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Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

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2019-2020

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

                                                                                                        



 

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

GENERAL OUTLINE

1.                 The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (the Bill) will strengthen Australia’s counter-terrorism framework by amending Part 5.3 of the Criminal Code to establish an extended supervision order (ESO) scheme for high-risk terrorist offenders. The scheme will complement the existing continuing detention order (CDO) scheme in Part 5.3 of the Criminal Code , and will enable Supreme Courts to make, as an alternative to a CDO, an ESO with respect to a high-risk terrorist offender to prevent the risk they pose to the community at the end of their custodial sentence.

2.                 Under an ESO, a court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

3.                 To support the implementation of the ESO scheme, this Bill also makes amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004 to provide for the availability of court-only evidence in ESO proceedings, and to the Crimes Act 1914 , the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to extend the application of the existing control order monitoring warrant provisions to the monitoring of ESOs. It also makes consequential amendments to the Australian Security Intelligence Organisation Act 1979 and the Administrative Decisions (Judicial Review) Act 1977 .

FINANCIAL IMPACT

4.                 The Government is working with States and Territories to determine the cost implications of implementing the ESO scheme. Costs will be considered as part of implementing the scheme.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

1.                  This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                 The ESO scheme as introduced by this Bill strengthens Australia’s counter-terrorism framework by ensuring that the Government has the means to protect the community from the risk that high risk terrorist offenders may pose at the end of their custodial sentence. The ESO scheme will form part of the High Risk Terrorist Offenders (HRTO) regime in Part 5.3 of the Criminal Code , and complement the existing CDO scheme. The Bill introduces the ESO scheme by amending Division 105A in Part 5.3 of the Criminal Code , which is the division that currently provides for CDOs. The amended Division 105A will deal with ‘post-sentence orders’ (PSOs), which is defined to mean both ESOs and CDOs.

3.                 The Bill is intended to broaden the range of tools available to protect the community from the high level of risk that convicted terrorist offenders may pose once they are released. Currently, where a terrorist offender continues to pose a risk to the community at the expiration of their custodial sentence, the primary option for managing this risk is through seeking a CDO, that is, to seek a court order to commit a terrorist offender to detention in a prison for the period the order is in force. ESOs would present a less restrictive measure to manage the risk posed by an offender, where a court is not satisfied that continued detention is necessary to prevent that risk.

4.                 Under an ESO, the Court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The standard of proof that must be satisfied in making an ESO is ‘the balance of probabilities’, rather than the higher standard of ‘to a high degree of probability’, which is the standard that applies to the making of a CDO. This reflects the less restrictive nature of ESOs as an alternative to CDOs.

5.                 The Bill is also intended to address the current lack of interoperability between CDOs and control orders in the Criminal Code due to the different courts from which these orders may be sought. Currently under Division 105A of the Criminal Code , a State or Territory Supreme Court may impose a CDO for up to three years if satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence. The Court cannot make a CDO if a less restrictive measure, for example a control order, would be effective in preventing the unacceptable risk. However, a Supreme Court cannot make a control order - only the Federal Court or the Federal Circuit Court can make such an order.

6.                 The ESO scheme addresses this gap, as ESOs will be incorporated into Division 105A of the Criminal Code and will be prescribed as an example of a less restrictive measure that a Supreme Court may consider when determining a CDO application. The reference in Division 105A to control orders as an example of a less restrictive measure would be removed. Control orders (which are sought in the Federal or Federal Circuit Court) would remain available as a tool to manage offenders who do not meet the eligibility criteria or threshold for an ESO or CDO as well as individuals who pose a risk but have not been convicted of an offence.

7.                 Both the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) have recommended the creation of an ESO scheme, primarily to address the lack of interoperability between CDOs and control orders. The INSLM found the CDO and control order regimes give rise to the need for different applicants to make separate applications in different courts, seeking to satisfy different tests, for the same offender. The INSLM noted this is not in the interests of the applicants, the courts or the offender. The PJCIS similarly noted that the CDO and control order regime creates duplication in effort and noted the financial and time cost in running two separate proceedings. This Bill takes into account recommendations made in the INSLM’s 2017 Report, Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detentions Orders , and the PJCIS’ 2018 Report, Review of Police Stop, Search and Seize Powers, the Control Order Regime, and the Preventative Detention Order Regime. It also draws on the experience of states which have comparable regimes, including the Terrorism (High Risk Offenders) Act 2017 (NSW) and the Serious Offenders Act 2018 (Vic).

8.                 In the current security environment, having a range of tools to combat the evolving nature of the threat posed by terrorism is vital. Experience overseas has demonstrated the continuing threat posed by extremists, including those who have served sentences for terrorism offences. The 2019 London Bridge attack and 2020 Streatham attacks in the UK were carried out by convicted terrorist offenders, highlighting the continued need for effective prevention and risk management measures to protect the community. ESOs will further strengthen Australia’s counter-terrorism framework by enabling State and Territory Supreme Courts to impose a range of conditions on an offender to mitigate the risk they pose to the community.

9.                 The Bill amends the Criminal Code , the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Crimes Act 1914 (Crimes Act), the Surveillance Devices Act 2004 (SD Act), and the Telecommunications (Interception and Access) Act 1979 (TIA Act).

Overview of measures

Amendments to the Criminal Code

10.             The Bill establishes a scheme whereby a State or Territory Supreme Court may make an ESO in relation to an eligible offender, if it is satisfied of the relevant thresholds, where the Australian Federal Police Minister (AFP Minister), or a legal representative of the AFP Minister, has either applied for an ESO, or applied for a CDO but the Court is not satisfied that less restrictive measures would not be effective in preventing the risk posed by the offender. Under an ESO, a court may impose on an offender any conditions (prohibitions, restrictions or obligations) that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

11.             Section 105A.3 provides that an offender is a person convicted of an offence specified in paragraph 105A.3(1)(a), where the individual is at least 18 years old at the time the sentence ends. Eligibility for an ESO is based on being convicted of, and serving a custodial sentence for, the same terrorism offences specified in paragraph 105A.3(1)(a) (the specified terrorism offences) that would make an offender eligible for a CDO. Consistent with the provisions that currently apply to CDOs, the Bill preserves an offender’s eligibility for further CDOs or ESOs.

12.             Accordingly, the Bill provides that an offender is eligible for either a CDO or an ESO in the following instances:

·          they are serving a custodial sentence for a specified terrorism offence (section 105A.3A(1))

·          they are detained in custody pursuant to a CDO or an interim detention order (IDO) (section 105A.3A(2))

·          they are serving a custodial sentence for an offence other than a specified terrorism offence, and they have been continuously detained in custody since being convicted of a specified terrorism offence, or since a CDO or IDO was in force in relation to the offender (section 105A.3A(3))

·          they are serving a custodial sentence for breaching an ESO, and the Court is satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the ESO or ISO (section 105A.3A(4)), or

·          they are serving a custodial sentence for breaching a control order, where the process for seeking a control order commenced before the offender was released from prison after serving a sentence for a specified terrorism offence. The Court must be satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the control order (section 105A.3A(5)).

13.             An offender is eligible for an ESO only in the following instances:

·          they are currently subject to an ESO or ISO that is in force (section 105A.3A(6))

·          they are serving a custodial sentence for an offence other than a specified terrorism offence, and they have been continuously detained in custody since they were subject to an ESO or ISO (section 105A.3A(7)), or

·          they are currently subject to a control order, and the process for obtaining that control order commenced before the sentence of imprisonment for a specified terrorism offence ended, and before the ESO scheme commenced (section 105A.3A(8)).

14.             The Court can only make an ESO if satisfied of certain matters set out in the Bill at the new subsection 105A.7A(1):

·          First, the Court must be satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence. The Court can appoint one or more suitably qualified experts with medical, psychiatric, psychological or other expertise to assess and report on the risk posed by the offender. A copy of the expert’s report must be provided to the offender.

·          Second, the Court must be satisfied on the balance of probabilities that each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence .

15.             The AFP Minister bears the onus of satisfying the Court of these matters.

16.             Subsection 105A.7A(5) provides that the period during which the ESO is to be in force must not exceed three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. Subsection 105A.7A(6) provides that there is no limit on the number of ESOs that can be made, consistent with the approach to CDOs in the current subsection 105A.7(6) of the Criminal Code .

17.             In line with the INSLM’s 2017 Report, the conditions that may be imposed under an ESO include all those that may be imposed under a control order under Division 104 of the Criminal Code . In addition, under section 105A.7B, the Court may impose any conditions (prohibitions, restrictions or obligations) that it is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence . The Bill also specifies, without limiting, a number of monitoring and enforcement conditions that may be imposed under an ESO in subsection 105A.7B(3). These conditions enable police officers and other authorities specified in an order to effectively exercise powers (such as entry, search and seizure), where it is reasonably necessary to do so to give effect to the order or to ensure the safety and protection of the community.

18.             The Court may also specify ‘exemption conditions’ under section 105A.7C, for which the offender may apply to a specified authority for an exemption. A specified authority is defined in the Bill to include a police officer or any other person that the Court is satisfied is appropriate in relation to a particular condition. This is intended to provide more flexibility to support the day to day management of the offender subject to the ESO.

19.             Under section 105A.9A, the Court may make an interim supervision order (ISO) pending the determination of an ESO application, or as an alternative to an IDO in connection with a CDO proceeding. The period of an ISO should be the period, of no more than 28 days, that the Court is satisfied is reasonably necessary to determine the application for the ESO or CDO. Consecutive ISOs may be made, but the total period of all ISOs must be less than three months, unless exceptional circumstances apply.

20.             Sections 105A.9B and 105A.9C provide that the offender or the AFP Minister may apply to vary an ESO or ISO at any time. The Court can vary an ESO or ISO by adding, varying or removing conditions.

21.             Sections 105A.10 and 105A.11 provide that an ESO must be reviewed by the Court annually, or sooner if the offender or the AFP Minister applies for a review and the Court is satisfied that new facts or circumstances, or the interests of justice, justify the review. Section 105A.12A provides that the Court may vary an ESO after a review, including by adding, varying or removing conditions or by reducing the length of the ESO.

22.             The provisions in Subdivision E ensure procedural protections are applicable in proceedings determining an application for an ESO or an ISO, and in proceedings to review an ESO or vary conditions. The Court must apply the rules of evidence and procedure applicable to civil matters; the parties (including the offender) can adduce evidence and make submissions; reasons for decisions must be given; and decisions can be appealed.

23.             Under section 105A.14A, when the AFP Minister, or a legal representative of the AFP Minister, applies for a PSO, a variation of an ESO or ISO, or a review of a PSO, they must give a copy of the application to the offender personally, and to the offender’s legal representative within two business days. Sections 105A.14B and 105A.14C outline certain information that may be excluded from the application or material given to the offender, namely:

·          information where a Minister is likely to take any actions in relation to the information under the NSI Act, or seek an order of a court preventing or limiting disclosure of the information (‘national security information’), and

·          information excluded on the basis of public interest immunity (‘PII information’).

24.             Section 105A.14D also allows the AFP Minister or their legal representative to seek orders in relation to the manner in which material that advocates support for engaging in terrorist acts, relates to planning or preparing for, or engaging in, terrorist acts, or advocates joining or associating with a terrorist organisation (‘terrorism material’) is to be dealt with.

25.             Existing judicial safeguards around the use of PII and the NSI Act will apply, which will ensure that offenders always know the case against them and will be able to contest claims for PII and orders sought under the NSI Act in accordance with existing practice. Courts will retain the power to determine these orders, and may exercise their inherent jurisdiction to stay proceedings entirely if satisfied that withholding information would involve unacceptable injustice or unfairness.

26.             Section 105A.18A makes it an offence to breach the conditions of an ESO or ISO. Section 105A.18B makes it an offence to interfere with a monitoring device that has been imposed as a condition of an ESO. These offences carry a maximum penalty of five years’ imprisonment.

27.             The Bill extends provisions that currently apply to CDO applications regarding court-appointed experts to also apply to ESO applications. The Bill also introduces a new section 105A.18D, which permits the AFP Minister to direct persons who are eligible for an ESO or CDO, or presently subject to a CDO or an ESO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence. If an offender is directed to attend an assessment under section 105A.18D, they must attend. The expert’s report is then provided to the AFP Minister, and the offender must be provided with a copy if it is subsequently used in an application against them. Under subsection 105A.6(5A) and 105A.18D(5), information or answers given by the offender at an assessment by a court-appointed or AFP Minister-appointed expert are not admissible in evidence against the offender in criminal proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, or civil proceedings, except proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings).

28.             Consistent with the approach for CDOs, under the amended section 105A.22, the AFP Minister must report annually to the Parliament about the operation of the ESO scheme.

Amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004

29.             The NSI Act provides for court-only evidence in limited circumstances, which means that the offender and their representative would be excluded from the proceedings while the Court considers highly sensitive information. The NSI Act permits court-only evidence in control order proceedings. The Bill amends the NSI Act to extend the court-only evidence provisions which apply in control order proceedings to ESO proceedings. The availability of court-only evidence would be limited to ESO proceedings where a court is:

·          considering an application to make or vary an ESO or ISO

·          reviewing an ESO or ISO, and

·          where the AFP Minister applied for a CDO but the Court is not satisfied of the requisite threshold for the CDO and instead considers an ESO (in these circumstances, court-only evidence would only be available after the Court had decided it was not satisfied of the CDO threshold, and could only be considered in the ESO decision).

30.             The Bill expressly prohibits the Court considering court-only evidence in determining whether to make a CDO.

31.                                                                                                                                                                                           Consistent with the INSLM’s recommendations, the Bill also provides that special advocates, which are available where court-only evidence is considered in control order proceedings under the NSI Act, will also be available where court-only evidence is considered in ESO proceedings. This is important to ensure the offender receives a fair hearing by enabling a special advocate to be appointed to represent the offender’s interests during the parts of a hearing in which the offender and their ordinary legal representative are excluded when the Court agrees to consider highly sensitive court-only evidence.

Amendments to the Administrative Decisions (Judicial Review) Act 1977

32.             The Bill amends Schedule 1 of the ADJR Act to exempt decisions made by the AFP Minister under Division 105A of the Criminal Code as decisions to which the ADJR Act does not apply. Judicial review under the ADJR Act will not be available for decisions made by the AFP Minister under Division 105A.

Amendments to the Australian Security Intelligence Organisation Act 1979

33.             The Bill amends the ASIO Act to apply to ESOs and ISOs under Division 105A of the Criminal Code , to put beyond doubt that a condition imposed on an offender by an ESO or ISO (including electronic monitoring action authorised by the conditions of the ESO or ISO) is not prescribed administrative action for the purpose of Part IV of the ASIO Act.

34.             The purpose of this amendment is that ASIO would not pass relevant information to the AFP for the purpose of the ESO or ISO provisions in the form of security assessments under Part IV of that Act. This relevant information may still be communicated under the existing provisions of the ASIO Act, including under subsection 18(3) of the ASIO Act if the Director-General is satisfied that such communication is required.

Amendments to the monitoring powers under the Crimes Act 1914 , Surveillance Devices Act 2004 , and Telecommunications (Interception and Access) Act 1979

35.             The Bill contains amendments to these Acts to extend the surveillance and monitoring powers which broadly apply to Division 104 of the Criminal Code to apply to orders made under Division 105A of the Criminal Code . This will enhance the ability for law enforcement to monitor a person’s compliance with or suitability for PSOs. Specifically, the Bill amends these Acts to extend the:

·          ‘monitoring warrant’ regime in Part IAAB of the Crimes Act

·          surveillance device warrants, surveillance device powers without a warrant and computer access warrants in the SD Act, and

·          telecommunications service warrant and named person warrant framework under the TIA Act.

36.             The Bill will also amend the international production order (IPO) regime contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill) which will insert new Schedule 1 into the TIA Act.

Crimes Act 1914

37.             The powers in the monitoring warrant regime in Part IAAB of the Crimes Act that will be extended to apply to ESOs and ISOs include searching premises; inspecting, examining, measuring or testing things on the premises; inspecting or copying documents; and operating electronic equipment to put data into documentary form or to transfer data to a disk, tape or other storage device. The regime also contains powers to ask the occupier to answer questions and produce any document relevant to determining compliance with the conditions of a relevant order. The powers available under the monitoring warrant regime are distinguished by whether the power is authorised by warrant or by the subject’s consent.

Surveillance Devices Act 2004

38.             The SD Act regulates the use of surveillance devices and establishes procedures for law enforcement officers to obtain surveillance device warrants for certain purposes. The surveillance and monitoring powers that will be extended to apply to PSOs include surveillance device warrants and computer access warrants. Less intrusive surveillance devices that may be used without a warrant will only be extended in relation to ESOs and ISOs.

Telecommunications (Interception and Access) Act 1979

39.             The Bill will extend the telecommunication interception warrant regime contained within the TIA Act, currently available to monitor compliance with a control order, to also monitor the compliance of individuals who are subject to an ISO or ESO. The Bill enables a Part 5.3 warrant agency to seek a telecommunications service warrant, or telecommunications named person warrant. This will enable relevant law enforcement agencies to target the person subject to the Part 5.3 supervisory order, or alternatively where certain conditions are met, to target B-parties (other persons who are likely communicating with the person subject to the Part 5.3 supervisory order). The Bill also extends the application of telecommunications service warrants, and telecommunications named person warrants to be used for the purpose of informing a decision whether to apply for a PSO.

40.             Schedule 2 of the Bill are amendments contingent on the passage of the IPO Bill. The purpose of these amendments is to extend the application of international production orders that may be obtained under Part 3 of Item 43 of the IPO Bill (international production orders relating to control orders) to also include ESOs and ISOs.

Human rights implications

41.             This Bill engages the following rights:

·          the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to freedom from arbitrary detention and the right to liberty and security of the person in Article 9 of the ICCPR

·          the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person in Article 10 of the ICCPR

·          the right to freedom of movement under Article 12 of the ICCPR

·          the right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings, under Article 14 of the ICCPR

·          the right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

·          the right to freedom of expression in Article 19 of the ICCPR

·          the right to freedom of association in Article 22 of the ICCPR, and

·          the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

42.             The Bill may be perceived to engage, or be said to indirectly engage, the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

The right to life in Article 6 of the ICCPR

43.             The right to life in Article 6 of the ICCPR places a positive obligation on States to protect individuals from unwarranted actions by private persons. The obligation to protect life requires the State to take preventative operational measures to protect individuals whose safety may be compromised in particular circumstances, such as by a terrorist act. This includes enhancing the capabilities of law enforcement agencies to respond to a heightened terrorist threat.

44.             The Bill promotes the right to life by providing an additional tool to manage the risk posed by terrorist offenders post-sentence. The ESO scheme is targeted at offenders who have been assessed by a court to pose an unacceptable risk of committing a serious Part 5.3 offence, which includes offences causing death and serious harm. The Bill also enhances the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The Bill, through the amendments to the Crimes Act, SD Act and the TIA Act, extends the ability for law enforcement agencies to detect, monitor and investigate potential terrorist threats posed by an offender subject to an ESO or an ISO. The amendments to the SD Act and the TIA Act also extend the availability of surveillance device warrants and computer access warrants, and telecommunication service warrants and named person warrants, for information gathering purposes in relation to PSOs, allowing agencies to identify the level of risk the offender poses early and intervene through seeking a court order to prevent an act of terrorism. By providing that offenders who pose an unacceptable risk of committing a serious Part 5.3 offence may be subject to an ESO, the scheme promotes the right to life by providing a tool for managing offenders who pose a risk of carrying out actions that are inconsistent with the right to life, and equipping law enforcement agencies with the power to monitor compliance.

The right to security of the person in Article 9 of the ICCPR

45.             The right to security of the person in Article 9 of the ICCPR requires States to provide reasonable and appropriate measures to protect a person’s physical security, particularly where the Government knows or ought to know of the existence of a real and imminent risk. The Bill promotes the right to security of the person by protecting the community from serious Part 5.3 offences (offences related to terrorism which are punishable by seven or more years imprisonment). The Bill is aimed at a cohort of persons, post-sentence offenders, who in overseas contexts have been proven to pose a risk to the security of persons by carrying out acts of violence. The introduction of an ESO scheme provides the option for a court to impose a supervisory order which is tailored to the specific threat of terrorism posed by a particular individual once they are released after serving a sentence for an eligible offence. A court can impose on an offender any conditions that the Court is satisfied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

46.             The Bill also enhances the capabilities of law enforcement agencies to respond to a heightened terrorist threat. The Bill, through the amendments to the Crimes Act, SD Act and the TIA Act, extends the ability for law enforcement agencies to detect, monitor and investigate potential terrorist threats posed by an offender subject to an ESO or ISO. In providing that offenders who pose an unacceptable risk of committing a serious Part 5.3 offence can be made the subject of an ESO, and in providing tools for law enforcement agencies to monitor an offender’s compliance with such an order, the Bill provides a tool for mitigating risks to the security of the person and therefore promotes the security of the person.

The right to freedom from arbitrary detention and the right to liberty of the person in Article 9 of the ICCPR

47.             The right to personal liberty and freedom from arbitrary detention is protected in Article 9 of the ICCPR. Article 9 regulates, rather than prohibits, detention - it is only ‘arbitrary’ detention that is prohibited. It requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. Detention is not arbitrary where, in all the circumstances, it is reasonable, necessary and proportionate to achieving a legitimate objective.

48.             The Bill amends the existing CDO scheme, including by providing that an offender may be eligible for a CDO where they commit an offence relating to a control order or an ESO (such as breach of an order, or interference with electronic monitoring equipment). The Bill also makes other amendments which affect CDO proceedings, such as the new provision allowing for an appointed expert to inform the Minister’s decision as to whether to make an application for a PSO. As the Bill affects the existing CDO scheme (including to expand eligibility as noted above), it therefore engages Article 9 as the effect of a CDO or IDO is to commit the person subject to the order to detention in a prison for the period the order is in force.

The right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law in Article 9(1) of the ICCPR

49.             Article 9(1) of the ICCPR provides that a person is not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law. In relation to the CDO scheme, detention under a CDO or an IDO is authorised by, and operates in accordance with, the procedures prescribed in Division 105A. Accordingly, it complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law.

The right to freedom from arbitrary detention in Article 9(1) of the ICCPR

50.             In considering the appropriateness of post-sentence preventative detention regimes, the United Nations Human Rights Committee has stated that:

…to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future dangers. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee’s rehabilitation and integration into society. [1]

51.             The preventative detention authorised by a CDO or an IDO therefore cannot be described as ‘arbitrary’. The objective of the scheme (to protect the community from serious Part 5.3 offences) is legitimate and consistent with the purposes of the ICCPR. By continuing to detain offenders who pose an unacceptable risk of committing serious terrorism offences, the scheme protects and promotes the rights of people in the community whose life, liberty and property would be imperilled by the commission of serious terrorism offences. The risk posed by terrorism in Australia is real, as evidenced by the number of attacks and foiled attempts in recent years, and the assessment of agencies that the threat is enduring and evolving.

52.             The CDO scheme is reasonably necessary and proportionate to achieving this outcome of protecting the Australian community from terrorist attacks. The scheme provides that detention of an offender is a last resort where no less restrictive measure (such as a control order, or an ESO once introduced) would be sufficient to manage the risk posed by a high-risk terrorist offender at the completion of their sentence for a specified terrorism offence. This is reflected in the stringent thresholds of which a court must be satisfied before it may impose a CDO, as discussed further below.

53.             The CDO scheme includes numerous features designed to ensure that detention is not arbitrary, including additional safeguards that were added during parliamentary consideration of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which introduced the scheme. These address the considerations set out by the United Nations Human Rights Committee by:

·          Establishing processes by which a court, when deciding an application for or reviewing a CDO, must have regard to a range of matters which are rationally connected with the level of risk posed by the offender (for example, their degree of participation in rehabilitation programs), including the evidence of an independent expert competent to assess the risk posed by the offender (section 105A.6A).

·          Providing that, for an offender to be subject to a CDO, the Court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community (paragraph 105A.7(1)(b)). To assist the Court in making this decision, the Court may appoint a relevant expert or experts to conduct an assessment of the risk of the offender committing a serious terrorism offence if they were released into the community (section 105A.6). Both the offender and the AFP Minister (or their respective legal representative) may nominate a relevant expert or experts for the Court’s consideration (subsection 105A.6(3A)). An example of an expert who may be appointed by the Court could be a person with expertise in forensic psychology or psychiatry (and, in particular, recidivism) coupled with specific expertise on terrorism, radicalisation to violent extremism and countering violent extremism. The Court must have regard to the expert’s opinion when making its decision (paragraph 105A.8(1)(b)).

·          Requiring that a court can only make a CDO if satisfied that there is no less restrictive measure that would be effective in preventing the unacceptable risk posed by the offender (paragraph 105A.7(1)(c)). An example of this is making an ESO, as introduced by this Bill. An ESO may require an offender to participate in specified rehabilitation or intervention programs or activities, or undertake counselling, subject to their consent (paragraph 105A.7B(2)(o)). Further a court must have regard to any treatment or rehabilitation program in which the offender has had an opportunity to participate (paragraph 105A.8(1)(e)).

·          Providing for annual review by requiring the AFP Minister to apply to the Supreme Court for a review of a CDO (at the end of the period of 12 months after the order began to be in force, or 12 months after the most recent review ended) (section 105A.10). Failure to make this application will mean that the CDO ceases to be in force.

·          Recognising that the offender is not serving a sentence of imprisonment by providing that, when subject to a CDO, he or she be housed separately from persons who are in prison for the purposes of serving a sentence of imprisonment, except in certain circumstances such as where the offender’s treatment or accommodation arrangements could compromise the management, security and good order of the prison, for rehabilitation purposes or for the safety and protection of the community (section 105A.4).

54.             Additional safeguards contained in the provisions provide that:

·          only a limited class of persons can be subject to the CDO scheme and the characteristic used to define that class (imprisonment for a terrorism-related offence) is rationally connected with the scheme’s protective purpose

·          only the AFP Minister, or their legal representative, can apply for a CDO

·          the offender must be provided with certain documents to enable him or her to prepare for the Court’s hearing of an application for a CDO

·          the power to make a CDO lies with an independent judicial authority (the Supreme Court of the relevant State or Territory) which will apply the rules of evidence and procedure applicable in civil matters

·          the offender can adduce evidence and make submissions in court proceedings

·          the AFP Minister bears the onus of satisfying the Court that a CDO should be made and, if reviewed, that a CDO should be affirmed

·          the period of detention authorised by a CDO must be limited to a period that is reasonably necessary to prevent the unacceptable risk, and must not exceed three years

·          the period of detention authorised by an IDO must be limited to a period that is reasonably necessary to determine the application for a CDO and not exceed 28 days and the total period of detention authorised by consecutive IDOs must not exceed three months, and

·          the Court must provide reasons for its decisions in an application for a CDO or in a review of a CDO, and these decisions can be appealed.

55.             The Bill extends eligibility for CDOs to offenders who are convicted of breaching an ESO or ISO, breaching a control order imposed after a sentence for a Part 5.3 offence, or interfering with their own tracking device imposed under an order. The underlying eligibility criteria, that offenders must have been convicted of, and served a sentence for, a specified terrorism offence, continues to apply. In addition, in order to make a CDO the Court must be satisfied that as a result of the conduct constituting the breach, the offender poses an unacceptable risk of committing a serious Part 5.3 offence. This is a higher threshold than ordinarily applies for making a CDO, and links the conduct while on an ESO, ISO or control order to the risk from which the community is being protected. Accordingly, the extension of eligibility for CDOs to offenders who have breached an ISO or an ESO condition, or who have interfered with their own tracking device, or who have committed an offence relating to control orders, is not arbitrary. To the extent that these measures engage the right to freedom from arbitrary detention in Article 9(1) of the ICCPR they are consistent with it.

The right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of detention in Article 9(4) of the ICCPR

56.             Article 9(4) of the ICCPR provides that persons deprived of their liberty must be able to challenge the legality of their detention in court. This includes an implied requirement that an offender be provided with information sufficient to enable them to know the nature of, and lead evidence to refute, the case against them.

57.             The Bill engages this right by providing that when the AFP Minister, or a legal representative of the AFP Minister, applies for a PSO or IPSO, or a review of a PSO, certain information may be excluded from the copy of the application or material provided to an offender. Sections 105A.14B to 105A.14C provide that the offender need not be given any national security information or any PII information as part of the information included in the application against them. Section 105A.14D allows a court to make orders concerning access to terrorism material.

58.             These measures seek to achieve the legitimate objective of protecting Australia’s national security, and, in the case of terrorism material, to limit the unnecessary exposure of the extremist material to an offender. The inappropriate disclosure of national security information has the potential to prejudice Australia’s national security and the security of all Australians. Information relevant to CDO proceedings may disclose sensitive sources and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. In relation to terrorism material which forms part of an application, the Bill will allow a court to make orders about the offender’s access to that material. This is limited to material that advocates support for or relates to planning, preparing for or engaging in terrorist acts or violent extremism, or advocates joining or associating with a terrorist organisation. These orders are intended to prevent copies of such material from being made available to the offender, particularly while in prison, where it may be distributed and have an adverse effect on efforts to curb radicalisation.

59.             The extent to which information may be excluded, or the offender’s access to that information controlled, is limited to the extent necessary to achieve the outcome discussed above, and is to be ultimately decided on by the Court. There are also mechanisms to ensure a fair hearing in the exceptional circumstances where the offender is not able to receive certain highly sensitive information, such as through the appointment by a court of a special advocate. Accordingly, the measures in the Bill to improve the protection of sensitive information in CDO proceedings are necessary to achieve this legitimate objective.

60.             Accordingly, to the extent that the amendments permit limitations on the rights of offenders under Article 9(4), the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information, the disclosure of which would adversely affect national security, and limiting access to terrorism material that may undermine efforts to curb radicalisation.

The right to be treated with humanity and dignity in Article 10 of the ICCPR

61.             As noted above, the Bill expands eligibility for the CDO scheme by providing that CDOs may be made in relation to an offender who breaches an ISO or an ESO condition, who interferes with their own tracking device, or who commits an offence relating to control orders.

62.             Article 10(1) of the ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The CDO scheme may be considered to engage this obligation as it involves detention.

63.             Article 10(2)(a) provides that ‘accused persons’ must, save in exceptional circumstances, be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. These obligations do not apply to the CDO scheme directly as the scheme does not involve the detention of ‘accused persons’. The grounds for detention under a CDO are not connected with the laying of or determination of a criminal charge.

64.             Despite these obligations not applying to the CDO scheme, section 105A.4 sets out the minimum standards of treatment that must be afforded to an offender who is detained under a CDO. This includes that the offender must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment (subsection 105A.4(1)) and that, subject to certain exceptions, the offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment (subsection 105A.4(2)).

65.             By mandating appropriate standards of treatment and accommodation arrangements, the CDO scheme promotes the rights of offenders detained under the scheme to be treated with humanity and respect for the inherent dignity of the human person. While the CDO scheme permits deviation from these standards, it does so only where necessary to protect the safety or rights of others, or to reflect the offender’s wishes. To the extent that the scheme permits limitations on the rights of offenders under Article 10(1), the limitations are reasonable, necessary and proportionate to achieve legitimate objectives of the scheme.

The right to freedom of movement under Article 12 of the ICCPR

66.             The right to freedom of movement is protected in Article 12 of the ICCPR. One component of this right is that people must be able to move freely and choose a place of residence within a country. This right may be limited for the purpose of protecting national security, public order, public health or morals or the rights and freedoms of others, as permitted by Article 12(3).

67.             Subsection 105A.7B(2) outlines a number of conditions that the Court may impose as part of an ESO or an ISO. Potential conditions include requiring an offender to provide their passport (or passports) to a specified authority, requiring an offender to reside at a specified premises, or requiring that the offender not leave Australia, or the State or Territory in which the offender’s residence is located. A court may also impose a condition that an offender remain at a specified premises between specified times each day, or specified days, or a condition that an offender not be present at specified areas or places, or specified classes of areas or places.

68.             The imposition of any of the above conditions would restrict an offender’s freedom of movement, however, such restrictions are necessary to protect Australia’s national security. Under the proposed ESO scheme, a court would decide which conditions are appropriate to address the risk posed by a particular offender. Before imposing any condition as part of an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence . The offender (or their legal representative) will be able to make submissions to the Court in relation to the proposed conditions. These safeguards, particularly the independent role of the judiciary, will ensure that any conditions which affect a person’s freedom of movement will be imposed consistently with Article 12 of the ICCPR, on the grounds of national security.

The right to a fair trial and fair hearing under Article 14 of the ICCPR

69.             Article 14(1) of the ICCPR provides that, in the determination of a person’s rights and obligations in a suit at law and in cases of a criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The fair trial rights provided for in Article 14(1) include the privilege against self-incrimination. Article 14(2)-(7) provides the minimum guarantees which apply to criminal proceedings only. Article 14(3)(g) of the ICCPR provides that, in the determination of any criminal charges, everyone shall be entitled not to testify against themselves or confess guilt. The prohibition against self-incrimination, together with the right to be presumed innocent, also provides for a right to silence during investigations or in pre-trial questioning as well as at trial.

70.             The Bill engages this right as PSO proceedings involve the determination of an offender’s rights and obligations.

71.             There are a range of provisions which uphold an individual’s right to a fair trial and fair hearing.

Criminal Code

72.             The provisions in Division 105A require PSO proceedings to be heard by the Supreme Court of a State or Territory and for the Court to apply the rules of evidence and procedure applicable in civil proceedings. The offender can adduce evidence and make submissions, and he or she must be provided with certain documents, including the application for a PSO and the reasons for a decision in a PSO proceeding, to enable him or her to prepare for proceedings. The offender has the same ability as the Minister to seek a variation of an ESO or ISO or review of a PSO, and can appeal decisions made by the Court.

73.             Subsection 105A.5(2A) provides the Minister must ensure that reasonable inquiries are made to ascertain any facts known to a Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that a PSO should not be made. Paragraph 105A.5(3)(aa) provides that the application by the AFP Minister for a CDO must also include any material in the applicant’s possession and any statement of facts that the applicant is aware of that would reasonably be regarded as supporting a finding that the order should not be made, subject to any claims of PII (see below). These requirements also apply when a PSO is periodically reviewed.

74.             When hearing an application for, or reviewing, a PSO, the Court has the power to appoint one or more experts to assess the risk of the offender committing a serious Part 5.3 offence. In addition, under the new section 105A.18D, the AFP Minister may direct persons who are eligible for an ESO or CDO, or presently subject to an ESO or CDO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence. The offender is required to attend both types of assessment, and the Court is to have regard to the expert’s report and the level of the offender’s participation in the assessment when making an ESO or CDO. Information or answers given by the offender at an assessment are not admissible in evidence against the offender in criminal or civil proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, once the offender has been convicted of an offence, and civil proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings). The prohibitions on the use of the report avoid the offender having to decide between participating in the assessment but potentially disclosing self-incriminating information, and not participating in the assessment at all.

75.             The Bill preserves an offender’s right to access legal representation. Subsection 105A.7B(6) provides that the Court’s ability to impose conditions by an ESO or ISO does not affect an offender’s right to contact, communicate or associate with the offender’s lawyer, unless the offender’s lawyer is prescribed as a prohibited contact. In that case, the offender may contact, communicate or associate with any other lawyer of their choosing. The Bill also ensures that any lawyer representing the offender is able to access copies of ESOs or ISOs made against the offender, so that they can provide advice to, and represent the interests of, the offender as they relate to an ESO or ISO.

76.             Under section 105A.16, when the Court makes a PSO decision, the Court must state the reason for its decision and cause those reasons to be entered in the records of the Court. This accords with the requirement in Article 14(1) that any judgement rendered in a suit at law shall be made public.

77.             These provisions ensure that the offender, and the Court, have access to the information needed in determining an application for a PSO or IPSO. Consequently, subject to the limitations permitted under Article 14(1), the provisions of the Bill protect the rights of offenders to a fair and public hearing by a competent, independent and impartial tribunal established by law.

78.             Articles 14(2) and (3) set out a number of procedural protections that must be observed in the determination of a criminal charge. These protections are not relevant to CDO or ESO proceedings, which do not involve the determination of a criminal charge, being civil, rather than criminal, in nature.

79.             Article 14(7) provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted in accordance with the law and penal procedure of the country. The Bill does not engage this right because the imposition of a PSO on an offender does not constitute additional punishment for their prior offending - the PSO is protective rather than punitive or retributive in nature. While prior commission of serious terrorism offences make an offender eligible for the PSO regime, whether an order will be imposed depends on the Court making an assessment that the offender poses an unacceptable risk of committing further serious terrorism offences.

80.             As well as being defined explicitly in section 105A.1, the scheme’s protective purpose is reflected in numerous features of the scheme including the grounds on which an ESO or CDO may be made or affirmed; the matters to which the Court must have regard when making or reviewing an ESO or CDO; and the requirement that conditions under an ESO may only be imposed for a period that is reasonably necessary to prevent the unacceptable risk. The PSO scheme therefore does not further punish those convicted of terrorism offences and Article 14(7) of the ICCPR is not engaged.

Protection of sensitive information

81.             Article 14 also provides for the concept of ‘equality of arms’ in proceedings, which requires that all parties to a proceeding have a reasonable opportunity to present their case under conditions that do not disadvantage them as against other parties in the proceedings.

82.             The Bill engages this right as, as outlined above in relation to Article 9(4), certain information - that is, national security information, PII information, and terrorism material - may be excluded from the copy of the application or material provided to an offender when a CDO application is made against them. These information exclusion provisions also apply to ESO and ISO applications, applications for a variation of an ESO or ISO order under section 105A.9B, and applications for a review of an ESO or ISO.

83.             The mechanisms through which the information may be protected are overseen by the courts. Neither claims of PII nor the orders available under the NSI Act for CDO proceedings allow for the Court to take into account evidence that has not also been given to the offender. Instead, these mechanisms allow the Court to consider the sensitive information and the potential harm from its disclosure and weigh that against the public interest in the offender receiving all relevant material. After making this assessment, the Court may make orders providing for the redaction of sensitive material, the summarising of information to remove sensitivities or that the material be disclosed to the offender. This means that the AFP Minister will not be able to rely on evidence that is not put to the offender in relation to CDO applications. It will be open to a court to stay proceedings entirely if it is satisfied that withholding the information in question would involve unacceptable injustice or unfairness.

Use of court-only evidence

84.             The Bill extends the existing provisions in the NSI Act that allow for court-only evidence in control order proceedings to apply to ESO and ISO proceedings. This is appropriate given the similarities between control orders and ESOs, in that both allow for supervision (rather than detention) of the subjects of those orders. By giving the Court the power to make an order that the offender or their legal representative not be present during any part of the hearing where information may be disclosed and that disclosure would be likely to prejudice national security, these measures engage Article 14. There will be no circumstances in which the Court is able to consider court-only evidence in deciding whether to make a CDO.

85.             The NSI Act balances the need to protect national security information with the principle of open justice. The Bill enables court-only evidence to be considered in ESO proceedings to ensure that the process of applying for an ESO, which seeks to protect the Australian community from the unacceptable risk of a serious terrorism offence, does not itself damage national security. Wherever possible proceedings will be held in open court.

86.             These measures seek to achieve the legitimate objective of protecting Australia’s national security. As noted above, the inappropriate disclosure of national security information has the potential to prejudice Australia’s national security and the security of all Australians. Information relevant to ESO proceedings may disclosure sensitive sources, methodologies and capabilities employed by security agencies to lawfully obtain information about terrorist activities. Revealing this information to the offender risks jeopardising ongoing counter-terrorism and national security investigations and has consequences for the safety of human sources. Accordingly, the measures in the Bill that protect sensitive information in ESO proceedings are necessary to achieve this legitimate objective.

87.             Further, the NSI Act provides a number of safeguards which ensure the offender receives a fair hearing. For example, the Bill ensures procedural fairness by extending the special advocate scheme that is available in control order proceedings to ESO proceedings. Where information is withheld from the offender and their legal representative, or where they are not permitted to be present during part of a hearing, the Court may appoint a person as a special advocate to represent the interests of the offender. The special advocate represents the interest of the offender by:

·          making submissions to the Court at any part of a hearing in the proceeding during which the offender and the offender’s legal representative are not entitled to be present

·          adducing evidence and cross-examining witnesses at such a part of a hearing in the proceeding, and

·          making written submissions to the Court.

88.             The special advocate is able to make arguments querying the need to withhold information from the offender, and can challenge the relevance, reliability and weight accorded to that information. The appointment of a special advocate ensures that the offender will have a reasonable opportunity to present their case, under conditions which do not disadvantage them as against other parties in the proceedings.

89.             The NSI Act also provides other safeguards. For example, in determining whether to make an order permitting court-only evidence in ESO proceedings, the Court must:

·          be satisfied that the offender has been given sufficient information about the allegations on which the request for an order was based to enable effective instructions to be given in relation to those allegations, and

·          have regard to:

o    the potential prejudice to national security in not making the order

o    whether the making of the order would have a substantial adverse effect on the substantive hearing in the proceeding (which ensures the Court expressly contemplates the effect on a party’s ability to receive a fair hearing), and

o    any other matter the Court considers relevant.

90.             The NSI Act also ensures procedural fairness by preserving the discretion of the Court. The NSI Act does not require the Court to make any orders permitting court-only evidence. The Court may decline to make such an order, or where it does make an order, the Court may determine what form such an order takes (for example, whether redactions should be applied or summaries of the information should be provided). Further, subsection 19(3) preserves the power of the Court to control the conduct of civil proceedings, in particular with respect to abuse of process. This enables the Court to assess at each stage of the ESO proceeding whether the offender has been afforded procedural fairness.

Crimes Act

91.             The monitoring warrant regime in Part IAAB of the Crimes Act ensures that, even where a monitoring warrant is in place, the person has the right not to answer questions or produce documents if the answers or documents might tend to incriminate them (or if they can claim legal professional privilege). The regime provides that before a constable asks or requires a person to answer a question or produce a document they must explain to the person their rights concerning legal professional privilege and privilege against self-incrimination. Further, the regime provides that, should a constable fail to explain to the person their rights in relation to answering a question or producing a document, any answer given or document produced will not be admissible as evidence against the person in a criminal proceeding. The Bill ensures that the express protection of the right against self-incrimination under Article 14(3)(g) is extended to apply to warrants issued to monitor compliance with ESOs and ISOs.

ADJR Act

92.             The Bill amends Schedule 1 of the ADJR Act to exempt decisions made under Division 105A of the Criminal Code from review under the ADJR Act. This would apply to two types of decision - decisions of the AFP Minister to apply to the Court for a PSO under Division 105A (including a decision to seek review or variation of an order), and decisions of the AFP Minister to direct an offender to participate in an assessment under section 105A.18D.

93.             Division 105A contains a number of measures that protect the offender’s rights and interests in relation to a direction to attend an expert assessment, including:

·          the offender is not required to answer any questions. Any answers or information given at the assessment are not admissible in evidence against the offender in any civil or criminal proceedings, other than civil proceedings under Division 104 (control orders) or Division 105A, or sentencing proceedings in relation to Divisions 104 or 105A,

·          should the offender participate, any exculpatory information produced as a consequence of the Minister’s decision to direct the offender must be summarised and included as part of any application made under Division 105A (see paragraph 105A.5(3)(aa) and Item 69),

·          the offender (or the offender’s legal representatives) will have the opportunity to present submissions to the relevant Supreme Court on the veracity of the expert report. While the grounds on which the Minister’s decision would not encompass the broad grounds of review under the ADJR Act, the offender will be able to present submissions on whether the report was lawfully obtained. The Court must have regard to the report in deciding whether to make a PSO (subparagraph 105A.6B(1)(b)(ii)), and will have the final determination as to the weight to be assigned to it. It is appropriate for the Court to consider challenges to the report in this context, including in relation to the Minister’s decision to make the direction to attend the assessment.

94.             Judicial review of these decisions will remain available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution. Accordingly, while the Bill excludes the decision of the AFP Minister from ADJR Act review, the procedural guarantees provided under Article 14 are not restricted as the offender can contest the contents of any report prepared as a result of the proceedings in the application, variation or review proceedings in a Supreme Court, and can seek review of the AFP Minister’s decision under section 75(v) of the Constitution.

95.             To the extent that the Bill limits the rights of offenders under Article 14 of the ICCPR, the limitations are reasonable, necessary and proportionate to achieve the legitimate objective of protecting sensitive information.

The right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

96.             Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

Conditions of ESOs and control orders

97.             There are a range of possible conditions which a court may impose as part of an ESO that would engage with the right to privacy, including that the offender be subject to electronic monitoring, provide information to specific authorities, submit to drug and/or alcohol testing, allow himself or herself to be photographed, allow fingerprints to be taken, report to specified authorities at specified times and places, allow visits to confirm compliance with a curfew condition, and allow a police offer to search them or their premises and seize items found. The Bill also expands the electronic monitoring conditions in control orders to align them with the provisions in the ESO scheme.

98.             To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient.

99.             The measures in the Bill, including the proposed ESO and control order conditions, are intended to protect the Australian community from the risk of an offender committing further terrorism offences. Terrorism remains a significant threat to national security and public safety. Politically motivated violent acts can indiscriminately threaten the lives and physical safety of Australian citizens. This can perpetuate a climate of fear which is socially divisive, threatening the cohesiveness of Australian society. Accordingly, the measures are seeking to achieve a legitimate objective.

100.         The measures are also proportionate to achieving that outcome. The conditions which may be imposed by a court are intended to be tailored to address the specific risk the individual poses of committing further terrorism offences. Under subsection 105A.7B(1), before imposing a condition which may restrict an offender’s privacy under an ESO, ISO or control order, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. The protection of the community from serious terrorism offences is the paramount consideration for the Court in determining what conditions to impose in an ESO or ISO. This does not preclude the Court taking other factors, such as the level of interference with the offender’s privacy, caring responsibilities, or the offender’s propensity to engage in criminal behaviour when affected by illicit substances, into account, provided the protection of the community is the paramount consideration. When determining what obligations, prohibitions or restrictions to include in a control order, in addition to taking the objects of Division 104 into account as the paramount consideration, the Court must also consider the impact of the obligation, prohibition or restriction on the person’s circumstances. This reflects the fact that control orders may be imposed on persons who are already in the community without conditions.

101.         There are also appropriate safeguards on the extent to which a specified authority may exercise powers or otherwise do things in relation to ESO conditions, including the threshold in section 105A.7B(4) which provides that monitoring and compliance powers may only be used where it is reasonably necessary to do so in order to give effect to the order or to facilitate or monitor compliance with the order. There are also safeguards in the use and treatment of photographs and fingerprints, which are limited to the purpose of ensuring compliance with an ESO or ISO in s105A.7D.

102.         These safeguards and the tailored approach to setting conditions, which can only be made by a court, ensure that any engagement of the right to privacy is consistent with Article 17 of the ICCPR.

Expert assessments

103.         When hearing an application for, or reviewing, a PSO, the Court has the power to appoint one or more experts to assess the risk of the offender committing a serious Part 5.3 offence. In addition, under the new section 105A.18D, the AFP Minister may direct persons who are eligible for an ESO or CDO, or presently subject to an ESO or CDO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence.

104.         In relation to both types of expert assessment, the offender is required to attend the assessment but is under no obligation to answer questions or to disclose any information. The effect of this requirement is to be explained to the offender by either the Court or the Minister (or his/her representative). In deciding whether to make or affirm a PSO, the Court is to have regard to the expert’s report and the level of the offender’s participation in the assessment. The fact that the Court must consider the level of the offender’s participation in the expert’s assessment does not create a de facto obligation to participate. The Court may choose to place whatever weighting on this consideration as it sees fit. There are a range of other ways by which the offender can seek to influence the outcome of the Court’s consideration of an application for, or review of, a PSO, including by adducing evidence and making submissions.

105.         The same limitations on admissibility of information or answers given at the assessment apply to both court-appointed and Minister-appointed experts. Under subsections 105A.6(5A) and 105A.18D(5), information or answers given by the offender at an assessment are not admissible in evidence against the offender in criminal or civil proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, once the offender has been convicted of an offence, and civil proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings). This is appropriate to ensure that the Court has all relevant materials available for its consideration when sentencing an offender for a breach of a control order or ESO, while balancing this against the need to ensure that information provided by the offender during the relevant expert’s assessment cannot be used as a basis for a conviction.

106.         Given that an offender is not compelled to answer questions as part of an expert assessment, the requirement that the offender attend an assessment does not engage Article 17(1) of the ICCPR.

Sharing of information

107.         The Bill extends information sharing provisions that apply for CDOs to apply to ESOs. Section 105A.19 provides that the AFP Minister may request information from prescribed persons which the Minister reasonably believes to be relevant information to the administration or execution of Division 105A. Subsection 105A.19(2A) provides that such information can be provided to the Minister despite any law of the Commonwealth or a State or Territory. The Bill also provides that information may be shared between the AFP and electronic monitoring service providers in relation to offenders who are subject to a control order or ESO electronic monitoring condition. The Bill also includes provisions to facilitate the disclosure, to a specified authority, of information obtained as part of an offender’s attendance and participation in treatment, rehabilitation or intervention programs or activities, psychological or psychiatric assessment or counselling, and interviews and assessments. As these provisions would allow the sharing of personal information, they engage Article 17 of the ICCPR.

108.         These provisions seek to achieve a legitimate objective, as the disclosure of information is necessary to facilitate the electronic monitoring of offenders - thereby protecting the safety and security of the Australian community. The disclosure of personal information would be limited to a select class of persons, and only for the purposes of monitoring offenders. As such, these provisions are proportionate and do not constitute an arbitrary interference with the right to privacy.

Monitoring warrants

109.         The former INSLM noted in his 2012 Annual Report that the efficacy of a control order depends largely upon the subject’s willingness to respect a court order when there is an absence of the ability to effectively monitor a person’s compliance with the terms of a control order. Without the ability to effectively monitor this compliance, there is no guarantee that a person will not breach the order or go on to commit a terrorist offence. This is a position that applies equally to ESOs and ISOs.

110.         Importantly, these monitoring powers do not require the issuing authority to be satisfied that an offence has occurred or is going to be committed. If warrants were only available once law enforcement had a suspicion that an offence had already occurred, an offender subject to an ESO or ISO may have already breached their order and may have been able to provide support for terrorist activity or take preparatory steps for a terrorist act. If an offender were able to perform these kinds of actions before law enforcement agencies could take action, the preventative and protective purposes of the orders would be undermined. Consequently, these monitoring powers adopt a threshold appropriate to the monitoring of an offender who has already met the relevant threshold for the making of an ESO or ISO and who is therefore of security concern.

111.         It is imperative that our law enforcement agencies have adequate powers to monitor an offender’s compliance with the conditions of an ESO or ISO. Without sufficient powers to monitor compliance, community safety may be put at risk if the offender does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to an offender to breach the conditions of their order. This enhances the effectiveness of the ESO or ISO.

112.         Certain surveillance powers will also be extended to apply to PSOs. In this context, surveillance powers may be used to gather information which would be likely to assist in determining whether to make an application for a PSO. The ability to obtain information that would likely assist in determining whether to make an application under Division 105A of the Criminal Code will broaden the information available to the Minister. In consideration that information gathering of this nature would be in relation to an offender who is in custody, the information obtained is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. It is intended that these measures will strengthen the evidence available to the Minister in determining whether it is appropriate to make an application in all the relevant circumstances.

113.         Finally, the overarching obligation on the Minister to disclose exculpatory information in a PSO application means that the information obtained under all surveillance and monitoring powers will assist the Court’s consideration of whether to make a PSO and may be relied upon in favour of the offender. This obligation further strengthens the reasonableness of these measures.

Crimes Act

114.         The amendments to the Crimes Act will provide for two types of entry and search - by consent, and under a monitoring warrant.

115.         Entry to and search of a person’s home by consent will engage, but will not limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The Bill extends the safeguard that a person will not be compelled to answer questions or produce documents when requested by police to apply in relation to ESOs and ISOs. Entry and search are only authorised if consent is informed and voluntary, limiting the impact on privacy.

116.         The Bill extends in relation to ESOs and ISOs the protection against arbitrary abuses of power as the entry, monitoring, search and information gathering powers are conditional upon consent by the occupier of the premises, with seizure only possible by prior judicial authorisation. Where entry is based on the occupier’s consent, the consent must be informed and voluntary and the occupier can restrict entry for a particular period. Authorised persons and any persons assisting them must leave the premises if the occupier withdraws consent.

117.         Third parties present at premises may be questioned regardless of whether the premises are entered on the basis of consent or a monitoring warrant. Third parties are under no obligation to provide information or documents unless a monitoring warrant in relation to premises is in force. Furthermore, whether or not a warrant is in force, questioning or requests for documents can only occur where the purpose relates to either the prescribed purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

118.         Entry to and search of a person’s home under a monitoring warrant (and without consent) will engage, and limit, the protection from arbitrary and unlawful interference with privacy in Article 17. The person is compelled to answer questions and produce documents as required by police unless doing so might tend to incriminate them or if they can claim legal professional privilege. Entry and search under a monitoring warrant affects the person’s privacy.

119.         Safeguards exist where entry and search is under a monitoring warrant. They include a requirement that the monitoring warrant issuing officer is satisfied on the balance of probabilities that, where a search is to be conducted of the premises or vehicle owned or occupied by or in the possession of the offender who is the subject of an ESO or ISO, the search is reasonably necessary and reasonably appropriate and adapted to the purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

120.         Furthermore, the Bill extends in relation to ESOs and ISOs the positive obligation on an issuing officer to have regard to whether allowing one or more constables to exercise the monitoring warrant powers would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances. This requirement acknowledges the infringement of these powers on a person’s privacy by striking an appropriate balance between the objectives of the regime in mitigating risk and protecting the public, against the right to privacy of the subject of the ESO or ISO.

121.         Third parties present at premises may be questioned and obligated to provide information or documents if a monitoring warrant in relation to premises is in force. However, even where a warrant is in force, questioning or requests for documents can only occur where the purpose relates to either the prescribed purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

122.         The Bill extends in relation to ESOs and ISOs the requirement that an issuing officer of a warrant to enter premises for the purpose of monitoring must be a judicial officer. In addition, an authorised person cannot enter premises unless their identity card is shown to the occupier of the premises. Where entry is authorised by warrant, the authorised person must also provide a copy of the warrant to the occupier. This provides for the transparent use of the relevant powers and mitigates the risk of abuse or arbitrary use of the powers.

123.         The Bill extends in relation to ESOs and ISOs a number of other safeguards and accountability mechanisms, record keeping and reporting requirements, and independent oversight by the Commonwealth Ombudsman. The regime provides that the AFP Commissioner must keep a record of each monitoring warrant issued, each instrument revoking a monitoring warrant and any order granting an extension to a monitoring warrant period. The AFP Commissioner must also notify the Commonwealth Ombudsman that a warrant has been issued, provide a copy of the warrant and notify the Ombudsman of any contravention of a provision of Part IAAB by an AFP member. Furthermore, the Ombudsman must report annually to the AFP Minister on the compliance of members of the AFP with Part IAAB. The AFP Minister must report to the Parliament on the operation of the regime, including the number of warrants issued and executed and must also include, in full, the Ombudsman’s report on the AFP’s compliance with the regime.

124.         To the extent that the Crimes Act monitoring warrants interfere with the right to privacy it is proportionate and limited to ensuring that an offender who is subject to an ESO or ISO is prevented from breaching that order, which in turn may prevent the offender from engaging in terrorism-related activities or terrorism offences. The monitoring warrant powers are subject to safeguards which ensure that the use of power is reasonable and necessary. These measures require the monitoring warrant issuing officer to be satisfied of thresholds (such as being satisfied that it is reasonably necessary to use the power for the purpose of, for example, the protection of the public from a terrorist attack) that mean that the powers cannot be used in an arbitrary fashion and that the level of intrusiveness is no more than is reasonably necessary to achieve a legitimate objective. This legitimate objective is to assist law enforcement officers to prevent serious threats to community safety. The intrusive nature of the powers is balanced by their use solely in respect of terrorism, which constitutes a threat to the safety and security of the community.

125.         The Crimes Act monitoring warrant provisions do not constitute an arbitrary or unlawful interference with a person’s right to privacy. To the extent that there is a limitation on an individual’s right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of ESOs and ISOs for the purpose of maintaining community safety.

SD Act

126.         To the extent that there is a legitimate limitation of the right to privacy under the proposed amendments to the monitoring warrant regime in the Crimes Act, the same justifications apply with regard to the use of surveillance device warrants for monitoring compliance with ESOs and ISOs. In essence, to the extent that there is a limitation on an individual’s right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of the ESO or ISO for the purpose of maintaining community safety. Safeguards and limitations on the use of regulatory powers ensure that such lawful interferences with a person’s privacy are not arbitrary or at risk of abuse.

127.         Law enforcement officers are required to apply to an eligible Judge or nominated AAT member for a warrant authorising the use or installation of a surveillance device. The SD Act only allows the use of optical surveillance, listening and tracking devices without a warrant in circumstances which do not involve covert entry onto premises or interference with a vehicle. Independent oversight prior to the use of a privacy-intrusive surveillance device requires law enforcement agencies to demonstrate the necessity and proportionality of surveillance to an independent party. Law enforcement officers are not automatically entitled to receive the warrant in relation to persons subject to an ESO or ISO. Before issuing a surveillance device warrant, the independent issuing authority must be satisfied inter alia that the use of a surveillance device would be likely to substantially assist in achieving a

Part 5.3 object or determining compliance with the relevant order. Even where the issuing authority is satisfied that the use of a surveillance device would be likely to substantially assist in either of the above purposes, the issuing authority is not required to issue the warrant.

128.         The provisions relating to computer access warrants issued on the basis of determining compliance with an ESO or ISO closely mirror the requirements and safeguards that are present in relation to surveillance device warrants as described above. Similarly, a law enforcement officer must apply to an eligible Judge or AAT member for the computer access warrant, and can only do so for strictly limited purposes. Importantly, agencies are not automatically entitled to warrants, and the eligible Judge or AAT member must be satisfied that the use of the computer access warrant would be for the relevant purpose. Even if satisfied, the eligible judge or AAT member retains the discretion to issue or not issue the warrant and may have regard to a number of public interests.

129.         The provisions relating to surveillance device warrants and computer access warrants issued on the basis of assisting in determining whether to make a PSO application have strict limitations. A law enforcement officer is required to apply to an eligible Judge or nominated AAT member, and can only do so in relation to an offender who is eligible for a PSO. Importantly, agencies are not automatically entitled to warrants, and the eligible Judge or AAT member must be satisfied that the use of the warrant would be for the relevant purpose, that being assisting in the decision of whether to apply for a PSO in relation to the person. Even if satisfied, the eligible Judge or AAT member maintains discretion to issue or not issue the warrant and may have regard to a number of public interests.

130.         The interference with the right to privacy is proportionate and limited to ensuring that, where an offender who is eligible for a PSO poses an unacceptable risk of committing a serious Part 5.3 offence, they are made subject to a PSO, which in turn may prevent the offender from engaging in terrorism-related activities or terrorism offences. This legitimate objective is to assist law enforcement officers to prevent serious threats to community safety. The intrusive nature of the powers is balanced by their use solely in respect of convicted terrorist offenders, who constitute a grave threat to the safety of Australians.

131.         Strict limitations upon when surveillance devices and computer access warrants can be used in relation to PSOs ensures that they are only used where they are necessary, reasonable and proportionate to the legitimate objective. The Bill extends the safeguard which compels the immediate revocation of a warrant issued on the basis of an ESO or ISO being in force and discontinuance of surveillance if it is no longer necessary for the relevant purpose, or where the order is no longer in force.

132.         A law enforcement officer can apply for a surveillance device warrant or computer access warrant after the ESO or ISO has been made but before it has begun. Likewise, the warrant can be issued during this period. This is intended to ensure:

o    the devices may be installed covertly to avoid any risks associated with the offender witnessing the installation process, as there are often limited opportunities to do so, and

o    the device is able to be installed immediately after the order is made, and is able to be used from the moment the order comes into force.

133.         The purposes for which information obtained by way of a surveillance device or computer access warrant during this intervening period may be used are strictly limited, and can only be used if the chief officer of the agency is satisfied that the information obtained is likely to assist in connection with achieving a Part 5.3 object. If this is not the case, the information must be destroyed as soon as practicable. The ability to use information obtained prior to the beginning of an ESO or ISO in these circumstances is a legitimate and proportionate use of surveillance in light of the gravity of the terrorist threat.

134.         The amendments extend deferred reporting arrangements for all surveillance device warrants and computer access warrants, which currently permits the chief officer of an agency to delay public reporting on the use of a warrants in relation to a control order in certain circumstances. Due to the small number of control orders which are issued, immediate reporting of any warrants or authorisations of surveillance devices may enable an individual to determine whether they are the subject of surveillance. This position equally applies to PSOs. If an offender knows, or suspects that there is a surveillance device warrant in place, they are more likely to be able to modify their behaviour to defeat those lawful surveillance efforts. Also, if an offender knows or suspects that a surveillance device warrant is not in force, the deterrence value of the order is limited to the extent that the offender believes they can engage in proscribed activity without risk of detection. Deferred reporting balances the public interest in timely and transparent reporting with the need to preserve the effectiveness of orders to prevent individuals from breaching their order or modifying their behaviour to defeat the purpose of the warrant.

135.         Timely and transparent reporting is an important safeguard against arbitrary interference with privacy and therefore strict controls on the decision to defer public reporting reflect this significant public interest in transparency in relation to the use of exceptional, covert powers. The controls include:

o    The decision to defer public reporting may only be made by the Minister, on the advice of the chief officer of the relevant agency.

o    The chief officer and the Minister must each be satisfied that publicly reporting particular information could be reasonably expected to enable a reasonable person to determine that particular surveillance measures are likely to be, or not to be, in force at the time they make their decision (which will generally be at different times, given the time taken to prepare the Minister’s report based on all agencies’ input).

o    Where public reporting is deferred in relation to particular information, the chief officer of the relevant agency will be required to reconsider his or her decision each year.

o    Documentary records must be kept in relation to each such decision.

o    Each such decision is subject to independent oversight by the Commonwealth Ombudsman.

136.         The Bill amends the SD Act to extend the circumstances in which an officer may be authorised to use an optical surveillance, listening or tracking device without a warrant to include where it is for the purpose of achieving a Part 5.3 object or determining compliance with an ESO or ISO. Importantly, the SD Act only allows the use of optical surveillance, listening and tracking devices without a warrant in circumstances which do not involve covert entry onto premises or interference with a vehicle. For instance, an officer may use an optical surveillance device in a public place without a warrant. There is a lower threshold for the use of these devices in a public place because they are less privacy-intrusive than circumstances where the use of the device requires entry into an individual’s premises or vehicle without permission. The use of optical surveillance, listening or tracking devices without a warrant is necessary to ensure law enforcement agencies can, for example, record publicly occurring conversations using a ‘wire’. To the extent that the use of these surveillance devices without a warrant limits a person’s right to privacy, public surveillance of a person is legitimate and proportionate in light of the gravity of the terrorist threat. In addition, the appropriate authorising officer who has given their permission for the use of a surveillance device without a warrant must also make a written record of giving the authorisation as soon as practicable after giving the authorisation.

137.         The Bill extends important record-keeping measures in relation to surveillance device warrants and use of optical surveillance, listening or tracking devices without a warrant which enhances oversight of the regime. The chief officer of each law enforcement agency is required to report to the Minister on the benefits of surveillance device warrants issued to monitor compliance with an ESO or ISO or made in relation to a PSO. The Minister must also cause an annual report to be laid before each house of Parliament on the use of surveillance devices authorised by warrant and without a warrant. These reporting measure are designed to encourage transparency, by revealing the purposes for which surveillance devices are used and detailing their contribution to the prevention of terrorist acts.

138.         The Bill also extends the authority for the use, recording, communication or publication, or admission into evidence of protected information (which is broadly information obtained under SD Act warrants or surveillance devices used without a warrant) for the purposes of proceedings arising under, or in relation to a PSO. These amendments are intended to clarify that protected information can be used in such proceedings, including applications for, appeals against, and civil proceedings in relation to an order. This recognises the importance of protected information to applications for such orders and ensures that covertly collected information can be used in related proceedings. However, the prohibited use of protected information outside of circumstances specified in the Act ensures that surveillance devices are used, and confined to, their intended purpose of achieving a

Part 5.3 object or determining compliance with the relevant order. To the extent that the use of protected information in legal proceedings limits a person’s right to privacy, the use is legitimate and proportionate in light of the legitimate objective to protect the public from the threat posed by a terrorist offender.

139.         The extension of the surveillance device warrant and computer access warrant powers in the SD Act to PSOs does not constitute an arbitrary or unlawful interference with a person’s right to privacy. To the extent that there is a limitation on an individual’s right to privacy, a number of important protections are built into the regime to ensure any interference is reasonable, necessary and proportionate to achieve a legitimate objective - the effective operation of PSOs for the purpose of maintaining community safety.

TIA Act

140.         The Bill will extend the interception warrant regime under the TIA Act that is currently available to monitor compliance with a control order, to monitor the compliance of individuals who are subject to an ISO or ESO, by enabling a Part 5.3 warrant agency to seek a telecommunications service warrant, or telecommunications named person warrant. The Bill also extends the application of telecommunications service warrants and telecommunications named person warrants to be used for the purpose of informing a decision of whether to apply for a PSO.

141.         Schedule 2 of the Bill are amendments contingent on the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill). The purpose of these amendments is to extend the application of international production orders that may be obtained under Part 3 of Item 43 of the IPO Bill (international production orders relating to control orders) to also include ESOs and ISOs. Monitoring powers such as these represent a significant interference with a persons’ privacy. However, such monitoring powers are subject to strict safeguards, limitations and protections and go to achieving a legitimate objective of keeping the public safe from terrorism and other terrorism related activity.

Interception

142.          Provisions in the Part 2 amendments will allow Part 5.3 warrant agencies to apply for a telecommunications service warrant or a named person warrant relating to Part 5.3 supervisory orders or PSOs, seeking the interception of communications during a specified period. A Part 5.3 warrant agency may also apply for an IPO relating to a Part 5.3 supervisory order. Only an eligible Judge or nominated AAT member may issue a warrant or IPO for the interception of communications resulting from such an application.

143.         The eligible Judge or nominated AAT member may only issue a warrant or IPO for the interception of communications where they are satisfied on reasonable grounds of a variety of matters that vary according to whether the instrument relates to a Part 5.3 supervisory order or a PSO. Broadly, the eligible Judge or nominated AAT member must be satisfied a particular person is using or is likely to use the communications service. They must also be satisfied the extent to which information gathered under the warrant or IPO would be likely to substantially assist in achieving a Part 5.3 object when assessing an application with respect to a Part 5.3 supervisory order, and that there is an appreciable risk of the person committing a serious Part 5.3 offence when assessing an application with respect to an ISO.

144.         The duration of a warrant or IPO issued for interception remains unchanged by the Bill and may be for a period no longer than 90 days.

145.         In deciding whether to issue a warrant or IPO for the interception of communications, the eligible Judge or nominated AAT member must have regard to several matters including how much the privacy of any person or persons would likely be interfered with. They must also take into account the availability and use of other means to achieve the objectives of the warrant or IPO, including how much the use of such methods would assist with or be likely to prejudice the investigation (e.g. by a delay).

146.         This means that where there are other methods to access the necessary information that would be less intrusive on the privacy of the person, the relevant agency may be required to turn to those means instead of seeking the interception warrant or IPO for interception.

147.         In addition, there are other considerations the eligible Judge or nominated AAT member must take into account, which vary according to whether the warrant or IPO relates to a Part 5.3 supervisory order or a PSO. Broadly, the decision maker must consider to what degree the interception warrant or IPO will assist in the detection, prevention, investigation or prosecution of the offence, and any submissions made by Public Interest Monitors currently operating in Queensland and Victoria.

148.         Specifically for Part 5.3 supervisory orders, the eligible Judge or nominated AAT member must consider whether intercepting communications would be the method that is likely to have the least interference with any person’s privacy. This requirement was inserted into the Bill (and forms part of the existing domestic regime) on the basis that additional protection is considered appropriate noting a warrant or IPO can be issued for purposes in connection with the monitoring of a person subject to a Part 5.3 supervisory order rather than in connection with an investigation into a particular offence.

149.         Interception warrants and IPOs for the monitoring of Part 5.3 supervisory orders may be targeted at B-Party services in limited and controlled circumstances. B-Party interception involves the interception of a communications service of a person who is not a person subject to the Part 5.3 supervisory order (the B-Party). Such a warrant or IPO may only be obtained where the eligible Judge or nominated AAT member has reasonable grounds for suspecting the person subject to the Part 5.3 supervisory order is likely to communicate using the particular communications service of the B-Party. The matters which the decision maker must consider and be satisfied of when assessing an application for a

B-Party warrant or IPO are largely similar to the criteria when assessing a non B-Party application. Of chief importance, the eligible Judge or nominated AAT member is restricted from issuing a warrant or IPO seeking B-Party interception unless they are satisfied the

Part 5.3 warrant agency has exhausted all other practicable methods of identifying the telecommunications services used by the person subject to the Part 5.3 supervisory order, or it is not otherwise possible to intercept the telecommunications used by the person subject to the Part 5.3 supervisory order. The duration of a B-Party warrant or IPO remains unchanged by the Bill and may be for a period no longer than 45 days.

Stored communications and telecommunications data

150.         An IPO may also be obtained for the purpose of seeking stored communications data with respect to a Part 5.3 supervisory order. Part 5.3 warrant agencies may make an application to an issuing authority for such an IPO. Only an issuing authority may issue an IPO relating to stored communications or telecommunications data in response to an application made by a ‘Part 5.3 IPO agency’.

151.         In deciding whether to issue an IPO relating to stored communications or telecommunications data, the decision maker must have regard to several matters including relevantly, how much the privacy of any person or persons would be likely to be interfered with. Each of the factors that a decision maker must have regard to ensures that actions under the IPO, including the necessary interference with a person’s privacy, are proportionate to the relevant conduct.

Summary

152.         When either an interception warrant or IPO is sought by a Part 5.3 warrant agency, the decision maker must evaluate the individual circumstances of each application. They must balance the interests of the agency applying for the warrant or IPO, as well as wider public interests, such as the impact on privacy.

Therefore, the amendments do not constitute arbitrary or unlawful interference with a person’s privacy. To the extent that there is a limitation on the protection against arbitrary or unlawful interference with a person’s privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.

The right to freedom of expression under Article 19 of the ICCPR

153.         Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in writing or in print, in the form of art, or through any other media of the person’s choice. Article 19(3) provides that this right may be subject to certain restrictions, but only such as are provided by law and are necessary for respect of the right or reputations or others, for the protection of national security or of public order, or of public health and morals.

154.         The Bill engages this right as, under section 105A.7B, the Court may impose conditions that limit the individuals or classes of individuals with whom an offender may communicate, or proscribe the means by which an offender may communicate (for instance, through limiting or prohibiting the use of social media or certain forms of communication). This limitation of the right to freedom of expression in this context seeks to protect the Australian community from the risk of the person who is subject to the order committing a serious offence, and is therefore necessary for the protection of national security. A person who is subject to an ESO or ISO has been assessed by law enforcement and the Court as posing an unacceptable risk to public safety if controls are not put in place.

155.         Before imposing a condition restricting an offender’s freedom of expression under an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk that the offender poses of committing a serious terrorism offence. This is an important safeguard which ensures conditions will be imposed consistently with Article 19 of the ICCPR.

156.         The Bill also indirectly engages the right to freedom of expression, to the extent that individuals subject to a PSO may suspect that their communications are being monitored under the Crimes Act, SD Act or TIA Act. This suspicion may cause them to restrict their communications, both in terms of content and audience.

157.         An individual subject to a PSO is a convicted terrorist offender who has been assessed as posing an unacceptable risk of committing a serious terrorism offence. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. This heightened risk justifies this limited indirect limitation on freedom of expression for a limited number of specific convicted individuals subject to PSOs in order to protect national security and public order.

158.         As such, any limitation or restriction of an individual’s right to freedom of expression under the Bill is consistent with Article 19.

The right to freedom of association under Article 22 of the ICCPR

159.         Article 22 of the ICCPR provides that everyone shall have the right to freedom of association with others. This right may be limited when prescribed by law and when necessary in the interests of national security, public safety and public order, or for the protection of public health, morals or the rights and freedoms of others, as permitted by Article 22(2).

160.         This Bill engages this right as under paragraph 105A.7B(2)(h), as part of an ESO or ISO, a court may impose a condition that an offender not communicate or associate with specified individuals or classes of individuals. However, this limitation of the right to freedom of association is necessary in the interests of national security and public safety.

161.         An offender who is subject to an ESO or ISO has been assessed by a court as posing an unacceptable risk of committing a serious Part 5.3 offence, meaning the offender has been assessed as a risk to national security and public safety. Accordingly, the restriction of an offender’s freedom of association is for a legitimate purpose.

162.         Further, before imposing a condition restricting an offender’s freedom of association under an ESO or ISO, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. This is an important safeguard which ensures conditions will be imposed consistently with Article 22 of the ICCPR.

163.         The Bill also indirectly engages the right to freedom of association, to the extent that individuals subject to a PSO may suspect that their communications are being monitored under the Crimes Act, SD Act or TIA Act. This suspicion may cause them to restrict their communication or associations.

164.         An individual subject to a PSO is a convicted terrorist offender who has been assessed as posing an unacceptable risk of committing a serious terrorism offence. The nature of the terrorism threat is evolving, with rapid radicalisation and low sophistication attacks resulting in shorter timeframes for agencies to detect and disrupt attacks. This heightened risk justifies this limited indirect limitation on freedom of association for a limited number of specific convicted individuals subject to PSOs in order to protect national security and public order.

The right to work under Article 6 of the ICESCR

165.         Article 6 of the ICESCR provides that everyone has the right to gain their living by work which they freely chose or accept. To the extent that the conditions a court may impose as part of an ESO or ISO under section 105A.7B limit the type of work that an offender may engage in, or limit the type of training or education that an offender may access, the Bill engages Article 6.

166.         Article 4 of the ICESCR provides that States may subject economic, social and cultural rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available. Where such limitations are permitted, they should be of limited duration and subject to review.

167.         An offender who is subject to an ESO or ISO has been assessed by a Court as posing an unacceptable risk of committing a serious Part 5.3 offence, meaning the offender is a risk to national security and public safety. Limiting the type of work that an offender may engage in, or limiting the type or training or education they may access, is therefore necessary for the promotion of the general welfare of the Australian public.

168.         Further, conditions imposed are restricted to the period of time during which an order is in force, and are subject to review. The length of an ESO is limited to the period, of no more than three years, that the Court is satisfied is reasonably necessary to prevent the unacceptable risk of the offender committing a serious Part 5.3 offence. In addition, under subsection 105A.7B(1), before imposing a condition restricting an offender’s right to work, the Court must be satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.

169.         These safeguards ensure that, to the extent that the Bill engages Article 6 of the ICESCR, it is consistent with it and the limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

170.         Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. The article also prohibits the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed.

171.         To be eligible for an ESO, a person must be a terrorist offender, that is, they must have been convicted of a specified terrorism offence. The scheme will therefore apply to offender convicted of terrorism offences prior to the enactment of the scheme.

172.         The imposition of an ESO is not a penalty for criminal offending, as the purpose of an ESO is protective rather than punitive or retributive. While an offender must have been convicted of a specified terrorism offence in order to be eligible for an ESO, the decision of a court to impose an ESO is based on an assessment of future risk rather than as punishment for past conduct. As such, the imposition of an ESO does not constitute a prohibited form of retrospective punishment or the imposition of a penalty for an offence heavier than that which was applicable at the time the offence was committed. Accordingly, the Bill does not engage the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR.

Conclusion

While the Bill engages a range of human rights, it is compatible with human rights in that it promotes some rights and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

 NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2020 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table at subclause 2(1) provides that sections 1-3, which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives the Royal Assent.

3.                    Item 2 in the table provides that the amendments in Schedule 1 commence the day after the Bill receives the Royal Assent.

4.                    Item 3 in the table provides that the amendments in Schedule 2 commence at the later of the start of the day after the Bill receives the Royal Assent and Part 1 of Schedule 1 to the Telecommunications Legislation Amendment (International Production Orders) Act 2020 receives the Royal Assent. However, the provisions do not commence if Part 1 of Schedule 1 to the Telecommunications Legislation Amendment (International Production Orders) Act 2020 does not commence.

Clause 3 - Schedules

5.                    Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended as set out in the applicable items in the Schedule. Any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1 - Extended Supervision Orders

Part 1 - Main amendments

Criminal Code Act 1995

Overview

6.                    The Bill establishes a scheme whereby a State or Territory Supreme Court may make an ESO in relation to an eligible offender, if it is satisfied of the relevant thresholds, where the Australian Federal Police Minister (AFP Minister), or a legal representative of the AFP Minister, has either applied for an ESO, or applied for a CDO but the Court is not satisfied that less restrictive measures would not be effective in preventing the risk posed by the offender. Section 105A.3 provides that a terrorist offender is a person convicted of an offence specified in paragraph 105A.3(1)(a), where the individual is at least 18 years old at the time the sentence ends. Eligibility for an ESO is based on being convicted of, and serving a custodial sentence for, the same terrorism offences specified in subsection 105A.3(1)(a) (the specified terrorism offences) that would make an offender eligible for a CDO. Consistent with the provisions that currently apply to CDOs, the Bill preserves an offender’s eligibility for further CDOs or ESOs.

7.                    Subsection 105A.7B(1) provides that a court may impose on an offender under an ESO any conditions (prohibitions, restrictions or obligations) that it is satisfied on the balance of probabilities are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

8.                    Subsection 105A.7A(5) provides that the period during which the ESO is to be in force must not exceed three years and must be limited to the period reasonably necessary to prevent the unacceptable risk. Subsection 105A.7A(6) provides that there is no limit on the number of ESOs that can be made, consistent with the approach to CDOs in the current subsection 105A.7(6) of the Criminal Code . The Court may also specify ‘exemption conditions’ under section 105A.7C, from which the offender may apply to a specified authority for an exemption. A specified authority is defined in the Bill to include a police officer or any other person that the Court is satisfied is appropriate in relation to a particular condition. This is intended to provide more flexibility to support the day to day management of the offender subject to the ESO.

9.                    Under section 105A.9A, the Court may make an ISO pending the determination of an ESO application, or as an alternative to an interim detention order (IDO) in connection with a CDO proceeding. The period of an ISO should be the period, of no more than 28 days, that the Court is satisfied is reasonably necessary to determine the application for the ESO or CDO. Consecutive ISOs may be made, but the total period of all ISOs must be less than three months, unless exceptional circumstances apply.

10.                Sections 105A.9B and 105A.9C provide that the offender or the AFP Minister may apply to vary an ESO or ISO at any time. The Court can vary an ESO or ISO by adding, varying or removing conditions.

11.                Sections 105A.10 and 105A.11 provide that an ESO must be reviewed by the Court annually, or sooner if the offender or the AFP Minister applies for a review and the Court is satisfied that new facts or circumstances, or the interests of justice, justify the review. Section 105A.12A provides that the Court may vary an ESO after a review, including by adding, varying or removing conditions or by reducing the length of the ESO.

12.                The provisions in Subdivision E ensure procedural protections are applicable in proceedings determining an application for an ESO or an ISO, and in proceedings to review an ESO or vary conditions. The Court must apply the rules of evidence and procedure applicable to civil matters; the parties (including the offender) can adduce evidence and make submissions; reasons for decisions must be given; and decisions can be appealed.

13.                Under section 105A.14A, when the AFP Minister, or a legal representative of the AFP Minister, applies for a PSO, a variation of an ESO or ISO, or a review of a PSO, they must give a copy of the application to the offender personally, and to the offender’s legal representative within two business days. Sections 105A.14B and 105A.14C outline certain information that may be excluded from the application or material given to the offender, namely:

·          information where a Minister is likely to take any actions in relation to the information under the NSI Act, or seek an order of a court preventing or limiting disclosure of the information (‘national security information’), and

·          information excluded on the basis of public interest immunity (‘PII information’).

14.                Section 105A.14D also allows the AFP Minister or their legal representative to seek orders in relation to the manner in which material that advocates support for engaging in terrorist acts, relates to planning or preparing for, or engaging in, terrorist acts, or advocates joining or associating with a terrorist organisation (‘terrorism material’) is to be dealt with.

15.                Section 105A.18A makes it an offence to breach the conditions of an ESO or ISO. Section 105A.18B makes it an offence to interfere with a monitoring device that has been imposed as a condition of an ESO. These offences carry a maximum penalty of five years’ imprisonment.

16.                The Bill extends provisions that currently apply to CDO applications regarding court-appointed experts to also apply to ESO applications. The Bill also introduces a new section 105A.18D, which permits the AFP Minister to direct offenders who are eligible for an ESO or CDO, or presently subject to a CDO or an ESO, to be subject to an expert assessment of the risk of the offender committing a serious Part 5.3 offence. If an offender is directed to attend an assessment under section 105A.18D, they must attend. The expert’s report is then provided to the AFP Minister, and the offender must be provided with a copy if it is subsequently used in an application against them. Under subsection 105A.6(5A) and 105A.18D(5), information or answers given by the offender at an assessment by a court-appointed or AFP Minister-appointed expert are not admissible in evidence against the offender in criminal proceedings, except any proceedings in relation to sentencing for an offence against Divisions 104 or 105A, or civil proceedings, except proceedings under Divisions 104 or 105A (including appeals in relation to those proceedings).

17.                Consistent with the approach for CDOs, under the amended section 105A.22, the AFP Minister must report annually to the Parliament about the operation of the ESO scheme.

Item 1 - Subsection 72.3(3) of the Criminal Code

18.                Item 1 amends the note at the end of section 72.3 of the Criminal Code (offences relating to international terrorist activities using explosive or lethal devices) to add a reference to ESOs. This reflects the fact that section 105A.23 requires a court sentencing a person who has been convicted of an offence against section 72.3 to warn the person about CDOs and ESOs.

Item 2 - Subsection 100.1(1) of the Criminal Code

19.                Item 2 inserts a number of new definitions into subsection 100.1(1) as a consequence of creating ESOs.

20.                The definition of ‘detained in custody’ clarifies that this phrase is not limited to detention while serving a custodial sentence and also includes detention while on remand, under arrest or subject to a CDO or IDO. This definition is relevant in determining when a control order commences (subsections 104.5(1D) and (1E)) and whether an offender is eligible for a PSO (section 105A.3A).

21.                The definition of ‘interim post-sentence order’ (IPSO) clarifies that this phrase has the same meaning for all of Part 5.3 as provided in Division 105A.

22.                The definition of ‘monitoring device’ reflects the existing definition of a tracking device in subsection 100.1(1), but the references to tracking devices are being modernised to instead refer to monitoring devices, which is relevant to the conditions that may be imposed as part of a control order or ESO (see paragraphs 104.5(3)(d) and 105A.7B(3)(d)).

23.                The definition of ‘personal information’ provides that it has the same meaning as in the Privacy Act 1988 . This is relevant in the context of the information sharing provisions in sections 104.28C, 104.28D, 105A.19, 105A.19A and 105A.21A.

24.                The definition of ‘post-sentence order’ clarifies that this phrase has the same meaning for all of Part 5.3 as provided in Division 105A.

25.                The definition of ‘related monitoring equipment’ provides that this covers any equipment necessary for operating the monitoring device. This would include any accessories such as for charging the device or beacons.

26.                The definitions of ‘reside’ and ‘residence’ clarify that these terms cover not only permanently residing at a place but also temporarily residing at a place. This is relevant to the conditions that may be imposed on an offender as part of a control order or an ESO (see for example section 104.5A, paragraphs 105A.7B(2)(b) and (d) and paragraph 105A.7B(3)(j)) and for determining where applications for review or variation of ESOs must be made (see subsections 105A.9B(1A), 105A.9CA(1A) and 105A.10(3)).

27.                The definition of ‘specified authority’ relates to the conditions that may be imposed as part of a control order or an ESO, where a court may provide in the order that certain persons or classes of persons may give directions or exercise discretion in relation to certain conditions identified in the order (see paragraphs 104.5(3)(d) and (da), and subsections 105A.7A(2) and (3)). It provides that specified authorities may include police officers, persons involved in electronically monitoring the subject of an order or any other persons, provided that the Court making the order is satisfied that person or persons are appropriate in relation to the particular condition or requirement.

28.                The category of persons who may be designated as a specified authority in an order is broad so that the Court making the order has sufficient flexibility, noting there are a range of conditions that may be imposed under a control order or an ESO. For example, it would allow the Court to make a provider of electronic monitoring services a specified authority for the purposes of a condition imposed pursuant to paragraph 105A.7B(3)(d) where the electronic monitoring of offenders has been outsourced pursuant to an arrangement under section 105A.21A. As another example, it would allow the Court to make a coordinator of countering violent extremism programs in the relevant jurisdiction or a clinical psychologist the specified authority for the purposes of a condition imposed pursuant to paragraph 105A.7B(2)(o). In all instances the Court making the order must be satisfied that the specified authority is appropriate in relation to the particular condition. The Court would be able to consider the particular condition that is being imposed and the circumstances and qualifications of the proposed specified authority when determining whether the person or class of persons is appropriate. This is an important safeguard that will limit which person or class of persons could be made a specified authority.

Item 3 - Subsection 100.1(1) of the Criminal Code

29.                Item 3 repeals the definition of a ‘tracking device’, as the terminology in the Criminal Code is being updated to refer to ‘monitoring devices’.

Item 4 - Subsection 100.1(4) of the Criminal Code

30.                Item 4 amends the note at the end of section 100.1 to add a reference to ESOs, and to reflect the fact that persons convicted of offences relating to control orders or ESOs may be eligible for an ESO or CDO at the end of their sentence. This reflects the fact that section 105A.23 provides that a court may be required to warn persons convicted of offences against sections 104.27 and 105A.18A, and subsections 104.27A(1) and 105A.18B(1) about CDOs and ESOs.

Items 5 and 6 - Section 102.1 of the Criminal Code

31.                Items 5 and 6 repeal and replace the existing definition of close family member in subsections 102.1(1) and (19), to simplify and clarify the definition. Paragraphs (a), (b), (d) and (f) of the definition of ‘close family member’ provide that: spouses and de facto partners; parents, step parents and grandparents; children, stepchildren and grandchildren; siblings and stepsiblings are all close family members. In addition, paragraphs (c), (e) and (g) of the definition clarify that anyone else who would be considered a close family member because of the meaning of child in Part VII of the Family Law Act 1975 is a close family member. For example, if the first person is a child because they were adopted by the second person, then the second person’s parents would be the first person’s grandparents and would be close family members. In addition, the definition provides that a guardian or carer is a close family member.

32.                This definition is relevant to subsection 102.8(4), which provides exceptions for the offence of associating with terrorist organisations, and to subsection 104.5(4), which provides exceptions to the non-association conditions in control orders.

Items 7-9 - Paragraph 104.3(e) of the Criminal Code

33.                Items 7-9 amend the list of information in paragraph 104.3(e) that is to be provided to the Court as part of an application for an interim control order (ICO), in light of the creation of ESOs. An application for an ICO must include the outcomes and particulars of all previous applications for PSOs and IPSOs, all previous applications for variation, review or revocation of PSOs or IPSOs and any revocations of CDOs that occur by operation of the Criminal Code (see subsection 105A.7A(7)).

Item 10 - Subsection 104.4(3) of the Criminal Code

34.                Item 10 repeals subsection 104.4(3), which provides that a court need not include an obligation, prohibition or restriction in an ICO if the Court is not satisfied that it is reasonably necessary, and reasonably appropriate and adapted to the protective purpose of the order, as it is unnecessary. Paragraph 104.4(1)(d) provides that a court may only make an order if satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on a controlee by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act or preventing the provision of support for or facilitation of a terrorist act or foreign incursion. This means that if a senior AFP member sought to include a particular obligation, prohibition or restriction in an order and the Court was not satisfied as described in paragraph 104.4(1)(d), then the Court could not include that particular obligation, prohibition or restriction in an order and would need to make an order without that particular obligation, prohibition or restriction in it. As a result, subsection 104.4(3) is unnecessary.

Items 11-13 - Section 104.5 of the Criminal Code

35.                Item 11 repeals and replaces subparagraph 104.5(1)(d)(ii), which sets out the information that needs to be in a control order concerning when it commences. Subparagraph 104.5(1)(d)(ii) provides that a control order commences when it is personally served on the subject of the order (the controlee), unless subsection (1D) applies, in which case the control order commences in accordance with subsection (1E).

36.                Item 12 inserts a heading before subsection 104.5(1A) to improve the readability of the legislation, consistent with current drafting practices.

37.                Item 13 inserts subsections 104.5(1D), (1E) and (1F) into the Criminal Code . Subsection 104.5(1D) provides that if a controlee is detained in custody (which includes being detained in custody pursuant to a CDO) or subject to an ESO when they are personally served with a control order, then the control order does not commence when it is served on them. Subsection 104.5(1E) then provides that a control order will only commence when the controlee is either released from custody, or no longer subject to the ESO or ISO referred to in subsection 104.5(1D), the ICO has not yet been confirmed, and the controlee is in the community without an ESO or ISO in place. Subsection 104.5(1F) clarifies that an ICO may never come into force if the controlee is never in the community without an ESO or ISO in force.

38.                These provisions mean that a control order cannot come into force while the controlee is subject to a PSO or IPSO, or is otherwise detained in custody, to ensure that offenders are not subject to conflicting obligations in different orders. For example, if a court makes an ICO while an offender is detained in custody serving a sentence, then the ICO would only commence when the offender is released from custody, and only if the offender was not made subject to an ESO or ISO upon release. If the offender was released subject to an ESO, then the ICO would not commence. Similarly, if a court makes an ICO while an offender is in the community and subject to an ESO, then the ICO would only commence when the ESO ends.

39.                These amendments do not affect the duration of an ICO as specified in paragraph 104.5(1)(f). For example, if an ICO does not commence for a period of two months because a controlee is subject to a PSO or IPSO or is otherwise detained in custody, then the ICO would still end within 12 months of it being made, even if it was only in force for the final ten months of that 12 month period.

Item 14 - Subsection 104.5(2AA) of the Criminal Code (note)

40.                Item 14 repeals the note after subsection 104.5(2AA), as subsections 104.5(1D) and (1E) set out the circumstances in which the control order will begin to be in force where it was served on the controlee while they were in custody.

Item 15 - Before subsection 104.5(2A) of the Criminal Code

41.                Item 15 inserts a heading before subsection 104.5(2A) to improve the readability of the legislation, consistent with current legislation drafting practices

Item 16 - Paragraph 104.5(3)(d) of the Criminal Code

42.                Item 16 repeals and replaces paragraph 104.5(3)(d) and inserts new paragraph 104.5(3)(da). Paragraph 104.5(3)(d) allows a court to include in a control order a requirement that the controlee be subject to electronic monitoring, including by wearing an electronic monitoring device, and that the controlee comply with directions given by a specified authority (which could include for example law enforcement officers or staff involved in the provision of electronic monitoring services) in relation to electronic monitoring. This reflects the fact that references to ‘tracking devices’ are being modernised to instead refer to ‘monitoring devices’. The reference to being ‘subject to electronic monitoring’ ensures there is sufficient flexibility to account for future technological developments. Paragraph 104.5(3)(d) also allows a court to include in the order provisions that give a person or class of persons specified in the order some level of flexibility by enabling them to issue directions, if the Court is satisfied that it is reasonably necessary, and reasonably appropriate and adapted to the protective purpose of the order. For example, a specified authority may need to direct the controlee to charge the monitoring device if the specified authority sees that it has a low battery. There are limits on the kinds of direction that may be given (see Item 19).

43.                Paragraph 104.5(3)(da) allows a court to include in a control order a requirement that the controlee carry a particular mobile phone, answer or return any calls made by a specified authority and comply with any directions, either as included in the order or given by the specified authority, in relation to the requirement to carry a mobile phone. The requirement to carry a mobile phone would ensure that the controlee can be contacted as needed, for example to advise them to charge an electronic monitoring device if the battery is running low, or to confirm their whereabouts if the electronic monitoring device indicates a controlee is not complying with other obligations, prohibitions or restrictions in the order. This requirement would also ensure that the controlee can contact the AFP if needed. There are limits on the kinds of direction that may be given (see Item 19).

Items 17 and 18 - Subsection 104.5(3) of the Criminal Code

44.                Item 17 updates the numbering of the existing note at the end of subsection 104.5(3) to make clear that this is note 1. This is because Item 18 inserts a new note, note 2, at the end of subsection 104.5(3). Note 2 refers to new sections 104.5A, 104.28C and 104.28D which relate to the electronic monitoring of controlees pursuant to a condition imposed under paragraph 104.5(3)(d).

Item 19 - Subsections 104.5(3A) and (3B) of the Criminal Code

45.                Item 19 repeals existing subsections 104.5(3A) and (3B), which relate to tracking devices, because the issues in those subsections will be dealt with in new section 104.5A. Item 19 also inserts new subsection 104.5(3A), which provides that a person or class of persons specified in the order for the purposes of a condition imposed under paragraphs 104.5(3)(d) or (da) (see Item 16) is only able to give a direction if the person giving the direction is satisfied that the direction is reasonable in all the circumstances to give effect to the requirement that the controlee be subject to electronic monitoring or carry and answer all calls to a mobile phone, or to give effect to the objects of Division 104 (as set out in section 104.1).

Item 20 - At the end of Subdivision B of the Criminal Code

46.                Item 20 inserts new section 104.5A at the end of Subdivision B. Section 104.5A provides for obligations relating to monitoring devices, and replaces the obligations that were previously included in subsections 104.5(3A) and (3B), in part to reflect the fact that references to tracking devices are being modernised to instead refer to monitoring devices. Subsection 104.5A(1) provides that if a court includes in a control order a requirement that a controlee wear a monitoring device under paragraph 104.5(3)(d), then the Court must also include in the order a number of additional requirements and authorisations relating to electronic monitoring. The additional requirements and authorisations ensure that the controlee cannot undermine the effectiveness of a court-imposed requirement that the controlee wear an electronic monitoring device. Ensuring the effective operation of a requirement to wear a monitoring device is designed to support monitoring of a controlee’s compliance with other related conditions, such as restrictions on movement and curfews.

47.                Paragraph 104.5A(1)(a) provides that a court must include the additional requirement that the controlee wear the monitoring device at all times. This seeks to ensure that if a court imposes a requirement that a subject wear a monitoring device, the device must be worn until the requirement has been removed or the order has otherwise ceased to be in force. This is a necessary practical arrangement for electronic monitoring for operational and technical reasons.

48.                Paragraph 104.5A(1)(b) provides that a court must include in a control order the requirement referred in paragraph 104.5(3)(da), that the controlee carry a particular mobile phone, answer or return any calls made by a specified authority and comply with any directions in relation to the requirement to carry a mobile phone (see Item 16). This would allow a person or class of persons identified in the order to, for example, call a controlee to arrange for the device to be inspected or replaced if it was malfunctioning.

49.                Paragraph 104.5A(1)(c) allows a court to include in a control order requirements that the controlee allow certain things, such as allowing the installation of a monitoring device. If the offender did not allow that to occur, it may constitute a breach of the condition and an offence against section 104.27. Subparagraphs 104.5A(1)(c)(i) and (ii) provide that a court must include the additional requirement that the controlee allow a specified authority (for example, an electronic monitoring service provider) to install, repair or fit the monitoring device or any related monitoring equipment, and allow a specified authority to enter the controlee’s residence at any time for any purpose relating to the electronic monitoring of the subject. This ensures that the controlee is required to ensure that a person or class of persons identified in the order can take all the steps necessary to ensure a monitoring device and related equipment is installed correctly and continues to work effectively. For example, a person specified in the order could enter premises to inspect, install or repair a device or equipment, or require the controlee to attend a certain place at a certain time for the purposes of having any electronic monitoring device or equipment replaced, repaired or inspected.

50.                Subparagraphs 104.5A(1)(c)(iii) and (iv) provide that a court must include the additional requirement that the controlee take any steps specified in the order, and any other reasonable steps to ensure the monitoring device and any related monitoring equipment remain in good working order. If the controlee becomes aware that the monitoring device and any related monitoring equipment is not in good working order, then the controlee must notify the person or persons specified in the order as soon as reasonably practicable. These requirements are equivalent to current paragraphs 104.5(3A)(a) and (c). Steps specified in the order will be those that the Court considers necessary to support the effective operation of the device and equipment, such as the timing and duration of charging, or requirements that the controlee not tamper with, affix objects to, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring. Consistent with the current provisions, ‘reasonable steps’ is intended to ensure sufficient flexibility in the order, including to address unforeseen circumstances. For example, it may include notifying an authority specified in the order if the device became too loose, and allowing that authority to adjust the device.

51.                Subparagraphs 104.5A(1)(c)(v) and (vi) provide that a court must include the additional requirement that the controlee allow a person or class of persons identified in the order, a police officer or a corrective services officer to remove the monitoring device, and allow a police officer to remove any related monitoring equipment, including equipment that may be located at the controlee’s home. This ensures that the controlee is required to facilitate the removal of devices and equipment where it is no longer needed (for example, because the controlee is detained in custody, or because the condition is removed from the order or the order ends).

52.                Subsection 104.5A(2) provides for a number of powers and authorisations that are complementary to the additional obligations outlined in subsection 104.5A(1). These authorisations are intended to avoid any doubt that these actions may be taken by the specified persons. In addition to imposing certain obligations on a controlee, a court making a control order that includes a requirement to wear an electronic monitoring device must also include the following authorisations in the order:

·          An authorisation for a person or persons specified in the order to enter the controlee’s residence at any reasonable time for any electronic monitoring related purpose (paragraph 104.5A(2)(a)). This complements the obligation in subparagraph 104.5A(1)(c)(i).

·          An authorisation for a person or persons specified in the order to install, repair or fit the monitoring device and any related monitoring equipment (paragraph 104.5A(2)(b)). This complements the obligation in subparagraph 104.5A(1)(c)(ii).

·          An authorisation for a person or persons specified in the order, or a police officer, to take steps specified in the order to ensure the device and related equipment are, and remain, in good working order (paragraph 104.5A(2)(c)). This may include, for example, inspections of the device. This complements the obligation in subparagraph 104.5A(1)(c)(iii).

·          An authorisation for a person or persons specified in the order, police officers or corrective services officers to remove the monitoring device (paragraph 104.5A(2)(d)). For example, if a controlee were arrested and taken to a prison to be detained, this provision would allow police or corrective services officers to remove the monitoring device, as it would not be needed while the controlee was detained. This complements the obligation in subparagraph 104.5A(1)(c)(v).

·          An authorisation for one or more police officers to remove related monitoring equipment (paragraph 104.5A(2)(e)). This would be relevant where the monitoring device has been removed, for example because a controlee is detained in custody, and may include police officers accessing a residence even if the controlee is not present. As a result, this power is limited only to police officers. This complements the obligation in subparagraph 104.5A(1)(c)(vi).

53.                Subsection 104.5A(3) clarifies the operation of the authorisations in subsection 104.5A(2) in circumstances where a controlee is no longer required to be subject to electronic monitoring, either because the requirement to wear an electronic monitoring device is removed or the control order ceases to be in force. If the controlee who was subject to the requirement to wear an electronic monitoring device still has the electronic monitoring device installed on them then subsection 104.5A(3) authorises a person or persons specified in the order, a police officer or a corrective services officer to remove the monitoring device, even though the authorisation referred to in paragraph 104.5A(2)(d) may no longer be in force. In those circumstances one or more police officers would also be authorised to remove any related monitoring equipment (noting such equipment may be at the controlee’s residence).

54.                 Subsection 104.5A(4) sets out preconditions for the exercise of the powers referred to in paragraphs 104.5A(2)(a), (b), (d) and (e), and subsection 104.5A(3). Before entering a residence pursuant to paragraph 104.5A(2)(a), installing, repairing or fitting a device or equipment pursuant to paragraph 104.5A(2)(b), removing a monitoring device pursuant to paragraph 104.5A(2)(d) or removing related monitoring equipment pursuant to paragraph 104.5A(2)(e), the specified authority or police officer or corrective services officer (as relevant) must inform the controlee of certain matters. The person or persons proposing to take the action must inform the subject of the order that the installation, repair, fit or removal of the device is to occur and of the proposed timing for those actions (paragraphs 104.5A(4)(a) and (b)). The person or persons proposing to take the action must also inform the controlee that they may consent to the relevant action and that, if they do not consent, reasonable force may be used to take the action, including to enter the controlee’s residence in order to take the action (paragraphs 104.5A(4)(c) and (d)). This ensures that the controlee cannot frustrate the operation of an order by refusing to consent to the relevant actions.

55.                Subsection 104.5A(5) authorises a police officer to take an action, including entering the controlee’s residence to take an action, if a controlee does not give the consent referred to in paragraph 104.5A(4)(c). This makes clear that use of force by police officers in the circumstances outlined above is authorised by the legislation.

Items 21-22 - Subsection 104.12A(4) of the Criminal Code

56.                Items 21-22 reflect the fact that an ICO may be confirmed even if it has not come into force (see Item 28). Item 21 amends paragraph 104.12A(4)(a) to make clear that if a senior AFP member elects not to confirm an ICO that has already been served on a controlee, then the order only ceases to be in force if it was already in force. This reflects the fact that an order that has been served on a controlee may not come into force if the circumstances in subsection 104.5(1E) have not arisen (for example, if the controlee is still detained, or is subject to an ESO).

57.                Item 22 repeals and replaces subparagraph 104.12A(4)(b)(i) to provide that if a senior AFP member elects not to confirm an ICO that has already been served on a controlee, an AFP member must make a note on a copy of the order to indicate that it has ceased to be in force or, for an order that is not yet in force, that it will not come into force. This is because an ICO may not yet have come into force upon being served on the controlee.

Items 23-28 - Section 104.15 of the Criminal Code

58.                Item 23 repeals and replaces the heading for section 104.15 to reflect the additional matters covered by this section because of the amendments at Item 28.

59.                Items 24, 25 and 26 insert headings before subsections 104.15(1), (2) and (3) to improve the readability of the legislation, consistent with current drafting practices.

60.                Item 27 amends subsection 104.15(3), which sets out what happens if a court confirms an ICO, to provide that it is subject to new subsection 104.15(4), which provides that some ICOs may never come into force (see Item 28).

61.                Item 28 inserts subsections 104.15(4), (5) and (6). Subsection 104.15(4) provides that if an ICO is confirmed before it actually commences, either because the controlee is subject to an ESO or ISO or is in detention, then the ICO never comes into force. If the ICO was served on a controlee while they were detained in custody or subject to an ISO or ESO, then the ICO will not have come into force when it was served (see subsection 104.5(1D)). If the conditions in subsection 104.5(1E) (see Item 13) are not met before the date that the ICO is due to be confirmed, then the ICO may be confirmed without it ever having come into force.

62.                Subsection 104.15(5) provides that if an ICO that has not come into force is confirmed, then the confirmed control order begins to be in force when the controlee is released from custody or the ESO or ISO they were subject to ends, and the controlee is released from custody into the community without an ESO or ISO in force. Subsection 104.15(6) makes clear that if the controlee is in the community subject to an ISO or ESO before the end date for the confirmed control order, then the confirmed control order will never come into force. Like the amendments at Item 13, these provisions mean that a confirmed control order cannot come into force while a controlee is subject to a PSO or IPSO, or is otherwise detained in custody, to ensure that different supervisory orders are not in force at the same time.

Item 29 - At the end of Subdivision D of Division 104 of the Criminal Code

63.                Item 29 inserts section 104.17A, which provides that if a control order is in force in relation to a controlee and the controlee becomes subject to a PSO or IPSO, then the control order immediately ceases to be in force and an AFP member must make a note on a copy of that order to indicate that it has ceased to be in force. If a control order has been served on a controlee but is not yet in force, and the controlee then becomes subject to a PSO or IPSO, then an AFP member must make a note on a copy of that order to indicate that it will not come into force. In both cases, the copy of the order annotated by the AFP member needs to be served personally on the controlee and, if the controlee lives in Queensland or a court in Queensland made the order, then an AFP member must give the Queensland Public Interest Monitor (PIM) an annotated copy of the order.

64.                This provision ensures that an offender is not subject to conflicting obligations in different orders.

 Item 30 - Subsection 104.24(3) of the Criminal Code

65.                Item 30 repeals subsection 104.24(3), which provides that a court need not include an obligation, prohibition or restriction in a confirmed control order if the Court is not satisfied that it is reasonably necessary, and reasonably appropriate and adapted to the protective purpose of the order. Consistent with the repeal of subsection 104.4(3), subsection 104.24(3) is being repealed as it is unnecessary (see Item 10).

Item 31 - Section 104.27 of the Criminal Code

66.                Item 31 inserts a note at the end of section 104.27 to reflect the fact that section 105A.23 may require a court sentencing a person who has been convicted of an offence against this section to warn the person about CDOs and ESOs. This is because subsection 105A.3A(5) provides that a person who is convicted of an offence against section 104.27 may be eligible for a PSO in certain circumstances (see Item 59).

Items 32-37 - Section 104.27A of the Criminal Code

67.                Item 32 amends the heading for section 104.27A to replace the reference to ‘tracking devices’ with a reference to ‘monitoring devices’. Item 33 amends paragraph 104.27A(1)(b) to replace the reference to ‘tracking device’ with a reference to ‘monitoring device’, and Item 36 similarly amends paragraph 104.27A(2)(b), to reflect that a controlee may now be required to wear a monitoring device rather than a tracking device (see paragraph 104.5(3)(d)). The amendments made by these items reflect the fact that references to tracking devices are being modernised to instead refer to monitoring devices.

68.                Item 34 amends paragraph 104.27A(1)(d) to replace the reference to a ‘tracking device’ with the phrase ‘monitoring device or any related monitoring equipment’. This makes it an offence for the controlee to engage in conduct that results in interference with, or disruption or loss of function of a monitoring device or related monitoring equipment. The existing penalty of five years imprisonment applies to this offence.

69.                Item 37 amends paragraph 104.27A(2)(d) to replace the reference to a ‘tracking device’ with the phrase ‘monitoring device or any related monitoring equipment’. This makes it an offence for a person other than the controlee to engage in conduct that results in interference with, or disruption or loss of function of, a monitoring device or related monitoring equipment.

70.                The addition of related monitoring equipment in paragraphs 104.27A(1)(d) and 104.27A(2)(d) (Items 34 and 37) reflects the fact that there may be other equipment that is needed to ensure effective electronic monitoring of a controlee, and affecting the operation of that equipment undermines the efficacy of electronic monitoring in the same way as affecting the device does.

71.                Item 35 inserts a note at the end of subsection 104.27A(1) to reflect the fact that section 105A.23 may require a court sentencing a person who has been convicted of an offence against this subsection to warn the person about CDOs and ESOs. This is because subsection 105A.3A(5) provides that a person who is convicted of an offence against subsection 104.27A(1) may be eligible for a PSO in certain circumstances (see Item 59). A person who commits an offence against subsection 104.27A(2) is not eligible for a PSO and so there is no need to give a similar warning for offence against that subsection.

Item 38 - After section 104.28B of the Criminal Code

72.                Item 38 inserts sections 104.28C and 104.28D.

Section 104.28C

73.                Section 104.28C provides for the sharing of information relating to electronic monitoring between the AFP and third parties, where that information sharing is authorised by an arrangement under subsection 104.28D(1).

74.                Subsection 104.28C(1) provides that an AFP member may disclose information (including personal information about the controlee) to a person employed or engaged by a body covered by an arrangement under subsection 104.28D(1). This is necessary to ensure that information required for the monitoring of the controlee, like the name and contact details of the offender, as well as details of the relevant obligations, prohibitions and restrictions imposed on the offender, can be shared. The disclosure must be for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to the electronic monitoring of controlees who are subject to a requirement imposed in accordance with paragraph 104.5(3)(d) to be subject to electronic monitoring, or the performance of any other functions or the exercise of any other powers relating to the mandatory obligations imposed in accordance with section 104.5A. This is intended to ensure that information can be appropriately shared in instances where the AFP has engaged a third party (such as a State corrections agency) to undertake electronic monitoring in relation to a controlee who is subject to an electronic monitoring condition.

75.                Subsection 104.28C(2) provides that the person employed or engaged by a body covered by the arrangement under subsection 104.28D(1) may disclose information (including personal information) to another person if the person under the arrangement reasonably believes that the disclosure is authorised by the arrangement. An arrangement would, for example, provide that any information gathered in the course of electronic monitoring a controlee could be shared with the AFP.

76.                Subsection 104.28C(3) provides that the information sharing provisions apply despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten). The purpose of this provision is make clear that all persons, including Commonwealth, State and Territory officials, can share information, notwithstanding other laws which may limit or prohibit disclosure of that information.

Section 104.28D

77.                Section 104.28D allows for formal arrangements to be made between the AFP Commissioner and relevant third parties (for example, a State, Territory or any other body such as a State corrections agency) with respect to electronic monitoring, as well as any other functions or the exercise of any other powers relating to section 104.5A. Subsection 104.28D(1) provides that the AFP Commissioner may make arrangements with a State or Territory, or any other body, for the performance of functions or the exercise of powers relating to the electronic monitoring of controlees. This includes monitoring of a controlee pursuant to a condition imposed in accordance with paragraph 104.5(3)(d), as well as the additional obligations and authorisations relating to electronic monitoring as set out in section 104.5A

78.                Subsection 104.28D(2) makes clear that the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information). This ensures the appropriate flow of information between the parties to the arrangement.

79.                Subsection 104.28D(3) allows the AFP Commissioner to delegate his or her powers under subsection 105A.21(1) to another senior AFP member. The term ‘senior AFP member’ is defined in subsection 100.1(1) as the AFP Commissioner, a Deputy Commissioner of the AFP and AFP member of, or more senior than, the rank of Superintendent. This ensures that the AFP has the flexibility to enter into its own arrangements for the purposes of performing its functions or the exercise of powers in relation to the electronic monitoring of controlees pursuant to a control order, while ensuring that arrangements are entered into at an appropriately senior level.

Items 39-42 - Paragraph 105.7(2)(e) of the Criminal Code

80.                Items 39-42 amend the list of information in paragraph 105.7(2)(e) that an AFP member must provide to an issuing authority as part of an application for an initial preventative detention order, as a result of the creation of ESOs. An application for an initial preventative detention order must include the outcomes and particulars of all previous applications for PSOs and IPSOs, all previous applications for review, variation or revocation of PSOs or IPSOs and any revocations of CDOs that occur by operation of the Criminal Code (see subsection 105A.7A(7)).

Items 43-46 - Paragraph 105.11(2)(e) of the Criminal Code

81.                Items 43-46 amend the list of information in paragraph 105.11(2)(e) that an AFP member must provide to an issuing authority as part of an application for a continued preventative detention order, in light of the creation of ESOs. An application for a continued preventative detention order must include the outcomes and particulars of all previous applications for PSOs and IPSOs, all previous applications for review, variation or revocation of PSOs or IPSOs and any revocations of CDOs that occur by operation of the Criminal Code (see subsection 105A.7A(7)).

Item 47 - Subparagraph 105.14A(4)(e)(iii) of the Criminal Code

82.                Item 47 amends subparagraph 105.14A(4)(e)(iii) to include a reference to a PSO. Section 105.14A sets out the basis for applying for and making a prohibited contact order. Subparagraph 105.14A(4)(e)(iii) provides that an AFP member may apply for, and an issuing authority may make, a prohibited contact order if satisfied that the prohibited contact order is reasonably necessary to avoid a risk to the service on an offender of a PSO. While a PSO will not ordinarily be served on an offender, subsection 105A.14A(4) requires the AFP Minister to provide a copy of a PSO to an offender in certain circumstances. Subparagraph 105.14A(4)(e)(iii) has therefore been amended to ensure that a prohibited contact order can be made if there is a risk to the service of the PSO.

Item 48 - Subsections 105.35(3) and (4) of the Criminal Code

83.                Item 48 repeals subsections 105.35(3) and (4), which define the term family member, and replace it with a new subsection (3) which clarifies and simplifies the definition of family member. Paragraphs 105.35(3)(a), (b), (d) and (f) of the definition of ‘family member’ provide that: spouses and de facto partners; parents, step parents and grandparents; children, stepchildren and grandchildren; siblings and stepsiblings are all family members. In addition, paragraphs (c), (e) and (g) of the definition clarify that anyone else who would be considered a family member because of the meaning of child in Part VII of the Family Law Act 1975 is a family member. For example, if the first person is a child because they were adopted by the second person, then the second person’s parents would be the first person’s grandparents and would be considered family members. In addition, the definition provides that a guardian or carer is a family member.

84.                This definition is relevant to subsection 105.35(1), which provides exceptions for the restriction on contact for a person detained under a preventative detention order.

Item 49 - Division 105A of the Criminal Code (heading)

85.                Item 49 repeals and replaces the heading for Division 105A as a result of ESOs being included in Division 105A. The new heading refers to PSOs, as Division 105A will now include ESOs and CDOs.

Item 50 - Section 105A.1 of the Criminal Code

86.                Item 50 repeals and replaces the objects clause for the Division as a result of ESOs being included in Division 105A. The object of Division 105A remains preventative and protective in nature, and it seeks to protect the community from serious Part 5.3 offences (as defined in section 105A.2). To ensure the protection of the community from serious Part 5.3 offences, Division 105A provides that terrorist offenders who pose an unacceptable risk of committing a serious Part 5.3 offence can be subject to CDOs or ESOs (collectively referred to as PSOs).

Item 51 - Section 105A.2 of the Criminal Code

87.                Item 51 updates the numbering of section 105A.2 and inserts (1) before the existing text to make clear that the list of definitions currently included in section 105A.2 will now be subsection 105A.2(1). This is because Item 56 inserts new subsection 105A.2(2).

Item 52 - Section 105A.2 of the Criminal Code

88.                Item 52 repeals the definitions of ‘continuing detention order decision’ and ‘continuing detention order proceeding’, to reflect the creation of ESOs and the fact that the terminology is being updated to collectively refer to CDOs and ESOs as PSOs (see Item 53).

Item 53 - Section 105A.2 of the Criminal Code

89.                Item 53 inserts a number of new definitions into section 105A.2 as a consequence of creating ESOs.

90.                The definition of ‘exemption condition’ clarifies that this phrase has the same meaning as in subsection 105A.7C(2) (see Item 87). This is relevant to paragraph 105A.7A(5)(c), which provides that a court must detail in an ESO what (if any) conditions an offender may be able to seek an exemption from.

91.                The definition of ‘extended supervision order’ refers to an order made under subsection 105A.7A(1), which is an order made by a Supreme Court that imposes a range of conditions on an offender for the period that the order is in force (see Item 87).

92.                The definition of ‘interim post-sentence order’ provides that this is an IDO (which is already defined in section 105A.2) or an ISO.

93.                The definition of an ‘interim supervision order’ refers to an order made under subsection 105A.9A(4), which provides that a Supreme Court considering an application for a PSO may make an ISO if certain thresholds are met.

94.                The definition of ‘post-sentence order’ provides that this is a CDO (which is already defined in section 105A.2) or an ESO (defined above).

95.                The definition of ‘post-sentence order decision’ provides that all of the following are PSO decisions:

·          a decision by the Court on an application for either a PSO or IPSO

·          a decision on an application to vary an ESO or ISO.

·          a decision to affirm, vary or revoke a PSO on review, and

·          a decision by the Court under section 105A.15A to make certain orders if the offender is unable to obtain legal representation.

96.                This is relevant to sections 105A.16 and 105A.17, which provide that the Court needs to give reasons for decisions, and that PSO decisions can be appealed. There is a note that refers to subsection 105A.2(2), which further clarifies when a PSO decision is made.

97.                The definition of ‘post-sentence order proceeding’ provides that it means a proceeding under Subdivision C, CA, CB or D. This includes all proceedings relating to a PSO, including preliminary hearings under section 105A.6, hearings for a PSO or IPSO, hearings to vary an order and proceedings to determine whether or not to grant a review and a review hearing.

98.                This is relevant in the context of Subdivision E (provisions relating to CDO proceedings), which sets out the rules of evidence, provisions concerning appeal and other processes that apply in PSO proceedings.

99.                The definition of ‘premises’ provides that it includes a place, an aircraft, a vehicle and a vessel, which is consistent with the definition in the Crimes Act. In addition to including a house or car, this covers things like a storage facility or locker. This is relevant to section 105A.7B, which sets out the conditions that may be included in an ESO or ISO. In particular, paragraph 105A.7B(3)(j) makes clear a court can include a condition in an ESO or ISO concerning a search of premises under an offender’s control.

Item 54 - Section 105A.2 of the Criminal Code (definition of relevant expert )

100.            Item 54 omits the phrase ‘if the offender is released into the community’ from the definition of a relevant expert, reflecting the creation of ESOs. An offender subject to an ESO may be released into the community, albeit subject to various conditions, and may remain in the community on subsequent ESOs. As a result, relevant experts may be asked to assess the risk of an offender who is already in the community committing a serious Part 5.3 offence, and the definition has been updated to reflect that fact.

Item 55 - Section 105A.2 of the Criminal Code (definition of terrorist offender )

101.            Item 55 repeals and replaces the definition of a ‘terrorist offender’ as a consequence of creating ESOs. A terrorist offender includes anyone who is eligible for a PSO because they have committed one of the specified terrorism offences in subsection 105A.3(1), and one of the circumstances in section 105A.3A applies to the offender (see Item 59). The definition also includes a note referring to sections 105A.2A and 105A.18, which make clear that persons who are not in custody for a variety of reasons (including escape from custody) are still considered terrorist offenders, to ensure their eligibility for a PSO.

Item 56 - At the end of section 105A.2 of the Criminal Code

102.            Item 56 inserts subsection 105A.2(2), which provides that, to avoid doubt, a PSO decision is not made until the Court determines the application in accordance with section 105A.6A or subsection 105A.9(1B) or 105A.9A(2). These provisions reflect the fact that a court considering an application for a CDO or IDO may be required to consider making an ESO or ISO, if the Court is not satisfied that the threshold for a CDO or an IDO has been met. Subsection 105A.2(2) makes clear that, if a court is not so satisfied as to make a CDO or IDO, the Court only makes a PSO decision (within the meaning of subsection 105A.2(1)) when it decides to either make an ESO or ISO or to dismiss the application. This means that the Court does not need to give reasons until that time, and the decision cannot be appealed until that time (see sections 105A.16 and 105A.17). At that point, for example, the AFP Minister would be able to appeal the Court’s decision not to make a CDO and to instead make an ESO, and the offender would be able to appeal the decision to make an ESO.

Item 57 - Section 105A.2A of the Criminal Code

103.            Item 57 repeals and replaces existing section 105A.2A. This section provides that, for the purposes of Division 105A (but excluding section 105A.4, which concerns the treatment of persons subject to a CDO) a person who escapes from custody is taken to be a person detained in custody for the reason they were originally detained until the person returns to custody. For example, if a person is detained in custody pursuant to a CDO and then escapes, then they continue to be a person detained in custody pursuant to a CDO while they are at large. This is relevant to section 105A.3A, which sets out the circumstances in which a terrorist offender is eligible for a PSO and refers to persons detained in custody.

Item 58 - Subdivision B of the Criminal Code (heading)

104.            Item 58 repeals and replaces the heading for Subdivision B because this subdivision will now include ESOs. The new heading refers to PSOs, as Subdivision B will provide for both ESOs and CDOs.

Item 59 - Section 105A.3 of the Criminal Code

105.            Item 59 repeals and replaces existing section 105A.3, and inserts new section 105A.3A.

Section 105A.3

106.            Section 105A.3 sets out who a PSO may apply to, and the effect of PSOs. Subsection 105A.3(1) provides that a PSO may be made in relation to an offender who has been convicted of a specified terrorism offence and who will be at least 18 years old when the custodial sentence for the conviction for that specified terrorism offence ends, where one of the circumstances described in section 105A.3A applies to that offender. The specified terrorism offences are listed in paragraph 105A.3(1)(a), and they are offences against:

·          Subdivision A of Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices)

·          Part 5.3 of the Criminal Code (terrorism) which carry a maximum penalty of seven or more years imprisonment (a serious Part 5.3 offence)

·          Part 5.5 of the Criminal Code (foreign incursions and recruitment), except offences against subsection 119.7(2) or (3) (publishing recruitment advertisements), and

·          the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 , except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements).

107.            These offences are the same as those currently included in the Criminal Code as eligible offences for a CDO. They broadly reflect the definition of ‘terrorism offence’ at subsection 3(1) of the Crimes Act . To ensure that the scheme is appropriately targeted, the scheme will apply only to the most serious Part 5.3 (terrorism) offences, namely those which carry a maximum penalty of seven or more years imprisonment.

108.            Subsection 105A.3(2) provides that the effect of a CDO is to commit an offender to detention in a prison, currently defined in section 105A.2, for the period of the order, which must be no more than three years.

109.            Subsection 105A.3(3) provides that the effect of an ESO is to impose on the offender a range of conditions with which the offender must comply for the period that the ESO is in force, which must be no more than three years. Contravention of the conditions imposed by the order is an offence (see Subdivision EA, Item 133).

Section 105A.3A

110.            Section 105A.3A sets out the circumstances in which a PSO may be made in relation to an offender who meets the criteria in section 105A.3 (that is, persons who have been convicted of a specified terrorism offence and who will be at least 18 years old when the sentence for that specified terrorism offence ends). The circumstances described in subsections 105A.3A(1)-(5) outline when an ESO or a CDO may be made in relation to an offender. The circumstances described in subsections 105A.3A(6)-(8) outline when only an ESO may be made in relation to an offender.

Subsection 105A.3A(1) - serving a custodial sentence for a specified terrorism offence

111.            Subsection 105A.3A(1) provides that a court may make a CDO or ESO in relation to an offender who is detained in custody and serving a sentence for one (or more) of the specified terrorism offences in paragraph 105A.3(1)(a). For example, if an offender is serving a sentence for an offence against section 101.4 (possessing things connected to a terrorist act) then the offender would be eligible for a CDO or an ESO at the end of that sentence.

Subsection 105A.3A(2) - detained subject to a CDO or IDO

112.            Subsection 105A.3A(2) provides that a court may make a CDO or an ESO in relation to an offender who is detained in custody pursuant to a CDO or an IDO. This allows a court to make successive CDOs, if it is satisfied that the offender still meets the threshold for a CDO (section 105A.7) as a preceding CDO comes to an end. While each CDO can only last for a maximum of three years, there is no limit to the number of CDOs that may be imposed (see subsection 105A.7(6)).

113.            Under subsection 105A.3A(2), an offender would be eligible for a CDO or ESO even if the CDO or IDO that was in force is suspended. For example, an offender is subject to a two year CDO and after 18 months the offender is charged and refused bail for the offence of assault, and is therefore detained in custody on remand. Under section 105A.18C (see Item 134), the CDO would be suspended while the offender is detained in custody on remand, but that would not prevent the AFP Minister from seeking a new CDO.

Subsection 105A.3A(3) - serving a custodial sentence and continuously detained since the sentence for a specified terrorism offence

114.            Subsection 105A.3(3) provides that a court may make a CDO or an ESO in relation to an offender who is detained in custody serving a sentence for an offence other than the specified terrorism offences in paragraph 105A.3(1)(a), provided that the offender has been continuously detained in custody since being convicted of a specified terrorism offence (subparagraph 105A.3A(3)(b)(i)), or since a CDO or IDO was in force in relation to the offender (subparagraph 105A.3A(3)(b)(ii)). This provision preserves eligibility for CDOs and ESOs and ensures that offenders who commit further offences remain eligible for PSOs. This provision applies whether the offence the offender is serving a sentence for is a Commonwealth, State or Territory offence, whether related or wholly unrelated to terrorism (see subsection 105A.3A(9)), from an aggravated assault offence to an offence against section 102.8 of the Criminal Code (associating with terrorist organisations). Subsection 105A.3A(9) also clarifies the operation of this provision. This is consistent with the amendments that were made to Division 105A in 2019 to preserve eligibility where an offender serves concurrent and cumulative sentences, or is given a further custodial sentence while subject to a CDO.

115.            If an offender is serving a sentence of imprisonment for any Commonwealth, State or Territory offence cumulatively with the sentence for the specified terrorism offence, then the offender would be eligible for a CDO or an ESO at the end of the sentence for the other offence even if it ended after the sentence for the specified terrorism offence. This could include any offences committed while the offender is in prison. For example, if an offender is serving a six year sentence for an offence against section 102.3 (membership of a terrorist organisation) and is sentenced to eight years in prison for identity fraud to be served concurrently with the sentence for the terrorism offence, then the offender would be eligible for a CDO or an ESO at the end of their sentence for the identify fraud offence, even though the sentence for the terrorism offence ended two years prior. This ensures that offenders are not rendered ineligible for PSOs because of the structure of their sentence.

116.            If an offender is serving a sentence of imprisonment for any offence and has been continuously detained in custody since being subject to a CDO or an IDO, then the offender continues to be eligible for a CDO or ESO at the end of the sentence for that offence. This means that if an offender is subject to a CDO or IDO and is prosecuted, convicted and sentenced to a period in custody (whether the underlying conduct for the offence occurred before or after the CDO commenced), then the offender would be eligible for a CDO or an ESO at the end of their custodial sentence, regardless of whether the CDO or IDO had ceased to be in force while the sentence was being served. This period of detention could include a period of time on remand. For example, an offender is made subject to a three year CDO at the end of an eleven year custodial sentence for an offence against section 103.1 (terrorism financing). After two and a half years on the CDO, the offender is arrested and charged with an offence against section 474.15 of the Criminal Code  (using a carriage service to make a threat ). The offender is not eligible to be released on bail while subject to a CDO (because of section 105A.24). It would be open to the AFP Minister to seek a further CDO before the current CDO expires, and for the offender to apply for bail towards the end of the CDO. The offender applies for and is refused bail, and is held on remand for nine months while the prosecution for the carriage service offence is underway. The offender is then convicted and serves a sentence for the carriage service offence. At the end of that sentence, the offender would be eligible for a further CDO or an ESO, because they were continuously detained from when a CDO was in force. This ensures that offenders are not rendered ineligible for further PSOs because they have committed further offences.

Subsection 105A.3A(4) - serving a custodial sentence for breach of an ESO

117.            Subsection 105A.3A(4) provides that a court may make a CDO or an ESO in relation to an offender who is detained in custody serving a sentence for an offence against section 105A.18A (contravening an ESO or ISO) or subsection 105A.18B(1) (relating to monitoring devices). This provision does not expand eligibility for CDOs or ESOs but merely preserves eligibility, because the offender will need to first have been convicted of one of the specified terrorism offences in paragraph 105A.3(1)(a). In order to be eligible for an ESO or a CDO at the end of that sentence for the offence against section 105A.18A or subsection 105A.18B(1) both of the following criteria must be met:

·          The offender must either have been charged with the offence of breaching an ESO or ISO or interfering with their monitoring device while the relevant ESO or ISO was in force or within six months of the conduct constituting the offence occurring, whichever is later (paragraph 105A.3A(4)(b)).

·          The Court being asked to make a CDO or ESO must be satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the ESO or ISO, or the interference with a monitoring device (paragraph 105A.3A(4)(c)).

118.            The first of the additional criteria in paragraph 105A.3A(4)(b) is an additional safeguard that ensures that if an offender is charged with one of the breach offences months or years after the order was in force and they have moved out of the HRTO regime, then they cannot be brought back into the scope of the HRTO regime. The additional six month period has been included to account for the time it may take to identify a breach and gather evidence to support a case against the person, and will be particularly relevant if a breach occurs, or becomes evident, towards the end of the period that an ESO or ISO is in force. For example, if an offender was made subject to an ESO for two years, and breached their ESO after one year and eleven months, then the offender would be eligible for a CDO or an ESO at the end of a custodial sentence for that breach, provided the offender was charged within six months of the conduct (ie up to five months after the order itself ended).

119.            The second of the additional safeguards in paragraph 105A.3A(4)(c) ensures that offenders who may be convicted of minor breaches of an ESO that do not necessarily show they pose an increased risk of committing a serious Part 5.3 offences are not made subject to detention pursuant to a CDO.      For example, if an offender is subject to an ESO that includes a condition to remain at their home between 8pm and 8am each day, and the offender routinely breaches that curfew by up to half an hour, then they may be liable for prosecution (noting prosecution decisions would be a matter for the Commonwealth Director of Public Prosecutions (CDPP)). However, the offender may be breaching curfew because they are delivering food to an elderly relative. Paragraph 105A.4A(4)(c) would require a court to make a determination whether that breach of the order suggests the offender poses an unacceptable risk of committing a serious Part 5.3 offence. In addition, the offender may nonetheless be eligible for a further ESO (but not a CDO) in accordance with subsection 105A.3A(7).

120.            These additional safeguards have been included because this provision would allow a court to make an ESO or CDO and therefore require a person who had been in the community (albeit subject to conditions) to be subject to further detention.

Subsection 105A.3A(5) - serving a custodial sentence for breach of a control order

121.            Subsection 105A.3A(5) provides that a court may make an ESO or a CDO in relation to an offender who is detained in custody serving a sentence for an offence against section 104.27 (contravening a control order) or subsection 104.27A(1) (relating to monitoring devices) (paragraph 105A.3A(5)(d)) provided certain limited circumstances apply. This provision does not apply to all offenders who are subject to, and then breach, a control order. In order for an offender to be eligible for a CDO or ESO at the end of a custodial sentence for an offence against section 104.27 or subsection 104.27A(1) all of the following criteria must also be met:

·          The offender must have been convicted of, and served a custodial sentence for, one of the specified terrorism offences in paragraph 105A.3(1)(a) (paragraph 105A.3A(5)(a)).

·          The process for seeking an ICO must have commenced before the offender was released from custody for that offence, either by way of seeking the AFP Minister’s consent to a request for an ICO, or by making an application for an urgent ICO (paragraph 105A.3A(5)(b)). A court must then make the ICO (whether before or after the offender is released from prison (paragraph 105A.3A(5)(c)).

·          The offender must either have been charged with the offence of breaching a control order or interfering with their monitoring device while the ICO or corresponding confirmed control order was in force or within six months of the conduct constituting the offence occurring, whichever is later (paragraph 105A.3A(5)(e)).

·          The Court being asked to make a CDO or ESO must be satisfied that the offender poses an unacceptable risk of committing a serious Part 5.3 offence as a result of the breach of the control order, or the interference with a monitoring device (paragraph 105A.3A(5)(f)).

122.            The first of the additional criteria in paragraph 105A.3A(5)(a) ensures that only offenders who have been convicted of one of the terrorism offences specified in paragraph 105A.3(1)(a) are eligible for an ESO or CDO, meaning this provision merely preserves eligibility rather than expanding it. It is designed to ensure that if an offender would be eligible for a CDO or ESO at the end of their sentence for a specified terrorism offence but a control order, rather than an ESO or CDO is made, that the offender may be brought into the HRTO regime if there is a criminal conviction for an offence against section 104.27 or subsection 104.27A(1) that indicates the offender poses an unacceptable risk of committing a serious Part 5.3 offence.

123.            The additional criteria in paragraph 105A.3A(5)(b) is a safeguard that ensures that there is a link between the detention in custody for the specified terrorism offence and the activities undertaken to seek a control order with respect to the offender. This ensures that offenders who are released into the community and later subject to a control order (for example, one that is sought months or years later) do not remain eligible for an ESO or CDO where the link between their detention in custody and activities to support the making of an ICO has been severed beyond the prescribed limit in paragraph 105A.3A(5)(b). The additional safeguard in paragraph 105A.3A(5)(c) makes clear that a control order must be made as a result of the process that commenced before the sentence ends, and removes any misapprehension that a later control order that may be in force in relation to the offender (for example, one that is sought months or years later) would be a basis for eligibility.

124.            The additional criteria in paragraph 105A.3A(5)(e) is a safeguard that ensures that if a offender is charged with one of the breach offences months or years after the control order was in force then it would not be a basis for making them eligible for a CDO or ESO. This provision operates in the same way as paragraph 105A.3A(4)(b). The additional six month period has been included to account for the time it may take to identify a breach and gather evidence to support a case against the offender, and as with ESOs and ISOs it will be particularly relevant if a breach occurs, or becomes evident, towards the end of the period that a control order is in force.

125.            The additional criteria in paragraph 105A.3A(5)(f) ensures that offenders who may be convicted of minor breaches of a control order that do not necessarily show they pose an increased risk of committing a serious Part 5.3 offence are not made eligible for the PSOs available in the HRTO regime. This provision operates in the same way as paragraph 105A.3A(4)(c).

126.            These additional safeguards have been included because this provision would allow a court to make a different type of order, namely an ESO or a CDO, which may last longer and be more onerous than a control order - a broader range of conditions may be imposed as part of an ESO, and a CDO would result in an offender who has been in the community (albeit subject to obligations, prohibitions or restrictions) being subject to further detention, should a court be satisfied of the requisite thresholds.

Subsection 105A.3A(6) - currently subject to an ESO or ISO

127.            Subsection 105A.3A(6) provides that a court may make an ESO in relation to an offender who is currently subject to an ESO or an ISO that is in force. This allows a court to make successive ESOs, if it is satisfied that the offender still meets a threshold for an ESO as a preceding ESO comes to an end. While each ESO can only last for a maximum of three years, there is no limit to the number of ESOs that may be imposed (see subsection 105A.7A(6)).

128.            Under subsection 105A.3A(6), an offender would be eligible for an ESO even if the ESO that was in force is suspended. For example, an offender is subject to a three year ESO and after 18 months the offender is charged and refused bail for malicious damage of property. Under section 105A.18C (see Item 134), the ESO would be suspended while the offender is detained in custody on remand, but that would not prevent the AFP Minister from seeking a new ESO, which would be suspended until the offender was released from custody.

Subsection 105A.3A(7) - serving a custodial sentence and detained since an ESO or ISO was in force

129.            Subsection 105A.3A(7) provides that a court may make an ESO in relation to an offender who is detained in custody serving a sentence for an offence other than the specified terrorism offences in paragraph 105A.3(1)(a), provided that the offender was subject to an ESO or ISO that was in force at the start of their detention in custody. The note clarifies that an offence against section 105A.18A or subsection 105A.18B(1) are examples of offences other than the offences referred to in subsection 105A.3A(10), meaning an offender who is convicted of and serving a custodial sentence for breaching an ESO will be eligible for a further ESO at the end of that sentence. Subsection 105A.3A(10) also clarifies the operation of this provision.

130.            This provision preserves eligibility for ESOs and ensures that offenders who commit further offences while subject to an ESO remain eligible for a further ESO. This provision applies whether the offence the offender is serving a sentence for is a Commonwealth, State or Territory offence, whether related or wholly unrelated to terrorism, from a theft offence to an offence against subsection 119.7(2) of the Criminal Code (publishing recruitment advertisements).

131.            This means that if an offender is subject to an ESO or ISO and is prosecuted, convicted and sentenced to a period in custody (whether the underlying conduct for the offence occurred before or after the ESO or ISO commenced), then the offender would be eligible for an ESO at the end of their custodial sentence, regardless of whether the ESO or ISO had ceased to be in force while the sentence was being served. This period of detention could include a period of time on remand. For example, an offender is made subject to a three year ESO at the end of a six year custodial sentence for an offence against section 119.4 (preparatory acts for foreign incursions). After two years on the CDO, the offender is arrested and charged with a State or Territory drug possession offence. The offender is eligible to be on bail while subject to an ESO, but bail is refused and the offender is remanded in custody. The offender is held on remand for 14 months, and then receives a sentence of two years imprisonment for the drug offence. While the ESO would have expired 12 months into the offenders time on remand, the offender would still be eligible for an ESO at the end of the sentence for the drugs offence because they had been detained in custody (on remand and then serving a sentence) since the ESO was in force. This ensures that offenders are not rendered ineligible for further ESOs because they have committed further offences.

Subsection 105A.3A(8) - control orders requested before ESOs commence

132.            Subsection 105A.3A(8) provides that a court may make an ESO or ISO in relation to an offender if the offender is currently subject to an interim or confirmed control order, and the process for obtaining that control order commenced before a sentence of imprisonment for a specified terrorism offence in paragraph 105A.3(1)(a) ended, and before the subsection commences. This is a transitional measure that ensures that offenders who were released prior to the ESO scheme commencing may be considered for an ESO, provided certain criteria are met.

133.            Paragraph 105A.3A(8)(a) makes clear only offenders who have been convicted of one of the specified terrorism offences in paragraph 105A.3(1)(a) are eligible for an ESO. Paragraph 105A.3A(8)(b) provides that the process for seeking an ICO must have commenced before the offender was released from custody and before the commencement of the subsection, either by way of seeking the AFP Minister’s consent to a request for an ICO, or by making an application for an urgent ICO. It does not matter whether the order was made before or after the subsection commences, or the offender is released from custody. This provision provides an additional safeguard that ensures that there is a link between the control order and the detention in custody for the specified terrorism offence, and ensures that offenders who are released into the community and later subject to a control order (for example, one that is sought months after their release) are not eligible for an ESO.

134.            Paragraph 105A.3A(8)(c) makes clear that either the ICO or the confirmed version of that order must be in force. It does not matter whether the order was confirmed before or after the commencement of this subsection for the offender to be eligible for an ESO. This provision means that if the order is no longer in force, including because the AFP elects not to confirm it, then an offender would not be eligible for an ESO. In addition, this ensures that eligibility is only preserved for a limited period of time (as control orders can only last for one year), if an offender was subject to multiple subsequent control orders then they would not be eligible for an ESO.

135.            All offenders who have been serving a sentence for a specified terrorism offence in paragraph 105A.3(1)(a) have been eligible for a CDO since Division 105A commenced on 7 June 2017. This measure provides that those released before ESOs commence may be eligible for an ESO, which is a less restrictive measure than the CDO for which they were already eligible. It is limited to the cohort that is already subject to some obligations, prohibitions and restrictions in the community under a control order. Offenders subject to a control order cannot be automatically transitioned to an ESO but will be subject to the usual court processes for making an ESO. A court asked to make an ESO in relation to an offender subject to a control order will need to be satisfied that the offender meets the relevant thresholds for an ESO (see section 105A.7A) before it can make the ESO. This measure is designed to ensure the protection of the community from serious Part 5.3 offences by providing that offenders who have committed a specified terrorism offence and continue to pose an unacceptable risk of committing a serious Part 5.3 offence can be made subject to an ESO.

Subsections 105A.3A(9) and (10) - interpretation

136.            Subsections 105A.3A(9) and 105A.3A(10) clarify the operation of section 105A.3A.

137.            Subsection 105A.3A(9) clarifies the operation of subsection 105A.3A(3), which preserves in certain circumstances the eligibility of offenders serving custodial sentences for offences other than the specified terrorism offences, for the avoidance of doubt.

138.            Paragraph 105A.3A(9)(a) clarifies that the other offence that the offender is serving a sentence for can be a Commonwealth, State or Territory offence. Subparagraph 105A.3A(9)(b)(i) clarifies that the sentence can be served concurrently or cumulatively with the sentence for the terrorism offence specified in paragraph 105A.3(1)(a). Subparagraph 105A.3A(9)(b)(ii) clarifies that the offender may have served sentences for multiple different offences since the sentence for the specified terrorism offence, either concurrently or cumulatively with the sentence for the terrorism offence or with other offences. Paragraph 105A.3A(9)(c) clarifies that the sentence that the offender is serving for an offence other than the specified terrorism offence may have been imposed before, after or at the same time as the sentence for the specified terrorism offence. Paragraph 105A.3A(d) clarifies that the offender does not have to have been continuously serving a sentence for an offence, as long as the offender has been continuously detained since the sentence for the terrorism offence. That detention could include a period of detention pursuant to a sentence, on remand, or in accordance with a CDO.

139.            Subsection 105A.3A(9) makes clear that as long as there has been a continuous period of detention since the sentence for the specified terrorism offence, the offender will be eligible for a further CDO or an ESO. For example, this would include a situation where an offender is made subject to a CDO for two years, then serves a two year sentence for associating with a terrorist organisation concurrently with a three year sentence for assault. The offender would be eligible for a CDO and an ESO at the end of the sentence for the assault offence, as they would have been continuously detained in custody since being convicted of the serious terrorism offence. Similarly, if an offender is currently serving a six year sentence for manslaughter and had also been convicted of and serving a four year sentence for the offence of making documents likely to facilitate terrorist acts, then it would not matter whether the sentence for the manslaughter offence was imposed before or at the same time as the sentence for the terrorism offence, or if it was imposed towards the end of the sentence for the terrorism offence.

140.            Subsection 105A.3A(10) clarifies that subsection 105A.3A(7), which preserves in certain circumstances the eligibility of terrorist offenders serving custodial sentences for offences other than the specified terrorism offences after they have been subject to an ESO or ISO, to avoid doubt. Subsection 105A.3A(10) clarifies that the other offence that the offender is serving a sentence for can be a Commonwealth, State or Territory offence.

Item 60 - Subdivision C of the Criminal Code (heading)

141.            Item 60 repeals and replaces the heading for Subdivision C. The new heading refers to making PSOs, as Subdivision C will provide for a court to make an ESO or a CDO.

Item 61 - Section 105A.5 of the Criminal Code (heading)

142.            Item 61 repeals and replaces the heading for section 105A.5. The new heading refers to applying for PSOs, as the section now sets out how to apply for both a CDO and an ESO.

Item 62 - Subsection 105A.5(1) of the Criminal Code

143.            Item 62 repeals and replaces subsection 105A.5(1). Subsection 105A.5(1) now provides that the AFP Minister may make an application to a Supreme Court for either a CDO or an ESO. This reflects the creation of ESOs, which will now be available as an alternative, less restrictive measure than a CDO.

144.            The AFP Minister will only make an application for one order, either a CDO or an ESO, but subsection 105A.7(2) requires a court to consider making an ESO if it is not sufficiently satisfied to make a CDO (see Item 85). Item 62 also inserts a note at the end of subsection 105A.5(1) to clarify that that even if the AFP Minister only applies for a CDO, the Court may make an ESO under section 105A.7A (see Item 87).

Item 63 - Paragraph 105A.5(2)(a) of the Criminal Code

145.            Item 63 repeals and replaces paragraph 105A.5(2)(a). Paragraph 105A.5(2)(a) provides that the AFP Minister (or their legal representative) may apply for a PSO in the 12 months before the end of an eligible sentence of imprisonment (as described in paragraph 105A.3(1)(a) and section 105A.3A).

Item 64 - Paragraph 105A.5(2)(b) of the Criminal Code

146.            Item 64 amends paragraph 105A.5(2)(b) to replace the reference to a CDO with a reference to a PSO. Paragraph 105A.5(2)(b) provides that the AFP Minister (or their legal representative) may apply for a PSO in the 12 months before the end of a PSO that is in force in relation to the offender.

Item 65 - At the end of subsection 105A.5(2) of the Criminal Code

147.            Item 65 inserts a new paragraph at the end of subsection 105A.5(2). Paragraph 105A.5(2)(c) provides that if a person is eligible for a PSO because of the transitional measures in subsection 105A.3A(8), then the AFP Minister (or their legal representative) may apply for a PSO in the period that the control order is in force.

Item 66 - After subsection 105A.5(2) of the Criminal Code

148.            Item 66 inserts new subsection 105A.5(2AA), which is an avoidance of doubt provision. Subsection 105A.5(2AA) deals with the situation where an offender is serving a sentence for an eligible offence and is also subject to a PSO that is in force. This subsection provides that an application may be made in the 12 months before the eligible sentence ends, even if there are more than 12 months left to run on a PSO, and similarly that an application may be made in the 12 months before a PSO ends, even if there are more than 12 months left to run on the sentence. This is because a PSO may be in force in relation to an offender who is detained in custody serving a sentence of imprisonment (though that PSO would be suspended while the offender is detained in custody because of section 105A.18C (see Item 134)). Subsection 105A.5(2AA) makes clear that even if one of paragraph (2)(a) or (b) suggest an application cannot be made if there is more than 12 months left on, for example, a PSO, the AFP Minister can make an application if it is within 12 months of the end of an eligible sentence.

Item 67 - Subsection 105A.5(2A) of the Criminal Code

149.            Item 67 repeals and replaces subsection 105A.5(2A). Subsection 105A.5(2A) modifies the existing obligation for the AFP Minister to undertake certain inquiries for exculpatory material. The AFP Minister must ensure reasonable inquiries are made to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer (as defined in subsection 105A.2(1)) that would reasonably be regarded as supporting a finding that an order should not be made. If the application is for a CDO, the AFP Minister must ensure there are inquiries in relation to whether a CDO or an ESO should be made. If the application is for an ESO, the AFP Minister must ensure there are inquiries in relation to whether an ESO should be made. While it would ordinarily be expected that exculpatory material would be relevant to both types of PSOs, this ensures that if there is exculpatory material that specifically relates to whether detention or supervision is not warranted then it will be sought.

150.            This will require that reasonable inquiries are made of the existing material law enforcement or security agencies hold. It will not require those agencies to undertake further operational enquiries.

Item 68 - Paragraph 105A.5(3)(aa) of the Criminal Code

151.            Item 68 amends paragraph 105A.5(3)(aa) as a consequence of the amendments in Item 67, to reflect that subsection 105A.5(2A) now refers to both ESOs and CDOs.

Item 69 - After paragraph 105A.5(3)(c) of the Criminal Code

152.            Item 69 inserts paragraphs 105A.5(3)(d) and (e). Paragraph 105A.5(3)(d) provides that if the AFP Minister is applying for an ESO, then the application must also include a copy of the conditions proposed to be imposed on an offender by an ESO and an explanation as to why each of the proposed conditions should be imposed on the offender. In addition, if the AFP Minister is aware of any facts that suggest any of those conditions should not be imposed on the offender, then the AFP Minister needs to include a statement of those facts (subject to the information protections outlined in section 105A.14B). This ensures that a court has all relevant information before it when determining whether each of the conditions to be imposed on the offender is reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of ESOs.

153.            Paragraph 105A.5(3)(e) provides that if the AFP Minister obtains a report in relation to the offender under section 105A.18D, which allows the AFP Minister to obtain a report on the risk of an offender committing a serious Part 5.3 offence (see Item 134), then the AFP Minister must include a copy of the report in the application (subject to sections 105A.14B, 105A.14C and 105A.14D (Item 120)).

Item 70 - Subsection 105A.5(3) of the Criminal Code (note 1)

154.            Item 70 repeals and replaces note 1 in subsection 105A.5(3) as a consequence of creating ESOs. The note clarifies that the period of an ESO or a CDO must be no more than three years.

Items 71 and 72 - Section 105A.5 of the Criminal Code

155.            Items 71 and 72 are a consequence of the fact that the provisions covering giving information to an offender and the applicable information protections have been moved to sections 105A.14A and 14B.

156.            Item 71 repeals and replaces note 3 in subsection 105A.5(3) to refer to the requirement in section 105A.14A to give certain information to an offender.

157.            Item 72 repeals subsections 105A.5(4)-(10), including the note at the end of subsection 105A.5(10). This reflects the fact that the matters covered by those provisions are now addressed in sections 105A.14A and 14B.

Item 73 - Subsection 105A.6(1) of the Criminal Code

158.            Item 73 amends subsection 105A.6(1) to replace the reference to an application for a CDO with a reference to an application for a PSO. This is because section 105A.5 has been updated to make clear that the AFP Minister can apply for either type of PSO. Under section 105A.6, the Court may appoint one or more relevant experts to assist the Court in determining whether an offender poses an unacceptable risk of committing a serious Part 5.3 offence.

Item 74 - Subsection 105A.6(2) of the Criminal Code

159.            Item 74 amends subsection 105A.6(2) to replace the reference to subsection 105A.5(4) with a reference to subsection 105A.14A(2), as the requirement to give certain information to the offender has been moved to section 105A.14A. Subsection 105A.6(2) requires the Court to hold a hearing to determine whether to appoint a relevant expert within 28 days of a PSO application being given to an offender.

Item 75 - Subsection 105A.6(3) of the Criminal Code

160.            Item 75 amends subsection 105A.6(3) to replace the reference to a CDO with a reference to a PSO, as a consequence of creating ESOs.

Item 76 - Paragraph 105A.6(4)(a) of the Criminal Code

161.            Item 76 amends paragraph 105A.6(4)(a) to omit the phrase ‘if the offender is released into the community’ from the provision that outlines the risk that an expert is to assess, reflecting the creation of ESOs. An offender subject to an ESO may be released into the community, albeit subject to various conditions, and may remain in the community on subsequent ESOs. As a result, relevant experts may be asked to assess the risk of an offender who is already in the community committing a serious Part 5.3 offence, and the provision has been updated to reflect that fact.

Item 77 - Subsection 105A.6(4) of the Criminal Code (note)

162.            Item 77 repeals and replaces the note in subsection 105A.6(4) to clarify that section 105A.15 deals with providing documents to an offender who is in prison.

Item 78 - Subsection 105A.6(5A) of the Criminal Code

163.            Item 78 repeals and replaces subsection 105A.6(5A) to clarify and amend the provisions concerning admissibility of information provided by the offender during a relevant expert’s assessment. The offender is not compelled to answer questions. Any information, or the answers to questions, provided by the offender during the relevant expert’s assessment can only be used for the purposes of civil proceedings under Division 104 or 105A of the Criminal Code , namely proceedings involving control orders or PSOs. The information is not admissible in any other civil proceedings.

164.            Any information provided by the offender during the relevant expert’s assessment cannot be used in criminal proceedings, except in limited post-conviction context. Information provided by the offender during the relevant expert’s assessment may be used by a court sentencing a person for an offence against Division 104 or 105A, namely a breach of a control order or an ESO, or interference with a tracking device. This ensures the Court has all relevant materials available for its consideration when sentencing an offender for a breach offence, while balancing this against the need to ensure that information provided by the offender during the relevant expert’s assessment cannot be used as a basis for a conviction. Expert risk assessment reports are generally more extensive than court reports produced for sentencing hearings. These assessment reports may also provide valuable evidence of a person’s mental state at the time of committing an offence (for example, the offence of breaching an ESO), which may be useful during sentencing proceedings for that offence.

Item 79 - Subsection 105A.6(6) of the Criminal Code

165.            Item 79 repeals and replaces subsection 105A.6(6), to reflect the addition of subsection 105A.6(9) (see Item 81). In addition to the existing requirement that a court explain to an offender that they are required to attend an assessment and that there are limits on the use of information provided at that assessment, the Court must also explain that information provided may be used by a court in making or varying a PSO or IPSO or in reviewing a PSO.

Item 80 - Paragraphs 105A.6(7)(a) and (g) of the Criminal Code

166.            Item 80 amends paragraphs 105A.6(7)(a) and (g) to omit the phrase ‘if the offender is released into the community’ from the provisions referring to the risk posed by the offender, reflecting the creation of ESOs. An offender subject to an ESO may be released into the community, albeit subject to various conditions, and may remain in the community on subsequent ESOs.

Item 81 - At the end of section 105A.6 of the Criminal Code

167.            Item 81 inserts new subsection 105A.6(9), which clarifies the circumstances in which expert assessments and reports may be used. Subsection 105A.6(9) provides that an expert assessment of an offender’s risk of committing a serious Part 5.3 offence, along with the corresponding report, may be used in any other PSO proceedings in relation to the offender, and may be used by the Court for different purposes in the original PSO proceedings. This means that if an assessment is undertaken for the purpose of determining whether to make a CDO, the Court could also use that assessment and report in determining whether to make an ESO in relation to the offender. In addition, a court could use that report in determining any subsequent application for a CDO or ESO, as well as reviews or variations of a PSO.

Item 82 - After section 105A.6 of the Criminal Code

168.            Item 82 inserts sections 105A.6A and 6B.

169.            Section 105A.6A sets out how a court may determine an application for a PSO. If the AFP Minister makes an application for a CDO then the Court may determine the application by making a CDO, making an ESO or dismissing the application. This reflects the fact that subsection 105A.7(2) requires a court that has been asked to make a CDO to consider making an ESO if not satisfied of the thresholds for making a CDO (see subsection 105A.7(2), Item 85). If the AFP Minister makes an application for an ESO then the Court may determine the application by making an ESO or dismissing the application. This reflects the fact that the Court can only make a CDO if the AFP Minister applies for a CDO (paragraph 105A.7(1)(a)).

170.            Section 105A.6B sets out the matters that a court must have regard to in making a PSO. This section is substantially the same as current section 105A.8, but has been moved and renumbered so that the provisions flow sequentially. In addition, section 105A.6B provides that a court must have regard to:

·          any report of an assessment from a relevant expert that was obtained under section 105A.18D, as well as the offender’s level of participation in the assessment, and

·          the level of the offender’s compliance with any obligations while subject to a PSO, IPSO or control order.

171.            It is a matter for the Court to determine what weight it gives each of the matters listed in section 105A.6B.

Item 83 - Paragraph 105A.7(1)(b) of the Criminal Code

172.            Item 83 repeals and replaces paragraph 105A.7(1)(b), which sets out the threshold for making a CDO, to replace a reference to section 105A.8 with a reference to section 105A.6B, and to omit the phrase ‘if the offender is released into the community’ because of the creation of ESOs.

Item 84 - Subsection 105A.7(1) of the Criminal Code (notes 1 and 2)

173.            Item 84 repeals and replaces notes 1 and 2 in paragraph 105A.7(1)(b). Note 1 provides that an ESO is an example of a less restrictive measure, which is relevant to paragraph 105A.7(1)(c) which requires a court to be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk of the offender committing a serious Part 5.3 offence. This means a court would need to be satisfied that a less restrictive statutory order, such as an ESO, would not be effective in preventing the risk posed by the offender. Note 1 also references the fact that a court can make an ESO even if a CDO was applied for. Note 2 reflects the fact that the rules of evidence and procedure for civil matters apply when the Court is considering the factors in subsection 105A.6B.

Item 85 - Subsection 105A.7(2) of the Criminal Code

174.            Item 85 repeals and replaces subsection 105A.7(2), which sets out what is to occur if a court considering a CDO application is not satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious Part 5.3 offence, or if the Court is not satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk posed by the offender.

175.            The Court is required to consider making an ESO and to seek from the AFP Minister a copy of the conditions that the AFP Minister would propose be included in an ESO and an explanation as to why each of the proposed conditions should be imposed on the offender. In addition, if the AFP Minister is aware of any facts that suggest any of those conditions should not be imposed on the offender, then the AFP Minister needs to include a statement of those facts (subject to the information protections outlined in section 105A.14B). This ensures that a court has all relevant information before it when determining whether each of the conditions to be imposed on the offender is reasonably necessary, and reasonably appropriate and adapted to the protective purpose of ESOs.

176.            It is appropriate for the Court to consider making an ESO at the point it considers that the threshold for a CDO is not met, because there is a lower threshold for making an ESO (see subsection 105A.7A(1), Item 87), and an ESO is a less restrictive measure compared with the detention of the offender. This provision ensures that an offender who nonetheless poses a risk to the community is not automatically released into the community without controls because a less restrictive measure would be effective. This protects the community from the risk of serious Part 5.3 offences and supports the object of the Division.

177.            The Court is not obliged to make an ESO, only to consider making one. It is open to the Court to dismiss the application after considering making an ESO, if the Court is not satisfied that the threshold for an ESO has been met (see subsection 105A.6A(1)).

Item 86 - At the end of subsection 105A.7(4) of the Criminal Code

178.            Item 86 adds a note at the end of subsection 105A.7(4) which reflects the fact that a CDO may be suspended in accordance with section 105A.18C.

Item 87 - Section 105A.8 of the Criminal Code

179.            Item 87 repeals section 105A.8 (as those matters are now dealt with in section 105A.6B), and inserts new sections 105A.7A, 105A.7B, 105A.7C, 105A.7D, 105A.7E and 105A.7F, all of which concern the creation of ESOs.

Section 105A.7A - making an ESO

180.            Section 105A.7A sets out the circumstances in which a court can make an ESO. Paragraph 105A.7A(1)(a) provides that a court may make an ESO if the AFP Minister applies for an ESO or if the AFP Minister applies for a CDO but the Court is not satisfied that the threshold for a CDO has been met. In addition, a court can make an ESO if it has reviewed a CDO and is not satisfied that the threshold for a CDO continues to be met (see subsection 105A.12(5)).

181.            Paragraph 105A.7A(1)(b) requires a court to be satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence before a court can make an ESO. The AFP Minister bears the onus of satisfying the Court of that risk (see subsection 105A.7A(4)). A court must consider the factors in section 105A.6B in making that determination.

182.             The ‘unacceptable risk of committing a serious Part 5.3 offence’ is the same threshold that applies for a court making a CDO. Importantly, this does not require a court to be satisfied that the offender will actually commit a terrorist act - the phrase serious Part 5.3 offence covers terrorism offences with a maximum penalty of at least seven years’ imprisonment, including planning, preparatory and terrorism financing offences. Requiring the Court to be satisfied on the balance of probabilities reflects the standard of proof that ordinarily applies in civil proceedings and specifically the standard that applies in control order proceedings. This requires a court to determine that it is more likely than not that the offender poses an unacceptable risk. This is a lower standard of proof than that which applies when making a CDO, reflecting the fact that an ESO is a less restrictive measure in comparison to a CDO.

183.            Paragraph 105A.7A(1)(c) requires a court to be satisfied on the balance of probabilities that each of the conditions to be included in the ESO is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the risk of the offender committing a serious Part 5.3 offence. The requirement that the Court must be satisfied that each condition to be included within the ESO is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence is the same requirement that must be satisfied in including conditions within control orders. If the AFP Minister proposes a condition for inclusion in the order and the Court is not so satisfied, then the Court could not include that condition in the ESO. In determining whether an obligation, prohibition or restriction is reasonably necessary, and reasonably appropriate and adapted, the Court is required to take into account, as a paramount consideration in all cases, the object of Division 105A, namely the protection of the community from serious Part 5.3 offences. This provision does not preclude the Court taking other factors into account if they are relevant to each individual case. However, regardless of what those factors are, the Court’s paramount consideration must be the protection of the community. The AFP Minister bears the onus of satisfying the Court as to each proposed condition (see subsection 105A.7A(4)).

184.            If a court makes an ESO, subsection 105A.7A(5) requires the Court to include a number of matters in the order, namely:

·          the name of the offender, and the period that the order is to be in force

·          a statement that the Court is satisfied that the threshold for the order has been met and that each condition is reasonably necessary, and reasonably appropriate and adapted, and a statement that the offender’s lawyer (whether current or future) may request a copy of the order, and

·          all of the conditions, and details of any conditions from which an exemption may be sought, that are to be imposed on the offender by the ESO in accordance with section 105A.7B and 105A.7C.

185.            The period that the order is to be in force must be the period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk, up to a maximum of three years (see paragraph 105A.7A(5)(d)). However, there is no maximum cap on the amount of time that an offender may be subject to a PSO, provided the offender continues to meet the relevant thresholds for an order (subsection 105A.7A(6)). A court may make further subsequent ESOs, each for up to three years at a time, if the offender continues to meet the threshold for an ESO at the end of a preceding ESO. Similarly, a court may make an ESO in relation to an offender who was previously subject to a CDO.

186.            Subsection 105A.7A(7) ensures that an offender cannot be subject to both an ESO and a CDO at the same time. If a court makes an ESO in respect of an offender who is also subject to a CDO that is in force, then the CDO is automatically revoked. This is relevant to subsection 105A.12(5) and subparagraph 105A.7A(1)(a)(iii), which provide that a court can make an ESO.

Section 105A.7B - conditions of ESOs and ISOs

187.            Section 105A.7B sets out the range of conditions that a court may impose on an offender as part of an ESO or ISO.

Subsections 105A.7B(1) and (2) - Conditions and general rules relating to conditions

188.            A court may impose any condition that it considers, on the balance of probabilities, is reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the ESO (subsection 105A.7B(1)). Subsections 105A.7B(3) and (5) set out conditions that may be imposed by an ESO or ISO, but these are intended to provide examples of conditions to the Court and are not intended to limit the conditions that a court may impose.

189.            Subsection 105A.7B(2) makes clear that the conditions that may be imposed on an offender are obligations, prohibitions and restrictions that protect the community from the unacceptable risk posed by the offender. Specifically, conditions may:

·          impose restrictions and obligations in relation to certain classes of conduct, and prohibit other classes of that conduct - such as preventing international travel and placing conditions on domestic travel, and

·          impose different restrictions and obligations in relation to different classes of conduct - such as requiring an offender to complete certain programs, but placing conditions on other types of programs or courses.

190.            This is particularly relevant to the examples of conditions in subsections 105A.7B(3) and (5). For the conditions described in subsection 105A.7B(3) that prohibit certain conduct, the Court may instead impose conditions and obligations in relation to that conduct. Similarly, a court may impose different restrictions, obligations and prohibitions in relation to conduct described in subsection 105A.7B(3) or (5) than are specifically referred to in those subsections. For example, paragraph 105A.7B(3)(d) provides that a court could prevent an offender leaving Australia, or the offender’s State or Territory of residence. Subsection 105A.7B(2) makes clear that a court could place conditions on an offender leaving Australia or their State or Territory of residence, such as seeking permission first, or only doing so for specified reasons. If a court was satisfied, it could also impose a condition which limited an offender’s ability to relocate from a particular region in their State of residence. Similarly, paragraph 105A.7B(3)(m) provides that a court could require an offender to seek permission from a person or persons specified in the order, such as a class of AFP officer, before commencing certain types of training or education. Subsection 105A.7B(2) makes clear that a court could prevent an offender from engaging in particularly high risk training, such as blasting courses.

191.            These provisions make clear that an ESO and ISO may include a very broad range of conditions directed at all aspects of an offender’s life. However, the possible breadth of conditions that may be imposed does not mean that every ESO or ISO will be so broad. This is because each condition must be reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the order, and a court must be satisfied of that fact before including a particular condition in an ESO or ISO. Therefore, the breadth of conditions included in an order, and the extent to which they intrude on an offender’s life, will depend on the particular risk posed by the offender and the kinds of obligations, prohibitions or restrictions that the Court considers are needed to address that risk.

Subsection 105A.7B(3) - general conditions

192.            Subsection 105A.7B(3) lists a number of general conditions that may be included in an ESO in accordance with subsection (1). These conditions concern:

·          Movement, travel and residence of an offender, including curfews.

·          Travel documents, licences and changes to or use of different names.

·          Communication and the use of technology.

·          Possession of specified articles or substances.

·          Employment, training, education and other activities, including recreational activities and treatment, rehabilitation and intervention programs or activities.

·          Participation in interviews and assessments and the provision of information, including the sharing of information about the offender.

193.            The examples of conditions in subsection 105A.7B(3) make clear that a court may confer certain discretions on specified authorities (as defined in section 100.1), namely a person or class of persons that the Court is satisfied are appropriate to be given discretion in relation to particular conditions. This ensures that there is appropriate flexibility in the order to respond to developing situations, while ensuring that the Court making the order sets the parameters for any exercise of discretion. The conditions in the ESO could, for example empower:

·          A class of AFP officer specified in the order to give an offender permission to temporarily or permanently reside at a premise other than the one specified in the order.

·          Identified law enforcement officers to direct the offender not to communicate with individuals that the law enforcement officers may determine from time to time (such as persons who may not be considered a risk at the time the order is made, but who later develop into a risk).

·          A provider of countering violent extremism programs to specify the particular programs that the offender is to participate in.

194.            The examples in subsection 105A.7B(3) also make clear that a court may empower a person or class of persons to give directions in connection with some conditions. For example, this would mean a court could impose a condition that an offender only access the internet using a certain device, not use or access certain platforms, and comply with any reasonable directions from a specified class of AFP officer regarding access to the internet. Members of the class of specified AFP officer could then give a direction regarding internet use, provided it met the requirements in subsection 105A.7B(4).

195.            Subsection 105A.7B(3) makes clear that a court could impose a range of conditions within an ESO, including:

·          Prohibitions or restrictions on the possession and/or use of weapons, chemicals and drugs, such as illicit drugs or alcohol.

·          Prohibitions on attending locations like ports, airports or certain suburbs, as well as a prohibition on attending places determined by a person or class of persons specified in the order.

·          Prohibitions on obtaining foreign or Australian travel documents, passports, visas, airline tickets, provisional travel documents, UN Laissez Passer document, Refugee/Convention Travel Documents.

·          Prohibitions on the offender using names other than those specified in the order.

·          Prohibitions on undertaking specified work, classes of work or activities relating to either, such as work involving access to weapons (security guard), access to chemicals or heavy vehicles.

·          Prohibitions on communicating with named individuals or classes of individuals, such as persons convicted of the specified terrorism offences in paragraph 105A.3(1)(a) or persons located in a specified country.

196.            The note for subsection 105A.7B(3) refers to subsection (8) and sections 100.1 and 105A.2 to clarify the meanings of premises, reside, residence and work.

Subsection 105A.7B(4) - giving directions

197.            Subsection 105A.7B(4) places limits on directions that a specified authority may give in relation to conditions in an order. A specified authority can only give a direction if the direction is reasonable in all the circumstances to give effect to the relevant condition or to the object of the Division. This is an important safeguard that ensures that directions are connected to the underlying intent and purpose of the order that is made by the Court. It also supports the effective operation of the relevant conditions and the ESO itself by ensuring day-to-day decisions can be made by court-approved persons in the interests of both the offender and the community. The reasonableness of a direction will depend on the particular circumstances, the content and manner of the direction, and the content of the ESO. For example, an ESO could provide that an offender not associate with individuals determined by the AFP, and the AFP could direct an offender not to communicate with a close family member. Such a direction may not immediately appear reasonable, but if that close family member had been convicted of multiple terrorism offences then such a direction may in fact be reasonable.

Subsection 105A.7B(5) - conditions related to monitoring and enforcement

198.            Subsection 105A.7B(5) lists a number of possible conditions which relate to monitoring and enforcement that may be included in an ESO in accordance with subsection (1). These conditions concern:

·          Testing for use and possession of substances.

·          Photographs and fingerprints.

·          Electronic monitoring, compliance with schedules of movement and carrying and use of a mobile phone.

·          Reporting to places and persons, and curfew checks.

·          Entry, search and seizure relating to premises and electronic devices, items and technology.

199.            Like the examples of conditions in subsection 105A.7B(3), subsection 105A.7B(5) makes clear that the Court may confer on a specified authority the power to monitor specific conditions and the Court may require the offender to comply with directions issued by the specified authority. They also confer functions on specified authorities and empower them to undertake certain actions in relation to ESO conditions. This ensures that the order contains a framework for monitoring and facilitating compliance with the order to ensure the protection of the community from serious Part 5.3 offences. The conditions in the ESO could, for example, authorise:

·          police officers to enter and search the offender, the offenders residence, car and storage facility and to seize items during that search subject to conditions ordered by the Supreme Court

·          persons involved in electronic monitoring of an offender to call the offender for the purposes of electronically monitoring the offender, such as to direct them to charge a device, and

·          persons involved in the provision of drug and other substance testing to test the offender for drug and alcohol use, as well as use of prohibited or restricted chemicals or other substances or items, including firearms.

200.            The possible conditions listed in subsection 105A.7B(5) make clear that a court may empower a person or class of persons to give directions in connection with some conditions. Any directions are subject to the requirements in subsection 105A.7B(4), namely they must be reasonable to give effect to the condition and the object of protecting the community from serious Part 5.3 offences.

201.            The listed conditions also make clear that the Court may authorise the exercise of certain powers. The exercise of those powers is subject to the limitation in subsection 105A.7B(6) (see below). Subsection 105A.7B(5) makes clear that the offender is required to allow the various things that may be done pursuant to the exercise of those powers.

202.            Conditions in an ESO may be framed as requiring the offender to allow or permit certain things to occur. This is similar to the approach in the Terrorism (High Risk Offenders Act) 2017 (NSW). For example, a court could include a condition in an ESO to the effect that ‘the offender must allow AFP officers to attend the offender’s residence to confirm compliance with a curfew condition, and to enter the premises for that purpose’. If such a condition were included then the AFP could attend the premises and ask the offender to come to the door to confirm they were home during the hours of a curfew. If the offender refused to open the door and did not allow for the AFP to enter then the AFP would not be able to enter the premises, as the allowance required by the ESO condition would have not been provided. This may constitute a breach of an ESO condition. If an offender breaches an ESO, section 3WA of the Crimes Act may apply to empower a constable (a member or special member of the AFP or a member of the police force or police service of a State or Territory) to arrest the subject without a warrant. As the offence of breaching an ESO is an indictable offence, a constable could then enter the premises to arrest the offender, using reasonable force, under section 3ZB of the Crimes Act. Alternatively, the AFP would be able to seek a monitoring warrant under the Crimes Act.

203.            Subsection 105A.7B(5) makes clear that a court could impose in an ESO conditions such as:

·          A requirement to allow attendance at and entry to premises if an AFP officer attended the premises to confirm compliance with a curfew. This would be particularly relevant if the AFP called an offender to check compliance with curfew but the offender was not answering those calls.

·          A requirement that the offender take all reasonable steps to answer all calls from AFP officers and from staff engaged in the electronic monitoring of the offender, and return any unanswered calls as soon as practically possible.

·          A requirement to comply with directions issued by a specified authority in relation to the requirement to carry at all times a specified mobile phone, including to charge the phone and ensure the offender remains contactable.

·          A requirement to report to a particular person or persons at times and places specified by that person.

Subsection 105A.7B(6) - threshold for exercising powers

204.            Subsection 105A.7B(6) places constraints on the exercise of monitoring and compliance related powers such as those which are listed in subsection (5). A power exercised by a specified authority under a condition identified in subsection 105A.7B(5) (other than a power to give a direction, which is dealt with separately) can only be exercised if the person exercising the power is satisfied that it is reasonably necessary to do so in order to give effect to the order or to facilitate or monitor compliance with the order. As with the general directions power, what is reasonable will depend on the particular circumstances and conditions of the ESO. For example, directing the offender to report to a police station at 11am twice a week may generally be reasonable, but if the offender lived on the other side of the city, or worked in the mornings, then such a direction may not be reasonable. Similarly, calling an offender and expecting them to answer the phone at 3am may not appear reasonable, but may be reasonable if the offender worked shifts and was generally available at 3am, or if there was a risk to the protection of the community that necessitated contact at 3am. If a direction required an offender to act in contravention with the terms of the order, such as requiring the offender to attend a particular place between the hours that the ESO required the offender to be at home, then such a direction may be unreasonable (unless, for example, the curfew was an exemption condition (see section 105A.7C)).

Subsection 105A.7B(7) - access to lawyers

205.            Subsection 105A.7B(7) clarifies the offender’s right to access a lawyer and obtain legal representation. The only limit on accessing, communicating or associating with the offender’s lawyer is if the lawyer is one of the individuals that the Court has prohibited contact with pursuant to paragraph 105A.7B(3)(h). If the offender’s lawyer is a prohibited contact, then the offender is free to contact, communicate or associate with any other lawyer who is not listed as a prohibited contact.

Subsection 105A.7B(8)

206.            Subsection 105A.7B(8) clarifies that the phrase ‘work’, as used in subsection (3), is not limited to paid work but also includes voluntary work.

Section 105A.7C - Conditions where exemptions may be granted

207.            Subsection 105A.7C(1) provides that a court making an ESO or ISO may identify certain conditions included in the order as exemption conditions, being conditions from which the offender may seek a specific, temporary exemption. In addition to identifying certain conditions as exemption conditions, the Court may include in the ESO certain limits on the kind of exemptions that may be sought, or set out processes that must be followed, such as requiring an offender to apply for an exemption a certain number of days in advance.

208.            An offender’s application for an exemption must be made in writing to the person or persons specified in the order, and must set out the reason for the exemption. It must also comply with any other requirements that were set by the Court in the ESO (subsection 105A.7C(4)).

209.            Subsection 105A.7C(5) makes clear that the person or persons identified in the order as the specified authority for this purpose have the discretion to approve or refuse the request for an exemption, or to approve the request subject to certain conditions. The specified authority can require the offender to provide additional information before making a decision on the application.

210.            This provision is designed to ensure the ESO contains a sufficient level of flexibility to manage the offender in the community, while ensuring the Court retains discretion and oversight in respect of any exemptions. For example, an ESO may prohibit an offender from going to a particular location, such as the area around an airport. If the Court had made that an exemption condition, then the offender could apply to the person or persons specified in the order for an exemption to attend that location at a particular time for a particular reason, such as a medical appointment. The specified authority could approve the exemption subject to certain conditions, such as identifying a specific period of time in which the offender may be present in that location, or requiring the offender to make themselves known to a particular person at the relevant building before attending the appointment.

211.            The fact that a condition is designated as an exemption condition does not prevent either the offender or the AFP Minister seeking to vary that condition, including by seeking a variation of the condition if an exemption has been refused.

Section 105A.7D - Treatment of photographs and impressions of fingerprints

212.            Section 105A.7D places restrictions on the use of photographs or impressions of fingerprints taken pursuant to a condition in an ESO or ISO, reflecting the same safeguards that apply for control orders. Such photographs and impressions of fingerprints may only be used to ensure compliance with an ESO or ISO imposed on the offender, including subsequent ESOs or ISOs, and cannot be used for any other purpose. Subsection 105A.7D(3) makes it an offence, punishable by two years’ imprisonment, to use a photograph or impression of fingerprints for any purpose.

213.            Subsection 105A.7D(2) requires the photograph or impression to be destroyed if it has been more than 12 months since an ESO or ISO was in force in relation to the offender, and no ESO or ISO proceedings in relation to the offender were underway in that 12 month period, or proceedings that were underway in that 12 month period.

Section 105A.7E - Obligations relating to monitoring devices

214.            Section 105A.7E provides for obligations relating to monitoring devices, and replicates the provisions in 104.5A that apply to control orders (see Item 20). It requires a court that includes a condition in an ESO to wear a monitoring device to also include in the order a number of additional requirements and authorisations relating to electronic monitoring (subsections 105A.7E(1)-(3), (5)). The same preconditions for the exercise of any powers pursuant to a condition in an order apply to both control orders and ESOs (subsection 105A.7E(4)).

215.            The key difference between section 105A. 7E and section 104.5A is the inclusion of additional subparagraph 105A.7E(3)(b)(iii) and paragraph 105A.7E(3)(d). Unlike control orders, an ESO or ISO may be suspended for any period that the offender is detained in custody, so these provisions clarify the operation of the authorisations to remove devices and equipment if an offender is detained in custody. Subparagraph 105A.7E(3)(b)(iii) and paragraph (d) provide that if an offender is detained in custody, a monitoring device and related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though the offender is not required to comply with the conditions in an order while it is suspended (because of section 105A.18C). The note refers to subsection 100.1(1), which clarifies the meaning of ‘detained in custody’.

Section 105A.7F - copy of ESO or ISO to be given to lawyer

216.            Section 105A.7F provides that a copy of an ESO or ISO must be given to an offender’s lawyer as soon as practicable after it is requested. This replicates an equivalent safeguard in the control order scheme (section 104.13) and ensures that any current or future lawyer for the offender is able to access details of the order that applies to their client.

Item 88 - Before section 105A.9 of the Criminal Code

217.            Item 88 inserts a heading for Subdivision CA, about making IPSOs, to improve the readability of the legislation.

Item 89 - Before subsection 105A.9(1A) of the Criminal Code

218.            Item 89 inserts a heading, about determining an application for an IDO, before subsection 105A.9(1A), to improve readability of the legislation.

Item 90 - After subsection 105A.9(1A) of the Criminal Code

219.            Item 90 inserts new subsection 105A.9(1B), which provides that if the AFP Minister makes an application for an IDO, the Court may determine the application by making an IDO, making an ISO or dismissing the application. This replicates the process that applies for determining applications for CDOs (subsection 105A.6A(1)), and reflects the fact that a court considering an application for an IDO is required to consider making an ISO if not satisfied of the preconditions for making an IDO (see subsection 105A.9(8)).

Item 91 - Subparagraphs 105A.9(2)(a)(i) and (ia) of the Criminal Code

220.            Item 91 repeals subparagraphs 105A.9(2)(a)(i) and (ia) and replaces them with new subparagraph (i). Subparagraph 105A.9(2)(a)(i) provides that if an offender in relation to whom an IDO application has been made is serving a sentence of imprisonment (see subsections 105A.3A(1), (3), (4) and (5)), then the Court must be satisfied that sentence of imprisonment will end before the CDO application is determined before it can impose an IDO on the offender.

Item 92 - At the end of subsection 105A.9(4) of the Criminal Code

221.            Item 92 adds a note at the end of subsection 105A.9(4) to reference the fact that an IDO may be suspended while it is in force, if the offender is detained in custody for another reason. However, any period of suspension will not affect the end date for the IDO (see subsection 105A.18C).

Item 93 - At the end of subsection 105A.9(6) of the Criminal Code

222.            Item 93 amends subsection 105A.9(6) to provide that the total period for all IDOs must be no more than three months, unless the Court is satisfied that there are exceptional circumstances. This means that the total period of IDOs can extend beyond three months if the Court is so satisfied. A court is not under an obligation to make an IDO, and a court has discretion to determine the length of each individual IDO, and the total period of all IDOs.

223.            The phrase ‘exceptional circumstances’ is not defined, and is left to the Court to determine. For example, if determining a CDO application was delayed due to illness on the part of the judge, or delays to hearings because of the actions of the offender, then the Court could consider those as exceptional circumstances that warrant the total period of IDOs to extend beyond three months. The three month cap would apply in the ordinary course of things.

Item 94 - At the end of section 105A.9 of the Criminal Code

224.            Item 94 inserts subsection 105A.9(8). Subsection 105A.9(8) provides that if a court is not satisfied that there are reasonable grounds for considering that a CDO will be made, the Court is required to consider making an ISO. A court must seek from the AFP Minister a copy of the conditions that the AFP Minister would propose be included in an ISO and an explanation as to why each of the proposed conditions should be imposed on the offender. In addition, if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender, then the AFP Minister needs to include a statement of those facts (subject to the information protections outlined in section 105A.14B).

225.            As with the substantive orders, it is appropriate for the Court to consider making an ISO at the point it considers that the threshold for an IDO is not met, because there is a lower threshold for making an ESO (see subsection 105A.7A(1), Item 87), and an ESO is a considerably less restrictive measure than full time custody. This provision ensures that an offender who nonetheless poses a risk to the community is not automatically released into the community without controls where a less restrictive alternative would be effective. This protects the community from the risk of serious Part 5.3 offences and supports the object of the Division.

226.            The Court is not obliged to make an ISO, only to consider making one. It is open to the Court to dismiss the application after considering making an ISO, if the Court is not satisfied that the threshold for an ISO has been met (see subsection 105A.9(1B)).

Item 95 - After section 105A.9 of the Criminal Code

227.            Item 95 inserts section 105A.9A, which provides for ISOs, and Subdivision CB, which provides for varying ESOs and ISOs.

Section 105A.9A - ISOs

228.            Subsection 105A.9A(1) enables the AFP Minister, or a legal representative of the AFP Minister, to apply to a Supreme Court for an ISO. An application can only be made if the AFP Minister has already made an application to that same Court for an ESO in relation to the offender. Subsection 105A.9A(2) provides that if the AFP Minister applies for an ISO then the Court must hold a hearing to determine whether to make the ISO.

229.            Subsection 105A.9A(3) clarifies that the Court may determine an application for an ISO by making the order or dismissing the application.

230.            Subsection 105A.9A(4) sets out the circumstances in which the Court may make an ISO, and the matters of which it must be satisfied. A court can make an ISO if the AFP Minister applies for an ISO in accordance with subsection 105A.9A(1), or if the AFP Minister applies for an IDO in accordance with subsection 105A.9(1) and the Court is not satisfied that there are reasonable grounds for considering that a CDO will be made in relation to the offender. The conditions that may be included in an ISO are the same as those that may be included in an ESO (see sections 105A.7B and 105A.7C, Item 87).

231.            The Court must be satisfied of certain things before it can make an ISO. For offenders currently serving a sentence or subject to a PSO or IPSO, the Court must be satisfied that the offender’s sentence or PSO or IPSO will end before the application for an ESO or a CDO is determined. For offenders currently subject to a control order who are eligible for an ESO under subsection 105A.3A(8), the Court must be satisfied that the period the control order is in force will end before the Court determines the application for the ESO. The Court must be satisfied that there are reasonable grounds for considering that an ESO will be made in relation to the offender. The Court must also be satisfied that there are reasonable grounds for considering that each of the conditions to be imposed by the ISO are reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the order. Consistent with the provisions for the substantive orders, subsection 105A.9A(5) makes clear that the objects of the Division are the paramount consideration in determining whether each condition is reasonably necessary, and reasonably appropriate and adapted.

232.            Subsection 105A.9A(6) provides that an ISO has the same effect as an ESO in that it imposes a range of conditions on the offender for the period that it is in force. Contravening the conditions is an offence.

233.            Subsections 105A.9A(7) and (8) provide that the Court must specify the length of an ISO, up to a maximum period of 28 days. Successive ISOs may be made against the offender, but the total period of ISOs must not exceed three months unless the Court is satisfied that exceptional circumstances apply. The ISO must specify that the Court is satisfied of the relevant thresholds for making an ISO, and must include details about the offender and the conditions to be imposed by the ISO.

Subdivision CB - varying an ESO or ISO

234.            Subdivision CB sets out the process for applying for and making a variation to an ESO or ISO.

Section 105A.9B - application for variations of ESOs and ISOs

235.            Subsection 105A.9B(1) provides that the AFP Minister, the offender or a legal representative of either party may apply to a Supreme Court to vary an ESO or ISO by varying or removing one or more conditions in the order or by adding one or more conditions. Subsection 105A.9B(2) provides that the application must be made to the Supreme Court of the State or Territory where the offender resides, and the note clarifies that this includes a place where an offender temporarily resides.

236.            Subsection 105A.9B(3) provides that an application for a variation must include a copy of the conditions that are proposed to be added, varied or removed. If the AFP Minister or a legal representative of the AFP Minister applies for the order then the application must also include an explanation of why each condition that is sought to be added or varied should be added or varied, material relating to why such an addition or variation should not occur, and the outcomes and particulars of all previous applications for variation (whether made by the AFP Minister or the offender). In addition, if the AFP Minister obtained a report under section 105A.18D (see Item 134) for the purposes of determining whether to apply for the variation, the AFP Minister must include a copy of that report. The note to subsection 105A.9B(1) refers to section 105A.14A, which provides that the AFP Minister or their legal representative must give a copy of the application for variation to the offender.

237.            Subsection 105A.9B(3) provides that if the offender or a legal representative of the offender apply for the order then the application must include the outcomes and particulars of all previous applications for variation made by the offender under section 105A.9B. Subsection 105A.9B(4) provides that the offender may include an explanation as to why each condition that is sought to be varied or removed should be varied or removed, and must ensure a copy of the application is served on the AFP Minister within two business days of the application being made. The different obligations on the AFP Minister and the offender reflect the different resources at their disposal in putting together an application for a variation, and the fact that the AFP Minister is under an obligation to satisfy the Court that the conditions to be included in an order are reasonably necessary, and reasonably appropriate and adapted for the protective purpose of the order (see subsection 105A.9B(3)).

238.            Subsection 105A.9B(5) provides that the AFP Minister, AFP members, the offender or representatives of the offender may adduce additional evidence or make additional submissions in relation to an application to vary an ESO or ISO. Subsection 105A.9B(6) makes clear that subsection (5) does not otherwise limit the power of the Court to manage proceedings to vary an order.

Section 105A.9C - varying an ESO or ISO other than by consent

239.            Paragraph 105A.9C(1)(a) provides that if an application is made to vary an order by adding or varying conditions, then the Court may vary the order if satisfied on the balance of probabilities that each of the conditions being added or varied is reasonably necessary, and reasonably appropriate and adapted for the protective purpose of the order. Paragraph 105A.9C(1)(b) provides that if an application is made to vary an order by removing conditions, then the Court may vary the order if not satisfied on the balance of probabilities that each condition being removed is reasonably necessary, and reasonably appropriate and adapted for the protective purpose of the order. The object of the Division (the protection of the community from serious Part 5.3 offences) is the paramount consideration in determining whether a condition is reasonably necessary, and reasonably appropriate and adapted. Subsection 105A.9C(3) clarifies that the AFP Minister bears the onus of satisfying the Court as to whether the conditions are reasonably necessary, and reasonably appropriate and adapted.

240.            Subsections 105A.9C(4), (5) and (6) provide for the Court to appoint one or more relevant experts for the purpose of proceedings relating to an application for variation. If the Court appoints an expert, subsections 105A.6(4)-(7), which provide for the role of a relevant expert (to conduct and report on an assessment), the offender’s attendance at the assessment and the use of information from the assessment, apply in relation to the proceedings. The AFP Minister or the offender may nominate one or more experts to be appointed by the Court, and are able to call another relevant expert as a witness in the proceedings. For example, an application may be made to vary an ESO to reflect a change in the mobile telephone number of the offender subject to the order.

Section 105A.9D - varying an ESO or ISO by consent

241.            Section 105A.9D provides for applications to vary an ESO or ISO where there is consent between the parties. Subsections 105A.9D(1) and (2) provide that the AFP Minister and the offender, or the legal representative of either party, may apply to a Supreme Court in the State or Territory that the offender resides to vary an ESO or ISO by varying or removing a condition. The Court may vary the order if satisfied that the other party has given written consent to the variation sought by the applicant, the variation does not involve adding conditions to the ESO or ISO and the variation is appropriate in the circumstances (subsection 105A.9D(3)).

242.            This is similar to the process for varying a control order by consent, as set out in section 104.11A. It provides for a more streamlined process where the parties are in agreement and conditions are not being added to the order, while maintaining the Court’s role in setting the conditions to be imposed by an ESO or ISO.

Section 105A.9E - Terms of a varied ESO or ISO

243.            Section 105A.9E clarifies the terms of an ESO or ISO that has been varied, including commencement of variations. If a court varies an order following an application under section 105A.9C or an application for variation by consent under section 105A.9D, or following a review of an ESO under section 105A.12A, then the varied order must specify the variations that are to be made to the conditions in the ESO or ISO and state that the offender’s lawyer may request a copy of the order (paragraphs 105A.9E(b) and (d)).

244.            Paragraph 105A.9E(c) provides that the order must also state the period during which the order as varied is in force. A court may provide that a varied ESO or ISO is to be in force for the same period that the order was originally intended to be in force - meaning the variation would have effect for the full length of the ESO or ISO. However, the Court also has the flexibility to temporarily vary an order, by stating that a particular condition that is added, varied or removed is only to be added, varied or removed for a specified period of time, for example a one month period. This gives the Court the flexibility to set conditions that respond to changing circumstances, for example by allowing the offender to reside at a different address for six weeks while repairs are carried out at their ordinary place of residence.

245.            The order must state that the Court is satisfied of the preconditions for making a variation (paragraph 105A.9E(a)), as specified in subsection 105A.9C(1) or 105A.9D(3) for applications to vary including by consent, or as specified in subsection 105A.12A(1), (3) or (4) (as required) for variations following review of an ESO.

Item 96 - Subdivision D of Division 105A of the Criminal Code (heading)

246.            Item 96 amends the heading for Subdivision D to replace the reference to a CDO with a reference to a PSO, because this subdivision now deals with reviews of both CDOs and ESOs.

Item 97 - Section 105A.10 of the Criminal Code (heading)

247.            Item 97 amends the heading for section 105A.10 to replace the reference to a CDO with a reference to a PSO, because this section now covers periodic review of both CDOs and ESOs.

Item 98 - Before subsection 105A.10(1A) of the Criminal Code

248.            Item 98 inserts a heading before subsection 105A.10(1A) to improve the readability of the legislation, consistent with current drafting practices.

Item 99 - Subsection 105A.10(1A) of the Criminal Code

249.            Item 99 amends subsection 105A.10(1A) to replace the reference to a CDO with a reference to a PSO. This means that the AFP Minister or a legal representative of the AFP Minister must apply to the Supreme Court for annual review of both a CDO and an ESO.

Items 100 and 202 - Subsection 105A.10(1A) of the Criminal Code

250.            Item 100 amends the existing note to subsection 105A.10(1A) to provide that it is now note 1. This is because Item 101 inserts a further note at the end of subsection 105A.10(1A), referring to section 105A.14A which requires a copy of an application for periodic review by the AFP Minister to be given to the offender.

Item 102 - Subsection 105A.10(1B) of the Criminal Code

251.            Item 102 repeals subsection 105A.10(1B) and replaces it with new subsections (1B) and (1C), and inserts a heading before section 105A.10(1) to improve readability. Subsection 105A.10(1B) provides that the AFP Minister or a legal representative, must apply for review of a CDO or ESO within 12 months of the order commencing to be in force, or 12 months after the order was most recently reviewed. However, if at the time an application for review would otherwise be due the order is suspended under section 105A.18C because the offender is detained in custody, then the application for review does not need to be made at that time, as the offender would not be required to comply with the terms of the ESO or CDO at that time. Instead, the AFP Minister must apply for review on or before the day the offender’s detention ends. This ensures that an application for review of the order will be made before the offender is again required to comply with the conditions of an ESO, or continues to be detained in custody pursuant to a CDO. Subsection 105A.10(1C) makes clear that the AFP Minister does not need to apply for an annual review if an application for a new PSO in relation to the offender has been made and has not been withdrawn. This was dealt with in subsection 105A.10(2), which is being repealed by Item 104.

Item 103 - Subsection 105A.10(1) of the Criminal Code (note)

252.            Item 103 amends the note at subsection 105A.10(1) to replace the reference to a CDO with a reference to a PSO. The note refers to section 105A.12, which sets out the process for reviewing a PSO.

Item 104 - Subsection 105A.10(2) and (3) of the Criminal Code

253.            Item 104 repeals subsections 105A.10(2) and (3) and replaces them with new subsection (3), and inserts a heading before subsection 105A.10(4) to improve readability. Subsection 105A.10(3) provides that the AFP Minister must apply for the annual review in the Supreme Court of the State or Territory in which the offender is residing. For a CDO, that means the State or Territory in which the prison in which the offender is being detained is located. For an ESO, that means the State or Territory in which the offender resides. The note refers to the definition of ‘reside’ in section 100.1, which provides that it includes reside temporarily.

Item 105 - Section 105A.11 of the Criminal Code (heading)

254.            Item 105 amends the heading for section 105A.11 to replace the reference to a CDO with a reference to a PSO, because this section now covers review of both CDOs and ESOs on application.

Item 106 - Subsection 105A.11(1) of the Criminal Code

255.            Item 106 repeals and replaces subsection 105A.11(1) and inserts subsection 105A.11(1A). Subsection 105A.11(1) provides that the AFP Minister and the offender, or the legal representative of either party, may apply to a Supreme Court in the State or Territory that the offender resides for review of a CDO or ESO. Note 1 refers to section 105A.12, which sets out the process for reviewing a PSO. Note 2 refers to section 105A.14A, which requires a copy of an application for review by the AFP Minister to be given to the offender.

256.            Subsection 105A.11(1A) provides that an application by or on behalf of the AFP Minister must include any report that was obtained under section 105A.18D for the purpose of determining whether an application for a review should be made.

Item 107 - Subsection 105A.11(4) of the Criminal Code

257.            Item 107 repeals and replaces subsection 105A.11(4), which provides that the application for review must be made in the Supreme Court of the State or Territory in which the offender is residing. For a CDO, that means the State or Territory in which the prison in which the offender is being detained is located. For an ESO, that means the State or Territory in which the offender resides. The note refers to the definition of ‘reside’ in section 100.1, which provides that it includes reside temporarily.

Item 108 - Section 105A.12 of the Criminal Code (heading)

258.            Item 108 amends the heading for section 105A.12 to replace the reference to a CDO with a reference to a PSO, because this section now sets out the process for reviewing both CDOs and ESOs.

Item 109 - Subsection 105A.12(1) of the Criminal Code

259.            Item 109 amends subsection 105A.12(1) to replace the reference to a CDO with a reference to a PSO. This means that section 105A.12 applies if a court is reviewing either a CDO or ESO under section 105A.10 or 105A.11.

Item 110 - Subsections 105A.12(4) and (5) of the Criminal Code

260.            Item 110 repeals and replaces subsections 105A.12(4) and (5) and inserts subsection 105A.12(5AA).

261.            Subsection 105A.12(4) provides that a court reviewing an order may affirm the order (including by affirming the order with variations made under section 105A.12A) if after having regard to the matters in section 105A.6B, the Court is satisfied of the matters set out in paragraph 105A.12(4)(a) or 105A.12(4)(b). To affirm a CDO on review, the Court must be satisfied that it could have made the CDO under section 105A.7, meaning the Court must be satisfied the preconditions for making a CDO have been met. To affirm an ESO on review, the Court must be satisfied that it could have made an ESO under section 105A.7A, or could have made an ESO disregarding paragraph 105A.7A(1)(c), meaning the Court must be satisfied the pre-conditions for making an ESO have been met without considering whether the conditions are reasonably necessary, and reasonably appropriate and adapted. This is because section 105A.12A (Item 114) sets out the process for varying conditions if the Court is satisfied that an ESO should be affirmed but is not satisfied as to each individual condition. The note refers to subsection 105A.6B(3) and section 105A.13, which provide that the rules of evidence and procedure for civil matters apply when a court has regard to the relevant matters in accordance with section 105A.6B.

262.            If a court reviewing a CDO is not satisfied of the matters referred to in paragraph 105A.12(4)(a), subsection 105A.12(5) requires a court to consider making an ESO and seek material from the AFP Minister to support that consideration, namely a copy of the proposed conditions that would be sought and an explanation of why each of the conditions should be imposed, as well as a statement of any facts relating to why any of the conditions should not be imposed if the AFP Minister is aware of any such facts. If a court does not make an ESO, then it must revoke the CDO. The note refers to subsection 105A.7A(6), which provides that a CDO is revoked if an ESO is made.

263.            If a court reviewing an ESO is not satisfied of the matters referred to in paragraph 105A.12(4)(b), subsection 105A.12(5AA) requires that it revoke the order.

Item 111 - Subsection 105A.12(6) of the Criminal Code

264.            Item 111 amends subsection 105A.12(6) to replace the reference to subsection (4) with a reference to section 105A.7 or 105A.7A. This means the AFP Minister bears the onus of satisfying the Court that the preconditions for making a CDO or ESO under section 105A.7 or 105A.7A have been met.

Item 112 - Subsection 105A.12(6A) of the Criminal Code

265.            Item 112 amends subsection 105A.12(6A), which requires the AFP Minister to provide certain exculpatory information to the Court. Subsection 105A.12(6A) requires the AFP Minister (or a legal representative of the AFP Minister) to provide to a court conducting a review any material, or a statement of any facts, the AFP Minister is aware of that could reasonably be regarded as supporting a finding that the order should not be affirmed, or should not be affirmed in the terms in which it is made. If a court is considering making an ESO under subsection 105A.12(5) after reviewing a CDO, then the AFP Minister must provide any information or facts that support a finding that an ESO should not be made.

Item 113 - Subsection 105A.12(7) of the Criminal Code

266.            Item 113 repeals subsection 105A.12(7), as varying an order after review is now dealt with in section 105A.12A.

Item 114 - At the end of Subdivision D of Division 105A of the Criminal Code

267.            Item 114 inserts section 105A.12A, which provides for varying PSOs after review. Following a review of a PSO, if the Court decides to affirm the order, but considers that the length of the order is longer than is reasonably necessary to prevent the unacceptable risk, the Court must under subsection 105A.12A(1) vary the order to shorten the period of time for which it will be in force. In varying the order, the Court must also be satisfied that the new period is reasonably necessary to prevent the unacceptable risk. Subsection 105A.12A(7) provides that the AFP Minister bears the onus of satisfying the Court of this matter.

268.            A court reviewing an ESO must under subsection 105A.12(2) vary or remove a condition imposed by an ESO if the Court affirms the order but is not satisfied that the condition is reasonably, and reasonably appropriate and adapted, for the protective purpose of the order. Subsection 105A.12A(3) clarifies that the Court must be satisfied that a condition varied under subsection (2) is reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the order. Subsection 105A.12A(6) provides that the AFP Minister bears the onus of satisfying the Court of this matter.

269.            A court reviewing an ESO may add conditions to an ESO after the review. Subsection 105A.12A(4) provides that a court may add one or more conditions to an ESO if satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the order. Subsection 105A.12A(6) provides that the AFP Minister bears the onus of satisfying the Court of this matter.

270.            Subsection 105A.12A(5) provides that the object of the Division is the paramount consideration in determining whether a condition that is to be varied or added to an ESO is reasonably necessary, and reasonably appropriate and adapted.

Item 115 - Subdivision E of Division 105A of the Criminal Code

271.            Item 115 amends the heading for Subdivision E to replace the reference to CDOs with a reference to PSOs, as Subdivision E now includes provisions relating to both CDO and ESO proceedings.

Item 116 - Section 105A.13 of the Criminal Code (heading)

272.            Item 116 amends the heading for section 105A.13 to replace the reference to CDOs with a reference to PSOs, as section 105A.13 now sets out the rules of civil evidence and procedure that apply to both CDO and ESO proceedings.

Item 117 - Subsection 105A.13(1) of the Criminal Code

273.            Item 117 amends subsection 105A.13(1) to replace the reference to CDOs with a reference to PSOs, so subsection 13(1) provides that the rules of evidence and procedure for civil matters apply to both CDO and ESO proceedings.

Item 118 - Paragraph 105A.13(2)(a) of the Criminal Code

274.            Item 118 amends paragraph 105A.13(2)(a), which provides that despite anything to the contrary in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of the offender’s level of compliance with any conditions to which they have been subject while released on parole for any offence, or while subject to an ESO, ISO or control order.

Item 119 - Section 105A.14 of the Criminal Code

275.            Item 119 amends section 105A.14 to replace the reference to CDOs with a reference to PSOs, so that section 105A.14 clarifies who may adduce evidence and make submissions in both CDO and ESO proceedings.

Item 120 - After section 105A.14 of the Criminal Code

276.            Item 120 inserts new sections 105A.14A, 105A.14B, 105A.14C and 105A.14D. New section 105A.14A sets out the requirements for providing offenders and their legal representatives a copy of applications and materials where the AFP Minister or his or her legal representative applies to a court for a PSO or IPSO, a variation of an ESO or ISO, or a review of a PSO. This section is intended to have the same effect as the requirement that was previously included in subsection 105A.5(4) in relation to giving a copy of an application to an offender.

277.            New sections 105A.14B-14D outline the information protection mechanisms available to exclude sensitive information from applications or materials where the information is national security information, subject to a claim of public interest immunity (PII) or terrorism material.

Section 105A.14A

278.            Section 105A.14A sets out the requirements for providing a copy of an application and materials to the terrorist offender and their legal representative. It applies where the AFP Minister or his or her legal representative (the applicant) applies to a court for a PSO or IPSO, a variation of an ESO or ISO, or a review of a PSO (subsection 105A.14A(1)). The requirements in subsections 105A.14A(2)-(4) are subject to the information protections outlined in new sections 105A.14B, 105A.14C and 105A.14D. This ensures that sensitive information contained within applications and materials are appropriately protected.

279.            Subsection 105A.14A(2) provides that if the applicant applies to a court for a PSO or IPSO, a variation of an ESO or ISO, or a review of a PSO, the applicant must, within two business days after the application is made, personally give a copy of the application to the offender and their legal representative (subsection 105A.14A(2)), (subject to sections 105A.14B, 105A.14C and 105A.14D). If an offender is in prison at the time the application or material needs to be given, the requirements under section 105A.15 would apply. Providing a copy of the application to the offender and their legal representative within these timeframes ensures the offender understands the allegations that have been made against them at an early stage. This also operates in addition to any other applicable procedural rights in a civil proceeding.

280.            Subsection 105A.14A(3) provides that if the Court seeks certain materials from the applicant under paragraphs 105A.7(2)(a), 105A.9(8)(a) or 105A.12(5)(b) when considering whether to make an ESO or ISO after considering whether to make or affirm a CDO or IDO, the applicant must within two business days after the material is provided to the Court, personally provide a copy of that material to the offender and their legal representative (subject to sections 105A.14B, 105A.14C and 105A.14D). The materials captured by this subsection are a copy of the conditions that the applicant would propose be included in an ESO or ISO, an explanation as to why each of the proposed conditions should be imposed on the offender, and a statement of any facts the applicant is aware of that suggest any of the conditions sought should not be imposed on the offender (except any facts that are likely to be subject to PII). Providing these materials to the offender and their legal representative ensures that the offender is aware of the order being sought and any allegations made against the offender, and has the opportunity to respond to any assertions in those documents.

281.            Subsection 105A.14A(4) provides that if neither the offender nor their legal representative are present during proceedings in which a PSO or IPSO is made or varied, the applicant must within two business days after the order is made or varied, personally give the offender and their legal representative a copy of the order that is made, or the order as varied (subject to sections 105A.14B, 105A.14C and 105A.14D). While the offender is entitled to participate in PSO or IPSO proceedings, this provision ensures that if the offender or their legal representative does not participate they will be made aware of the contents of any orders they are made subject to.   

Section 105A.14B

282.            Section 105A.14B provides the specific circumstances in which sensitive national security information may be excluded from the copy of the application or materials that is provided to the offender or their legal representative (the recipient) under section 105A.14A. This section is intended to have the same effect as previous subsections 105A.5(5)-(8) in relation to the protection of sensitive information in applications provided to the offender.

283.             Subsection 105A.14B(1) provides that section 105A.14B applies if the applicant gives a copy of an application or material to an offender or their legal representative under subsection 105A.14A(2) or (3).

284.            Subsection 105A.14B(2) provides that the applicant is not required to include any information in the application or material provided to the offender or their legal representative if a Minister is likely to take any actions in relation to the information under the NSI Act (paragraph 105A.14B(2)(a)) or seek an order of a court preventing or limiting disclosure of the information (paragraph 105A.14B(2)(b)). Paragraph (a) refers to ‘a Minister’ because it is the Attorney-General who can issue certificates and seek orders under the NSI Act to protect sensitive information.

285.            There are a number of actions a Minister can take under the NSI Act in relation to sensitive information contained within an application or materials that is provided to the offender. For example:

·          The Attorney-General can give a certificate under Subdivision C of Division 2 of Part 3A to provide interim protection for sensitive information.

·          The Court may make protective orders requested by the Attorney-General under section 38J or 38L at the end of the certificate process that provide whether national security information subject to the certificate should be disclosed and if so, in what form, or whether to allow a witness to be called.

·          The Attorney-General or the parties to the proceeding may request the Court make orders under section 38B to give effect to an agreement between the parties and the Attorney-General to an arrangement about the disclosure, protection, storage, handling or destruction of national security information in the proceeding.

·          The Attorney-General or the parties to the proceeding may request that the Court make orders under subsection 19(3A) in relation to the disclosure, protection, storage, handling or destruction of national security information in the proceeding.

286.            The Court orders referred to in paragraph 105A.14B(2)(b) include orders that the Court may make under its inherent jurisdiction to limit disclosure of information.

287.            Subsection 105A.14B(3) provides that the applicant must (subject to subsection 105A.14B(4)) personally give the offender or their legal representative a ‘complete copy’ of the application or material if:

·          a Minister decides not to take any action under paragraph 105A.14B(2)(a) or (b) (paragraph 105A.14B(3)(a))

·          a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the NSI Act (paragraph 105A.14B(3)(b)), or

·          a court makes an order in relation to any action taken by a Minister under paragraph 105A.14B(2)(a) or (b) (paragraph 105A.14B(3)(c)).

288.            The applicant must, subject to subsection 105A.14B(4), still give a complete copy of the application or material to the offender or their legal representative if the events in paragraphs (b) and (c) above occur, because not all certificates under Subdivision C of Division 2 of Part 3A of the NSI Act, and not all court orders, necessarily preclude the offender from seeing the information which is subject to the certificate or order. For example, the Attorney-General is able to give a certificate under Subdivision C of Division 2 of Part 3A that enables disclosure of the information to the offender, but prevents broader disclosures, including to the public. Similarly, the Court may make suppression or non-publication orders which prevent inappropriate disclosure of certain information to the public (such as the name of the offender), but the information would still be provided to the offender.

289.            However, subsection 105A.14B(4) provides that the applicant’s obligation to give a ‘complete copy’ of the application or material to the offender is subject to the certificate referred to in paragraph (3)(b) (paragraph 105A.14B(4)(a)), or any order made by the Court (paragraph 105A.14B(4)(b)). This clarifies that where a certificate or order prevents disclosure of the information to the offender, the requirement to give a complete copy of the application or material to the offender does not apply.

290.            For example, the AFP Minister could file a CDO application that contains sensitive national security information, the disclosure of which is likely to prejudice national security. If the NSI Act has been invoked in the proceedings, and the AFP Minister provides notice of an expected disclosure of national security information (i.e. the sensitive information in the CDO application) under section 38D of the NSI Act, the Attorney-General could then issue a civil non-disclosure certificate under section 38F that provides whether the information may be disclosed, to whom and in what form. The NSI Act enables the Attorney-General to provide the document with the information redacted, and provide summaries of the information or statements of facts that it would be likely to prove. The Court would then be required to hold a closed hearing and make one of the orders under section 38L in respect of the information covered by the certificate. After hearing submissions, the Court could, for instance, make an order under paragraph 38L(2)(e) of the NSI Act that the sensitive information not be disclosed, but that a redacted version of the sensitive material, together with a summary of the sensitive material, be disclosed in the CDO application. New subsections 105A.14B(2), (3) and (4) will result in the offender being provided with the redacted document and summary in this example, rather than the original sensitive material. In making its final determination regarding the CDO application, the Court would have no further regard to the original sensitive material and would only consider the information contained in the redacted document and summary provided to the offender.

291.            Importantly, subsections 105A.14B(2), (3) and (4) would not allow information withheld from the offender to be used by the Court to determine whether to make or vary a PSO or ISO, or review a PSO, in relation to the offender, except where the Court specifically makes an order under subsection 38J(2), (3) or (4) of the NSI Act in relation to court-only evidence for Division 105A ESO proceedings (see Item 195). Except where court-only evidence is used, the material in the relevant application that is ultimately provided to the offender is the same material that the Court may consider when determining whether to make or vary a PSO or ISO, or review a PSO, in relation to the offender. For example, if a court orders that sensitive material be redacted or withheld and a summary or statement of facts be provided instead, then the summary or statement of facts will stand in place of the original sensitive material in the substantive proceedings. A court could then only have regard to the summary or statement of facts during the substantive proceedings, and would have no further regard to the original sensitive material. However, if the Court makes an order under subsection 38J(2), (3) or (4) of the NSI Act in relation to the sensitive information, then the Court may have regard to the original sensitive material in the substantive proceedings.

292.            Existing judicial safeguards around the use of the NSI Act will also apply to ensure that an offender always knows the case against them and will be able to contest any claims under the NSI Act in accordance with existing practice. Courts will ultimately retain the power to determine whether to make these orders, and may exercise their inherent jurisdiction to stay proceedings entirely if satisfied that withholding information would involve unacceptable injustice or unfairness.

293.            Subsection 105A.14B(5) provides that a copy of the application or material must be given under subsection 105A.14B(3) within two business days of the event referred to in subsection 105A.14B(3), and within a reasonable period before:

·          if it is a PSO application - the preliminary hearing referred to in section 105A.6 in relation to the appointment of one or more relevant experts

·          if it is an IDO application - the hearing referred to in subsection 105A.9(1A) where the Court determines whether to make an IDO

·          if it is an ISO application - the hearing referred to in subsection 105A.9A(2) where the Court determines whether to make an ISO, or

·          if it is an application to vary or review a PSO, or vary an ISO - the hearing on the application.

Section 105A.14C

294.            New section 105A.14C allows the AFP Minister or his or her legal representative (applicant) to exclude sensitive exculpatory information from an application or materials provided to the offender where it is excluded on the basis of public interest immunity (PII). Exculpatory information is information that would support a finding that an order should not be made. This section is intended to have the same effect as previous paragraphs 105A.5(9) and (10) of the Criminal Code in relation to PII.

295.            PII provides immunity from the disclosure of sensitive information that the holder of the information would otherwise be under a legal obligation to provide. PII is generally claimed by a Commonwealth, State or Territory government or agency to withhold information on a number of grounds, such as prejudice to national security, to protect the identity of an informant, or prejudice to Australia’s international relations. Importantly, the ultimate decision-maker when determining whether a PII claim should be upheld is the Court. In making its decision, the Court will balance the public interest in protecting sensitive information whose disclosure may, for instance, prejudice Australia’s national security, with the public interest in ensuring that a party receives a fair hearing by being provided with information that is relevant to the proceedings.

296.            When the applicant gives a copy of a PSO application to an offender, the application must include any report or document that the applicant intends to rely upon (inculpatory information) as well as all material or facts of which the AFP Minister is aware that would reasonably be regarded as supporting a finding that the order should not be made (exculpatory information) (see subsections 105A.5(2A) and (3)). The applicant is not required to include all inculpatory information in the application, as the applicant may choose either to not include sensitive inculpatory material in the application or to include it with the sensitive information redacted. However, the provisions require all exculpatory material to be included in the application.

297.            Subsection 105A.14B(1) provides that section 105A.14C applies if the applicant gives a copy of an application or material to an offender or their legal representative under subsection 105A.14A(2) or (3), and exculpatory information is excluded from the application or material on the basis of PII.

298.            Where this occurs, subsection 105A.14C(2) requires the applicant to give written notice to the offender or their legal representative personally stating that the information has been excluded from the application or material on the basis of PII. The notice must be given at the same time a copy of the application or material (with the sensitive material excluded) is given to the offender or their legal representative. This is an important safeguard, as it ensures the offender has the opportunity to contest the exclusion of the information from the application or materials, and to seek to access that information, for example through a subpoena. This process is consistent with the way that PII claims would be made in other proceedings, whether criminal or civil. The Court will ultimately determine whether it should uphold the PII claim. In doing so, the Court will consider the public interest in ensuring the offender receives a fair hearing and the public interest in ensuring there is no prejudice to national security. Where the PII claim is upheld, the information that is subject of the PII claim will not form part of the application or material, or be able to be relied upon in the proceedings.

299.            Subsection 105A.14C(3) is an avoidance of doubt provision to make clear that nothing in section 105A.14C will oblige an offender, who has sought to access information over which PII was claimed, to satisfy a court that a PII claim should not be upheld.

300.            The legislative note following subsection 105A.14C(3) further explains the normal operation of PII. To claim PII, a person claiming the immunity (for example, the AFP Minister or a relevant operational agency) must make and substantiate the claim, and satisfy the Court that the claim should be upheld. A person claiming the immunity would have to satisfy the Court that the public interest arguments in favour of withholding the sensitive material outweigh the public interest in disclosure of that material. It will ultimately be up to the Court to determine where the balance of the public interest lies between protecting that information (in full or in part) and ensuring the offender has access to the material to respond to the proceedings.

301.            Importantly, nothing in section 105A.14C precludes the Court from exercising its inherent powers to stay proceedings if the Court does not consider that the offender cannot receive a fair hearing. For example, the Court may uphold a PII claim to withhold sensitive information on the basis that the public interest in not prejudicing national security outweighs the public interest in disclosing that material to the offender for the purposes of ensuring a fair hearing. However, the Court may decide to stay the relevant proceeding on the basis that it would not be in the interests of justice to proceed with a hearing in which the offender had been denied the information.

302.            Furthermore, all information that the AFP Minister relies on in the relevant application must be provided to the offender to ensure their right to a fair hearing. Where the Court determines that information should be withheld from the offender on the basis of PII, that information will not form part of the proceedings. As such, neither the AFP Minister nor the Court may rely on information that is not provided to the offender.

Section 105A.14D

303.            New section 105A.14D allows the AFP Minister to apply to the Supreme Court for an order in relation to the manner in which ‘terrorism material’ in a PSO or IPSO application is to be provided to the offender as defined in subsection 105A.14D(1). The purpose of this section is to address the need for managing an offender’s access to extremist material which may form part of an PSO or IPSO application in relation to that offender, particularly where the offender is in a prison setting. Extremist material may form part of the evidentiary material within a PSO or IPSO application. Given that an application must be provided to the offender, having access to extremist material within a prison setting may increase the risk of other inmates being exposed to the material and may potentially inhibit efforts to de-radicalise, rehabilitate or disengage from violent extremist ideologies the offender or other offenders.

304.            Subsection 105A.14D(1) provides that section 105A.14D applies if the applicant gives a copy of an application or material to an offender or their legal representative under subsection 105A.14A(2) or (3), and the application or material contains terrorism material. Paragraph 105A.14D(1)(b) defines terrorism material as material that:

·          advocates support for engaging in any terrorist acts or violent extremism

·          relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism, or

·          advocates joining or associating with a terrorist organisation.

305.            This mirrors the definition of ‘terrorism evidence’ in the Criminal Procedure Act 1986 (NSW) .

306.            Subsection 105A.14D(2) provides that where the application or material contains terrorism material, the AFP Minister (applicant) may apply to the Supreme Court for an order in relation to the manner in which the terrorism material is to be dealt with.

307.            Subsection 105A.14D(3) sets out a non-exhaustive list of how the Court could order that the terrorism material be handled, including that the material be provided to the offender’s legal representative, or that it be available for inspection by the offender at specified premises (rather than in custody).

Item 121 - Section 105A.14 of the Criminal Code

308.            Item 85 repeals and replaces the current heading for section 105A.15 to more accurately reflect the contents of the section.

Item 122 - Paragraph 105A.15A(1)(a) of the Criminal Code

309.            Item 122 repeals and replaces current paragraph 105A.15A(1)(a) to clarify that section 105A.15A applies if an application is made to the Court for a CDO or review of the CDO in relation to an offender. Section 105A.15A allows the Court to make an order where the offender, due to circumstances beyond an offender’s control, is unable to engage a legal representative in relation to the CDO proceeding. The Court may make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender’s legal representation for the proceeding.

Item 123 - Section 105A.16 of the Criminal Code

310.            Item 123 repeals and replaces all references to CDOs in section 105A.16 with PSOs, so that reasons must be provided for all CDO and ESO related decisions.

Item 124 - At the end of section 105A.16 of the Criminal Code

311.            Item 124 inserts a note at the end of section 105A.16 (which requires a court to provide reasons for decisions) to refer to subsection 105A.2(2) for when a court makes a PSO decision (see Item 56 for new subsection 105A.2(2)).

Item 125 - Paragraphs 105A.17(1)(a) and (2)(a) of the Criminal Code

312.            Item 125 repeals and replaces references to CDOs in paragraphs 105A.17(1)(a) and (2)(a) with PSOs, as a result of ESOs being included in Division 105A. This means section 105A.17 provides for appeals of both CDO and ESO related decisions.

Item 126 - Paragraph 105A.17(2)(b) of the Criminal Code

313.            Item 126 repeals paragraph 105A.17(2)(b), which currently provides that when rehearing a PSO decision on appeal, a court of appeal may draw inferences of fact which are not inconsistent with the findings of the Supreme Court. This ensures that it is open to the Court of appeal to draw inferences of fact which may be inconsistent with the findings of the Supreme Court, particularly where new evidence has become available to the Court of appeal. This also ensures that the procedure for rehearing appeals under this section are consistent with the approach in similar State and Territory legislation.

Item 127 - Subsection 105A.18(1) of the Criminal Code

314.            Item 127 repeals and replaces the first occurring reference to a CDO in subsection 105A.18(1) with PSO, as a result of ESOs being included in Division 105A. Section 105A.18 deals with the consequences of release of a terrorist offender.

Item 128 - Subparagraphs 105A.18(1)(a)(i), (iii) and (v) of the Criminal Code

315.            Item 128 repeals and replaces the reference to a CDO in subparagraphs 105A.18(1)(a)(i), (iii) and (v) with a reference to a PSO, as a result of ESOs and ISOs being included in Division 105A. This means section 105A.18 applies to all PSO and IPSO proceedings.

Item 129 - Paragraph 105A.18(1)(b) of the Criminal Code

316.            Item 129 repeals and replaces the current reference to ‘the offender is released from custody because’ in paragraph 105A.18(1)(b) with ‘one of the following events occurs’ to capture the circumstances outlined in new subparagraphs 105A.18(1)(b)(i), (ii) and (iia) (see Item 130).

Item 130 - Subparagraphs 105A.18(1)(b)(i) to (ii) of the Criminal Code

317.            Item 130 repeals current subparagraphs 105A.18(b)(i), (ia) and (ii) and replaces them with new subparagraphs 105A.18(1)(b)(i), (ii) and (iia). The purpose of section 105A.18 is to preserve the eligibility of an offender for a PSO in specific circumstances where an offender is released from custody before a PSO proceeding or an appeal (including an appeal against a decision under section 105A.15A to stay proceedings) has been determined, or where the period for which an existing order is in force ends.

318.            Subparagraphs 105A.18(1)(b)(i), (ii) and (iia) outline circumstances that are to occur in order for section 105A.18 to apply to a PSO proceeding. These circumstances include where, before a PSO application or appeal is determined:

·          the offender’s sentence of imprisonment for an offence (such as an offence referred to in paragraph 105A.3(1)(a) or an offence relating to an ESO or ISO under section 105A.18A or subsection 105A.18B(1)) ends

·          a PSO or IPSO in relation to the offender ceases to be in force, or

·          an ICO referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) in relation to the offender ceases to be in force.   

Item 131 - Subparagraphs 105A.18(1)(b)(iii) of the Criminal Code

319.            Item 131 repeals and replaces the reference to a CDO in subparagraph 105A.18(1)(b)(iii) with a PSO, as a result of ESOs being included in Division 105A.

Item 132 - Subsection 105A.18(2) of the Criminal Code

320.            Item 132 repeals and replaces subsection 105A.18(2). The purpose of subsection 105A.18(2) is to address the situation in which the offender is released from custody before a PSO proceeding or an appeal, including an appeal against a decision under section 105A.15A to stay proceedings, has been determined because, for example, the offender’s custodial sentence has expired, or the relevant order which they were subject to has ceased to be in force. In the circumstances prescribed by subsection 105A.18(1), subsection 105A.18(2) enables the Court to subject the offender to a PSO, despite the offender not being in custody at the time the order is made.

Item 133 - After Subdivision E of Division 105A of the Criminal Code

321.            Item 133 inserts new Subdivision EA, which contains offences relating to ESOs and ISOs in new sections 105A.18A and 105A.18B. These new offences mirror the existing offences relating to control orders in sections 104.27 and 104.27A of the Criminal Code .

Section 105A.18A

322.            Section 105A.18A contains two separate offences for contravening ESOs and ISOs where the conduct involved constitutes a breach of a condition or a direction specified in relation to an exemption condition.

323.            Subsection 105A.18A(1) provides that a person commits an offence if an ESO or ISO is in force in relation to that person, the ESO or ISO is not suspended under new section 105A.18C (see Item 134), and the person engages in conduct that contravenes a condition under the order. For example, an ESO may contain a condition which provides that the offender must not communicate with a particular individual. If the offender communicates with that individual, then it would be a breach of the ESO and constitute an offence under subsection 105A.18A(1) provided that the order was in force and not suspended at the time the conduct constituting the breach occurred. Similarly, an offender who does not comply with a reasonable direction that is provided by a specified authority in relation to a specific conditions imposed under the order may commit an offence against subsection 105A.18(1) (see Item 87, subsection 105A.7B(2A). For example, a court could impose a condition that an offender not associate with any individuals determined by an AFP Superintendent. If the AFP Superintendent determined that the offender not associate with Person A, then associating with Person A would constitute a breach of the order and an offence under subsection 105A.18A(1) provided that the order was in force and not suspended at the time the conduct constituting the breach occurred.

324.            Paragraph 105A.18A(1)(d) provides that if the condition is an exemption condition (see Item 87, section 105A.7C for exemption conditions), a person will commit an offence against subsection 105A.18A(1) if there is no exemption in force at the time the person engaged in the conduct which constituted a breach. For example, an ESO may contain a condition that prohibits an offender from going to particular location, such as the Sydney Central Business District (CBD). If the Court had made that an exemption condition, then the offender could apply to the person or persons specified in the order for an exemption to attend the Sydney CBD at a particular time for a particular reason, such as a medical appointment. However, if the offender did not apply to the person specified in the order for an exemption to attend the Sydney CBD, but the offender visited that area, this would constitute an offence under subsection 105A.18A(1).

325.            Subsection 105A.18A(2) provides that a person commits an offence if he or she engages in conduct that contravenes a direction that is specified in relation to an exemption condition under an ESO or ISO that is in force (and not suspended under new section 105A.18C). For example, an ESO may contain a condition that prohibits an offender from contacting a close family member because that close family member is of national security concern. If the Court had made that an exemption condition, then the offender could apply to the person or persons specified in the order for an exemption to that condition. The offender could then apply for an exemption to contact that family member for a specific reason, such as to organise the funeral of another family member. If the person or class of persons specified in the order granted that exemption, but directed that the contact could only occur via use of the offender’s nominated phone, and the offender then met with them in person, then the offender would have engaged in conduct which contravened the direction. That would constitute an offence under subsection 105A.18A(2).

326.            Offences under subsections 105A.18A(1) and (2) carry a maximum penalty of imprisonment for five years.

327.            If an offender is convicted of an offence under section 105A.18A and is sentenced to a term of imprisonment, the offender would be eligible for a CDO or an ESO at the end of their term of imprisonment for that offence provided certain requirements are met (see Item 59, section 105A.3A). As such, the Court sentencing the offender for an offence under this section may be required to warn the person about CDOs and ESOs under certain circumstances (see Item 149, section 105A.23).

Section 105A.18B

328.            Section 105A.18B contains two separate offences for interfering with a monitoring device or any related monitoring equipment by an offender, and interfering with an offender’s monitoring device or any related monitoring equipment by a third party.

329.            Subsection 105A.18B(1) provides that a person will commit an offence if he or she is required to wear a monitoring device under an ESO or ISO that is not suspended under section 105A.18C, and the person engages in conduct (fault element is intention - see section 5.6 of the Criminal Code ) that results in interference with, or disruption of loss of, a function of the monitoring device or any related monitoring equipment (fault element is recklessness). ‘Recklessness’ is defined in section 5.4 with respect to a circumstances if he or she is aware of a substantial risk that the circumstance exists or will exist, and having regard to the circumstances known to the person it is unjustifiable to take the risk. The term ‘engage in conduct’ is also defined in subsection 4.1(2) of the Criminal Code and includes acts and omissions. Conduct may range from a subject failing to charge a monitoring device where there has been adequate warning that the device requires charging, to attempting to disable the monitoring device by administering blunt force.

330.            If an offender is convicted of an offence under subsection 105A.18B(1) and is sentenced to a term of imprisonment, the offender would be eligible for a CDO or an ESO at the end of their term of imprisonment for that offence provided certain requirements are met (see Item 59, section 105A.3A). As such, the Court sentencing the offender for an offence under this section may be required to warn the person about CDOs and ESOs under certain circumstances (see Item 149, section 105A.23).

331.            Subsection 105A.18B(2) provides that a person (the perpetrator) commits an offence if the perpetrator knows that, or is reckless as to whether an ESO or ISO is in force in relation another person (the offender), the order is not suspended under section 105A.18C, the perpetrator knows that, or is reckless as to whether, the order requires the offender to wear a monitoring device, and the perpetrator engages in conduct that results in interference with, or disruption of loss of, a function of the monitoring device or any related monitoring equipment. ‘Recklessness’ is defined in section 5.4 of the Criminal Code .

332.            Subsection 105A.18B(3) provides that strict liability (as defined in section 6.1 of the Criminal Code ) applies in relation to paragraph (2)(b). Strict liability removes a fault element that would otherwise attach to a physical element. Consequently, where strict liability applies to an element of an offence, that element will be made out if it is shown that the physical elements were engaged in, or existed. This means that the prosecution would not be required to prove the fault element for the conduct in paragraph (2)(b).

333.            The use of strict liability in relation to paragraph (2)(b) is appropriate as the offence under subsection 105A.18B(2) is intended to capture conduct that involves third party interference with a monitoring device or any related monitoring requirement. The perpetrator’s recklessness or knowledge as to whether the ESO or ISO is in force, or whether the order requires the offender to wear a monitoring device, are the primary considerations, rather than the offender’s state of mind as to whether the ESO or ISO is suspended. It would be immaterial to the conduct the offence seeks to capture whether the perpetrator was reckless as to whether the ESO or ISO was suspended. Strict liability also allows a defence of honest and reasonable mistake of fact to be raised (section 9.2 of the Criminal Code ).

334.            Offences under subsections 105A.18B(1) and (2) carry a maximum penalty of imprisonment for five years.

Item 134 - Before section 105A.19 of the Criminal Code

335.            Item 134 inserts new sections 105A.18C and 105A.18D.

Section 105A.18C

Effect of suspension of PSOs and IPSOs

336.            Section 105A.18C deals with the effect of detention on PSOs and IPSOs. This is intended to cover situations where, for example, an offender who is subject to a PSO is convicted of and serving a sentence for another offence while the order is in force, or where an offender is charged with another offence and held on remand for a period of time while the order is in force.

337.            Subsection 105A.18C(1) provides that a CDO or IDO in relation to an offender would be suspended during the period that the offender is detained in custody, other than as a result of CDO or IDO. Subsection 105A.18C(2) similarly provides that an ESO or ISO in relation to an offender would be suspended during the period that the offender is detained in custody. Being ‘detained in custody’ includes being detained on remand, under arrest or while serving a custodial sentence (see Item 2 for the definition of ‘detained in custody’). Subsection 105A.18C(3) provides that the PSO or IPSO would continue to be in force during the period the order is suspended. This means that an offender who is subject to the order whilst being detained in custody would remain eligible for a further order under new section 105A.3A (see Item 59).

338.            Subsection 105A.18C(4) provides that an offender is not required to comply with any condition in an ESO or ISO while the ESO or ISO is suspended. Complying with the conditions imposed by an ESO may be difficult, if not impossible, for an offender who is detained in custody. It may also be difficult for law enforcement agencies to monitor an offender’s compliance with those conditions whilst the offender is detained. The suspension of the PSO or IPSO (and any conditions under an ESO or ISO) would end as soon as the period of detention ends.

339.            Any period of suspension will not affect the expiry date of the PSO. For example, if an offender was subject to a two year ESO which expired on 1 June 2021, but spent 4 months in custody on remand from July-October 2019, and then three months in prison serving a sentence from November 2020-January 2021, the order would be suspended for that seven month period but would nonetheless continue to expire on 1 June 2021.

340.            If an offender is subject to a period of detention which overlaps with the expiry date for the PSO or IPSO, the order would expire as normal and the AFP Minister could apply for a further PSO, which would come into effect after the offender’s period of detention (noting new subsection 105A.3A(3) would preserve the offender’s eligibility for a PSO, and new subsection 105A.3A(6) would preserve the offender’s eligibility for an ESO). If the PSO does not expire during the offender’s period of detention, the requirements of the order would be enlivened upon their release from custody (or in the case of a CDO, at the end of their custodial sentence or period on remand).

Effect of suspension on the review requirements for PSOs

341.            The periodic review requirements under section 105A.10 may be affected if the PSO is due to be reviewed while it is suspended under section 105A.18C (see Item 134).

Section 105A.18D

342.            Section 105A.18D allows the AFP Minister to direct terrorist offenders to attend expert assessments for certain purposes. This supplements the existing court-appointed expert provisions in section 105A.6.

343.            Subsection 105A.18D(1) provides that the AFP Minister may direct offenders who are eligible for a PSO, or presently subject to a PSO, to be subject to an expert assessment. This provides the AFP Minister with the flexibility to obtain a more up-to-date assessment of the offender’s level of risk, both before a PSO has been applied for or while a PSO is in force (compared to court-appointed experts under section 105A.6 of the Criminal Code , which may only occur after a PSO has been applied for).

344.            Subsection 105A.18D(2) provides the AFP Minister may appoint the expert to conduct the assessment and provide a report for the purposes of determining whether to make an application for a PSO or IPSO, or an application for a review or variation of an order. As a matter of practice, the AFP Minister would appoint the expert to conduct the assessment and provide the report prior to making an application for a PSO so that the findings in the report can help inform his or her decision on whether to proceed with the application. In addition, expert reports would also be of considerable assistance in determining the types of measures that may or may not be effective in mitigating an offender’s individual risk.

345.            Subsection 105A.18D(3) provides that the expert who is appointed by the AFP Minister must conduct an assessment of the risk of the offender committing a serious Part 5.3 offence, and provide that report to the AFP Minister. The offender who is the subject of the expert assessment must receive a copy of the expert report where it is subsequently relied on in an application for an order, or review of an order (subject to any information protections that apply in respect of the application).

346.            Subsection 105A.18D(4) provides that the offender must attend the assessment, which may occur over multiple sessions. This will assist the AFP Minister to obtain a complete picture of the offender’s risk, which would then inform his or her decision as to whether or not to proceed with an application for an PSO or ISO, or review of an PSO or ISO. This also ensures that the utility of this provision is not undermined.

347.            Subsection 105A.18D(5) is about the admissibility of information provided by the offender during a relevant expert’s assessment, and mirrors the text in new subsection 105A.6(5A) (see Item 78).

348.            Subsection 105A.18D(6) provides that the AFP Minister must ensure that the effect of subsections 105A.18D(4), (5) and (8) are explained to the offender. Respectively, these subsections relate to the requirement of the offender to attend an assessment, the limits on the use of information provided at that assessment, and the use of that information by the AFP Minister in determining whether to apply for a PSO or IPSO in relation to the offender and the Court in making or varying a PSO or IPSO or in reviewing a PSO.

349.            Subsection 105A.18D(7) provides for the matters which the expert’s report may include. These matters are non-exhaustive to allow the relevant expert to consider all factors that are relevant to the offender’s circumstances.

350.            Subsection 105A.18D(8) clarifies the circumstances in which expert assessments and reports may be taken into account. Subsection 105A.18D(8) provides that an expert assessment of an offender’s risk of committing a serious Part 5.3 offence, along with the corresponding report, may be taken into account by the AFP Minister in deciding whether to apply for, vary, or review a PSO or IPSO, and the Court in making or varying a PSO or IPSO, or reviewing a PSO.

Item 135 - Subsection 105A.19(1) of the Criminal Code

351.            Item 135 amends subsection 105A.19(1) to clarify that information that is shared with the AFP Minister under section 105A.19 also includes personal information, as defined in subsection 100.1(1).

Item 136 - After subsection 105A.19(2) of the Criminal Code

352.            Item 136 inserts new subsection 105A.19(2A) after subsection 105A.19(2). The purpose of section 105A.19 is to facilitate information sharing about an offender between the AFP Minister and persons prescribed by the regulations for the purpose of Division 105A.

353.            Subsection 105A.19( 2A ) provides that despite any Commonwealth, State or Territory law, persons prescribed in the regulations may provide the information to the AFP Minister under subsection 105A.19(1). The intent of this subsection 105A.19(2A) is to avoid any doubt that third parties (such as Commonwealth, State or Territory officials) can share information with the Commonwealth, notwithstanding other laws which may limit or prohibit disclosure. This will facilitate the sharing of necessary and relevant information about an offender to ensure the AFP Minister can make informed decisions about whether to make an application for a PSO in relation to an offender, noting that State and Territory agencies (such as corrective services agencies) would be likely to hold relevant information.

Item 137 - After section 105A.19 of the Criminal Code

354.            Item 137 inserts new section 105A.19A after section 105A.19 to facilitate the sharing of information about an offender and their compliance with their electronic monitoring conditions (if any) between the AFP and third parties, provided it is authorised by an arrangement under subsection 105A.21A(1).

355.            Subsection 105A.19A(1) provides that an AFP member may disclose information (including personal information) to a person employed or engaged by a body covered by an arrangement under subsection 105A.21(1) for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to ESOs or ISOs. This is intended to ensure that information can be appropriately shared in instances where the AFP has contracted a third party (such as a State corrections agency) to undertake electronic monitoring in relation to an offender who is subject to an electronic monitoring condition.

356.            Subsection 105A.19A(2) provides that the person employed or engaged by a body covered by the arrangement under subsection 105A.21A(1) may disclose information (including personal information) to another person if the person under the arrangement reasonably believes that the disclosure is authorised by the arrangement.

357.            Subsection 105A.19A(3) provides that section 105A.19A applies despite any other law of the Commonwealth , a State or a Territory (whether written or unwritten). This purpose of this provision is make clear that State and Territory officials can share information with the Commonwealth, notwithstanding other laws which may limit or prohibit disclosure of that information.

Item 138 - Subsection 105A.21(2) of the Criminal Code

358.            Item 138 amends subsection 105A.21(2) to make a grammatical correction to the existing provision.

Item 139 - After section 105A.21 of the Criminal Code

359.            Item 139 inserts new section 105A.21A after section 105A.21, to allow for formal arrangements to be made between the AFP Commissioner and relevant third parties (for example, a State, Territory or any other body such as a State corrections agency) to authorise the sharing of information relating to ESOs or ISOs under new section 105A.19.

360.            Subsection 105A.21A(1) provides that the AFP Commissioner may make arrangements with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers relating to ESOs or ISOs.

361.            Subsection 105A.21(2) provides that for the purposes of section 105A.19A, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information). This ensures there is an appropriate flow of information between the parties to the arrangement.

362.            Subsection 105A.21(3) allows the AFP Commissioner to delegate his or her powers under subsection 105A.21(1) to another senior AFP member. This ensures that the AFP has the flexibility to enter into its own arrangements for the purposes of performing its functions or the exercise of powers relating to ESOs or ISOs.

Item 140-147 - Section 105A.22 of the Criminal Code

363.            Items 140 to 144 repeal and replace references to CDOs and IDOs in paragraphs 105A.22(2)(a)-(e) with PSOs and IPSOs, as a result of ESOs and ISOs being included in Division 105A. This ensures that annual reporting requirements under section 105A.22 apply in relation to ESOs and ISOs, as well as CDOs and IDOs.

364.            Item 145 inserts new paragraph 105A.22(3)(ea) after paragraph 105A.22(2)(e), to provide that annual reports must also include the number of applications for reviews of a CDO or ESO made by the AFP Minister or his or her legal representative, during the year. This also takes into account amendments to section 105A.11 which will allow both the AFP Minister or his or her legal representative, and the offender or his or her legal representative, to apply to a court for review of a PSO.

365.            Items 146 and 147 repeal and replace references to CDOs in paragraphs 105A.22(2)(f)-(h) with PSOs, as a result of ESOs and ISOs being included in Division 105A.  

Item 148 - Section 105A.23 of the Criminal Code (heading)

366.            Item 148 repeals and replaces the heading for section 105A.23 as a result of ESOs being included in Division 105A.

Item 149 - Subsection 105A.23(1) of the Criminal Code

367.            Item 149 repeals and replaces subsection 105A.23(1) with new subsections 105A.23(1) and (1A), to require a court sentencing a person to warn that person about PSOs in certain circumstances. Subsection 105A.23(1) specifies the circumstances in which a court sentencing a person must warn that person about PSOs. These circumstances are:

·          where the Court is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1)(a) (subparagraph 105A.23(1)(a)(i))

·          where the Court is sentencing a person who has been convicted of an offence against section 105A.18A (offence for contravening an ESO or ISO), or an offence against subsection 105A.18B(1) (offence relating to monitoring devices) if paragraph 105A.3A(4)(b) applies in relation to the person (subparagraph 105A.23(1)(a)(ii)), and

·          where the Court is sentencing a person who has been convicted of an offence against section 104.27 (offence for contravening a control order) or subsection 104.27(1) (offence relating to monitoring devices), and the CDPP informs the Court that a warning must be given (paragraph 105A.23(1)(b).

368.            The reason for requiring the CDPP to inform the Court that a warning must be given under paragraph 105A.23(1)(b) is because not all offenders who are convicted of an offence against section 104.27 or subsection 104.27(1) would be eligible for a CDO or ESO at the end of their sentence. Rather, it would only be offenders who breach a control order in the circumstances described in subsection 105A.3A(5) (i.e. in circumstances where a control order was imposed following a custodial sentence for a specified terrorism offence in paragraph 105A.3(1)(a)), and where the process for seeking a control order commences before the custodial sentence ends. As the process for seeking a control order involves an internal government decision to which the Court is not privy, it may be difficult for the Court to know whether a particular offender is eligible for a PSO. The requirement to inform the Court that a warning must be given is consistent with the prosecution’s existing common law duty to assist the Court at sentence, and to advise the Court of any relevant provisions to which the Court must have regard to when passing sentence.

Item 150 - Section 105A.25 of the Criminal Code

369.            Item 150 repeals and replaces the existing sunset provision under section 105A.25 of the Criminal Code to provide that a PSO or IPSO, cannot be applied for, affirmed or made, after 7 December 2026 (this date being 10 years from the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).

Item 151 - In the appropriate position in Division 106 of the Criminal Code

370.            Item 151 inserts new section 106.11 in the Criminal Code , which details how amendments in Part 1 of Schedule 1 will apply to orders made before or after the commencement of this provision.

371.            New subsection 106.11(1) provides that subsections 104.5(3) and 104.5(3A) and (3B), and sections 104.5A, 104.28C and 104.28D, made or inserted by Schedule 1 apply in relation to any ICO or confirmed control order, whether it is in force before or after new section 106.11 commences. This provision allows the AFP to apply to a court to add the new obligations, prohibitions and restrictions in paragraphs 104.3(d) and 104.3(da), and section 104.5A (relating to electronic monitoring) to a control order that was in force before or after this provision commences. This provision also allows for the sharing of information relating to electronic monitoring, and the making of arrangements for electronic monitoring and other functions and powers, in relation to a control order that is in force before or after new section 106.11 commences.

372.              New paragraph 106.11(2)(a) provides that section 104.28D does not affect the validity of any existing arrangement in relation to the electronic monitoring of controlees under control orders that is in force before new section 106.11 commences. New paragraph 106.11(2)(b) also provides that section 104.28D does not affect the validity of any actions taken under or for the purposes of such an agreement before new section 106.11 commences.

373.            New subsection 106.11(3) provides that the amendments to Division 105A made by Part 1 apply in relation to :

·          any person who is detained in custody on the day new section 106.11 commences

·          any person who begins a sentence of imprisonment for one of the specified terrorism offences in paragraph 105A.3(1)(a) or the offences for breach a control order or interfering with a monitoring device referred to in paragraph 105A.3A(5)(d) of the Criminal Code (whether the conviction for the offence occurred before, on or after that day), and

·          any person who is currently subject to a control order and meets the conditions in subsection 105A.3A(8) of the Criminal Code on the day new section 106.11 commences.

374.            New subsection 106.11(4) provides that, for the avoidance of doubt, the amendments of Division 105A made by Schedule 1 apply in relation to a person referred to in paragraphs 106.11(1)(a) or (c), or subparagraph 106.11(1)(b)(ii), where their sentence of imprisonment for one of the specified terrorism offences in paragraph 105A.3(1)(a) of the Criminal Code ended before the day new section 106.11 commences. This provision makes clear that a person who falls within one of the circumstances described in section 105A.3A is eligible for a PSO, even if their sentence for the specified terrorism offence ended before this section commenced.

375.            New subsection 106.11(5) provides that an application for a CDO or IDO, or an application for a review of a CDO, that was made before new section 106.11 commences but has not been finally determined at that time is taken to be an application made under Division 105A as amended by Schedule 1.This means, for example, that a court considering an application for a CDO when these provisions commence would need to consider making an ESO, if the Court was not satisfied that the threshold for a CDO had been met (see subsection 105A.7(2), Item 85).

376.            New subsection 106.11(6) provides that subsection 105A.6(5A) comes into force immediately after new section 106.11 commences, and applies in relation to assessments of offenders undertaken thereafter. This means that any answer to a question or information given, and answering a question or giving information, at an assessment that occurred after new section 106.11 commences would be covered by the revised protections in subsection 105A.6(5A). Any answers or information from an assessment that occurred before new section 106.11 commences would be covered by the previous protections.

377.            New subsection 106.11(7) provides that subsection 105A.6(9), which clarifies that assessments undertaken for a particular PSO may be used in connection with other PSO related processes, comes into force immediately after new section 106.11 commences, and applies in relation to assessments of offenders undertaken before or after that time. This provision merely clarifies the existing operation of section 105A.6.

378.            New subsection 106.11(8) provides that section 105A.7D will apply in relation to photographs taken of, and impressions of fingerprints taken from, an offender after new section 106.11 commences.

379.            New subsection 106.11(9) provides that sections 105A.14A (relating to giving copies of applications etc. to terrorist offenders) and 105A.14D (relating to excluding terrorism material from an application or material) will apply in relation to applications made after new section 106.11 commences. This includes any applications for review or variation that occur thereafter, as well as applications for new orders.

380.            New subsection 106.11(10) provides that section 105A.18D (regarding AFP Minister-directed expert assessments) applies to offenders in relation to whom a PSO could be made, or is in force, at the time, or any time after, new section 106.11 commences.

381.            New subsection 106.11(11) provides that amendments of section 105A.22 (regarding annual reporting) apply in relation to any 30 June that occurs after section 106.11 commences. This ensures that any use of the amended provisions will be covered in the next annual report.

382.            New subsection 106.11(12) provides that sentencing warnings that may be required under section 105A.23 apply in relation to any sentence imposed after new section 106.11 commences.

383.            New subsection 106.11(13) provides that amendments of the sections 105A.11, 105A.12 and 105A.12A (regarding reviews and variations of PSOs) and section 105A.18C (regarding the effect of detention on PSOs) apply in relation to any PSO in force when new section 106.11 commences, or any PSO made after that time.

Item 152 - Subsection 117.1(2) of the Criminal Code (note)

384.            Item 152 amends the note under subsection 117.1(2) in the Criminal Code (definitions for Part 5.5 of the Criminal Code Foreign incursions and recruitment) to add a reference to ESOs. This reflects the fact that section 105A.23 requires a court sentencing a person who has been convicted of an offence against Part 5.5 (except subsection 119.7(2) or (3)) to warn the person about CDOs and ESOs.



 

Part 2 - Main consequential amendments

Administrative Decisions (Judicial Review) Act 1977

Item 153 - After paragraph (dac) of Schedule 1

385.            Item 153 inserts paragraph (dad) into Schedule 1 to exempt decisions made by the AFP Minister under Division 105A of the Criminal Code as decisions to which the ADJR Act does not apply. This means that judicial review under the ADJR Act will not be available for decisions made by the AFP Minister under Division 105A.

386.            Judicial review of these decisions will remain available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.

387.            In its 2012 report Federal Judicial Review in Australia, the Administrative Review Council (ARC) outlined a number of principles that may justify an exemption from review under the ADJR Act. One such principle is where review under the ADJR Act has the potential to fragment or frustrate another legal process.

388.            Division 105A relates to decisions of the AFP Minister to: one, direct a convicted terrorist offender to attend an expert assessment; and two, apply to the Supreme Court to seek a PSO (or to vary or review a PSO). These are decisions that form part of the process leading up to the Court’s consideration of whether a PSO order should be made. Excluding ADJR Act review of these decisions is consistent with the principle that the Court hearing the substantive proceeding (in this case the PSO application) is best placed to determine any collateral matters in relation to the lawfulness of associated government activity.

389.            With regard to the Minister’s decision to apply to the Court for a PSO under Division 105A (including a decision to seek a review or variation of an order), there is no need for ADJR Act review to be available for these decisions, as an application for ADJR Act review would be made at the same time as the Court’s consideration of the Minister’s application. This would mean that ADJR Act review would interrupt the application for a PSO (or review or variation of such an order).

390.            There remains an opportunity for judicial consideration of the Minister’s decision to apply for an order, or a review or variation of an existing order, because the Court may consider any submissions made by the respondent in relation to these matters in determining the application. As such, the exemption from ADJR Act review does not present a practical or substantive limitation on a respondent’s ability to seek judicial consideration of the Minister’s decision.

391.            Similarly, it is appropriate to exempt the Minister’s decision to direct an offender to be assessed by a relevant expert (under section 105A.18D) from ADJR Act review. This avoids the risk of an application for ADJR Act review being made concurrently, in a separate court, with the application for a PSO, which could complicate or delay the Court’s consideration of the PSO application within the statutory timeframe. The ARC also identified that national security considerations are relevant in determining whether ADJR Act review of decisions should be available. The Minister may rely on national security considerations to determine whether it would be appropriate to direct an offender to attend an assessment. In this context, judicial review of these decisions is better conducted as part of the substantive proceeding on the application for a PSO.

392.            Division 105A contains a number of measures that protect the offender’s rights and interests in relation to a direction to attend an expert assessment, including:

  • The offender is not required to answer any questions at the assessment. Any answers or information given at the assessment are not admissible in evidence against the offender in any civil or criminal proceedings, other than civil proceedings under Division 104 (control orders) or Division 105A, or sentencing proceedings in relation to offences against Divisions 104 or 105A.
  • Should the offender participate, any exculpatory information produced as a consequence of the Minister’s decision to direct the offender to attend an expert assessment must be included as part of any application made under Division 105A, subject to any claim of public interest immunity in relation to that information (see paragraph 105A.5(3)(aa) and Item 69).
  • The offender (or the offender’s legal representatives) will have the opportunity to present submissions to the relevant Supreme Court on the veracity of the expert report. While the grounds on which the Minister’s decision is based would not encompass the broad grounds of review under the ADJR Act, the offender will be able to present submissions on whether the report was lawfully obtained. The Court must have regard to the report in deciding whether to make a PSO (subparagraph 105A.6B(1)(b)(ii), Item 82), and will have the final determination as to the weight to be assigned to it. It is appropriate for the Court to consider challenges to the report in this context, including in relation to the Minister’s decision to direct the offender to attend the assessment.

Australian Security Intelligence Organisation Act 1979

Item 154 - Subsection 35(2)

393.            Item 154 extends subsection 35(2) of the ASIO Act to apply to ESOs and ISOs. Item 154 puts beyond doubt that a condition imposed on an offender by an ESO or ISO under Division 105A of the Criminal Code (including electronic monitoring action authorised by the conditions of the ESO or ISO) is not prescribed administrative action for the purpose of Part IV of the ASIO Act.

394.            Item 154 means ASIO would not pass relevant information to the AFP for the purpose of the ESO scheme in the form of security assessments under Part IV of that Act. However, the information may be communicated under other provisions of the Act, including for example under subsection 18(3) if the Director-General is satisfied that such communication is required.

Crimes Act 1914

Overview

395.            The Crimes Act and other Commonwealth legislation confer a range of investigatory powers on law enforcement and other agencies, including the monitoring warrant regime in Part IAAB of the Crimes Act. The Bill will amend the monitoring warrant regime to extend its applicability in relation to an offender subject to an ESO or ISO.

396.            Given the gravity of the purposes for which ESOs and ISOs are made, compliance with the order is required to ensure that purpose of protecting the community is achieved. If compliance could only be monitored once there were reasonable grounds upon which to suspect a breach, the damage would have been done and the protective value of the order would be undermined. The protective value of ESOs and ISOs are also enhanced by the subject of the order knowing that compliance may be more readily monitored.

Item 155 - Part IAAB (heading)

397.            Item 155 is a consequential amendment to the heading of Part IAAB to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’.

398.            Item 155 reflects the broadening of Part IAAB to apply to individuals subject to ESOs and ISOs. Part IAAB does not require the issuing authority to be satisfied that an offence has already occurred or is going to be committed. This regime is targeted at monitoring compliance for the purposes of preventing a person from engaging in certain terrorism-related activities or preparatory acts while subject to an order.

Item 156 - Section 3ZZJA

399.            Item 156 amends section 3ZZJA to broaden the simplified outline of Part IAAB of the Crimes Act. Section 3ZZJA outlines that a Part 5.3 supervisory order includes ESOs and ISOs. The simplified outline also specifies in relation to Part 5.3 supervisory orders that for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order:

·          a constable may enter and search a premises in relation to a Part 5.3 supervisory order, and

·          a constable may conduct an ordinary search or a frisk search of a person.

400.            While simplified outlines are included to give a brief overview of what is contained in the substantive provisions, the outlines are not intended to be comprehensive.

Item 157 - Section 3ZZJB

401.            Item 157 amends section 3ZZJB to include several definitions that are relevant to Part IAAB of the Act.

402.            The definitions of ‘extended supervision order’ and ‘interim supervision order’ provide that they have the same meaning as in Part 5.3 of the Criminal Code . They are relevant to sections 3ZZOA, 3ZZOB and 3ZZOD.

403.            The definition of ‘serious Part 5.3 offence’ provides that is has the same meaning as in Part 5.3 of the Criminal Code . It is relevant to sections 3ZZOA and 3ZZOB.

404.            The definition of ‘terrorist offender’ provides that it has the same meaning as in Part 5.3 of the Criminal Code and is relevant to the definition of ‘Part 5.3 object’.

405.            The definition of ‘Part 5.3 object’ reflect the objects contained in Division 104 and 105A of the Criminal Code . It underpins the purpose for which a search of person or premises either by consent or under warrant may be authorised, under Part IAAB of the Act.

·          In relation to a control order, a Part 5.3 object means any of the following:

o    the protection of the public from a terrorist act

o    the prevention of the provision of support for, or the facilitation of, a terrorist act, and

o    the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

·          In relation to ESOs and ISOs, a Part 5.3 object means the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

406.            The Bill defines ‘Part 5.3 supervisory order’ to mean either a control order, an ESO or an ISO.

Items 158-160 - Section 3ZZKA

407.            Items 158-160 amend section 3ZZKA to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 158-160 amend section 3ZZKA to authorise constables to enter the premises and exercise monitoring powers for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

408.            Section 3ZZKA provides that a constable may only enter the premise if there is a Part 5.3 supervisory order in force in relation to a person, the person has a prescribed connection with the particular premises (defined in section 3ZZJC) and the entry to the premises is authorised. Authorisation to enter the premises is provided if either the occupier of the premises consents to the entry, or the entry is authorised by a monitoring warrant.

409.            The note to section 3ZZKA makes clear that if the entry is not made under a monitoring warrant, an authorised person must leave the premises if entry to the premises was with the occupier’s consent and that consent has been withdrawn (see section 3ZZNA).

410.            The power of a constable to enter the premises and exercise monitoring powers in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender’s compliance with the conditions of the order, which were imposed to protect the community.

Item 161 - Paragraphs 3ZZKC(3)(a) to (d)

411.            Item 161 amends paragraph 3ZZKC(3)(a) to apply to ESOs and ISOs, and continue the paragraph’s application to control orders. Specifically, Item 161 amends paragraph 3ZZKC(3)(a) to authorise a constable to operate electronic equipment on the premises and to use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it.

412.            A constable’s power to operate electronic equipment extends to copying data from the electronic equipment onto storage devices. However, a constable may only operate electronic equipment if he or she reasonably believes this can occur without damaging the equipment.

413.            The power of a constable to operate electronic equipment on the premises in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender’s compliance with the conditions of the order, which were imposed to protect the community. Specifically, this power is necessary to ensure a constable can obtain access to electronic records that are relevant to the purpose of achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order.

Items 162 and 163 - Section 3ZZKE

414.            Items 162 and 163 amend section 3ZZKE to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 162 and 163 amend section 3ZZKE to authorise a constable to ask questions and seek documents where the constable enters premises either by consent or under a monitoring warrant (section 3ZZKA).

415.            If a constable enters premises with the consent of the occupier, subsection 3ZZKE(2) provides that a constable may ask the occupier to answer any questions or produce documents that are likely to assist in achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order. There is no requirement for the person to answer the question or produce the document where entry was undertaken by consent. Accordingly, the other subsections within this section do not apply to existing subsection 3ZZKE(2).

416.            The first note to subsection 3ZZKE(2) provides that a person is not required to answer a question or produce a document under this subsection. The second note refers to sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

417.            If entry is authorised by a monitoring warrant, subsection 3ZZKE(3) provides that a constable may require any person on the premises to answer any questions or produce documents that are likely to assist in achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order. Subsection 3ZZKE(3) is subject to subsections (4) and (7).

418.            The note refers to existing sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

419.            Subsection 3ZZKE(4) qualifies that before a constable requires a person to answer a question or produce a document under existing subsection (3), the constable must explain to the person the effect of section 3ZZJD concerning self-incrimination and legal professional privilege.

420.            Subsection 3ZZKE(5) provides a safeguard to the person by stipulating that if a constable fails to explain the effect of section 3ZZJD then any answer to a question or document produced under this section is not admissible in evidence against the person in criminal proceedings.

421.            The note refers to existing sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

422.            Subsection 3ZZKE(6) qualifies the requirement to answer questions and produce documents by providing that a person is not required to answer or produce a document if the person does not possess the information or document required and has taken reasonable steps to obtain the required information or documents without success. Subsection 3ZZKE(7) further qualifies the requirement by providing that a person is not required to produce a document if the document sought is not at the premises.

423.            Subsection 3ZZKE(8) provides that a person commits an offence for failing to comply with a requirement under subsection 3ZZKE(3). This offence carries a penalty of 30 penalty units. The note provides that this section does not abrogate the privilege against self-incrimination or legal professional privilege (section 3ZZJD).

424.            The power of a constable to ask questions and seek documents where the constable enters the premises with consent or under a warrant in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender’s compliance with the conditions of the order, which were imposed to protect the community. Specifically, asking questions and seeking documents will authorise the constable to gather information that may assist in determining whether an offender has been compliant with the order.

425.            Section 3ZZKE is limited to constables. The powers in this section do not extend to persons who are not constables but are assisting a constable in the execution of a monitoring warrant.

Item 164 - Division 3 of Part IAAB (heading)

426.            Item 164 is a consequential amendment to the heading of Division 3 of Part IAAB to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’.

427.            The amendment to the heading of Division 3 of Part IAAB reflects that the powers of constables in relation to a Part IAAB monitoring warrant may be exercised in relation to a Part 5.3 supervisory order.

Items 165-167 - Subsection 3ZZLA(1)

428.            Items 165-167 amend section 3ZZLA to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 165-167 amend section 3ZZLA to allow a constable to conduct an ordinary search or a frisk search of a person who is subject to a Part 5.3 supervisory order and exercise the monitoring powers outlined in section 3ZZLB (for example, the power to search things found in the possession of the person and the power to record fingerprints from things) if the person consents or a monitoring warrant is in place. A search can only be undertaken for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

429.            The power of a constable to conduct an ordinary search or a frisk search in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender’s compliance with the conditions of the order, which were imposed to protect the community. Specifically, searches will authorise the constable to gather information that may assist in determining whether the person has been compliant with the order. Further, searches may also assist the constable if there are any immediate risks or threats posed to the constable while conducting the search.

Items 168 and 169 - Section 3ZZNH

430.            Items 168 and 169 are consequential amendments to section 3ZZNH to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’.

431.            Items 168 and 169 broaden the application of section 3ZZNH to apply to ESOs and ISOs to provide that, where a search of premises is undertaken under a monitoring warrant, if the person the subject of the relevant Part 5.3 supervisory order is present they are entitled to observe the search being conducted.

Items 170-176 - Section 3ZZOA

432.            Items 170-176 amend section 3ZZOA to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 170-176 amend section 3ZZOA to allow a constable to apply to an issuing officer for a warrant which will allow monitoring of a Part 5.3 supervisory order to prevent breaches of the order.

433.            Subsection 3ZZOA(2) provides that in order to issue the warrant, the issuing officer must be satisfied that a Part 5.3 supervisory order is in force, the person has a prescribed connection with the premises and having regard to a number of matters, it is reasonably necessary that one or more constables have access to the premises for the purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

434.            The issuing officer must also have regard to the nature of the person’s connection with the premises, and:

·          the possibility that the person has engaged, is engaging, or will engage in specified terrorism-related activities, and

·          whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.

435.            Item 172 inserts at paragraph 3ZZOA(4)(b) a new matter the issuing officer must have regard to, that being the possibility that the person has committed, is committing or will commit a serious Part 5.3 offence, which reflects the purpose of Division 105A of the Criminal Code .

436.            Subsection 3ZZOA(3) provides that the issuing authority may require further information concerning the grounds on which the issue of the warrant is being sought and must not issue the warrant until that information has been provided orally or by affidavit.

437.            Subsection 3ZZOA(5) lists the matters that must be set out in the warrant, including a description of the premises to which the warrant relates, the time at which the warrant expires, whether a person who is not a constable is able to assist in executing the warrant, and details relating to the relevant Part 5.3 supervisory order.

438.            Subsection 3ZZOA(6) provides a safeguard to ensure that information likely to prejudice national security is not required to be included in the warrant. Subsection 3ZZOA(7) expressly provides that the warrant must state the date of expiry which is no later than the end of the seventh day after the day on which it was issued. Subsection 3ZZOA(8) makes clear that successive warrants can be issued for the same premises.

Items 177-183 - Section 3ZZOB

439.            Items 177-183 amend section 3ZZOB to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 177-183 amend section 3ZZOB to mirror items 170-176, as outlined above, but instead relates to the issuance of a warrant in relation to a person.

440.            Items 177-183 amend section 3ZZOB to provide that in order to issue the warrant the issuing officer must be satisfied that a Part 5.3 supervisory order is in force and after having regard to a number of matters, it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person.

441.            The issuing officer must also have regard to:

·          the possibility that the person has engaged, is engaging, or will engage in specified terrorism-related activities, and

·          whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person or a recently used conveyance, would be likely to have the least interference with any person’s liberty and privacy that is necessary in the circumstances.

442.            Item 179 inserts at paragraph 3ZZOB(4)(b) a new matter the issuing officer must have regard to, that being the possibility that the person has committed, is committing or will commit a serious Part 5.3 offence, which reflects the purpose of Division 105A of the Criminal Code .

443.            The issuing officer must consider it reasonably necessary for a constable to conduct a search of the person to achieve a Part 5.3 object or determine whether the Part 5.3 supervisory order is being complied with.

444.            Subsection 3ZZOB(3) provides that the issuing authority may require further information concerning the grounds on which the issue of the warrant is being sought and must not issue the warrant until that information has been provided orally or by affidavit.

445.            Subsection 3ZZOB(5) lists the contents of the warrant, such as, the name of the person, the purpose for which the warrant is issued, the time at which the warrant expires, whether a person who is not a constable is able to assist in executing the warrant and details which relate to the Part 5.3 supervisory order.

446.            Subsection 3ZZOB(6) provides a safeguard to ensure that information which is likely to prejudice national security is not stated in the warrant which will be disclosed. Subsection 3ZZOB(7) expressly provides that the warrant must state the date of expiry which is no later than the end of the seventh day after the day on which it was issued. Subsection 3ZZOB(8) makes clear that successive warrants can be issued for the same person.

Items 184-186 - Section 3ZZOD

447.            Items 184-186 amend section 3ZZOD to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 184-186 amend section 3ZZOD to provide an important safeguard where the ESO or ISO in relation to which a monitoring warrant was issued has since been revoked, declared void or varied by way of removing one or more of the conditions.

448.            Where an ESO or ISO ceases to have effect, the grounds for the monitoring warrant will no longer exist. Similarly, if one or more of the conditions imposed by the relevant order ceases to have effect, the grounds upon which the monitoring warrant was issued may no longer exist. Accordingly, it is appropriate that, in such circumstances, the legislation preclude the execution of the warrant. Where the ESO or ISO is varied by removing one or more of the conditions, it is open to the AFP to apply for a new monitoring warrant on the basis of the revised order. This ensures the issuing authority has full visibility of the conditions imposed by the order and whether it is appropriate to issue a warrant.

449.            Section 3ZZOD does not currently extend, and will not be amended to extend, to circumstances where an order is varied by adding one or more conditions. It also does not extend to conditions that are varied but where the condition itself remains as part of the order (i.e. the condition is neither removed nor has a new condition been added). For example, this could be where the subject’s mobile phone number has changed and the condition is amended to reflect the new number. This is because the conditions that were in force at the time the monitoring warrant was issued will continue to be in force, and it is reasonable and appropriate for the AFP to execute that warrant.

450.            Subsections 3ZZOD(2), (3) and (4) provide that a thing seized, or information or document obtained, in breach of subsection 3ZZOD(1) is not admissible in evidence in a criminal proceeding other than a proceeding under subparagraph 3ZQU(1)(j) in relation to a complaint, allegation, or issue concerning using and sharing things seized and documents produced under Part IAA.

Item 187- Section 3ZZRC

451.            Item 187 amends section 3ZZRC to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 187 amends section 3ZZRC to provide that Division 4C of Part IAA of the Crimes Act applies to documents produced under Part IAAB. The application of Division 4C of Part IAA authorises the use or sharing of information between constables and Commonwealth officers if it is necessary for purposes such as:

·          preventing, investigating or prosecuting an offence

·          specified proceedings, such as those under corresponding law, and

·          specified investigations.

452.            Subsection 3ZZRC(2) sets out additional uses to which documents produced under section 3ZZKE can be put. Item 187 will amend subsection 3ZZRC(2) to apply to ESOs and ISOs. Specifically, Item 187 amends subsection 3ZZRC(2) to provide that a document produced under that section can be used for the purpose of achieving a Part 5.3 object or to determine compliance with a relevant order.

453.            In addition, paragraph 3ZZRC(2)(e) authorises the document to be used for the purposes of preventing, investigating or prosecuting an offence.

454.            The authority to share information is necessary to enhance the utility of the information if it relates to a relevant purpose (outlined above). If the power to obtain information was not extended to its use, then the power to obtain the information could not be used to protect the community and would defeat the overarching purposes of ESOs and ISOs.

Item 188 - Paragraphs 3ZZRD(a) to (d)

455.            Item 188 amends section 3ZZRD to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 188 amends section 3ZZRD to allow the use of an answer given to questions asked under section 3ZZKE for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

456.            The authority to use information is necessary to achieve community protection. If the power to obtain information was not extended to its use, then the power to obtain the information could not be used to protect the community and would defeat the overarching purposes of ESOs and ISOs.

National Security Information (Criminal and Civil Proceedings) Act 2004

Overview

457.            The objective of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. ‘National security’ is defined in section 8 of the NSI Act as Australia’s defence, security, international relations or law enforcement interests. These concepts are further defined in sections 9, 10 and 11.

458.            The NSI Act provides a range of protection mechanisms for sensitive information, the disclosure of which would likely prejudice national security. These mechanisms include parties agreeing to information protection arrangements, parties seeking orders ex parte, or the Attorney-General giving a non-disclosure certificate that states whether information may be disclosed and, if so, in what circumstances and form (redactions, summaries and statements of facts are permitted).

459.            In control order proceedings, the NSI Act enables the Court to make special orders under section 38J allowing the Court to consider information (subject to the rules of evidence and other safeguards) which is not disclosed to the controlee or their legal representative. This enables highly sensitive information to be adduced as evidence to support a control order application while ensuring that it is appropriately protected. For example, information which is central to supporting and justifying a control order application may reveal law enforcement or intelligence sources, capabilities and methodologies. Depending on the specific nature of the information, disclosure could have significant consequences, such as endangering the safety of individuals or compromising law enforcement or intelligence methodologies or operations. The NSI Act enables this highly sensitive information to be provided to a court, which can be critical in circumstances where a control order could otherwise not be obtained without relying on that information.

460.            This schedule amends the NSI Act to extend the availability of these special court orders in section 38J to ESO proceedings. It is necessary and appropriate to extend the special court orders that are currently available in control order proceedings to ESO proceedings, given the orders are similar in their effect, and because information obtained from highly sensitive sources or capabilities may be needed to support an application. The effect of the amendments will be to enable the AFP Minister to adduce highly sensitive information which is not disclosed to the respondent in Division 105A proceedings of the Criminal Code in relation to applications for:

·          an ESO in relation to an offender

·          a variation of an ESO in relation to an offender

·          a review of an ESO in relation to an offender, or

·          an application for a CDO in relation to an offender, but only in circumstances where the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO.

461.            The purpose of these amendments is to ensure that the process of applying for an ESO, which seeks to protect the Australian community from the unacceptable risk of a serious terrorism offence, does not itself damage national security or endanger the safety of individuals.

Invoking the NSI Act

462.            The NSI Act does not have free-standing application, it must be ‘invoked’ before it applies to a proceeding. An ESO proceeding under Division 105A of the Criminal Code is a civil proceeding for the purpose of the NSI Act. In civil proceedings, the NSI Act is invoked by the Attorney-General giving notice in writing to the parties to the proceeding, the legal representatives of the parties and the Court that the NSI Act applies to the proceeding. Unless and until this notice is given, the NSI Act will not apply.

Protections available in civil proceedings

463.            If the Attorney-General has invoked the NSI Act and issues a non-disclosure certificate under section 38F or a witness exclusion certificate under section 38H of the NSI Act, the Court must hold a closed hearing in accordance with section 38I. The closed hearing is for the limited purpose of addressing whether information potentially prejudicial to national security may be disclosed and if so, in what form, or whether to allow a witness to be called. For the purposes of this schedule, the closed hearing under subsection 38G(1) or 38H(6) will be referred to as the ‘NSI hearing’. The Court has the discretion to exclude non-security cleared parties, their non-security cleared legal representatives and non-security cleared court officials from the hearing where the Court considers that disclosing the relevant information to these persons would likely prejudice national security.

464.            Following the NSI hearing, the Court must make one of four possible orders under section 38L. The Court may order that:

·          the information must not be disclosed, but a copy of a document may be disclosed with appropriate redactions, with or without summaries of the information or a statement of facts that the information would be likely to prove (subsection 38L(2))

·          the information must not be disclosed (subsection 38L(4))

·          the information may be disclosed (subsection 38L(5)), or

·          when determining whether to call a witness, that either the relevant party must not or may call the person as a witness (subsection 38L(6)).

465.            These orders do not permit evidence to be adduced in the substantive proceeding that has been withheld from the affected party or their legal representative. Accordingly, if the Court orders that some or all of the information should not be disclosed to the respondent or their legal representative, that information cannot then be used in the substantive proceeding.

466.            The NSI Act is designed to be flexible and ensure the Court has the ability to conduct the proceeding in a manner it considers appropriate. The NSI Act does not prevent the Court from making other protective orders such as upholding public interest immunity claims, or making orders under other legislation or under the inherent powers of the Court.

Special orders in control order proceedings

467.            The NSI Act also provides for special orders under section 38J in control order proceedings that enable the Court to consider information which is not disclosed to the controlee or their legal representative. These orders can provide that:

·          where the information is in the form of a document, the controlee and their legal representative may be provided with a redacted or summarised form of the national security information. However, the Court may consider all of the information contained in the original source document, even where that information has not been provided in the redacted or summarised form (subsection 38J(2))

·          irrespective of the form of the information, the controlee and their legal representative may not be provided with the national security information, however the Court may consider all of that information (subsection 38J(3)), or

·          a witness may be called and the information provided by the witness need not be disclosed to the controlee or their legal representative, however the Court may consider all of the information provided by the witness (subsection 38J(4)).

468.            At the NSI hearing to consider the Attorney-General’s certificate in relation to a control order proceeding, the Attorney-General may request the Court make one of the section 38J orders outlined above. The Court has the discretion to make one of the orders, or make no orders at all, under section 38J. Where the Court declines to make an order under section 38J, it must make one of the orders under section 38L. This schedule will amend the NSI Act by making these special orders in section 38J available in ESO proceedings.   

Factors the Court must consider before making a special order

469.            In determining whether to make an order under section 38J, the Court must be satisfied that the controlee has been given sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations. What constitutes sufficient information will depend on the facts and circumstances of each case. This schedule will amend the NSI Act by extending this requirement to also apply in ESO proceedings.

470.            In determining whether to make any of the special orders under section 38J, the Court must consider:

·          the risk of prejudice to national security if an order were not made

·          whether an order under section 38J would have a substantial adverse effect on the substantive hearing in the proceeding, and

·          any other matter the Court considers relevant.

Special advocates

Role of a special advocate

471.            Subdivision C of Division 3 of Part 3A of the NSI Act provides for a special advocate to be appointed in relation to control order proceedings. A special advocate is a security-cleared lawyer, or a former judge, who represents the interests of the controlee in parts of the control order proceeding in which they and their legal representative have been excluded under section 38I or section 38J of the NSI Act. The parts of the control order proceedings from which the controlee and their legal representative may be excluded are:

·          the NSI hearing, and

·          the substantive control order proceeding where information that is the subject of a section 38J order is being considered by the Court.

472.            The special advocate represents the interests of the controlee by:

·          making submissions to the Court at any part of a hearing in the proceeding in which the controlee and their ordinary legal representative are not entitled to be present

·          adducing evidence and cross-examining witnesses at such a part of a hearing in the proceeding, and

·          making written submissions to the Court.

473.            The special advocate is not a legal representative of the controlee because there are restrictions on the extent to which a special advocate can represent their interests. The most important of these restrictions is that once the Attorney-General has disclosed the sensitive national security information to the special advocate, communication between the special advocate and the controlee (and their legal representative) is restricted and subject to authorisation by the Court. This is to prevent inadvertent disclosure of the national security information to the controlee.

Appointment of a special advocate

474.            The Court has the inherent power to appoint a special advocate on an ad hoc basis if it considers it appropriate. The NSI Act provides a legislative framework for the appointment of a special advocate in control order proceedings where the following circumstances arise:

·          the Attorney-General has invoked the NSI Act

·          the Attorney-General has issued a non-disclosure certificate under section 38F or a witness exclusion certificate under section 38H, and

·          either:

o    the Attorney-General has requested a section 38J order and the Court has already granted an order under subsection 38I(3A) to exclude the controlee and their legal representative from the NSI hearing, or

o    the Court has made an order under section 38J, which automatically excludes the controlee and their ordinary legal representative from parts of the control order proceeding where information subject to the order is considered by the Court.

475.            Even where the above circumstances arise, the appointment of a special advocate remains at the discretion of the Court.

476.            If the Court determines that a special advocate is required, the appointment requirements are set out in the National Security Information (Criminal and Civil Proceedings) Regulation 2015 and include a requirement for the Attorney-General to be satisfied that the person is suitable for appointment because of the person’s qualifications, training or experience. The NSI Act provides that the parties and the Attorney-General must be given the opportunity to make submissions to the Court about who should be appointed. Where the controlee has requested that the Court appoint a particular person, who meets the eligibility criteria, the Court will appoint the special advocate requested if none of the following factors apply:

·          the special advocate requested would result in the proceeding being unreasonably delayed

·          the special advocate requested would have an actual or potential conflict of interest, and

·          the special advocate requested has knowledge of national security information and disclosure of that information would be likely to prejudice national security and in the circumstances, there is a risk of inadvertent disclosure of that information.

477.            This schedule will extend the special advocate provisions to also apply to ESO proceedings. This is appropriate to ensure that where information is withheld from the respondent and their legal representative in an ESO proceeding under a section 38J order, a special advocate may be appointed to represent the interests of the respondent.

Item 189 - Section 7

478.            Item 189 inserts a definition of ‘CDO or continuing detention order’. It provides that ‘CDO or continuing detention order’ means a continuing detention order made under Division 105A of the Criminal Code .

479.            Item 189 inserts a definition of ‘control order’. It provides that ‘control order’ has the meaning given by section 100.1(1) of the Criminal Code . Section 100.1(1) of the Code defines control order as an ICO or a confirmed control order.

480.            Item 189 inserts a definition of ‘Division 105A ESO proceeding’. It provides that ‘Division 105A ESO proceeding’ means a proceeding under Division 105A of the Criminal Code in relation to an application for an ESO, a variation of an ESO, or a review of an ESO, in relation to an offender. It also provides that a ‘Division 105A ESO proceeding’ means a proceeding under Division 105A in relation to an application to a Supreme Court of a State or Territory for a CDO in relation to an offender if, in the proceeding, the Court:

·          is not satisfied:

o    to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community (paragraph 105A.7(1)(b)), and/or

o    that there is no other less restrictive measure that would be effective in preventing the unacceptable risk (paragraph 105A.7(1)(c)), and

·          the Court is considering making an ESO in relation to the offender (subsection 105A.7(2)(b)).

481.            A note is inserted immediately below this definition, and refers to the definition of ‘ESO or extended supervision order’.

482.            Item 189 inserts a definition of ‘ESO or extended supervision order’. It provides that ‘ESO or extended supervision order’ means an order made under subsection 105A.7A(1) of the Criminal Code , or an ISO made under Division 105A of the Criminal Code . This amendment clarifies that ESO proceedings also include ISO proceedings.

483.            Item 189 also inserts a definition of ‘terrorist offender’. It provides that ‘terrorist offender’ has the meaning given by section 105A.2 of the Criminal Code . Section 105A.2 of the Code refers to sections 105A.2A, 105A.3(1) and 105A.18 which affect the definition of terrorist offender. Section 105A.2A provides that, for the purpose of Division 105A, 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. Subsection 105A.3(1) provides the circumstances in which a CDO may be made in relation to a terrorist offender. Section 105A.18 provides for the consequences of release of a terrorist offender.

Item 190 - Paragraph 38I(1)(b)

484.            Item 190 repeals paragraph 38I(1)(b) and substitutes a new paragraph to facilitate the use of the closed hearing requirements in both control order proceedings and Division 105A ESO proceedings if the Court makes an order under subsection 38J(2), (3) or (4).

485.            The purpose of the closed hearing requirements is limited to addressing whether information potentially prejudicial to national security may be disclosed, and if so, in what form, and whether to allow a witness to be called.

486.            This amendment ensures that the closed hearing requirements are available:

·          during an NSI hearing when the Court is considering if or how national security information should be disclosed in a civil proceeding, and

·          when information that is the subject of an order under subsections 38J(2), (3) or (4) is disclosed in a control order proceeding under Division 104 or in a Division 105A ESO proceeding.

Item 191 - Subsection 38I(1) (note)

487.            Item 191 amends the note at the end of subsection 38I(1) by omitting ‘note’ and substituting ‘note 1’ to reflect the inclusion of an additional note at the end of this subsection.

Item 192 - At the end of subsection 38I(1)

488.            Item 192 adds a note at the end of subsection 38I(1). The note provides that a court may not make an order under subsection 38J(2), (3) or (4) (which enable court-only evidence) if the proceeding under Division 105A relates to an application for a CDO (as referred to in subsections 38J(1) and (1A) and the definition of Division 105A ESO proceeding). The note refers to subsections 38J(1) and (1A) and to the definition of Division 105A ESO proceeding to clarify that the Court cannot make an order under subsection 38J(2), (3) or (4) where:

·          the Court is considering whether to make a CDO under subsection 105A.7(1) of the Criminal Code, or

·          the Court is considering whether to make an IDO under section 105A.9 of the Criminal Code .

489.            Where the proceeding relates to an application for a CDO, the Court may only make an order under subsection 38J(2), (3) or (4) after the Court is not satisfied of the requisite threshold for a CDO in paragraphs 105A .7(1)(b) or (c) of the Criminal Code , and instead considers whether to make an ESO (as required under paragraph 105A.7(2)(b)).

490.            The note also provides that if the Court decides not to make the CDO (as a result of not being satisfied of the requisite thresholds in paragraphs 105A.7(1)(b) or (c)) and hears evidence in a closed hearing in relation to an ESO, the Court could reconsider whether to make the CDO. This is because the Court is not required to dismiss the CDO application before turning its mind to an ESO. The note clarifies that where a court considers an ESO in such circumstances and has heard court-only evidence in relation to an ESO, the Court is not precluded from reconsidering a CDO after hearing the Court-only evidence, but rather the Court would be prohibited from taking that court-only evidence into account in deciding whether to make a CDO. The Court would also be prohibited from relying on the Court-only evidence in deciding whether to reconsider making the CDO after hearing that evidence in relation to an ESO. It would ultimately be a matter for the Court to determine whether it would be in the interests of fairness to reconsider a CDO after hearing court-only evidence in relation to an ESO.

Item 193 - Paragraph 38I(3A)(b)

491.            Item 193 repeals paragraph 38I(3A)(b) and substitutes a new paragraph which allows the Court to order that one or more specified parties to the proceeding and their legal representative may be excluded from the NSI hearing in an ESO proceeding under Division 105A of the Criminal Code .

492.            Subsection 38I(3A) only applies to control order proceedings under Division 104 of the Criminal Code . It provides that the Attorney-General (or the Attorney-General’s legal or other representative) can request the Court to make an order that one or more specified parties to the proceeding, and their legal representatives, should not be present at any part of the NSI hearing in which the Attorney-General (or the Attorney-General’s legal or other representative) gives details of the national security information or gives information in arguing why the national security information should not be disclosed, or the witness should not be called to give evidence in the proceeding. The Court has the discretion to make an order excluding the controlee and their legal representative, even if they have an appropriate security clearance.

493.            This amendment enables the Court to also make an order excluding the respondent and their legal representative from the NSI hearing in ESO proceedings under Division 105A of the Criminal Code .

494.            The amendments in Item 201, relating to special advocates, will allow the Court to appoint a special advocate to be present during any part of the NSI hearing where the respondent and their legal representative are excluded. This is important as the special advocate represents the interests of the respondent to ensure the respondent receives a fair hearing.

Item 194 - Section 38J (heading)

495.            Item 194 amends the heading of section 38J to indicate that the special court orders provided for in control order proceedings under Division 104 of the Criminal Code are also available in ESO proceedings under Division 105A of the Criminal Code .

Item 195 - Paragraph 38J(1)(a)

496.            Item 195 repeals paragraph 38J(1)(a) and substitutes a new paragraph that extends the availability of the special court orders under section 38J to ESO proceedings under Division 105A of the Criminal Code . This includes an ESO proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO. The new paragraph provides that section 38J applies if the Court has held a closed hearing under subsection 38G(1) or 38H(6) about the disclosure of information in:

·          control order proceedings under Division 104 of the Criminal Code

·          Division 105A ESO proceedings relating to an application to make, vary or review an ESO, or

·          Division 105A ESO proceedings relating to an application for a CDO.

Item 196 - Paragraph 38J(1)(c)

497.            Paragraph 38J(1)(c) provides that for a special order under section 38J to be made, a court must be satisfied that the controlee has been given sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations. Item 196 extends this requirement to also apply in relation to respondents in ESO proceedings under Division 105A of the Criminal Code . Procedural fairness requires that the respondent must have notice of the allegations on which the application is based.

Item 197 - At the end of subsection 38J(1)

498.            Item 197 adds a note at the end of subsection 38J(1) referring to the definition of Division 105A ESO proceeding in section 7. This is to clarify that the reference to an application for a CDO in subparagraph 38J(1)(a)(iii) refers to a proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold as mentioned in paragraph 105A.7(1)(b) or (c) of the Code and instead considers whether to make an ESO as mentioned in paragraph 105A.7(2)(b).

Item 198 - After subsection 38J(1)

499.            Item 198 inserts an avoidance of doubt provision that expressly prohibits the Court from making an order under subsection 38J(2), (3) or (4) (which enable court-only evidence) in certain proceedings. This item expressly prohibits the Court from making an order under subsection 38J(2), (3) or (4) enabling court-only evidence in proceedings that involve consideration of a CDO, or an IDO where a CDO is still before the Court, because at that point in proceedings, the Court has not yet considered whether it is satisfied of the requisite thresholds for the CDO. The intention is to prevent the Court from being exposed to court-only evidence in these proceedings, noting the result of these orders is detention.

500.            The first is a proceeding relating to an application for a CDO if the Court is considering whether to make a CDO under section 105A.7 of the Criminal Code . This would capture both:

·          where the Court is deciding whether it is satisfied of the threshold for a CDO, and

·          where the Court was not satisfied of the threshold for a CDO so considered an ESO, but then reconsidered whether to make a CDO under section 105A.7.

501.            The second is a proceeding where the Court is considering whether to make an ISO under section 105A.9A of the Criminal Code , as mentioned in paragraph 105A.9(8)(b) of the Code (see Item 94). Subsection 105A.9(8) provides that where the AFP Minister has applied for an IDO, but the Court is not satisfied that there are reasonable grounds for considering that a CDO will be made, a court is required to consider making an ISO. The reason for prohibiting the Court from making an order under subsection 38J(2), (3) or (4) in these proceedings is because if court-only evidence were to be permitted for an ISO in the circumstances described above, the Court would have been exposed to that evidence before deciding that it is not satisfied of the requisite thresholds for the CDO.

502.            The third is a proceeding relating to an application for an IDO under section 105A.9 of the Criminal Code .

Item 199 - Subsections 38L(1) and (6) (at the end of the note)

503.            The existing note that follows subsection 38L(1) clarifies that subsections 38J(2) and (3) allow the Court to make an order about the disclosure and consideration of information in control order proceedings under Division 104 of the Criminal Code . Item 199 amends this note to indicate that those subsections now allow the Court to also make such orders in ESO proceedings under Division 105A of the Criminal Code .

504.            The existing note that follows subsection 38L(6) clarifies that subsection 38J(4) allows the Court to make an order about the calling of witnesses in control order proceedings under Division 104 of the Criminal Code . Item 199 amends this note to indicate that subsection 38J(4) now allows the Court to also make such an order in ESO proceedings under Division 105A of the Criminal Code .

Item 200 - Subdivision C of Division 3 of Part 3A (heading)

505.            Item 200 amends the heading of Subdivision C of Division 3 of Part 3A to indicate that special advocates are available in ESO proceedings.

Item 201 - Paragraph 38PA(1)(a)

506.            Item 201 allows the Court to appoint a person as a special advocate for a respondent:

·          in a control order proceeding relating to a request to make, confirm or vary a control order

·          in a Division 105A ESO proceeding to make, vary or review an ESO in relation to the respondent, and

·          in a Division 105A ESO proceeding relating to an application for a CDO in relation to the respondent (this would be in proceedings where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO).

507.            This is to ensure that where the Court makes an order under subsection 38I(3A) or subsection 38J(2), (3) or (4), which results in the respondent and their legal representative being excluded from a hearing, the respondent’s interests are safeguarded by providing for a special advocate to be present during those parts of the hearing.

Item 202 - Subsection 38PA(1) note

508.            Item 202 amends the note at the end of subsection 38PA(1) by omitting ‘note’ and substituting ‘note 1’ to reflect the inclusion of an additional note at the end of this subsection.

Item 203- At the end of subsection 38PA(1)

509.            Item 203 adds a note at the end of subsection 38PA(1) referring to the definition of Division 105A ESO proceeding in section 7. This is to clarify that the reference to an application for a CDO in subparagraph 38PA(1)(a)(iii) refers to a proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold as mentioned in paragraph 105A.7(1)(b) or (c) of the Code and instead considers whether to make an ESO as mentioned in paragraph 105A.7(2)(b).

Item 204 - Subparagraph 38PE(3)(b)(i)

510.            Subsection 38PE(3) prohibits the special advocate from disclosing the national security information other than:

·          in permitted circumstances specified in the Attorney-General’s certificate given under section 38F or 38H or in accordance with an order made under subsections 38J(2), (3) or (4)

·          to the person who applied for the control order, or

·          to the Court at a part of a hearing during which the respondent and their legal representative are not entitled to be present.

511.            Item 204 will amend this subsection to enable a special advocate to also disclose the national security information to the applicant in the control order proceedings or Division 105A ESO proceedings, or the applicant’s legal representative, except where the applicant is the person who is or would be the subject of the control order or the ESO (noting under both the control order and ESO schemes the offender may apply for a variation of the order, and additionally may apply for a review of the order under the ESO scheme). Enabling disclosure to the applicant in these circumstances is appropriate noting the applicant will have already seen the information and the disclosure would not prejudice national security.  

Item 205 - Subparagraph 38PF(2)(a)(ii)

512.            Once the Attorney-General has disclosed the national security information to the special advocate, subsection 38PF(2) prohibits the special advocate from communicating with any person about any matter connected with the proceeding, other than in the circumstances outlined in paragraphs (a) to (c). Item 205 amends paragraph 38PF(2)(a) to enable the special advocate to communicate with the applicant in the control order proceedings or Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is the person who is or would be the subject of the control order or ESO (noting under both the control order and ESO schemes the offender may apply for a variation of the order, and additionally may apply for a review of the order under the ESO scheme).

513.            The purpose of the communication restrictions is to prevent inadvertent disclosure of the national security information. Amending the list of people with whom the special advocate is able to communicate about the proceedings to include the applicant, except where the applicant is or would be the subject of the order, is appropriate noting the applicant will have already seen the information and the disclosure would not prejudice national security.

Item 206 - Paragraph 38PF(6)(a)

514.            Section 38PF enables the special advocate to submit a written communication to the Court for approval and forwarding to the respondent. If a court forwards a communication from the special advocate to the respondent or their legal representative, paragraph 38PF(6)(a) requires the Court to give a description of the communication to the person who applied for the relevant control order or their legal representative.

515.            Item 206 amends this paragraph to require the Court to give a description of the communication to the applicant in the control order proceedings or the Division 105A ESO proceedings, or their legal representative, except where the applicant is the person who is or would be the subject of the control order or ESO. This ensures that the applicant in ESO proceedings also receives notification of any communication between the special advocate and the controlee and are provided with a general description of that communication.

Item 207 - Section 46H (heading)

516.            Section 46H provides for a range of offences relating to special advocates in control order proceedings. The offences relate to:

·          special advocates disclosing national security information received from the Attorney-General, and

·          controlees, or their ordinary legal representatives, communicating with special advocates after the Attorney-General has disclosed national security information to the special advocates.

517.            Item 207 amends the heading of section 46H to indicate that these offences now also relate to special advocates in ESO proceedings.

Item 208 - Paragraphs 47(c) and (d)

518.            Section 47 sets out the Attorney-General’s annual reporting requirements. Item 208 amends the existing reporting requirements to also require the Attorney-General’s annual report to include the number of special orders made under section 38J in ESO proceedings and identify the proceedings under Division 105A of the Criminal Code to which the orders relate.

519.            This amendment ensures the existing transparency and oversight measure extends to the operation of section 38J as it applies to Division 105A ESO proceedings.

Item 209 - Paragraph 47(f)

520.            Item 209 amends the Attorney-General’s annual reporting requirements by requiring the Attorney-General’s annual report to also identify the proceedings under Division 105A of the Criminal Code in relation to which special advocates were appointed.

Item 210 - Application of amendments

521.            Item 210 provides that the amendments to section 47 apply in relation to each 30 June that occurs after this item commences.

Surveillance Devices Act 2004

Overview

522.            The SD Act and other Commonwealth legislation confer a range of investigatory powers on law enforcement and other agencies. The Bill will amend the SD Act to extend its application to offenders subject to PSOs under Division 105A of Part 5.3 of the Criminal Code .

523.            The Bill will allow law enforcement agencies to:

·          obtain surveillance device warrants to monitor offenders who are subject to ESOs and ISOs

·          obtain surveillance device warrants to assist in determining whether to make an application for a PSO

·          obtain computer access warrants to monitor offenders who are subject to ESOs and ISOs

·          obtain computer access warrants to assist in determining whether to make an application for a PSO, and

·          use less intrusive surveillance devices without a warrant to monitor offenders who are subject to ESOs or ISOs.

524.            It is imperative that law enforcement agencies have adequate powers to monitor a offender’s compliance with the conditions of an ESO or ISO. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to a person to breach the conditions of their order. This enhances the effectiveness of the Part 5.3 supervisory order.

525.            It is also imperative that law enforcement agencies have adequate powers to determine whether to make an application for a PSO. Without sufficient powers to collect information that would determine whether it is necessary for the safety of the community to make a PSO application, and without sufficient evidence to support that application, community safety may be put at risk if the decision to make an application is not able to be made or supported.

526.            The Bill will also amend the Act to allow protected information (which is broadly information obtained under a warrant or surveillance devices used without a warrant) to be used in a range of circumstances, including to determine whether the relevant order has been complied with and in evidence for proceedings relating to offences punishable by a maximum term of imprisonment of 3 years or more. The power to use surveillance devices for monitoring purposes will remain a covert power.

Item 211 - Paragraphs 3(aa) to (ab)

527.            Item 211 amends section 3 to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 211 amends section 3 to set out the main purposes of the Act in relation to the ESO scheme, including:

·          assisting the Minister in determining whether to apply for a PSO

·          the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence, and

·          determining compliance with an ESO or ISO.

Item 212 - Subsections 4(5) to (6)

528.            Item 212 amends subsections 4(5) and (6) to apply to ESOs and ISOs, and continue the subsections’ application to control orders. Specifically, Item 212 amends subsection 4(5) to clarify that a warrant may be issued under the Act:

·          where consideration is being given, will be given, or is likely to be given, as to whether to apply for a PSO, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order

·          where a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in achieving a Part 5.3 object, or

·          where a Part 5.3 supervisory order is in force and the use of the device or the access to the data would be likely to substantially assist in determining compliance with an ESO or ISO.

529.            The threshold ‘likely to assist’ is appropriately lower than the threshold ‘substantially assist’ which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

·          there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

·          the level of risk the offender will pose upon release is difficult to establish while they are still in custody. It is vital that the offender’s level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

530.            Item 212 also amends subsection 4(6) to clarify that a tracking device authorisation may be issued under the Act where a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in achieving a Part 5.3 object or determining compliance with an ESO or ISO.

Items 213-220 - Subsection 6(1)

531.            Items 213-220 amend subsection 6(1) to insert and amend several definitions that are relevant to the amendments proposed to the Act.

532.            The definition ‘AFP Minister’ is relevant to Item 222 (section 14(3B)) and 240 (section 27A(6)) and has the same meaning as in section 100.1 of the Criminal Code .

533.            Existing definitions of ‘control order access warrant’, ‘control order information’ ‘control order warrant’ and ‘succeeding control order’ are repealed, to broadly reflect that a surveillance device warrant and a computer access warrant can be sought in relation to PSOs. These matters are now dealt with in the new definitions of Part 5.3 orders, Part 5.3 warrants and Part 5.3 information.

534.            The definition of ‘detained in custody’ provides that it has the same meaning as in Part 5.3 of the Criminal Code .

535.            The definition of ‘extended supervision order’ provides that it has the same meaning as in Part 5.3 of the Criminal Code .

536.            The definition of ‘interim supervision order’ provides that it has the same meaning as in Part 5.3 of the Criminal Code .

537.            The definition of ‘Part 5.3 object’ reflects the objects contained in Division 104 and 105A of the Criminal Code .

·          In relation to a control order, Part 5.3 object means any of the following:

o    the protection of the public from a terrorist act

o    the prevention of the provision of support for, or the facilitation of, a terrorist act, and

o    the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

·          In relation to ESOs and ISOs, Part 5.3 object means the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

538.            The definition of ‘Part 5.3 supervisory order’ provides that it means either a control order or an ESO or ISO.

539.            The definition of ‘Part 5.3 information’ provides that it has the same meaning as in subsection 50A(6). This is relevant to existing section 50A under which an agency can advise the Minister to defer reporting of such information.

540.            The definition of ‘Part 5.3 warrant’ provides that it means a surveillance device warrant or computer access warrant issued to determine whether to apply for a PSO or issued in relation to a Part 5.3 supervisory order that is or was in force.

541.            The definition ‘post-sentence detention law’ includes State and Territory detention order schemes under Part 3 of the Terrorism (High Risk Offenders) Act 2017 (NSW), Parts 5 and 6 of the Serious Offenders Act 2018 (Vic), Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence detention law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

542.            The definition of ‘post-sentence order’ provides that it means a CDO, an IDO, an ESO, or an ISO made under Division 105A of the Criminal Code .

543.            The definition ‘post-sentence supervision law’ includes State and Territory supervision order schemes under Part 2 of the Terrorism (High Risk Offenders) Act 2017 (NSW), Parts 3 and 4 of the Serious Offenders Act 2018 (Vic) and Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence supervision law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

544.            Paragraph (oa) of the definition of ‘relevant proceeding’ in subsection 6(1) will be amended to apply to PSOs, to accommodate the inclusion of ISOs and ESOs within Division 105A of the Criminal Code .

545.            The definition of ‘relevant proceeding’ will also be amended to include a proceeding under, or a proceeding relating to a matter arising under, a post-sentence detention law or a post-sentence supervision law.

546.            The definition ‘serious Part 5.3 offence’ has the meaning given by section 105A.2 of the Criminal Code .

547.            The definition of ‘succeeding control order’ has been replaced with ‘succeeding Part 5.3 supervisory order’, to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’. A ‘succeeding control order’ has the same meaning given by section 6D.

548.            The definition of ‘terrorist offender’ provides that it has the meaning as given by section 105A.2 of the Criminal Code .

Item 221 - Sections 6C and 6D

549.            Item 221 amends section 6C to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 221 amends section 6C to allow an application for a Part 5.3 warrant to be made and a warrant to be issued prior to the Part 5.3 supervisory order having come into force under Division 104 or 105A of the Criminal Code . This is necessary to provide an opportunity for devices to be covertly installed and to ensure they can be ready for use as soon as it is authorised by the Part 5.3 warrant.

550.            Item 221 amends section 6D to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 221 amends section 6D to provide that a successive Part 5.3 supervisory order made in relation to the same person is termed a ‘succeeding Part 5.3 supervisory order’. Extending the concept of a succeeding Part 5.3 supervisory order reflects that under 105A of the Criminal Code , an ESO may be made immediately after an ISO has been in force, and further that there is no limit on the number of ESOs that can be made in relation to an offender. The definition of succeeding Part 5.3 supervisory order is used throughout the provisions to ensure that Part 5.3 warrants may be issued or given, and information obtained via the use of those powers may be dealt with, in connection with subsequent equivalent orders, rather than being limited to the specific order that is in force at a given point in time.

551.            A control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa. For instance, under section 105A.3A of the Criminal Code there are transitional mechanisms which provide that persons subject to control orders may be eligible for an ESO. The warrant from a control order will not survive if that order is revoked because an ESO is made, and vice versa.

Item 222 - After subsection 14(3B)

552.            Item 222 amends section 14 to insert a new subsection 14(3BA). Specifically, Item 222 provides that a law enforcement officer may apply under subsection 14(3BA) for the issuance of a surveillance device warrant if the officer suspects on reasonable grounds that the use of the device to obtain information would be likely to assist in determining whether to make a PSO application.

553.            The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to an offender is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender’s level of risk, which will inform the decision whether or not to apply for a PSO.

554.            The use of a surveillance device authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

555.            Paragraph 14(3BA)(a) provides that the law enforcement officer may only apply under subsection 14(3BA) if it is in relation to a person who is eligible for a PSO. This confines the use of the device to information gathering with regard to the HRTO regime.

556.            Paragraph 14(3BA)(b) provides that the law enforcement officer may only apply under subsection 14(3BA) in relation to a person who is detained in custody. This is because once a person is released from custody, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person’s compliance with the order will allow for the collection of information to be used in determining whether to make PSO application.

557.            Paragraph 14(3BA)(c) provides that the officer must suspect on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence. The information which may inform a suspicion on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence will depend on the specific circumstances. It may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any other relevant information. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual.

558.            Paragraph 14(3BA)(d) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

559.            Paragraph 14(3BA)(e) provides that the officer must suspect on reasonable grounds that the use of the surveillance device to obtain information relating to the person would be likely to assist in determining whether to apply for a PSO. The threshold ‘likely to assist’ is appropriately lower than the threshold ‘substantially assist’ which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

·          there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

·          the level of risk the offender will pose upon release is difficult to establish while they are still in custody. It is vital that the offender’s level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

Items 223-226 - Subsection 14(3C)

560.            Items 223-226 amend subsection 14(3C) to apply to ESOs and ISOs, and continue the subsection’s application to control orders. Specifically, items 224-226 amend subsection 14(3C) to establish the application process for a warrant in relation to a Part 5.3 supervisory order. A law enforcement officer (or person on their behalf) may apply for the issue of a warrant if a Part 5.3 supervisory order is in force and the officer suspects, on reasonable grounds, that the use of a surveillance device to obtain information relating to the subject of the order would be likely to substantially assist in achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

Item 227 - Subsection 14(4)

561.            Item 227 makes a minor amendment to subsection 14(4) to refer to new subsection 13(3BA), which was inserted by Item 222.

Item 228 and 229 - Subsection 16(1)

562.            Items 228 and 229 amend subsection 16(1) to apply to ESOs and ISOs, and continue the subsection’s application to control orders. Specifically, items 228 and 229 amend subsection 16(1) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

563.            Subsection 16(1) establishes the factors that an eligible Judge or nominated AAT member must be satisfied of when determining whether to issue a surveillance device warrant.

564.            Item 228 amends paragraph 16(1)(bc) to apply to PSOs. Specifically Item 228 inserts new paragraph 16(1)(bba) to provide that, where a warrant is sought to determine whether to apply for a PSO, an eligible Judge or AAT member may issue a surveillance device warrant only if satisfied that the conditions in paragraphs 14(3BA)(a), (b) and (d) are met, and that there are reasonable grounds for the suspicions founding the application for the warrant.

565.            Item 228 amends paragraph 16(1)(bc) to apply to ESOs and ISOs. Specifically, Item 228 replaces paragraph 16(1)(bc) to provide that where a warrant is sought in relation to a Part 5.3 supervisory order that is in force in relation to a person, an eligible Judge or AAT member may issue a surveillance device warrant only if the order is in force in relation to the person, and if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.

Item 230 and 231 - Section 16

566.            Items 230 and 231 amend section 16 to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, Item 230 repeals paragraphs 16(2)(eb) to (g) and replaces them with paragraph (f), which streamlines this provision to apply to warrants relating to offences and child recovery orders. The content of the repealed provisions is covered in Item 231 in proposed subsection 16(4).

567.            Item 231 inserts new subsections 16(3) and 16(4) to provide that when determining whether a surveillance device warrant sought to determine whether to apply for a PSO should be issued, the eligible Judge or AAT member must have regard to:

·          the likely value of the information sought to be obtained in determining whether to apply for a PSO, and

·          any previous application for a surveillance device warrant sought or issued to determine whether to apply for a PSO in relation to the person.

568.            The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender’s level of risk, which will inform the decision whether or not to apply for a PSO.

569.            The use of a surveillance device authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

570.            With respect to surveillance device warrants sought to determine whether to apply for a PSO, there is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person’s privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is to obtain information that will ‘likely assist’ in determining whether or not a PSO application should be made. Further, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

571.            Item 231 extends at new subsection 16(4) the list of matters the eligible Judge or AAT member must have regard to at subsection 16(2) when determining whether to issue a surveillance device warrant sought in relation to an offender subject to a Part 5.3 supervisory order, including:

·          the likely value of the information sought to be obtained in achieving a Part 5.3 object or determining compliance with the relevant order

·          whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person’s privacy

·          the possibility that the person has contravened, is contravening, or will contravene, the order or a succeeding Part 5.3 supervisory order, and

·          any previous surveillance device warrant sought or issued on the basis of a Part 5.3 supervisory order that is or was in force in relation to the person.

572.            The purpose of these additional matters is to ensure the eligible Judge or AAT member expressly considers the purpose of the warrant.

Item 232-234 - Section 17

573.            Items 232-234 are consequential amendments to subsection 17(1) to reflect the amendment that control orders, ESOs and ISOs are captured within the expression of a ‘Part 5.3 supervisory order’.

574.            Section 17 sets the content requirements for a surveillance device warrant, which includes amongst other things, the name of the applicant and the kinds of surveillance devices authorised to be used under the warrant. This requirement ensures that the warrant clearly states its scope. If the surveillance device warrant is sought for determining whether to make a PSO application, it is not appropriate to list the type of PSO intended to be sought as it will be too early in the information gathering process to determine which PSO may be sought.

575.            Item 234 inserts new subsection 17(1B) to ensure for the avoidance of doubt that a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in paragraph (1A)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order. It also notes that if there is no succeeding Part 5.3 supervisory order, the warrant must be revoked.

Item 235 - Subsection 19(4)

576.            Item 235 is a consequential amendment to subsection 19(4) to reflect the amendment to subsection 16(2) and the new subsection 16(3) and (4). Item 235 amends subsection 19(4) to update references to the revised subsection numbers in section 16.

Item 236 - Subsection 20(2)

577.            Item 236 is a consequential amendment to subsection 20(2) to reflect the amendment to subsections 21(2) to (3D). Item 236 amends subsection 20(2) to update references to revised subsection numbers in section 21.

Items 237-239 - Section 21

578.            Items 237-239 amend section 21. Specifically, Item 237 seeks to simplify section 21 by setting out the circumstances in which the chief officer of a law enforcement agency is required to revoke a warrant under section 20 and take the necessary steps to ensure that the use of surveillance devices authorised by the warrant is discontinued. This amendment provides for circumstances where:

·          the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

·          if the warrant was sought for the purposes of an integrity operation—the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

·          if the warrant was sought on the basis of a Part 5.3 supervisory order being in force—where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

579.            Items 237-239 will not extend section 21 to apply to warrants sought on the basis of determining whether to apply for a PSO. This is to ensure relevant information can continue to be gathered prior to the determination of the application. This aligns with the warrant’s purpose of obtaining the most contemporary, relevant and admissible form of evidence to support the Court’s consideration of the AFP Minister’s application.

580.            Item 237 amends section 21 to add a note that a control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa (see section 6D).

581.            Item 239 seeks to simplify sections 21(5) and 21(6) by setting out the circumstances in which the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, is required to immediately notify the chief officer of a law enforcement agency to which the officer belongs or is seconded. This amendment provides for circumstances where:

·          the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

·          if the warrant was sought for the purposes of an integrity operation—the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

·          if the warrant was sought on the basis of a PSO being in force—where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

582.            The person will be in many cases the officer to whom the warrant was issued under section 17 and who made the application under existing section 14. However, this may not always be the case as section 14 enables a person to apply for a warrant on behalf of the law enforcement officer. There may also be staffing and organisational changes during the period the warrant is in place. Item 239 recognises that there may be multiple people working on the execution of a particular warrant, by placing the obligation on the person deemed primarily responsible. This position has not been legislated because agencies frequently structure investigations differently.

Items 240-243 - Section 27A

583.            Items 240-243 amend section 27A to apply to PSOs, and continue the section’s application to control orders.

584.            Specifically, items 240-243 amend section 27A to allow a law enforcement officer to apply for a computer access warrant if it would assist in determining whether to apply for a PSO. Items 240-243 provides that a law enforcement officer may apply under subsection 27(5A) for the issuance of a computer access warrant if the officer suspects on reasonable grounds that the access to data would be likely to assist in determining whether to make a PSO application.

585.            The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the Minister is able to make a fully informed decision as whether to apply for a PSO. The availability of a warrant in this context will broaden the information available to the Minister to enable a more comprehensive understanding of the offender’s level of risk of committing a serious Part 5.3 offence for the ultimate purpose of protecting the community.

586.            The access to data authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

587.            Paragraph 27A(5A)(a) provides that the law enforcement officer may only apply under subsection 27(5A) if it is in relation to a person who is eligible for a PSO. This confines the access to information gathering with regard to the HRTO regime.

588.            Paragraph 27A(5A)(b) provides that the law enforcement officer may only apply under subsection 27A(5A) if it is in relation to a person who is detained in custody. This is because once a person is released from custody, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person’s compliance with the order will allow for the collection of information to be used in determining whether to make PSO application.

589.            Paragraph 27A(5A)(c) provides that the officer must suspect on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence. The information which may inform a suspicion on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence will depend on the specific circumstances. It may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any other relevant information. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual.

590.            Paragraph 27A(5A)(d) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

591.            Paragraph 27A(5A)(e) provides that the officer must suspect on reasonable grounds that the data held in the computer would likely assist in determining whether a PSO application should be made. The threshold ‘likely to assist’ is appropriately lower than the threshold ‘substantially assist’ which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

·          there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

·          the level of risk of the offender at the beginning of the information gathering process is largely unknown. It is vital that the offender’s level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

592.            Further, items 240-242 amend section 27A to require that where a warrant is sought in relation to a Part 5.3 supervisory order, a law enforcement officer (or another person on the officer’s behalf) may apply for computer access where:

·          the order is in force in relation to a person, and

·          the officer suspects on reasonable grounds that access to data held in a computer to obtain information relating to the person would be likely to substantially assist in achieving a Part 5.3 object or determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

593.            The language ‘law enforcement officer, or another person on his or her behalf’ has been used to allow support staff engaged in the usual course of an investigation to assist or provide services. They are not specified in order to reflect that arrangements may differ between agencies.

594.            Subsections 27A(9), (10), (11), (13) and (14) provide for applications for computer access warrants to be made before an affidavit is prepared or sworn in some circumstances. In those cases, the applicant must send a duly sworn affidavit to a Judge or AAT member no later than 72 hours after the making of the application. This enables an application to be made in circumstances where immediate access is necessary.

595.            Computer access warrants are sought for access to data held in the target computer. The definition of target computer is set out in subsection 27A(15). The concept of the ‘target computer’ is the same as in section 25A of the ASIO Act. The target computer may be either a particular computer, a computer on a particular premises, or a computer associated with, or used or likely to be used by a person. The computer does not need to be owned by the suspect. For example, it might be a computer in the suspect’s house that he or she uses but is not owned by the suspect.

596.            The definition of ‘target computer’ should be read in conjunction with the definition of ‘computer’ in the SD Act. While an application for a warrant must identify a target computer, this does not prevent access to data associated with the target computer on another computer (section 27E). The concept of the target computer is intended to ensure that if an individual has more than one relevant computer, only one warrant will be necessary. For example, there may be multiple computers on the premises and it may only be discovered upon entering that a particular computer is not connected to the anticipated computer system. With the variety of computers and electronic devices now commonly used, it is highly probable that a person may store data on a number of computers (for example, a laptop, a phone and a tablet).

Items 244 and 245 - Subsection 27C(1)

597.            Items 244 and 245 amend subsection 27C(1) to apply to PSOs. Specifically, items 244 and 245 amend subsection 27C(1) to provide for the conditions under which an eligible Judge or nominated AAT member may issue a computer access warrant. Items 244 to 245 reflect the amendments made in items 240-242, which ensures that a law enforcement officer may only apply for a computer access warrant where certain conditions are met.

598.            Items 244 and 245 amend subsection 27C(1) to require, in the case of a computer access warrant sought to determine whether to apply for a PSO, the person must be a terrorist offender, and consideration is being given, will be given, or is likely to be given, as to whether to apply for a PSO in relation to the person and the issuing authority must be satisfied:

·          the officer suspects on reasonable grounds that the person poses an unacceptable risk of committing a serious Part 5.3 offence, and

·          the officer suspects on reasonable grounds that access to data held in a computer (the target computer) to obtain information relating to the person would be likely to assist in determining whether to make the application.

599.            Items 244 and 245 require, in the case of a computer access warrant sought in relation to a Part 5.3 supervisory order that is in force in relation to a person:

·          the order must be in force in relation to a person (with respect to section 6C), and

·          the issuing authority must be satisfied the officer suspects on reasonable grounds that access to data held in a computer (the target computer) to obtain information relating to the person would be likely to substantially assist in achieving a Part 5.3 object or determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

Items 246 and 247 - Section 27C

600.            Items 246 and 247 amend section 27C to apply to PSOs, and continue the section’s application to control orders.

601.            Specifically, Item 247 inserts a new subsection 27C(3) to ensure an eligible Judge or AAT member must have regard to:

·          the likely value of the information sought to be obtained in determining whether to apply for a PSO, and

·          any previous application for a computer access warrant sought or issued to determine whether to apply for a PSO in relation to the person.

602.            The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender’s level of risk, which will inform the decision whether or not to apply for a PSO.

603.            The access to data authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

604.            With respect to computer access warrants sought to determine whether to apply for a PSO, there is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether the access to data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person’s privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is to obtain information that will ‘likely assist’ in determining whether or not a PSO application should be made. Further, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

605.            Item 247 also inserts new subsection 27C(4) to extend the list of matters the eligible Judge or AAT member must have regard to at section 27C when determining whether to issue a computer access warrant sought in relation to an offender subject to a Part 5.3 supervisory order, including:

·          the likely value of the information sought to be obtained in achieving a Part 5.3 object or determining compliance with the relevant order

·          whether the access to data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person’s privacy

·          the possibility that the person has contravened, is contravening, or will contravene, the order or a succeeding Part 5.3 supervisory order, and

·          any previous computer access warrant sought or issued on the basis of a Part 5.3 supervisory order that is or was in force in relation to the person.

606.            The purpose of these additional matters is to ensure the eligible Judge or AAT member expressly considers the purpose of the warrant.

Item 248 - Paragraph 27D(1)(a)

607.            Item 248 is a consequential amendment to subsection 27D(1) to reflect the amendment to subsection 27C(2) and the new subsections 27(3) and (4). Specifically, Item 248 amends subsection 27D(1) to ensure a computer access warrant states that the eligible Judge or AAT member is satisfied of the requirements in issuing the warrant.

Item 249 and 250 - Section 27D

608.            Item 249 is a consequential amendment to subsection 27D(2) to reflect the amendment that CDO, an IDO, an ESO and an ISO are captured within the definition of a PSO.

609.            Item 249 amends subsection 27D(2) to set the content requirements for a computer access warrant, which includes amongst other things, the name of the applicant and the date the order was made. This requirement ensures that the warrant clearly states its scope. In the case of a computer access warrant being sought for determining whether to make a PSO application, it is not appropriate to list the type of PSO intended to be sought as it will be too early in the information gathering process to determine which PSO may be sought.

610.            Item 250 inserts subsection 27D(3A) to clarify that a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in paragraph (3)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order. However, if there is no succeeding Part 5.3 supervisory order, the warrant must be revoked.

Item 251 - Paragraph 27E(4)(e)

611.            Item 251 amends paragraph 27E(4)(e) to apply to PSOs, and continue the paragraph’s application to control orders. Specifically, Item 251 amends paragraph 27E(4)(e) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person. This is a clarifying provision that reiterates the thresholds in section 27A which must be met before a law enforcement officer may apply for a computer access warrant.

612.            The threshold ‘likely to assist’ is appropriately lower than the threshold ‘substantially assist’ which applies in warrants where a PSO is already in force and used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

·          there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

·          the level of risk of the offender before release is largely unknown. It is vital that the offender’s level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the threat to community safety posed by the offender if released into the community.

Item 252 - Subsection 27F(4)

613.            Item 252 is a consequential amendment to subsection 27F(4) to reflect the amendment to subsection 27C(2) and the new subsections 27C(3) and (4).

Item 253 - Subsection 27G(2)

614.            Item 253 is a consequential amendment to subsection 27G(2) to reflect the amendment to section 27H. Item 253 amends subsection 27G(2) to refer to revised subsection numbers in section 27H.

Item 254-256 - Section 27H

615.            Items 254-256 amend section 27H. Specifically, Item 254 seeks to simplify subsection 27H(2) by setting out the circumstances in which the chief officer of a law enforcement agency is required to revoke a warrant and take the necessary steps to ensure that access to data authorised by the warrant is discontinued. This amendment provides for circumstances where:

·          the access to data under the warrant is no longer required for the purpose for which it was sought

·          if the warrant was sought for the purposes of an integrity operation—the access to data under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

·          if the warrant was sought on the basis of a Part 5.3 supervisory order being in force—where the access to data under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

616.            Items 254-256 will not extend section 27H to apply to warrants sought on the basis of determining whether to apply for a PSO. This is to ensure relevant information can continue to be gathered prior to the determination of the application. This aligns with the warrant’s purpose of obtaining the most contemporary, relevant and admissible form of evidence to support the Court’s consideration of the Minister’s application.

617.            Item 254 inserts a note after subsection 27H(3) which clarifies that a control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa (see section 6D).

618.            Item 256 seeks to simplify sections 27H(9) and 27H(10) by setting out the circumstances in which the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, is required to immediately notify the chief officer of a law enforcement agency to which the officer belongs or is seconded. This amendment provides for circumstances where:

·          the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

·          if the warrant was sought for the purposes of an integrity operation—the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

·          if the warrant was sought on the basis of a PSO being in force—where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

619.            This person will be in many cases the officer to whom the warrant was issued under section 27C and who made the application under existing section 27A. However, this may not always be the case as section 27A enables a person to apply for a warrant on behalf of the law enforcement officer. There may also be staffing and organisational changes during the period the warrant is in place. Item 256 recognises that there may be multiple people working on the execution of a particular warrant, by placing the obligation on the person deemed primarily responsible. This position has not been legislated because agencies frequently structure investigations differently.

Items 257-259 - Subsection 37(4)

620.            Items 257 and 259 are consequential amendments to subsection 37(4) to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’.

621.            Item 258 is a consequential amendment to subsection 37(4) to reflect the fact that the purposes relevant for the use of optical surveillance devices are being streamlined to achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.  

Items 260-266 - Section 38

622.            Items 260-266 are consequential amendments to section 38 to reflect that a control order, an ESO and an ISO are captured within the definition of a ‘Part 5.3 supervisory order’. items 260-266 also amend section 38 to apply to ESOs and ISOs, and continue the section’s application to control orders.

623.            Specifically, items 260-266 amend subsection 38(3A) to permit State and Territory law enforcement officers to use a surveillance device to listen to or record words spoken without a warrant in limited circumstances to obtain information relating to a person subject to Part 5.3 supervisory order if it broadly involves listening or recording words spoken by a person where:

·          the Part 5.3 supervisory order is in force in relation to a person, and

·          a State or Territory law enforcement officer is acting in the course of their duties and it is for the purpose of achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order has been or is being complied with.

624.            Similarly, items 264-266 amend subsection 38(6) to permit a person assisting a State or Territory law enforcement officer to use a surveillance device without a warrant to obtain information relating to a person subject to Part 5.3 supervisory order if it the use involves listening or recording words spoken by a person where:

·          the Part 5.3 supervisory order is in force in relation to a person, and

·          a person is assisting a State or Territory law enforcement officer who is acting in the course of their duties in relation to achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order has been or is being complied with.

Items 267-269 - Subsection 39(3B)

625.            Items 267-269 amends subsection 39(3B) to apply to ESOs and ISOs, and continue the subsection’s application to control orders. Specifically, Item 269 amends subsection 39(3B) to permit a law enforcement officer to use a tracking device, with the written permission of an appropriate authorising officer, for obtaining information relating to a person who is subject to a Part 5.3 supervisory order for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

626.            Subsection 39(3B) is subject to the limitation under existing subsection 39(8), which provides that an appropriate authorising officer must not give permission for the use, installation or retrieval of a tracking device if its use or retrieval involves entry on to premises without permission or interference with the interior of a vehicle without permission.

Item 270 - Paragraph 40(1)(db)

627.            Item 270 amends paragraph 40(1)(db) to apply to ESOs and ISOs, and continue the paragraph’s application to control orders. Specifically, Item 270 amends paragraph 40(1)(db) to require that, in relation to a tracking device authorisation given in relation to a person subject to a Part 5.3 supervisory order, the matters which are to be recorded must also include details identifying the name of the person, the date the Part 5.3 supervisory order was made, and the type of order.

Item 271 - Paragraph 45(5)(c)

628.            Item 271 amends paragraph 45(5)(c). Specifically, Item 271 provides that protected information may be used under paragraph 45(5)(c) if it is for the purpose of a State or Territory relevant proceeding.

Item 272 - Paragraph 45(5)(j)

629.            Item 272 amends subsection 45(5) to apply to PSOs and continue the subsection’s application to control orders. Specifically, Item 272 expands the exempted uses of ‘protected information’ to include where it is necessary for:

·          the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (PSOs) of the Criminal Code

·          the making of a decision or application under a post-sentence detention law or a post-sentence supervision law in relation to a person, and

·          in respect to specified types of information - determining compliance with the relevant order (or any succeeding Part 5.3 supervisory order).

Item 273 - Paragraph 45(5)(k)

630.            Item 273 is a consequential amendment to paragraph 45(5)(k) to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a ‘Part 5.3 supervisory order’. Specifically, Item 273 amends paragraph 45(5)(k) to allow information obtained under a tracking device authorisation, or relating to a tracking device authorisation, or likely to enable the identification of a person, object or premises specified in a tracking device authorisation to be used, recorded, communicated, published or admitted into evidence to determine whether the Part 5.3 supervisory order is being complied with.

Item 274 and 275 -Section 45

631.            Item 274 inserts a new subsection 45(5A). Specifically, Item 274 is an avoidance of doubt provision to ensure that the specific exemptions that authorise the use of information contained in paragraphs 45(5)(ia), (ib), (ic) and (j) are not used to read down the application of paragraph 45(5)(c).

632.            It is intended that Item 274 prevents the reading down of paragraph 45(5)(c) so that protected information may be used in all circumstances relating to the following:

·          in subsequent civil and criminal proceedings, and

·          for information obtained in relation to a control order - for the purposes of an application for an ESO.

633.            For example, information obtained in relation to an existing ESO or control order could be used for the purposes of determining whether to make a subsequent application for an ESO (for instance where the existing order is expiring), or to bring criminal proceedings against that offender.

634.            Item 275 makes consequential amendments to subsection 45(6) as a result of amendments made in Item 272.

Item 276 - Subsection 45(9) (at the end of the definition of State or Territory relevant proceeding )

635.            Item 276 amends subsection 45(9) to apply to post-sentence supervision laws. Specifically, Item 276 expands the definition of ‘State or Territory relevant proceeding’ to include post-sentence supervision laws and post-sentence detention laws.

Items 277-285 - Section 46A

636.            Items 277-285 amend section 46A to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 277-285 amend section 46A to deal with the destruction of records or reports comprised of information obtained under a Part 5.3 supervisory order warrant issued, or a tracking device authorisation given, to determine whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with prior to the Part 5.3 supervisory order having come into force.

637.            Items 277-285 amend section 46A to require information obtained prior to the Part 5.3 supervisory order having come into force—that is, prior to the person having been able to comply with the Part 5.3 supervisory order— to be destroyed as soon as practicable. However, the destruction requirement does not apply to records or reports that are likely to assist in connection with achieving a Part 5.3 object. This reflects the public interest in law enforcement agencies being permitted to use information in their possession to prevent acts of terrorism and hostile activity in foreign countries.

638.            Paragraph 46A(2) displaces the operation of existing section 6C in relation to existing subsection 46A(1), which would otherwise deem a Part 5.3 supervisory order to be in force from the moment it is made.

Item 286 - Subparagraph 49(2)(b)(xb)

639.            Item 286 is a consequential amendment to subparagraph 49(2)(b)(xb) to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a ‘Part 5.3 supervisory order’. Specifically, Item 286 amends subparagraph 49(2)(b)(xb) to require the chief officer to report, in relation to each warrant issued on the basis of a Part 5.3 supervisory order, certain details. Item 286 amends subparagraph 49(2)(b)(xb) to ensure that law enforcement agencies are required to document and report the value of the use of surveillance devices.

Item 287 - Paragraph 49(2A)(a)

640.            Item 287 amends paragraph 49(2A)(a) to apply to ESOs and ISOs, and continue the paragraph’s application to control orders. Specifically, Item 287 amends paragraph 49(2A)(a) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

Item 288 - Paragraph 49(2B)(b)(ix)

641.            Item 288 is a consequential amendment to subsection 49(2B) to reflect the amendment that a ‘control order warrant’ would not capture warrants issued on the basis of a control order, an ESO and an ISO. Specifically, Item 288 amends subsection 49(2B) to list the requirement of the report in the case of a computer access warrant or an emergency authorisation, for access to data held in a computer. The report must state whether the warrant or authorisation was executed, the name of the person primarily responsible for the execution, the name of each person involved in accessing data, the name of any person whose data was accessed, and the location at which the computer was located.

642.            The reporting requirements recognise that accessing a person’s data under a computer access warrant is privacy-intrusive, which requires proportionate safeguards.

Item 289 - Paragraph 49(2C)(a)

643.            Item 289 amends paragraph 49(2C)(a) to apply to PSOs, and continue the paragraph’s application to control orders. Specifically, Item 289 amends paragraph 49(2C)(a) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

Item 290 - Section 49A

644.            Item 290 repeals and replaces section 49A so that it applies to ESOs and ISOs, and to continue the section’s application to control orders. Specifically, section 49A provides that within six months after a Part 5.3 warrant (as defined in subsection 6(1)) is issued, the chief officer of the agency must notify the Commonwealth Ombudsman that the warrant has been issued and must give the Commonwealth Ombudsman a copy of the warrant.

645.            Item 290 amends paragraph 49A(2)(a) to provide that if any conditions in a Part 5.3 warrant are contravened the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable.

646.            Item 290 amends paragraph 49A(2)(b) to provide that if an obligation to revoke a warrant (subsections 20(2) and 27G(2)) or prohibition to use, record, communicate or publish protected information (section 45) or obligation to keep information secured or destroyed (subsection 46(1)) is contravened, to the extent that they relate to a surveillance device warrant or computer access warrant issued on the basis of a Part 5.3 supervisory order, the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable.

647.            Paragraph 49A(2)(c) provides that if an obligation to destroy a record (section 46A) is contravened, to the extent that they relate to a surveillance device warrant or computer access warrant issued on the basis of a Part 5.3 supervisory order, the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable

648.            Subsection 49A(3) provides that a failure to report to the Commonwealth Ombudsman on the issuing of a Part 5.3 warrant or about a contravention of such a warrant does not affect the validity of the warrant.

Items 291-293 - Section 50A

649.            Items 291-293 amend section 50A to apply to ESOs and ISOs, and continue the section’s application to control orders. Specifically, items 291-293 amend section 50A to allow the public reporting of Part 5.3 information to be deferred until a subsequent report in limited circumstances. Under existing subsection 50A(2), the chief officer of a Commonwealth agency or the chief officer of an eligible authority of a State or Territory must advise the Minister not to include the information in the Minister’s report, which is tabled in Parliament, if the chief officer is satisfied that the information is ‘Part 5.3 information’ as defined in Item 215. This ‘Part 5.3 information’ is information that, if made public, could reasonably be expected to enable a reasonable person to conclude that a warrant is likely to be, or is not likely to be, in force in relation to a particular premises, object or person.

650.            Pursuant to existing subsection 50A(3) the Minister can act on the advice of the chief officer of the agency and not include the information in the report. If this is the case, there remains a positive obligation on the chief officer of the agency to advise the Minister to include the information in the next report if the chief officer is satisfied that a reasonable person could no longer draw those inferences from the information.

651.            The reason for section 50A is that control orders have historically been sought and made only rarely, with the effect that it is uncommon for there to be more than a limited number of control orders in force at any given time. If agencies were required to contemporaneously report on the number of warrants issued with respect to persons subject to control orders, and only a limited number of persons are subject to control orders at that time, annual reporting may effectively reveal that a particular person who is subject a control order is or is not also subject to covert surveillance. This equally applies in relation to ESOs and ISOs.

652.            The ability of a person to determine, or to speculate with a degree of certainty, whether they are, or are not, likely subject to surveillance may be further enhanced if the relevant order contains particular conditions that are particularly amenable to monitoring by way of a surveillance device. This would undermine the purpose and effectiveness of such warrants, by enabling and incentivising persons to either adopt counter-measures to avoid or reduce the effectiveness of covert surveillance (if the person determines they are, or are likely to be, under surveillance), or to breach the terms of the order.

Item 294 - Subsection 50A(6)

653.            Item 294 amends subsection 50A(6) to repeal the definition of ‘control order information’ substituting a definition for ‘Part 5.3 information’, which reflect that control orders, ESOs and ISOs are captured within the definition of a ‘Part 5.3 supervisory order’.

Item 295 - Subparagraphs 53(2)(c)(iiic) and (iiid)

654.            Item 295 amends subparagraphs 53(2)(c)(iiic) and (iiid) to apply to ESOs and ISOs, and continue the paragraph’s application to control orders. Specifically, Item 295 amends subparagraphs 53(2)(c)(iiic) and (iiid) to consolidate the requirement contained in subparagraphs 53(2)(c)(iiic) and (iiid) into a single paragraph.

655.            Section 53 requires the chief officer of a law enforcement agency to cause a register of warrants and emergency and tracking device authorisations sought by law enforcement officers of their agency to be kept. Subsection 53(2) specifies what must be included in the register in relation to surveillance device warrants.

Items 296-312 - sections 55, 61, 61A, 64A, 65A and 65B

656.            Items 296-312 make various consequential amendments to sections 55, 61, 61A, 64A, 65A and 65B to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a ‘Part 5.3 supervisory order’ and that Part 5.3 warrants encapsulate ISOs, ESOs and control orders.

Telecommunications (Interception and Access) Act 1979

Overview

657.            The TIA Act and other Commonwealth legislation confers a range of investigatory powers on law enforcement and other agencies. The Bill will amend the TIA Act to extend its applicability in relation to ESOs and ISOs. The Bill will allow agencies to apply for telecommunications services warrants, named person warrants and warrants for entry onto premises.

658.            It is imperative that law enforcement agencies have adequate powers to monitor a person’s compliance with the conditions of a Part 5.3 supervisory order. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to a person to breach the conditions of their order. This enhances the effectiveness of the Part 5.3 supervisory order. The evidence obtained through monitoring will also assist in supporting relevant Court proceedings sought to more closely align the order with the person’s evolving level of risk.

Items 313-323 - Subsection 5(1)

659.            Items 313-323 amend subsection 5(1) to include, amend and repeal several definitions.

660.            The definition of ‘AFP Minister’ is relevant to Item 362 (section 46A(2C)) and provides that it has the same meaning as in section 100.1 of the Criminal Code .

661.            The existing definitions of ‘control order warrant’ and ‘control order warrant agency’ are repealed to reflect that a control order is now contained within the meaning of a Part 5.3 supervisory order.

662.            The definitions of ‘detained in custody’, ‘extended supervision order’, ‘interim supervision order’, ‘post-sentence order’, ‘serious part 5.3 offence’ and ‘terrorist offender’ provide that they each have the same meaning as in Part 5.3 of the Criminal Code .