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Schedule 2—Amendments relating to continuing detention orders

Schedule 2 Amendments relating to continuing detention orders

Part 1 Concurrent and cumulative sentences

Criminal Code Act 1995

1  Section 105A.2 of the Criminal Code (definition of terrorist offender )

After “see”, insert “section 105A.2A,”.

2  After section 105A.2 of the Criminal Code

Insert:

105A.2A   Persons who have escaped from custody

                   For the purposes of this Division (except section 105A.4), if a person escapes from custody, the person is taken to be detained in custody and serving a sentence of imprisonment until the person resumes serving the person’s sentence.

3  Paragraph 105A.3(1)(b) of the Criminal Code

Omit “either”, substitute “any of the following applies”.

4  Subparagraph 105A.3(1)(b)(i) of the Criminal Code

Omit “; or”, substitute “;”.

5  After subparagraph 105A.3(1)(b)(i) of the Criminal Code

Insert:

                            (ia)  the person is detained in custody and serving a sentence of imprisonment for an offence other than the offence referred to in paragraph (a), and has been continuously detained in custody since being convicted of the offence referred to in that paragraph;

6  Paragraph 105A.3(1)(c) of the Criminal Code

Repeal the paragraph, substitute:

                     (c)  if subparagraph (b)(i) applies—the person will be at least 18 years old when the sentence referred to in that subparagraph ends; and

                     (d)  if subparagraph (b)(ia) applies—the person will be at least 18 years old when the sentence referred to in that subparagraph ends.

7  After subsection 105A.3(1) of the Criminal Code

Insert:

          (1A)  To avoid doubt, subparagraph (1)(b)(ia) applies:

                     (a)  whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory; and

                     (b)  whether the sentence served for the offence referred to in paragraph (1)(a) was served concurrently or cumulatively, or both, with:

                              (i)  the sentence referred to in subparagraph (1)(b)(ia); or

                             (ii)  any of the other sentences served by the person since being convicted of the offence referred to in paragraph (1)(a) (the other sentences ); and

                     (c)  whether the sentence referred to in subparagraph (1)(b)(ia) or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph (1)(a); and

                     (d)  whether or not the person has been continuously serving a sentence of imprisonment for an offence since being convicted of the offence referred to in paragraph (1)(a).

8  Paragraph 105A.5(2)(a) of the Criminal Code

Repeal the paragraph, substitute:

                     (a)  a sentence of imprisonment referred to in:

                              (i)  subparagraph 105A.3(1)(b)(i); or

                             (ii)  subparagraph 105A.3(1)(b)(ia);

                            that the offender is serving, at the end of which the offender would be required to be released into the community; or

9  Paragraph 105A.9(2)(a) of the Criminal Code

Omit “either”, substitute “any”.

10  Subparagraph 105A.9(2)(a)(i) of the Criminal Code

Repeal the subparagraph, substitute:

                              (i)  if subparagraph 105A.3(1)(b)(i) applies—the sentence of imprisonment referred to in that subparagraph that the offender is serving;

                            (ia)  if subparagraph 105A.3(1)(b)(ia) applies—the sentence of imprisonment referred to in that subparagraph that the offender is serving;

11  Subparagraph 105A.18(1)(b)(i) of the Criminal Code

Repeal the subparagraph, substitute:

                              (i)  if subparagraph 105A.3(1)(b)(i) applies—the sentence of imprisonment referred to in that subparagraph that the offender was serving ends; or

                            (ia)  if subparagraph 105A.3(1)(b)(ia) applies—the sentence of imprisonment referred to in that subparagraph that the offender was serving ends; or

12  Paragraph 105A.18(2)(a) of the Criminal Code

Repeal the paragraph, substitute:

                     (a)  the offender is taken to remain a terrorist offender:

                              (i)  who is detained in custody and serving a sentence of imprisonment; or

                             (ii)  in relation to whom a continuing detention order or interim detention order is in force;

                            despite being released from custody; and

13  At the end of subsection 105A.23(1) of the Criminal Code

Add “, or at the end of any later sentence if the person is continuously detained in custody and would otherwise be released into the community”.

Part 2 Giving information in applications to offenders

Criminal Code Act 1995

14  Paragraph 105A.5(3)(aa) of the Criminal Code

After “made”, insert “, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person)”.

15  At the end of subsection 105A.5(3) of the Criminal Code

Add:

Note 3:       For public interest immunity, see also subsection (9).

16  Subsection 105A.5(6) of the Criminal Code

Repeal the subsection (including the note), substitute:

             (6)  However, the applicant must (subject to subsection (7)) give the offender personally a complete copy of the application if:

                     (a)  the decision-maker decides not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or

                     (b)  the Minister gives a certificate referred to in paragraph (5)(a); or

                     (c)  the Court makes an order in relation to action taken by the decision-maker under paragraph (5)(b) or (d).

Note:          For giving an offender documents, see section 105A.15.

             (7)  Subsection (6) is subject to:

                     (a)  the certificate referred to in paragraph (5)(a); or

                     (b)  any order made by the Court.

             (8)  The copy of the application must be given:

                     (a)  within 2 business days of:

                              (i)  the decision-maker’s decision not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or

                             (ii)  the giving of the certificate referred to in paragraph (5)(a); or

                            (iii)  the order referred to in paragraph (6)(c) being made; and

                     (b)  within a reasonable period before the preliminary hearing referred to in section 105A.6.

Public interest immunity

             (9)  If information (however described) is excluded from an application on the basis of public interest immunity as mentioned in paragraph (3)(aa), the applicant must give written notice to the offender personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application is given to the offender.

           (10)  To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.

Note:          The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.

Part 3 Application provisions

Criminal Code Act 1995

17  In the appropriate position in Division 106 of the Criminal Code

Insert:

106.10   Application— Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019

             (1)  The amendments of Division 105A made by Part 1 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to:

                     (a)  any person who, on the day this section commences, is detained in custody; and

                     (b)  any person who, on or after that day, begins a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) (whether the conviction for the offence occurred before, on or after that day).

             (2)  To avoid doubt, the amendments of Division 105A made by Part 1 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to a person referred to in paragraph (1)(a) of this section whose sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) ended before the day this section commences.

             (3)  The amendments of section 105A.5 made by Part 2 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to any application for a continuing detention order made after the commencement of this section.

(151/19)