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Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016

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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

CRIMINAL CODE AMENDMENT (High risk terrorist offenders) bill 2016

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

 

                                                                                                                                  



 

AMENDMENTS TO THE criminal code amendment (high risk terrorist offenders) Bill 2016

(Government)

general Outline

1.                   The Criminal Code Amendment (High Risk Terrorist Offenders) Bill (the Bill) was introduced into the Senate and referred to the Parliamentary Joint Committee on Intelligence and Security (the Committee) on 15 September 2016. The Committee’s Report on the Bill contained recommendations for amending the Bill and the Explanatory Memorandum.

2.                   The Government has accepted all 24 of the Committee’s recommendations.  The purpose of the amendments to the Bill is to implement Recommendations 2-6, 8, 9, 11-13 and 15-20, and address issues arising from further consideration of the Bill since its introduction.

3.                   The amendments will clarify provisions of the Bill and enhance safeguards for the high risk terrorist offenders continuing detention scheme.

FINANCIAL IMPACT

4.                   The majority of the amendments to the Bill have little or no financial impact on Government expenditure or revenue. Amendment 47, which implements Committee Recommendation 12, by empowering the Court to make an order for reasonable costs to be funded in certain circumstances, may have financial implications for the Commonwealth. It is not yet possible to provide a precise estimate of the financial implications of this amendment, as it is unclear how many applications may be made for continuing detention orders and how many orders for reasonable costs the Court might make. The financial implications of this amendment will be considered as part of the implementation of the regime.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016

5.                   The amendments to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (the Bill) are 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

6.                   The amendments to Schedule 1 of the Bill amend the Criminal Code to implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (the Report). The Bill has also been amended to enhance safeguards and improve the efficacy of the continuing detention scheme.   

Overview of measures

7.                   The Bill establishes a scheme whereby the Attorney-General can apply to the Supreme Court of a State or Territory for a continuing detention order.  A continuing detention order provides for a terrorist offender to be detained in a prison for the period the order is in force, which can be up to three years.  The scheme does not authorise detention by executive action or the detention of minors. 

8.                   The amendments to Schedule 1 of the Bill make important changes to the continuing detention scheme.  The amendments provide that:

·          an application for a continuing detention order may be commenced up to 12 months (rather than 6 months) prior to the expiry of a terrorist offender’s sentence

·          the scope of the offences to which the scheme applies be limited by removing offences against Subdivision B of Division 80 (treason) and offences against subsections 119.7(2) and (3) of the Criminal Code (publishing recruitment advertisements)

·          the Attorney-General must apply to the Supreme Court for a review of a continuing detention order (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) and that failure to do so will mean that the continuing detention order will cease to be in force

·          the Attorney-General must undertake reasonable inquiries to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer that would reasonably be regarded as supporting a finding that a continuing detention order should not be made (or is no longer required)

·          the application for a continuing detention order, or review of a continuing detention order, must include a copy of any material in the possession of the Attorney-General or any statements of facts that the Attorney-General is aware of that would reasonably be regarded as supporting a finding that an order should not be made

·          on receiving an application for an interim detention order the Court must hold a hearing where the Court must be satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the terrorist offender

·          each party to the proceeding may bring forward their own preferred relevant expert, or experts, and that the Court will then determine the admissibility of each expert’s evidence

·          any responses to questions or information given by the terrorist offender to an expert during an assessment will not be admissible in evidence against the offender in criminal and other civil proceedings

·          the Court may receive evidence of the level of the terrorist offender’s compliance with any obligations to which he or she is, or has been, subject while on release on parole for any offence, and the offender’s history of any prior convictions or finding of guilt made in relation to any offence

·          the offences that the Court must have regard to in making a continuing detention order be confined to those offences referred to in paragraph 105A.3(1)(a) of the Bill

·          if the offender, due to circumstances beyond their control, is unable to obtain legal representation, the Court may stay the proceeding and/or require the Commonwealth to bear all or part of the cost of the offender’s legal representation in the proceeding

·          when sentencing an offender convicted under any of the provisions of the Criminal Code to which the continuing detention scheme applies, the sentencing court must warn the offender that an application for continuing detention could be considered

·          the continuing detention scheme be subject to a sunset period of 10 years after the day the Bill receives Royal Assent, and

·          a control order can be applied for and obtained while an individual is in prison, but that the controls imposed by that order would not apply until the person is released. 

9.                   To enhance oversight of the continuing detention scheme, the amendments also provide that:

·          the Independent National Security Legislation Monitor Act 2010 be amended to require the Independent National Security Legislation Monitor (INSLM) to complete a review of the continuing detention scheme five years after the day the Bill receives Royal Assent, and

·          the Intelligence Services Act 2001 be amended to require that the Committee review the continuing detention scheme six years after the day the Bill receives Royal Assent.

Human rights implications

10.               The amendments contained in the Bill are consistent with Australia’s human rights obligations and do not engage any additional human rights to those identified in the Statement of Compatibility in the Explanatory Memorandum to the Bill, as originally introduced in the Senate on 15 September 2016. The amendments contained in the Bill engage, and strengthen the following rights:

·          the right to procedural guarantees in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), and

·          the right to freedom from arbitrary detention in Article 9 of the ICCPR.

Schedule 1 - Amendments to the Criminal Code Act 1995

11.               The amendments contained in Schedule 1 of the Bill allow for the continued detention of terrorist offenders serving custodial sentences who are assessed by a judge to present an unacceptable risk to the community at the time their sentences expire. 

Procedural guarantees under Article 14 of the ICCPR

12.               Article 14(1) of the ICCPR provides that, in the determination of a person’s rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The continuing detention scheme engages Article 14(1) as a proceeding for a continuing detention order involves the determination of a terrorist offender’s rights and obligations.  

13.               In accordance with Recommendation 12 of the Committee’s Report, the Bill inserts new section 105A.15A, which provides that if the offender, due to circumstances beyond their control, is unable to engage a legal representative in relation to a continuing detention order proceeding, the Court may make either or both of the following orders:

·          stay the proceeding for such period and subject to such conditions as the Court thinks fit,

·          an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender’s legal representation in the proceeding.

14.               The gravity of a continuing detention order on a terrorist offender, being the deprivation of their liberty, requires strong safeguards to ensure procedural fairness is guaranteed. Providing for legal representation for a terrorist offender who is the subject of continuing detention order proceedings is important to ensure that the terrorist offender may respond effectively to the matters raised by the Commonwealth. Providing for the staying of a proceeding and/or requiring the Commonwealth to bear all or part of the costs of the offender’s legal representation where the terrorist offender, through no fault of their own, has been unable to obtain legal representation, enhances the terrorist offender’s right to a fair hearing.     

15.               New subsection 105A.5(2A) provides the Attorney-General 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 the continuing detention order should not be made. New paragraph 105A.5(3)(aa) provides that the application by the Attorney-General for a continuing detention order 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. These new requirements will also apply when a continuing detention order is periodically reviewed. 

16.               These amendments ensure that the terrorist offender and the Court are provided all the material that may be relevant in the determination of a continuing detention order application. Accordingly, the terrorist offender will be given the opportunity to put forward their case in light of all the available material that is relevant to the proceeding. 

17.               If the Court appoints an expert under subsection 105A.6(3), the terrorist offender is required to attend the assessment conducted by the expert for the purposes of determining the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community. While the offender is not required to participate in the assessment, the Court must have regard to the level of the offender’s participation in the assessment.

18.               In order to avoid the terrorist offender having to decide between participating in the assessment but potentially disclosing self-incriminating information, and not participating in the assessment at all, new subsection 105A.6(5A) guarantees that the terrorist offender will be protected from self-incrimination.  The answers or information provided by the terrorist offender during an assessment session will not be admissible in evidence against the offender in subsequent criminal or other civil proceedings.  New subsection 105A.6(6) provides that the Court must ensure the terrorist offender is made aware of the abovementioned facts.  This amendment allows the terrorist offender to participate effectively in the expert assessment, without fear that the information provided will subsequently be used against them in a proceeding.

19.               Under subsection 105A.5(4), the Attorney-General is required to provide a copy of the application for a continuing detention order to the terrorist offender within 2 business days after the application is made. However, subsection 105A.5(5) provides that the Attorney-General is not required to provide the terrorist offender information in the application if the Attorney-General is likely to take certain actions under the National Security Information (Criminal and Civil Proceedings) Act 2004 , or seek an order from the Court limiting or preventing its disclosure. New subsection 105A.5(6) provides that the offender must be given a complete copy of the application within 2 business days of the Attorney-General’s decision or the Court order, and in any case, within a reasonable period before the preliminary hearing. 

20.               In accordance with Recommendation 6 of the Committee’s Report, the Bill clarifies that the rules of evidence apply to matters the Court is required to have regard to in its determination as to whether a terrorist offender poses an unacceptable risk of committing a serious terrorism offence if released into the community. Additionally, in accordance with Recommendation 9 of the Committee’s Report, new subsection 105A.6(8) provides that each party to the proceeding can bring forward their own preferred relevant expert, or experts, and that the Court will then determine the admissibility of each expert’s evidence.  

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

21.               Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention. Detention will not be arbitrary where it is appropriate, justifiable, reasonable, necessary and proportionate to achieving a legitimate objective. The legitimate objective pursued by the Bill is the safety of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious terrorism offences. This objective is consistent with the purposes of the ICCPR, which includes the protection of the rights of people in the community, whose life, liberty and property otherwise would be impacted by the perpetration of serious terrorism offences.  

22.               In order to strengthen the non-arbitrary nature of the continuing detention scheme, the amendments in the Bill also provide:

·          that upon receiving an application for an interim detention order, the Court must hold a hearing to determine whether to make an order (new subsection 105A.9(1A)), and

·          for an increased threshold for obtaining an interim detention order so that the Court must be satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relating to the terrorist offender (revised paragraph 105A.9(2)(b)). 

23.             These additional amendments, combined with the existing safeguards in the continuing detention scheme, ensure that the detention of a terrorist offender is only authorised where it is not arbitrary in nature. 

24.             The amendments to the Bill are compatible with human rights because they promote the right to a fair hearing under Article 14 of the ICCPR and strengthen the right to freedom from arbitrary detention under Article 19 of the ICCPR. 



 

NOTES ON AMENDMENTS

Amendment 1: Schedule 1, page 4 (before line 4), before item 1

Notice when sentencing

25.               Amendments 1(1A) and 1(1B) implement Recommendation 17 of the Committee’s Report. The Report recommended that there be a requirement on the Court when sentencing an offender convicted under any of the provisions of the Criminal Code that apply to the continuing detention order regime, to warn the offender that an application for post-sentence detention could be considered.

26.               Amendment 1(1A) inserts a note at the end of section 72.3 of the Criminal Code (offences relating to international terrorist activities using explosive or lethal devices) advising that a court sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders in accordance with section 105A.23.

27.               Amendment 1(1B) inserts a note at the end of section 100.1 of the Criminal Code (definitions for Part 5.3 -Terrorism) advising that a court sentencing a person who has been convicted of an offence against this Part, the maximum penalty of which is 7 or more years imprisonment, must warn the person about continuing detention orders in accordance with new section 105A.23.

Control orders

28.               Amendments 1(1C) to 1(1Q) implement Recommendation 16 of the Committee’s Report.  The Report recommended that, for the avoidance of doubt, Division 104 of the Criminal Code should be amended to make explicit that a control order can be applied for and obtained while an individual is in prison, but that the controls imposed by the order would not apply until the person is released. 

29.               Amendment 1(1C) repeals and replaces subsection 104.2(5) to make it clear that a senior AFP member may seek the Attorney-General’s consent to request an interim control order in relation to a person even if the person is detained in custody. The new note in subsection 104.2(5) advises that an interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody, and references new paragraph 104.5(1)(d).

30.               Amendment 1(1D) repeals and replaces paragraph 104.5(1)(d) so that if the issuing court makes an interim control order in relation to a person who is detained in custody, the order must state that it does not begin to be in force until the person is released from custody. 

31.               Amendment 1(1E) inserts paragraph 104.5(1B)(aa). This new paragraph ensures that if the issuing court makes an interim control order in relation to a person who is detained in custody, when specifying a day for the purposes of paragraph 104.5(1)(e) (a day on which the person must attend court for the court to confirm, declare void or revoke the interim control order), the issuing court must take into account any other matter relating to the person’s detention that the court considers relevant. 

32.               Amendment 1(1F) inserts a new avoidance of doubt provision at subsection 104.5(1C). Subsection 104.5(1C) clarifies that if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph 104.5(1)(e). 

33.               Amendment 1(1G) inserts a new avoidance of doubt provision and note at subsection 104.5(2AA). Subsection 104.5(2AA) makes it clear that if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody. If a person in the community is subject to a control order, the person contravenes that order and is subsequently taken into custody, the relevant obligations, prohibitions and restrictions will still apply while the person is detained.  The note clarifies that if a person is detained in custody (before a control order has been made in relation to that person), and a control order is then made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph 104.5(1)(d)). 

34.               Amendment 1(1H) adds a note at the end of subsections 104.10(3) and 104.12(1) that refers to section 104.28B for personal service of documents on a person detained in custody.  Subsection 104.10(3) provides that if an urgent interim control order ceases to be in force, the senior AFP member must cause the annotated order, indicating that it has ceased to be in force, to be served personally on the person. Subsection 104.12(1) provides that as soon as practicable after an interim control order is made an AFP member must, amongst other things, serve the order personally on the person. 

35.               Amendment 1(1J) inserts new subsection 104.12(3A).  Subsection 104.12(3A) provides that paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs. Paragraph 104.12(1)(b) places an obligation on the AFP member to inform the person of certain matters when they are serving the order personally on the offender, for example the effect of the order and the period of the order (see subparagraphs 104.12(1)(b)(i) and (ii)). Paragraph 104.12(1)(c) requires the AFP to also ensure that the person understands the information provided under paragraph 104.12(1)(b) (taking into account the person’s age, language skills, mental capacity and any other relevant factor). The exception under new subsection 104.12(3A) is necessary to ensure that the interim control order is not affected in circumstances where it is impracticable for the AFP member to comply with their obligations under paragraphs 104.12(1)(b) and (c).  Circumstances where it may be impracticable for the AFP member to comply with these obligations include where the requirements of a person’s detention do not permit it or the person is unwilling to meet with the AFP member. 

36.               Amendment 1(1K) adds a note at the end of subsections 104.12A(2) and (4) and 104.17(1) advising that section 104.23B should be referred to for personal service of documents on a person detained in custody. Paragraph 104.12A(2)(a) provides that if the senior AFP member elects to confirm a control order the AFP member must serve documents and information referred to in subparagraphs 104.12A(2)(a)(i)-(iii) personally on the person in relation to whom the order is made. Subsection 104.12A(4) provides that if the senior AFP member elects not to confirm the order that is in force, then the order immediately ceases to be in force and an AFP member must cause the annotated order, indicating that it has ceased to be in force, to be served personally on the person. Subsection 104.17(1) provides that as soon as practicable after an interim control order is declared void, revoked or confirmed, an AFP member must serve the declaration, revocation or the confirmed control order personally on the person. 

37.               Amendment 1(1L) inserts new subsection 104.17(2A).  Subsection 104.17(2A) provides that paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs. 

38.               Amendment 1(1M) adds a note at the end of subsections 104.20(3) and 104.26(1) advising that section 104.28B should be referred to for personal service of documents on a person detained in custody. Subsection 104.20(3) provides that an AFP member must serve a revocation or variation personally on the person as soon as practicable after a confirmed control order is revoked or varied. Subsection 104.26(1) provides that as soon as practicable after a control order is varied under section 104.24, an AFP member must serve the varied order personally on the person. 

39.               Amendment 1(1N) makes a minor technical amendment to subsection 104.26(3) so that the subsection will correctly refer to “control order” instead of “interim control order”. 

40.               Amendment 1(1P) inserts new subsection 104.26(3A). Subsection 104.26(3A) provides that paragraphs (1)(b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs. Paragraphs 104.26(1)(b) and (c) place an obligation on the AFP member to inform the person that the order has been varied to impose additional obligations, prohibitions and restrictions  and other certain matters when they serve the varied order personally on the person.  Paragraph 104.26(1)(d) requires the AFP to also ensure that the person understands the information provided under paragraph 104.26(1)(C) (taking into account the person’s age, language skills, mental capacity and any other relevant factor). 

41.               Amendment 1(1Q) inserts new section 104.28B - Giving documents to persons detained in custody.

42.               Subsection 104.28B(1) provides that a document that is required under Division 104 to be given to a person (the prisoner ) personally who is detained in custody at a prison, is taken to have been given to the prisoner at the time referred to in paragraph 104.28B(3)(b), if the document is given to the following person (the recipient ):

·          legal representative of the prisoner;

·          if the prisoner does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer. 

43.               The note at subsection 104.28B(1) advises that the obligation to inform the prisoner of matters referred to in paragraphs 104.12(1)(b), 104.17(1)(b) and 104.26(1)(b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation.  The note then refers to new subsections 104.12(3A), 104.17(2A) and 104.26(3A).

44.               Subsection 104.28B(2) requires the recipient to, as soon as practicable, give the document to the prisoner personally.

45.               Subsection 104.28B(3) stipulates that once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document in writing that the document has been given to the prisoner and the day the document was so given.

Amendment 2: Schedule 1, Item 1, Page 4 (before line 15)

46.             This amendment relates to Amendment 11 and inserts a definition of a Commonwealth law officer into section 105A.2. 

Amendments 3 and 4: Schedule 1, Item 1, Page 4 (line 21 and after line 21)

47.               Amendments 3 and 4 implement Recommendation 12 of the Committee’s Report. The Report recommended that the Bill be amended so that if an offender, through no fault of his or her own, is unable to obtain legal representation, the Court has the explicit power to stay proceedings for a continuing detention order, and the Court is empowered to make an order for reasonable costs to be funded to enable the offender to obtain legal representation. 

48.               These amendments are consequential amendments made necessary by Amendment 47, which inserts section 105A.15A—When a terrorist offender is unable to engage a legal representative. Amendment 3 amends section 105A.2, to add an ‘or’ at the end of paragraph (b) of the definition of a continuing detention order decision, as Amendment 4 adds a paragraph (c) to the definition.

49.               Amendment 4 amends section 105A.2 to insert paragraph (c) into the definition of a continuing detention order decision. This will make clear that an order made by the court under section 105A.15A (to be inserted by Amendment 47), concerning when a terrorist offender is unable to engage a legal representative, is a continuing detention order decision.

Amendment 5: Schedule 1, Item 1, page 4 (after line 23)

50.               This amendment relates to Amendment 11 and inserts a definition of intelligence or security officer into section 105A.2.

Amendment 6: Schedule 1, Item 1, page 5 (lines 25 and 26)

51.               Amendment 6 implements Recommendation 2 of the Committee’s Report.  The Report recommended that the Bill be amended to remove an offence against Subdivision B of Division 80 of the Criminal Code (treason) from the scope of offences the continuing detention order scheme will apply to.

52.               This amendment removes subparagraph 105A.3(1)(a)(ii) which refers to treason. This means that continuing detention orders will not be available for a person convicted of treason.  It ensures the scope of offences for which continuing detention orders will be available is limited to terrorism-related activities.

Amendments 7 and 8: Schedule 1, Item 1, page 5 (line 29 and after line 29)

53.               Amendments 7 and 8 implement Recommendation 3 of the Committee’s Report.  The Report recommended removing the foreign incursions offences relating to the publishing of recruitment advertisements at subsection 119.7(2) and (3) of the Criminal Code

54.               Amendment 7 inserts a qualification into subparagraph 105A.3(1)(a)(iv). It will specify that a continuing detention order will not be able to be made in relation to a person who is serving a sentence of imprisonment for offences against subsections 119.7(2) and (3) of the Criminal Code , which refer to publishing recruitment advertisements. Continuing detention orders will be available for other recruitment offences, such as facilitating recruitment.

55.               Amendment 8 inserts subparagraph 105A.3(1)(a)(v) so that continuing detention orders will be available where a person has been convicted of an offence under the now repealed Crimes (Foreign Incursions and Recruitment) Act 1978 and is serving a sentence of imprisonment.  Consistent with Recommendation 3 of the Report, continuing detention orders will not be available for offences against paragraph 9(1)(b) or (c) of that Act (which refer to publishing recruitment advertisements). Continuing detention orders will be available for other recruitment offences under that Act, such as facilitating recruitment.

Amendment 9: Schedule 1, item 1, page 6 (after line 10)

56.               Amendment 9 implements Recommendation 4 of the Committee’s Report. The Report recommended that the Bill be amended to clarify the interaction between parole and bail provisions and make explicit that:

·          a person is not eligible for parole if that person is subject to a continuing detention order

·          a person detained for the purposes of giving effect to a continuing detention order is not entitled to seek bail, and

·          a person subject to a continuing detention order and charged with a further offence is entitled to make an application for bail for that offence.

57.               This amendment inserts Note 3 at the end of subsection 105A.3(2), to clarify that an offender may not be eligible to be released on bail or parole while a continuing detention order is in force, and refers to section 105A.24. Section 105A.24—Effect of continuing detention orders on bail or parole laws (to be inserted by Amendment 53) sets out when a person may be released on bail or parole and when they may apply for bail or parole.  

Amendment 10: Schedule 1, item 1, page 7 (line 7)

58.               Amendment 10 implements Recommendation 5 of the Committee’s Report.  The Report recommended amending subsection 105A.5(2) to provide that an application for a continuing detention order may be commenced up to 12 months (rather than six months) prior to the completion of an offender’s sentence, in order to provide all parties additional time to prepare and for the offender to seek legal representation.

59.               This amendment amends subsection 105A.5(2) to extend the relevant time period for applying for a continuing detention order from six to 12 months. If the offender is serving a sentence of imprisonment the application may not be made more than 12 months before the end of a sentence. If the offender is subject to a continuing detention order then an application may not be made more than 12 months before the end of the period for which the order is in force.

Amendment 11: Schedule 1, item 1, page 7 (after line 14)

60.               This amendment inserts subsection 105A.5(2A) into the Bill, which will require the Attorney-General to ensure reasonable enquiries are made to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer that would reasonably be regarded as supporting a finding that an order should not be made.

61.               This amendment 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.

Amendment 12: Schedule 1, item 1, page 7 (after line 19)

62.               This amendment inserts paragraph 105A.5(3)(aa) into the Bill, which will require that an application for a continuing detention order must include any material, or a statement of any facts, the applicant is aware of that could reasonably be regarded as supporting a finding that the order should not be made.

63.               This amendment ensures all relevant information is before the Court in determining whether to make a continuing detention order.

Amendments 13, 14 and 15: Schedule 1, item 1, page 7 (line 32), page 8 (lines 5 and after line 7)

64.               Amendments 13, 14 and 15 implement Recommendation 11 of the Committee’s Report.  The Report recommended that it be made explicit that an offender is to be provided in a timely manner with information to be relied on in an application for a continuing detention order. These amendments are designed to make it clear that subsection 105A.5(5) does not prevent material that the Attorney-General seeks to rely on in an application for a continuing detention order from ultimately being disclosed to the offender.

65.               Amendment 13 makes a minor drafting amendment to subsection 105A.5(5).  Subsection 105A.5(5) provides that the applicant is not required to provide certain information in the application to the offender where the Attorney-General is likely to ‘take any of the following actions’, specified in paragraphs 105A.5(5)(a) - (d), to protect that information.

66.               Amendment 14 removes paragraph 105A.5(5)(c), which provides that the applicant does not need to give information in the application to the offender where the Attorney-General intends to make a claim of public interest immunity.

67.               Amendment 15 inserts subsection 105A.5(6), which will make clear the intention that an applicant is required to give an offender a complete copy of the application in a timely manner. Where the Attorney-General decides not to take any of the actions specified in paragraphs 105A.5(5)(a) - (c) to protect the information, or where the Attorney-General takes such action and the Court makes an order, the applicant is required to give the offender a complete copy of the application within two business days. In any case, the applicant is required to give the offender a complete copy of the application within a reasonable period before the commencement of a preliminary hearing for a continuing detention order.

Amendment 16: Schedule 1, item 1, page 8 (lines 15 to 18)

68.               Amendment 16 implements Recommendations 9 and 10 of the Committee’s Report. Recommendation 9 is that the Bill should make clear that each party is able to bring forward their preferred relevant expert, or experts, and that the Court will then determine the admissibility of each expert’s evidence.  Recommendation 10 is that it be made explicit that a Court may appoint a relevant expert at any point during continuing detention order proceedings.

69.               This amendment replaces subsection 105A.6(3) and will insert subsection 105A.6(3A). Subsection 105A.6(3) lowers the threshold for when the Court may appoint an expert. It provides that the Court may appoint a relevant expert where it considers that it is ‘likely to materially assist the Court in deciding whether to make the continuing detention order’. This amendment also clarifies that the Court may appoint an expert at any point during the proceedings (Recommendation 10).

70.               Subsection 105A.6(3A) specifies that all parties are able to nominate their preferred relevant expert, or experts, to assist the Court. It will then be a matter for the Court to determine whether it wishes to appoint one or more of those nominated experts (Recommendation 9).

Amendment 17: Schedule 1, item 1, page 8 (after line 28)

71.               This amendment inserts subsection 105A.6(5A), which clarifies that any information provided by the offender during a relevant expert’s assessment is not admissible in evidence against the offender in civil or criminal proceedings.  

72.               Any information provided by the offender during the relevant expert’s assessment can be used for the purposes of a continuing detention order proceeding. New subsection 105A.6(5A) is subject to subsection 105A.6(4) and paragraphs 105A.8(1)(b) and (c).

73.               Subsection 105A.6(4) provides that a relevant expert who is appointed must conduct an assessment and provide a report of the assessment to the Court, the Attorney-General and the offender.  Paragraphs 105A.8(1)(b) and (c) provide that in deciding whether to make a continuing detention order the Court must have regard to any report received from a relevant expert under section 105A.6 and the results of any other assessment conducted by a relevant expert.

74.               This additional safeguard ensures that the offender is relieved of the risk of self-incrimination when participating in the assessment. This is particularly important as the Court must have regard to the level of the offender’s participation in any such assessment (see paragraph 105A.8(1)(b)).  However, derivative use of the information, such as using the information to further a law enforcement investigation, will not be prohibited.

Amendment 18: Schedule 1, item 1, page 8 (lines 29 and 30)

75.               This amendment is a consequential amendment to subsection 105A.6(6), made necessary by Amendments 17 and 29. This amendment adds a reference to subsection 105A.6(5A) (introduced by Amendment 17) and updates the reference to paragraph 105A .8(1)(b) (made necessary by Amendment 29, which inserts additional subsections into section 105A.8).  The amendment will ensure that the effect of new subsection 105A.6(5A) is explained to the offender.

Amendment 19: Schedule 1, item 1, page 8 (line 32)

76.               Amendment 19 implements Recommendation 8 of the Committee’s Report.  This amendment amends subsection 105A.6(7) to replace the word ‘must’ with ‘may’, such that the expert’s report may include the matters specified in paragraphs 105A.6(7)(a) - (h). This amendment reflects the fact that a relevant expert may not be in a position to provide an expert opinion on all specified matters, and will ensure relevant experts are not required to advise on those matters that are not within their area of expertise.

Amendment 20: Schedule 1, item 1, page 9 (after line 21)

77.               Amendment 20 implements part of Recommendation 9 of the Committee’s Report.  This amendment inserts subsection 105A.6(8), which provides that the provisions in the Bill do not preclude the parties to the proceedings from seeking to call their own relevant experts as witnesses in the proceedings. This amendment makes explicit that each party is able to bring forward their own expert, or experts. The admissibility of each expert’s evidence will be a matter for the Court to determine.

Amendments 21 and 22: Schedule 1, item 1, page 9 (line 37 and after line 37)

78.               Amendments 21 and 22 implement part of Recommendation 6 of the Committee’s Report.  The Report recommended that it be made clear that the rules of evidence apply to matters the Court is required to have regard to in its decision as to whether the terrorist offender poses an unacceptable risk of committing a serious terrorism offence if released into the community. 

79.               Amendment 21 amends subsection 105A.7(1), to amend the title of the existing note to “Note 1”. This is a consequential amendment made necessary by Amendment 22, which will insert Note 2 into subsection 105A.7(1). Note 2 clarifies that the rules of evidence and procedure for civil matters apply when the Court is considering the matters it must have regard to (set out in section 105A.8)  in determining whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence.

80.               This amendment clarifies the application of the rules of evidence and procedure in determining whether to make a continuing detention order.

Amendment 23: Schedule 1, item 1, page 10 (line 18)

81.               This is a consequential amendment to section 105A.8 that is made necessary by Amendment 29 which inserts subsections 105A.8(2) - (3). This amendment provides that existing section 105A.8 will be subsection 105A.8(1).

Amendment 24: Schedule 1, item 1, page 11 (line 8)

82.               This amendment amends subparagraph 105A.8(f)(i) so that in determining whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence, the Court is only required to consider the offender’s compliance with any obligations to which he or she has been subject while on parole for any of the offences listed in paragraph 105A.3(1)(a).

83.               This would not preclude a Court from having regard to the offender’s compliance with any obligations to which he or she has been subject while on parole for any other offence, if the Court considered such information to be relevant.

Amendment 25: Schedule 1, item 1, page 11 (lines 11 and 12)

84.               This amendment removes and replaces paragraph 105A.8(g) so that in determining whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence, the Court is only required to consider the offender’s criminal history of convictions for and findings of guilt in relation to any of the offences in paragraph 105A.3(1)(a).

85.               This would not preclude a Court from having regard, under new subsection 105A.8(2), to the offender’s criminal history as it concerns other criminal offences, if the Court considered such information to be relevant.

Amendment 26: Schedule 1, item 1, page 11 (lines 13 and 14)

86.               This amendment amends paragraph 105A.8(h) so that in determining whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence, a Court is only required to consider the views of the sentencing court at the time of any sentence for any of the offences in paragraph 105A.3(1)(a).

87.               This would not preclude a Court from having regard, under new subsection 105A.8(2), to the views of a sentencing court at the time of a sentence for any other offence, if the Court considered such information to be relevant.

Amendments 27 and 28: Schedule 1, item 1, page 11 (lines 16 and 17)

88.               These amendments are consequential amendments made necessary by Amendment 29. Amendment 27 amends paragraph 105A.8(i) to add a full stop at the end of the paragraph, as Amendment 28 will make paragraph 105A.8(i) the last paragraph in 105A.8.

89.               Amendment 28 removes paragraph 105A.8(j), which stipulates the Court could consider other relevant matters in  determining whether or not to make a continuing detention order, as Amendment 29 will insert a new subsection on this matter.

Amendment 29: Schedule 1, item 1, page 11 (after line 17)

90.               This amendment inserts subsections 105A.8(2) and (3). Subsection 105A.8(2) makes clear that the list of matters the Court must have regard to in determining whether or not to make a continuing detention order does not preclude the Court from having regard to any other matter the Court considers relevant.

91.               Subsection 105A.8(3) implements part of Recommendation 6 of the Committee’s Report. The amendment provides that section 105A.13, concerning civil evidence and procedure rules in relation to continuing detention order proceedings, applies to the Court’s consideration of the matters it must have regard to in considering whether the offender poses an unacceptable risk of committing a serious Part 5.3 offence and in considering any other matters the Court considers relevant.

92.               The amendment clarifies the application of the rules of evidence and procedure in determining whether to make a continuing detention order.

Amendment 30: Schedule 1, item 1, page 11 (after line 23)

93.               This amendment inserts subsection 105A.9(1A), which provides that if the Attorney-General applies to the Court for an interim detention order, the Court must hold a hearing to determine whether to make the interim continuing detention order.

94.               This clarifies that a Court cannot make an interim continuing detention order until there has been a contested hearing of the application for such an order.

Amendment 31: Schedule 1, item 1, page 11 (lines 34 to 37)

95.               This amendment removes and replaces paragraph 105A.9(2)(b). This amendment increases the threshold for obtaining an interim detention order so that the Court must be satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender. This amendment provides the terrorist offender with an additional safeguard in relation to interim detention order proceedings. 

Amendments 32, 33 and 34: Schedule 1, item 1, page 12 (lines 21 to 29 and line 30) and page 13 (line 1)

96.               Amendments 32, 33 and 34 implement Recommendation 15 of the Committee’s Report.  The Report recommended that the process for the initiation of a periodic review of a continuing detention order be clarified.

97.               Amendment 32 replaces subsection 105A.10(1).  New subsections 105A.10(1A) and (1B) provide that the Attorney-General, or a legal representative of the Attorney-General, must apply to a Supreme Court of a State or Territory for a review of a continuing detention order within 12 months after the order has been in force; or 12 months after the order was most recently reviewed.

98.               New subsection 105A.10(1) provides that on receiving the application for review, the Court must begin the review before the end of that period.  The note advises that the process for reviewing a continuing detention order is provided for at section 105A.12.

99.               Amendment 33 amends subsection 105.10(2) to provide that despite subsection 105A.10(1), an application for a review, and a review are not required if an application for a new continuing detention order in relation to the offender has been made and not withdrawn.

100.           Amendment 34 is a consequential amendment made necessary by amendment 32, which provides that the Attorney-General, or his or her legal representative, must apply to a Supreme Court for a review of a continuing detention order.  Amendment 34 amends subsection 105.10(3) to stipulate that the application for review must be made to the Supreme Court of the State or Territory where the prison in which the offender is detained is located. 

Amendment 35: Schedule 1, item 1, page 13 (after line 2)

101.           Amendment 35 completes the implementation of Recommendation 15 of the Committee’s Report. The amendment inserts an additional safeguard to ensure that the periodic review mechanism is not frustrated. New subsection 105A.10(4) provides that the consequence of not making an application in accordance with section 105A.10, including within the prescribed time pursuant to subsection 105A.10(1B), is that the order will cease to be force at the end of the period referred to in subsection 105A.10(1B). 

Amendment 36: Schedule 1, item 1, page 13 (before line 28)

102.           This amendment is a minor drafting amendment that inserts the heading ‘Relevant experts’ before subsection 105A.12(3) of the Bill. 

Amendment 37: Schedule 1, item 1, page 13 (after line 30)

103.           This amendment inserts subsections 105A.12(3A) and (3B) and implements Recommendation 9 of the Committee’s Report. The Report recommended that the Bill should explicitly provide that each party is able to bring forward their preferred relevant expert, or experts, and that the Court will then determine the admissibility of each expert’s evidence.

104.           Subsection 105A.12(3A) specifies that all parties are able to nominate their preferred relevant expert, or experts, for the purposes of the review.

105.           Subsection 105A.12(3B) provides that subsection 105A.12(3) does not prevent the Attorney-General, the offender, or their legal representatives, from calling his or her own relevant expert as a witness in the review.

Amendments 38 and 39: Schedule 1, item 1, page 14 (line 12 and after line 12)

106.           These amendments (with Amendments 21 and 22) implement Recommendation 6 of the Committee’s Report. The Report recommended that it be made clear that the rules of evidence apply to matters the Court is required to have regard to in its decision as to whether the terrorist offender poses an unacceptable risk of committing a serious terrorism offence if released into the community. 

107.           Amendment 38 amends subsection 105A.12(4), to make clear that the existing note will be Note 1.  This is a consequential amendment made necessary by Amendment 39, which inserts Note 2 after subsection 105A.12(4).  Note 2 clarifies that the rules of evidence and procedure for civil matters apply when the Court is considering the matters it must have regard to when deciding whether to affirm or revoke the continuing detention order.

Amendment 40: Schedule 1, Item 1, page 14 (before line 15)

108.           This amendment inserts subsection 105A.12(5A) into the Bill, which will require the Attorney-General to ensure reasonable enquiries are made to ascertain any facts known to a Commonwealth law enforcement or intelligence or security officer that would reasonably be regarded as supporting a finding that an order that is being reviewed pursuant to section 105A.10 or 105A.11 should not be affirmed.

109.           This amendment 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.

Amendment 41: Schedule 1, Item 1, page 14 (after line 16)

110.           This amendment inserts subsection 105A.12(6A) into the Bill. Subsection 105A.12(6A) will require that, during proceedings for the review of a continuing detention order, the Attorney-General (or representative of the Attorney-General) must provide the Court with any material, or a statement of any facts, they are aware of that could reasonably be regarded as supporting a finding that the order should not be affirmed.

111.           This amendment ensures all relevant information is before the Court in determining whether to make a continuing detention order.

Amendment 42: Schedule 1, Item 1, page 15 (lines 1 to 4)

112.           This amendment replaces subsection 105A.13(2). Subsection 105A.13(2) previously provided that the Court may receive in evidence in the proceeding evidence of the relevant terrorist offender’s criminal history (including prior convictions and findings of guilty in respect of any offences).

113.           New subsection 105A.13(2) will specify 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 compliance with any obligations to which he or she has been subject while on parole for any offence, and

·          the offender’s criminal history of convictions for and findings of guilt in relation to any offence.

114.           This amendment clarifies the application of the rules of evidence and procedure in relation to continuing detention order proceedings.

Amendment 43: Schedule 1, Item 1, page 15 (lines 11 to 15)

115.           This amendment replaces subsection 105A.15(1), which will make clear the process for providing documents to a terrorist offender. It implements Recommendation 13 of the Committee’s Report. 

116.           Subsection 105A.15(1) will specify that, where documents are to be provided to a terrorist offender under Division 105A who is in detention, then the documents are to be given to the legal representative of the offender in the first instance. If the offender does not have a legal representative, then the documents may be provided to the chief executive officer of the prison or their delegate.

117.           This amendment will ensure that the offender’s legal representative, if they have one, will have access to the documents relating to continuing detention order proceedings in a timely manner.

Amendments 44 to 46: Schedule 1, Item 1, page 15 (lines 16, 18 and 19)

118.           These are consequential amendments made necessary by Amendment 43, which sets out to whom documents relating to continuing detention order proceedings are to be provided. 

Amendments 47, 48 and 49: Schedule 1, Item 1, page 15 (after line 22), and page 17 (line 5 and after line 5)

119.           Amendments 47, 48 and 49 implement Recommendation 12 of the Committee’s Report. Amendment 47 inserts section 105A.15A, which empowers the Court to make certain orders if an offender, due to circumstances beyond the offender’s control, is unable to obtain legal representation in relation to a continuing detention order proceeding.

120.           Paragraph 105A.15A(2)(a) provides that the Court may make orders staying the proceeding for such period and subject to such conditions as the Court thinks fit.  For example, the Court may decide the proceeding should be stayed for a short period of time whilst the offender pursues further avenues for obtaining legal representation.

121.           Paragraph 105A.15A(2)(b) provides that the Court may make an order requiring the Commonwealth to bear reasonable costs and expenses to enable the offender to obtain legal representation.

122.           Subsection 105A.15A(3) creates a power to make regulations that may prescribe matters the Court may, must or must not consider in determining these matters.

123.           It is expected that a Court would only make an order under paragraph (2)(b) in very limited circumstances where it is clear that all other avenues for the offender obtaining legal representation have been pursued, and that the offender has played no part in creating the situation where they are unrepresented.

124.           Amendment 48 is a minor consequential amendment to subparagraph 105A.18(1)(a)(iv) made necessary by Amendment 49, which inserts new subparagraph 105A.18(1)(a)(v).

125.           Amendment 49 is a consequential amendment made necessary by Amendment 47, which inserts section 105A.15A. Amendment 49 provides that section 105A.18, concerning the consequences of release of a terrorist offender, applies in relation to an appeal against a decision to stay proceedings where an offender, due to circumstances beyond their control, is unable to obtain legal representation in relation to continuing detention order proceedings. This means that if a decision against an order to stay the proceedings under subsection 105A.15A is appealed, the offender is released and the stay is then overturned, the offender will still be eligible to be subject to an interim or continuing detention order.

Amendments 50 and 51: Schedule 1, Item 1, page 19 (line 14 and lines 16 and 17)

126.           Amendments 50 and 51 are minor technical amendments to section 105A.21 to clarify that the Attorney-General may make arrangements with the States and Territories for a terrorist offender to be detained in a prison of a State or Territory where an interim detention order is in force.

127.           These amendments correct an oversight in the Bill, which only specified such arrangements could be made in relation to a continuing detention order.

Amendment 52: Schedule 1, Item 1, page 19 (line 32)

128.           Amendment 52 relates to implementation of Recommendation 15 of the Committee’s Report. 

129.           Amendment 52 is a minor technical amendment to paragraph 105A.22(2)(e), to clarify the annual reporting requirement. It makes clear that the report must specify the number of applications for review of continuing detention orders made by terrorist offenders during the year. This reflects the fact that terrorist offenders, or their legal representatives, are able to make applications for review under section 105A.11. Applications for periodic review by the Attorney-General under section 105A.10 are covered under paragraph 105A.22(2)(a).   

Amendment 53: Schedule 1, item 1 page 20 (after line 6), at the end of Subdivision F

130.           Amendment 53 inserts three new sections:

·          section 105A.23—Warning about continuing detention order when sentencing for certain offences

·          section 10A.24—Effect of continuing detention order on bail and parole laws, and

·          section 105A.25—Sunset provision.

131.           New section 105A.23 implements Recommendation 17 of the Committee’s Report. Subsection 105A.23 provides that a court that is sentencing a person who is convicted of an offence referred to in paragraph 105A.3(1)(a) must warn the person that an application may be made under Division 105A for a continuing detention order requiring the person to be detained in a prison after the end of the person’s sentence for the offence.

132.           Subsection 105A.23(2) provides that a failure by the court to comply with subsection 105A.23(1) does not affect the validity of the sentence for the offence, or prevent an application from being made under Division 105A in relation to the person. 

133.           New section 105A.24 implements Recommendation 4 of the Committee’s Report. Subsection 105A.24(1) clarifies that a person who is subject to a continuing detention order is not eligible to be released on parole until the order ceases to be in force. A continuing detention order is only likely to commence at the end of the offender’s sentence when parole is no longer available to that person.  However, this amendment makes it very clear that parole is not available to the offender whilst they are subject to an interim or continuing detention order.

134.           Subsection 105A.24(1) also clarifies that a person who is subject to an interim or continuing detention order is not eligible to be released on bail in relation to that order.

135.           In addition, if an offender commits a further offence whilst detained in a prison under a continuing detention order, and they apply for bail in relation to that offence, the offender may not be released on bail while the continuing detention order remains in force. While it is unlikely a court would grant bail to an offender who is currently subject to a continuing detention order (given such an individual would have been recently assessed by a court to pose an unacceptable risk of committing a serious terrorism offence), this amendment clarifies that the individual cannot be released while the order remains in force. Subsection 105A.24(2) makes it clear that the offender would not be precluded from applying, before the order ceases to be in force, to be released on bail.  However, if a court was minded to grant bail to the offender, the offender could not be released while the continuing detention order remained in force.

136.           Subsection 105A.24(3) makes it clear that section 105A.24 applies despite any law of the Commonwealth, a State or a Territory. For example if an offender, who is subject to a continuing detention order commits a further offence while in prison, the offender may apply for parole (when they reach the relevant parole eligibility period of their sentence), or apply for bail for that offence in the normal fashion, subject to any requirements of the relevant bail legislation. However, the individual may not be released on parole or bail while the continuing detention order is in force.

137.           Section 105A.25 provides that a continuing detention order, cannot be applied for, or made, after the end of 10 years after the day the Bill received Royal Assent. A continuing detention order that is in force at the end of this sunset period will remain in force for the rest of the period specified in the order. During this time all of the architecture of Division 105A will apply to those orders, including periodic review requirements and the appeal provisions.

Amendment 54: Schedule 1, item 2, page 20 (before line 12), section 106.8 (after the heading)

138.           Amendment 54(1) provides that the amendments to section 104.2 in this Bill will apply in relation to any control order, whether made before or after this section commences.

139.           Amendment 54(2) provides that the amendments to subsections 104.5(1) and (1B) and section 104.12 in this Bill will apply in relation to a control order if the request for the control order is made after this section commences.

140.           Amendment 54(3) provides that the amendments to subsection 104.5(1C) and (2AA) in this Bill will apply in relation to any control order, whether made before or after this section commences.

141.           Amendment 54(4) provides that the amendments to section 104.17 in this Bill will  apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.

142.           Amendment 54(5) provides that the amendments to section 104.26 in this Bill will apply in relation to any control order varied after this section commences.

143.           Amendment 54(6) provides that new section 104.28B will apply in relation to the giving of documents after this section commences. 

Amendment 55: Schedule 1, item 2, page 20 (line 12)

144.            Amendment 55 inserts subsection 106.8(7). Subsection 106.8(7) provides that the post sentence preventative detention scheme in new Division 105A (apart from new section 105A.23—warning about continuing detention order when sentencing for certain offences) will apply to any person who has been detained in custody and is serving a sentence of imprisonment for a relevant offence, regardless of whether they were convicted and sentenced prior to the commencement of the scheme.  It will also apply to persons who have been convicted of a relevant offence prior to the commencement of the scheme, but sentenced after the commencement of the scheme.

Amendment 56: Schedule 1, item 2, page 20 (after line 20)

145.           This amendment inserts subsection 106.8(8), which provides that the requirement under section 105A.23 for a sentencing court to warn a person convicted of a relevant offence about the effect of Division 105A will apply to any sentence imposed after the commencement of section 105A.23, regardless of when the offence was committed.

Amendment 57: Schedule 1, page 20 (after line 20)

146.           This amendment implements Recommendation 17 of the Committee’s Report and inserts a note after section 117.1, to make clear that, consistent with section 105A.23, a Court sentencing a person for a foreign incursions and recruitment offence against Part 5.5 (other than offences against subsections 119.7(2) and (3) of the Criminal Code , which refer to publishing recruitment advertisements) must warn a person about the effect of Division 105A.

Amendment 58: Schedule 2, page 21 (before line 4)

147.           Amendments 58(1A) and 58(1B) make minor technical amendments to paragraphs 3ZQU(1)(e) and 3ZZEA(1)(d) of the Crimes Act 1914 , to replace references to Division 104 and 105 with references to Division 104, 105 and 105AA.

148.           Section 3ZQU governs the use and sharing of things seized under Part IAA and information and documents produced under Division 4B of the Crimes Act 1914 . It is appropriate that a constable or Commonwealth officer may use things that:

·          have been seized under Part IAA, or

·          the original or a copy document produced under Division 4B

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, the proposed Division 105A (continuing detention orders) of the Criminal Code. For example, if a search warrant is executed as part of an investigation of possible terrorism offences, it is appropriate that any evidence seized during the execution of that warrant be able to be used to support an application for, or proceedings related to, continuing detention orders. This ensures the Attorney-General, or a legal representative of the Attorney-General, and the Court has all evidence available when making or determining a continuing detention order application in relation to a terrorist offender.

149.           Amendment 58(1C) implements Recommendation 17 of the Committee’s Report and inserts a note after subsection 16F(1) of the Crimes Act 1914 , to make clear that, consistent with section 105A.23 of the Criminal Code , a Court sentencing a person for an offence in relation to which a continuing detention order may be sought must warn a person about the effect of Division 105A.

150.           Amendments 58(1D) and (1E) implement Recommendation 20 of the Committee’s Report.  The Report recommended that there be a requirement that the Independent National Security Legislation Monitor complete a review of the continuing detention order regime five years after the passage of the Bill. Amendments 58(1D) and (1E) amends section 6 the Independent National Security Legislation Monitor Act 2010 , to specify that the Independent National Security Legislation Monitor complete a review of the continuing detention order regime within five years of the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 receiving Royal Assent.

151.           Amendment 58(1F) implements Recommendation 19 of the Committee’s Report.  The Report recommended that there be a requirement that the Committee complete a review of the continuing detention order regime five years after the passage of the Bill. Amendment 58(1F) amends subsection 29(1) of the Intelligence Services Act 2001 to specify that the Parliamentary Joint Committee on Intelligence and Security complete a review of the operation, effectiveness and implications of the continuing detention order regime within six years of  the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 receiving Royal Assent.