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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Terrorism (High Risk Offenders) Bill 2017
Contents
Page
Part 1 Preliminary
Division 1.1 Introduction
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
Division 1.2 Interpretation generally
4 Definitions 2
5 Offender in lawful custody 4
6 Serving sentence of imprisonment 4
Division 1.3 Key concepts
7 Eligible offender 4
8 Convicted NSW terrorist offender 4
9 Convicted NSW underlying terrorism offender 5
10 Convicted NSW terrorism activity offender 6
11 Determining whether eligible offender is convicted NSW underlying
terrorism offender or convicted NSW terrorism activity offender 6
12 Preliminary proceedings for declaration that person is relevant offender 7
Terrorism (High Risk Offenders) Bill 2017 [NSW]
Contents
Page
Division 1.4 Application of Act
13 Application of Act to offences before commencement 8
14 Application of Act to commenced sentences of imprisonment 8
15 Construction of legislation so as not to exceed legislative power 8
Division 1.5 Relationship of Act with other laws
16 Relationship of Act with Crimes (High Risk Offenders) Act 2006 9
17 Bail Act 2013 does not apply 9
18 Rules of court 9
Part 2 Extended supervision orders
Division 2.1 Interpretation
19 Definition 10
Division 2.2 Supervision of certain eligible offenders
20 Supreme Court may make extended supervision orders against eligible
offenders if unacceptable risk 10
21 Determination of risk 10
Division 2.3 Application for extended supervision order
22 State may apply for extended supervision order 10
23 Requirements with respect to application 10
24 Pre-trial procedures 11
Division 2.4 Determination of application
25 Determination of application for extended supervision order 12
26 Term of extended supervision order 13
Division 2.5 Interim supervision orders
27 Interim supervision order 14
28 Term of interim supervision order 14
Division 2.6 General
29 Conditions that may be imposed on extended or interim supervision
order 14
30 Breach of supervision order 16
31 Supervision order may be varied or revoked 16
32 Expiry of Part 16
Part 3 Continuing detention orders
Division 3.1 Interpretation
33 Definitions 17
Division 3.2 Detention of certain eligible offenders
34 Supreme Court may make continuing detention orders against eligible
offenders if unacceptable risk 17
35 Determination of risk 18
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Contents
Page
Division 3.3 Application for continuing detention order
36 State may make application for continuing detention order 18
37 Requirements for application 18
38 Pre-trial procedures 18
Division 3.4 Determination of application
39 Determination of application for continuing detention order 19
40 Term of continuing detention order 21
Division 3.5 Interim detention orders
41 Interim detention order 21
42 Term of interim detention order 21
Division 3.6 Emergency detention orders
43 Ex parte application for emergency detention order 22
44 Making of emergency detention orders 22
45 Requirements with respect to application 22
46 Term of emergency detention order 23
Division 3.7 General
47 Detention order causes any supervision order to cease to have effect 23
48 Detention order may be varied or revoked 23
49 Warrant of committal 24
Part 4 Supreme Court proceedings
50 Nature and conduct of proceedings 25
51 Victim statements 25
52 Submissions by prescribed terrorism intelligence authorities 26
53 Right of appeal 26
54 Hearings 27
55 Costs not to be awarded against offender 27
56 Preservation of Supreme Court jurisdiction 27
Part 5 Information about eligible offenders
57 Definition 28
58 Requirement to provide offender information to Attorney General 28
59 Request to provide offender information to Attorney General 28
60 Use of offender information involving terrorism intelligence 28
61 Admissibility of documents or reports provided under Part 30
Part 6 Role of HRO Assessment Committee and inter-agency
co-operation
62 Meaning of "relevant agency" 31
63 Functions of HRO Assessment Committee 31
64 Inter-agency co-operation 31
65 Exchange of information and co-operative management of offenders 32
Part 7 Miscellaneous
66 Attorney General or prescribed person to act on behalf of State 33
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Contents
Page
67 Exchange of information about terrorism activities with other Australian
jurisdictions and their agencies 33
68 Proceedings for offences 33
69 Orders may be made at same time 33
70 Eligible offenders may be warned about application of Act 34
71 Disclosure and use of application documentation 34
72 Protection of certain persons from liability 34
73 Evidentiary certificates 35
74 Regulations 35
Schedule 1 Savings, transitional and other provisions 36
Schedule 2 Amendment of legislation 37
Page 4
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2017
New South Wales
Terrorism (High Risk Offenders) Bill 2017
Act No , 2017
An Act to provide for the supervision and detention of certain offenders posing an unacceptable
risk of committing serious terrorism offences; and to make consequential and related amendments
to certain legislation.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
Division 1.1 Introduction
1 Name of Act
This Act is the Terrorism (High Risk Offenders) Act 2017.
2 Commencement
(1) This Act commences on the relevant commencement day, except as provided by
subsection (3).
(2) The relevant commencement day is:
(a) if the date of assent to this Act is before the day on which Schedule 1 to the
Crimes (High Risk Offenders) Amendment Act 2017 commences--the day on
which that Schedule commences, or
(b) if the date of assent to this Act is on or after the day on which Schedule 1 to
the Crimes (High Risk Offenders) Amendment Act 2017 commences--the date
of assent.
(3) Schedule 2 (other than Schedule 2.10 [2], 2.12 and 2.14) commences on a day or days
to be appointed by proclamation.
3 Objects of Act
(1) The primary object of this Act is to provide for the extended supervision and
continuing detention of certain offenders posing an unacceptable risk of committing
serious terrorism offences so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage these offenders to undertake rehabilitation.
Division 1.2 Interpretation generally
4 Definitions
(1) In this Act:
Australian jurisdiction means:
(a) a State, or
(b) a Territory, or
(c) the Commonwealth.
business day means any day that is not a Saturday, Sunday or public holiday.
Commissioner of Corrective Services has the same meaning as Commissioner has
in the Crimes (Administration of Sentences) Act 1999.
Commonwealth Criminal Code means the Criminal Code set out in the Schedule to
the Criminal Code Act 1995 of the Commonwealth.
continuing detention order means an order for the detention of an eligible offender
made under Division 3.2.
control order means a control order within the meaning of Part 5.3 of the
Commonwealth Criminal Code.
convicted NSW terrorism activity offender--see section 10.
convicted NSW terrorist offender--see section 8.
convicted NSW underlying terrorism offender--see section 9.
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Part 1 Preliminary
correctional centre has the same meaning as in the Crimes (Administration of
Sentences) Act 1999.
Corrective Services NSW has the same meaning as in the Crimes (Administration of
Sentences) Act 1999.
corrective services officer means a correctional officer or community corrections
officer within the meaning of the Crimes (Administration of Sentences) Act 1999.
eligible offender--see section 7.
eligible offender in lawful custody--see section 5.
emergency detention order means an emergency order for the detention of an
eligible offender made under Division 3.6.
enforcement officer means:
(a) a corrective services officer, or
(b) a police officer.
extended supervision order means an order for the supervision of an eligible
offender made under Division 2.2.
function includes a power, authority or duty, and exercise a function includes
perform a duty.
HRO Assessment Committee means the High Risk Offenders Assessment
Committee established by section 24AB of the Crimes (High Risk Offenders) Act
2006.
interim detention order means an interim order for the detention of an eligible
offender made under Division 3.5.
interim supervision order means an interim order for the supervision of an eligible
offender made under Division 2.5.
Justice Health and Forensic Mental Health Network means the statutory health
corporation of that name specified in Schedule 2 to the Health Services Act 1997.
NSW indictable offence means an offence against a law of the State for which
proceedings may be taken on indictment (whether or not proceedings for the offence
may also be taken otherwise than on indictment).
order under Part 2 or 3 means any of the following orders:
(a) an extended supervision order,
(b) an interim supervision order,
(c) a continuing detention order,
(d) an interim detention order,
(e) an emergency detention order.
prescribed terrorism intelligence authority means any authority or other agency (or
authority or other agency of a kind) of an Australian jurisdiction that is prescribed by
the regulations.
qualified psychiatrist means a registered medical practitioner who is a fellow of the
Royal Australian and New Zealand College of Psychiatrists.
relevant expert means a person who has expertise in relation to a body of knowledge
of a kind prescribed by the regulations.
sentencing court, in relation to an eligible offender or other person who has served
or is serving a sentence of imprisonment for an offence, means:
(a) the court by which the sentence was imposed, and
(b) any court that heard an appeal in respect of that sentence.
serious terrorism offence means an offence against Part 5.3 of the Commonwealth
Criminal Code for which the maximum penalty is 7 or more years of imprisonment.
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Part 1 Preliminary
serving a sentence of imprisonment--see section 6.
supporting documentation, in relation to proceedings under Part 2 or 3, means the
documentation referred to in section 23 (3) or 37 (4), as the case requires.
terrorism activity means:
(a) any statement or other conduct of any person or group of persons involving
advocating support for engaging in any terrorist acts or violent extremism, or
(b) any conduct or other activity of any person or group of persons involving
planning or preparing for, or engaging in, any terrorist acts or violent
extremism.
terrorism intelligence means information relating to actual or suspected terrorism
activity (whether in the State or elsewhere) the disclosure of which could reasonably
be expected:
(a) to adversely affect the capacity of persons or bodies involved in the prevention
of terrorist acts from preventing such acts, or
(b) to prejudice criminal investigations, or
(c) to enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement, or
(d) to endanger a person's life or physical safety.
terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal
Code.
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
5 Offender in lawful custody
In this Act, an eligible offender in lawful custody includes, where used in relation to
an eligible offender who is subject to an extended supervision order or interim
supervision order, the offender being in lawful custody during a period for which the
offender is on remand for any offence.
6 Serving sentence of imprisonment
In this Act, a person is serving a sentence of imprisonment for an offence if:
(a) the person is serving a sentence of imprisonment for the offence by way of
full-time detention, or
(b) the person is on parole in respect of the offence.
Division 1.3 Key concepts
7 Eligible offender
In this Act, an eligible offender is a person who is:
(a) 18 years of age or older, and
(b) serving (or is continuing to be supervised or detained under this Act after
serving) a sentence of imprisonment for a NSW indictable offence.
8 Convicted NSW terrorist offender
In this Act, an eligible offender is a convicted NSW terrorist offender if:
(a) the offender is serving (or is continuing to be supervised or detained under this
Act after serving) a sentence of imprisonment for an offence against
section 310J of the Crimes Act 1900, or
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 1 Preliminary
(b) the offender has previously served a sentence of imprisonment for an offence
against section 310J of the Crimes Act 1900 and is serving (or is continuing to
be supervised or detained under this Act after serving) a sentence of
imprisonment for any other NSW indictable offence.
9 Convicted NSW underlying terrorism offender
(1) In this Act, an eligible offender is a convicted NSW underlying terrorism offender
if:
(a) the offender is serving (or is continuing to be supervised or detained under this
Act after serving) a sentence of imprisonment for a NSW indictable offence
(the offender's offence), and
(b) the offender's offence is a serious offence, and
(c) the offender's offence occurred in a terrorism context.
(2) Each of the following kinds of offences (however described) is a serious offence:
(a) an offence against the Firearms Act 1996,
(b) an offence against the Weapons Prohibition Act 1998,
(c) an offence that caused the death of, or grievous bodily harm or other serious
physical harm to, a person,
(d) an offence that caused serious damage to property,
(e) an offence that endangered a person's life (other than the life of the offender),
(f) an offence that caused a serious risk to the health or safety of the public or a
section of the public,
(g) an offence that seriously interfered with, or seriously disrupted, or destroyed,
an electronic system including, but not limited to, any of the following:
(i) an information system,
(ii) a telecommunications system,
(iii) a financial system,
(iv) a system used for the delivery of essential government services,
(v) a system used for, or by, an essential public utility,
(vi) a system used for, or by, a transport system,
(h) an offence of attempting, assisting, aiding, abetting, counselling, procuring,
soliciting, being an accessory to, encouraging, inciting or conspiring to
commit any of the kinds of offences mentioned in paragraphs (a)-(g).
(3) An eligible offender's offence occurred in a terrorism context if:
(a) the offender committed the offender's offence with:
(i) the intention of advancing a political, religious or ideological cause, and
(ii) the intention of coercing, or influencing by intimidation, the
government of an Australian jurisdiction or foreign country (or of part
of an Australian jurisdiction or foreign country) or of intimidating the
public or a section of the public, or
(b) the offender knew, or was reckless as to whether, the offender's offence would
materially assist any other person to commit:
(i) an offence against section 310J of the Crimes Act 1900, or
(ii) a NSW indictable offence that is a serious offence committed by the
other person with the intentions referred to in paragraph (a), or
(iii) a terrorism offence within the meaning of the Crimes Act 1914 of the
Commonwealth.
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Part 1 Preliminary
(4) In this section:
(a) a reference to any person or property is a reference to any person or property
wherever situated, within or outside the State (including within or outside
Australia), and
(b) a reference to the public includes a reference to the public of another
Australian jurisdiction or of a foreign country.
10 Convicted NSW terrorism activity offender
(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the
offender is serving (or is continuing to be supervised or detained under this Act after
serving) a sentence of imprisonment for a NSW indictable offence (the offender's
offence) and any of the following apply in respect of the offender:
(a) the offender has at any time been subject to a control order,
(b) the offender has at any time been a member of a terrorist organisation,
(c) the offender:
(i) has made statements or engaged in other conduct involving advocating
support for engaging in any terrorist acts, or
(ii) is associated or otherwise affiliated with other persons or with
organisations advocating support for engaging in any terrorist acts.
(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has
been convicted of an offence for the conduct concerned (whether in Australia or
elsewhere).
(3) In this section:
terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of
the Commonwealth Criminal Code.
11 Determining whether eligible offender is convicted NSW underlying terrorism
offender or convicted NSW terrorism activity offender
In determining whether an eligible offender is a convicted NSW underlying terrorism
offender or convicted NSW terrorism activity offender, the Supreme Court may take
into account:
(a) the views of the sentencing court at the time the offender was sentenced for the
offender's offence, and
(b) the views of the sentencing court at the time a person other than the offender
was sentenced for an offence if the person was a co-accused of the offender or
was convicted of assisting, aiding, abetting, counselling, procuring, soliciting,
being an accessory to, encouraging, inciting or conspiring to commit the
offender's offence, and
(c) evidence adduced in the proceedings for the offender's offence or in
proceedings against another person for an offence referred to in paragraph (b),
and
(d) any relevant terrorism intelligence, and
(e) the offender's criminal history (including prior convictions and findings of
guilt in respect of offences committed in the State or elsewhere), and any
pattern of offending behaviour disclosed by that history, and
(f) the results of any assessment prepared by a qualified psychiatrist, registered
psychologist, registered medical practitioner or other relevant expert as to the
offender's history of behaviour (including any patterns in, or the progression
of, that behaviour to date), and
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Part 1 Preliminary
(g) any information concerning the offender that the Court considers relevant
(including developmental or social factors and behaviour while in custody),
and
(h) any report prepared by Corrective Services NSW, the NSW Police Force or a
prescribed terrorism intelligence authority concerning the offender and the
offender's associates and affiliations, and
(i) information indicating that current or former associates of the offender have
been or are involved in terrorism activities, and
(j) any other information that the Court considers relevant.
12 Preliminary proceedings for declaration that person is relevant offender
(1) Application for declaration
The State may apply to the Supreme Court for a declaration that a person is any of
the following for the purposes of this Act:
(a) a convicted NSW terrorist offender,
(b) a convicted NSW underlying terrorism offender,
(c) a convicted NSW terrorism activity offender.
(2) An application for a declaration may be made:
(a) before an application for an order under Part 2 or 3 is made in respect of the
person (but only during the period in which an application for an extended
supervision order or continuing detention order can be made), or
(b) at any time while an application for an order under Part 2 or 3 in respect of the
person is pending.
(3) When declaration can be made
The Supreme Court may make the declaration if satisfied that the person is:
(a) a convicted NSW terrorist offender, or
(b) a convicted NSW underlying terrorism offender, or
(c) a convicted NSW terrorism activity offender.
(4) Duration of declaration
A declaration takes effect when it is made and remains in force until it expires or is
revoked.
(5) A declaration that a person is a convicted NSW terrorism activity offender expires:
(a) on the expiry of the period of 15 months (the default period) after the
declaration is made, or
(b) if an application for an order under Part 2 or 3 is made, but not finally
determined, within the default period--when the application is finally
determined.
(6) For the purposes of subsection (5), an application is not finally determined if:
(a) any period for bringing an appeal under this Act in respect of the application
has not expired (ignoring any period that may be available by way of extension
of time to appeal), or
(b) any appeal in respect of the application is pending (whether or not it is an
appeal brought as of right).
(7) The Supreme Court may revoke a declaration on the application of the State or the
person in respect of whom it is made.
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Part 1 Preliminary
(8) Effect of declaration
While a declaration is in force in respect of a person, the State is not required to
establish for the purposes of proceedings for an order under Part 2 or 3 in respect of
the person that:
(a) the person is an eligible offender, or
(b) the person is a convicted NSW terrorist offender, convicted NSW underlying
terrorism offender or convicted NSW terrorism activity offender (as the case
requires).
(9) Further applications
If the Supreme Court refuses to make a declaration in respect of a person or a
declaration expires or is revoked, the refusal, expiry or revocation does not prevent:
(a) another application for a declaration being made in respect of the same person,
or
(b) the Supreme Court granting that application if satisfied of any of the matters
referred to in subsection (3) at that time.
(10) Power of Supreme Court to make declarations not limited
This section does not limit any other power of the Supreme Court to make
declarations.
Division 1.4 Application of Act
13 Application of Act to offences before commencement
This Act applies to and in respect of offences committed before the date of assent to
this Act in the same way as it applies to and in respect of offences committed on or
after that date.
14 Application of Act to commenced sentences of imprisonment
This Act applies to and in respect of an eligible offender who is serving a sentence
of imprisonment that commenced before the date of assent to this Act in the same
way as it applies to and in respect of an eligible offender who is serving a sentence
of imprisonment that commences on or after that date.
15 Construction of legislation so as not to exceed legislative power
(1) Unless a contrary intention appears, if a provision of this Act or an instrument made
under this Act:
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the provision is not to
have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if:
(a) apart from this section, it is clear, taking into account the provision's context
and the purposes or objects underlying this Act, that the provision was
intended to have that valid application only if every invalid application, or a
particular invalid application, of the provision had also been within the
legislative power of the Parliament of New South Wales, or
(b) the provision's operation in relation to that valid application would be
different in a substantial respect from what would have been its operation in
relation to that valid application if every invalid application of the provision
had been within the legislative power of the Parliament of New South Wales.
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Part 1 Preliminary
(3) Subsection (2) does not limit the cases in which a contrary intention may be taken to
appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the Interpretation
Act 1987.
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places, circumstances or cases,
or
(b) one or more classes (however defined or determined) of persons, things,
matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which
the provision exceeds the legislative power of the Parliament of New South Wales.
valid application, in relation to a provision, means an application which, if it were
the provision's only application, would be within the legislative power of the
Parliament of New South Wales.
Division 1.5 Relationship of Act with other laws
16 Relationship of Act with Crimes (High Risk Offenders) Act 2006
This Act does not limit the circumstances in which an order can be made in respect
of an eligible offender under the Crimes (High Risk Offenders) Act 2006.
17 Bail Act 2013 does not apply
The Bail Act 2013 does not apply to or in respect of a person who is a defendant in
proceedings under this Act (except in proceedings for an offence against this Act).
18 Rules of court
(1) Rules of court may be made under the Supreme Court Act 1970 for regulating the
practice and procedure of the Supreme Court in respect of proceedings under this
Act.
(2) This section does not limit the rule-making powers conferred by the Supreme Court
Act 1970.
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Part 2 Extended supervision orders
Part 2 Extended supervision orders
Division 2.1 Interpretation
19 Definition
In this Part:
current custody or supervision, in relation to an eligible offender in respect of whom
an application for an order is made under this Part, means the custody or supervision
to which the offender is subject at the time of the application.
Division 2.2 Supervision of certain eligible offenders
20 Supreme Court may make extended supervision orders against eligible offenders if
unacceptable risk
The Supreme Court may make an order for the supervision in the community of an
eligible offender (called an extended supervision order) if:
(a) the offender is in custody or under supervision:
(i) while serving a sentence of imprisonment for a NSW indictable offence,
or
(ii) under an existing interim supervision order, extended supervision order,
interim detention order or continuing detention order, and
(b) an application for the order is made in accordance with this Part, and
(c) the Supreme Court is satisfied that the offender is any of the following:
(i) a convicted NSW terrorist offender,
(ii) a convicted NSW underlying terrorism offender,
(iii) a convicted NSW terrorism activity offender, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender
poses an unacceptable risk of committing a serious terrorism offence if not
kept under supervision under the order.
21 Determination of risk
For the purposes of this Part, the Supreme Court is not required to determine that the
risk of an eligible offender committing a serious terrorism offence is more likely than
not in order to determine that there is an unacceptable risk of the offender committing
such an offence.
Division 2.3 Application for extended supervision order
22 State may apply for extended supervision order
The State may apply to the Supreme Court for an extended supervision order.
23 Requirements with respect to application
(1) An application for an extended supervision order may be made only in respect of an
eligible offender who is in custody or under supervision:
(a) while serving a sentence of imprisonment for a NSW indictable offence, or
(b) under an existing interim supervision order, extended supervision order,
interim detention order or continuing detention order.
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Part 2 Extended supervision orders
(2) An application for an extended supervision order in respect of an eligible offender
may not be made until the last 12 months of the offender's current custody or
supervision.
(3) An application must be supported by documentation:
(a) that addresses each of the matters referred to in section 25 (3), and
(b) that includes a report (prepared by a qualified psychiatrist, registered
psychologist, registered medical practitioner or other relevant expert) that
assesses the likelihood of the eligible offender committing a serious terrorism
offence.
(4) An application may indicate the kinds of conditions that are considered to be
appropriate for inclusion under section 29 in the event that an extended supervision
order is made.
24 Pre-trial procedures
(1) An application for an extended supervision order must be served on the eligible
offender concerned within 2 business days after the application is filed in the
Supreme Court or within such further time as the Supreme Court may allow.
(2) The State must disclose to the eligible offender such documents, reports and other
information as are relevant to the proceedings on the application (whether or not
intended to be tendered in evidence):
(a) in the case of anything that is available when the application is made, as soon
as practicable after the application is made, and
(b) in the case of anything that subsequently becomes available, as soon as
practicable after it becomes available.
Note. Section 51 (10) provides that the State must not disclose a victim statement to the
eligible offender unless the person who made the statement consents to the disclosure.
(3) However, the State is not required to disclose to the eligible offender any document,
report or other information except in accordance with section 60 (or an order under
that section) if:
(a) the State or a prescribed terrorism intelligence authority intends to make an
application under that section for the document, report or other information to
be dealt with as terrorism intelligence, or
(b) the document, report or other information is the subject of a pending
application under that section for it to be dealt with as terrorism intelligence, or
(c) the Supreme Court has granted an application under that section for the
document, report or other information to be dealt with as terrorism
intelligence.
(4) A preliminary hearing into the application is to be conducted by the Supreme Court
within 28 days after the application is filed in the Supreme Court or within such
further time as the Supreme Court may allow.
(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the
supporting documentation would, if proved, justify the making of an extended
supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
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Part 2 Extended supervision orders
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case
requires) of the eligible offender and to furnish reports to the Supreme Court
on the results of those examinations, and
(b) directing the eligible offender to attend those examinations.
(6) Without limiting subsection (5) (a), the Supreme Court may also make orders
appointing any other relevant experts to furnish reports to the Supreme Court in
respect of the eligible offender on specified matters.
(7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the
supporting documentation would, if proved, justify the making of an extended
supervision order, the Supreme Court must dismiss the application.
Division 2.4 Determination of application
25 Determination of application for extended supervision order
(1) The Supreme Court may determine an application for an extended supervision order:
(a) by making an extended supervision order, or
(b) by dismissing the application.
(2) In determining whether or not to make an extended supervision order, the safety of
the community must be the paramount consideration of the Supreme Court.
(3) In determining whether or not to make an extended supervision order in respect of an
eligible offender, the Supreme Court must also have regard to the following matters
in addition to any other matter it considers relevant:
(a) the reports received from the persons appointed to conduct examinations of the
offender, and the level of the offender's participation in any such examination,
(b) the results of any other assessment prepared by a qualified psychiatrist,
registered psychologist, registered medical practitioner or other relevant
expert as to the likelihood of the offender committing a serious terrorism
offence, the willingness of the offender to participate in any such assessment,
and the level of the offender's participation in any such assessment,
(c) the results of any assessment as to the likelihood of persons with histories and
characteristics similar to those of the offender committing a serious terrorism
offence,
(d) any report prepared by Corrective Services NSW or the NSW Police Force as
to the extent to which the offender can reasonably and practicably be managed
in the community,
(e) any report prepared by a prescribed terrorism intelligence authority relevant to
whether the offender can reasonably and practicably be managed in the
community,
(f) any treatment or rehabilitation programs and other programs or initiatives in
which the offender has had an opportunity to participate, the willingness of the
offender to participate in any such programs or initiatives, and the level of the
offender's participation in any such programs or initiatives,
(g) options (if any) available if the offender is kept in custody or is in the
community (whether or not under supervision) that might reduce the
likelihood of the offender re-offending over time,
(h) the likelihood that the offender will comply with the obligations of an
extended supervision order,
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(i) without limiting paragraph (h), the level of the offender's compliance with any
obligations to which the offender is or has been subject while:
(i) on release on parole, or
(ii) subject to a control order, or
(iii) subject to an earlier extended supervision order or interim supervision
order, or
(iv) subject to any other order of a court,
(j) the offender's criminal history (including prior convictions and findings of
guilt in respect of offences committed in New South Wales or elsewhere), and
any pattern of offending behaviour disclosed by that history,
(k) the views of the sentencing court at the time the sentence of imprisonment was
imposed on the offender,
(l) any beliefs or commitments of the offender (whether of an ideological,
religious, political, social or other nature) that support engaging or
participating in terrorism activities,
(m) any other information that is available as to the likelihood that the offender
will commit a serious terrorism offence.
26 Term of extended supervision order
(1) An extended supervision order commences when it is made, or when the eligible
offender's current custody or supervision expires, whichever is the later.
(2) However the Supreme Court may, if an extended supervision order is made in
proceedings on an application for a continuing detention order, defer the operation of
an extended supervision order for a period of up to 7 days (the deferral period) if:
(a) the Court considers that it is necessary to detain the eligible offender for the
deferral period to enable arrangements to be made for supervision of the
offender in the community, and
(b) it does not appear to the Court that an interim detention order can be made for
the interim detention of the eligible offender.
(3) On the deferral of the operation of an extended supervision order, the Supreme Court
may order that the eligible offender concerned be detained for such period (not
exceeding the deferral period) after the offender's current custody expires as is
specified in the order.
(4) As soon as practicable after making an order under subsection (3), the Supreme Court
must issue a warrant for the committal of the eligible offender for the specified period
after the offender's current custody expires.
(5) The warrant is sufficient authority for the eligible offender to be kept in custody in
accordance with the terms of the warrant.
(6) An extended supervision order expires at the end of:
(a) such period (not exceeding 3 years from the day on which it commences) as is
specified in the order, or
(b) if the order is suspended for any period, the period specified in paragraph (a)
plus each period during which the order is suspended.
(7) An eligible offender's obligations under an extended supervision order are
suspended while the offender is in lawful custody, whether under this or any other
Act or law.
(8) Nothing in this section prevents the Supreme Court from making a second or
subsequent extended supervision order in respect of the same eligible offender.
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Division 2.5 Interim supervision orders
27 Interim supervision order
The Supreme Court may make an order for the interim supervision of an eligible
offender (called an interim supervision order) if, in proceedings for an extended
supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the
proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved,
justify the making of an extended supervision order.
28 Term of interim supervision order
(1) An interim supervision order commences on the day fixed in the order for its
commencement (or if no such day is fixed, as soon as it is made) and expires at the
end of:
(a) such period (not exceeding 28 days from the day on which it commences) as
is specified in the order, or
(b) if the order is suspended for any period--the period specified in paragraph (a)
plus each period during which the order is suspended.
(2) However, the Supreme Court may defer the operation of an interim supervision order
in relation to an eligible offender who is in current custody for a period of up to
7 days (the deferral period) if:
(a) the Court considers that it is necessary to detain the offender for the deferral
period to enable arrangements to be made for supervision of the offender in the
community, and
(b) it does not appear to the Court that an interim detention order can be made for
the interim detention of the offender.
(3) On the deferral of the operation of an interim supervision order, the Supreme Court
may order that the eligible offender concerned be detained for a specified period (not
exceeding the deferral period) after the offender's current custody expires.
(4) As soon as practicable after making an order under subsection (3), the Supreme Court
must issue a warrant for the committal of the eligible offender for the specified period
after the offender's current custody expires.
(5) The warrant is sufficient authority for the eligible offender to be kept in custody in
accordance with the terms of the warrant.
(6) An interim supervision order, and the eligible offender's obligations under that
interim supervision order, are suspended during any period the offender is in lawful
custody, whether under this or any other Act or law.
(7) An interim supervision order may be renewed from time to time, but not so as to
provide for the supervision of the eligible offender under such an order for periods
totalling more than 3 months.
(8) Any day or part of a day on which an interim supervision order is suspended does not
count towards the 3-month limit referred to in subsection (7).
Division 2.6 General
29 Conditions that may be imposed on extended or interim supervision order
(1) An extended supervision order or interim supervision order may direct an eligible
offender to comply with such conditions as the Supreme Court considers appropriate,
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including (but not limited to) directions requiring the offender to do any one or more
of the following:
(a) to permit any enforcement officer to visit the offender at the offender's
residential address at any time and, for that purpose, to enter the premises at
that address,
(b) to permit any enforcement officer to access any of the following:
(i) a computer or related electronic equipment that is at the offender's
residential address or in the possession of the offender,
(ii) data held within, or accessible from, the computer or related electronic
equipment (including data accessible by means of an electronic
identity),
(c) to permit any enforcement officer to seize any computer or other object at the
offender's residential address or in the possession of the offender for the
purpose of enabling it to be forensically examined,
(d) to use specified services or facilities,
(e) to make periodic reports to an enforcement officer,
(f) to notify an enforcement officer of any change in the offender's address,
(g) to participate in intervention programs or initiatives,
(h) to wear electronic monitoring equipment,
(i) to reside at an address approved by an enforcement officer,
(j) not to reside in or resort to specified locations or classes of locations,
(k) not to associate or make contact with specified persons or classes of persons,
(l) not to engage in specified conduct or classes of conduct,
(m) not to engage in specified financial, property or business dealings (including
not to enter into specified agreements or hold specified interests in connection
with such dealings),
(n) not to possess or use specified objects or substances,
(o) not to engage in specified employment or classes of employment,
(p) not to change the offender's name,
(q) to comply with any obligation that could be imposed on the offender under
Part 3 of the Child Protection (Offenders Registration) Act 2000 if the
offender were a registrable person within the meaning of that Act and were not
the subject of an interim supervision order or an extended supervision order,
(r) to comply with specified requirements in connection with the offender's
access to and use of the internet,
(s) to provide any enforcement officer with information about any one or more of
the following:
(i) a carriage service used, or intended to be used, by the offender
(including any telephone number used, or intended to be used, by the
offender),
(ii) an internet service provider or carriage service provider used, or
intended to be used, by the offender,
(iii) an internet connection used, or intended to be used, by the offender
(including whether the connection is a wireless, broadband,
Asymmetric Digital Subscriber Line (ADSL) or dial-up connection),
(iv) an electronic identity used, or intended to be used, by the offender,
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(t) to provide any enforcement officer with requested information in relation to
any employment or any financial affairs of the offender.
(2) In this section:
carriage service, carriage service provider and internet service provider have the
same meanings as in the Telecommunications Act 1997 of the Commonwealth.
electronic identity means each of the following:
(a) an email address,
(b) a user name or other identity allowing access to an instant messaging service,
(c) a user name or other identity allowing access to a chat room or social media
on the internet,
(d) any other user name or other identity allowing access to the internet or an
electronic communication service.
30 Breach of supervision order
A person to whom an extended supervision order or interim supervision order applies
must comply with the requirements of the order.
Maximum penalty: 500 penalty units or imprisonment for 5 years, or both.
31 Supervision order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke an extended supervision order or
interim supervision order on the application of the State or the eligible offender to
whom it applies.
(2) The period of an order must not be varied so that the period is greater than that
otherwise permitted under this Part.
(3) Without limiting the grounds for revoking an extended supervision order or interim
supervision order, the Supreme Court may revoke an extended supervision order or
interim supervision order if satisfied that circumstances have changed sufficiently to
render the order unnecessary.
(4) For the purpose of ascertaining whether to make such an application in relation to an
extended supervision order, both the Commissioner of Corrective Services and the
Commissioner of Police must provide the Attorney General with a report on the
eligible offender at intervals of not more than 12 months.
(5) A report must indicate whether the Commissioner concerned considers the
continuation of the extended supervision order to be necessary and appropriate.
32 Expiry of Part
(1) The regulations may declare a day (the expiry day) on or after which applications
cannot be made or granted for orders under this Part.
(2) The regulations may make provision for or with respect to matters of a savings or
transitional nature consequent on the declaration of the expiry day, including in
respect of the expiry, variation, suspension or revocation of existing orders under this
Part.
(3) Subject to regulations made for the purposes of subsection (2), an application cannot
be made or granted for an order under this Part on or after the expiry day.
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Part 3 Continuing detention orders
Division 3.1 Interpretation
33 Definitions
In this Part:
current custody, in relation to a detained offender in respect of whom an application
for an order is made under this Part, means the custody to which the offender is
subject at the time of the application.
detained offender means a person who is in custody:
(a) while serving a sentence of imprisonment for a NSW indictable offence, or
(b) under an existing continuing detention order, emergency detention order or
interim detention order.
supervised offender means a person in lawful custody or under supervision:
(a) under an extended supervision order or an interim supervision order, or
(b) whose obligations under an extended supervision order or an interim
supervision order have been suspended.
Division 3.2 Detention of certain eligible offenders
34 Supreme Court may make continuing detention orders against eligible offenders if
unacceptable risk
(1) The Supreme Court may make an order for the continued detention of an eligible
offender (called a continuing detention order) if:
(a) the offender is a detained offender or supervised offender, and
(b) an application for the order is made in accordance with this Part, and
(c) the Supreme Court is satisfied that the offender is any of the following:
(i) a convicted NSW terrorist offender,
(ii) a convicted NSW underlying terrorism offender,
(iii) a convicted NSW terrorism activity offender, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender
poses an unacceptable risk of committing a serious terrorism offence if not
kept in detention under the order.
(2) However, the Supreme Court must not make a continuing detention order in respect
of a supervised offender who is under an extended supervision order or an interim
supervision order that has not been suspended (the existing supervision order)
unless:
(a) the offender has been found guilty of an offence under section 30 in respect of
the existing supervision order, or
(b) the Supreme Court is satisfied that the offender poses an unacceptable risk of
committing a serious terrorism offence if a continuing detention order is not
made because of altered circumstances since the making of the existing
supervision order.
(3) Without limiting the matters that the Supreme Court may take into account for the
purposes of subsection (2) (b), the Court may take into account the failure to comply,
or an allegation that the supervised offender has failed to comply, with any
requirement of an existing supervision order.
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35 Determination of risk
For the purposes of this Part, the Supreme Court is not required to determine that the
risk of an eligible offender committing a serious terrorism offence is more likely than
not in order to determine that there is an unacceptable risk of the offender committing
such an offence.
Division 3.3 Application for continuing detention order
36 State may make application for continuing detention order
The State may apply to the Supreme Court for a continuing detention order.
37 Requirements for application
(1) An application for a continuing detention order may be made only in respect of:
(a) a detained offender, or
(b) a supervised offender.
(2) An application for a continuing detention order in respect of a detained offender may
not be made more than 12 months before:
(a) the end of the offender's total sentence, or
(b) the expiry of the existing continuing detention order,
as appropriate.
(3) An application in respect of a supervised offender who is serving a sentence of
imprisonment may not be made more than 12 months before the end of the person's
total sentence.
(4) An application must be supported by documentation:
(a) that addresses each of the matters referred to in section 39 (3), and
(b) that includes a report (prepared by a qualified psychiatrist, registered
psychologist, registered medical practitioner or other relevant expert) that
assesses the likelihood of the eligible offender committing a serious terrorism
offence.
(5) An application may indicate the kinds of conditions that are considered to be
appropriate for inclusion under section 29 in the event that an extended supervision
order is made.
38 Pre-trial procedures
(1) An application for a continuing detention order must be served on the eligible
offender concerned within 2 business days after the application is filed in the
Supreme Court or within such further time as the Supreme Court may allow.
(2) The State must disclose to the eligible offender such documents, reports and other
information as are relevant to the proceedings on the application (whether or not
intended to be tendered in evidence):
(a) in the case of anything that is available when the application is made, as soon
as practicable after the application is made, and
(b) in the case of anything that subsequently becomes available, as soon as
practicable after it becomes available.
Note. Section 51 (10) provides that the State must not disclose a victim statement to the
eligible offender unless the person who made the statement consents to the disclosure.
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(3) However, the State is not required to disclose to the eligible offender any document,
report or other information except in accordance with section 60 (or an order under
that section) if:
(a) the State or a prescribed terrorism intelligence authority intends to make an
application under that section for the document, report or other information to
be dealt with as terrorism intelligence, or
(b) the document, report or other information is the subject of a pending
application under that section for it to be dealt with as terrorism intelligence, or
(c) the Supreme Court has granted an application under that section for the
document, report or other information to be dealt with as terrorism
intelligence.
(4) A preliminary hearing into the application is to be conducted by the Supreme Court
within 28 days after the application is filed in the Supreme Court or within such
further time as the Supreme Court may allow.
(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the
supporting documentation would, if proved, justify the making of a continuing
detention order or extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case
requires) of the eligible offender and to furnish reports to the Supreme Court
on the results of those examinations, and
(b) directing the eligible offender to attend those examinations.
(6) Without limiting subsection (5) (a), the Supreme Court may also make orders
appointing any other relevant experts to furnish reports to the Supreme Court in
respect of the eligible offender on specified matters.
(7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the
supporting documentation would, if proved, justify the making of a continuing
detention order or extended supervision order, the Supreme Court must dismiss the
application.
Division 3.4 Determination of application
39 Determination of application for continuing detention order
(1) The Supreme Court may determine an application under this Part for a continuing
detention order:
(a) by making an extended supervision order, or
(b) by making a continuing detention order, or
(c) by dismissing the application.
(2) In determining whether or not to make a continuing detention order or extended
supervision order, the safety of the community must be the paramount consideration
of the Supreme Court.
(3) In determining whether or not to make a continuing detention order or extended
supervision order in respect of an eligible offender, the Supreme Court must also
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have regard to the following matters in addition to any other matter it considers
relevant:
(a) the reports received from the persons appointed to conduct examinations of the
offender, and the level of the offender's participation in any such examination,
(b) the results of any other assessment prepared by a qualified psychiatrist,
registered psychologist, registered medical practitioner or other relevant
expert as to the likelihood of the offender committing a serious terrorism
offence, the willingness of the offender to participate in any such assessment,
and the level of the offender's participation in any such assessment,
(c) the results of any assessment as to the likelihood of persons with histories and
characteristics similar to those of the offender committing a serious terrorism
offence,
(d) any report prepared by Corrective Services NSW or the NSW Police Force as
to the extent to which the offender can reasonably and practicably be managed
in the community,
(e) any report prepared by a prescribed terrorism intelligence authority relevant to
whether the offender can reasonably and practicably be managed in the
community,
(f) any treatment or rehabilitation programs and other programs or initiatives in
which the offender has had an opportunity to participate, the willingness of the
offender to participate in any such programs or initiatives, and the level of the
offender's participation in any such programs or initiatives,
(g) options (if any) available if the offender is kept in custody or is in the
community (whether or not under supervision) that might reduce the
likelihood of the offender re-offending over time,
(h) for an extended supervision order--the likelihood that the offender will
comply with the obligations of the extended supervision order,
(i) without limiting paragraph (h), the level of the offender's compliance with any
obligations to which the offender is or has been subject while:
(i) on release on parole, or
(ii) subject to a control order, or
(iii) subject to an extended supervision order or interim supervision order, or
(iv) subject to any other order of a court,
(j) the offender's criminal history (including prior convictions and findings of
guilt in respect of offences committed in New South Wales or elsewhere), and
any pattern of offending behaviour disclosed by that history,
(k) the views of the sentencing court at the time the sentence of imprisonment was
imposed on the offender,
(l) any beliefs or commitments of the offender (whether of an ideological,
religious, political, social or other nature) that support engaging or
participating in terrorism activities,
(m) any other information that is available as to the likelihood that the offender
will commit a serious terrorism offence.
(4) In determining whether or not to make a continuing detention order, the Supreme
Court is not to consider the ability to take action for a breach of the order in relation
to whether there is an unacceptable risk of the eligible offender committing serious
terrorism offences.
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40 Term of continuing detention order
(1) A continuing detention order:
(a) commences when it is made, or when the eligible offender's current custody
expires, whichever is the later, and
(b) expires at the end of such period (not exceeding 3 years from the day on which
it commences) as is specified in the order.
(2) Despite subsection (1), a continuing detention order made on application under this
Part in respect of a supervised offender who is not in custody commences when it is
made and expires at the end of such period (not exceeding 3 years from the day on
which it commences) as is specified in the order.
(3) An eligible offender's custody under a continuing detention order is suspended while
the offender is in lawful custody under any other Act or law, but that suspension does
not affect the expiry date of the order.
(4) Nothing in this section prevents the Supreme Court from making a second or
subsequent continuing detention order in respect of the same eligible offender.
Division 3.5 Interim detention orders
41 Interim detention order
The Supreme Court may make an order for the interim detention of an eligible
offender (called an interim detention order) if, in proceedings on an application for
a continuing detention order, it appears to the Court:
(a) that the offender's current custody (if any) will expire before the proceedings
are determined, and
(b) that the matters alleged in the supporting documentation would, if proved,
justify the making of an extended supervision order or continuing detention
order.
42 Term of interim detention order
(1) An interim detention order in respect of an eligible offender commences on the day
fixed in the order for its commencement (or, if no such day is fixed, as soon as it is
made) and expires:
(a) at the end of such period (not exceeding 28 days from the day on which it
commences) as is specified in the order, or
(b) if the order is suspended for any period--the period specified in paragraph (a)
plus each period during which the order is suspended, or
(c) on the commencement of an extended supervision order made in respect of the
offender.
(2) An eligible offender's custody under an interim detention order is suspended during
any period the offender is in lawful custody, whether under this or any other Act or
law.
(3) An interim detention order may be renewed from time to time, but not so as to
provide for the detention of the eligible offender under such an order for periods
totalling more than 3 months.
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Division 3.6 Emergency detention orders
43 Ex parte application for emergency detention order
(1) The State may apply to the Supreme Court for an order for the detention of an eligible
offender (called an emergency detention order) who is the subject of an extended
supervision order or an interim supervision order and who, because of altered
circumstances, poses an unacceptable and imminent risk of committing a serious
terrorism offence if the emergency detention order is not made.
(2) The Supreme Court may hear an application for an emergency detention order in the
absence of the eligible offender concerned.
44 Making of emergency detention orders
(1) The Supreme Court may make an emergency detention order if it appears to the
Court that the matters alleged in support of the application for the order would, if
proved, establish that because of altered circumstances, the eligible offender poses
an unacceptable and imminent risk of committing a serious terrorism offence if the
emergency detention order is not made.
(2) The Supreme Court is not to make more than one emergency detention order in
respect of the same occasion of altered circumstances.
45 Requirements with respect to application
(1) An application for an emergency detention order must be supported by an affidavit
of a relevant officer that addresses each of the following matters:
(a) the altered circumstances that give rise to the application,
(b) the reasons why because of the altered circumstances the extended supervision
order or interim supervision order to which the eligible offender is currently
subject will not prevent the offender from posing an unacceptable and
imminent risk of committing a serious terrorism offence,
(c) the reasons why there are no other practicable and available means of ensuring
that the eligible offender does not pose an imminent risk of committing a
serious terrorism offence (other than detention).
(2) The State:
(a) must notify the Legal Aid Commission of New South Wales in writing when
a decision is made to file an application in the Supreme Court for an
emergency detention order in respect of an eligible offender, and
(b) if requested to do so by the Commission--is to supply the Commission with a
copy of the application and supporting affidavit.
(3) However, the State may supply copies of an application and supporting affidavit
requested by the Commission that have been redacted to the extent required to
prevent the disclosure of any document, report or other information if:
(a) the State or a prescribed terrorism intelligence authority intends to make an
application under section 60 for the document, report or other information to
be dealt with as terrorism intelligence, or
(b) the document, report or other information is the subject of a pending
application under section 60 for it to be dealt with as terrorism intelligence, or
(c) the Supreme Court has granted an application under section 60 for the
document, report or other information to be dealt with as terrorism
intelligence.
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(4) In this section:
relevant officer means:
(a) the Commissioner of Police, or
(b) the Commissioner of Corrective Services, or
(c) a corrective services officer of the rank of Assistant Commissioner.
46 Term of emergency detention order
(1) An emergency detention order can be made to have effect for no longer than is
reasonably necessary to enable action to be taken under this Act to ensure that the
risk of the eligible offender committing a serious terrorism offence is not
unacceptable.
(2) An emergency detention order commences as soon as it is made and expires at the
end of such period (not exceeding 120 hours from when it commences) as is specified
in the order or at such earlier time as may be specified by the Supreme Court when
making the order.
Division 3.7 General
47 Detention order causes any supervision order to cease to have effect
(1) On the making of a continuing detention order in respect of an eligible offender, any
interim supervision order or extended supervision order in respect of the eligible
offender expires and ceases to have effect.
(2) On the making of an interim detention order in respect of an eligible offender, any
interim supervision order or extended supervision order in respect of the offender is
suspended and ceases to have effect until such time as the interim detention order
expires.
(3) On the making of an emergency detention order in respect of an eligible offender, any
interim supervision order or extended supervision order in respect of the offender is
suspended and ceases to have effect until such time as the emergency detention order
expires.
48 Detention order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke a continuing detention order,
interim detention order or emergency detention order on the application of the State
or the eligible offender to whom it applies.
(2) The period of an order must not be varied so that the period is greater than that
otherwise permitted under this Part.
(3) Without limiting the grounds for revoking a continuing detention order, interim
detention order or emergency detention order, the Supreme Court may revoke a
continuing detention order, interim detention order or emergency detention order if
satisfied that circumstances have changed sufficiently to render the order
unnecessary.
(4) For the purpose of ascertaining whether to make an application under this section in
relation to a continuing detention order, both the Commissioner of Corrective
Services and the Commissioner of Police must provide the Attorney General with a
report on the eligible offender at intervals of not more than 12 months.
(5) A report must indicate whether the Commissioner concerned considers the
continuation of the continuing detention order to be necessary and appropriate.
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49 Warrant of committal
(1) As soon as practicable after making a continuing detention order, interim detention
order or emergency detention order in respect of an eligible offender, the Supreme
Court must issue a warrant for the committal of the offender to a correctional centre
for the period specified in the order.
(2) The warrant is sufficient authority:
(a) for any police officer to convey, or arrest and convey, the eligible offender to
the correctional centre identified in the warrant, and
(b) for the governor of the correctional centre to keep the eligible offender in his
or her custody in accordance with the terms of the warrant.
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Part 4 Supreme Court proceedings
Part 4 Supreme Court proceedings
50 Nature and conduct of proceedings
(1) Proceedings under this Act (including proceedings on an appeal under this Act) are
civil proceedings and, to the extent to which this Act does not provide for their
conduct, are to be conducted in accordance with the law (including the rules of
evidence) relating to civil proceedings.
(2) To avoid doubt, a provision of this Act that provides for a document, report or other
information to be admissible in proceedings under this Act despite any Act or law to
the contrary does not affect any rule of evidence with respect to the relevance or
probative value of the document, report or other information once it is admitted into
evidence.
51 Victim statements
(1) As soon as practicable after an application for an order under Part 2 or 3 is made in
respect of an eligible offender who is a convicted NSW terrorist offender or
convicted NSW underlying terrorism offender, the person acting on behalf of the
State for the purposes of the application must take such steps as are reasonable (or,
if the application concerned is for an emergency detention order, as are practicable
in the circumstances) to ensure that written notice of the application is given to:
(a) each victim of the offender, or
(b) if any such victim is under 18 years of age or lacks legal capacity--that
victim's parent or guardian.
(2) The notice must inform the person that the person may make a statement orally
before the Supreme Court, or provide a statement in writing, about:
(a) the person's views about the order and any conditions to which the order may
be subject, and
(b) any other matters prescribed by the regulations.
(3) It is sufficient for the notice to be sent to the person at the person's last known address
as recorded in the Victims Register.
(4) A statement in writing must be provided before the date specified in the notice.
(5) Any statement in writing received before the final hearing date in respect of the
application may be placed before the Supreme Court for consideration in respect of
the application.
(6) An oral statement may be made at such time during the proceedings on the
application before the Supreme Court makes its decision on the application as the
Supreme Court determines.
(7) The Supreme Court is to hear an oral statement in the absence of the eligible offender
unless the person giving the statement consents to the offender being present.
(8) The Supreme Court may arrange for an oral statement to be made by way of closed
circuit television.
(9) A person who makes a statement may amend or withdraw the statement.
(10) The Supreme Court and the State must not disclose a statement (other than one given
in the presence of the eligible offender in accordance with subsection (7)) to the
offender to which the application relates unless the person who made the statement
consents to the disclosure.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 4 Supreme Court proceedings
(11) If consent is not provided the Supreme Court may:
(a) reduce the weight given to the statement, and
(b) take reasonable steps to disclose to the eligible offender, or the offender's legal
representative, the substance of the statement but only if the Court is satisfied
that those steps could not reasonably be expected to lead to the identification
of the victim or the person who made the statement.
(12) In this section:
victim of an eligible offender means a victim who is recorded on the Victims Register
in respect of the offender for the purposes of section 256 (2) (c) of the Crimes
(Administration of Sentences) Act 1999.
Victims Register has the same meaning it has in the Crimes (Administration of
Sentences) Act 1999.
52 Submissions by prescribed terrorism intelligence authorities
(1) The Supreme Court may allow a prescribed terrorism intelligence authority to make
submissions to the Court in respect of any of the following if the Court considers that
it would assist the Court to determine the proceedings:
(a) an application for a declaration under section 12,
(b) a preliminary hearing under section 24 or 38,
(c) an application for an order under Part 2 or 3.
(2) The Supreme Court may allow the submissions to be made either orally or in writing
(or both).
(3) The Supreme Court may take the submissions into account in determining the
proceedings.
53 Right of appeal
(1) An appeal to the Court of Appeal lies from any determination of the Supreme Court
to make, or to refuse to make, any of the following:
(a) a declaration under section 12,
(b) an order under Part 2 or 3.
(2) The appeal is to be by way of a rehearing under section 75A of the Supreme Court
Act 1970.
(3) The appeal must be made within the period of 28 days after the determination was
made unless the Court of Appeal grants leave for it to be made after that time.
(4) The making of an appeal does not stay the operation of the declaration or order under
appeal.
(5) If the Court of Appeal remits a matter to the Supreme Court for decision after an
appeal is made, the declaration or order under appeal continues in force, subject to
any order made by the Court of Appeal.
(6) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a
matter to the Supreme Court for decision after an appeal is made, the Court of Appeal
may make an interim order revoking or varying the declaration or order under appeal.
(7) Section 101 of the Supreme Court Act 1970 does not apply in respect of an appeal
against a determination referred to in subsection (1).
(8) Except as provided by subsection (7), this section does not limit any right of appeal
that may exist apart from this Act.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 4 Supreme Court proceedings
54 Hearings
This Act does not affect the right of any party to proceedings under this Act:
(a) to appear, either personally or by the party's legal representative, or
(b) to call witnesses and give evidence, or
(c) to cross-examine witnesses, or
(d) to make submissions to the Supreme Court on any matter connected with the
proceedings.
55 Costs not to be awarded against offender
An order for costs may not be made against an eligible offender in relation to any
proceedings under this Act (including proceedings on an appeal under this Act).
56 Preservation of Supreme Court jurisdiction
Except as provided by section 53 (7), nothing in this Act limits the jurisdiction of the
Supreme Court apart from this Act.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 5 Information about eligible offenders
Part 5 Information about eligible offenders
57 Definition
In this Part:
offender information means any document, report or other information that relates
to the behaviour, beliefs, financial circumstances, or physical or mental condition, of
an eligible offender, and includes terrorism intelligence about the offender.
58 Requirement to provide offender information to Attorney General
(1) The Attorney General may in the circumstances prescribed by the regulations, by
order in writing served on a person, require that person to provide the Attorney
General with offender information of a kind prescribed by the regulations that is in
the person's possession or under the person's control.
(2) A person on whom an order has been duly served must comply with the order.
Maximum penalty (subsection (2)):
(a) in the case of a corporation--100 penalty units, or
(b) in the case of an individual--100 penalty units or imprisonment for 2 years (or
both).
59 Request to provide offender information to Attorney General
The Attorney General may request:
(a) a court to provide any offender information to the Attorney General that is held
by the court, or
(b) a person in another Australian jurisdiction to provide offender information that
is in the person's possession or under the person's control.
60 Use of offender information involving terrorism intelligence
(1) Making of applications
The Attorney General or a prescribed terrorism intelligence authority may make an
application to the Supreme Court in any proceedings before the Court under this Act
for particular offender information to be dealt with as terrorism intelligence in the
proceedings.
(2) The Supreme Court may grant an application for particular offender information to
be dealt with as terrorism intelligence in the proceedings if the Court is satisfied that:
(a) the information was provided to the Attorney General under this Part, and
(b) the information is terrorism intelligence.
(3) Steps to maintain confidentiality
The Supreme Court is to take steps to maintain the confidentiality of such terrorism
intelligence, including steps to receive evidence and hear argument about the
intelligence in private.
(4) Subject to any agreement under subsection (5) and the regulations, the Supreme
Court is to allow one of the following forms of access to the terrorism intelligence to
be given to a party and the party's legal representatives (having regard to what the
Court considers appropriate because of the nature of the intelligence and the degree
of risk of disclosure to non-parties by the party or the legal representatives):
(a) providing both the party and the party's legal representatives with a copy of
the intelligence,
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 5 Information about eligible offenders
(b) providing the party's legal representatives with a copy of the intelligence and
allowing the party to view (but not have a copy of) that intelligence,
(c) providing the party's legal representatives with a copy of the intelligence, but
denying the party any form of access to that intelligence,
(d) allowing both the party and the party's legal representatives to view (but not
have a copy of) the intelligence,
(e) allowing the party's legal representatives to view (but not have a copy of) the
intelligence, but denying the party any form of access to that intelligence.
(5) Agreements concerning dealing with terrorism intelligence under section
An agreement may be entered at any time in the proceedings by the following
persons as to arrangements about the disclosure, protection, storage, handling or
destruction of the terrorism intelligence in the proceedings:
(a) the Attorney General on behalf of the State,
(b) if the terrorism intelligence is provided by a prescribed terrorism intelligence
authority--the authority,
(c) one or more other parties to the proceedings (or their legal representatives on
their behalf).
(6) Orders by Supreme Court for purposes of section
The Supreme Court may make such orders that it considers appropriate:
(a) to prohibit or restrict access to, or the disclosure or publication of, the
terrorism intelligence for the purposes of this section, or
(b) to give effect to an agreement under subsection (5).
(7) A person is guilty of an offence if the person contravenes an order under this section.
Maximum penalty:
(a) in the case of a corporation--100 penalty units, or
(b) in the case of an individual--100 penalty units or imprisonment for 2 years (or
both).
(8) A person is guilty of an offence against this subsection if the person commits an
offence against subsection (7) in circumstances in which the person:
(a) intends to endanger the health or safety of any person or prejudice the effective
conduct of an investigation into a relevant indictable offence, or
(b) knows that, or is reckless as to whether, the disclosure of the information:
(i) endangers or will endanger the health or safety of any person, or
(ii) prejudices or will prejudice the effective conduct of an investigation
into a relevant indictable offence.
Maximum penalty: imprisonment for 7 years.
(9) Regulations concerning dealing with terrorism intelligence under section
The regulations may make provision for or with respect to:
(a) the ways in which terrorism intelligence to which this section applies is to be
stored, handled or destroyed, and
(b) the ways in which, and places at which, terrorism intelligence to which this
section applies may be accessed and documents or records relating to such
intelligence may be prepared.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 5 Information about eligible offenders
(10) Definition
In this section:
relevant indictable offence means an offence against a law of this State or any other
Australian jurisdiction that may be prosecuted on indictment.
61 Admissibility of documents or reports provided under Part
Any document or report (or a copy of a document or report) provided to the Attorney
General under this Part is admissible in proceedings under this Act despite any Act
or law to the contrary.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 6 Role of HRO Assessment Committee and inter-agency co-operation
Part 6 Role of HRO Assessment Committee and inter-agency
co-operation
62 Meaning of "relevant agency"
For the purposes of this Part, each of the following is a relevant agency:
(a) Corrective Services NSW,
(b) the Department of Family and Community Services,
(c) the Justice Health and Forensic Mental Health Network,
(d) the Department of Justice,
(e) the NSW Police Force,
(f) the Ministry of Health,
(g) any other agency of any Australian jurisdiction that is prescribed by the
regulations as a relevant agency.
63 Functions of HRO Assessment Committee
Without limiting its functions under Part 4A of the Crimes (High Risk Offenders) Act
2006, the HRO Assessment Committee has the following functions:
(a) to review the risk assessments of eligible offenders and make
recommendations to the Commissioner of Corrective Services for the taking
of action by the State under this Act in respect of those offenders,
(b) to facilitate co-operation between and the co-ordination of relevant agencies
in the exercise of their functions in connection with risk assessment and
management of eligible offenders who could be subject to this Act (the high
risk terrorism offender functions of relevant agencies),
(c) to monitor and provide expert oversight of the exercise of the high risk
terrorism offender functions of relevant agencies for the purpose of identifying
opportunities for improved outcomes in individual cases and opportunities for
systemic improvement and removal of inter-agency barriers to the effective
exercise of high risk terrorism offender functions,
(d) to facilitate information sharing between relevant agencies in connection with
the exercise of their high risk terrorism offender functions,
(e) to develop best practice standards and guidelines for the exercise by relevant
agencies of their high risk terrorism offender functions,
(f) to identify gaps in resourcing, service provision and training that may impact
on the proper and effective exercise of high risk terrorism offender functions,
(g) to conduct research into the effectiveness of this Act in ensuring the safety and
protection of the community and to disseminate the results of that research,
(h) such other functions in connection with the operation of this Act as the
Minister may from time to time direct.
Note. Part 4A of the Crimes (High Risk Offenders) Act 2006 provides for the establishment of
the HRO Assessment Committee and its functions. It also makes provision for the
establishment of sub-committees and the furnishing of reports and information by it.
64 Inter-agency co-operation
(1) Each relevant agency of the State is under a duty to co-operate with other relevant
agencies in the exercise of the functions of the agency that are concerned with risk
assessment and management of eligible offenders who could be subject to this Act
(high risk terrorism offender functions).
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 6 Role of HRO Assessment Committee and inter-agency co-operation
(2) The duty to co-operate includes the following duties:
(a) the duty to disclose information to another relevant agency that is likely to be
of assistance to the other agency in the exercise of its high risk terrorism
offender functions,
(b) the duty to provide reasonable assistance and support to another relevant
agency in connection with the exercise by the other relevant agency of its high
risk terrorism offender functions,
(c) the duty to co-operate in connection with the exercise of the functions of the
HRO Assessment Committee.
(3) Co-operation between relevant agencies in the exercise of high risk terrorism
offender functions can include (but is not limited to) any of the following:
(a) the development of multi-agency management plans for high risk offenders,
(b) providing assistance and support to high risk offenders through joint
programs.
(4) Any duty to disclose information under this section is subject to the requirements of
any applicable co-operative protocols under section 65 concerning disclosure or
non-disclosure of information that is terrorism intelligence.
65 Exchange of information and co-operative management of offenders
(1) A relevant agency of the State may enter into arrangements (co-operative protocols)
with other relevant agencies to enable information held by each of the agencies
concerned to be shared or exchanged between those agencies and the co-operative
management of eligible offenders who could be subject to this Act.
(2) The information to which a co-operative protocol may relate is limited to the
following:
(a) information concerning eligible offenders,
(b) any other information that may be prescribed by the regulations.
(3) Under a co-operative protocol, each relevant agency of the State the subject of the
arrangement is authorised:
(a) to request and receive information held by any other relevant agency the
subject of the arrangement, and
(b) to disclose information to any of those relevant agencies,
without the consent of any person concerned, but only to the extent that the
information is reasonably necessary to assist in the exercise of functions under this
Act or the functions of the relevant agencies concerned.
(4) This section does not limit the operation of any Act under which the relevant agency
is authorised or required to disclose information to another person or body.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 7 Miscellaneous
Part 7 Miscellaneous
66 Attorney General or prescribed person to act on behalf of State
The Attorney General (or any other person prescribed by the regulations) is entitled
to act on behalf of the State for the purposes of applications made under this Act.
67 Exchange of information about terrorism activities with other Australian
jurisdictions and their agencies
(1) The Attorney General may, on behalf of the State (or any of its agencies), enter into
an agreement (a terrorism information exchange agreement) with one or more other
Australian jurisdictions (or one or more of their agencies) for the exchange or sharing
of information that the parties hold about terrorism activities or suspected terrorism
activities.
(2) The Attorney General may agree to such terms as the Attorney General considers
appropriate for inclusion in a terrorism information exchange agreement.
(3) If information to which a terrorism information exchange agreement applies is held
by an agency of the State, the agency is authorised:
(a) to request and receive information held by any other agency to which the
agreement applies in accordance with the terms of the agreement, and
(b) to disclose information it holds to any of those agencies in accordance with the
terms of the agreement,
without the consent of any person concerned, but only to the extent that the
information is reasonably necessary to assist in the exercise of functions under this
Act.
(4) The Attorney General is also authorised to use information about terrorism activities
or suspected terrorism activities obtained under a terrorism information exchange
agreement (without the consent of any person concerned) for the purposes of any of
the following, but only in accordance with the terms of the agreement:
(a) an application for a declaration under section 12,
(b) a preliminary hearing under section 24 or 38,
(c) an application for an order under Part 2 or 3.
(5) This section does not limit the operation of any Act under which the State (or its
agencies) are authorised or required to disclose information to another person or
body.
(6) In this section:
agency includes a prescribed terrorism intelligence authority.
68 Proceedings for offences
Proceedings for an offence under this Act (except against section 30 or 60 (7) or (8))
or the regulations are to be dealt with summarily before the Local Court.
Note. Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal
of certain indictable offences unless an election is made to proceed on indictment) applies to
and in respect of an offence under section 30 or 60 (7) or (8). See Table 2 of Schedule 1 to
that Act.
69 Orders may be made at same time
(1) Nothing in this Act prevents the Supreme Court from making an extended
supervision order in respect of a person at the same time that it makes a continuing
detention order in respect of the person.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 7 Miscellaneous
(2) In such a case (and despite section 28 (1)), the extended supervision order
commences on the expiry of the continuing detention order and expires:
(a) at the end of such period (not exceeding 3 years from the day on which it
commences) as is specified in the order, or
(b) if the order is suspended for any period, the period specified in paragraph (a)
plus each period during which the order is suspended.
70 Eligible offenders may be warned about application of Act
A court that sentences a person for a NSW indictable offence may cause the person
to be advised of the existence of this Act and of its application to the offence if the
court considers that it is appropriate in the circumstances to do so unless the person
is not present at the time of sentencing.
71 Disclosure and use of application documentation
(1) The State may disclose an expert report concerning an eligible offender:
(a) to a corrective services officer or any other person responsible for the
supervision (whether in custody or in the community), treatment or risk
assessment of the offender for use solely in providing rehabilitation, care or
treatment of the offender, and
(b) to any person in connection with the exercise of the person's functions under
this Act.
(2) An expert report concerning an eligible offender may be disclosed and used in any
proceedings in respect of the offender if the Supreme Court determines that:
(a) the proceedings are closely related to the proceedings under section 24 or 38
in which the expert report was used, and
(b) it is in the public interest, and
(c) the information would inform the Supreme Court about the history of the
defendant's mental state with respect to his or her offending.
(3) The disclosure and use of an expert report for a purpose referred to in subsection (1)
or (2) is permitted despite this Act or any other law to the contrary or any duty of
confidentiality concerning the expert report.
(4) This section does not authorise the further disclosure of an expert report by the
person to whom it was disclosed in accordance with this section.
(5) In this section:
disclose an expert report includes the following:
(a) to make available,
(b) to disclose copies, contents or descriptions of the report.
expert report concerning an eligible offender means a report prepared as referred to
in section 23 (3) or 37 (4), or received from persons appointed under section 24 (5)
or (6) or 38 (5) or (6), concerning an eligible offender who is the subject of an
application for an extended supervision order or continuing detention order.
use of an expert report includes use of copies, contents or descriptions of that report.
72 Protection of certain persons from liability
No action lies against any person (including the State) for or in respect of any act or
omission done or omitted by the person if it was done or omitted in good faith for the
purposes of, or in connection with the administration or execution of, this Act.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Part 7 Miscellaneous
73 Evidentiary certificates
A certificate issued by the Commissioner of Corrective Services that states that an
extended supervision order imposed on a specified offender was suspended under
section 26 and the date of the expiry of the order in accordance with that section is
admissible in any legal proceedings despite any Act or law to the contrary and is
evidence of the facts so stated.
74 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) The regulations may create offences punishable by a penalty not exceeding
100 penalty units.
(3) Section 5 of the Subordinate Legislation Act 1989 does not apply to the first principal
statutory rule that is made under this Act.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
(4) To avoid doubt, a regulation made for the purposes of this clause may exclude or
otherwise modify the operation of any provision of this Schedule as well as any other
provision of this Act.
(5) Without limiting subclause (4), a regulation made for the purposes of this clause may
make separate savings and transitional provisions or amend this Schedule to
consolidate the savings and transitional provisions.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Schedule 2 Amendment of legislation
Schedule 2 Amendment of legislation
2.1 Bail Act 2013 No 26
Section 4 Definitions
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in the definition of supervision order in section 4 (1).
2.2 Births, Deaths and Marriages Registration Act 1995 No 62
Section 25F Definitions
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in paragraph (a) of the definition of supervision order in section 25F.
2.3 Child Protection (Offenders Prohibition Orders) Act 2004 No 46
Section 16B Commissioner of Police may apply for orders
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in section 16B (b) (i).
2.4 Child Protection (Offenders Registration) Act 2000 No 42
Section 15 Suspension and extension of reporting obligations
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in section 15 (1) (d).
2.5 Child Protection (Offenders Registration) Regulation 2015
Clause 4 Definition of "supervising authority"
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in clause 4 (b) (v).
2.6 Crimes (Administration of Sentences) Act 1999 No 93
[1] Section 3 Interpretation
Insert in alphabetical order in section 3 (1):
Commonwealth Criminal Code means the Criminal Code set out in the
Schedule to the Criminal Code Act 1995 of the Commonwealth.
Commonwealth post sentence terrorism inmate means an inmate of a kind
referred to in section 4 (1) (c3).
NSW offence means an offence against a law of the State.
NSW post sentence inmate means:
(a) an inmate of a kind referred to in section 4 (1) (c1), or
(b) an inmate of a kind referred to in section 4 (1) (c2).
[2] Section 3 (1), definition of "serious offender"
Insert after paragraph (e) of the definition:
(e1) a Commonwealth post sentence terrorism inmate, or
(e2) a NSW post sentence inmate, or
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Schedule 2 Amendment of legislation
[3] Section 4 Application of Part
Insert after section 4 (1) (c1):
(c2) any person the subject of a warrant under section 49 of the Terrorism
(High Risk Offenders) Act 2017 by which the Supreme Court has
committed the person to a correctional centre pursuant to a continuing
detention order, interim detention order or emergency detention order
under that Act, and
(c3) any person the subject of a continuing detention order or interim
detention order in force under Division 105A of Part 5.3 of the
Commonwealth Criminal Code who, under an arrangement with the
State under section 105A.21 of that Code, is detained in a correctional
centre, and
[4] Section 79 Regulations
Insert at the end of the section:
(2) Without limiting subsection (1), the regulations may make provision for or
with respect to the treatment, accommodation and detention of
Commonwealth post sentence terrorism inmates and NSW post sentence
inmates.
[5] Section 126 Eligibility for release on parole
Omit section 126 (4). Insert instead:
(4) An offender is not eligible for release on parole for a NSW offence if the
offender is:
(a) a Commonwealth post sentence terrorism inmate, or
(b) a NSW post sentence inmate.
[6] Section 135 General duty of Parole Authority relating to release of offenders (as
substituted by the Parole Legislation Amendment Act 2017 and then amended by the
Crimes (High Risk Offenders) Amendment Act 2017)
Omit section 135 (3) (i). Insert instead:
(i) that an application that has been made (but not determined) in respect
of the offender:
(i) for an extended supervision order or continuing detention order
under the Crimes (High Risk Offenders) Act 2006 or the
Terrorism (High Risk Offenders) Act 2017, or
(ii) for a continuing detention order under Division 105A of Part 5.3
of the Commonwealth Criminal Code,
[7] Section 135 (7) (as substituted by the Parole Legislation Amendment Act 2017 and
then amended by the Crimes (High Risk Offenders) Amendment Act 2017)
Omit the subsection. Insert instead:
(7) The Parole Authority (and the Review Council when giving advice for the
purposes of subsection (5)) must not have regard to the fact that either of the
following may be made in respect of the offender:
(a) an application for an extended supervision order or continuing detention
order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism
(High Risk Offenders) Act 2017,
(b) an application for a continuing detention order under Division 105A of
Part 5.3 of the Commonwealth Criminal Code.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Schedule 2 Amendment of legislation
[8] Section 160A Relationship of parole orders to high risk offender orders
Omit section 160A (1). Insert instead:
(1) An offender's obligations under a parole order made in respect of a sentence
for a NSW offence are suspended while the offender is subject to:
(a) an extended supervision order, an interim supervision order, an interim
detention order or an emergency detention order under the Crimes
(High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders)
Act 2017, or
(b) an interim detention order under Division 105A of Part 5.3 of the
Commonwealth Criminal Code.
[9] Section 160A (3)
Omit the subsection. Insert instead:
(3) A parole order made in respect of a sentence for a NSW offence to which an
offender is subject is revoked if:
(a) a continuing detention order is made against the offender under the
Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk
Offenders) Act 2017, or
(b) a continuing detention order is made against the offender under
Division 105A of Part 5.3 of the Commonwealth Criminal Code.
[10] Section 197 Functions of Review Council
Insert after section 197 (2):
(3) In this section:
serious offender includes a high risk offender within the meaning of
section 271A.
[11] Section 235G Functions of Departmental compliance and monitoring officers
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" wherever occurring in section 235G (2) (b) and (6) (e).
[12] Section 236M Accommodation of offenders in residential facilities
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in section 236M (5) (c).
[13] Section 256 Victims Register (as amended by the Crimes (High Risk Offenders)
Amendment Act 2017)
Insert at the end of section 256 (2) (b):
, and
(c) the names of victims of convicted NSW terrorist offenders or convicted
NSW underlying terrorism offenders who have requested that they be
given notice of an application for an order under Part 2 or 3 in respect
of the offender concerned under the Terrorism (High Risk Offenders)
Act 2017.
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Terrorism (High Risk Offenders) Bill 2017 [NSW]
Schedule 2 Amendment of legislation
[14] Section 256 (4) (as amended by the Crimes (High Risk Offenders) Amendment Act
2017)
Omit "or the Crimes (High Risk Offenders) Act 2006" wherever occurring.
Insert instead ", the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk
Offenders) Act 2017".
[15] Section 256 (4AA) (as inserted by the Crimes (High Risk Offenders) Amendment Act
2017)
Insert "or section 51 of the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High
Risk Offenders) Act 2006".
[16] Section 256 (5) (as substituted by the Crimes (High Risk Offenders) Amendment Act
2017)
Insert in alphabetical order:
convicted NSW terrorist offender has the same meaning as in the Terrorism
(High Risk Offenders) Act 2017.
convicted NSW underlying terrorism offender has the same meaning as in the
Terrorism (High Risk Offenders) Act 2017.
[17] Section 256 (5) (as substituted by the Crimes (High Risk Offenders) Amendment Act
2017)
Insert after paragraph (c) of the definition of victim:
(c1) in relation to a convicted NSW terrorist offender or convicted NSW
underlying terrorism offender--a victim of an indictable offence
committed by the offender that has resulted in the offender being a
convicted NSW terrorist offender or convicted NSW underlying
terrorism offender for the purposes of the Terrorism (High Risk
Offenders) Act 2017, or
[18] Section 256 (5) (as substituted by the Crimes (High Risk Offenders) Amendment Act
2017)
Omit "or (c)" from paragraph (d) of the definition of victim. Insert instead ", (c) or (c1)".
[19] Section 271A
Omit the section. Insert instead:
271A Regulations relating to high risk offenders
(1) The regulations may provide for the preparation and implementation of plans
of management in respect of persons who are high risk offenders, and the
provision of services and programs in respect of those persons, by Corrective
Services NSW.
(2) The regulations may confer functions on the Review Council in respect of high
risk offenders.
(3) A person is a high risk offender if:
(a) the person is the subject of an extended supervision order, interim
supervision order, continuing detention order, interim detention order
or emergency detention order under the Crimes (High Risk Offenders)
Act 2006, or
(b) the person is the subject of an extended supervision order, interim
supervision order, continuing detention order, interim detention order
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Schedule 2 Amendment of legislation
or emergency detention order under the Terrorism (High Risk
Offenders) Act 2017, or
(c) the person is a Commonwealth post sentence terrorism inmate.
2.7 Crimes (Administration of Sentences) Regulation 2014
[1] Clause 3 Interpretation
Omit the definition of high risk violent offender from clause 3 (1). Insert instead:
high risk offender has the same meaning as it has in section 271A of the Act.
[2] Clause 3 (1), definition of "restricted associate"
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006".
[3] Clause 3 (1), definition of "restricted associate"
Insert "See also sections 26 and 47 of the Terrorism (High Risk Offenders) Act 2017." after
"suspended." in the note to the definition.
[4] Clause 20 Placement of inmates
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in clause 20 (1) (g).
[5] Clause 31 Case plans for high risk offenders
Omit "violent" wherever occurring.
[6] Clause 33 Separation of different classes of inmates
Insert after clause 33 (1) (c):
(d) Commonwealth post sentence terrorism inmate,
(e) NSW post sentence inmate.
[7] Clause 62 High risk offenders
Omit "violent" wherever occurring.
2.8 Crimes (Appeal and Review) Act 2001 No 120
[1] Section 96 Duty of police officers and other officers to retain certain biological
material evidence
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in section 96 (3) (e).
[2] Section 97 Information about and testing of retained biological material
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in section 97 (5) (c).
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2.9 Crimes (High Risk Offenders) Act 2006 No 7
Section 24AC Functions of Assessment Committee
Insert after section 24AC (g):
(g1) to exercise the functions that are conferred or imposed on the
Assessment Committee by or under the Terrorism (High Risk
Offenders) Act 2017,
2.10 Crimes (Sentencing Procedure) Act 1999 No 92
[1] Section 24A Mandatory requirements for supervision and other prohibitions to be
disregarded in sentencing
Insert at the end of section 24A (1) (d):
, or
(e) has or may become the subject of an order under the Terrorism (High
Risk Offenders) Act 2017.
[2] Section 58 Limitation on consecutive sentences imposed by Local Court
Insert after section 58 (3):
(3A) In addition, this section does not apply if the new sentence relates to an offence
against the regulations under the Crimes (Administration of Sentences) Act
1999) involving:
(a) introducing or supplying (or attempting to introduce or supply) a drug,
alcohol or other substance prohibited by those regulations into a place
of detention, or
(b) introducing or supplying (or attempting to introduce or supply) syringes
into a place of detention, or
(c) possessing an offensive weapon or instrument within the meaning of the
Crimes Act 1900, or
(d) possessing a mobile phone, a mobile phone SIM card or mobile phone
charger (or any part of these).
2.11 Criminal Procedure Act 1986 No 209
Schedule 1 Indictable offences triable summarily
Insert after clause 10G in Part 6 of Table 2:
10H Terrorism (High Risk Offenders) Act 2017
An offence under section 30 or 60 (7) or (8) of the Terrorism (High Risk
Offenders) Act 2017.
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Schedule 2 Amendment of legislation
2.12 Government Information (Public Access) Act 2009 No 52
Schedule 2 Excluded information of particular agencies
Insert at the end of clause 4:
An agency exercising functions in relation to the provision of information to
the Australian Security Intelligence Organisation--functions relating to the
handling of requests for information from, or the provision of information to,
the Australian Security Intelligence Organisation.
2.13 Jury Act 1977 No 18
Schedule 1 Persons excluded from jury service
Insert "or the Terrorism (High Risk Offenders) Act 2017" after "Crimes (High Risk
Offenders) Act 2006" in clause 4 (1) (c).
2.14 Privacy and Personal Information Protection Act 1998 No 133
Section 23A
Insert after section 23:
23A Exemptions relating to ASIO
(1) A public sector agency is not required to comply with section 13 or 14 if
compliance would reveal to the public that ASIO had requested, or been
provided with, information about a person.
(2) A public sector agency is not required to comply with section 18 if:
(a) the disclosure of the information concerned has been requested by the
Director-General of ASIO for a purpose connected with the exercise of
ASIO's functions under the Australian Security Intelligence
Organisation Act 1979 of the Commonwealth, and
(b) the information is disclosed to an officer or employee of ASIO who is
authorised in writing by the Director-General to receive the
information, and
(c) the authorised officer or employee certifies in writing that the
information sought is reasonably necessary for ASIO to exercise its
functions under the Australian Security Intelligence Organisation Act
1979 of the Commonwealth.
(3) To avoid doubt, this section permits (but does not require) a public sector
agency to disclose any information requested by the Director-General of
ASIO.
(4) The Minister may enter into arrangements with the Director-General of ASIO
concerning the provision of reports by the Director-General to the Minister
concerning requests for information from public sector agencies made by the
Director-General.
(5) The regulations may make provision for or with respect to the tabling of such
reports (or parts of such reports) in Parliament, including authorising the
Minister to omit information in the reports that is confidential.
(6) In this section:
ASIO means the Australian Security Intelligence Organisation continued in
existence by the Australian Security Intelligence Organisation Act 1979 of the
Commonwealth.
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2.15 Supreme Court Act 1970 No 52
Section 126 Application of Part
Insert after section 126 (1) (e):
(e1) proceedings under the Terrorism (High Risk Offenders) Act 2017, or
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