Senate

Revised Explanatory Memorandum - Extracts Only

Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC

Schedule 1 - Amendments and repeals

Part 1 - Amendments

Administrative Decisions (Judicial Review) Act 1977

Item 1 - After paragraph (db) of Schedule 1

413. Item 1 inserts paragraphs (dc) and (dd) in Schedule 1 of the ADJR Act. Schedule 1 of the Act lists classes of decisions that are not decisions to which the Act applies.

414. New paragraph (dc) provides that decisions made under new sections 22A and 24A of the Passports Act, which are inserted by items 21 and 23, are not subject to review under the ADJR Act. These new sections enable the 14-day suspension and surrender of a person's Australian travel documents.

415. New paragraph (dd) provides that decisions made under new sections 15A and 16A of the Foreign Passports Act, which are inserted by items 129 and 131, are not subject to review under the ADJR Act. These new sections relate to the 14-day surrender of a person's foreign travel documents.

416. It is necessary to exclude all decisions listed in new paragraphs (dc) and (dd) from review under the ADJR Act as judicial review under the Act may compromise the operations of security agencies and defeat the national security purpose of the new mechanisms. For example, the new mechanisms would be made redundant if a court were to make an injunction order allowing the person of security concern to travel on an Australian travel document despite that document being suspended. The exclusion of the decisions from review under the ADJR Act is balanced by the fact that the effect of the decision is for a short temporary period of 14 days.

417. The exclusion of these decisions from ADJR Act review implements Recommendations V/4 and V/5 of the INSLM's fourth annual report. The INSLM noted that for the temporary passport suspension to be an effective counter-terrorism measure a decision to request a passport suspension should not be subject to judicial review (except under the Constitution) or merits review.

418. The exclusion of these decisions from ADJR Act review does not prevent the decisions from being judicially reviewed under paragraph 75(v) of the Constitution. Additionally, the IGIS will have oversight of any decision by ASIO to make a request under the new provisions in the Passports Act and the Foreign Passports Act. Crimes Act 1914

Items 35 to 38 - Overview of definition of terrorism offence

519. Subsection 3(1) defines terrorism offence as an offence against Subdivision A of Division 72 of the Criminal Code, or an offence against Part 5.3 of the Criminal Code. This definition is particularly important in the context of the Crimes Act for:

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Division 3A of Part 1A which provides powers in relation to terrorist acts and terrorism offences

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Section15AA which relates to bail not being granted in certain cases

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Section 19AG which relates to non-parole periods for sentences for certain offences

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New section 3WA in Part 1AAwhich inserts a new power of arrest without a warrant for a terrorism offence or offence of advocating terrorism

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New Part 1AAA which inserts the delayed notification search warrant scheme, and

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Part 1C which provides powers to detain a person for the purpose of investigating a terrorism offence.

520. Items 35-37 expand the current definition of terrorism offence for the purposes of the Crimes Act. These items implement Recommendation VI/6 of the INSLM's fourth report. In this recommendation the INSLM reiterates his position stated in his third annual report that 'there is no reason in principle or policy to distinguish UN Charter Act terrorism financing offences which implement Australia's international counter-terrorism obligations under 1373 and relate to potentially very serious terrorism financing activity, from terrorism offences under the Criminal Code.' Further to this, he notes that the Foreign Incursions Act criminalises politically motivated violence, including conduct that would fit within the meaning of 'terrorist act' under the Criminal Code and criminalises engaging in hostile activity with an organization which is a proscribed terrorist organization under the Criminal Code. For this reason there is similarly reason in principle or policy to distinguish between the offences under the Foreign Incursions Act, which cover potentially very serious terrorist activity, from terrorism offences under the Criminal Code.

521. The amended definition of terrorism offence will also be used in the Proceeds of Crime Act 2002 as item 136 repeals the existing definition of terrorism offence in section 338 and replaces it with a cross-reference to the definition in the Crimes Act.

522. The Government considers it appropriate that individuals who engage in the very serious conduct that is contrary to Australia's international counter-terrorism obligations regarding terrorism funding activity or conduct contrary to the Crimes (Foreign Incursions and Recruitment) Act 1978 should face the same consequences as an individual who commits a terrorism offence contrary to the Criminal Code.

523. The application of this amendment will not have retrospective effect in the sense that a person who has been convicted and sentenced for an offence that was not a terrorism offence at the time of sentencing will not be subject to re-sentencing and the imposition of a longer non-parole period. However, it is appropriate that a person who has committed such an offence before the commencement of the amendments and is convicted and sentenced after their commencement should be subject to the possibility of a longer parole period. Similarly, it is appropriate for the AFP to use the new delayed notification search warrant powers after the commencement of the amendments to collect evidence in relation to an offence committed before commencement.

Item 35 - Subsection 3(1) (after paragraph (a) of the definition of terrorism offence)

524. This item extends the definition of terrorism offence in subsection 3(1) to include offences against Subdivision B of Division 80 of the Criminal Code. This includes the offence of treason at section 80.1 and the offence of treason-materially assisting enemies etc. at 80.1AA.

Item 36 - Subsection 3(1) (paragraph (b) of the definition of terrorism offence)

525. This item extends the definition of terrorism offence in subsection 3(1) to include foreign incursion and recruitment offences that will be inserted in new Part 5.5 of the Criminal Code.

Item 37 - Subsection 3(1) (at the end of the definition of terrorism offence)

526. This item extends the definition of terrorism offence in subsection 3(1) to include offences against Part 4 of the UN Charter Act and Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions-Al Qaida) Regulations 2008.

Item 38 - Application of amendments

527. This item provides that the amendments to the definition of terrorism offence in subsection 3(1) apply in relation to any terrorism offence, whether the offence occurs before, on or after commencement off this item.

528. The application provision will not have 'retrospective' effect in the sense that a person who has been convicted and sentenced for an offence that was not a terrorism offence at the time of sentencing will not be subject to re-sentencing and the imposition of a longer non parole period.

529. It is appropriate, however, that a person who has committed such an offence before the commencement of the amendments and is convicted and sentenced after their commencement should be subject to the possibility of a longer non-parole period, of at least three-quarters of their sentence.

530. Similarly, it is appropriate for the AFP to use the new delayed notification search warrant powers after the commencement of the amendments to collect evidence in relation to an offence committed before commencement.

Items 39 to 42 - Amendments relating to the creation of a new delayed notification search warrant scheme

531. These items relate to the creation of the new delayed notification search warrant scheme (see item 51) and distinguish the existing search, information gathering, arrest and related powers in Part IAA of the Crimes Act from the powers provided in the new Part IAAA, referred to at item 51.

Item 39 - Part IAA (heading)

532. This item substitutes the existing heading 'Part IAA-search, information gathering, arrest and related powers' with 'Part IAA-search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)'. This reflects the insertion of a new Part IAAA in the Crimes Act, which provides for additional search and information gathering powers that do not fall within Part IAA.

Item 40 - Subsection 3C(1) (at the end of the definition of issuing officer )

533. Item 40 adds a drafting note below the definition of issuing officer in subsection 3C(1) of the Crimes Act to clarify how this definition will interact with the relevant provisions within the new Part IAAA of the Crimes Act. The meaning of an issuing officer specifies who is authorised to issue a warrant to search premises or a person or a warrant for arrest under Part IAA of the Crimes Act. Under proposed section 3ZZBJ of the new Part IAAA of the Crimes Act, an eligible issuing officer (as defined in Part IAAA) is also authorised to issue a warrant to search premises as if the eligible issuing officer were an issuing officer within the meaning of subsection 3C(1). This provision is intended to enable applications for ordinary search warrants and delayed notification search warrants relevant to the same investigation to be determined by one eligible issuing officer.

Item 41 - Subsections 3D(1) and (2)

534. Subsections 3D(1) and (2) clarify that Part IAA does not limit or exclude the operation of Commonwealth laws relating to the search of premises, arrest and related matters, the stopping, detaining or searching of conveyances or persons, the seizure of things or the requesting of information or documents from persons. Item 41 inserts '(including other provisions of this Act)' within subsections 3D(1) and (2) as an additional Commonwealth law that is not limited or excluded by Part IAA. This clarifies that even though new Part IAAA may provide a power to do one or more things contained within Part IAA, the similar power conferred by Part IAA may be used despite those powers elsewhere.

Item 42 - After subsection 3E(1)

535. Subsection 3E(1) specifies when search warrants can be issued under Part IAA of the Crimes Act. Item 42 inserts a drafting note at the end of this section to clarify that the issue of delayed notification search warrants is set out in new Part IAAA.

Item 43 - Subsection 3UK(1)

536. This item extends the ability for police officers to exercise powers and duties under Division 3A of Part IAA until 7 September 2018. Division 3A gives police officers powers in relation to terrorist acts and terrorism offences, including stop, search and seizure powers. These powers were due to sunset on 14 December 2015. However, in light of the enduring threat of terrorism, these powers will be maintained for an extended period of ten years to give law enforcement agencies the appropriate tools they need to deal with this threat.

537. The date for the sunset was selected in response to Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which proposed a sunset date of 'two years after the last Federal election'. The 7 September 2018 date was selected to provide greater certainty regarding the duration of these powers rather than referring to the uncertain date. This date is two years after the third anniversary of the last general election.

Item 44 - Subsection 3UK(2)

538. This item extends the operation of a declaration made under section 3UJ from ten years after the commencement of Division 3A to 7 September 2018. Section 3UJ gives the Minister the power to declare a Commonwealth place to be a prescribed security zone if it would assist in preventing a terrorist act occurring or assist in responding to a terrorist act that has occurred. A police officer may exercise powers under Subdivision B of Division 3A in relation to a person if that person is in a Commonwealth place in a prescribed security zone (refer to section 3UB(1)). It is necessary to extend the operation of subsection 3UK(2) to give full effect to item 43, which extends the operation of police powers and duties under Division 3A.

Item 45 - Subsection 3UK(3)

539. This item extends the ability of a police officer to apply for, and the Minister to make, a declaration under section 3UJ from ten years after the commencement of Division 3A to 7 September 2018. It is necessary to extend the operation of subsection 3UK(3) to give full effect to item 43, which extends the operation of police powers and duties under Division 3A.

Item 46 - Subsection 3W(1)

540. This item inserts 'other than a terrorism offence and an offence against section 80.2C of the Criminal Code' after the word 'offence' in subsection 3W(1) to provide that a constable's powers under the subsection do not apply in relation to those offences. A constable's powers in relation to those offences are addressed in new section 3WA inserted by item 47.

Item 47 - After section 3W

541. This item inserts new section 3WA, which gives constables the power to arrest a person without a warrant for a terrorism offence or an offence against new section 80.2C of the Criminal Code. New subsection 3WA(1) provides a police constable with the power to arrest a person without a warrant where the constable suspects on reasonable grounds that the person has committed or is committing a terrorism offence or an offence against section 80.2C and issuing a summons against the person would not be effective for the purposes specified in subparagraphs (i)-(vi). These purposes mirror the existing provisions in existing subparagraphs 3W(2)(b)(i)-(vi).

542. The threshold for 'suspecting' on reasonable grounds is lower than that of 'believing' on reasonable grounds, which is the threshold in section 3W. However, there would need to be some factual basis for the suspicion and there would need to be more than idle wondering. An arrest threshold based on suspicion is not a new concept in Australian law and is used in a number of Australian jurisdictions.

543. Lowering the arrest threshold will make it consistent with the threshold in a number of Australian jurisdictions and in the United Kingdom. More importantly, it will give police the option to intervene and disrupt terrorist activities and the advocating of terrorism at an earlier point than would be possible where the threshold is reasonable grounds to believe. Lowering the threshold is appropriate for terrorism related offences due to the extraordinary risk posed to the Australian community by acts of terrorism, and the time critical nature of a response to such acts.

544. Once a person has been arrested using the amended, lower threshold, and the suspected activity disrupted, police will be able to examine the evidence (including evidence obtained during searches conducted simultaneously with the arrest action or shortly thereafter) to support the brief of evidence. Lowering the threshold is appropriate for terrorism offences due to the extraordinary risk posed to the Australian public by terrorism and the time critical nature that a response to such offences is needed.

545. The threat from terrorism has been exacerbated by Australians travelling (and seeking to travel) overseas to participate in foreign conflicts and it will not always be appropriate or in the public's best interest to delay action until sufficient evidence has been obtained to meet the threshold of reasonable belief. Section 80.2C of the Criminal Code has been included in addition to terrorism offences as it is necessary for the police to have the ability to arrest a person at an earlier stage to prevent and disrupt that person from advocating terrorism. However, given the nature of the offence it is not necessary for the broader suite of powers that apply to 'terrorism offences', such as the stop search and seizure powers under Division 3A of Part IAA, to apply to section 80.2C.

546. New subsection 3WA(2) necessarily provides that where a person has been arrested but not yet charged and the constable in charge of the investigation ceases to suspect on reasonable grounds that the person committed the offence, or that holding the person in custody is necessary to achieve a purpose referred to in new paragraph 3WA(1)(b), the person must be released.

Item 48 - Application of amendments

547. This item provides that the application of the amendments made to section 3W and the introduction of new subsection 3WA apply to arrests made after the commencement of this item.

Item 49 - Paragraph 3ZB(2)(a)

548. This item inserts 'or 3WA' into paragraph 3ZB(2)(a). This will ensure that, if a constable can arrest someone under section 3W or new section 3WA, and the constable believes on reasonable grounds that the person is on any premises, the constable may enter the premises using necessary and reasonable force.

Item 50 - Paragraph 3ZQN(3)(e)

549. Section 3ZQN enables an authorised AFP officer to obtain documents relating to serious terrorism offences. The power is exercised through a written notice which compels a person to produce documents relevant to the investigation of a serious terrorism offence. Paragraph 3ZQN(3)(e) provides that the person must comply with the notice 'as soon as practicable', but does not presently specify any particular deadline for compliance with the notice. As there is presently no specific timeframe in which a notice must be answered, delays can be encountered in receiving the information.

550. Item 50 replaces existing paragraph 3ZQN(3)(e). The effect of this is that a notice need no longer state that a person must comply with the notice 'as soon as practicable'. Instead, it is proposed that a notice issued under section 3ZQN must specify the day by which a person is to comply with that notice.

551. That day must be at least 14 days from the giving of the notice or, if the authorised AFP officer believes that it is appropriate to specify an earlier day, having regard to the urgency of the situation, a day that is at least 3 days from the giving of the notice.

552. Requests for information under section 3ZQN are made where documents are relevant to and will assist with a serious terrorism offence. Commonly, this will involve circumstances where it is believed that a person has been involved in financing or otherwise supporting terrorist activities. In circumstances where the commission of a terrorist act is imminent this item provides the ability to request information within a shorter timeframe. This information may indicate whether the person has the financial capacity to carry out the attack but, if the precise timeframe is unknown, it might be necessary in the circumstances to request information within a shorter timeframe. This information may indicate whether the person has the financial capacity to carry out the attack.

553. If a person holds a relevant account with an institution the information about that person's account-related activities would ordinarily be available to these institutions. It is therefore expected that these institutions would have the practical capacity to produce this information within a reasonable time period. Information requested under a section 3ZQN notice is ordinarily internally generated by institutions.

554. A serious terrorism offence is defined in section 3C of the Crimes Act.

555. This item implements Recommendation VI/4 of the INSLM's fourth annual report.

Item 51 - Delayed Notification Search Warrants

556. This item will establish a delayed notification search warrant scheme in a new stand-alone Part IAAA of the Crimes Act. Under current Commonwealth search warrant provisions in the Crimes Act, the occupier of searched premises or their representative must be given a copy of the warrant if they are present (section 3H), which ensures that a search cannot occur without the occupier being made aware that the search is taking place. A delayed notification search warrant scheme will allow AFP officers to covertly enter and search premises for the purposes of preventing or investigating Commonwealth terrorism offences, without the knowledge of the occupier of the premises, with the occupier to be given notice at a later time.

557. Delaying notification of a search warrant will ensure that the investigation remains confidential. This is considered critical to the success of certain investigations by the AFP, particularly when carrying out investigations of multiple suspects over an extended period. If members of a terrorist group are alerted to investigator's knowledge of their activities, the success of the law enforcement operation could be jeopardised. For example, a suspect whose premises are searched under the current regime would be notified of police interest in their activities. A suspect could then undertake counter-surveillance measures, change their plans to avoid further detection, relocate their operations, or relocate or destroy evidence of their activities. It would also provide a suspect with the opportunity to notify their associates, who may not yet be known to police, allowing the associates to cease their involvement with the known suspect, destroy evidence or avoid detection in other ways. Delaying notification of a search warrant will also enable the AFP, when executing the warrant, to gather information about a planned operation with a view to preventing a terrorism offence from being committed.

558. Introducing a delayed notification search warrant regime is consistent with other covert Commonwealth schemes, such as telecommunications interception, surveillance devices and controlled operations schemes, which already allow law enforcement agencies to collect evidence covertly. In addition, several Australian states and territories have either delayed notification or covert search warrant regimes for investigating terrorism offences including New South Wales, Victoria, Queensland, Western Australia and the Northern Territory. Covert or delayed notification search warrants are also available in both Canada and New Zealand.

Item 51 - At the end of Part 1AA

559. This item inserts a new Part IAAA-Delayed notification search warrants into the Crimes Act. This new Part provides for requesting, authorising, issuing and reporting obligations with respect to delayed notification search warrants.

Division 1-Preliminary

560. Division 1 outlines the administrative arrangements for issuing delayed notification search warrants, and definitions of terms used in the proposed Part IAAA.

Section 3ZZAA Object of this Part

561. Subsection 3ZZAA(1) explains that Part IAAA is intended to provide eligible agencies with the ability to obtain search warrants in relation to eligible offences that authorise the entry and search of premises without having to produce the warrant at the time of entry and search. The AFP is specified as the 'eligible agency'. An 'eligible offence' is defined as a terrorism offence that is punishable on conviction by imprisonment for 7 years or more. The Bill has expanded the definition of 'terrorism offences' within subsection 3(1) of the Crimes Act to include an offence against Subdivision B of Division 80, Part 5.3 or Part 5.5 of the Criminal Code and an offence against Part 4 of the UN Charter Act and Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions-Al Qaida) Regulations 2008 (see items 35-37 above).

562. The threshold penalty period of 7 years or more will capture all terrorism offences within the Criminal Code, with the exception of associating with terrorist organisations (section 102.8) which attracts three years' imprisonment. This penalty threshold is consistent with the thresholds for other Commonwealth schemes for covert investigation. For example, telecommunications interception warrants are available for the investigation of Commonwealth, state and territory offences with a penalty of seven years or more, as well as certain other offences, which involve the use of telecommunications or computers and have lower penalties, such as cybercrime offences.

Section 3ZZAB Application of Part

563. This application provision clarifies that the Part IAAA does not limit or exclude the operation of Commonwealth laws in relation to the search of premises, the seizure of things, the use of an assumed identity or the installation of surveillance devices. This applies even in instances where a power has been conferred by this Part that may be similar to an existing power under another Commonwealth law. This provision also clarifies that even though another Commonwealth law may provide a power to do one or more of those things, a similar power conferred by Part IAAA may be used despite those powers elsewhere.

Section 3ZZAC Definitions

564. Section 3ZZAC provides definitions of terms used in new Part IAAA. These definitions will be explained, where applicable, in the subsequent notes on clauses.

Section 3ZZAD Eligible Issuing Officers

565. Under new Part IAAA of the Crimes Act, the issue of a delayed notification search warrant will be contingent on a two-step process requiring both internal authorisation within an eligible agency and then application to an eligible issuing officer. New section 3ZZAD defines who is an eligible issuing officer for the purpose of Part IAAA.

566. Subsection 3ZZAD(1) defines the term 'eligible issuing officer' as a person who is either a judge of the Federal Court of Australia, a judge of the Supreme Court of a State or Territory or a nominated member of the AAT. For the purposes of this Part, judges are required to have consented to, and be declared by the Minister to be, an eligible issuing officer under subsections 3ZZAE(1) and (2).

567. AAT members are already eligible to act as issuing officers for the purposes of surveillance device warrants, telecommunications interception warrants, stored communication warrants, and for extending controlled operation authorisations. These examples provide a useful model for framing the delayed notification search warrant scheme. There are also strong operational reasons for including AAT members within the categories of eligible issuing officers for delayed notification search warrants. The AFP has advised that limiting the persons who could issue delayed notification search warrants to judicial officers would reduce the number of eligible issuing officers and could result in difficulties in obtaining delayed notification search warrants, particularly in urgent operational contexts, or where operations are being conducted in remote areas. The AFP advises that AAT members have consistently proven to be available out-of-hours to deal with the operational needs of the AFP. The AFP has further advised that in many cases, they would seek to install a surveillance device at the same premises for which a delayed notification search warrant is sought and it would therefore be administratively convenient and less resource intensive to approach the AAT for both warrants, rather than approach the AAT for the surveillance device warrant and a separate judicial officer for the delayed notification search warrant.

568. Subsection 3ZZAD(2) provides that any function or power conferred on a judge under this Part is conferred in a personal capacity, that is, in persona designata, rather than as a court or a member of a court.

569. Subsection 3ZZAD(3) provides that a judge will have the same protection and immunity in relation to the performance or exercise of a function or power conferred on them under this Part as a judge would have if that function was exercised as a member of a court of which the judge was a member. Similarly, the drafting note for this subsection explains that a member of the AAT will have the same protection and immunity in relation to the performance of a function or power conferred on them under this Part as a Justice of the High Court has in relation to proceedings in the High Court.

Section 3ZZAE Consent of Judges

570. Subsection 3ZZAE(1) and (2) provides that judges may consent to be declared an eligible issuing officer by the Minister. Both the consent and the subsequent declaration by the Minister must be in writing. Subsection 3ZZAE(3) is included to assist readers, as the consent or declaration provided under this section is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

Section 3ZZAF Nominated AAT members

571. Subsection 3ZZAF(1) provides that the Minister may nominate a Deputy President or a full-time senior member of the AAT to issue delayed notification search warrants.

572. Subsection 3ZZAF(2) provides that the Minister must not nominate a full-time senior member under subsection 3ZZAF(1) unless the person is enrolled, and has been so enrolled for at least five years, as a legal practitioner of the High Court, of another federal court, or of the Supreme Court of a state or the Australian Capital Territory. The Northern Territory is covered by the reference to state, as defined in subsection 3(1) of the Crimes Act.

573. Under subsection 3ZZAF(3) a nomination will cease to have effect if the nominated AAT member ceases to hold their appointment to the AAT or the Minister withdraws the nomination in writing.

Division 2-Issue of delayed notification search warrants

574. This Division describes the process by which an application may be made for a delayed notification search warrant, requirements for their issue and what must be included in the warrant.

Subdivision A-The normal process for applying for and issuing delayed notification search warrants

Section 3ZZBA The conditions for issue of a delayed notification search warrant

575. The issue of a delayed notification search warrant will involve a two-stage process of both internal authorisation and application to an eligible issuing officer. Section 3ZZBA specifies the conditions that must be met at each of these stages for a delayed notification search warrant.

576. A person must be satisfied that there are reasonable grounds to suspect that one or more eligible offences have been, are being, are about to be or are likely to be committed. A person must also be satisfied that entry to and search of the premises will substantially assist in the prevention of, or investigation into, those eligible offences. Finally, a person must be satisfied that there are reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.

Section 3ZZBB Authorisation to apply for delayed notification search warrants

577. Following on from section 3ZZBA, subsection 3ZZBB(1) enables the chief officer, defined in section IC as the Commissioner, of an eligible agency to authorise an eligible officer of that agency to apply in writing for a delayed notification search warrant in respect of a particular premises if the chief officer is satisfied that the conditions for issue set out in section 3ZZBA are met. This requirement for authorisation to apply for a delayed notification search warrant is an additional safeguard which is not contained in the general search warrant provisions in Part IAA of the Crimes Act.

578. Subsection 3ZZBB(2) allows the chief officer, namely the AFP Commissioner, to provide this authorisation orally (in person, by telephone or other means of voice communication). This is limited to circumstances where the conditions for issue set out in section 3ZZBA are met and where there is either an urgent case or if receiving the authorisation in writing would frustrate the effective execution of the delayed notification search warrant. If this authorisation is provided orally, the chief officer must make a written record within 7 days as per subsection 3ZZBB(3). This balances a need for flexibility to address operational demands with the need for accountability and record-keeping measures.

Section 3ZZBC Applying for delayed notification search warrant

579. This section sets out the procedures to be followed by an eligible officer applying for a delayed notification search warrant. An eligible officer who has been authorised under section 3ZZBC may apply to an eligible issuing officer for the issue of a delayed notification search warrant in respect of a particular premises.

580. The first drafting note clarifies that for this application to be successful, it will need to address why the conditions for issues set out in 3ZZBA have been met. It will also need to address the matters that must be specified in the warrant, set out in subsection 3ZZBE (1), and any other matters that the eligible issuing officer will consider in making the decision to authorise a delayed notification search warrant, as set out in subsection 3ZZBD(2). The second drafting note cross-references section 3ZZBF to explain that this application may be made by telephone, fax or other electronic means in specified circumstances.

581. Subsection 3ZZBC(2) sets out what must be included in an application for a delayed notification search warrant. Unless made remotely under proposed section 3ZZBF, the application must be in writing. The eligible officer must provide the eligible issuing officer with a copy of, or details of, the authorisation provided under section 3ZZBB and details (including on the outcomes) of any previous applications for a warrant under this Part or Division 2 of Part IAA (general search warrants) in respect of the same premises so far as known to the eligible officer. For example, if a previous application was refused, it is intended that the application would justify why the delayed notification search warrant should be issued at this time.

582. Subsection 3ZZBC(3) requires the application to be supported by an affidavit setting out the grounds on which the warrant is sought. Subsection 3ZZBC(4) provides that an eligible issuing officer may request further information relating to the application, and the information may be required to be provided on oath or affirmation. This power enables an eligible issuing officer to be satisfied as to the necessity for issuing a delayed notification search warrant.

Section 3ZZBD Issuing a delayed notification search warrant

583. Subsection 3ZZBD(1) provides that before issuing a delayed notification search warrant to an eligible officer, the eligible issuing officer must be satisfied, by information on oath or affirmation, that the conditions for issue set out in section 3ZZBA have been met. That is, the eligible issuing officer must be satisfied that there are reasonable grounds to suspect that one or more relevant offences have been, are being, are about to be or are likely to be committed and, that entry and search of the premises will substantially assist in the prevention of, or investigation into, those offences, and also that there are reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises.

584. Subsection 3ZZBD(2) sets out seven matters which an eligible issuing officer must have regard to when deciding whether to issue a delayed notification search warrant, and includes the extent to which the exercise of the powers would assist the prevention of or investigation into the eligible offence to which the application relates to; the existence of alternative means of obtaining the evidence or information sought to be obtained; the extent to which the privacy of any person is likely to be affected; the nature and seriousness of the alleged offence(s) to which the warrant is after; whether any conditions should be included in the warrant, and the outcome of any known previous applications for delayed notification search warrant or a Division 2 of Part IAA warrant in connection with the same premises. If it is proposed that an adjoining premises be entered, the eligible issuing officer must also be satisfied that entry is reasonably necessary to enter the main premises and is required to avoid compromising the prevention or investigation of the eligible offence(s). This subsection recognises and balances the competing public interest in timely and effective law enforcement and the intrusion on the privacy of a group or individual.

585. Subsections 3ZZBD(3) enables eligible issuing officers of the Federal Court of Australia or AAT members to issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory. Under subsection 3ZZBD(4), eligible issuing officers who are state or territory Supreme Court Judges are restricted to issuing delayed notification search warrants only in relation to premises located in that state or territory.

Section 3ZZBE Contents of delayed notification search warrant

586. Subsection 3ZZBE(1) sets out the information, which must be contained in a delayed notification search warrant. The warrant is to contain the name of the applicant; the eligible agency and the eligible officer who is to be responsible for executing the warrant; the address, location or other description of the warrant premises; the eligible offence to which the warrant relates; the day on which, and the time, the warrant is issued; the day on which, and the time at which, the warrant expires; the notification period and a description of the kinds of things that are proposed to be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled. In addition, the warrant is to state whether the warrant authorises the entry of adjoining premises and details of that premises if required; whether a thing may be placed in substitution for a seized or moved item; any conditions to which the warrant is subject and that the eligible issuing officer is satisfied of the conditions of issue and of the matters specified in subsection 3ZZBD(2).

587. The warrant must also state whether it authorises re-entry of the warrant premises to return anything seized or moved or to retrieve anything substituted, and if so paragraph 3ZZBE(1)(m) requires that re-entry is to be within 14 days of the day on which the warrant was executed, that is, the day on which the premises were first entered under the warrant, or the time as extended in particular circumstances specified in section 3ZZCE. A delayed notification search warrant must include the name and signature of the eligible issuing officer under proposed subsection 3ZZBE(2).

588. These requirements ensure that executing officers and constables assisting have clear guidance on their powers under each delayed notification search warrant and are accountable for the proper execution of the warrant.

Subdivision B-Delayed notification search warrants by telephone, fax etc.

Section 3ZZBF Delayed notification search warrants by telephone, fax etc.

589. This section sets out an alternative method of applying for and issuing delayed notification search warrants. Subsection 3ZZBF(2) permits the application to an eligible issuing officer for a delayed notification search warrant to be made by telephone, fax, e-mail or any other means of electronic communication where the eligible officer is satisfied that it is an urgent case, or that delaying the application until it can be made in person would frustrate the effective execution of the warrant.

590. Subsections 3ZZBF(3) and (4) reflect the existing provisions of subsections 3R(2) and (3) of the Crimes Act. These subsections enable an eligible issuing officer to require communication by voice, where practicable, and to record that communication. The application must include all the information required in an ordinary application for a delayed notification search warrant, but may be made before the information is sworn or affirmed. This application must also include the details of, or be accompanied by a copy of, the authorisation provided by the chief officer of the eligible agency, namely the AFP Commissioner.

591. Pursuant to subsection 3ZZBF(5), having regard to this application, and the matters set out in subsection 3ZZBD(2), the eligible issuing officer may complete and sign a delayed notification search warrant. This is limited to circumstances where the conditions for issue set out in 3ZZBA are met and where the eligible issuing officer is satisfied that it is an urgent case, or that delaying the application until it can be made in person would frustrate the effective execution of the warrant.

592. After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant by telephone, fax or other electronic means of the terms of the warrant and the day on which, and the time at which, the warrant was signed as set out in subsection 3ZZBF(6). The applicant must then complete a form of the delayed notification search warrant to reflect the warrant completed and signed by the eligible issuing officer. As required in subsection 3ZZBF(7) this form must specify the name of the eligible issuing officer who issued the delayed notifications search warrant and the day and time of signing the warrant.

593. Subsection 3ZZBF(8) requires this completed form to be sent to the eligible issuing officer, in addition to the information referred to when applying for the delayed notification search warrant which must have been duly sworn or affirmed. These are to be sent by the end of the day after the day on which the delayed notification search warrant expires or the day of execution of the warrant, whichever occurs first. Pursuant to subsection 3ZZBF(9), once received by the eligible issuing officer, these documents must be attached to the warrant signed by that eligible issuing officer. These provisions ensure appropriate accountability around delayed notification search warrants issued remotely.

Section 3ZZBG Authority of delayed notification search warrant by telephone, fax etc.

594. Subsection 3ZZBG(1) explains that the form of delayed notification search warrant completed remotely under section 2F is authority for the same powers as authorised by a warrant signed by the eligible issuing officer as part of the normal process under section 3ZZBD.

595. Subsection 3ZZBG(2) creates a rebuttable presumption if an issue arises as to whether the exercise of a power under a delayed notification search warrant issued on a remote application was duly authorised, that the power was not duly authorised unless the form of warrant signed by the eligible issuing officer is produced in evidence.

Subdivision C-Offences relating to applying for warrants etc.

Section 3ZZBH Offence for making false statement in application for delayed notification search warrant

596. This provision creates an offence for making a false or misleading statement in an application for a delayed notifications search warrant. A maximum penalty of imprisonment for two years will apply.

Section 3ZZBI Offence relating to delayed notification search warrant by telephone, fax etc.

597. This provision creates a range of offences relating to the form of delayed notification search warrants remotely authorised under section 3ZZBF. This includes detailing information that departs from the warrant authorised by the eligible issuing officer. This offence has a maximum penalty of imprisonment for two years.

598. The creation of this offence safeguards against the inappropriate use of provisions relating to remote applications for authorising delayed notification search warrants and ensures that the availability of remote authorisation of warrants for operational urgency is balanced with the necessity of ensuring accountability for those officers applying for delayed notifications search warrants.

Subdivision D-Interaction with other provisions under which search warrants may be issued

Section 3ZZBJ Issue of warrants under other provisions as well as or instead of delayed notification search warrants

599. Section 3ZZBJ empowers an eligible officer making, or who has made an application for, a delayed notification search warrant to make an application to the same eligible issuing officer for a search warrant under Division 2 of Part IAA of the Crimes Act to search the main or other premises for evidential material which may be related to the eligible offence, or to other offences which are connected to the eligible offence for which the delayed notification search warrant is sought or was issued. Provided the application relates to the same premises and offence it may be made at the same time as, or at a later time than, the application for a delayed notification search warrant.

600. This provision enables applications for ordinary search warrants and delayed notification search warrants in the same investigation to be determined by one eligible issuing officer. It also ensures that when there is no necessity for covert entry of premises, a delayed notification search warrant is not used to conduct an investigation of other premises.

601. Subsection 3ZZBJ(4) enables the eligible issuing officer to consider the Part IAA, Division 2 application as if the eligible issuing officer were an issuing officer within the meaning of section 3C of Part IAA.

602. Subsection 3ZZBJ(5) enables an eligible issuing officer who is not satisfied that a delayed notification search warrant should be issued, to treat the application for a delayed notification search warrant as an application for a search warrant under Division 2 of Part IAA, and deems the eligible issuing officer to be an issuing officer within the meaning of section 3C of Part IAA for the purposes of issuing such a search warrant.

Division 3-Exercise of powers under delayed notification search warrants

603. This Division specifies the powers that are authorised under a delayed notification search warrant.

Section 3ZZCA What is authorised by a delayed notification search warrant

604. Section 3ZZCA sets outs clearly what powers the executing officer or a person assisting is authorised to exercise in executing a delayed notification search warrant. An executing officer, as defined in section 3ZZAC, is the person named in the warrant as being responsible for executing the warrant or the name of another eligible officer inserted into the warrant. A person assisting is defined in section 3ZZAC as an eligible officer who is assisting in the execution of the warrant or another person who has been authorised by the executing officer to assist in executing the warrant, such as a data analyst.

605. Paragraphs 3ZZCA(1)(a) and (b) authorise the executing officer or person assisting to enter the warrant premises and, if specified in the warrant, to enter adjoining premises. This entry may occur without the knowledge of the occupier of the premises or any other person present at the premises, as authorised in subsection 3ZZCA(2). The power to impersonate a person authorised by paragraph 3ZZCA(1)(c) would enable executing officers and persons assisting to gain entry without arousing the suspicion of other residents of the area. It is not, however, intended to empower an executing officer to impersonate a person beyond that which is reasonably necessary to execute the warrant. The drafting note included below subsection 3ZZCA(1) clarifies that proposed paragraph 3ZZCA(1)(c) does not authorise the acquisition or use of an assumed identity. If an assumed identity is required for the execution of a delayed notification search warrant, the requirements of Part IAC of the Crimes Act would need to be complied with.

606. The remaining powers include the power to search for and seize any thing of a kind specified in the warrant, or any other thing found in the course of the search, if the executing officer believes on reasonable grounds that the thing is evidential material and that the seizure of the thing is necessary to prevent its concealment, loss, destruction or use. Paragraph 3ZZCA(1)(g) also authorises the seizure of any other thing found in the course of the search, if the executing officer believes on reasonable grounds that the thing would present a danger to a person or could be used to assist a person to escape from lawful custody.

607. Paragraph 3ZZCA(1)(h) further authorises the executing officer or a person assisting to search for and record fingerprints found at the premises, and to take samples of things found at the premises for forensic purposes. This provision is based upon section 3F(1)(b) of the Crimes Act. Samples may include such things as samples of explosive and weapon type material, and DNA from such items as used cups or cigarettes.

608. Paragraph 3ZZCA(1)(i) only authorises an executing officer or a person assisting to replace a seized item or an item moved with a substitute if specified in the warrant. These powers are authorised to ensure the occupier of the premises is not alerted to the search until an occupier's notice is provided. Paragraph 3ZZCA(1)(k) authorises an executing officer or a person assisting to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant. This recognises that in the course of executing a warrant, the executing officer may become aware of something which will result in the search becoming known to the occupier. It is important in these circumstances that the executing officer has the power to do what is necessary to conceal the fact that something was done under the warrant. Without this power, the covert nature of the search could be undermined.

609. Paragraph 3ZZCA(1)(j) authorises an executing officer or a person assisting to copy, photograph or otherwise record, mark or tag, operate, print test or sample a thing of a kind specified in the warrant, and any other thing believed on reasonable grounds to be evidential material. The powers under paragraphs 3ZZCA(1)(j) are supported by the provisions of sections 3ZZCE, 3ZZCF, 3ZZCG and 3ZZCH. The power to mark or tag a thing allows for visible and invisible material to be placed onto a thing to identify if, for example, an item is later utilised in a particular location or for a particular purpose.

610. Paragraph 3ZZCA(1)(l) authorises re-entry of the warrant premises, or adjoining premises for the purpose of entering or leaving the warrant premises, to return a thing seized or moved or retrieve a thing substituted at the warrant premises. Any such re-entry must occur within the time period set out in 3ZZBE(1)(m), namely 14 days or an extended time period authorised under subsection 3ZZCC. Subsection 3ZZCA(3) provides that if this period for re-entry ends after the delayed notification search warrant expires, the power to re-enter may be exercised during that period as if the warrant was still in force. This is required to ensure the occupier of the premises is not alerted to the search until an occupier's notice is provided.

Section 3ZZCB Specific powers available to person executing the warrant

611. The powers under subsection 3ZZCB(1) are based on the existing powers under subsection 3J(1) of the Crimes Act. The subsection authorises an executing officer or person assisting to take photographs (including video recordings) of the warrant premises for a purpose incidental to the execution of the warrant. Due to the covert nature of a delayed notification search warrant, a power to take photographs with the written consent of the occupier, similar to that at subsection 3J(1), is not included.

612. Paragraph 3ZZCB(2)(a) allows the executing officer or a person assisting to leave the warrant premises temporarily for a maximum period of one hour and, provided the warrant is still in force, re-enter to complete its execution. The powers are based on subsection 3ZZCB(2) of the Crimes Act. Paragraph 3ZZCB(2)(b) allows the executing officer or a person assisting to leave the premises temporarily for not more than 24 hours and, provided the warrant is still in force, re-enter to complete its execution in emergency situations or to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises. An emergency situation is defined in section 3ZZAC as a situation that the executing officer or a person assisting believes, on reasonable grounds, involves a serious and imminent threat to a person's life, health or safety that requires the executing officer and persons assisting to leave the premises. If a time period longer than 24 hours is required the conditions in section 3ZZCC must be satisfied.

613. Paragraph 3ZZCB(3) is based on subsection 3J(3) of the Crimes Act. It allows the execution of a warrant to be completed if the execution was halted by an order of a court, which is subsequently revoked or reversed, provided the warrant is still in force. If the warrant is no longer in force, but covert re-entry is still considered necessary, a new warrant must be applied for, and details of the previous warrant will be included in the supporting affidavit as required by paragraph 3ZZBC(2)(b).

Section 3ZZCC Extension of time to re-enter premises left in emergency situation or to avoid discovery of law enforcement officer

614. Subsection 3ZZCC(1) permits an eligible issuing officer or person assisting to apply to an eligible issuing officer for an extension of time to re-enter premises. This is limited to instances where the executing officer or a person assisting has left the warrant premises due to an emergency situation or to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises and the executing officer or person assisting believes on reasonable grounds that he or she will not be able to return to the premises within the 24 hour time period set out in paragraph 3ZZCB(2)(b). For an extension to be authorised, the eligible issuing officer must be satisfied, by information on oath or affirmation, that there are circumstances justifying this extension and the extension would not result in the period ending after the expiry of the warrant.

Section 3ZZCD Executing a warrant - assistance, use of force and related matters

615. This section, which is based on section 3G of the Crimes Act, authorises the executing officer to obtain such assistance as is necessary and reasonable in the circumstances to execute the warrant. It also authorises the executing officer or an eligible officer who is a person assisting to use such force against people and things as is necessary and reasonable to execute a delayed notification search warrant. A person assisting who is not an eligible officer may only be authorised to use force against things.

616. Subsection 3ZZCD(2) requires that an executing officer has a copy of the warrant, or if the warrant has been issued remotely, a copy of the form of warrant, available when executing the warrant at the warrant premises, or entry of the adjoining premises. The warrant or form of warrant must be available to the executing officer or a person assisting to produce without delay, such as obtaining it from a team member outside or in an adjoining room. If circumstances require it, an executing officer or a person assisting can produce the warrant to confirm that their presence is legitimate.

617. Subsection 3ZZCD(3) clarifies that there is no requirement to produce the warrant. As a warrant allows an executing officer or a person assisting to impersonate another person during the execution of the warrant, the occupier may accept the legitimacy of the action, which obviates the need to produce the warrant, and allows the operation to remain covert.

Section 3ZZCE Use of equipment to examine or process things

618. Subsection 3ZZCE(1), which authorises the executing officer or a person assisting to bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises, is based on subsection 3K(1) of the Crimes Act. Subsection 3ZZCE(2), which authorises the operation of equipment already at the premises to examine or process a thing found at the premises if the executing officer or person assisting believes on reasonable grounds that the equipment is suitable for the examination or processing and will not be damaged as a result of its operation, is based upon subsection 3K(4) of the Crimes Act.

619. Subsection 3ZZCE(2) authorises the removal of a thing found at the warrant premises to another place for examination or processing in order to determine whether it may be seized. This is limited to circumstances where the executing officer or a person assisting suspects on reasonable grounds that the thing is a thing that may be seized under the warrant and it is significantly more practicable to move the thing due to the time and cost of examining or processing the thing at another place and/or the availability of expert assistance. The operation of electronic equipment moved under this section is provided in sections 3ZZCG and 3SZFB.

620. Pursuant to subsection 3ZZCE(3), the time for moving a thing to another place for examination or processing is limited to a maximum of 14 days. Extensions of no more than 7 days at a time may be permitted, pursuant to subsection 3ZZCE(5), if the eligible issuing officer believes on reasonable grounds, based on the application from the executing officer, that the thing cannot be examined or processed within 14 days or the time previously extended.

Section 3ZZCF Use of electronic equipment at warrant premises

621. This section authorises the operation of electronic equipment found at the warrant premises to access data held on that equipment to determine whether it constitutes a thing that may be seized under the warrant. The power to access data not held on site from equipment found on site is consistent with the existing search warrant powers under subsection 3L(1) of the Crimes Act.

622. As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere. This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment.

623. The executing officer would not be required to notify operators of computers not on search premises if data held on those computers is accessed under the warrant. It would not be practicable to impose such a notification requirement on investigating officers, as it will not always be apparent when accessing data whether it is held on premises or off site or, in some cases, where it is held. For example, computer files accessible from a personal computer connected to a network may be stored on a mainframe computer located elsewhere, but there may be nothing that would indicate to the person accessing those files that they are not held on the search premises.

624. Electronic equipment, such as a computer hard drive, can hold large amounts of data. It is often not practicable for officers to search all the data for evidential material while at the search premises and then copy only that data, which they believe may constitute evidential material. Accordingly, subsection 3ZZCF(2) authorises the executing officer or a person assisting to copy data held on electronic equipment accessed at search premises to a storage device where there are reasonable grounds to suspect that the data constitutes a thing that may be seized under the warrant, and to take that device holding the data from the premises. This will permit officers to copy all data held on a computer hard drive or data storage device if the data constitutes a thing that may be seized under the warrant or if there are reasonable grounds to suspect that the data constitutes a thing that may be seized under the warrant. The authorisation only extends to copying the data to a storage device brought to the premises by the executing officer or a person assisting. This provision is based on subsection 3L(1A) of the Crimes Act with the necessary exception that the consent of the occupier is not required to enable the executing officer or a person assisting to copy the data to a device found at the premises.

625. Subsection 3ZZCF(3) reflects existing subsection 3L(1B) of the Crimes Act. This provision safeguards the rights of the occupier when the data taken from the premises is no longer required, or is not likely to be required, to be kept for the purposes of any investigation or for handling a complaint about the conduct of officers of the eligible agency in the execution of the warrant. The chief officer, or his delegate must arrange for the data to be removed from any device onto which it was copied, or the destruction of any other reproduction of the data which has been made during the course of the examination of the data.

626. Subsections 3ZZCF(4) and (5) enable the executing officer or a person assisting to operate equipment found at the premises to reproduce the thing found by accessing the equipment in documentary form or, if that is not practicable or the possession constitutes an offence, to seize the equipment. These provisions only enable the reproduction of, or seizure of equipment, consisting of a thing that may be seized under the warrant. The subclauses are based on the existing provisions of subsections 3L(2) and (3) of the Crimes Act.

Section 3ZZCG Use of moved electronic equipment at other place

627. Subsections 3ZZCG(1) and (2) permit electronic equipment to be moved to another place to operate the equipment to access data (including data held at another place) and, if the executing officer or person assisting suspects on reasonable grounds that the data accessed constitutes a thing that may be seized under the warrant, this data may be copied to a disk, tape or other associated device.

628. Similar to subsection 3ZZCF(3), subsection 3ZZCG(3) safeguards the rights of the occupier when the data is no longer required, or is not likely to be required, to be kept for the purposes of any investigation or for handling a complaint about the conduct of officers of the eligible agency in the execution of the warrant. The chief officer, or his or her delegate, must arrange for the data to be removed from any device onto which it was copied, or the destruction of any other reproduction of the data, which has been made during the course of the examination of the data.

629. Similar to subsections 3ZZCF(4) and (5), subsections 3ZZCH(4) and (5) enable the executing officer or a person assisting to operate equipment moved from the premises to reproduce the data or thing found into documentary form or, if that is not practicable or the possession constitutes an offence, to seize the equipment. These provisions only enable the reproduction of, or seizure of equipment, consisting of a thing that may be seized under the warrant.

Section 3ZZCH Operating seized or moved electronic equipment

630. This section applies to electronic equipment seized under this Part or moved under section 3ZZCE. Subsection 3ZZCH(2) permits electronic equipment to be operated at any location after it has been seized or moved to determine whether the data held on or accessible from the electronic equipment is a thing that may be seized under the delayed notification search warrant and, in turn, to obtain access to such data. This includes data that was not held on the electronic equipment at the time the electronic equipment was seized or moved.

631. Pursuant to subsection 3ZZCH(5), this section does not limit the operation of other provisions within Part IAAA relating to items seized or moved. The drafting note explains that, for example, section 3ZZCH does not limit the operation of the time limits set out in section 3ZZCE on the examination or processing of a thing moved under that section.

Section 3ZZCI Compensation for damage to electronic equipment

632. Subsection 3ZZCI(1) places an obligation on the Commonwealth to pay the owner of equipment operated in accordance with sections 3ZZCE, 3ZZCF,3ZZCG or 3ZZCH reasonable compensation for damage or corruption. The damage or corruption to the equipment, data or programs must have occurred because insufficient care was exercised in either selecting the person to operate the equipment or in the operation of the equipment. Damage, in relation to data, is defined in section 1C as damage by erasure of data or addition of other data.

633. Given the covert nature of delayed notification search warrants, compensation would normally only be paid when an occupier's notice of the warrant was provided, unless the occupier had become aware that damage had been sustained. Pursuant to subsection 3ZZCI(2), the Commonwealth is required to pay the owner of the equipment, or the user of the data or programs, such reasonable compensation as the Commonwealth and the owner or user agree upon. Proceedings in the Federal Court of Australia may be instituted if the owner or the user and the Commonwealth are unable to reach an agreement.

Division 4-Notice to Occupiers

634. This Division sets out the process by which the occupier of the warrant premises or of an adjoining premises entered under a delayed notification search warrant is to be given notice of the entry.

Section 3ZZDA Warrant premises occupier's notice must be prepared and given

635. Section 3ZZDA requires that a written notice be given to the occupier of premises entered under a delayed notification search warrant and sets out the information which must be contained in the notice. The notice is to be prepared by the executing officer.

636. The notice must specify the name of the authorised agency, the address, location or other description of the warrant premise, the day and time the warrant was issued, the day of execution, the number of persons who entered the warrant premises, and include a description of any thing seized and/or substituted and whether any thing was returned or retrieved from the warrant premises. The requirement that the notice include a summary of the purpose of the delayed notification search warrant and the things done under the warrant is intended to provide the occupier with an outline of the operation of the scheme. A copy of the warrant, which is to be provided under subsection 3ZZDA(3) with the occupier's notice, will give the occupier information regarding what was authorised. These requirements will ensure that the occupier of the premises is aware of why a delayed notification search warrant was issued in respect of the premises, and what was done under the warrant.

637. The notice is to be given in accordance with the time limits specified under section 3ZZDC. Subsection 3ZZDA(4) creates an exception to the requirement to give an occupier's notice if the occupier's identity cannot be ascertained, or the occupier cannot be located. In such circumstances the person who prepared the occupier's notice must report back to the eligible issuing officer who may give directions on the requirement to give the notice. As clarified in subsection 3ZZDA(5), a notice and a direction under this section is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act. This provision is included to assist readers and is merely declaratory of the law.

Section 3ZZDB Adjoining premises occupier's notice must be prepared and given

638. This subsection requires that notice be given to the occupier of adjoining premises entered under a delayed notification search warrant to gain access to the main premises, and sets out what is to be included in the notice. The notice is to be prepared by the executing officer. A copy of the delayed notification search warrant authorising the entry is also to be provided with the notice.

639. The information to be provided to the occupier of adjoining premises is more limited than that required to be provided to the occupier of the main premises to reflect the reduced powers available to the executing officer or person assisting in relation to the adjoining premises. However, it will be sufficient to ensure that the occupier is aware of why entry to his or her premises was authorised and when it occurred.

640. The notice is to be given in accordance with the time limits specified under section 3ZZDC. As at subsection 3ZZDA(4), a person who prepares an adjoining premises occupier's notice but who cannot ascertain the identity of, or locate, the occupier of the adjoining premises, must report back to the eligible issuing officer who may give directions regarding delivery of the notice. As clarified in subsection 3ZZDB(5), a notice and a direction under this section is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act. This provision is included to assist readers and is merely declaratory of the law.

641. An executing officer would not be required to notify owners or operators of computers not on search premises if data held on those computers is accessed under warrant. Access to data held on remote computers under a delayed notification search warrant does not constitute access to adjoining premises. Accordingly, there is no requirement to give notice to the owner or operator of those computers.

Section 3ZZDC Time for giving warrant premises occupier's notice or adjoining premises occupier's notice

642. This section sets out when an occupier's notice and adjoining premises occupier's notice must be given. The general rule, as set out in subsection 3ZZDC(2) is that the notice must, unless an extension is obtained, be provided to the occupier of the premises or of the adjoining premises within six months of the day on which the delayed notification search warrant was executed.

643. Subsection 3ZZDC(4) enables the chief officer of the eligible agency, namely the AFP Commissioner, to authorise an eligible officer to apply to an eligible issuing officer for an extension of the period within which the notice must be given. This authorisation must be in writing. Subsection 3ZZDC(5) requires that an eligible issuing officer granting an extension be satisfied that there are reasonable grounds for extending the period within which the notice must be given. An extension would normally be appropriate when there is an ongoing investigation of a relevant offence, the success of which may depend on continued confidentiality.

644. Subsection 3ZZDC(6) limits the period of extension that may be granted by an eligible issuing officer by periods of up to six months on any one application, up to a maximum of 12 months. An extension beyond 12 months from the date of entry may only be granted where authorisation has been received from both the Minister, in the form of a certificate approving the application for the extension, and an eligible issuing officer. The Minister must be satisfied that there are exceptional circumstances justifying the extension and that the public interest that would be served by notifying the occupier is outweighed by the prejudicial consequences that might result from the occupier being aware that the search took place. Prejudicial circumstances may include compromising or hindering the investigation, endangering the life or safety of any person, prejudicing any legal proceeding or compromising any law enforcement agency's operational activities or methodologies. If the Minister does issue a certificate approving an application, the issuing officer must only approve delaying of notification further if he or she is also separately satisfied that an extension is justified due to exceptional circumstances. The certificate provided by the Minister is not a legislative instrument, pursuant to subsection 3ZZDC(7). Limiting the extension period available to 12 months implements Recommendation 2 of the Report of the Parliamentary Joint Committee on Intelligence and Security and ensures that extensions to notification periods in longer-term investigations are subject to an appropriate degree of scrutiny.

645. Subsection 3ZZDC(3) requires that if a person is charged with an offence and the prosecution is proposing to rely on evidence obtained under the warrant the notice must be given as soon as practicable after the person is charged with the offence and no later than the time of service of the brief of evidence by the prosecution. This recognises that it is important that any person charged with an offence is notified of the way in which evidence supporting the particular charge or charges has been obtained, in order to enable them to challenge the evidence.

Division 5-Using, sharing and returning things seized

646. This Division provides for the use and sharing of things seized under the warrant in specified circumstances and details the requirement for returning things that are seized.

Subdivision A-Using and sharing things seized

Section 3ZZEA Purposes for which things may be used and shared

647. Subsection 3ZZEA(1) lists the purposes for which an eligible officer or a Commonwealth officer may use, or make available to another eligible officer or a Commonwealth officer to use, a thing seized under this Part. The purposes include investigations or proceedings under a range of Commonwealth legislation such as the Proceeds of Crime Act 1987, the Proceeds of Crime Act 2002, the Law Enforcement Integrity Commissioner Act 2006, the Ombudsman Act 1976 and the Privacy Act 1988. Subsections 3ZZEA(2) and (3) also permit the use of a thing seized under this Part by an eligible officer or a Commonwealth officer for any other use that is required or authorised by or under a law of a state or a territory. This is not intended to be an exhaustive list, with subsection 3ZZEA(4) clarifying that this section does not limit any other law of the Commonwealth that requires or authorises the use of a thing or the making available (however described) of a thing.

648. An eligible officer of an eligible agency or a Commonwealth officer is also permitted to make a thing seized under this Part available to a state or territory law enforcement agency, as defined in section 3ZZAC. In addition, an eligible officer or a Commonwealth officer is permitted to make a thing seized under this Part available to the appropriate agency in a foreign country responsible for law enforcement, intelligence gathering or security. This ability to share a thing seized is limited to situations listed in subsections 3ZZEA(1)(2)(3) and (5). The outcome of this provision is that a thing seized under the warrant can be shared with foreign agencies for the investigation of Commonwealth, state or territory offences, in recognition of the international aspects of many modern offences, however, material cannot be shared with foreign agencies for the investigation of foreign offences.

649. Subsection 3ZZEA(6) clarifies that, in addition to the ability to share between law enforcement agencies, the Minister retains the capacity to make an arrangement with a Minister of a state or territory for the sharing of a thing that has been seized under this Part and, in turn, the disposal of such things when they are no longer of use to the relevant agency.

Subdivision B-Returning things seized

Section 3ZZEB When things seized must be returned

650. Subsection 3ZZEB(1) requires the chief officer of the eligible agency, namely the AFP Commissioner or his/her delegate, to take reasonable steps to return a thing seized under the Part if is not required, or no longer required, for a purpose listed in subsection 3SFA or for other judicial or administrative review proceedings. The thing is to be returned to the person from whom it was seized, or to the owner if that person is not entitled to possess it.

651. Subsection 3ZZEB(2) provides an exhaustive list of exceptions to this requirement including, amongst other exceptions, that the thing may otherwise be retained, destroyed or disposed of under a law or is the subject of a dispute as to ownership. Paragraph 3ZZEB(2)(d) recognises that the item is not required to be returned until a warrant premises occupier's notice has been given to ensure that the confidentiality of the warrant is maintained until operational sensitivities allow disclosure.

Section 3ZZEC Eligible issuing officer may permit a thing seized to be retained, forfeited etc.

652. Under this section, an eligible issuing officer may make an order in relation to a thing seized under this Part for that thing to be retained for a set time period, forfeited to the Commonwealth, sold and proceeds given to the owner or destroyed or otherwise disposed. Subsection 3ZZEC(1) provides that for one of these orders to be made the eligible issuing officer must be satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing is seized, it is likely to be used by that person or another person in the commission of a terrorist act or a terrorism offence or a serious offence (as defined in Part IAA). Where this threshold is not met, the eligible issuing officer is required to order that the thing be returned to the person from whom the thing was seized or to the owner if that person is not entitled to possess it.

Division 6-Reporting and record-keeping

653. This Division sets out the reporting requirements of the delayed notification search warrants scheme. These requirements are intended to ensure that executing officers and the authorising agencies are accountable for the use of delayed notification search warrants.

Section 3ZZFA Reporting on delayed notification search warrants

654. This section imposes reporting requirements on the executing officer of a delayed notification search warrant, whether or not it was executed.

655. Under subsection 3ZZFA(2) the executing officer or the applicant must, as soon as practicable after execution of a delayed notification search warrant, or the expiry of an unexecuted warrant, provide a report to the chief officer, namely the AFP Commissioner, setting out the matters listed in subsection 3ZZFA(3). If the delayed notification search warrant was executed, the report must also include the information listed at proposed subsection 3ZZFA(4). The requirement at paragraph 3ZZFA(4)(c) that the report contain information on the 'kind of assistance provided' requires a general description of the nature of the assistance provided rather than a technical description of what was actually done and how it was done. For example, it is sufficient to say that a person provided data analysis. It is not necessary to specify how they did it or what data was analysed. If the warrant premises occupier's notice or adjoining premises occupier's notice has not been given at the time the report is made, under subsection 3ZZFA(5) the executing officer is required to give a further report including those details. Under subsection 3ZZFA(6), if the delayed notification search warrant was not executed, the report must state why not.

656. Subsection 3ZZFA(7) sets out details to be included in a further report if the warrant premises were re-entered after the warrant was executed for the purposes of returning a thing to, or retrieving a thing left at, the premises. This report must be given to the chief officer of the eligible agency as soon as practicable after the warrant premises were re-entered. As clarified in subsection 3ZZFA(9) a report under this section is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act. This provision is provided to assist the reader and is merely declaratory of the law.

Section 3ZZFB Annual reports to Minister

657. Section 3ZZFB requires the chief officer of the eligible agency, namely the AFP Commissioner, to provide a written report to the Minister within three months of the end of each financial year and sets out the matters which must be included in that report.

658. The report must set out the number of warrants applied for and issued to eligible officers of the eligible agency during the year, and specify the number applied for in person or remotely. The report must also include details of the eligible offence(s) to which the issued delayed notification search warrants relate. The report must not only specify the number of warrants that were executed, but must also specify the number of warrants that were executed under which things were seized, placed in substitution, returned to or retrieved from the premises or copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled at the warrant premises.

659. Paragraph 3ZZFB(1)(f) provides that the report may contain any other information related to delayed notification search warrants and the administration of the scheme that the Minister considers appropriate. This enables the Minister to request further information from the chief officer, namely the AFP Commissioner. The further information may outline the benefit to an investigation of the use of a delayed notification search warrant and the use of any evidence or information obtained under the delayed notification search warrant, or provide details of the sharing of evidence or information obtained under the delayed notification search warrant to persons other than officers of the eligible agency.

660. Subsection 3ZZFB(3) requires the Minster to table the report before each House of Parliament within 15 sitting days of receipt. These reports will assist the Minister and the Parliament to ascertain the uses that are being made of delayed notification search warrants. For example, of ten warrants executed by an agency, eight of the warrants may have included items seized, two of the warrants may have included items that were copied, one of the warrants may have included items substituted for seized items, and five of the warrants may have included items tested. Provision of this information will enable an assessment of the usefulness of the delayed notification search warrants scheme, and of whether an appropriate balance between law enforcement and intrusion into privacy has been met, and will also ensure accountability of the authorised agency.

Section 3ZZFC Regular reports to Ombudsman

661. Section 3ZZFC requires the chief officer of the eligible agency, namely the AFP Commissioner, to provide a written report to the Ombudsman as soon as practicable each six-month period starting on 1 January or 1 July and sets out the matters which must be included in that report. The includes the number of warrants applied for, issued to and executed by eligible officers of the eligible agency during the year, and the number applied for in person or remotely.

Section 3ZZFD Keeping documents connected with delayed notification search warrants

662. This section imposes administrative requirements on the eligible agency using the delayed notification search warrants scheme to ensure it is sufficiently accountable. The section lists the documents, which are to be kept for purposes of records maintenance and to facilitate investigations by the Commonwealth Ombudsman under Division 7 of Part IAAA.

Section 3ZZFE Register of delayed notification search warrants

663. This section is an additional accountability requirement of the eligible agency to keep a register of delayed notification search warrants. The information to be kept in the register includes, amongst other things, the details of any directions given by an eligible issuing officer if the occupier of premises or of an adjoining premises is unknown or unable to be located. Information is to be kept about every application for a delayed notification search warrant, regardless of whether it was issued or refused.

664. Subsection 3ZZFE(3) clarifies that the register is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act. This provision is provided to assist readers and is merely declaratory of the law. It does not create an exemption from the Legislative Instruments Act.

Division 7-Inspection by Ombudsman

665. This Division establishes the procedure for the Commonwealth Ombudsman to monitor the delayed notification search warrants scheme, by inspecting records and reporting to the Minister to ensure that the eligible agency is complying with its obligations under this Division.

Section 3ZZGA Appointment of inspecting officers

666. This section allows the Ombudsman to appoint members of the Ombudsman's staff to be inspecting officers for the purpose of this Division. The appointment must be evidenced in writing.

Section 3ZZGB Inspection of records by the Ombudsman

667. This section establishes an inspection regime requiring the Commonwealth Ombudsman to inspect the records kept by eligible agencies at least in each six-month period starting on 1 January or 1 July. The role of the Ombudsman is to determine whether the records kept are accurate and whether an eligible agency is complying with its obligations under the Division.

668. Paragraphs 3ZZGB(2)(a) and (b) provide that the Ombudsman can enter premises occupied by the eligible agency at any reasonable time after notifying the chief officer of the agency, namely the AFP Commissioner. The Ombudsman is then entitled to full and free access at all reasonable times to all records of the delayed notification search warrants scheme that are relevant to the inspection. The Ombudsman has the power under paragraph 3ZZGB(2)(c) to require a member of staff of the eligible agency to provide any information relevant to the inspection that is in their possession or to which the member has access.

669. Subsection 3ZZGB(3) requires the chief officer to ensure that agency staff provide the Ombudsman with any assistance that the Ombudsman reasonably requires to enable the Ombudsman to inspect the records.

670. Subsection 3ZZGB(4) enables the Ombudsman to delay the inspection of records of the agency on a delayed notification search warrant until an occupier's notice has been given in relation to the warrant. This ensures that confidentiality of the information is maintained until operational sensitivities allow disclosure.

Section 3ZZGC Power to obtain relevant information

671. This section empowers the Ombudsman to require, in writing, a staff member of the eligible agency to provide written information relevant to an inspection at a specified place and within a specified period if the Ombudsman has reason to believe that the staff member is able to give the information.

672. Under subsections 3ZZGC(3) and 3ZZGC(5) the Ombudsman may also require, in writing, a staff member to attend to answer questions relevant to the inspection before a specified inspecting officer at a specified place and within either a specified period or at a reasonable time and date. This section will enable the Ombudsman to question a staff member who he or she believes is able to give information relevant to the inspection.

673. If the Ombudsman has reasonable grounds to believe that a staff member, whose identity is unknown to the Ombudsman, is able to give information relevant to an inspection, subsections 3ZZGC(4) and 3ZZGC(5) also authorise the Ombudsman in writing to require the chief officer of an eligible agency, or a person nominated by the chief officer, to attend to answer questions relevant to the inspection before a specified inspecting officer, at a specified place and either within a reasonable specified period or at a reasonable time and date.

Section 3ZZGD Offence

674. Section 3ZZGD creates an offence if a person refuses or fails to attend before a person, to give information or to answer questions when required to do so under section 3ZZGC. The maximum penalty for the offence is imprisonment for six months.

Section 3ZZGE Ombudsman to be given information etc. despite other laws

675. Subsection 3ZZGE(1) states that a person is not excused from providing information, answering questions or giving access to a document when required under this Division, on the grounds that doing so would contravene a law, would be contrary to the public interest or might tend to incriminate the person or make them liable to a penalty, or to disclose certain advice of a legal nature.

676. Subsection 3ZZGE(2) states that if the person is a natural person, the information, answer given or the fact that the person has given access to a document, and any information or thing that is obtained as a direct or indirect consequence, is not admissible in evidence against the individual except in a prosecution for unauthorised disclosure of information under section 3ZZHA or a prosecution for providing false or misleading information or documents, or making a false document under Part 7.4 or 7.7 of the Criminal Code.

677. Subsection 3ZZGE(3) provides that nothing in section 3ZZHA, which creates an offence of unauthorised disclosure of information about delayed notification search warrants, or any other law prevents an officer of an eligible agency from providing information to an inspecting officer in any form or from providing access to records of the eligible agency for the purposes of an inspection under this Division. This abrogation of the privilege against self-incrimination subject to a use and derivative use immunity recognises the public interest in the effective monitoring of the use of delayed notification search warrants to ensure that civil liberties are not unduly breached.

678. Subsection 3ZZGE(4) enables an officer of an eligible agency to make a record of information, or cause such a record to be made, for the purposes of giving the information to a person as permitted by subsection 3ZZGE(3), without being liable for a breach of proposed section 3ZZHA or any other law.

679. The defendant bears the evidential burden of proof if they seek to rely on one of the exceptions set out in subsection 3ZZHA(2). This is consistent with Commonwealth criminal law policy and with subsection 13.3(3) of the Criminal Code, which provides that a defendant who wishes to rely on an exception bears an evidential burden in relation to that matter. It is appropriate that where a matter is peculiarly within the knowledge of the defendant, and it would be significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, the defendant should be required to adduce evidence on that matter. The defendant is responsible for adducing, or pointing to, evidence that suggests a reasonable possibility that the exception is made out. The prosecution must then refute the exception beyond reasonable doubt.

680. Subsection 3ZZGE(5) ensures that a claim for legal professional privilege over information, documents or other records provided or answers given under this clause is maintained.

Section 3ZZGF Exchange of information between Ombudsman and State or Territory inspecting authorities

681. Section 3ZZGF allows the Commonwealth to develop effective and consistent inspection arrangements with other inspecting bodies, particularly state ombudsmen. Subsection 3ZZGF(4) provides definitions for 'State or Territory agency' and 'State or Territory inspecting authority' for the purposes of the section.

682. Subsection 3ZZGF(1) authorises the Ombudsman to give information that relates to a state or territory agency which was obtained by the Ombudsman under this Division to the state or territory inspecting authority responsible for inspecting that agency. Subsection 3ZZGF(2) requires that the Ombudsman be satisfied that it is necessary to give the information to the inspecting authority to enable it to perform its functions in relation to the state or territory agency.

683. Subsection 3ZZGF(3) empowers the Ombudsman to receive information relevant to the performance of the Ombudsman's functions under this Division from a state or territory inspecting authority.

Section 3ZZGG Ombudsman not to be sued

684. This section gives immunity from action, suit or proceeding to the Ombudsman, an inspecting officer or a person acting under an inspecting officer's direction or authority for an act or omission made in good faith in the performance or exercise, purported or otherwise, of a function, power or authority conferred under this Division. It further gives immunity to a Deputy Ombudsman or a delegate of the Ombudsman.

Section 3ZZGH Report on inspection

685. Under this section, the Ombudsman is required to provide a written report to the Minister after six-month period starting on 1 January or 1 July on the results of each inspection undertaken under section 3ZZGB. Subsection 3ZZGH(2) permits the Ombudsman to include a comment on whether the requirement to provide reports to the Minister (at section 3ZZFB) and to the Ombudsman (at section 3ZZFC) has been complied with.

686. Subsection 3ZZGH(3) requires that a copy of the Ombudsman's report be tabled by the Minister before each House of Parliament within 15 sitting days of that House after the Minister has received the report.

Division 8-Unauthorised disclosure of information

687. This Division creates an offence of unauthorised disclosure of information relating to a delayed notification search warrant.

Section 3ZZHA Unauthorised disclosure of information

688. Subsection 3ZZHA(1) creates an offence of unauthorised disclosure of information relating to an application for a delayed notification search warrant, the execution of a delayed notification search warrant, a report prepared by an executing officer or applicant after the warrant has been executed or has expired, or relating to an occupier's notice or adjoining occupier's notice. The offence carries a maximum penalty of two years imprisonment. This mirrors a similar offence for disclosing information relating to a controlled operation (section 15HK of the Crimes Act).

689. Subsection 3ZZHA(2) specifies exceptions where lawful disclosure can be made. The defendant bears the evidential burden of proof of the exception in accordance with the provision at subsection 13.3(3) of the Criminal Code. Section 3ZZHA does not include an express defence for the disclosure of information relating to a delayed notification search warrant, where such disclosure is found to be in the public interest. Under the Prosecution Policy of the Commonwealth, the Commonwealth Director of Public Prosecutions (CDPP) is required to consider the public interest in the commencement or continuation of a prosecution. It would be open to the CDPP, in making independent decisions on this matter, to have regard to any public interest in the disclosure of information in particular instances as the CDPP considers appropriate.

690. Two additional paragraphs have been included in subsection 3ZZHA(2) to implement Recommendation 3 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which sought the inclusion of explicit exceptions to address obtaining legal advice and inspections by the Ombudsman. Paragraph 3ZZHA(2)(aa) provides an exception to capture disclosure of information for the purpose of obtaining or providing legal advice related to delayed notification search warrants. Paragraph 3ZZHA(2)(da) provides an exception to capture disclosure of information by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff. This applies to disclosure by any person in the course of an inspection by the Ombudsman (as set out in Division 7 of Part IAAA), disclosure in conjunction with a complaint made to the Ombudsman or disclosure in any other circumstance to the Commonwealth Ombudsman.

691. This also makes explicit that the Bill does not intend to criminalise the communication of information by Commonwealth Ombudsman staff to the Commonwealth Ombudsman or other staff within the Office of the Commonwealth Ombudsman in the performance of their duties. This is consistent with subsection 3ZZGE(3), which provides that nothing in section 3ZZHA or any other law prevents an officer of an eligible agency from providing information to an inspecting officer in any form or from providing access to records of the eligible agency for the purposes of an inspection in relation to delayed notification search warrants.

692. By virtue of paragraph 3ZZHA(2)(e), no offence can be committed under 3ZZHA(1) once the occupier's notice has been provided. The intention of this offence provision is to maintain confidentiality of the information as long as operational sensitivities require. The exceptions at 3ZZHA(2) ensure that no offence is committed if information is disclosed by officers in the performance of their duties

Division 9-Other matters

Section 3ZZIA Delegation

693. Subsection 3ZZIA(1) will allow the AFP Commissioner to delegate all or any of his/her powers, functions or duties under Part 1AAA to a Deputy Commissioner of the AFP or a senior executive AFP employee who is an AFP member and authorised in writing by the Commissioner. Many of the powers, functions or duties vested in the AFP Commissioner can, by necessity, be delegated to a range of subordinate officers. This includes the Commissioner's responsibilities under the Surveillance Devices Act 2004 (section 63) and parts of the Crimes Act (such as section 3ZW). The delegation in proposed subsection 3ZZIA(1) is consistent with these covert schemes.

694. Subsection 3ZZIA(1) will allow the Commissioner to delegate the power to the person most appropriately placed to handle the return of the item. This is necessary due to the large amount of seized material that police officers deal with. It will also enable the Commissioner to delegate other powers under Part IAAA, such as the power to authorise an eligible officer to apply for a delayed notification search warrant (section 3ZZBB) or the power to seek an extension for the time for giving warrant premise occupier's notice or adjoining occupier's notice (section 3ZZDC). This ability to delegate is required to ensure that seeking a delayed notification search warrant and/or seeking an extension of the notice period is not delayed or frustrated where the AFP Commissioner is unavailable. The list of delegated officials is limited appropriately to senior staff members within the AFP to ensure that there is sufficient accountability for decisions made under delegated powers.

695. Subsection 3ZZIA(2) will also allow the AFP Commissioner to delegate all or any of his/her powers or functions under Division 5 of Part 1AAA to the chief executive officer (however described) of a state or territory law enforcement agency or a Commonwealth officer, if the Commissioner is satisfied on reasonable grounds that the officer is able to properly exercise those powers, functions or duties. State and territory law enforcement may have access to material seized under Part 1AAA. As such, it is necessary and appropriate for the Commissioner to be able to delegate the responsibility of returning or destroying (if required) seized items to state and territory police.

696. The provision will also allow the Ombudsman to delegate all or any of his/her powers under Part 1AAA (other than the power to report to the Minister) to an APS employee responsible to the Ombudsman. Subsection 3ZZIA(5) will require all delegates to produce the instrument of delegation or a copy of such to a person affected by the exercise of any power delegated to the delegate.

Section 3ZZIB Law relating to legal professional privilege not affected

697. Subsection 3ZZIB ensures that, except as expressly provided (such as section 3ZZGE in relation to information to be given to the Ombudsman), the law relating to legal professional privilege is maintained.

698.

Item 52 - Paragraphs 15AA(2)(c) and (d)

699. Subsection 15AA(2) provides the offences for which bail is not to be granted except in exceptional circumstances. Terrorism offences (except an offence against 102.8 of the Criminal Code) are covered by paragraph 15AA(2)(a). Paragraphs 15AA(2)(c) and (d) cover, amongst other things, Division 80 of the Criminal Code.

700. This item inserts a reference to 'Subdivision C of' after the words 'provision of' in paragraphs 15AA(2)(c) and (d). This item is consequential to amending item 35, which inserts Subdivision B of Division 80 of the Criminal Code in the definition of 'terrorism offence' in subsection 3(1) of the Crimes Act.

701. As the definition of terrorism offences now includes Subdivision B of Division 80 (by amending item 35), it is not necessary to refer to all of Division 80 in paragraphs 15AA(2)(c) and (d) as Subdivision B of Division 80 will be covered in paragraph 15AA(2)(a). The only other Subdivision in Division 80 that contains offence provisions is Subdivision C. Item 52 inserts reference to Subdivision C into paragraphs 15AA(2)(c) and (d) to reflect the change made to the definition of terrorism offence by item 35.

Item 53 - After paragraph 15YU(1)(f)

702. This item is consequential to items 110 and 144, which repeal the Foreign Incursions Act and insert a new Part 5.5 in the Criminal Code. The offences in the Foreign Incursions Act are consolidated in the new Division 119 of Part 5.5 of the Criminal Code.

703. Item 53 inserts paragraph (fa) into subsection 15YU(1) providing that Part IAE, which relates to the use of video link evidence in proceedings for terrorism and related offences, applies to offences against Part 5.5 of the Criminal Code.

Item 54 - Paragraph 15YU(1)(j)

704. This item is consequential to amending item 144, which repeals the Foreign Incursions Act. Item 53 repeals paragraph 15YU(1)(j), which relates to offences committed under the Foreign Incursions Act.

Item 55 - Application of amendments

705. This item provides that paragraph 15YU(1)(j) will continue to apply, despite the commencement of item 54, in relation to any proceedings for an offence against the Foreign Incursions Act. Item 55 necessarily ensures that any proceedings involving offences against the Foreign Incursions Act will continue to be able to use the video link provisions in Part IAE despite the repeal of that Act.

Item 56 - Subsection 23DB(1) (note)

706. This item omits the reference to section '3W(2)' in the note of subsection 23DB(1) and inserts '3WA(2)'. The amendment is consequential to the insertion of new arrest provisions for terrorism offences and offences against section 80.2C of the Criminal Code under new section 3WA (see item 47).

707. Subsection 23DB(1) provides that the provisions in section 23DB apply to persons arrested for terrorism offences. The note to the subsection outlines that a person will not be arrested for a terrorism offence if that person has been released under section 3W(2). As the arrest provisions for terrorism offence will now be contained in section 3WA, the amended reference refers to new subsection 3WA(2).

Criminal Code Act 1995

Items 57 to 62 - Amendments to Division 80 of the Criminal Code

708. These items amend the humanitarian aid defence for the offence of 'Treason-materially assisting enemies', insert a new offence for advocating terrorism into Division 80 of the Criminal Code, and make minor amendments consequential to the insertion of that new offence. Further information about each item is provided below.

Item 57 - Part 5.1 of the Criminal Code (heading)

709. This item replaces the existing heading with a new heading 'Part 5.1-Treason, urging violence and advocating terrorism', acknowledging the inclusion of a new offence for advocating terrorism in Part 5.1.

Item 58 - Division 80 of the Criminal Code (heading)

710. This item replaces the existing heading with a new heading 'Division 80-Treason, urging violence and advocating terrorism', acknowledging the inclusion of a new offence for advocating terrorism in Division 80.

Item 59 - Subsection 80.1AA(6) of the Criminal Code

711. This item inserts the word 'solely' in subsection 80.1AA(6) of the Criminal Code to limit the humanitarian aid defence to the treason offences of materially assisting enemies to circumstances where the conduct was undertaken solely for humanitarian aid reasons.

712. This is designed to prevent a person who engages in treasonous conduct but also, for example, takes bandages with him or her in order to be able to render first aid to another person, from relying on the defence on the basis that one of the reasons for the persons conduct related to humanitarian aid.

Item 60 - Subdivision C of Division 80 of the Criminal Code (heading)

713. This item replaces the existing heading with a new heading 'Subdivision C-Urging violence and advocating terrorism', acknowledging the inclusion of a new offence for advocating terrorism in Subdivision C of Division 80.

Item 61 - At the end of Subdivision C of Division 80 of the Criminal Code

714. This item inserts new section 80.2C providing the new 'Advocating terrorism' offence at the end of Subdivision C of Division 80.

715. New subsection 80.2C(1) creates a new offence for advocating the doing of a terrorist act or the commission of a terrorism offence where the person intentionally engages in the conduct reckless as to whether another person will engage in a terrorist act or commit a terrorism offence.

716. Where there is sufficient evidence, the existing offences of incitement (section 11.4 of the Criminal Code) or urging violence (in Division 80 of the Criminal Code)-which have higher penalties-are pursued. However, these offences require proof that the person intended the crime or violence to be committed, and there are circumstances where there is insufficient evidence to meet that threshold. This is because persons advocating terrorism can be very sophisticated about the precise language they use, even though their overall message still has the impact of encouraging others to engage in terrorist acts.

717. Furthermore, in the current threat environment, returning foreign fighters and the use of social media are accelerating the speed at which persons can become radicalised and prepare to carry out terrorist acts. It is no longer the case that explicit statements (which would provide evidence to meet the threshold of intention and could be used in a prosecution for inciting terrorist acts of urging violence) are required to inspire others to take potentially devastating action in Australia or overseas. The cumulative effect of more generalised statements when made by a person in a position of influence and authority can still have the impact of directly encouraging others to go overseas and fight or commit terrorist acts domestically. This effect is compounded with the circulation of graphic violent imagery (such as beheading videos) in the same online forums as the statements are being made. Law enforcement agencies require tools to intervene earlier in the radicalisation process to prevent and disrupt further engagement in terrorist activity. This new offence is intended to be one of those tools.

718. New subsection 80.2C(1) includes a note that refers readers to the existing defence in section 80.3 of the Criminal Code for acts done in good faith. This defence protects the implied freedom of political communication, and specifically excludes from the offence, among other things, publishing a report or commentary about a matter of public interest in good faith.

719. The offence carries a maximum penalty of five years imprisonment, recognising the severity of the potential consequences of encouraging others to engage in terrorist acts and commit terrorism offences.

720. New subsection 80.2C(2) provides that, for the purposes of the offence in subsection 80.2C(1), a 'terrorism offence' is limited to an offence punishable by at least five years imprisonment; does not include an offence against section 11.1 (attempt), section 11.4 (incitement) or section 11.5 (conspiracy) to the extent that it relates to a terrorism offence; and does not include a terrorism offence that a person is taken to have committed because of section 11.2 (complicity and common purpose), section 11.2A (joint commission) or section 11.3 (commission by proxy).

721. New subsection 80.2C(3) defines 'advocates' as counselling, promoting, encouraging or urging the doing of a terrorist act or the commission of a terrorism offence. Those expressions will have their ordinary meaning. The terms 'promotes' and 'encourages' are not defined. The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates terrorism does not escape punishment by relying on a narrow construction of the terms or one of the terms. However, some examples of the ordinary meaning of each of the expressions follow: to 'counsel' the doing of an act (when used as a verb) is to urge the doing or adoption of the action or to recommend doing the action; to 'encourage' means to inspire or stimulate by assistance of approval; to promote' means to advance, further or launch; and 'urge' covers pressing by persuasion or recommendation, insisting on, pushing along and exerting a driving or impelling force.

722. While there may be some overlap between the expressions, it is clear that they do not cover merely commenting on or drawing attention to a factual scenario, particularly when combined with relevant defences. For example, conduct such as pointing out that a government policy is mistaken, contains an error, or is defective in good faith, are clearly covered by the defence in paragraphs 80.3(1)(a) and (b) of the Criminal Code. Similarly, conduct such as publishing a report or commentary about a matter of public interest in good faith is covered by the defence in paragraph 80.3(3). This will not stifle true debate that occurs-and should occur-within a democratic and free society. The new offence is designed to capture those communications that create an unacceptable risk of terrorist activity. Accordingly, a successful prosecution will require evidence that the person intentionally communicated something in circumstances where there is a substantial risk that somebody would take that speech as advocating the doing of a terrorist act or the commission of a terrorism offence.

723. Whether specific conduct, such as making or commenting on a particular post on the internet or the expression of support for a listed terrorist organisation is captured by the offence will depend on all the facts and circumstances because whether a person has actually 'advocated' the doing of a terrorist act or the commission of a terrorism offence will ultimately be a consideration for judicial authority based on all the facts.

724. New subsection 80.2C(3) also defines 'terrorism offence' so that it has the same meaning as in subsection 3(1) of the Crimes Act. However, subsection 80.2C(2) limits the application of the new advocating terrorism offence to those terrorism offences that carry a penalty of at least 5 years imprisonment and are not ancillary offences in Part2.4 of the Criminal Code. New subsection 80.2C(3) defines 'terrorist act' so that it has the same meaning as in section 100.1 of the Criminal Code.

725. New subsection 80.2C(4) makes it clear that a reference to advocating the doing of a terrorist act or commission of a terrorism offence includes a reference to advocating the doing of a terrorist act or commission of a terrorism offence, even if:

•

a terrorist act or terrorism offence does not occur

•

it is in relation to a specific terrorist act or the commission of a specific terrorism offence, or

•

it is in relation to more than one terrorist act or commission of more than one terrorism offence.

Item 62 - Subsection 80.4(2) of the Criminal Code

726. This item adds a reference to new subsection 80.2C(1) in subsection 80.4(2), and is consequential to the insertion of the new offence in subsection 80.2C(1). This provides that extended geographical jurisdiction-category B as defined by existing section 15.2 applies to the new offence. This is consistent with the existing offences for urging violence against groups under subsection 80.2A(2) and urging violence against members of groups under subsection 80.2B(2), which also carry a maximum penalty of five years imprisonment.

Item 62A

727. This item inserts a definition for the term engage in a hostile activity into section 100.1 for the purposes of Part 5.3 of the Criminal Code. The amendment provides that, for the purposes of Part 5.3 of the Criminal Code, 'engage in a hostile activity' has the same meaning as it has in new subsection 117.1(1) of the Criminal Code. This amendment obviates the need to include a cross reference to the definition in subsection 117.1(1) each time the expression is used in Part 5.3.

Item 63 - Subsection 102.1(1) of the Criminal Code (paragraph (a) of the definition of terrorist organisation )

728. This item removes the reference to the expression 'whether or not a terrorist act occurs' in the existing definition of 'terrorist organisation' in paragraph 102.1(1)(a). It is no longer necessary to include that expression following the insertion of new subsection 102.1(20), which defines the doing of a terrorist act for the purposes of revised section 102.1.

Item 64 - Paragraph 102.1(1A)(a) of the Criminal Code

729. This item amends existing paragraph 102.1(1A)(a) of the Criminal Code to ensure that an organisation can be listed as a terrorist organisation for advocating a terrorist act where the organisation directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act by the addition of the words 'promotes' and 'encourages'.

730. The terms 'promotes' and 'encourages' are not defined. The ordinary meaning of 'encourages' the doing of a terrorist act could include conduct or statements that inspire an individual to commit a terrorist act. The ordinary meaning of 'promotes' the doing of a terrorist act could include conduct or statements such as launching a campaign to commit terrorist acts.

731. While there may be some overlap with 'counsels' or 'urges' the doing of a terrorist act, which may include conduct such as inducement, persuasion or insistence, or to give advice, or an opinion about the doing of a terrorist act, the inclusion of the additional terms is designed to ensure coverage of a broader range of conduct that may be considered as advocating a terrorist act, beyond the conduct of 'counsels' or 'urges'.

732. An organisation could be listed as a terrorist organisation under paragraph 102.1(1)(b) of the definition of terrorist organisation on the basis of statements made by the organisation that satisfy the definition of 'advocates' under subsection 102.1(1A). However, if the organisation ceases to be actively and directly involved in committing terrorist acts, and becomes more involved in the direct or indirect promotion of a 'terrorist' ideology or methodology, the inclusion of the terms promotes or encourages become a greater factor in considering whether the organisation continues to advocate the doing of a terrorist act.

733. An organisation could continue to have a significant influence in promoting or encouraging terrorism by others without necessarily engaging in terrorist acts itself, without directly counselling or urging the doing of a terrorist act.

734. The inclusion of the terms 'promotes' and 'encourages' in paragraph 102.1(1A)(a) is consistent with section 3 of the United Kingdom's Terrorism Act 2000, which provides that an organisation is concerned in terrorism if it promotes or encourages terrorism.

Item 65 - Subsections 102.1(2), (4) and (17) of the Criminal Code

735. This item omits the expression 'whether or not a terrorist act has occurred or will occur' from existing subsections 102.1(2), (4) and (17). It is no longer necessary to include that expression following the insertion of new subsection 102.1(20) which defines the doing of a terrorist act for the purposes of revised section 102.1.

Item 66 - At the end of section 102.1 of the Criminal Code

736. This item inserts new subsection 102.1(20) into the definitions section. New subsection 102.1(20) provides that, whenever there is a reference in section 102.1 to the doing of a 'terrorist act', that reference is to be interpreted as including the doing of a terrorist act whether or not any terrorist act has occurred, the doing of a specific terrorist act, and the doing of more than one terrorist act.

737. This amendment has two elements. The first is technical arising from the omission of the words 'whether or not a terrorist act occurs' referred to in items 63 and 65 above. The second is to clarify that it is not necessary to prove that an organisation that directly or indirectly does any of the things listed in paragraphs 102.1(1)(a) or (b) of the definition of 'terrorist organisation', or section 102.1(1A) of the definition of 'advocates', relates to a particular terrorist act. It can be a specific terrorist act, more than one terrorist act and the terrorist act does not have to occur.

Item 67 - After section 102.1 of the Criminal Code

738. This item inserts a new section 102.1AA 'Including or removing names of prescribed terrorist organisations' after existing section 102.1.

739. New subsection 102.1AA(1) provides that the new section 102.1AA applies where the Minister is satisfied on reasonable grounds that a terrorist organisation is specified in regulations under the Criminal Code and is referred to by a name in addition to, or instead of, the name to specify the organisation (an alias) or no longer uses a name specified in the regulations (a former name). Provided the requirements of new subsection 102.1AA(1) apply new subsection 102.1AA(2) provides that the Minister may add an alias and/or remove a former name from the regulation by legislative instrument.

740. New subsection 102.1AA(3) makes it clear that amendment of regulations under new subsection 102.1AA(2) does not prevent the further amendment or repeal of regulations made under the main regulation making power, section 5 of the Criminal Code Act, nor does it affect the sunset date for the regulations.

741. New subsection 102.1AA(4) precludes the Attorney-General from amending regulations to 'delist' a terrorist organisation.

742. New subsection 102.1AA(5) is an avoidance of doubt measure that new section 102.1AA does not affect the power under section 5 of the Criminal Code Act to make regulations for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1).

743. This item partially implements recommendation VI/1of the INSLM's fourth report.

Item 68 - Section 102.5 of the Criminal Code (heading)

744. This item repeals the existing heading for section 102.5 of the Criminal Code and replaces it with a new heading '102.5 Training involving a terrorist organisation' reflecting amendments to extending the conduct criminalised in section 102.5.

Item 69 - Paragraphs 102.5(1)(a) and 102.5(2)(a) of the Criminal Code

745. This item repeals existing paragraphs 102.5(1)(a) and 102.5(2)(a) and replaces them with new paragraph 102.5(1)(a) and paragraph 102.5(2)(a).

746. New paragraph 102.5(1)(a) provides that the training offence in subsection 102.5(1) is made out not only where the person intentionally provides training to or receives training from an organisation, but where the person intentionally participates in training with an organisation, where the person is reckless as to whether the organisation providing or receiving the training is a terrorist organisation. This offence applies whether or not the organisation was a listed terrorist organisation.

747. New paragraph 102.5(2)(a) similarly provides that the training offence in subsection 102.5(2) is made out not only where the person intentionally provides training to or receives training from an organisation, but where the person intentionally participates in training with an organisation that is a listed terrorist organisation.

748. These amendments are designed to facilitate prosecutions in circumstances where there are no formally defined teaching and learning roles in a training session, where it is clear that a person has participated in training with a terrorist organisation, but the nature of the training or the circumstances in which it occurred means it is not possible to ascertain whether the person provided or received the training. An example would be where a group of like-minded individuals decide to acquire weapons and meet at a location to practice using them, for the purpose of directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act.

749. These amendments implement recommendation 17 of the COAG Review.

Items 70 to 87 - Amendments to Division 104 of the Criminal Code -Control Orders

750. These items amend Division 104 of the Criminal Code, which sets out the Commonwealth's control order regime.

751. Control orders provide law enforcement agencies with a legal basis upon which to take appropriate action to prevent a terrorist threat from eventuating in circumstances where there are insufficient grounds for arrest, but a person is nonetheless assessed as presenting a credible risk to public safety and security. This is particularly relevant in respect of emerging threats presented by Australians returning from conflict zones overseas. The small number of control orders made to date reflects the policy intent that they are extraordinary measures which are to be used sparingly.

Item 70 - Paragraph 104.2(2)(a) of the Criminal Code

752. This item replaces the word 'considers' with 'suspects' in paragraph 104.2(2)(a). This changes the threshold for a senior AFP member seeking the Attorney-General's consent to request an interim control order to circumstances where the member suspects on reasonable grounds that the order would substantially assist in preventing a terrorist act, making it consistent with the threshold in existing and revised paragraph 104.2(2)(b).

753. Reducing the threshold for seeking the Attorney-General's consent to request an interim control order brings the threshold for that ground in line with the threshold for the other existing and proposed new grounds. This amendment implements a recommendation of the COAG that there should be uniformity between the statutory pre-conditions (paragraph 229). COAG initially recommended 'considers' for both, but 'suspects' has been adopted. While technically this lowers the threshold for the applicant to seek consent, it does not change the threshold of which the court needs to be satisfied prior to making an interim order because the issuing court must still be satisfied on the balance of probabilities when making an interim control order that the order would substantially assist in preventing a terrorist act.

754. This amendment follows law enforcement advice that the current threshold for seeking consent to apply for an interim control order is too high. While this lowers the threshold for seeking consent to apply, an issuing court must still be satisfied of the various matters set out in the legislation on the balance of probabilities before it can make an interim control order, including that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.

Item 71 - Paragraph 104.2(2)(b) of the Criminal Code

755. This item repeals the existing criteria for seeking the Attorney-General's consent to request an interim control order under paragraph 104.2(2)(b) and replaces it with three criteria.

756. The first criteria at subparagraph 104.2(2)(b)(i) expands the existing training criteria to authorise a senior AFP member to seek the Attorney-General's consent to request an interim control order in relation to a person the member reasonably suspects has provided training to, received training from, or participated in training with a listed terrorist organisation. This amendment broadens the criteria for seeking consent to request an interim control order, consistent with the revised terrorist organisation training offence in subsection 102.5(2).

757. The new criteria at subparagraphs 104.2(2)(b)(ii), (iii) and (iv) authorise a senior AFP member to seek consent to request an interim control order in relation to a person the member reasonably suspects has engaged in a hostile activity in a foreign country, has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act or has been convicted overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.

758. The addition of these criteria follow law enforcement advice that there is a gap in the control order regime that currently precludes them from seeking consent to apply for a control order against a person who has actually engaged in foreign fighting activity or been convicted of a terrorism offence where those persons pose a risk to the community. The inclusion of these additional criteria will facilitate the placing of appropriate controls over such individuals where this would substantially assist in preventing a terrorist act. The requirement that a conviction overseas only be grounds for seeking a control order where that offence would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act implements Recommendation 9 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

759. These enhancements will better enable the AFP to mitigate the threat posed by individuals who have engaged in hostile activities overseas, developed capabilities or otherwise demonstrated their commitment to a terrorist cause. It will also be available against those convicted of terrorism offences and who may re-engage with terrorism. However, regardless of the ground on which the AFP member requesting the control order is relying, it is always necessary for the issuing court to be satisfied that imposing the obligations, prohibitions and restrictions sought to be imposed on the person is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.

Item 72 - At the end of section 104.2 of the Criminal Code

760. This item adds a new subsection to section 104.2, which sets out the criteria for seeking consent to request an interim control order. Consistent with new subsection 102.1(20), new subsection 104.2(6) makes it clear that a reference to a terrorist act in paragraph 104.2(2)(a) and (b) is to be interpreted as including a terrorist act whether or not any terrorist act has occurred, a specific terrorist act, and more than one terrorist act.

761. In relation to paragraph 104.2(2)(a), this amendment is designed to further clarify that an AFP member can seek the Attorney-General's consent to apply for a control order without having to prove that a particular terrorism act provides the grounds for the order. This is important to ensure a person who poses a risk to the public in the form of terrorism cannot avoid being placed under a control order merely because there is no information about the specific means by which the person is likely to do a terrorist act or the precise target of the terrorist act.

762. In relation to paragraph 104.2(2)(b), this amendment is designed to further clarify that an AFP member can seek the Attorney-General's consent to apply for a control order without having to prove that a conviction in Australia or a foreign country of an offence relates to a particular terrorist act. This is consistent with the existing terrorist act offences at sections 101.2, 101.4, 101.5 and 101.6 of the Criminal Code.

Item 73 - Subparagraph 104.4(1)(c)(ii) of the Criminal Code

763. This item repeals existing subparagraph 104.4(1)(c)(ii) which sets out the criteria for making an interim control order and replaces it with expanded criteria, consistent with the expanded criteria for seeking consent to request such an order.

764. The expanded and new criteria at subparagraphs 104.4(1)(c)(ii), (iii), (iv) and (v) now authorise an issuing court to make an interim control order in relation to a person where the court is satisfied on the balance of probabilities that the person has provided training to, received training from, or participated in training with a listed terrorist organisation, has engaged in a hostile activity in a foreign country, has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act or has been convicted overseas for an offence that would, if it occurred in Australia, be a terrorism offence within the definition in subsection 3(1) of the Crimes Act.

765. The inclusion of these additional criteria are consistent with the new criteria set out in subparagraph 104.2(2)(b)(ii), (iii) and (iv). Their inclusion will fill an existing gap in the control order regime by facilitating the placing of appropriate controls over individuals who have engaged in foreign fighting or have been convicted of a relevant offence where this would substantially assist in preventing a terrorist act

Item 74 - At the end of section 104.4 of the Criminal Code

766. This item inserts new subsection 104.4(4) at the end of existing section 104.4. Consistent with new subsection 104.2(6) which relates to requests to seek control orders, new subsection 104.4(4) makes it clear that a reference to a terrorist act in paragraph 104.4(1)(c) or (d) is to be interpreted as including a terrorist act whether or not any terrorist act has occurred or will occur, a specific terrorist act, and one or more terrorist acts.

767. This amendment is designed to further clarify that an issuing court can make a control order without proof of the particular terrorist act that provides the grounds for the order.

Item 75 - At the end of paragraph 104.5(3)(c) of the Criminal Code

768. This item amends paragraph 104.5(3)(c), which provides for a control order to include a requirement that the person subject to an interim control order remain at specified premises between specified times each day or on specified days. Amended paragraph 104.5(3)(c) limits the period for which a person can be required to remain at specified premises to a maximum of twelve hours within any twenty-four hour period. This is designed to address concerns that this restriction could otherwise be used to impose house arrest on a person.

769. A period of up to twelve hours is considered reasonable and appropriate to the threat posed by the individual. Such a restriction is not anticipated to interfere with the person's ability to engage in the usual activities of daily living, such as engaging in appropriate employment, taking children and other family members to work or other appropriate appointments and engagements, and engaging in social activities, provided none of those activities would require the person to contravene one of the other terms of the control order.

770. This amendment implements the Government's response to recommendation 34 of the COAG Review.

Item 76 - Paragraphs 104.6(1)(b) and 104.8(1)(b) of the Criminal Code

771. This item omits the words 'either considers or' and is consequential to the amendments to paragraphs 104.2(2)(a) (b) which change the threshold for seeking consent for an interim control order from 'considers' to 'suspects' on reasonable grounds.

Item 77 - Subparagraph 104.12(1)(b)(iii) of the Criminal Code

772. This item removes the word 'and' from subparagraph 104.12(1)(b)(iii), consequential to the addition of new subparagraph 104.12(1)(b)(iv) after subparagraph 104.12(1)(b)(iii).

Item 78 - At the end of paragraph 104.12(1)(b) of the Criminal Code

773. This item adds new paragraphs 104.12(1)(iv) to (ix) at the end of existing subsection 104.12(1), which sets out the matters the AFP must inform the person the subject of an interim control order at the time of serving the order on that person. This provision provides an important safeguard for persons the subject of a control order by placing an obligation on the AFP member serving the order not only to explain the person's rights but to take appropriate steps to ensure the person understands them.

774. New paragraphs 104.12(1)(iv) and (vii) require the AFP member to inform the person that he or she may have appeal and review rights in relation to any decision of an issuing court to make and confirm the order.

775. New paragraphs 104.12(1)(v) and (vi) require the AFP member to inform the person of the person's right to attend court on the day specified in the order for the purposes of confirming, declaring void, or revoking the interim control order and also of the person's right to have one or more representatives adduce evidence or make submissions to the issuing court if the order is confirmed.

776. New paragraph 104.12(1)(viii) requires the AFP member to inform the person of the person's right to apply for an order revoking or varying the order if it is confirmed.

777. New paragraph 104.12(1)(ix) requires the AFP member to inform the person of the person's right to have one or more representatives adduce evidence or make submissions to the issuing court in relation to an application by the AFP Commissioner to revoke or vary the order or to add obligations, prohibitions or restrictions to the order if it is confirmed.

778. Existing subsection 104.12(3) provides that the obligations on the AFP member to serve the order on the person personally and to explain the person's rights and take appropriate steps to ensure they are understood, do not apply if the actions of the person to whom the interim control order relates makes it impractical for the AFP member to do so. This could include a situation where the person is violent towards the member, but would not include a situation where the person's comprehension of English is poor. In such a case, the AFP member would be required to make appropriate arrangements to ensure the person is aware of and can understand his or her rights.

779. This amendment implements recommendation 32 of the COAG Review.

Item 79 - Section 104.17 of the Criminal Code

780. This item inserts subsection number '(1)' before the text of existing section 104.17 to convert existing section 104.17 to subsection 104.17(1). This amendment is consequential to the addition of new paragraphs 104.17(1)(a) to (c) and subsections 104.17(2) and (3).

Item 80 - Section 104.17 of the Criminal Code

781. This item omits the words after 'section 104.14,' in subsection 104.17, which provides for the service of a declaration, revocation, variation of confirmation of a control order, and replaces them with three new paragraphs. These amendments provide additional safeguards for individuals the subject of an interim control order where the status of that order changes.

782. New paragraph 104.17(1)(a) requires the AFP member to serve the relevant declaration, revocation, or confirmed control order personally on the person.

783. New paragraph 104.17(1)(b) provides that, if the court confirms the interim control order-with or without variation-the AFP must inform the person that he or she may have appeal and review rights in relation to the decision of the issuing court to confirm the order, he or she has the right to apply under section 104.18 for an order revoking or varying the order, and that he or she, or one or more of his or her representatives, has the right to adduce evidence or make submissions in relation to an application to revoke or vary the order.

784. New paragraph 104.17(1)(c) provides that, where the court has confirmed the interim control order, the AFP member must ensure the person understands the information provided. In doing so, the AFP member must take into account the person's individual circumstances, including age, language skills and mental capacity.

785. This amendment implements recommendation 32 of the COAG Review.

Item 81 - At the end of section 104.17 of the Criminal Code

786. This item adds subsections 104.17(2) and (3) to revised section 104.17.

787. New subsection 104.17(2) provides that the obligations on the AFP member to inform the person of certain matters and to ensure the person understands those matters (imposed by paragraphs 104.17(1)(b) and (c)) do not apply if the actions of the person make compliance impracticable.

788. New subsection 104.17(3) makes it clear that a failure by the AFP member to ensure the person understands the matters set out in new paragraph 104.17(1)(b) does not impact on the effectiveness of the control order. This is an important safeguard for a number of reasons. For example, the person could advise the AFP member they understand the information provided and behave in a manner consistent with understanding the information provided, but not actually understand it. It would be difficult if not impossible for the AFP member to be aware of that. Alternatively, the person could be acting violently towards the AFP member and it could be impractical for the AFP member to ensure the person understands the information.

Item 81A - Subsection 104.23(1) of the Criminal Code

789. This item amends subsection 104.23(1) of the Criminal Code, which provides for the applications for variation of a control order by the Commissioner of the AFP.

790. This item provides that the Commissioner of the AFP may apply to an issuing court to add one or more obligations, prohibitions or restrictions to a confirmed control order where the Commissioner suspects on reasonable grounds that either:

•

the varied order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act, or

•

the person the subject of the order has either:

•

participated in training with a terrorist organisation

•

engaged in or support for or otherwise facilitated engagement in a hostile activity in a foreign country

•

been convicted of a terrorism related offence in Australia, or

•

been convicted of an offence overseas that would, if the conduct occurred in Australia, be a terrorism offence within the meaning of the definition in subsection 3(1) of the Crimes Act.

791. The change of the threshold from 'considers' to 'suspects' on reasonable grounds for the ground of substantially assisting in preventing a terrorist act at revised paragraph 104.23(1)(a) is consistent with the amendment to the threshold for requesting an interim control order under paragraph 104.2(2)(a).

Item 82 - At the end of section 104.23 of the Criminal Code

792. This item adds a new subsection to section 104.23, which provides for the Commissioner of the AFP to cause an application to be made to vary a confirmed control order by adding one or more obligations, prohibitions or restrictions. New subsection 104.23(6) makes it clear that a reference to a terrorist act in subsection 104.23(1) is to be interpreted as including a terrorist act whether or not any terrorist act has occurred or will occur, a specific terrorist act, and one or more terrorist acts.

793. This amendment is designed to further clarify that the AFP Commissioner can seek a variation without having to prove a particular terrorist act that provides the grounds for the variation.

Item 83 - At the end of section 104.24 of the Criminal Code

794. This item adds a new subsection to section 104.24, which provides an issuing court can vary a confirmed control order by adding one or more obligations, prohibitions or restrictions. New subsection 104.24(4) makes it clear that a reference to a terrorist act in paragraph 104.24(1)(b) is to be interpreted as including a terrorist act whether or not any terrorist act has occurred or will occur, a specific terrorist act, and one or more terrorist acts.

795. This amendment is designed to further clarify that an issuing court can vary a confirmed control order by adding conditions without a requirement for the variation to relate to a particular terrorist act.

Item 84 - Subparagraph 104.26(1)(c)(ii) of the Criminal Code

796. This item removes the word 'and' from subparagraph 104.26(1)(c)(ii), consequential to the addition of new subparagraphs 104.26(1)(c)(iii), (iv) and (v) after subparagraph 104.26(1)(c)(ii).

Item 85 - At the end of paragraph 104.26(1)(c) of the Criminal Code

797. This item adds new subparagraphs 104.26(1)(c)(iii), (iv) and (v) at the end of existing paragraph 104.26(1)(c), which sets out the matters the AFP must inform the person the subject of a varied control order at the time of serving the order on that person.

798. New subparagraph 104.26(1)(c)(iii) requires the AFP member to inform the person that he or she may have appeal and review rights in relation to any decision of an issuing court to make and confirm the order.

799. New subparagraphs 104.26(1)(c)(iv) and (v) require the AFP member to inform the person of the person's right to make an application to revoke or vary the order and also of the person's right to have one or more representatives adduce evidence or make submissions in relation to any such application.

800. Existing subsection 104.26(3) provides that the obligations on the AFP member to serve the order on the person personally and to explain the person's rights and take appropriate steps to ensure they are understood, do not apply if the actions of the person to whom the interim control order relates makes it impractical for the AFP member to do so. This could include a situation where the person is violent towards the member, but would not include a situation where the person's comprehension of English is poor. In such a case, the AFP member would be required to make appropriate arrangements to ensure the person is aware of and can understand his or her rights.

801. This amendment implements recommendation 32 of the COAG Review.

Items 86 to 87 - Subsection 104.32(1) and (2) of the Criminal Code

802. These items amend section 104.32 to ensure the control order regime continues until 7 September 2018. This amendment recognises the enduring nature of the terrorist threat and the important role of control orders in mitigating and responding to that threat.

803. In light of the increasing threat the escalating terrorist situation in Iraq and Syria poses to the security of all Australians, both here in Australia and overseas, it is vital that law enforcement agencies continue to have access to all tools that could be required to combat this threat and protect Australia and Australians from terrorist acts.

804. The date for the sunset was selected in response to Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which proposed a sunset date of 'two years after the last Federal election'. The 7 September 2018 date was selected to provide greater certainty regarding the duration of these powers rather than referring to the uncertain date. This date is two years after the third anniversary of the last general election.

Items 88 to 108 - Amendments to Division 105 of the Criminal Code -Preventative detention orders

805. These items amend Division 105 of the Criminal Code, which sets out the Commonwealth regime for preventative detention.

806. PDOs provide law enforcement agencies with a legal basis to take appropriate action to prevent a terrorist threat from eventuating or to preserve evidence in the immediate aftermath of a terrorist act where there are insufficient grounds for arrest, but a person is nonetheless assessed as presenting a credible risk to public safety. This is particularly relevant in respect of emerging threats presented by Australians returning from conflict zones overseas. The fact that no PDOs have been made to date reflects the policy intent that they are extraordinary measures which are to be used sparingly.

Item 88 - Subsection 105.4(4) of the Criminal Code

807. This item repeals existing subsection 105.4(4) to provide for a subjective test for an AFP member applying for a PDO in relation to a person.

808. New paragraph 105.4(4)(a) provides that an AFP member may apply for a PDO in relation to a person where the member 'suspects' one or more of the listed matters 'on reasonable grounds'. The threshold is being changed on the advice of law enforcement that the use of the subjective test of suspects on reasonable grounds is more appropriate. The use of that threshold is designed to ensure that, not only are there reasonable grounds upon which to form the suspicion, but the AFP member has actually formed the suspicion.

809. New paragraph 105.4(4)(b) retains the requirement that the issuing authority is satisfied there are reasonable grounds to suspect that the relevant person will do one of the things listed. The listed matters are that the person will engage in a terrorist act, possesses a thing connected with the preparation for or engagement in a terrorist act, or has done an act in preparation or planning a terrorist act.

810. New paragraphs 105.4(4)(c) and (d) retain the requirements for both the AFP member and the issuing authority to be satisfied that making the order would substantially assist in preventing a terrorist act occurring and that detaining the person is reasonably necessary to substantially assist in preventing a terrorist act.

811. This item implements the Government's response to recommendation III/1 of the INSLM's second annual report.

Item 89 - Paragraph 105.4(6)(b) of the Criminal Code

812. This item changes the threshold in paragraph 105.4(6)(b) for detaining a person under a PDO to circumstances where the AFP member or issuing authority is satisfied that detention is 'reasonably necessary' to preserve evidence of or relating to a terrorist act that occurred within the last 28 days. The existing additional requirements in paragraphs 105.4(6)(a) and (c) are not changed.

813. This item implements recommendation III/3 of the INSLM's second annual report.

Item 90 - Paragraph 105.7(2)(a) of the Criminal Code

814. This item repeals paragraph 105.7(2)(a) which sets out the requirements for an application to an issuing authority for an initial PDO in relation to a person.

815. Subparagraph 105.7(2)(a)(i) retains the ability for an AFP member to apply for an initial PDO in writing, and clarifies that this does not include writing by means of an electronic communication.

816. New subparagraph 105.7(2)(a)(ii) authorises an AFP member to apply for an initial PDO orally where the AFP member considers it necessary because of urgent circumstances. The provision authorises the AFP member to apply orally in person or by telephone, fax, email or other electronic means of communication. This inclusive description is designed to ensure other forms of electronic communication, including those not contemplated or not invented at the time of the amendment can be used to make an oral application.

817. This amendment clarifies that, under normal circumstances, an application should be made in writing in the presence of an issuing authority. However, where the situation is urgent, for example, because the person is thought to be about to abscond, destroy evidence or undertake actions in furtherance of a terrorist act, or because it is not possible to make an application to an issuing authority in person within a reasonable period of time due to physical location or other limitations, an urgent oral application can be made.

Item 91 - After subsection 105.7(2A) of the Criminal Code

818. This item inserts new subsection 105.7(2B) at the end of existing subsection 105.7(2A). New subsection 105.7(2B) requires that, where an AFP member makes an application orally under new subparagraph 105.7(2)(a)(ii), the AFP member must subsequently verify or give the information that was previously provided orally to the relevant issuing authority on oath or affirmation. The use of the expression 'verify' acknowledges that the information provided orally should be provided again (in writing) in writing. The use of the expression 'give' acknowledges that information in addition to the information previously provided could also be provided in writing.

819. New subsection 105.7(2B) provides for an exception to this requirement where the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the AFP member. This is a safeguard to ensure that, where unforeseen circumstances arise that make it impractical to administer an oath or affirmation, it does not compromise the validity of the application and the PDO that was made.

Item 92 - Subsection 105.8(1) of the Criminal Code

820. This item inserts the words 'subject to subsection (1A)' into subsection 105.8(1). This amendment makes it clear that an issuing authority may make an initial PDO in relation to a person subject to new subsection 105.8(1A).

Item 93 - After subsection 105.8(1) of the Criminal Code

821. This item inserts new subsection 105.8(1A) after subsection 105.8(1). New subsection 105.8(1A) provides that, where an application for an initial PDO is made orally, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means. This is designed to ensure the AFP applies for PDOs in writing in cases where there are not urgent circumstances sufficient to justify the making of an order on the basis of an oral application.

Item 94 - Paragraph 105.8(6)(a) of the Criminal Code

822. paragraph This item repeals paragraph 105.8(6)(a) of the Criminal Code and replaces it with a new paragraph. This amendment ensures an issuing authority can make an initial PDO in relation to a person whose full name is not known, but who can be identified, for example, by a partial name or nickname or description. It is important that a person of security concern cannot escape being the subject of an initial PDO merely because authorities do not know the person's full legal name.

823. New paragraph 105.8(6)(a) provides that an initial preventative detention order may be made by a senior AFP member in relation to a person whose full name is not known.

824. New subparagraph 105.8(6)(a)(i) provides that an initial preventative detention order can be made in relation to an alias by which a person is known only if, after reasonable inquiries have been made, the person's true name is not known. Similarly, new subparagraph 105.8(6)(a)(ii) provides that an initial preventative detention order can be made by reference to a description that is sufficient to identify the person only if, after reasonable inquiries have been made, the person's true name is not known.

825. The amendment implements Recommendation 11 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

Item 95 - After subsection 105.8(7) of the Criminal Code

826. This item inserts new subsection 105.8(7A) after existing subsection 105.8(7). This amendment provides an important safeguard for persons subject to an initial PDO made orally by requiring the issuing authority to ensure there is either an audio or audio-visual recording of the application (at the time the application is made) or that a written record of the details of the application and any information given in support of the application is made as soon as practicable after the order is made. It also provides a safeguard to the applicant and issuing authority by ensuring there is an accurate record of the information relied upon for the application and making of the order.

Item 95A - Subsection 105.8(8) of the Criminal Code

827. This item inserts the words 'as soon as reasonably practicable after the order is made' after the word 'must' into subsection 105.8(8) of the Criminal Code. This amendment implements Recommendation 12 of the Report of the Parliamentary Joint Committee on Intelligence and Security by requiring notification to the Commonwealth Ombudsman and provision of a copy of the order to the Commonwealth Ombudsman to occur as soon as reasonably practicable after the order is made.

Item 96 - Paragraph 105.12(6)(a) of the Criminal Code

828. This item repeals paragraph 105.12(6)(a) of the Criminal Code and replaces it with a new paragraph, consistent with the amendment to paragraph 105.8(6)(a). This amendment ensures an issuing authority can make a continued PDO in relation to a person whose full name is not known, but who can be identified, for example, by a partial name or nickname. It is important that a person of security concern cannot escape being the subject of a continued preventative detention in circumstances where authorities still do not know the person's full legal name after the person is taken into detention under an initial PDO.

829. New paragraph 105.12(6)(a) provides that a continued preventative detention order may be made by a judge, AAT member or retired judge in relation to a person whose full name is not known.

830. New subparagraph 105.12(6)(a)(i) provides that a continued preventative detention order can be made in relation to an alias by which a person is known only if, after reasonable inquiries have been made, the person's true name is not known. Similarly, new subparagraph 105.8(6)(a)(ii) provides that a continued preventative detention order can be made by reference to a description that is sufficient to identify the person only if, after reasonable inquiries have been made, the person's true name is not known.

831. The amendment implements Recommendation 11 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

Item 96A - Subsection 105.12(8) of the Criminal Code

832. This item amends subsection 105.12(8) of the Criminal Code. This amendment implements Recommendation 12 of the Report of the Parliamentary Joint Committee on Intelligence and Security by requiring notification to the Commonwealth Ombudsman and provision of a copy of the order to the Commonwealth Ombudsman to occur as soon as reasonably practicable after the order is made.

Item 97 - After subsection 105.15(1) of the Criminal Code

833. This item inserts new subsection 105.15(1A) after existing subsection 105.15(1).

834. New paragraph 105.15(1A)(a) retains the ability for an AFP member to apply for a prohibited contact order in writing, and clarifies that this does not include writing by means of an electronic communication.

835. New paragraph 105.15(1A)(b) authorises an AFP member to apply for a prohibited contact order orally where the AFP member considers it necessary because of urgent circumstances. The provision authorises the AFP member to apply orally in person or by telephone, fax, email or other electronic means of communication. This inclusive description is designed to ensure other forms of electronic communication, including those not contemplated or not invented at the time of the amendment can be used to make an oral application.

836. This amendment complements the provisions that authorise an AFP member to apply for and an issuing authority to make an initial PDO. This measure is important to ensure a person the subject of an initial PDO made in urgent circumstances cannot circumvent the provisions providing for the making of a prohibited contact order where one or more of the criteria in subsection 105.14A(4) is satisfied.

837. This amendment clarifies that, under normal circumstances, an application for a prohibited contact order should be made in writing in the presence of an issuing authority. However, where the situation is urgent, for example, because the person is about to be taken into detention or is already in detention and is thought to be about to contact a person in order to facilitate that person absconding, destroying evidence or undertaking actions in furtherance of a terrorist act, or because it is not possible to make an application to an issuing authority in person within a reasonable period of time due to physical location or other limitations, an urgent oral application can be made.

Item 98 - Subsection 105.15(3) of the Criminal Code

838. This item repeals and replaces subsection 105.15(3) and inserts new subsection 105.15(3A).

839. Revised subsection 105.15(3) provides that, where an AFP member applies for a continued PDO and an application for a prohibited contact order is made in writing under subparagraph 105.15(1A)(a), the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.

840. New subsection 105.15(3A) provides that, where an AFP member applies for a continued PDO and an application for a prohibited contact order is made orally under new subparagraph 105.15(1A)(b), the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member. Subsection 105.15(3A) provides for an exception to this requirement where the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the AFP member.

Item 99 - Subsection 105.15(4) of the Criminal Code

841. This item inserts the words 'subject to subsection (4A)' into subsection 105.15(4). This amendment makes it clear that an issuing authority may make a prohibited contact order in relation to a person subject to new subsection 105.15(4A).

Item 100 - After subsection 105.15(4) of the Criminal Code

842. This item inserts new subsection 105.15(4A) after subsection 105.15(4). New subsection 105.15(4A) provides that, where an application for a prohibited contact order is made orally, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means. This is designed to ensure the AFP applies for prohibited contact orders in writing in cases where there are not urgent circumstances sufficient to justify the making of an order on the basis of an oral application.

843. This amendment clarifies that, under normal circumstances, an application for a prohibited contact order should be made in writing in the presence of an issuing authority. However, where the situation is urgent, for example, because the person is about to be taken into detention or is already in detention and is thought to be about to contact a person in order to facilitate that person absconding, destroying evidence or undertaking actions in furtherance of a terrorist act, or because it is not possible to make an application to an issuing authority in person within a reasonable period of time due to physical location or other limitations, an urgent oral application can be made.

Item 101 - At the end of section 105.15 of the Criminal Code

844. This item inserts new subsection 105.15(7) after existing 105.15(6). This amendment provides an important safeguard for persons subject to a prohibited contact order made orally by requiring the issuing authority to ensure there is either an audio or audio-visual recording of the application (at the time the application is made) or that a written record of the details of the application and any information given in support of the application is made as soon as practicable after the order is made. It also provides a safeguard to the applicant and issuing authority by ensuring there is an accurate record of the information relied upon for the application and making of the order.

Item 102 - After subsection 105.16(1) of the Criminal Code

845. This item inserts new subsection 105.16(1A) after existing subsection 105.16(1).

846. New paragraph 105.16(1A)(a) provides that an AFP member can apply for a prohibited contact order in relation to a person who is already the subject of a PDO in writing, and clarifies that this does not include writing by means of an electronic communication.

847. New paragraph 105.16(1A)(b) provides that an AFP member can apply for a prohibited contact order in relation to a person who is already the subject of a PDO orally where the AFP member considers it necessary because of urgent circumstances. The provision authorises the AFP member to apply orally in person or by telephone, fax, email or other electronic means of communication. This inclusive description is designed to ensure other forms of electronic communication, including those not contemplated or not invented at the time of the amendment can be used to make an oral application.

Item 103 - Subsection 105.16(3) of the Criminal Code

848. This item repeals and replaces subsection 105.16(3) and inserts new subsection 105.16(3A).

849. Revised subsection 105.16(3) provides that, where an AFP member applies for a continued PDO and an application for a prohibited contact order in relation to a person already the subject of a preventative order in writing under subparagraph 105.16(1A)(a), the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.

850. New subsection 105.16(3A) provides that, where an AFP member applies for a continued PDO and an application for a prohibited contact order is made in relation to a person already the subject of a preventative order orally under new subparagraph 105.16(1A)(b), the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member. Subsection 105.16(3A) provides for an exception to this requirement where the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the AFP member.

Item 104 - Subsection 105.16(4) of the Criminal Code

851. This item inserts the words 'subject to subsection (4A)' into subsection 105.16(4). This amendment makes it clear that an issuing authority may make a prohibited contact order in relation to a person already the subject of a PDO subject to new subsection 105.16(4A).

852. This amendment clarifies that, under normal circumstances, an application for a prohibited contact order should be made in writing in the presence of an issuing authority. However, where the situation is urgent, for example, because the person is already in detention and is thought to be about to contact a person in order to facilitate that person absconding, destroying evidence or undertaking actions in furtherance of a terrorist act, or because it is not possible to make an application to an issuing authority in person within a reasonable period of time due to physical location or other limitations, an urgent oral application can be made.

Item 105 - After subsection 105.16(4) of the Criminal Code

853. This item inserts new subsection 105.16(4A) after subsection 105.16(4). New subsection 105.16(4A) provides that, where an application for a prohibited contact order is made in relation to a person who is already the subject of a PDO orally, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means. This is designed to ensure the AFP applies for prohibited contact orders in writing in cases where there are not urgent circumstances sufficient to justify the making of an order on the basis of an oral application.

Item 106 - At the end of section 105.16 of the Criminal Code

854. This item inserts new subsection 105.16(7) after existing 105.16(6). This amendment provides an important safeguard for persons subject to a prohibited contact order made orally by requiring the issuing authority to ensure there is either an audio or audio-visual recording of the application (at the time the application is made) or that a written record of the details of the application and any information given in support of the application is made as soon as practicable after the order is made. It also provides a safeguard to the applicant and issuing authority by ensuring there is an accurate record of the information relied upon for the application and making of the order.

Items 107 to 108 - Section 105.53 of the Criminal Code

855. This item amends section 105.53 to ensure the operation of the PDO regime will continue until 7 September 2018. This amendment recognises the enduring nature of the terrorist threat and the important role of PDOs in mitigating and responding to that threat.

856. In light of the increasing threat posed by the escalating terrorist situation in Iraq and Syria to the security of all Australians, both here in Australia and overseas, it is vital that law enforcement agencies continue to have access to all tools that could be required to combat this threat and protect Australia and Australians from terrorist acts.

857. The date for the sunset was selected in response to Recommendation 13 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which proposed a sunset date of 'two years after the last Federal election'. The 7 September 2018 date was selected to provide greater certainty regarding the duration of these powers rather than referring to the uncertain date. This date is two years after the third anniversary of the last general election.

Item 109 - At the end of Division 106 of the Criminal Code

858. This item adds new section 106.5 at the end of Division 106 of the Criminal Code. New section 106.5 sets out the application provisions for certain amendments to Divisions 102, 104 and 105 made by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.

859. New subsection 106.5(1) provides that the amendments to section 102.1 made by Schedule 1 to the Counte r-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 do not affect the continuity of any regulations that are in force for the purposes of that section immediately before the commencement of this section.

860. New subsection 106.5(2) provides that the amendments to section 104.2 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply to requests for interim control orders made after the commencement of section 106.5 where the conduct in relation to which the request is made occurs before or after that commencement.

861. New subsection 106.5(3) provides that the amendments to section 104.4 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply to the making of interim control orders requested after the commencement of section 106.5 where the conduct in relation to which the request is made occurs before or after that commencement.

862. New subsection 106.5(4) provides that the amendments to sections 104.6 and 104.8 made by Schedule 1 to the Counte r-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply to the making of requests for urgent interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

863. New subsection 106.5(4A) provides that the amendment to section 104.23 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 only applies in relation to control orders where the relevant interim control order is requested after that commencement.

864. New subsection 106.5(5) provides that the amendments to section 105.4 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to applications for PDOs made after the commencement of section 106.5.

865. New subsection 106.5(6) provides that the amendments to section 105.7 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to applications for initial PDOs made after the commencement of section 106.5.

866. New subsection 106.5(7) provides that the amendments to section 105.8 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to initial PDOs made after the commencement of section 106.5.

867. New subsection 106.5(8) provides that the amendment to section 105.12 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to continued PDOs made after the commencement of section 106.5, regardless of when the initial PDO to which the continued order relates was made.

868. New subsection 106.5(9) provides that the amendments to section 105.15 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to applications for prohibited contact orders made after the commencement of section 106.5, regardless of when the application for the PDO to which the prohibited contact order relates was made.

869. New subsection 106.5 (10) provides that any amendments to section 105.16 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 apply in relation to applications for prohibited contact orders made after the commencement of section 106.5, regardless of when the PDO to which the prohibited contact order relates was made.

Item 110 - New Part 5.5 of the Criminal Code

870. Item 110 inserts new 'Part 5.5-Foreign incursions and recruitment' into the Criminal Code. New Part 5.5 contains offences and other provisions based on the Foreign Incursions Act, which is repealed by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.

871. New Part 5.5 will modernise the provisions of the Foreign Incursions Act and addresses the anomalies and mismatches identified by the INSLM during his review of the Foreign Incursions Act in his fourth annual report to ensure that the provisions complement other counter-terrorism laws and enhance the overall effectiveness of the framework. The offences in new Part 5.5 are designed to simplify the offences to ensure they are easier to understand, and to respond to the significant threat to the safety and security of Australia and Australians posed by those who engage in foreign fighting or seek to do so.

Item 110 - At the end of Chapter 5 of the Criminal Code

872. This item inserts new 'Part 5.5-Foreign incursions and recruitment' after Part 5.4.

Part 5.5-Foreign incursions and recruitment

Division 117-Preliminary

873. New Division 117 sets out the definitions relevant to new Part 5.5, provides the criteria for the making of regulations prescribing organisations by the Governor-General, and identifies the geographical jurisdiction that applies for the offences in new Part 5.5.

117.1 Definitions

874. New subsection 117.1(1) contains a number of definitions relevant to the offences and other provisions in Part 5.5.

875. The definition of 'engage in a hostile activity' reflects the definition in the Foreign Incursions Act but expands the definition to include conduct that occurs in the foreign country or any other foreign country (or of a part of that or any other foreign country). This revised definition implements the Government's response to recommendation III/2 of the INSLM's fourth annual report. The definition also includes 'the engagement, by that or any other person, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3) and, if engaged in in Australia, would constitute a serious offence', which implements Recommendations 15 and 16 of the Report of the Parliamentary Joint Committee on Intelligence and Security.

876. The term 'recruit' is defined to include induce, incite or encourage. This revised definition reflects the current definition of 'recruit' contained in Part 5.3 of the Criminal Code. The amendment will modernise the definition used in relation to foreign incursion and recruitment offences and will provide consistency and clarity. The new definition will include 'encourage' which is not new as the definition of 'incite' in the former Foreign Incursions Act included encourage. The amendment implements the Government's response to recommendation III/5 of the INSLM's fourth annual report.

877. This term 'serious offence' is defined for the purposes of new Part 5.5, as an offence against a law of the Commonwealth, a State or a Territory, that is punishable by at least 2 years imprisonment. This amendment completes the implementation of Recommendation 16 of the Report of the Parliamentary Joint Committee on Intelligence and Security by limiting the actions covered by subparagraph 117.1(1)(b) of the definition of 'engage in hostile activity' to conduct that constitutes a serious offence under Australian law. The two year threshold is consistent with section 3C of the Crimes Act, which provides the definition of serious offence for the purposes of the search, information gathering, arrest and related powers in Part IAA of the Crimes Act. It was not considered appropriate to insert a cross reference to that definition because it excludes State offences that do not have a federal aspect and also excludes serious terrorism offences, which are defined separately as 'serious terrorism offences'.

Prescribing organisations

878. New subsection 117.1(2) provides that, before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph 117.1(1)(a) of the definition of prescribed organisation, the Minister must be satisfied on reasonable grounds that the organisation either is directly or indirectly engaged in, preparing, planning, assisting in or fostering:

•

a serious violation of human rights

•

the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3) section

•

a terrorist act within the meaning of section 100.1, or

•

an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.

section paragraph Attorney-Generalsection section section section section 117.2

Extended geographical jurisdiction-category D

879. New section 117.2 provides that category D extended geographical jurisdiction as defined in section 15.4 of the Criminal Code applies to the offences against Part 5.5 subject to any other restrictions in Part 5.5 to the contrary.

Division 119-Foreign incursions and recruitment

119.1 Incursions into foreign countries with the intention of engaging in hostile activities

880. New section 119.1 creates two offences for entering a foreign country with the intention of engaging in hostile activities and engaging in a hostile activity in a foreign country, and a defence to those offences. The penalties for these offences implement recommendation III/7 of the INSLM's fourth annual report, that the penalty provisions in sections 101.1 and 101.6 of the Criminal Code and 6 and 7 of the Foreign Incursions Act should be equivalent.

Offence for entering foreign countries with the intention of engaging in hostile activities

881. New subsection 119.1(1) creates an offence for intentionally entering a foreign country with the intention of engaging in a hostile activity as defined by subsection 117.1(1) in that country or in any other foreign country.

882. New paragraph 119.1(1)(b) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act or a person who has voluntarily put themselves under the protection of the Commonwealth at the time when the person enters the foreign country. This paragraph ensures the offence only applies to persons with a relevant and sufficient connection to Australia.

883. The maximum penalty for contravening the new offence in subsection 119.1(1) is imprisonment for life, reflecting the seriousness of the conduct.

Offence for engaging in a hostile activity in a foreign country

884. New subsection 119.1(2) creates an offence for intentionally engaging in a hostile activity in a foreign country. Consistent with the offence at new subsection 119.1(1), new paragraph 119.1(1)(b) limits the application of the offence to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act or a person who has voluntarily put themselves under the protection of the Commonwealth at the time when the person engages in the activity.

885. The maximum penalty for contravening the new offence in subsection 119.1(2) is imprisonment for life, reflecting the seriousness of the conduct which at its most serious could involve unlawful death or an intention to cause unlawful death.

886. New subsection 119.1(3) provides that absolute liability applies to the elements in paragraphs 119.1(1)(b) and (2)(b) that the person is a citizen, resident, visa holder, or has voluntarily placed themselves under Australia's protection.

887. The Note to subsection 119.1(3) advises readers to refer to section 6.2 of the Criminal Code for further information about the fault element of absolute liability.

888. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact under section 9.2 of the Criminal Code is not available. Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless as to the fact that they were a citizen, resident, visa holder, or had voluntarily placed themselves under Australia's protection at the time they entered the foreign country to engage in the conduct.

889. Absolute liability is appropriate and required for the element of the offence that the person is a citizen, resident, visa holder, or has voluntarily placed themselves under Australia's protection. The element appropriately limits the jurisdictional operation of the offence to only operate in respect of conduct of persons with the requisite connection to Australia (otherwise extended geographical jurisdiction-category D would apply). Further, the issue of whether the person knew or was reckless to the fact that they were a citizen, resident, visa holder, or had voluntarily placed themselves under Australia's protection at the time they entered the foreign country to either engage in a hostile activity or with the intention to engage in a hostile activity is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

Exception

890. New subsection 119.1(4) creates a defence to the offences in subsections 119.1(1) and (2). The defence applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with either the armed forces of the government of a foreign country or any other armed force the subject of a declaration made under subsection 119.8(1), provided that declaration covers the person and the circumstances of the person's service in or with the force.

891. Note 1 to new subsection 119.1(4) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the defence is made out because the person is better placed to provide that preliminary evidence. For example, the prosecution is unlikely to hold information about the particular person's dual citizenship or the fact that the person's service with the specific foreign armed forces comes within a particular declaration. Once the person has provided preliminary information suggesting they were serving pursuant to a declaration, the prosecution would need to disprove that evidence beyond reasonable doubt.

892. There are many other examples in the law where a person is required to point to evidence that may or could not be held or accessible by the prosecution. For the current proposal, the prosecution always has the persuasive burden of proof. But it is appropriate to require a preliminary level of evidence to be provided by the person concerned in circumstances where that person has the best evidence available about the purposes of their travel. Accordingly, once the defendant has adduced preliminary evidence, the prosecution must refute the defence beyond reasonable doubt.

893. Note 2 to new subsection 119.1(4) refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence or international relations of Australia.

119.2 Entering, or remaining in, declared areas

894. New section 119.2 creates a new offence for entering, or remaining in, an area in a foreign country that is the subject of a declaration under new section 119.3, as well as defences to that offence.

895. The offence requires the prosecution to prove beyond reasonable doubt, not only that the person 'intentionally' entered or remained in an area, but that the person was aware of a substantial risk that the area was declared and intentionally entered or remained despite that. The application of intention to the conduct (entering or remaining) ensures a person who inadvertently travels to a declared area-for example in a bus en route to another location-or who is injured and unable to leave a declared area does not commit the offence. Furthermore, the application of recklessness to the fact that the area is a declared area means a person who is, for example, in a remote area without access to communications and with no reasonable way of knowing the area has become a declared area, does not commit the offence.

896. The purpose of the offence is to equip law enforcement and prosecutorial agencies with the tools to arrest, charge and prosecute those Australians who have committed serious offences, including associating with, fighting, or providing other support for terrorist organisations overseas. Legitimate purposes for travel to or remaining in a declared area are protected, but appropriately limited in recognition of the need to deter individuals from travelling to areas which pose a significant risk to life.

897. New subsection 119.2(1) creates an offence for intentionally entering, or remaining in, an area in a foreign country reckless to the fact that the area is an area declared for the purposes of the offence. It will not be necessary for the person to know specifically that 'the area is a declared area by the Foreign Affairs Minister under section 119.3'.

898. New paragraph 119.2(1)(c) provides that the offence only applies to certain classes of person. Those classes are Australian citizens, residents of Australia, persons who hold a visa under the Migration Act and persons who have voluntarily put themselves under the protection of the Commonwealth. This paragraph is designed to ensure the offence only applies to those persons with a relevant and sufficient connection to Australia.

899. The maximum penalty for contravening the new offence in subsection 119.2(1) is imprisonment for ten years, reflecting the seriousness of the conduct.

900. New subsection 119.2(2) provides that absolute liability applies to the elements in paragraph 119.2(1)(c) that the person is a citizen, resident, visa holder, or is under Australia's protection.

901. The Note to subsection 119.2(2) advises readers to refer to section 6.2 of the Criminal Code for further information about the fault element of absolute liability.

Exception-entry or remaining solely for legitimate purposes

902. New subsection 119.2(3) creates a defence to the offence in subsection 119.2(1). That defence is available to a person who enters or remains in the area solely for a legitimate purpose. For the purposes of the offence, legitimate purpose includes providing aid of a humanitarian nature; satisfying an obligation to appear before a court or other body exercising judicial power; performing an official duty for the Commonwealth, a state or a territory; performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a state or a territory; performing an official duty for the United Nations or an agency of the United Nations; making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist; making a genuine visit to a family member, and any other purpose prescribed by the regulations.

903. The ability to prescribe other purposes under regulations is an important safeguard in the event other purposes that should be covered by the defence emerge over time.

904. The Note to new subsection 119.2(3) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

Exception-entry or remaining solely for service with armed force other than prescribed organisation

905. New subsection 119.2(4) creates a defence to the offence in subsection 119.2(1). That defence is available to a person who enters or remains in the area solely in the course of and as part of the person's service in any capacity in or with the armed forces of the government of a foreign country or any other armed force the subject of a declaration made under subsection 119.8(1) provided that declaration covers the person and the circumstances of the person's service in or with the force.

906. Note 1 to new subsection 119.2(4) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

907. New subsection 119.2(5) provides that the defence at subsection 119.2(4) does not apply if the person enters, or remains in, an area in a foreign country while in or with an organisation and the organisation is a prescribed organisation at the time the person enters, or remains in, the area.

908. Note 1 to new subsection 119.2(5) refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence of Australia.

909. Note 2 to new subsection 119.2(5) advises readers that sections 10.1 and 10.3 of the Criminal Code also provide exceptions to subsection 119.2(1) relating to intervening conduct or event and sudden and extraordinary emergency respectively.

910. New subsection 119.2(6) provides that new section 119.2 ceases to have effect on 7 September 2018. The date for the sunset was selected in response to Recommendation 20 of the Report of the Parliamentary Joint Committee on Intelligence and Security, which proposed a sunset date of 'two years after the last Federal election'. The 7 September 2018 date was selected to provide greater certainty regarding the duration of these powers rather than referring to the uncertain date. This date is two years after the third anniversary of the last general election.

119.3 Declaration of areas for the purposes of section 119.2

911. New section 119.3 provides for the making of a declaration for the purposes of the offence in section 119.2.

912. New subsection 119.3(1) provides that the Foreign Affairs Minister may declare an area in a foreign country for the purposes of section 119.2 by legislative instrument. The Foreign Affairs Minister may only do so if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.

913. New subsection 119.3(2) provides that a single declaration for the purposes of the new offence in section 119.2 may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.

914. New subsection 119.3(2A) expressly provides that a declaration must not cover an entire country.

915. New subsections 119.3(2) and 119.3(2A) implement Recommendation 18 of the Report of the Parliamentary Joint Committee on Intelligence and Security by removing the provision that provides for a declaration to be made over an entire country.

paragraph paragraph Requirement to brief Leader of the Opposition

916. New subsection 119.3(3) provides that, before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration. This is an important safeguard that is consistent with processes for the listing of a terrorist organisation under Division 102 of the Criminal Code.

Cessation of declaration

917. New subsection 119.3(4) provides that a declaration ceases to have effect on the third anniversary of the day on which it takes effect. This ensures a declaration cannot continue in automatic operation for more than three years.

918. New paragraphs 119.3(4)(a) and (b) provide that new subsection 119.3(4) does not prevent the revocation of the declaration before its expiry on the third anniversary of the day in which it takes effect or the making of a new declaration the same in substance as the previous declaration before or after the previous declaration ceases to have effect.

919. The note to subsection 119.3(4) advises readers that an offence committed in relation to the declared area before the cessation of the relevant declaration can still be prosecuted after the cessation of the declaration. The note relevantly refers readers to section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislative Instruments Act.

920. New subsection 119.3(5) provides that, if the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in a declared area, the Foreign Affairs Minister must revoke the declaration.

921. The note to subsection 119.3(5) provides an example of circumstances in which the Foreign Affairs Minister may cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area. That example is where the relevant organisation ceases to be specified in the regulations, i.e. a listed terrorist organisation as defined at section 100.1 of the Criminal Code.

922. New subsection 119.3(6) clarifies that the Foreign Affairs Minister may subsequently make a declaration in relation to an area the subject of a revoked declaration if he or she subsequently becomes satisfied that a listed terrorist organisation is engaging in a hostile activity in that area.

923. New subsection 119.3(7) implements Recommendation 19 of the Report of the Parliamentary Joint Committee on Intelligence and Security by providing for the Committee to conduct a review of a declaration before the end of the disallowable period for the relevant instrument.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts

924. New section 119.4 creates offences for conduct that is preparatory to the offences of entering a foreign country with the intention of engaging in a hostile activity or engaging in a hostile activity in a foreign country.

925. New subsection 119.4(1) creates an offence for intentionally engaging in conduct either within or outside Australia in circumstances where the person is reckless to the fact that the conduct is preparatory to the commission of an offence against new section 119.1. Paragraph 119.4(1)(b) provides that the conduct of the person could be preparatory to the commission of a relevant offence either by that person or by another person. Paragraph 119.4(1)(c) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Ac t, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct. This paragraph ensures the offence only applies to persons with a relevant and sufficient connection to Australia.

926. The maximum penalty for contravening the offence in subsection 119.4(1) is imprisonment for life, reflecting the seriousness of the conduct. The penalties for these offences implement recommendation III/7 of the INSLM's fourth annual report, that the penalty provisions in sections 101.1 and 101.6 of the Criminal Code and 6 and 7 of the Foreign Incursions Act should be equivalent.

Accumulating weapons etc.

927. New subsection 119.4(2) creates an offence for intentionally accumulating, stockpiling or otherwise keeping arms, explosives, munitions, poisons or weapons either within or outside Australia with the intention that an offence against new section 119.1 will be committed.

928. Paragraph 119.4(2)(b) provides that the conduct of the person could be preparatory to the commission of a relevant offence either by that person or by another person. Consistent with the offence at subsection 119.4(1), paragraph 119.4(2)(c) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Ac t, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct.

929. The maximum penalty for contravening the offence in subsection 119.4(2) is imprisonment for life, reflecting the seriousness of the conduct which at its most serious could involve an intention to cause unlawful death.

Providing or participating in training

930. New subsection 119.4(3) creates an offence for intentionally providing military training to another person or participating in providing military training to another person or being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person either within or outside Australia.

931. New paragraph 119.4(3)(b) limits the offence to circumstances where the person engages in the conduct intending to prepare the other person to commit an offence against new section 119.1.

932. Consistent with the offences at subsections 119.4(1) and (2), paragraph 119.4(3)(c) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Ac t, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct.

933. The maximum penalty for contravening the offence in subsection 119.4(3) is imprisonment for life, reflecting the seriousness of the conduct.

934. New subsection 119.4(4) creates an offence for intentionally allowing military training to be provided to himself or herself or intentionally allowing himself or herself to be present at a meeting or assembly of person either within or outside Australia.

935. New paragraph 119.4(4)(b) limits the offence to circumstances where the person engages in the conduct intending to commit an offence against new subsection 119.1.

936. Consistent with the offences at subsections 119.4(1), (2) and (3), paragraph 119.4(4)(c) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct.

937. The maximum penalty for contravening the offence in subsection 119.4(4) is imprisonment for life, reflecting the seriousness of the conduct.

Giving or receiving goods and services to promote the commission of an offence

938. New subsection 119.4(5) creates an offence for intentionally giving money or goods to, or performing services for, any other person, body or association or receiving or soliciting money or goods, or the performance of services for any other person, body or association, either within or outside Australia.

939. New paragraph 119.4(5)(b) limits the offence to circumstances where the person engages in the conduct with the intention of supporting or promoting the commission of an offence against new subsection 119.1.

940. Consistent with the offences at subsections 119.4(1), (2), (3) and (4) paragraph 119.4(5)(c) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Ac t, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct.

941. The maximum penalty for contravening the offence in subsection 119.4(5) is imprisonment for life, reflecting the seriousness of the conduct.

Absolute liability element

942. New subsection 119.4(6) provides that absolute liability applies to the elements in paragraphs 119.4(1)(c), (2)(c), (3)(c), (4)(c) and (5)(c) that the person is a citizen, resident, visa holder, under Australia's protection or relevant body corporate.

943. The Note to subsection 119.4(6) advises readers to refer to section 6.2 of the Criminal Code for further information about the fault element of absolute liability.

Exception

944. New subsection 119.4(7) creates a defence to the offences in subsections 119.4(1) to (5). That defence is available where the person engages in the relevant conduct solely for humanitarian aid purposes.

945. Note 1 to new subsection 119.4(7) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

946. Note 2 to new subsection 119.4(7) refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence or international relations of Australia.

Disregarding paragraphs 119.1(1)(b) and (2)(b)

947. New subsection 119.4(8) provides that a reference in section 119.4 to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded. The effect of this is that the person who engages in the preparatory conduct contrary to the section 119.4 offences must be an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person engages in the conduct-that is, the person must have a 'connection with Australia'. However, any other persons relevant to the preparatory conduct need not satisfy that criteria.

948. For the offence against subsection 119.4(1), provided the person who engages in the relevant preparatory conduct has a connection to Australia, it is immaterial that the person intended to engage in conduct contrary to section 119.1 does not have a connection to Australia and therefore cannot be prosecuted under section 119.1.

949. Similarly, for an offence against subsection 119.4(2), provided the person who accumulates the weapons has a connection to Australia, it is immaterial that the person intended to commit an offence against section 119.1 does not have a connection to Australia and cannot be prosecuted under section 119.1.

950. For the offences against subsections 119.2(3), (4) and (5), provided the person charged has a connection to Australia, it is not necessary for the person or persons who receive military training, provide military training, or receive money or goods or services or provide money, goods or services, respectively, have a connection to Australia.

951. Subsection 119.4(8) provides an important safeguard to ensure a person cannot escape prosecution for an offence simply because the other person or persons involved are foreigners and are neither Australian citizens, residents of Australia, persons who hold visas under the Migration Ac t, persons who have voluntarily placed themselves under the protection of the Commonwealth, or a bodies corporate incorporated by or under a law of the Commonwealth or of a state or territory.

119.5 Allowing use of buildings, vessels and aircraft to commit offences

Use of buildings

952. New section 119.5 creates offences for facilitating, supporting or promoting the commission of a preparatory offence through the use of buildings, vessels and aircraft.

953. New subsection 119.5(1) creates an offence for a person who is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place, who intentionally permits a meeting or assembly of persons to be held in that place. The offence applies whether the person or the place is within or outside Australia.

954. Paragraph 119.5(1)(c) limits the offence to circumstances where the person permitting the meeting or assembly to be held does so with the intention to commit, or support or promote the commission of a preparatory offence contrary to section 119.4.

955. Paragraph 119.5(1)(d) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person permits the meeting or assembly to be held. This paragraph ensures the offence only applies to persons with a relevant and sufficient connection to Australia.

956. The maximum penalty for contravening the offence in subsection 119.5(1) is imprisonment for life, reflecting the seriousness of the conduct.

Use of vessels or aircraft

957. New subsection 119.5(2) creates an offence for a person who is an owner, charterer, lessee, operator, agent or master of a vessel, or an owner, charterer, lessee, operator or pilot in charge of an aircraft, who intentionally permits the vessel or aircraft to be used. The offence applies whether the person, vessel or aircraft is within or outside Australia.

958. Paragraph 119.5(2)(c) limits the offence to circumstances where the person permitting the use does so with the intention to commit, or support or promote the commission of a preparatory offence contrary to section 119.4.

959. Consistent with the offence at subsection 119.5(1), paragraph 119.5(2)(d) provides that the offence only applies to a person who is an Australian citizen, a resident of Australia, a person who holds a visa under the Migration Act, a person who has voluntarily put themselves under the protection of the Commonwealth, or a body corporate incorporated by or under a law of the Commonwealth or of a state or territory at the time the person permits the use of the vessel or aircraft.

960. The maximum penalty for contravening the offence in subsection 119.5(2) is imprisonment for life, reflecting the seriousness of the conduct. The penalties for the offences in subsections 119.5(1) and (2) implement recommendation III/7 of the INSLM's fourth annual report, that the penalty provisions in sections 101.1 and 101.6 of the Criminal Code and 6 and 7 of the Foreign Incursions Act should be equivalent.

Absolute liability element

961. New subsection 119.5(3) provides that absolute liability applies to the elements in paragraphs 119.5(1)(d) and (2)(d) that the person is a citizen, resident, visa holder, under Australia's protection or relevant body corporate.

962. The Note to subsection 119.5(3) advises readers to refer to section 6.2 of the Criminal Code for further information about the fault element of absolute liability.

Exception

963. New subsection 119.5(4) creates a defence to the offences in subsections 119.5(1) and (2). That defence is available where the person engages in the relevant conduct solely for humanitarian aid purposes.

964. Note 1 to new subsection 119.5(4) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

965. Note 2 to new subsection 119.5(4) refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence or international relations of Australia.

119.6 Recruiting persons to join organisations engaged in hostile activities against foreign governments

966. New section 119.6 creates an offence for intentionally recruiting, in Australia, another person to become a member of, or serve in any capacity with, a body or association of persons whose objectives include any one or more of the objectives referred to in the definition of 'engage in a hostile activity' in subsection 117.1(1).

967. The Note to new section 119.6 refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence or international relations of Australia.

968. The maximum penalty for contravening the offence in section 119.6 is imprisonment for 25 years, reflecting the relative seriousness of the conduct. The penalties for this offence implement recommendation III/6 of the INSLM's fourth annual report, that the penalty provisions in section 102.4 of the Criminal Code for the offence of recruiting for a terrorist organisation and section 8 of the Foreign Incursions Act for the offence of recruiting person to join organizations engaged in hostile activities against foreign governments should be equivalent.

119.7 Recruiting persons to serve in or with an armed force in a foreign country

Recruiting others to serve with foreign armed forces

969. New section 119.7 creates offences for recruiting others for service with an armed force in a foreign country, in Australia.

970. New subsection 119.7(1) creates an offence for intentionally recruiting, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.

971. The maximum penalty for contravening the offence in subsection 119.7(1) is imprisonment for ten years, reflecting the relative seriousness of the conduct.

Publishing recruitment advertisements

972. New subsections 119.7(2) and (3) create offences for publishing items relevant to recruiting.

973. New subsection 119.7(2) creates an offence for intentionally publishing in Australia an advertisement or item of news that was procured by the provision or promise of money or any other consideration reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.

974. New subsection 119.7(3) creates an offence for intentionally publishing in Australia an advertisement or item of news that was procured by the provision or promise of money or any other consideration reckless as to the fact that the advertisement or item of news contains information relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country or relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.

975. The maximum penalty for contravening the offences in subsections 119.7(2) and (3) is imprisonment for ten years, reflecting the relative seriousness of the conduct.

Facilitating recruitment

976. New subsection 119.7(4) creates an offence for intentionally engaging in conduct in Australia with the intention to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.

977. The maximum penalty for contravening the offence in subsection 119.7(4) is imprisonment for ten years, reflecting the relative seriousness of the conduct.

Exception

978. New subsection 119.7(5) provides for a defence where the recruiting, publishing or facilitating conduct is authorised pursuant to a declaration made under subsection 119.8(2). This is designed to ensure, for example, that Australia's allies can legally advertise and recruit in Australia for service in or with their legitimate armed forces for a legitimate purpose.

979. Note 1 to subsection 119.7(5) advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

980. Note 2 to new subsection 119.7(5) refers readers to new section 119.9, which sets out a further defence for conduct engaged in for the defence or international relations of Australia.

Armed forces that are not part of the government of a foreign country

981. New subsection 119.7(6) provides that a reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.

982. New subsection 119.7(7) provides that, without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.

119.8 Declaration in relation to specified armed forces

983. New section 119.8 provides for the making of declarations by the Minister in relation to sections 119.1, 119.2 and 119.7.

Service

984. New subsection 119.8(1) provides that the Minister may declare, by legislative instrument, that section 119.1 or 119.2 does not apply in certain circumstances or to certain persons if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to do so. The declaration can apply to a specified person or class of persons in any circumstances or in circumstances specified in the declaration. The effect of a subsection 119.8(1) declaration is to permit the service of the person or class of persons in the circumstances specified (if any) in or with a specified armed force in a foreign country or a specified armed force in a foreign country in a specified capacity.

985. The ability to make declarations under subsection 119.8(1) is important to Australia's defence and international relations and cooperation. A declaration could be made, for example, to authorise an individual with certain skills to work with the armed forces of one of Australia's allies in a peace keeping mission at a location that is, or that could become, the subject of a declaration made by the Foreign Affairs Minister under section 119.3 on the grounds that a listed terrorist organisation is engaging in a hostile activity in that area. In such a case, it would be important that the individual engaged in activities approved by the Australian Government was not at risk of contravening the offences of entering a foreign country with the intention of engaging in a hostile activity or entering or remaining in a declared area.

Recruitment

986. New subsection 119.8(2) provides that the Minister may, by legislative instrument, declare that section 119.7 does not apply in certain circumstances or to certain persons if the Minister is satisfied that it is in the interests of the defence or international relations of Australia to do so. The declaration can apply to a specified person or to a class of persons in any circumstances or in circumstances specified in the declaration. The effect of a subsection 119.8(2) declaration is to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with a specified armed force in a foreign country or a specified armed force in a foreign country in a specified capacity.

987. The ability to make declarations under subsection 119.8(2) is also important to Australia's defence and international relations and cooperation. A declaration could be made, for example, to authorise one of Australia's allies to recruit or advertise to recruit a person with specialist skills necessary for a proposed peace keeping mission at a location that is, or that could become, the subject of a declaration made by the Foreign Affairs Minister under section 119.3 on the grounds that a listed terrorist organisation is engaging in a hostile activity in that area. In such a case, it would be important that the person who does the recruiting or publishing the advertisement with the approval of the Australian Government was not at risk of contravening one of the recruitment the offences in section 119.7.

119.9 Exception-conduct for defence of Australia

988. New section 119.9 provides a defence for the offences in Division 119 where the conduct the subject of the offence is undertaken by a person acting in the course of the person's duty to the Commonwealth in relation to the defence or international relations of Australia.

989. Note 1 to section 119.9 advises readers that a defendant bears an evidential burden in relation to the matters set out in that subsection. Note 1 relevantly refers readers to subsection 13.3(3) of the Criminal Code.

990. Note 2 to section 119.9 refers readers to new section 119.12, which provides for the making of declarations for the purposes of proceedings for offences against this Division.

119.10 Mode of trial

991. New section 119.10 sets out the requirements for a trial for a prosecution for the offences in Division 119 and related offences.

992. New subsection 119.10(1) provides that a prosecution for an offence against Division 119, an offence against section 6 of the Crimes Act, or an ancillary offence that relates to an offence against Division 119 is to be on indictment.

993. However, new subsection 119.10(2), provides that if a law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person's commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment will prevail over subsection 119.10(1).

119.11 Consent of Attorney-General required for prosecutions

994. New section 119.11 requires the consent of the Attorney-General in order to commence proceedings against a person for offences against Division 119.

995. New subsection 119.11(1) provides that proceedings for the commitment of a person for trial on indictment or for the summary trial for an offence against Division 119 or section 6 of the Crimes Act to the extent that it relates to an offence against Division 119 must not be instituted without the written consent of the Attorney-General. This is designed to ensure there is appropriate oversight of prosecutions.

996. New subsection 119.11(2) clarifies that certain steps may be taken without consent having been given. Those steps are preliminary to the commencement of proceedings for the commitment of a person on trial, and are limited to charging, arresting and remanding a person in custody or on bail in relation to a relevant offence.

997. New subsection 119.11(3) provides that nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

119.12 Declarations for the purposes of proceedings

998. New section 119.12 provides for Ministers to make declarations for the purposes of the offences in Division 119.

999. New subsection 119.12(1) authorises the Foreign Affairs Minister to declare in writing that a specified authority is in effective governmental control in a specified foreign country or part of a foreign country or that a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.

1000. New subsection 119.12(2) authorises the Defence Minister to declare in writing that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person's duty to the Commonwealth in relation to the defence or international relations of Australia.

1001. New subsection 119.12(3) provides that a declaration may be made in relation to a specified day or period.

1002. New subsection 119.12(4) provides that, in proceedings for an offence for which the Attorney-General's consent is required under Division 119, a certificate under this section is prima facie evidence of the matters stated in the certificate. Accordingly, it is open to the defence to provide information contrary to the matters stated in a declaration. In such a case, it will be necessary for the prosecution to prove the relevant matter to the normal criminal standards.

1003. The INSLM has examined the executive evidential certificates created by section 11 of the Foreign Incursions Act. Recommendation III/8 of the INSLM's fourth annual report recommended that the evidential effect of the certificates concerning effective governmental control in a specified foreign State or part thereof, and concerning the non-governmental armed force character of a specified organisation (subsections 11(3) and 11(3A)) be amended to be conclusive in effect rather than prima facie. The Government has considered this recommendation and has resolved to maintain the current arrangements so that the evidential effect of the executive certificates at section 119.12 be prima facie evidence of particular matters. This ensures that it is the court that will ultimately have to be satisfied of the facts relevant to proving the offence. Customs Act 1901

Item 111 - Subsection 183UA(1) (definition of terrorist act )

1004. This items repeals and substitutes the definition of 'terrorist act' in subsection 183UA(1) of the Customs Act. The new definition will provide that this term has the meaning given by section 100.1 of the Criminal Code. The purpose of this amendment is to ensure that a consistent definition of terrorist act exists across all Commonwealth laws.

Item 112 - Subsections 183UA(4), (4A) and (5)

1005. This item repeals subsections 183UA(4), (4A) and (5). These subsections contain provisions for the purposes of the definition of 'terrorist act' in subsection 183UA(1). These provisions are now redundant due to the repeal and substitution of this definition.

Item 113 - Subsection 228(7) (definition of terrorist act)

1006. This item repeals and substitutes the definition of 'terrorist act' in subsection 228(7) of the Customs Act. Section 228 sets out the circumstances in which ships and aircraft are forfeited to the Crown. The new definition will provide that this term has the meaning given by section 100.1 of the Criminal Code. The purpose of this amendment is to ensure that a consistent definition of terrorist act exists across all Commonwealth laws.

Item 114 - Application of amendments

1007. This item provides that the amendments to sections 183UA and 228 of the Customs Act apply in relation to any terrorist act (whether occurring before or after this item commences).