of the
Criminal
4
Code
or the Division 105A ESO proceedings to which the
5
orders relate; and
6
209 Paragraph 47(f)
7
Repeal the paragraph, substitute:
8
(f) identifies the proceedings under Division 104 of the
Criminal
9
Code
or the Division 105A ESO proceedings in relation to
10
which the special advocates were appointed.
11
210 Application of amendments
12
The amendments of section 47 of the
National Security Information
13
(Criminal and Civil Proceedings) Act 2004
made by this Part apply in
14
relation to each 30 June that occurs after this item commences.
15
Surveillance Devices Act 2004
16
211 Paragraphs 3(aa) to (ab)
17
Repeal the paragraphs, substitute:
18
(aac) to establish procedures for law enforcement officers to obtain
19
warrants for the installation and use of surveillance devices,
20
or for access to data held in computers, in cases where the
21
use of the device or the access to the data would be likely to
22
assist in determining whether to apply for a post-sentence
23
order; and
24
(aad) to establish procedures for law enforcement officers to obtain
25
warrants for the installation and use of surveillance devices,
26
or for access to data held in computers, in cases where a
27
Part 5.3 supervisory order is in force, and the use of the
28
device or the access to the data would be likely to
29
substantially assist in:
30
(i) achieving a Part 5.3 object; or
31
(ii) determining whether the Part 5.3 supervisory order, or
32
any succeeding Part 5.3 supervisory order, has been, or
33
is being, complied with; and
34
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(aae) to establish procedures for law enforcement officers to obtain
1
tracking device authorisations for the use of tracking devices
2
in cases where a Part 5.3 supervisory order is in force in
3
relation to a person, and the use of a tracking device is to
4
obtain information relating to the person for either of the
5
following purposes:
6
(i) achieving a Part 5.3 object;
7
(ii) determining whether the Part 5.3 supervisory order, or
8
any succeeding Part 5.3 supervisory order, has been, or
9
is being, complied with; and
10
212 Subsections 4(5) to (6)
11
Repeal the subsections, substitute:
12
(5) To avoid doubt, it is intended that a warrant may be issued under
13
this Act for the installation, use, maintenance or retrieval of a
14
surveillance device, or for access to data held in a computer, if:
15
(a) consideration is being given, will be given, or is likely to be
16
given, as to whether to apply for a post-sentence order, and
17
the use of the device or the access to the data would be likely
18
to assist in determining whether to apply for the order; or
19
(b) a Part 5.3 supervisory order is in force, and the use of the
20
device or the access to the data would be likely to
21
substantially assist in:
22
(i) achieving a Part 5.3 object; or
23
(ii) determining whether the Part 5.3 supervisory order, or
24
any succeeding Part 5.3 supervisory order, has been, or
25
is being, complied with.
26
(6) To avoid doubt, a tracking device authorisation may be given
27
under this Act for the use of a tracking device to obtain information
28
relating to a person if:
29
(a) a Part 5.3 supervisory order is in force in relation to the
30
person; and
31
(b) the use is for either of the following purposes:
32
(i) achieving a Part 5.3 object;
33
(ii) determining whether the Part 5.3 supervisory order, or
34
any succeeding Part 5.3 supervisory order, has been, or
35
is being, complied with.
36
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89
213 Subsection 6(1)
1
Insert:
2
AFP Minister
has the meaning given by section 100.1 of the
3
Criminal Code
.
4
214 Subsection 6(1)
5
Repeal the following definitions:
6
(a) definition of
control order access warrant
;
7
(b) definition of
control order information
;
8
(c) definition of
control order warrant
.
9
215 Subsection 6(1)
10
Insert:
11
detained in custody
has the meaning given by section 100.1 of the
12
Criminal Code
.
13
extended supervision order
has the meaning given by
14
section 105A.2 of the
Criminal Code
.
15
interim supervision order
has the meaning given by
16
section 105A.2 of the
Criminal Code
.
17
Part 5.3 information
has the meaning given by subsection 50A(6).
18
Part 5.3 object
means:
19
(a) in relation to a control order--any of the following:
20
(i) the protection of the public from a terrorist act;
21
(ii) the prevention of the provision of support for, or the
22
facilitation of, a terrorist act;
23
(iii) the prevention of the provision of support for, or the
24
facilitation of, the engagement in a hostile activity in a
25
foreign country; or
26
(b) in relation to an extended supervision order or interim
27
supervision order in relation to a person--the protection of
28
the community from the unacceptable risk of the person
29
committing a serious Part 5.3 offence.
30
Part 5.3 supervisory order
means:
31
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(a) a control order; or
1
(b) an extended supervision order or an interim supervision
2
order.
3
Note:
In Part 5.3 of the
Criminal Code
, a control order means an interim
4
control order or a confirmed control order (see subsection 100.1(1) of
5
the
Criminal Code
).
6
Part 5.3 warrant
means a surveillance device warrant or computer
7
access warrant:
8
(a) issued to determine whether to apply for a post-sentence
9
order; or
10
(b) issued in relation to a Part 5.3 supervisory order that is or was
11
in force.
12
post-sentence detention law
means any of the following laws:
13
(a) Part 3 of the
Terrorism (High Risk Offenders) Act 2017
14
(NSW);
15
(b) Parts 5 and 6 of the
Serious Offenders Act 2018
(Vic.);
16
(c) Part 3 of the
Criminal Law (High Risk Offenders) Act 2015
17
(SA);
18
(d) any other law, or part of a law, of a State or Territory
19
prescribed by the regulations.
20
post-sentence order
means a continuing detention order, an interim
21
detention order, an extended supervision order, or an interim
22
supervision order, under Division 105A of the
Criminal Code
.
23
post-sentence supervision law
means any of the following laws:
24
(a) Part 2 of the
Terrorism (High Risk Offenders) Act 2017
25
(NSW);
26
(b) Parts 3 and 4 of the
Serious Offenders Act 2018
(Vic
.
);
27
(c) Part 2 of the
Criminal Law (High Risk Offenders) Act 2015
28
(SA);
29
(d) any other law, or part of a law, of a State or Territory
30
prescribed by the regulations.
31
216 Subsection 6(1) (paragraph (oa) of the definition of
32
relevant proceeding
)
33
Omit "continuing detention orders", substitute "post-sentence orders".
34
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91
217 Subsection 6(1) (at the end of the definition of
relevant
1
proceeding
)
2
Add:
3
; or (s) a proceeding under, or a proceeding relating to a matter
4
arising under, a post-sentence detention law or a
5
post-sentence supervision law.
6
218 Subsection 6(1)
7
Insert:
8
serious Part 5.3 offence
has the meaning given by section 105A.2
9
of the
Criminal Code
.
10
219 Subsection 6(1) (definition of
succeeding control order
)
11
Repeal the definition.
12
220 Subsection 6(1)
13
Insert:
14
succeeding Part 5.3 supervisory order
has the meaning given by
15
section 6D.
16
terrorist offender
has the meaning given by section 105A.2 of the
17
Criminal Code
.
18
221 Sections 6C and 6D
19
Repeal the sections, substitute:
20
6C When a Part 5.3 supervisory order is taken to be in force
21
For the purposes of this Act, a Part 5.3 supervisory order is taken
22
to be in force in relation to a person if:
23
(a) the order is a control order that has been made but has not yet
24
come into force because:
25
(i) it has not been served on the person; or
26
(ii) the person is detained in custody; or
27
(b) the order is an extended supervision order or an interim
28
supervision order that has been made but the period specified
29
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in the order under paragraph 105A.7A(4)(d) or
1
105A.9A(7)(c) of the
Criminal Code
has not yet begun.
2
6D Succeeding Part 5.3 supervisory orders
3
(1) If 2 or more successive control orders are made in relation to the
4
same person, each later control order is a
succeeding Part 5.3
5
supervisory order
in relation to each earlier control order.
6
Note:
If an interim control order is confirmed, the confirmed control order is
7
a succeeding Part 5.3 supervisory order in relation to the interim
8
control order (see the definition of
control order
in section 6).
9
(2) If an interim supervision order is made in relation to a person, any
10
later extended supervision order in relation to the person is a
11
succeeding Part 5.3 supervisory order
in relation to an earlier
12
interim supervision order.
13
(3) If 2 or more successive extended supervision orders or interim
14
supervision orders are made in relation to the same person, each
15
later extended supervision order or interim supervision order is a
16
succeeding Part 5.3 supervisory order
in relation to each earlier
17
extended supervision order or interim supervision order.
18
222 After subsection 14(3B)
19
Insert:
20
Warrants sought for post-sentence order applications
21
(3BA) A law enforcement officer (or another person on the officer's
22
behalf) may apply for the issue of a surveillance device warrant if:
23
(a) a person is a terrorist offender in relation to whom an
24
application for a post-sentence order could be made; and
25
(b) the person is detained in custody; and
26
(c) the officer suspects on reasonable grounds that there is an
27
appreciable risk of the person committing a serious Part 5.3
28
offence; and
29
(d) consideration is being given, will be given, or is likely to be
30
given, by the AFP Minister (or a person on behalf of the AFP
31
Minister), as to whether to apply for a post-sentence order in
32
relation to the person; and
33
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(e) the officer suspects on reasonable grounds that the use of a
1
surveillance device to obtain information would be likely to
2
assist in determining whether to apply for the post-sentence
3
order.
4
223 Subsection 14(3C) (heading)
5
Repeal the heading, substitute:
6
Warrants sought for Part 5.3 supervisory orders
7
224 Paragraph 14(3C)(a)
8
Omit "control order", substitute "Part 5.3 supervisory order".
9
225 Paragraph 14(3C)(b)
10
Repeal the paragraph, substitute:
11
(b) the law enforcement officer suspects on reasonable grounds
12
that the use of a surveillance device to obtain information
13
relating to the person would be likely to substantially assist
14
in:
15
(i) achieving a Part 5.3 object; or
16
(ii) determining whether the Part 5.3 supervisory order, or
17
any succeeding Part 5.3 supervisory order, has been, or
18
is being, complied with.
19
226 Subsection 14(3C) (note)
20
Repeal the note, substitute:
21
Note:
For Part 5.3 supervisory orders that have been made but not come into
22
force, see section 6C.
23
227 Subsection 14(4)
24
After "(3B)", insert ", (3BA)".
25
228 Paragraph 16(1)(bc)
26
Repeal the paragraph, substitute:
27
(bba) in the case of a warrant sought to determine whether to apply
28
for a post-sentence order--that the conditions in paragraphs
29
14(3BA)(a), (b) and (d) are met, and that there are reasonable
30
grounds for the suspicions founding the application for the
31
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warrant (as mentioned in paragraphs 14(3BA)(c) and (e));
1
and
2
(bc) in the case of a warrant sought in relation to a Part 5.3
3
supervisory order that is in force in relation to a person--that
4
the order is in force in relation to the person, and that there
5
are reasonable grounds for the suspicion founding the
6
application for the warrant (as mentioned in
7
paragraph 14(3C)(b)); and
8
229 Subsection 16(1) (note)
9
Repeal the note, substitute:
10
Note:
For Part 5.3 supervisory orders that have been made but not come into
11
force, see section 6C.
12
230 Paragraphs 16(2)(eb) to (g)
13
Repeal the paragraphs, substitute:
14
(f) in the case of a warrant sought in relation to a relevant
15
offence or a recovery order--any previous warrant sought or
16
issued under this Division in connection with the same
17
alleged offence or the same recovery order.
18
231 At the end of section 16
19
Add:
20
(3) In addition to the matters in subsection (2), in determining whether
21
to issue a surveillance device warrant sought to determine whether
22
to apply for a post-sentence order in relation to a person, the
23
eligible Judge or nominated AAT member must have regard to:
24
(a) the likely value of the information sought to be obtained in
25
determining whether to apply for the post-sentence order; and
26
(b) any previous application for a surveillance device warrant
27
sought or issued to determine whether to apply for a
28
post-sentence order in relation to the person.
29
(4) In addition to the matters in subsection (2), in determining whether
30
to issue a surveillance device warrant sought in a case where a
31
Part 5.3 supervisory order is in force in relation to a person, the
32
eligible Judge or nominated AAT member must have regard to:
33
(a) the likely value of the information sought to be obtained, in:
34
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95
(i) achieving a Part 5.3 object; or
1
(ii) determining whether the Part 5.3 supervisory order, or
2
any succeeding Part 5.3 supervisory order, has been, or
3
is being, complied with; and
4
(b) whether the use of the surveillance device in accordance with
5
the warrant would be the means of obtaining the evidence or
6
information sought to be obtained, that is likely to have the
7
least interference with any person's privacy; and
8
(c) if the order is a control order:
9
(i) the possibility that the person has engaged, is engaging,
10
or will engage, in a terrorist act; or
11
(ii) the possibility that the person has provided, is
12
providing, or will provide, support for a terrorist act; or
13
(iii) the possibility that the person has facilitated, is
14
facilitating, or will facilitate, a terrorist act; or
15
(iv) the possibility that the person has provided, is
16
providing, or will provide, support for the engagement
17
in a hostile activity in a foreign country; or
18
(v) the possibility that the person has facilitated, is
19
facilitating, or will facilitate, the engagement in a hostile
20
activity in a foreign country; and
21
(d) if the order is an extended supervision order or interim
22
supervision order--the possibility that the person has
23
committed, is committing, or will commit, a serious Part 5.3
24
offence; and
25
(e) in relation to any Part 5.3 supervisory order--the possibility
26
that the person has contravened, is contravening, or will
27
contravene, the order or a succeeding Part 5.3 supervisory
28
order; and
29
(f) any previous surveillance device warrant sought or issued on
30
the basis of a Part 5.3 supervisory order that is or was in
31
force in relation to the person.
32
232 Paragraph 17(1)(a)
33
Omit "subsection 16(2)", substitute "subsections 16(2), (3) and (4) (as
34
the case requires)".
35
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233 Subsection 17(1AA)
1
Repeal the subsection, substitute:
2
(1AA) If a surveillance device warrant is issued to determine whether to
3
apply for a post-sentence order in relation to a person, the warrant
4
must also specify the name of the person.
5
(1AB) If a warrant is issued on the basis of a Part 5.3 supervisory order
6
that is in force in relation to a person, the warrant must also specify
7
the following details in relation to the order:
8
(a) the name of the person;
9
(b) the date the order was made;
10
(c) if (disregarding section 6C) the order is not already in force
11
and the order is not an interim control order--when the order
12
comes into force;
13
(d) whether the order is:
14
(i) an interim control order; or
15
(ii) a confirmed control order; or
16
(iii) an interim supervision order; or
17
(iv) an extended supervision order.
18
234 After subsection 17(1A)
19
Insert:
20
(1B) To avoid doubt, a warrant issued on the basis that a Part 5.3
21
supervisory order is in force remains in force for the period
22
mentioned in paragraph (1A)(a) even if the order ceases to be in
23
force, provided that the order is replaced by a succeeding Part 5.3
24
supervisory order.
25
Note 1:
If there is no succeeding Part 5.3 supervisory order, the warrant must
26
be revoked (see section 21).
27
Note 2:
A control order is not a succeeding Part 5.3 supervisory order in
28
relation to an extended supervision order, and vice versa (see
29
section 6D).
30
235 Subsection 19(4)
31
Omit "subsection 16(2)", substitute "subsections 16(2), (3) and (4) (as
32
the case requires)".
33
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236 Subsection 20(2)
1
Omit "paragraphs 21(2)(a) and (b), 21(3)(a) and (b), 21(3A)(a) and (b),
2
21(3B)(a) and (b), 21(3C)(a) and (b) or 21(3D)(a) and (b) apply in
3
relation to a surveillance device warrant--", substitute
4
"subsection 21(2) or (3) apply in relation to a surveillance device
5
warrant,".
6
237 Subsections 21(2) to (3D)
7
Repeal the subsections, substitute:
8
Obligations on chief officers
9
(2) If:
10
(a) the surveillance device warrant has been sought by or on
11
behalf of a law enforcement officer; and
12
(b) the chief officer of the law enforcement agency to which the
13
law enforcement officer belongs or is seconded is satisfied
14
that:
15
(i) the use of a surveillance device under the warrant is no
16
longer required for the purpose for which it was sought;
17
or
18
(ii) without limiting subparagraph (i), if the warrant was
19
sought for the purposes of an integrity operation--the
20
integrity authority for the integrity operation is no
21
longer in effect; and
22
(c) the warrant was not issued to determine whether to apply for
23
a post-sentence order;
24
the chief officer must (subject to subsection (3)), in addition to
25
revoking the warrant under section 20, take the steps necessary to
26
ensure that use of the surveillance device authorised by the warrant
27
is discontinued.
28
(3) The chief officer is required to take steps under subsection (2) in
29
relation to a surveillance device warrant that is issued on the basis
30
of a Part 5.3 supervisory order that was in force in relation to a
31
person only if neither the Part 5.3 supervisory order, nor any
32
succeeding Part 5.3 supervisory order, is in force in relation to the
33
person.
34
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Note:
A control order is not a succeeding Part 5.3 supervisory order in
1
relation to an extended supervision order, and vice versa (see
2
section 6D).
3
238 Subsection 21(4)
4
Omit "he or she", substitute "the chief officer".
5
239 Subsections 21(5) and (6)
6
Repeal the subsections, substitute:
7
Obligations on law enforcement officers to whom warrants are
8
issued etc.
9
(5) If the law enforcement officer to whom the warrant is issued, or
10
who is primarily responsible for executing the warrant, believes
11
that:
12
(a) use of a surveillance device under the warrant is no longer
13
required for the purpose for which the warrant was issued; or
14
(b) without limiting paragraph (a), if the warrant was sought for
15
the purposes of an integrity operation--the integrity authority
16
for the integrity operation is no longer in effect;
17
the officer must (subject to subsection (6)) immediately inform the
18
chief officer of the law enforcement agency to which the officer
19
belongs or is seconded.
20
(6) If the law enforcement officer to whom a warrant is issued, or who
21
is primarily responsible for executing a warrant issued, on the basis
22
that a Part 5.3 supervisory order was in force in relation to a person
23
believes that neither that order, nor any succeeding Part 5.3
24
supervisory order, is in force in relation to the person, the officer
25
must immediately inform the chief officer of the law enforcement
26
agency to which the officer belongs or is seconded.
27
240 Subsection 27A(6)
28
Repeal the subsection, substitute:
29
Warrants sought for post-sentence order applications
30
(5A) A law enforcement officer (or another person on the officer's
31
behalf) may apply for the issue of a computer access warrant if:
32
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(a) a person is a terrorist offender in relation to whom an
1
application for a post-sentence order could be made; and
2
(b) the person is detained in custody; and
3
(c) the officer suspects on reasonable grounds that there is an
4
appreciable risk of the person committing a serious Part 5.3
5
offence; and
6
(d) consideration is being given, will be given, or is likely to be
7
given, by the AFP Minister (or a person on behalf of the AFP
8
Minister), as to whether to apply for a post-sentence order in
9
relation to the person; and
10
(e) the officer suspects on reasonable grounds that access to data
11
held in a computer (the
target computer
) would be likely to
12
assist in determining whether to apply for the post-sentence
13
order.
14
Warrants sought for Part 5.3 supervisory orders
15
(6) A law enforcement officer (or another person on the officer's
16
behalf) may apply for the issue of a computer access warrant if:
17
(a) a Part 5.3 supervisory order is in force in relation to a person;
18
and
19
(b) the officer suspects on reasonable grounds that access to data
20
held in a computer (the
target computer
) to obtain
21
information relating to the person would be likely to
22
substantially assist in:
23
(i) achieving a Part 5.3 object; or
24
(ii) determining whether the Part 5.3 supervisory order, or
25
any succeeding Part 5.3 supervisory order, has been, or
26
is being, complied with.
27
Note:
For Part 5.3 supervisory orders that have been made but not come into
28
force, see section 6C.
29
241 Subsection 27A(7)
30
After "(5)", insert ", (5A)".
31
242 Subsection 27A(13) (heading)
32
Omit "
control order access warrants
", substitute "
warrants sought for
33
Part 5.3 supervisory orders
".
34
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243 Subsection 27A(15)
1
After "(5)", insert ", (5A)".
2
244 Paragraph 27C(1)(e)
3
Repeal the paragraph, substitute:
4
(da) in the case of a computer access warrant sought to determine
5
whether to apply for a post-sentence order--that the
6
conditions in paragraphs 27A(5A)(a), (b) and (d) are met, and
7
there are reasonable grounds for the suspicions founding the
8
application for the warrant (as mentioned in paragraphs
9
27A(5A)(c) and (e)); and
10
(e) in the case of a computer access warrant sought in relation to
11
a Part 5.3 supervisory order that is in force in relation to a
12
person--that the order is in force in relation to the person,
13
and there are reasonable grounds for the suspicion founding
14
the application for the warrant (as mentioned in
15
paragraph 27A(6)(b)); and
16
245 Subsection 27C(1) (note)
17
Repeal the note, substitute:
18
Note:
For Part 5.3 supervisory orders that have been made but not come into
19
force, see section 6C.
20
246 Paragraphs 27C(2)(g) to (k)
21
Repeal the paragraphs, substitute:
22
(j) in the case of a warrant sought in relation to a relevant
23
offence or a recovery order--any previous warrant sought or
24
issued under this Division in connection with the same
25
alleged offence or the same recovery order.
26
247 At the end of section 27C
27
Add:
28
(3) In addition to the matters in subsection (2), in determining whether
29
to issue a computer access warrant sought to determine whether to
30
apply for a post-sentence order in relation to a person, the eligible
31
Judge or nominated AAT member must have regard to:
32
(a) the likely value of the information sought to be obtained in
33
determining whether to apply for the post-sentence order; and
34
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101
(b) any previous application for a computer access warrant
1
sought or issued to determine whether to apply for a
2
post-sentence order in relation to the person.
3
(4) In addition to the matters in subsection (2), in determining whether
4
to issue a computer access warrant sought in a case where a
5
Part 5.3 supervisory order is in force in relation to a person, the
6
eligible Judge or nominated AAT member must have regard to:
7
(a) the likely value of the information sought to be obtained, in:
8
(i) achieving a Part 5.3 object; or
9
(ii) determining whether the Part 5.3 supervisory order, or
10
any succeeding Part 5.3 supervisory order, has been, or
11
is being, complied with; and
12
(b) whether the access to the data in accordance with the warrant
13
would be the means of obtaining the evidence or information
14
sought to be obtained, that is likely to have the least
15
interference with any person's privacy; and
16
(c) if the order is a control order:
17
(i) the possibility that the person has engaged, is engaging,
18
or will engage, in a terrorist act; or
19
(ii) the possibility that the person has provided, is
20
providing, or will provide, support for a terrorist act; or
21
(iii) the possibility that the person has facilitated, is
22
facilitating, or will facilitate, a terrorist act; or
23
(iv) the possibility that the person has provided, is
24
providing, or will provide, support for the engagement
25
in a hostile activity in a foreign country; or
26
(v) the possibility that the person has facilitated, is
27
facilitating, or will facilitate, the engagement in a hostile
28
activity in a foreign country; and
29
(d) if the order is an extended supervision order or interim
30
supervision order--the possibility that the person has
31
committed, is committing, or will commit, a serious Part 5.3
32
offence; and
33
(e) in relation to any Part 5.3 supervisory order--the possibility
34
that the person has contravened, is contravening, or will
35
contravene, the order or a succeeding Part 5.3 supervisory
36
order; and
37
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(f) any previous computer access warrant sought or issued on the
1
basis of a Part 5.3 supervisory order that is or was in force in
2
relation to the person.
3
248 Paragraph 27D(1)(a)
4
Omit "subsection 27C(2)", substitute "subsections 27C(2), (3) and (4)
5
(as the case requires)".
6
249 Subsection 27D(2)
7
Repeal the subsection, substitute:
8
(1A) If a computer access warrant is issued to determine whether to
9
apply for a post-sentence order in relation to a person, the warrant
10
must also specify the name of the person.
11
(2) If a computer access warrant is issued on the basis of a Part 5.3
12
supervisory order that is in force in relation to a person, the warrant
13
must also specify the following details:
14
(a) the name of the person;
15
(b) the date the Part 5.3 supervisory order was made;
16
(c) if (disregarding section 6C) the order is not already in force
17
and the order is not an interim control order--when the order
18
comes into force;
19
(d) whether the order is:
20
(i) an interim control order; or
21
(ii) a confirmed control order; or
22
(iii) an interim supervision order; or
23
(iv) an extended supervision order.
24
250 After subsection 27D(3)
25
Insert:
26
(3A) To avoid doubt, a warrant issued on the basis that a Part 5.3
27
supervisory order is in force remains in force for the period
28
mentioned in paragraph (3)(a) even if the order ceases to be in
29
force, provided that the order is replaced by a succeeding Part 5.3
30
supervisory order.
31
Note 1:
If there is no succeeding Part 5.3 supervisory order, the warrant must
32
be revoked (see section 27H).
33
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Note 2:
A control order is not a succeeding Part 5.3 supervisory order in
1
relation to an extended supervision order, and vice versa (see
2
section 6D).
3
251 Paragraph 27E(4)(e)
4
Repeal the paragraph, substitute:
5
(da) in the case of a warrant sought to determine whether to apply
6
for a post-sentence order--access to the data would be likely
7
to assist as described in paragraph 27A(5A)(e); or
8
(e) in the case of a warrant issued on the basis of a Part 5.3
9
supervisory order that is in force in relation to a person--
10
access to the data would be likely to substantially assist as
11
described in paragraph 27A(6)(b).
12
252 Subsection 27F(4)
13
Omit "subsection 27C(2)", substitute "subsections 27C(2), (3) and (4)
14
(as the case requires)".
15
253 Subsection 27G(2)
16
Omit "paragraphs 27H(2)(a) and (b), 27H(3)(a) and (b), 27H(4)(a) and
17
(b), 27H(5)(a) and (b), 27H(6)(a) and (b) or 27H(7)(a) and (b)",
18
substitute "subsection 27H(2) or (3)".
19
254 Subsections 27H(2) to (7)
20
Repeal the subsections, substitute:
21
Obligations on chief officers
22
(2)
If:
23
(a) the computer access warrant has been sought by or on behalf
24
of a law enforcement officer; and
25
(b) the chief officer of the law enforcement agency to which the
26
law enforcement officer belongs or is seconded is satisfied
27
that:
28
(i) access to data under the warrant is no longer required
29
for the purpose for which it was sought; or
30
(ii) without limiting subparagraph (i), if the warrant was
31
sought for the purposes of an integrity operation--the
32
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integrity authority for the integrity operation is no
1
longer in effect; and
2
(c) the warrant was not issued to determine whether to apply for
3
a post-sentence order;
4
the chief officer must (subject to subsection (3)), in addition to
5
revoking the warrant under section 27G, take the steps necessary to
6
ensure that access to data authorised by the warrant is
7
discontinued.
8
(3) The chief officer is required to take steps under subsection (2) in
9
relation to a surveillance device warrant that is issued on the basis
10
of a Part 5.3 supervisory order that was in force in relation to a
11
person only if neither the Part 5.3 supervisory order, nor any
12
succeeding Part 5.3 supervisory order, is in force in relation to the
13
person.
14
Note:
A control order is not a succeeding Part 5.3 supervisory order in
15
relation to an extended supervision order, and vice versa (see
16
section 6D).
17
255 Subsection 27H(8)
18
Omit "the eligible Judge or nominated AAT member", substitute "the
19
chief officer".
20
256 Subsections 27H(9) and (10)
21
Repeal the subsections, substitute:
22
Obligations on law enforcement officers to whom warrants are
23
issued etc.
24
(9) If the law enforcement officer to whom the warrant is issued, or
25
who is primarily responsible for executing the warrant, believes
26
that:
27
(a) access to data under the warrant is no longer necessary for
28
the purpose for which it was sought; or
29
(b) without limiting paragraph (a), if the warrant was sought for
30
the purposes of an integrity operation--the integrity authority
31
for the integrity operation is no longer in effect;
32
the law enforcement officer must (subject to subsection (10))
33
immediately inform the chief officer of the law enforcement
34
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agency to which the law enforcement officer belongs or is
1
seconded.
2
(10) If the law enforcement officer to whom a warrant is issued, or who
3
is primarily responsible for executing a warrant issued, on the basis
4
that a Part 5.3 supervisory order was in force in relation to a person
5
believes that neither the Part 5.3 supervisory order, nor any
6
succeeding Part 5.3 supervisory order, is in force in relation to the
7
person, the officer must immediately inform the chief officer of the
8
law enforcement agency to which the officer belongs or is
9
seconded.
10
257 Subsection 37(4)
11
Omit "control order" (first occurring), substitute "Part 5.3 supervisory
12
order".
13
258 Subsection 37(4)
14
Omit "any of", substitute "either of".
15
259 Paragraphs 37(4)(a) to (d)
16
Repeal the paragraphs, substitute:
17
(a) achieving a Part 5.3 object;
18
(b) determining whether the Part 5.3 supervisory order has been,
19
or is being, complied with;
20
260 Subsection 38(3A)
21
Omit "control order" (first occurring), substitute "Part 5.3 supervisory
22
order".
23
261 Subsection 38(3A)
24
Omit "any of", substitute "either of".
25
262 Paragraphs 38(3A)(a) to (d)
26
Repeal the paragraphs, substitute:
27
(a) achieving a Part 5.3 object;
28
(b) determining whether the Part 5.3 supervisory order has been,
29
or is being, complied with;
30
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263 Subparagraph 38(3A)(f)(ii)
1
Omit "control order", substitute "Part 5.3 supervisory order".
2
264 Paragraph 38(6)(a)
3
Omit "control order", substitute "Part 5.3 supervisory order".
4
265 Paragraph 38(6)(b)
5
Omit "any of", substitute "either of".
6
266 Subparagraphs 38(6)(b)(i) to (iv)
7
Repeal the subparagraphs, substitute:
8
(i) achieving a Part 5.3 object;
9
(ii) determining whether the Part 5.3 supervisory order has
10
been, or is being, complied with;
11
267 Subsection 39(3B)
12
Omit "control order" (first occurring), substitute "Part 5.3 supervisory
13
order".
14
268 Subsection 39(3B)
15
Omit "any of", substitute "either of".
16
269 Paragraphs 39(3B)(a) to (d)
17
Repeal the paragraphs, substitute:
18
(a) achieving a Part 5.3 object;
19
(b) determining whether the Part 5.3 supervisory order, or any
20
succeeding Part 5.3 supervisory order, has been, or is being,
21
complied with.
22
270 Paragraph 40(1)(db)
23
Repeal the paragraph, substitute:
24
(db) if the authorisation is given on the basis of a Part 5.3
25
supervisory order that is in force in relation to a person--the
26
following details:
27
(i) the name of the person;
28
(ii) the date the order was made;
29
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107
(iii) if (disregarding section 6C) the order is not already in
1
force and the order is not an interim control order--
2
when the order comes into force;
3
(iv) whether the order is an interim control order, a
4
confirmed control order, an interim supervision order or
5
an extended supervision order; and
6
271 Paragraph 45(5)(c)
7
Repeal the paragraph, substitute:
8
(c) a relevant proceeding (not including a relevant proceeding in
9
respect of a relevant offence referred to in paragraph (d) or
10
(i)) or a State or Territory relevant proceeding;
11
272 Paragraph 45(5)(j)
12
Repeal the paragraph, substitute:
13
(ia) the performance of a function or duty, or the exercise of a
14
power, by a person, court or other body under, or in relation
15
to a matter arising under:
16
(i) Division 104 (control orders) or Division 105A
17
(post-sentence orders) of the
Criminal Code
; or
18
(ii) a post-sentence detention law or a post-sentence
19
supervision law;
20
(j) in the case of information:
21
(i) obtained under a warrant issued on the basis of a
22
Part 5.3 supervisory order that is or was in force; or
23
(ii) relating to an application for, the issue of, the existence
24
of, or the expiration of, such a warrant; or
25
(iii) that is likely to enable the identification of a person,
26
object or premises specified in such a warrant;
27
determining whether the order, or any succeeding Part 5.3
28
supervisory order, has been, or is being, complied with;
29
273 Paragraph 45(5)(k)
30
Omit "control order" (wherever occurring), substitute "Part 5.3
31
supervisory order".
32
274 After subsection 45(5)
33
Insert:
34
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(5A) To avoid doubt, paragraphs (5)(ia) and (j) do not limit
1
paragraph (5)(c).
2
Note:
Under paragraph (5)(c), protected information obtained under a
3
warrant or authorisation may be used for the purposes of any
4
proceedings relating to a post-sentence order.
5
275 Subsection 45(6)
6
Omit ", (j) and (k)", substitute "and (ia) to (k)".
7
276 Subsection 45(9) (at the end of the definition of
State or
8
Territory relevant proceeding
)
9
Add:
10
; or (j) a proceeding under, or a proceeding relating to a matter
11
arising under, a post-sentence detention law or a
12
post-sentence supervision law.
13
277 Section 46A (heading)
14
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
15
278 Subparagraph 46A(1)(b)(i)
16
Repeal the subparagraph, substitute:
17
(i) a surveillance device warrant; or
18
279 Paragraph 46A(1)(b)
19
Omit "control order" (second occurring), substitute "Part 5.3
20
supervisory order".
21
280 Paragraph 46A(1)(c)
22
Repeal the paragraph, substitute:
23
(c) in the case of a surveillance device warrant issued on the
24
basis that a Part 5.3 supervisory order was in force--the
25
warrant was issued for the purpose, or for purposes that
26
include the purpose, of obtaining information that would be
27
likely to substantially assist in connection with determining
28
whether the order, or any succeeding Part 5.3 supervisory
29
order, has been, or is being, complied with; and
30
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281 Paragraph 46A(1)(d)
1
Omit "control order" (wherever occurring), substitute "Part 5.3
2
supervisory order".
3
282 Paragraphs 46A(1)(e) and (f)
4
Repeal the paragraphs, substitute:
5
(e) the use of the surveillance device occurred when the Part 5.3
6
supervisory order had been made, but had not come into
7
force; and
8
(f) the chief officer of the agency is satisfied that none of the
9
information obtained from the use of the surveillance device
10
is likely to assist in connection with achieving a Part 5.3
11
object;
12
283 Paragraph 46A(1A)(b)
13
Omit "a control order access warrant issued on the basis of a control
14
order", substitute "a computer access warrant issued on the basis of a
15
Part 5.3 supervisory order".
16
284 Paragraph 46A(1A)(c)
17
Omit "control order" (wherever occurring), substitute "Part 5.3
18
supervisory order".
19
285 Paragraphs 46A(1A)(d) and (e)
20
Repeal the paragraphs, substitute:
21
(d) access to the data occurred when the Part 5.3 supervisory
22
order had been made, but had not come into force; and
23
(e) the chief officer of the agency is satisfied that none of the
24
information obtained from accessing the data is likely to
25
assist in connection with achieving a Part 5.3 object;
26
286 Subparagraph 49(2)(b)(xb)
27
Omit "control order warrant", substitute "Part 5.3 warrant".
28
287 Paragraph 49(2A)(a)
29
Repeal the paragraph, substitute:
30
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(aa) if the warrant was issued to determine whether to apply for a
1
post-sentence order--the benefit of the use of the device in
2
determining whether to make the application; and
3
(a) if the warrant was issued on the basis of a Part 5.3
4
supervisory order that is or was in force in relation to a
5
person--the benefit of the use of the device in:
6
(i) achieving a Part 5.3 object; or
7
(ii) determining whether the Part 5.3 supervisory order has
8
been, or is being, complied with; and
9
288 Paragraph 49(2B)(b)(ix)
10
Omit "control order access warrant", substitute "Part 5.3 warrant".
11
289 Paragraph 49(2C)(a)
12
Repeal the paragraph, substitute:
13
(aa) if the warrant was issued to determine whether to apply for a
14
post-sentence order--the benefit of obtaining access to data
15
held in the computer in determining whether to make the
16
application; and
17
(a) if the warrant was issued on the basis of a Part 5.3
18
supervisory order that is or was in force in relation to a
19
person--the benefit of obtaining access to data held in the
20
computer in:
21
(i) achieving a Part 5.3 object; or
22
(ii) determining whether the Part 5.3 supervisory order has
23
been, or is being, complied with; and
24
290 Section 49A
25
Repeal the section, substitute:
26
49A Notification to Ombudsman in relation to Part 5.3 warrants
27
(1) Within 6 months after a Part 5.3 warrant is issued in response to an
28
application by a law enforcement officer of a law enforcement
29
agency, the chief officer of the agency must:
30
(a) notify the Ombudsman that the warrant has been issued; and
31
(b) give the Ombudsman a copy of the warrant.
32
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111
(2) As soon as practicable after the law enforcement agency, or a law
1
enforcement officer of the law enforcement agency, contravenes
2
any of the following conditions or provisions, the chief officer of
3
the agency must notify the Ombudsman of the contravention:
4
(a) a condition specified in the warrant;
5
(b) any of the following provisions, to the extent that they relate
6
to the warrant:
7
(i) subsection 20(2);
8
(ii) subsection 27G(2);
9
(iii) section 45;
10
(iv) subsection 46(1);
11
(c) section 46A;
12
(d) subsection 50A(4).
13
(3) A failure to comply with subsection (1) or (2) does not affect the
14
validity of the warrant.
15
(4) This section applies in relation to a tracking device authorisation
16
given on the basis of a Part 5.3 supervisory order that is or was in
17
force in the same way as this section applies in relation to a
18
surveillance device warrant or computer access warrant.
19
291 Subsections 50A(2) and (3)
20
Omit "control order", substitute "Part 5.3".
21
292 Paragraphs 50A(4)(c) and (d)
22
Omit "control order", substitute "Part 5.3".
23
293 Subsection 50A(5)
24
Omit "control order", substitute "Part 5.3".
25
294 Subsection 50A(6)
26
Repeal the subsection, substitute:
27
Definitions
28
(6) In this section:
29
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Part 5.3 information
means information that, if made public, could
1
reasonably be expected to enable a reasonable person to conclude
2
that:
3
(a) a surveillance device warrant issued in response to an
4
application under subsection 14(3BA) or (3C) authorising:
5
(i) the use of a surveillance device on particular premises;
6
or
7
(ii) the use of a surveillance device in or on a particular
8
object or class of object; or
9
(iii) the use of a surveillance device in respect of the
10
conversations, activities or location of a particular
11
person;
12
is likely to be, or is not likely to be, in force; or
13
(b) a computer access warrant issued in response to an
14
application under subsection 27A(5A) or (6) authorising:
15
(i) access to data held in a particular computer; or
16
(ii) access to data held in a computer on particular premises;
17
or
18
(iii) access to data held in a computer associated with, used
19
by or likely to be used by, a particular person;
20
is likely to be, or is not likely to be, in force.
21
295 Subparagraphs 53(2)(c)(iiic) and (iiid)
22
Repeal the subparagraphs, substitute:
23
(iiic) if the warrant is a surveillance device warrant or
24
computer access warrant issued on the basis of a
25
Part 5.3 supervisory order that was in force--the date
26
the order was made; and
27
296 Subsection 55(2A)
28
Omit "control order warrants etc.", substitute "Part 5.3 warrants".
29
297 Subsection 61(4) (heading)
30
Omit "
Control order
", substitute "
Part 5.3
".
31
298 Subsection 61(4)
32
Omit "control order", substitute "Part 5.3".
33
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299 Paragraphs 61(6)(c) and (d)
1
Omit "control order", substitute "Part 5.3".
2
300 Section 61A (heading)
3
Omit "
control order warrants etc.
", substitute "
Part 5.3 warrants
".
4
301 Subsection 61A(1)
5
Omit "control order warrants etc.", substitute "Part 5.3 warrants".
6
302 Subsection 64A(6) (heading)
7
Repeal the heading, substitute:
8
Part 5.3 warrants
9
303 Subsection 64A(6)
10
Omit "computer access warrant issued on the basis of a control order",
11
substitute "Part 5.3 warrant that is a computer access warrant".
12
304 Paragraph 64A(6)(a)
13
Repeal the paragraph, substitute:
14
(a) there are reasonable grounds for suspecting that access to the
15
data held in the computer would be likely to substantially
16
assist in:
17
(i) if the computer access warrant was issued to determine
18
whether to apply for a post-sentence order--
19
determining whether to apply for the post-sentence
20
order; or
21
(ii) if the computer access warrant was issued on the basis
22
of a Part 5.3 supervisory order that is in force--
23
achieving a Part 5.3 object, or determining whether the
24
Part 5.3 supervisory order, or any succeeding Part 5.3
25
supervisory order, has been, or is being, complied with;
26
and
27
305 Subparagraph 64A(6)(b)(i)
28
Repeal the subparagraph, substitute:
29
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(ia) if the warrant was issued to determine whether to apply
1
for a post-sentence order--the person to whom the
2
application relates; or
3
(i) if the warrant was issued in relation to a Part 5.3
4
supervisory order that is in force--the subject of the
5
Part 5.3 supervisory order; or
6
306 Subsection 65A(1) (heading)
7
Repeal the heading, substitute:
8
Surveillance device warrant issued for control order
9
307 Paragraph 65A(1)(a)
10
Omit "control order warrant", substitute "surveillance device warrant".
11
308 Subsection 65A(2A) (heading)
12
Repeal the heading, substitute:
13
Computer access warrant issued for control order
14
309 Paragraph 65A(2A)(a)
15
Omit "control order access warrant", substitute "computer access
16
warrant".
17
310 Section 65B (heading)
18
Omit "
control order warrant, control order access warrant,
19
tracking device authorisation etc.
", substitute "
warrant or
20
authorisation etc.
".
21
311 Subparagraph 65B(1)(a)(i)
22
Omit "control order warrant", substitute "surveillance device warrant".
23
312 Subparagraph 65B(1)(a)(ia)
24
Omit "control order access", substitute "computer access".
25
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115
Telecommunications (Interception and Access) Act 1979
1
313 Subsection 5(1)
2
Insert:
3
AFP Minister
has the meaning given by section 100.1 of the
4
Criminal Code
.
5
314 Subsection 5(1)
6
Repeal the following definitions:
7
(a) definition of
control order warrant
;
8
(b) definition of
control order warrant agency
.
9
315 Subsection 5(1)
10
Insert:
11
detained in custody
has the meaning given by section 100.1 of the
12
Criminal Code
.
13
extended supervision order
has the meaning given by
14
section 105A.2 of the
Criminal Code
.
15
interim supervision order
has the meaning given by
16
section 105A.2 of the
Criminal Code
.
17
Part 5.3 object
means:
18
(a) in relation to a control order--any of the following:
19
(i) the protection of the public from a terrorist act;
20
(ii) the prevention of the provision of support for, or the
21
facilitation of, a terrorist act;
22
(iii) the prevention of the provision of support for, or the
23
facilitation of, the engagement in a hostile activity in a
24
foreign country; or
25
(b) in relation to an extended supervision order or interim
26
supervision order--the protection of the community from the
27
unacceptable risk of a terrorist offender committing a serious
28
Part 5.3 offence.
29
Part 5.3 supervisory order
means:
30
(a) a control order; or
31
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(b) an extended supervision order or interim supervision order.
1
Part 5.3 warrant
means a warrant issued:
2
(a) under subsection 46(4) or (7) or 46A(2A) or (2C); or
3
(b) under section 48 in the circumstances mentioned in
4
subsection 46(4) or (7).
5
Part 5.3 warrant agency
means:
6
(a) a Commonwealth agency; or
7
(b) an eligible authority of a State that a declaration in force
8
under section 34 authorises to apply for Part 5.3 warrants (see
9
section 38A).
10
316 Subsection 5(1) (subparagraph (b)(v) of the definition of
11
permitted purpose
)
12
Omit "of the
Criminal Code
", substitute "(control orders) or
13
Division 105A (post-sentence orders) of the
Criminal Code
".
14
317 Subsection 5(1) (subparagraph (b)(vii) of the definition of
15
permitted purpose
)
16
Repeal the subparagraph, substitute:
17
(vii) a post-sentence detention law or a post-sentence
18
supervision law; or
19
(viii) the making of a decision whether to apply for a
20
post-sentence order, or for a variation or review of a
21
post-sentence order, under Division 105A of the
22
Criminal Code
in relation to a person; or
23
(ix) the making of a decision whether to apply for an order,
24
or make any other application in relation to an order,
25
under a post-sentence detention law or a post-sentence
26
supervision law in relation to a person; or
27
318 Subsection 5(1) (subparagraph (c)(iva) of the definition of
28
permitted purpose
)
29
Repeal the subparagraph.
30
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117
319 Subsection 5(1) (subparagraph (c)(vi) of the definition of
1
permitted purpose
)
2
Omit "of the
Criminal Code
(Control orders)", substitute "(control
3
orders) or Division 105A (post-sentence orders) of the
Criminal Code
".
4
320 Subsection 5(1) (at the end of paragraph (c) of the
5
definition of
permitted purpose
)
6
Add:
7
(viii) a post-sentence detention law or a post-sentence
8
supervision law; or
9
(ix) the making of a decision whether to apply for a
10
post-sentence order, or for a variation or review of a
11
post-sentence order, under Division 105A of the
12
Criminal Code
in relation to a person; or
13
(x) the making of a decision whether to apply for an order,
14
or make any other application in relation to an order,
15
under a post-sentence detention law or a post-sentence
16
supervision law in relation to a person; or
17
321 Subsection 5(1)
18
Insert:
19
post-sentence detention law
means any of the following laws:
20
(a) Part 3 of the
Terrorism (High Risk Offenders) Act 2017
21
(NSW);
22
(b) Parts 5 and 6 of the
Serious Offenders Act 2018
(Vic.);
23
(c) Part 3 of the
Criminal Law (High Risk Offenders) Act 2015
24
(SA);
25
(d) any other law, or part of a law, of a State or Territory
26
prescribed by the regulations.
27
post-sentence order
means:
28
(a) a continuing detention order or interim detention order made
29
under Division 105A of the
Criminal Code
; or
30
(b) an extended supervision order or interim supervision order.
31
post-sentence supervision law
means any of the following laws:
32
(a) Part 2 of the
Terrorism (High Risk Offenders) Act 2017
33
(NSW);
34
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(b) Parts 3 and 4 of the
Serious Offenders Act 2018
(Vic.);
1
(c) Part 2 of the
Criminal Law (High Risk Offenders) Act 2015
2
(SA);
3
(d) any other law, or part of a law, of a State or Territory
4
prescribed by the regulations.
5
serious Part 5.3 offence
has the meaning given by section 105A.2
6
of the
Criminal Code
.
7
322 Subsection 5(1) (definition of
succeeding control order
)
8
Repeal the definition.
9
323 Subsection 5(1)
10
Insert:
11
succeeding Part 5.3 supervisory order
has the meaning given by
12
section 6U.
13
terrorist offender
has the meaning given by section 105A.2 of the
14
Criminal Code
.
15
324 Paragraph 5B(1)(bb)
16
Repeal the paragraph, substitute:
17
(bb) a proceeding under, or a proceeding relating to a matter
18
arising under, Division 104 (control orders) or Division 105A
19
(post-sentence orders) of the
Criminal Code
; or
20
325 Paragraph 5B(1)(bd)
21
Repeal the paragraph, substitute:
22
(bd) a proceeding under, or a proceeding relating to a matter
23
arising under, a post-sentence detention law or a
24
post-sentence supervision law; or
25
326 After subparagraph 5D(1)(e)(v)
26
Insert:
27
(va) section 105A.18A of the
Criminal Code
; or
28
327 Paragraphs 6H(a) and (b)
29
Repeal the paragraphs, substitute:
30
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119
(a) in the case of a warrant under section 48--paragraphs
1
46(1)(c) and (d), 46(4)(c), (d) and (e), or 46(7)(c) to (h), as
2
the case requires; or
3
(b) in the case of any other Part 2-5 warrant--paragraphs
4
46(1)(c) and (d), 46(4)(c), (d) and (e), 46(7)(c) to (h),
5
46A(1)(c) and (d), 46A(2A)(c), (d) and (e) or 46A(2C)(c) to
6
(h), as the case requires; or
7
328 Sections 6T and 6U
8
Repeal the sections, substitute:
9
6T When a Part 5.3 supervisory order is taken to be in force
10
For the purposes of this Act, a Part 5.3 supervisory order is taken
11
to be in force in relation to a person if:
12
(a) the order is a control order that has been made but has not yet
13
come into force because:
14
(i) it has not been served on the person; or
15
(ii) the person is detained in custody (within the meaning of
16
Part 5.3 of the
Criminal Code
); or
17
(b) the order is an extended supervision order or an interim
18
supervision order that has been made but the period specified
19
in the order under paragraph 105A.7A(4)(d) or
20
105A.9A(7)(c) of the
Criminal Code
has not yet begun.
21
6U Succeeding Part 5.3 supervisory orders
22
(1) If 2 or more successive control orders are made in relation to the
23
same person, each later control order is a
succeeding Part 5.3
24
supervisory order
in relation to each earlier control order.
25
Note:
If an interim control order is confirmed, the confirmed control order is
26
a succeeding Part 5.3 supervisory order in relation to the interim
27
control order (see the definition of
control order
in section 5).
28
(2) If an interim supervision order is made in relation to a person, any
29
later extended supervision order in relation to the person is a
30
succeeding Part 5.3 supervisory order
in relation to an earlier
31
interim supervision order.
32
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(3) If 2 or more successive extended supervision orders or interim
1
supervision orders are made in relation to the same person, each
2
later extended supervision order or interim supervision order is a
3
succeeding Part 5.3 supervisory order
in relation to each earlier
4
extended supervision order or interim supervision order.
5
329 Subsection 7(9) (paragraph (b) of the note)
6
Omit "control order", substitute "Part 5.3 supervisory order or an
7
application for a post-sentence order".
8
330 Section 34 (note)
9
Omit "control order", substitute "Part 5.3".
10
331 Section 38A (heading)
11
Omit "
control order
", substitute "
Part 5.3
".
12
332 Subsections 38A(2) and (3)
13
Omit "control order", substitute "Part 5.3".
14
333 Subsection 38A(4) (heading)
15
Omit "
control order
", substitute "
Part 5.3
".
16
334 Subsections 38A(5) and (6)
17
Omit "control order", substitute "Part 5.3".
18
335 Subsection 38A(7)
19
Omit "control order", substitute "Part 5.3".
20
336 Paragraph 44A(2)(a)
21
Omit "or 46(5)(a) to (f)", substitute ", 46(5)(a) to (f) or 46(8)(a) to (e)".
22
337 Paragraph 44A(2)(b)
23
Omit "or 46A(2B)(a) to (f)", substitute ", 46A(2B)(a) to (f) or
24
46A(2D)(a) to (e)".
25
338 Paragraph 45(2)(a)
26
Omit "or 46(5)(a) to (f)", substitute ", 46(5)(a) to (f) or 46(8)(a) to (e)".
27
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339 Paragraph 45(2)(b)
1
Omit "or 46A(2B)(a) to (f)", substitute ", 46A(2B)(a) to (f) or
2
46A(2D)(a) to (e)".
3
340 Subsection 46(4) (heading)
4
Repeal the heading, substitute:
5
Warrant sought for Part 5.3 supervisory order
6
341 Subsection 46(4)
7
Omit "control order" (first occurring), substitute "Part 5.3".
8
342 Subparagraphs 46(4)(d)(i) and (ii)
9
Omit "control order", substitute "Part 5.3 supervisory order".
10
343 Paragraph 46(4)(e)
11
Repeal the paragraph, substitute:
12
(e) information that would be likely to be obtained by
13
intercepting under a warrant communications made to or
14
from the service would be likely to substantially assist in
15
connection with:
16
(i) achieving a Part 5.3 object; or
17
(ii) determining whether the Part 5.3 supervisory order, or
18
any succeeding Part 5.3 supervisory order, has been, or
19
is being, complied with; and
20
344 Subsection 46(4) (note 2)
21
Repeal the note, substitute:
22
Note 2:
For Part 5.3 supervisory orders that have been made but not come into
23
force, see section 6T.
24
345 Paragraphs 46(5)(b) to (e)
25
Repeal the paragraphs, substitute:
26
(b) how much the information referred to in paragraph (4)(e)
27
would be likely to assist in connection with:
28
(i) achieving a Part 5.3 object; or
29
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(ii) determining whether the Part 5.3 supervisory order, or
1
any succeeding Part 5.3 supervisory order, has been, or
2
is being, complied with; and
3
(c) to what extent methods for:
4
(i) achieving a Part 5.3 object; or
5
(ii) determining whether the Part 5.3 supervisory order, or
6
any succeeding Part 5.3 supervisory order, has been, or
7
is being, complied with;
8
that do not involve so intercepting communications have
9
been used by, or are available to, the agency; and
10
(d) how much the use of such methods would be likely to assist
11
in connection with:
12
(i) achieving a Part 5.3 object; or
13
(ii) determining whether the Part 5.3 supervisory order, or
14
any succeeding Part 5.3 supervisory order, has been, or
15
is being, complied with; and
16
(e) how much the use of such methods would be likely to
17
prejudice:
18
(i) achieving a Part 5.3 object; or
19
(ii) determining whether the Part 5.3 supervisory order, or
20
any succeeding Part 5.3 supervisory order, has been, or
21
is being, complied with;
22
whether because of delay or for any other reason; and
23
346 Paragraph 46(5)(g)
24
Omit "the possibility that the person in relation to whom the control
25
order is in force", substitute "in relation to a Part 5.3 supervisory order
26
that is a control order--the possibility that the person in relation to
27
whom the control order is in force".
28
347 Subparagraph 46(5)(g)(v)
29
Omit "country; or", substitute "country; and".
30
348 Subparagraphs 46(5)(g)(vi) and (vii)
31
Repeal the subparagraphs.
32
349 After paragraph 46(5)(g)
33
Insert:
34
Extended supervision orders
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Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
123
(ga) in relation to a Part 5.3 supervisory order that is an extended
1
supervision order or interim supervision order--the
2
possibility that the person in relation to whom the order is in
3
force has committed, is committing, or will commit a serious
4
Part 5.3 offence; and
5
(gb) in relation to any Part 5.3 supervisory order--the possibility
6
that the person in relation to whom the order is in force:
7
(i) has contravened, is contravening or will contravene the
8
Part 5.3 supervisory order; or
9
(ii) will contravene a succeeding Part 5.3 supervisory order;
10
and
11
350 Paragraph 46(6)(a)
12
Omit "control order", substitute "Part 5.3 supervisory order".
13
351 At the end of section 46
14
Add:
15
Warrant sought for post-sentence order application
16
(7) If a Part 5.3 warrant agency applies to an eligible Judge or
17
nominated AAT member for a warrant in respect of a
18
telecommunications service and the Judge or nominated AAT
19
member is satisfied, on the basis of the information given to the
20
Judge or nominated AAT member under this Part in connection
21
with the application, that:
22
(a) Division 3 has been complied with in relation to the
23
application; and
24
(b) in the case of a telephone application--because of urgent
25
circumstances, it was necessary to make the application by
26
telephone; and
27
(c) there are reasonable grounds for suspecting that a particular
28
person is using, or is likely to use, the service; and
29
(d) the person is a terrorist offender in relation to whom an
30
application for a post-sentence order could be made; and
31
(e) the person is detained in custody; and
32
(f) there are reasonable grounds to suspect that there is an
33
appreciable risk of the person committing a serious Part 5.3
34
offence; and
35
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(g) consideration is being given, will be given, or is likely to be
1
given, by the AFP Minister (or a person on behalf of the AFP
2
Minister), as to whether to apply for a post-sentence order in
3
relation to the person; and
4
(h) information that would be likely to be obtained by
5
intercepting under a warrant communications made to or
6
from the service would be likely to assist in determining
7
whether to apply for the post-sentence order; and
8
(i) having regard to the matters referred to in subsection (8), and
9
to no other matters, the Judge or nominated AAT member
10
should issue a warrant authorising such communications to
11
be intercepted;
12
the Judge or nominated AAT member may, in the Judge's or
13
member's discretion, issue such a warrant.
14
(8) For the purposes of subsection (7), the matters to which the Judge
15
or nominated AAT member must have regard are:
16
(a) how much the privacy of any person or persons would be
17
likely to be interfered with by intercepting under a warrant
18
communications made to or from the service referred to in
19
subsection (7); and
20
(b) how much the information referred to in paragraph (7)(h)
21
would be likely to assist in determining whether to apply for
22
the post-sentence order; and
23
(c) to what extent methods of determining whether to apply for
24
the post-sentence order that do not involve so intercepting
25
communications have been used by, or are available to, the
26
AFP Minister (or a legal representative of the AFP Minister);
27
and
28
(d) how much the use of such methods would be likely to assist
29
in determining whether to apply for the post-sentence order;
30
and
31
(e) how much the use of such methods would be likely to
32
prejudice determining whether to apply for the post-sentence
33
order, whether because of delay or for any other reason; and
34
(f) in relation to an application by an interception agency of
35
Victoria--any submissions made by the Victorian PIM under
36
section 44A to the Judge or nominated AAT member; and
37
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125
(g) in relation to an application by an interception agency of
1
Queensland--any submissions made by the Queensland PIM
2
under section 45 to the Judge or nominated AAT member.
3
352 Subsection 46A(2A) (heading)
4
Repeal the heading, substitute:
5
Warrant for Part 5.3 supervisory order
6
353 Subsection 46A(2A)
7
Omit "control order" (first occurring), substitute "Part 5.3".
8
354 Paragraph 46A(2A)(d)
9
Omit "control order", substitute "Part 5.3 supervisory order".
10
355 Subparagraphs 46A(2A)(e)(iii) to (vi)
11
Repeal the subparagraphs, substitute:
12
(iii) achieving a Part 5.3 object; or
13
(iv) determining whether the Part 5.3 supervisory order, or
14
any succeeding Part 5.3 supervisory order, has been, or
15
is being, complied with; and
16
356 Subsection 46A(2A) (note 2)
17
Repeal the note, substitute:
18
Note 2:
For Part 5.3 supervisory orders that have been made but not come into
19
force, see section 6T.
20
357 Paragraphs 46A(2B)(b) to (e)
21
Repeal the paragraphs, substitute:
22
(b) how much the information referred to in paragraph (2A)(e)
23
would be likely to assist in connection with:
24
(i) achieving a Part 5.3 object; or
25
(ii) determining whether the Part 5.3 supervisory order, or
26
any succeeding Part 5.3 supervisory order, has been, or
27
is being, complied with; and
28
(c) to what extent methods (including the use of a warrant issued
29
under section 46) for:
30
(i) achieving a Part 5.3 object; or
31
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(ii) determining whether the Part 5.3 supervisory order, or
1
any succeeding Part 5.3 supervisory order, has been, or
2
is being, complied with;
3
that do not involve the use of a warrant issued under this
4
section in relation to the person have been used by, or are
5
available to, the agency; and
6
(d) how much the use of such methods would be likely to assist
7
in connection with:
8
(i) achieving a Part 5.3 object; or
9
(ii) determining whether the Part 5.3 supervisory order, or
10
any succeeding Part 5.3 supervisory order, has been, or
11
is being, complied with; and
12
(e) how much the use of such methods would be likely to
13
prejudice:
14
(i) achieving a Part 5.3 object; or
15
(ii) determining whether the Part 5.3 supervisory order, or
16
any succeeding Part 5.3 supervisory order, has been, or
17
is being, complied with;
18
whether because of delay or for any other reason; and
19
358 Paragraph 46A(2B)(g)
20
Omit "the possibility that the person in relation to whom the control
21
order is in force", substitute "in relation to a Part 5.3 supervisory order
22
that is a control order--the possibility that the person in relation to
23
whom the order is in force".
24
359 Subparagraph 46A(2B)(g)(v)
25
Omit "country; or", substitute "country; and".
26
360 Subparagraphs 46A(2B)(g)(vi) and (vii)
27
Repeal the subparagraphs.
28
361 After paragraph 46A(2B)(g)
29
Insert:
30
(ga) in relation to a Part 5.3 supervisory order that is an extended
31
supervision order or interim supervision order--the
32
possibility that the person in relation to whom the order is in
33
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No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
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127
force has committed, is committing, or will commit a serious
1
Part 5.3 offence; and
2
(gb) in relation to any Part 5.3 supervisory order--the possibility
3
that the person in relation to whom the order is in force:
4
(i) has contravened, is contravening, or will contravene, the
5
Part 5.3 supervisory order; or
6
(ii) will contravene a succeeding Part 5.3 supervisory order;
7
and
8
362 After subsection 46A(2B)
9
Insert:
10
Warrant sought for post-sentence order application
11
(2C) If a Part 5.3 warrant agency applies to an eligible Judge or
12
nominated AAT member for a warrant in respect of a person and
13
the Judge or nominated AAT member is satisfied, on the basis of
14
the information given to the Judge or nominated AAT member
15
under this Part in connection with the application, that:
16
(a) Division 3 has been complied with in relation to the
17
application; and
18
(b) in the case of a telephone application--because of urgent
19
circumstances, it was necessary to make the application by
20
telephone; and
21
(c) there are reasonable grounds for suspecting that a particular
22
person is using, or is likely to use, more than one
23
telecommunications service; and
24
(d) the person is a terrorist offender in relation to whom an
25
application for a post-sentence order could be made; and
26
(e) the person is detained in custody; and
27
(f) there are reasonable grounds to suspect that there is an
28
appreciable risk of the person committing a serious Part 5.3
29
offence; and
30
(g) consideration is being given, will be given, or is likely to be
31
given, by the AFP Minister (or a person on behalf of the AFP
32
Minister), as to whether to apply for a post-sentence order in
33
relation to the person; and
34
(h) information that would be likely to be obtained by
35
intercepting under a warrant:
36
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(i) communications made to or from any
1
telecommunications service that the person is using, or
2
is likely to use; or
3
(ii) communications made by means of a particular
4
telecommunications device or particular
5
telecommunications devices that the person is using, or
6
is likely to use;
7
would be likely to assist in determining whether to apply for
8
the post-sentence order; and
9
(i) having regard to the matters referred to in subsection (2D),
10
and to no other matters, the Judge or nominated AAT
11
member should issue a warrant authorising such
12
communications to be intercepted;
13
the Judge or nominated AAT member may, in the Judge's or
14
member's discretion, issue such a warrant.
15
(2D) For the purposes of subsection (2C), the matters to which the Judge
16
or nominated AAT member must have regard are:
17
(a) how much the privacy of any person or persons would be
18
likely to be interfered with by intercepting under a warrant:
19
(i) communications made to or from any
20
telecommunications service used, or likely to be used,
21
by the person in respect of whom the warrant is sought;
22
or
23
(ii) communications made by means of a particular
24
telecommunications device or particular
25
telecommunications devices used, or likely to be used,
26
by the person in respect of whom the warrant is sought;
27
and
28
(b) how much the information referred to in paragraph (2C)(h)
29
would be likely to assist in connection with determining
30
whether to apply for the post-sentence order; and
31
(c) to what extent methods (including the use of a warrant issued
32
under section 46) for determining whether to apply for a
33
post-sentence order that do not involve so intercepting
34
communications have been used by, or are available to, the
35
AFP Minister (or a legal representative of the AFP Minister);
36
and
37
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
129
(d) how much the use of such methods would be likely to assist
1
in determining whether to apply for the post-sentence order;
2
and
3
(e) how much the use of such methods would be likely to
4
prejudice determining whether to apply for the post-sentence
5
order, whether because of delay or for any other reasons; and
6
(f) in relation to an application by an interception agency of
7
Victoria--any submissions made by the Victorian PIM under
8
section 44A to the Judge or nominated AAT member; and
9
(g) in relation to an application by an interception agency of
10
Queensland--any submissions made by the Queensland PIM
11
under section 45 to the Judge or nominated AAT member.
12
363 Subsection 48(1) (note)
13
Repeal the note, substitute:
14
Note:
Only a Part 5.3 warrant agency may apply for a warrant under
15
section 46 in the circumstances mentioned in subsection 46(4) or (7).
16
364 Before subsection 49(3)
17
Insert:
18
Period of warrant
19
365 After subsection 49(6)
20
Insert:
21
(6A) To avoid doubt, a warrant issued on the basis that a Part 5.3
22
supervisory order is in force remains in force for the period
23
mentioned in subsection (3) even if the order ceases to be in force,
24
provided that the order is replaced by a succeeding Part 5.3
25
supervisory order.
26
Note 1:
If there is no succeeding Part 5.3 supervisory order, the warrant must
27
be revoked (see section 57).
28
Note 2:
A control order is not a succeeding Part 5.3 supervisory order in
29
relation to an extended supervision order, and vice versa (see
30
section 6U).
31
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
130
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
Particulars of serious offences
1
366 Before subsection 49(8)
2
Insert:
3
Content of warrants issued for Part 5.3 supervisory orders
4
367 Subsection 49(8)
5
Omit "control order warrant", substitute "warrant issued for a Part 5.3
6
supervisory order that is in force".
7
368 Paragraphs 49(8)(a) and (c)
8
Omit "control order", substitute "Part 5.3 supervisory order".
9
369 Paragraph 49(8)(d)
10
Repeal the paragraph, substitute:
11
(d) state whether the Part 5.3 supervisory order is:
12
(i) an interim control order; or
13
(ii) a confirmed control order; or
14
(iii) an interim supervision order; or
15
(iv) an extended supervision order.
16
370 At the end of section 49
17
Add:
18
Warrants issued for post-sentence order applications
19
(9) A warrant issued to determine whether to make an application for a
20
post-sentence order in relation to a person must:
21
(a) state that the warrant is issued on that basis; and
22
(b) specify the name of the person.
23
371 Subsection 57(6)
24
Omit "control order" (wherever occurring), substitute "Part 5.3
25
supervisory order".
26
372 Section 59B
27
Repeal the section, substitute:
28
Extended supervision orders
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No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
131
59B Notification to Ombudsman by Commonwealth agencies in
1
relation to Part 5.3 warrants
2
(1) Within 6 months after a Part 5.3 warrant is issued in response to an
3
application by a Commonwealth agency, the chief officer of the
4
agency must:
5
(a) notify the Ombudsman that the warrant has been issued; and
6
(b) give to the Ombudsman a copy of the warrant.
7
(2) As soon as practicable after an officer of a Commonwealth agency
8
contravenes any of the following conditions, restrictions or
9
provisions, the chief officer of the agency must notify the
10
Ombudsman of the contravention:
11
(a) a condition or restriction specified in the warrant under
12
subsection 49(2);
13
(b) the following provisions, to the extent that they apply to the
14
warrant:
15
(i) paragraph 57(1)(b);
16
(ii) subsection 63(1);
17
(iii) subsection 63(2);
18
(iv) section 79;
19
(c) section 79AA;
20
(d) subsection 103B(4).
21
(3) A failure to comply with subsection (1) or (2) does not affect the
22
validity of the warrant.
23
373 Subparagraphs 65A(2)(b)(i) to (iv)
24
Repeal the subparagraphs, substitute:
25
(i) achieving a Part 5.3 object;
26
(ii) determining whether a Part 5.3 supervisory order has
27
been, or is being, complied with;
28
374 Subparagraph 65A(2)(b)(v)
29
Omit "Division 104 of the
Criminal Code
(Control orders)", substitute
30
"Division 104 (control orders) or Division 105A (post-sentence orders)
31
of the
Criminal Code
".
32
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
132
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
375 At the end of paragraph 65A(2)(b)
1
Add:
2
; (vii) the performance of a function or duty, or the exercise of a
3
power, by a person, court or other body under, or in relation
4
to a matter arising under, a post-sentence detention law or a
5
post-sentence supervision law.
6
376 Paragraph 67(1C)(b)
7
Repeal the paragraph, substitute:
8
(b) if the information was obtained under a Part 5.3 warrant
9
issued on the basis that a Part 5.3 supervisory order was in
10
force in relation to a person--any of the following:
11
(i) achieving a Part 5.3 object;
12
(ii) determining whether the Part 5.3 supervisory order has
13
been, or is being, complied with; or
14
(c) if the information was obtained under any Part 5.3 warrant--
15
the performance of a function or duty, or the exercise of a
16
power, by a person, court or other body under, or in relation
17
to a matter arising under:
18
(i) Division 104 (control orders) or Division 105A
19
(post-sentence orders) of the
Criminal Code
; or
20
(ii) a post-sentence detention order or a post-sentence
21
supervision order; or
22
(iii) a preventative detention order law.
23
377 Section 79AA (heading)
24
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
25
378 Paragraphs 79AA(1)(b) and (c)
26
Omit "control order" (wherever occurring), substitute "Part 5.3
27
supervisory order".
28
379 Paragraphs 79AA(1)(d) and (e)
29
Repeal the paragraphs, substitute:
30
(d) the interception occurred when the Part 5.3 supervisory order
31
had been made but had not come into force; and
32
Extended supervision orders
Schedule 1
Main consequential amendments
Part 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
133
(e) the chief officer of the agency is satisfied that none of the
1
information obtained by the interception is likely to assist in
2
connection with achieving a Part 5.3 object;
3
380 Paragraphs 81A(2)(h) and 81C(2)(h)
4
Repeal the paragraphs, substitute:
5
(h) in the case of a Part 5.3 warrant--the name of the person to
6
whom the relevant Part 5.3 supervisory order or application
7
relates.
8
381 Subsection 83(3)
9
Omit "control order", substitute "Part 5.3".
10
382 Section 85A (heading)
11
Omit "
control order
", substitute "
Part 5.3
".
12
383 Subsection 85A(1)
13
Omit "control order", substitute "Part 5.3".
14
384 Subsections 103B(2) and (3)
15
Omit "control order", substitute "Part 5.3".
16
385 Paragraphs 103B(4)(a) and (b)
17
Omit "control order", substitute "Part 5.3".
18
386 Subsection 103B(5)
19
Omit "control order", substitute "Part 5.3".
20
387 Subsection 103B(6) (definition of
control order
21
information
)
22
Repeal the definition.
23
388 Subsection 103B(6)
24
Insert:
25
Part 5.3 information
means information that, if made public, could
26
reasonably be expected to enable a reasonable person to conclude
27
that:
28
Schedule 1
Extended supervision orders
Part 2
Main consequential amendments
134
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
(a) a Part 5.3 warrant is likely to be, or is not likely to be, in
1
force in relation to a telecommunications service used, or
2
likely to be used, by a particular person; or
3
(b) a Part 5.3 warrant is likely to be, or is not likely to be, in
4
force in relation to a particular person.
5
389 Subsections 139(1) and 139A(1)
6
Omit ", 139B(2) or 139C(2)", substitute "or 139B(2)".
7
390 Sections 139B and 139C
8
Repeal the sections, substitute:
9
139B Dealing for purposes relating to Part 5.3 orders
10
(1) An officer or staff member of:
11
(a) the Australian Federal Police; or
12
(b) the Police Force of a State or Territory;
13
may, for one or more purposes referred to in subsection (2), and for
14
no other purpose (other than a purpose referred to in
15
subsection 139(2) or (4A) or 139A(2), if applicable), communicate
16
to another person, make use of, or make a record of lawfully
17
accessed information other than foreign intelligence information.
18
(2) The purposes are purposes connected with the performance of a
19
function or duty, or the exercise of a power, by a person, court or
20
other body under, or in relation to a matter arising under:
21
(a) Division 104 (control orders) or Division 105A
22
(post-sentence orders) of the
Criminal Code
; or
23
(b) a post-sentence detention law or a post-sentence supervision
24
law.
25
391 Section 142
26
Omit ", 139B or 139C", substitute "or 139B".
27
392 Paragraph 150(1)(b)
28
Omit ", 139B(2) or 139C(2)", substitute "or 139B(2)".
29
Extended supervision orders
Schedule 1
Other consequential amendments
Part 3
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
135
Part 3--Other consequential amendments
1
Crimes Act 1914
2
393 Subsection 16F(1) (note)
3
After "continuing detention orders", insert "and extended supervision
4
orders".
5
Telecommunications (Interception and Access) Act 1979
6
394 Subparagraphs 180D(2)(b)(ia) and (c)(ia)
7
Omit "continuing detention orders", substitute "post-sentence orders".
8
395 Subparagraphs 181B(3)(b)(iia) and (6)(b)(iaa)
9
Omit "continuing detention orders", substitute "post-sentence orders".
10
396 Subparagraphs 182(2)(a)(iiia) and (3)(a)(iia)
11
Omit "continuing detention orders", substitute "post-sentence orders".
12
397 Subparagraph 182B(b)(iva)
13
Omit "continuing detention orders", substitute "post-sentence orders".
14
Schedule 2
Contingent amendments
136
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
Schedule 2--Contingent amendments
1
2
Telecommunications (Interception and Access) Act 1979
3
1 Clause 1 of Schedule 1
4
Omit:
5
(b)
the monitoring of a person subject to a control order, so
6
as to protect the public from terrorist acts, prevent
7
support for terrorist acts and hostile acts overseas and
8
detect breaches of the control order; or
9
substitute:
10
(b)
the monitoring of a person subject to a Part 5.3
11
supervisory order, so as to achieve a Part 5.3 object; or
12
2 Clause 2 of Schedule 1 (definition of
control order IPO
13
agency
)
14
Repeal the definition.
15
3 Clause 2 of Schedule 1
16
Insert:
17
Part 5.3 IPO agency
means a Part 5.3 warrant agency to the extent
18
that the agency applies for warrants issued in relation to Part 5.3
19
supervisory orders in force in relation to persons.
20
4 Clause 2 of Schedule 1 (paragraph (d) of the definition of
21
relevant agency
)
22
Repeal the paragraph, substitute:
23
(d) a Part 5.3 IPO agency.
24
5 Part 3 of Schedule 1 (heading)
25
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
26
6 Clause 51 of Schedule 1
27
Omit:
28
Contingent amendments
Schedule 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
137
•
If a control order is in force in relation to a person, an
1
international production order may be issued for purposes in
2
connection with the monitoring of the person, so as to protect
3
the public from terrorist acts, prevent support for terrorist acts
4
and hostile acts overseas and detect breaches of the control
5
order.
6
substitute:
7
•
If a Part 5.3 supervisory order is in force in relation to a
8
person, an international production order may be issued for
9
purposes in connection with the monitoring of the person, so
10
as to achieve a Part 5.3 object.
11
7 Clause 51 of Schedule 1
12
Omit:
13
•
An international production order may be issued in response
14
to an application made by a control order IPO agency.
15
substitute:
16
•
An international production order may be issued in response
17
to an application made by a Part 5.3 IPO agency.
18
8 Clause 51 of Schedule 1
19
Omit:
20
•
If an international production order is issued in relation to an
21
application made by a control order IPO agency, the agency
22
must notify the international production order to the
23
Ombudsman.
24
substitute:
25
Schedule 2
Contingent amendments
138
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
•
If an international production order is issued in relation to an
1
application made by a Part 5.3 IPO agency, the agency must
2
notify the international production order to the Ombudsman.
3
9 Division 2 of Part 3 of Schedule 1 (heading)
4
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
5
10 Clause 52 of Schedule 1 (heading)
6
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
7
11 Subclauses 52(1), (3) and (4) and 53(2) and (3) of
8
Schedule 1
9
Omit "control order", substitute "Part 5.3".
10
12 Clause 54 of Schedule 1
11
Omit "control order", substitute "Part 5.3".
12
13 Subclauses 55(1), (3) and (4) of Schedule 1
13
Omit "control order", substitute "Part 5.3".
14
14 Paragraph 56(a) of Schedule 1
15
Omit "control order", substitute "Part 5.3".
16
15 Clause 58 of Schedule 1 (heading)
17
Omit "
control order
", substitute "
Part 5.3
".
18
16 Subclause 58(1) of Schedule 1
19
Omit "control order", substitute "Part 5.3".
20
17 Paragraph 58(3)(a) of Schedule 1
21
Omit "control order", substitute "Part 5.3".
22
18 Clause 59 of Schedule 1 (heading)
23
Omit "
control order
", substitute "
Part 5.3
".
24
Contingent amendments
Schedule 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
139
19 Subclause 59(1) of Schedule 1
1
Omit "control order", substitute "Part 5.3".
2
20 Paragraph 59(3)(a) of Schedule 1
3
Omit "control order", substitute "Part 5.3".
4
21 Clause 60 of Schedule 1 (heading)
5
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
6
22 Subclause 60(1) of Schedule 1
7
Omit "control order", substitute "Part 5.3".
8
23 Subparagraphs 60(2)(g)(i) and (ii) and (h)(i) and (ii) of
9
Schedule 1
10
Omit "control order", substitute "Part 5.3 supervisory order".
11
24 Subparagraphs 60(2)(i)(i) to (iv) of Schedule 1
12
Repeal the subparagraphs, substitute:
13
(i) achieving a Part 5.3 object; or
14
(ii) determining whether the Part 5.3 supervisory order, or
15
any succeeding Part 5.3 supervisory order, has been, or
16
is being, complied with; and
17
25 Subparagraphs 60(2)(j)(i) to (iv) of Schedule 1
18
Repeal the subparagraphs, substitute:
19
(i) achieving a Part 5.3 object; or
20
(ii) determining whether the Part 5.3 supervisory order, or
21
any succeeding Part 5.3 supervisory order, has been, or
22
is being, complied with;
23
26 Paragraphs 60(2)(k) and (l) of Schedule 1
24
Omit "control order" (wherever occurring), substitute "Part 5.3".
25
27 Subclause 60(2) of Schedule 1 (note 3)
26
Repeal the note, substitute:
27
Note 3:
Sections 104.27 and 105A.18A of the
Criminal Code
create offences
28
for contravening Part 5.3 supervisory orders.
29
Schedule 2
Contingent amendments
140
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
28 Subparagraphs 60(5)(b)(i) to (iv), (c)(i) to (iv), (d)(i) to (iv)
1
and (e)(i) to (iv) of Schedule 1
2
Repeal the subparagraphs, substitute:
3
(i) achieving a Part 5.3 object; or
4
(ii) determining whether the Part 5.3 supervisory order, or
5
any succeeding Part 5.3 supervisory order, has been, or
6
is being, complied with;
7
29 Paragraph 60(5)(g) of Schedule 1
8
Repeal the paragraph, substitute:
9
(g) in relation to a Part 5.3 supervisory order that is a control
10
order--the possibility that the person in relation to whom the
11
control order is in force:
12
(i) has engaged, is engaging, or will engage, in a terrorist
13
act; or
14
(ii) has provided, is providing, or will provide, support for a
15
terrorist act; or
16
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
17
act; or
18
(iv) has provided, is providing, or will provide, support for
19
the engagement in a hostile activity in a foreign country;
20
or
21
(v) has facilitated, is facilitating, or will facilitate, the
22
engagement in a hostile activity in a foreign country;
23
(ga) in relation to a Part 5.3 supervisory order that is an extended
24
supervision order or an interim supervision order--the
25
possibility that the person in relation to whom the order is in
26
force has committed, is committing, or will commit, a serious
27
Part 5.3 offence;
28
(gb) in relation to any Part 5.3 supervisory order--the possibility
29
that the person in relation to whom the Part 5.3 supervisory
30
order is in force:
31
(i) has contravened, is contravening, or will contravene, the
32
Part 5.3 supervisory order; or
33
(ii) will contravene a succeeding Part 5.3 supervisory order;
34
30 Paragraphs 60(5)(h) and (i) of Schedule 1
35
Omit "control order", substitute "Part 5.3".
36
Contingent amendments
Schedule 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
141
31 Subparagraphs 60(6)(b)(i) to (iv), (c)(i) to (iv), (d)(i) to (iv)
1
and (e)(i) to (iv) of Schedule 1
2
Repeal the subparagraphs, substitute:
3
(i) achieving a Part 5.3 object; or
4
(ii) determining whether the Part 5.3 supervisory order, or
5
any succeeding Part 5.3 supervisory order, has been, or
6
is being, complied with;
7
32 Paragraph 60(6)(g) of Schedule 1
8
Repeal the paragraph, substitute:
9
(g) in relation to a Part 5.3 supervisory order that is a control
10
order--the possibility that the person in relation to whom the
11
control order is in force:
12
(i) has engaged, is engaging, or will engage, in a terrorist
13
act; or
14
(ii) has provided, is providing, or will provide, support for a
15
terrorist act; or
16
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
17
act; or
18
(iv) has provided, is providing, or will provide, support for
19
the engagement in a hostile activity in a foreign country;
20
or
21
(v) has facilitated, is facilitating, or will facilitate, the
22
engagement in a hostile activity in a foreign country;
23
(ga) in relation to a Part 5.3 supervisory order that is an extended
24
supervision order or an interim supervision order--the
25
possibility that the person in relation to whom the order is in
26
force has committed, is committing, or will commit, a serious
27
Part 5.3 offence;
28
(gb) in relation to any Part 5.3 supervisory order--the possibility
29
that the person in relation to whom the Part 5.3 supervisory
30
order is in force:
31
(i) has contravened, is contravening, or will contravene, the
32
Part 5.3 supervisory order; or
33
(ii) will contravene a succeeding Part 5.3 supervisory order;
34
33 Paragraphs 60(6)(h) and (i) of Schedule 1
35
Omit "control order", substitute "Part 5.3".
36
Schedule 2
Contingent amendments
142
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
34 Paragraph 60(7)(a) of Schedule 1
1
Omit "control order IPO agency", substitute "Part 5.3 IPO agency".
2
35 Paragraph 60(7)(a) of Schedule 1
3
Omit "control order referred", substitute "Part 5.3 supervisory order
4
referred".
5
36 Paragraph 60(8)(a) of Schedule 1
6
Omit "control order IPO agency", substitute "Part 5.3 IPO agency".
7
37 Paragraph 60(8)(a) of Schedule 1
8
Omit "control order referred", substitute "Part 5.3 supervisory order
9
referred".
10
38 Subclause 61(1) of Schedule 1
11
Omit "control order", substitute "Part 5.3".
12
39 Paragraph 61(3)(b) of Schedule 1
13
Omit "control order", substitute "Part 5.3".
14
40 Paragraph 61(3)(f) of Schedule 1
15
Omit "control order", substitute "Part 5.3 supervisory order".
16
41 Paragraph 61(3)(h) of Schedule 1
17
Repeal the paragraph, substitute:
18
(h) a statement to the effect that the Part 5.3 supervisory order is:
19
(i) an interim control order; or
20
(ii) a confirmed control order; or
21
(iii) an interim supervision order; or
22
(iv) an extended supervision order.
23
42 Paragraphs 61(4)(b), (5)(a) and (b), (6)(b) and (7)(a) and (b)
24
of Schedule 1
25
Omit "control order", substitute "Part 5.3".
26
43 Subclause 61(8) of Schedule 1
27
Omit "control order", substitute "Part 5.3".
28
Contingent amendments
Schedule 2
No. , 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
143
44 Paragraphs 61(9)(a) and (b) of Schedule 1
1
Omit "control order", substitute "Part 5.3".
2
45 Subclause 61(10) of Schedule 1 (example)
3
Omit "control order", substitute "Part 5.3".
4
46 Division 3 of Part 3 of Schedule 1 (heading)
5
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
6
47 Clause 63 of Schedule 1 (heading)
7
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
8
48 Subclauses 63(1), (3) and (4) and 64(2) and (3) of
9
Schedule 1
10
Omit "control order", substitute "Part 5.3".
11
49 Paragraphs 65(a) and 67(a) of Schedule 1
12
Omit "control order", substitute "Part 5.3".
13
50 Clause 69 of Schedule 1 (heading)
14
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
15
51 Subclause 69(1) of Schedule 1
16
Omit "control order", substitute "Part 5.3".
17
52 Paragraph 69(2)(a) of Schedule 1
18
Omit "control order", substitute "Part 5.3 supervisory order".
19
53 Subparagraphs 69(2)(e)(i) to (iv) of Schedule 1
20
Repeal the subparagraphs, substitute:
21
(i) achieving a Part 5.3 object; or
22
(ii) determining whether the Part 5.3 supervisory order has
23
been, or is being, complied with;
24
54 Paragraphs 69(2)(g) and (3)(a) of Schedule 1
25
Omit "control order", substitute "Part 5.3".
26
Schedule 2
Contingent amendments
144
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
55 Subparagraphs 69(3)(b)(i) to (iv) and (c)(i) to (iv) of
1
Schedule 1
2
Repeal the subparagraphs, substitute:
3
(i) achieving a Part 5.3 object; or
4
(ii) determining whether the Part 5.3 supervisory order has
5
been, or is being, complied with;
6
56 Paragraph 69(3)(c) of Schedule 1
7
Omit "control order IPO", substitute "Part 5.3 IPO".
8
57 Subparagraphs 69(3)(d)(i) to (iv) and (e)(i) to (iv) of
9
Schedule 1
10
Repeal the subparagraphs, substitute:
11
(i) achieving a Part 5.3 object; or
12
(ii) determining whether the Part 5.3 supervisory order has
13
been, or is being, complied with;
14
58 Subclause 70(1) of Schedule 1
15
Omit "control order", substitute "Part 5.3".
16
59 Paragraph 70(3)(b) of Schedule 1
17
Omit "control order", substitute "Part 5.3".
18
60 Paragraph 70(3)(e) of Schedule 1
19
Omit "control order", substitute "Part 5.3 supervisory order".
20
61 Paragraph 70(3)(g) of Schedule 1
21
Repeal the paragraph, substitute:
22
(g) a statement to the effect that the Part 5.3 supervisory order is:
23
(i) an interim control order; or
24
(ii) a confirmed control order; or
25
(iii) an interim supervision order; or
26
(iv) an extended supervision order.
27
62 Subclause 70(4) of Schedule 1
28
Omit "control order", substitute "Part 5.3".
29
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63 Paragraphs 70(5)(a) and (b) of Schedule 1
1
Omit "control order", substitute "Part 5.3".
2
64 Subclause 70(6) of Schedule 1
3
Omit "control order", substitute "Part 5.3".
4
65 Paragraphs 70(7)(a) and (b) of Schedule 1
5
Omit "control order", substitute "Part 5.3".
6
66 Division 4 of Part 3 of Schedule 1 (heading)
7
Omit "
control orders
", substitute "
Part 5.3 supervisory orders
".
8
67 Clause 72 of Schedule 1 (heading)
9
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
10
68 Subclauses 72(1) and (3) and 73(2) and (3) of Schedule 1
11
Omit "control order", substitute "Part 5.3".
12
69 Paragraphs 74(a) and 76(a) of Schedule 1
13
Omit "control order", substitute "Part 5.3".
14
70 Clause 78 of Schedule 1 (heading)
15
Omit "
control order
", substitute "
Part 5.3 supervisory order
".
16
71 Subclause 78(1) of Schedule 1
17
Omit "control order", substitute "Part 5.3".
18
72 Paragraph 78(2)(a) of Schedule 1
19
Omit "control order", substitute "Part 5.3 supervisory order".
20
73 Subparagraphs 78(2)(e)(i) to (iv) of Schedule 1
21
Repeal the subparagraphs, substitute:
22
(i) achieving a Part 5.3 object; or
23
(ii) determining whether the Part 5.3 supervisory order, or
24
any succeeding Part 5.3 supervisory order, has been, or
25
is being, complied with;
26
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74 Subparagraphs 78(5)(b)(i) to (iv) and (c)(i) to (iv) of
1
Schedule 1
2
Repeal the subparagraphs, substitute:
3
(i) achieving a Part 5.3 object; or
4
(ii) determining whether the Part 5.3 supervisory order, or
5
any succeeding Part 5.3 supervisory order, has been, or
6
is being, complied with;
7
75 Paragraph 78(5)(c) of Schedule 1
8
Omit "control order IPO", substitute "Part 5.3 IPO".
9
76 Subparagraphs 78(5)(d)(i) to (iv) and (e)(i) to (iv) of
10
Schedule 1
11
Repeal the subparagraphs, substitute:
12
(i) achieving a Part 5.3 object; or
13
(ii) determining whether the Part 5.3 supervisory order, or
14
any succeeding Part 5.3 supervisory order, has been, or
15
is being, complied with;
16
77 Subclause 79(1) of Schedule 1
17
Omit "control order", substitute "Part 5.3".
18
78 Paragraph 79(3)(b) of Schedule 1
19
Omit "control order", substitute "Part 5.3".
20
79 Paragraph 79(3)(e) of Schedule 1
21
Omit "control order", substitute "Part 5.3 supervisory order".
22
80 Paragraph 79(3)(g) of Schedule 1
23
Repeal the paragraph, substitute:
24
(g) a statement to the effect that the Part 5.3 supervisory order is:
25
(i) an interim control order; or
26
(ii) a confirmed control order; or
27
(iii) an interim supervision order; or
28
(iv) an extended supervision order.
29
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81 Subclause 79(4) of Schedule 1
1
Omit "control order", substitute "Part 5.3".
2
82 Paragraphs 79(5)(a) and (b) of Schedule 1
3
Omit "control order", substitute "Part 5.3".
4
83 Subclause 79(6) of Schedule 1 (example)
5
Omit "control order", substitute "Part 5.3".
6
84 Division 5 of Part 3 of Schedule 1 (heading)
7
Omit "
control order
", substitute "
Part 5.3
".
8
85 Clause 81 of Schedule 1 (heading)
9
Omit "
control order
", substitute "
Part 5.3
".
10
86 Subclauses 81(1) and (2) of Schedule 1
11
Omit "control order", substitute "Part 5.3".
12
87 Subclause 114(3) of Schedule 1
13
Omit "control order" (wherever occurring), substitute "Part 5.3
14
supervisory order".
15
88 Paragraph 132(2)(b) of Schedule 1
16
Omit "control order", substitute "Part 5.3".
17
89 Subclause 132(3) of Schedule 1
18
Omit "control order", substitute "Part 5.3".
19
90 Paragraphs 132(4)(a) and (b) of Schedule 1
20
Omit "control order", substitute "Part 5.3".
21
91 Subclause 132(5) of Schedule 1
22
Omit "control order", substitute "Part 5.3".
23
92 Paragraph 132(6)(b) of Schedule 1
24
Omit "control order", substitute "Part 5.3".
25
Schedule 2
Contingent amendments
148
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Offenders) Bill 2020
No. , 2020
93 Subclause 132(7) of Schedule 1
1
Omit "control order", substitute "Part 5.3".
2
94 Paragraphs 132(8)(a) and (b) of Schedule 1
3
Omit "control order", substitute "Part 5.3".
4
95 Subclause 132(9) of Schedule 1
5
Omit "control order", substitute "Part 5.3".
6
96 Subclause 132(10) of Schedule 1 (definition of
control
7
order information
)
8
Repeal the definition.
9
97 Subclause 132(10) of Schedule 1
10
Insert:
11
Part 5.3 information
means information that, if made public, could
12
reasonably be expected to enable a reasonable person to conclude
13
that:
14
(a) an international production order is likely to be, or is not
15
likely to be, in force under Part 3 of this Schedule in relation
16
to:
17
(i) an individual carriage service used, or likely to be used,
18
by a particular person; or
19
(ii) an individual message/call application service used, or
20
likely to be used, by a particular person; or
21
(iii) stored communications that consist of communications
22
that a particular person has made has made using an
23
individual carriage service; or
24
(iv) stored communications that consist of messages that a
25
particular person has sent or received using an
26
individual message/call application service; or
27
(v) stored communications that consist of recordings of
28
voice calls that a particular person has made or received
29
using an individual message/call application service; or
30
(vi) stored communications that consist of recordings of
31
video calls that a particular person has made or received
32
using an individual message/call application service; or
33
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(vii) stored communications that consist of material that a
1
particular person has uploaded for storage or back-up by
2
a storage/back-up service; or
3
(viii) stored communications that consist of material that a
4
particular person has posted to a general electronic
5
content service; or
6
(ix) telecommunications data that relates to communications
7
that a particular person has made using an individual
8
carriage service; or
9
(x) telecommunications data that relates to an individual
10
carriage service used, or likely to be used, by a
11
particular person; or
12
(xi) telecommunications data that relates to messages sent or
13
received by a particular person using an individual
14
message/call application service; or
15
(xii) telecommunications data that relates to voice calls made
16
or received by a particular person using an individual
17
message/call application service; or
18
(xiii) telecommunications data that relates to video calls made
19
or received by a particular person using an individual
20
message/call application service; or
21
(xiv) telecommunications data that relates to an individual
22
message/call application service used, or likely to be
23
used, by a particular person; or
24
(xv) telecommunications data that relates to material that has
25
been uploaded by a particular person for storage or
26
back-up by a storage/back-up service; or
27
(xvi) telecommunications data that relates to material that has
28
been posted by a particular person on a general
29
electronic content service; or
30
(b) an international production order is likely to be, or is not
31
likely to be, in force under Part 3 of this Schedule in relation
32
to a particular person.
33
98 Paragraph 139(2)(o) of Schedule 1
34
Omit "control order--the name of the person to whom the control order
35
relates", substitute "Part 5.3 supervisory order--the name of the person
36
to whom the Part 5.3 supervisory order relates".
37
Schedule 2
Contingent amendments
150
Counter-Terrorism Legislation Amendment (High Risk Terrorist
Offenders) Bill 2020
No. , 2020
99 Paragraph 153(1)(i) of Schedule 1
1
Omit "of the
Criminal Code
(control orders)", substitute "(control
2
orders) or Division 105A (post-sentence orders) of the
Criminal Code
".
3
100 Paragraph 153(1)(k) of Schedule 1
4
Repeal the paragraph, substitute:
5
(k) a post-sentence detention law or a post-sentence supervision
6
law;
7
(ka) the making of a decision whether to apply for a post-sentence
8
order, or for a variation or review of a post-sentence order,
9
under Division 105A of the
Criminal Code
in relation to a
10
person;
11
(kb) the making of a decision whether to apply for an order, or
12
make any other application in relation to an order, under a
13
post-sentence detention law or a post-sentence supervision
14
law in relation to a person;
15
101 Paragraph 153(4)(a) of Schedule 1
16
Omit "control order", substitute "Part 5.3".
17
102 Subclauses 163(2), 164(2) and 165(2) of Schedule 1
18
Omit "control order", substitute "Part 5.3".
19
103 Paragraphs 166(2)(b) and (3)(b) of Schedule 1
20
Omit "control order", substitute "Part 5.3".
21
104 Clause 177 of Schedule 1 (heading)
22
Omit "
control order
", substitute "
Part 5.3
".
23
105 Subclauses 177(1), (3) and (5) of Schedule 1
24
Omit "control order", substitute "Part 5.3".
25