Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

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

Clause 2 - Commencement

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

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

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

Clause 3 - Schedules

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

Schedule 1 - Extended Supervision Orders

Part 1 - Main amendments

Criminal Code Act 1995

Overview

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

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

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

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

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

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

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

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

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

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information excluded on the basis of public interest immunity ('PII information').

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

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

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

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

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

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

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

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

20. The definitions of 'detained in custody', 'detained in custody in a prison' and 'detained in non-prison custody' clarify these phrases have the meanings given by subsections 100.1(3A), (3B) and (3C) (see Items 3A and 3B).

21. The definition of 'immigration detention' provides that the phrase has the same meaning as in the Migration Act 1958.

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

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

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

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

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

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

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

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

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

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

Items 3A-3B - Subsections 100.1 (2) and (3) of the Criminal Code

31. Items 3A and 3B amend the definition of detained in custody in subsection 100.1(1) by introducing three new definitions of detained in custody, detained in custody in a prison, and detained in non-prison custody.

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A person is detained in custody (new subsection 100.1(3A)) if the person is detained in custody under a law of the Commonwealth, a State or a Territory (this broader concept would encompass both prison and non-prison custody, as defined below).

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A person is detained in custody in a prison (new subsection 100.1(3B)) if the person is detained in custody in a gaol, lock-up or remand centre, including under a CDO or interim detention order (IDO). However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.

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A person is detained in non-prison custody (new subsection 100.1(3C)) if the person is detained in custody, but is not detained in custody in a prison. Item 3A includes a note that an example of a person who is detained in non-prison custody is a person who is in immigration detention (whether in a goal, lock-up, remand centre or otherwise).

32. The new definitions apply across the provisions in Part 5.3, including the provisions introduced by the Bill. There are instances where references to a person being detained in custody should encompass both detention in a prison (a goal, lock-up or remand centre, including under a CDO or IDO) as well as detention in non-prison custody, such as immigration detention. In other cases, such references should only apply where a person is detained in custody in a prison.

33. Item 3A also inserts a heading before subsection 100.1(2) and at the end of the subsection to improve the readability of the legislation, consistent with current drafting practices.

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

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

Items 5-6 - Section 102.1 of the Criminal Code

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

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

Item 6A - Subsection 104.2(5) of the Criminal Code (note)

37. Item 6A repeals the note at the end of subsection 104.2(5) and inserts a new note that clarifies when an ICO commences for a person who is detained in custody.

38. The new note provides that an ICO in relation to a person who is detained in custody in a prison does not begin until the person ceases to be detained in custody in a prison.

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

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

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

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

Items 11-13 - Section 104.5 of the Criminal Code

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

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

43. Item 13 inserts subsections 104.5(1D), (1E) and (1F) into the Criminal Code. Subsection 104.5(1D) provides that if an ICO that is served on a controlee does not commence while the controlee is detained in custody in a prison, or while an ESO or ISO is in force in relation to that controlee. The note to subsection 104.5(1D) states that an ICO for a person detained in non-prison custody commences when that order is served personally on the person. An ICO could come into force for a controlee in non-prison custody, such as immigration detention.

44. Subsection 104.5(1E) then provides that an interim control order that has been served on a controlee while they are detained in custody in a prison will only commence when the controlee person is either released from custody in a prison, or no longer subject to the ESO or ISO referred to in subsection 104.5(1D), the ICO has not yet been confirmed, and the controlee is in the community without an ESO or ISO in place. The note for subsection 104.5(1E) clarifies that a controlee detained in non-prison custody is taken to be in the community in accordance with section 105A.18AA. This means that an ICO can come into force for a person in non-prison custody, such as immigration detention.

45. Subsections 104.5(1D) and (1E) provide that an ICO cannot come into force while a controlee is detained in custody in a prison.

46. Subsection 104.5(1F) clarifies that an ICO may never come into force if the controlee is never in the community without an ESO or ISO in force.

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

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

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

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

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

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

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

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

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

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

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

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

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

Item 20 - At the end of Subdivision B of Division 104 of the Criminal Code

55. Item 20 inserts new section 104.5A at the end of Subdivision B of Division 104. Section 104.5A provides for obligations relating to monitoring devices, and replaces the obligations that were previously included in subsections 104.5(3A) and (3B), in part to reflect the fact that references to tracking devices are being modernised to instead refer to monitoring devices. Subsection 104.5A(1) provides that if a court includes in a control order a requirement that a controlee wear a monitoring device under paragraph 104.5(3)(d), then the Court must also include in the order a number of additional requirements and authorisations relating to electronic monitoring. The additional requirements and authorisations ensure that the controlee cannot undermine the effectiveness of a court-imposed requirement that the controlee wear an electronic monitoring device. Ensuring the effective operation of a requirement to wear a monitoring device is designed to support monitoring of a controlee's compliance with other related conditions, such as restrictions on movement and curfews.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Items 23-28 - Section 104.15 of the Criminal Code

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

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

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

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

71. Subsection 104.15(5) provides that if an ICO that has not come into force is confirmed, then the confirmed control order begins to be in force when the controlee is released from custody in a prison or the ESO or ISO they were subject to ends, and the controlee is released from custody in a prison into the community without an ESO or ISO in force. Subsection 104.15(5) applies only to custody in a prison, and would not apply, for example, to a person in immigration detention. The note for subsection 104.15(5) states that persons detained in non-prison custody are taken to be in the community. A person detained in non-prison custody, for example in immigration detention, is taken to be in the community and an ICO could commence, as long as they are not subject to an ESO or ISO.

72. Subsection 104.15(6) makes clear that if the controlee is in the community subject to an ISO or ESO before the end date for the confirmed control order, then the confirmed control order will never come into force. Like the amendments at Item 13, these provisions mean that a confirmed control order cannot come into force while a controlee is subject to a PSO or IPSO, or is otherwise detained in custody, to ensure that different supervisory orders are not in force at the same time.

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

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

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

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

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

Items 30A-31A - Section 104.27 of the Criminal Code

76. Item 30A amends the numbering of section 104.27, reflecting the insertion of new subsection 104(2), as discussed below.

77. Item 31 inserts a note at the end of section 104.27(1) to reflect the fact that section 105A.23 may require a court sentencing a person who has been convicted of an offence against this section to warn the person about CDOs and ESOs. This is because subsection 105A.3A(5) provides that a person who is convicted of an offence against section 104.27 may be eligible for a PSO in certain circumstances (see Item 59).

78. Item 31A inserts a new subsection 104.27(2) that ensures that a person who is detained in non-prison custody is not taken to have contravened an order if the contravention occurred because the person is detained in non-prison custody. Subsection 104.27(2) means that a person is not subject to criminal liability for breaching an order where compliance with obligations, prohibitions or restrictions of their control order is not possible because the person is in non-prison custody, such as immigration detention. The note for subsection 104.27(2) inserted by the item states that the defendant bears an evidential burden to prove they were unable to comply with the order due to being detained in non-prison custody.

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

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

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

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

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

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

Item 37A - Section 104.28B of the Criminal Code

84. Item 37A repeals and replaces section 104.28B to ensure that service of documents in relation to relevant proceedings can occur for people detained in all forms of custody. Currently, the provision only outlines arrangements for a person detained in prison custody. Section 104.28B provides that documents requiring personal service can be provided to the person's legal representative or the head of the facility in which the person is detained, such as the head of an immigration detention facility. The recipient of the document must give the document to the detainee personally as soon as reasonably practicable.

Item 38 - After section 104.28B of the Criminal Code

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

Section 104.28C

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

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

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

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

Section 104.28D

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

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

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

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

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

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

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

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

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

Item 47A - Paragraph 105.26(5)(b) of the Criminal Code

96. Section 105.26 outlines how a person is to be released from preventative detention and in what circumstances they are considered to be released from detention. Subsection 105.26(5) clarifies that a person is released from detention under a preventative detention order even if they are then immediately taken into custody on some other basis.

97. Item 47A amends paragraph 105.26(5)(b) to clarify that a person will be taken to be released from detention under a preventative detention order where the person has been immediately taken into non-prison custody, such as immigration detention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

110. The definition of 'post-sentence order decision' provides that all of the following are PSO decisions:

•

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

•

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

•

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

•

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

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

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

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

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

Item 53A - Section 105A.2 of the Criminal Code (definition of prison )

115. Item 53A amends the definition of prison in section 105A.2 to clarify that the definition is limited to the concept of where a person is detained in custody in a prison (and not other forms of detention). Prison, as amended, is defined to include any gaol, lock-up or remand centre.

116. Item 53A amends the definition to include remand centre and remove reference to 'other places of detention'. The effect of this amendment is that provisions referring to being detained in custody in a prison will not include any other forms of detention, such as immigration detention.

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

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

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

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

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

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

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

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

Item 58 - Subdivision B of Division 105A of the Criminal Code (heading)

121. Item 58 repeals and replaces the heading for Subdivision B of Division 105A because this subdivision will now include ESOs. The new heading refers to PSOs, as Subdivision B of Division 105A will provide for both ESOs and CDOs.

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

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

Section 105A.3

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

•

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

•

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

•

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

•

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

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

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

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

Section 105A.3A

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

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

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

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

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

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

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

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

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

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

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

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

•

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

•

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

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

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

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

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

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

•

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

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

•

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

•

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Item 59A - Subsection 105A.4(1) of the Criminal Code

158. Section 105A.4 relates to the treatment of an offender detained in a prison under a CDO, noting that such a person would no longer be serving a term of imprisonment and should be treated accordingly. Item 59A amends subsection 105A.4(1) for consistency, to align it with the new definition of detained in custody in a prison.

Item 60 - Subdivision C of Division 105A of the Criminal Code (heading)

159. Item 60 repeals and replaces the heading for Subdivision C of Division 105A. The new heading refers to making PSOs, as Subdivision C of Division 105A will provide for a court to make an ESO or a CDO.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

171. Under subparagraph 105A.5(3)(d)(iv) the Court must also be provided with a copy of any State or Territory post-sentence order to which the offence is subject. This ensures that the Court is aware of any State or Territory PSOs (including those which are not specifically related to terrorism) that are in place in respect of an offender when considering an application for a Commonwealth PSO. The Court is required to consider any State or Territory PSO at two stages of an application for a Commonwealth PSO - firstly, when considering the offender's risk of committing a serious Part 5.3 offence, and secondly, when considering whether a condition to be included in an ESO is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from that risk.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

181. Item 77 repeals and replaces the note in subsection 105A.6(4) to clarify that section 105A.15 deals with providing documents to an offender who is detained in custody generally, and as such it will include both a person in non-prison custody, such as immigration detention, and a person in custody in a prison.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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the level of the offender's compliance with any obligations while subject to a PSO, IPSO or control order, and

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whether the offender is subject to a State or Territory PSO, and if so, the conditions under that order.

190. It is a matter for the Court to determine what weight it gives each of the matters listed in section 105A.6B. In regard to the consideration of a State or Territory PSO, this applies to any State or Territory PSOs, and is not limited to those which specifically relate to terrorism.

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

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

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

192. Item 83A amends subsection 105A.7(1) to clarify the 'less restrictive measure' threshold for CDO applications. Paragraph 105A.7(1)(c) provides that to make a CDO the Court must be satisfied that there is no less restrictive measure available under Part 5.3 of the Criminal Code that would be effective in preventing the unacceptable risk of the offender committing a serious Part 5.3 offence.

193. Item 83A clarifies that the only less restrictive measure a Court can consider are orders under Part 5.3 of the Criminal Code, such as an ESO. The conditions of such orders can be tailored to meet the specific risks posed by an individual offender and are subject to the safeguard that the Court must be satisfied that each condition is reasonably necessary, and reasonably appropriate and adapted, for the protective purpose of the relevant order. The term 'less restrictive measure' is not defined in the Criminal Code and without this clarification, the Court could potentially consider any measure or action (or a combination of measures or actions) that it considers less restrictive.

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

194. Item 84 repeals the notes under subsection 105A.7(1) and substitutes two new notes. Note 1 states that the rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B (which provides that when making a PSO a Court must have regard to a range of matters when deciding the application for the order). Note 2 states that an example of a less restrictive measure available under Part 5.3 is an ESO, and clarifies that a Court can make an ESO as a less restrictive measure even if a CDO was applied for.

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

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

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

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

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

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

199. Item 86 adds a note at the end of subsection 105A.7(4) which reflects the fact that a CDO may be suspended if the offender is detained in custody in a prison other than as a result of the order in accordance with section 105A.18C. Section 105A.18C provides that PSOs are suspended if a person is detained in custody in a prison.

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

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

Section 105A.7A - making an ESO

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

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

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

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

205. The note to subsection 105A.7A(4) clarifies that an ESO is only suspended where an individual is detained in custody in a prison and refers to section 105A.18C (which provides that PSOs are suspended if a person is detained in custody in a prison). An ESO would continue to be in force if a person is detained in non-prison custody, such as immigration detention.

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

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

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

•

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

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

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

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

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

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

210. A court may only impose conditions that it is satisfied on the balance of probabilities, is reasonably necessary, and reasonably appropriate and adapted, from the unacceptable risk of the offender committing a serious Part 5.3 offence (subsection 105A.7B(1)). The Court must be satisfied in relation to both the individual conditions as well as the combined effect of all conditions.

211. Subsection 105A.7B(1A) provides that when imposing conditions a Court must also consider any conditions of a State or Territory PSO to which the offender is subject. As noted above, this would include State or Territory PSOs which are not specifically related to terrorism.

212. This ensures that the Court must consider the effect of the conditions imposed on a person under a State or Territory PSO as part of considering if conditions to be imposed under the ESO or ISO are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence. This will assist with ensuring that the ESO or ISO conditions and any State or Territory conditions are complementary and operable together.

213. Subsections 105A.7B(3) and (5) set out conditions that may be imposed by an ESO or ISO, but these are intended to provide examples of conditions to the Court and are not intended to limit the conditions that a court may impose.

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

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

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

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

216. Item 87 also inserts subsection 105A.7B(2A) to provide that the Court cannot impose a condition under an ESO or ISO that requires an offender to remain at specified premises for more than 12 hours within any 24 hour period. This is a safeguard to ensure that an ESO or ISO cannot impose conditions akin to detention.

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

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

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

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

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

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Communication and the use of technology.

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Possession of specified articles or substances.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

222. Subsection 105A.7B(3)(c) clarifies that the Court is restricted by subsection 105A.7B(2A) in that it cannot impose a condition under an ESO or ISO that requires an offender to remain at specified premises for more than 12 hours within any 24 hour period.

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

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

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

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

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

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Testing for use and possession of substances.

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Photographs and fingerprints.

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

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Reporting to places and persons, and curfew checks.

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

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

•

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subsection 105A.7B(8)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

249. The note is consistent with the definition of detained in custody in a prison and makes clear that an IDO is suspended where an individual is detained in custody in a prison other than as a result of the IDO. For clarification, due to the nature of an IDO, an IDO can only be in effect if the offender who is subject to the order is detained in custody in a prison.

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

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

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

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

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

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

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

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

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

Section 105A.9A - ISOs

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

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

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

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

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

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

262. Item 95 also amends the note to subsection 105A.9A(7), which refers to an ISO being suspended if an offender is detained in custody. Item 44 amends the note to clarify that an ISO is only suspended where an individual is detained in custody in a prison, and refers to section 105A.18C (which provides that PSOs are suspended if a person is detained in custody in a prison). An ISO would continue to be in force if a person is detained in non-prison custody, such as immigration detention.

263.

Subdivision CB - varying an ESO or ISO

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

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

265. Subsection 105A.9B(1A) provides that the AFP Minister must apply to a Supreme Court of a State or Territory to remove or vary an ESO or ISO condition if the Minister is satisfied that the condition is no longer reasonably necessary, or reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence. For example, if the Minister is aware of circumstances that mean the Minister is satisfied that an ESO condition is no longer reasonably necessary, or reasonably appropriate and adapted, such as entry into immigration detention, then the Minister must apply to vary or remove the relevant condition.

266. Note 1 to subsection 105A.9B(1A) clarifies that the AFP Minister (or their legal representative) can include the addition of new conditions to the order in the same application. Note 2 states that a copy of the application must be given to the offender under section 105A.14A (which provides the requirements for providing offenders with copies of applications made by the AFP Minister, or a legal representative of the AFP Minister, to a Supreme Court).

267. Subsection 105A.9B(1) provides that the AFP Minister, the offender or a legal representative of either party may apply to a Supreme Court to vary an ESO or ISO by varying or removing one or more conditions in the order or by adding one or more conditions. Subsection 105A.9B(2) provides that the application, made under subsections (1) or (1A), must be made to the Supreme Court of the State or Territory where the offender resides, and the note clarifies that this includes a place where an offender temporarily resides. Both subsections 105A.9B(1) and (2) are subject to subsection (1A), described above. Persons who may otherwise apply for a condition of an ESO or ISO to be varied or removed include the AFP Minister or a legal representative of the AFP Minister, or the terrorist offender or their legal representative.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 105A.14A

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

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

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

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

Section 105A.14B

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

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

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

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

•

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

•

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

•

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

•

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

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

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

•

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

•

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

•

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

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

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

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

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

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

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

•

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

•

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

•

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

•

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

Section 105A.14C

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

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

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

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

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

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

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

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

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

Section 105A.14D

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

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

•

advocates support for engaging in any terrorist acts or violent extremism

•

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

•

advocates joining or associating with a terrorist organisation.

337. This mirrors the definition of 'terrorism evidence' in the Criminal Procedure Act 1986 (NSW).

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

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

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

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

Items 121A-121B - Section 105A.15 of the Criminal Code

341. Section 105A.15 outlines the process for giving documents to terrorist offenders who are detained. Items 121A and 121B amend this provision to ensure it will apply where an offender is either detained in custody in a prison or detained in non-prison custody.

342. Items 121A and 121B amend subsection 105A.15(1) by omitting the reference to 'prison' and substituting 'custody', meaning it will apply to both prison and non-prison custody. Subsection 105A.15(1) provides that a document is taken to be given to an offender who is detained in custody if it is given to their legal representative. Further, item 54 amends paragraph 105A.15(1)(b) to include references to both 'prison' and 'other facility in which the offender is detained'. This paragraph provides that if the offender does not have a legal representative, the documents can be given to the chief executive officer (however described) of the prison or facility in which the offender is detained. For example, if an offender is detained in an immigration detention facility, the documents can be given to the chief executive officer of that facility.

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

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

344. A PSO proceeding is defined at 105A.2 to mean a proceeding under Subdivision C, CA, CB or D. While an appeal of a PSO is not a post sentence order proceeding, as it is a proceeding under Subdivision E, section 105A.15A is available in an appeal proceeding because paragraph 105A.17(2)(a) provides that generally, the court of appeal has all the powers, functions and duties that the Supreme Court has in relation to the relevant post-sentence order proceedings.

345. The effect of this amendment is that, if the Court is satisfied that the requirements of section 105A.15A are met, it may order that the Commonwealth bear all or part of the reasonable costs and expenses of an offender's legal representation for an ESO or ISO proceeding, as well as for a CDO or IDO proceeding (including a review or appeal proceeding).

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

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

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

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

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

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

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

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

Item 126A - Subsection 105A.18 of the Criminal Code (heading)

350. Item 126A amends the heading of section 105A.18 to remove reference to 'release of terrorist offender', substituting 'sentences ending or orders ceasing to be in force' to better reflect the effect of this section.

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

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

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

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

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

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

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

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

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

•

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

•

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

•

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

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

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

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

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

Item 132A - After section 105A.18 of the Criminal Code

358. Item 132A creates a new provision (section 105A.18AA) to clarify that persons who are detained in non-prison custody, such as immigration detention, are taken to be in the community for the purposes of Part 5.3. The effect of this provision is that a terrorist offender could be subject to an ESO in circumstances where they are taken from custody in a prison into non-prison custody, such as immigration detention.

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

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

Section 105A.18A

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

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

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

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

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

365. Item 133 also creates a new subsection 105A.18A(3) which provides that a person who is detained in non-prison custody is not taken to have contravened an ESO or ISO if the contravention occurred because the person is detained in non-prison custody.

366. Subsection 105A.18A(3) means that a person is not subject to criminal liability for breaching an order where compliance with a condition of their ESO or ISO is not possible because the person is in non-prison custody, such as immigration detention. The note following this subsection clarifies that the defendant bears an evidential burden in relation to this matter.

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

Section 105A.18B

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

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

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

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

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

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

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

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

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

Section 105A.18C

Effect of prison detention on PSOs and IPSOs

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

377. Subsection 105A.18C(1) provides that a CDO or IDO in relation to an offender would be suspended during the period that the offender is detained in custody in a prison, other than as a result of CDO or IDO. Subsection 105A.18C(2) similarly provides that an ESO or ISO in relation to an offender would be suspended during the period that the offender is detained in custody in a prison. This means that an ESO or ISO would not be suspended where an offender is detained in non-prison custody, such as immigration detention.

378. Subsection 105A.18C(3) provides that the PSO or IPSO would continue to be in force during the period the order is suspended. This means that an offender who is subject to the order whilst being detained in custody in a prison would remain eligible for a further order under new section 105A.3A (see Item 59).

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

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

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

Effect of suspension on the review requirements for PSOs

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

Section 105A.18D

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

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

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

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

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

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

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

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

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

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

392. Item 135 amends subsection 105A.19(1) to clarify that information that is shared with the AFP Minister under section 105A.19 also includes personal information, as defined in subsection 100.1(1).

Item 136 - After subsection 105A.19(2) of the Criminal Code

393. Item 136 inserts new subsection 105A.19(2A) after subsection 105A.19(2). The purpose of section 105A.19 is to facilitate information sharing about an offender between the AFP Minister and persons prescribed by the regulations for the purpose of Division 105A.

394. Subsection 105A.19(2A) provides that despite any Commonwealth, State or Territory law, persons prescribed in the regulations may provide the information to the AFP Minister under subsection 105A.19(1). The intent of this subsection 105A.19(2A) is to avoid any doubt that third parties (such as Commonwealth, State or Territory officials) can share information with the Commonwealth, notwithstanding other laws which may limit or prohibit disclosure. This will facilitate the sharing of necessary and relevant information about an offender to ensure the AFP Minister can make informed decisions about whether to make an application for a PSO in relation to an offender, noting that State and Territory agencies (such as corrective services agencies) would be likely to hold relevant information.

Item 137 - After section 105A.19 of the Criminal Code

395. Item 137 inserts new section 105A.19A after section 105A.19 to facilitate the sharing of information about an offender and their compliance with their electronic monitoring conditions (if any) between the AFP and third parties, provided it is authorised by an arrangement under subsection 105A.21A(1).

396. Subsection 105A.19A(1) provides that an AFP member may disclose information (including personal information) to a person employed or engaged by a body covered by an arrangement under subsection 105A.21(1) for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to ESOs or ISOs. This is intended to ensure that information can be appropriately shared in instances where the AFP has contracted a third party (such as a State corrections agency) to undertake electronic monitoring in relation to an offender who is subject to an electronic monitoring condition.

397. Subsection 105A.19A(2) provides that the person employed or engaged by a body covered by the arrangement under subsection 105A.21A(1) may disclose information (including personal information) to another person if the person under the arrangement reasonably believes that the disclosure is authorised by the arrangement.

398. Subsection 105A.19A(3) provides that section 105A.19A applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten). This purpose of this provision is make clear that State and Territory officials can share information with the Commonwealth, notwithstanding other laws which may limit or prohibit disclosure of that information.

Item 138 - Subsection 105A.21(2) of the Criminal Code

399. Item 138 amends subsection 105A.21(2) to make a grammatical correction to the existing provision.

Item 139 - After section 105A.21 of the Criminal Code

400. Item 139 inserts new section 105A.21A after section 105A.21, to allow for formal arrangements to be made between the AFP Commissioner and relevant third parties (for example, a State, Territory or any other body such as a State corrections agency) to authorise the sharing of information relating to ESOs or ISOs under new section 105A.19.

401. Subsection 105A.21A(1) provides that the AFP Commissioner may make arrangements with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers relating to ESOs or ISOs.

402. Subsection 105A.21(2) provides that for the purposes of section 105A.19A, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information). This ensures there is an appropriate flow of information between the parties to the arrangement.

403. Subsection 105A.21(3) allows the AFP Commissioner to delegate his or her powers under subsection 105A.21(1) to another senior AFP member. This ensures that the AFP has the flexibility to enter into its own arrangements for the purposes of performing its functions or the exercise of powers relating to ESOs or ISOs.

Item 140-147 - Section 105A.22 of the Criminal Code

404. Items 140 to 144 repeal and replace references to CDOs and IDOs in paragraphs 105A.22(2)(a)-(e) with PSOs and IPSOs, as a result of ESOs and ISOs being included in Division 105A. This ensures that annual reporting requirements under section 105A.22 apply in relation to ESOs and ISOs, as well as CDOs and IDOs.

405. Item 145 inserts new paragraph 105A.22(3)(ea) after paragraph 105A.22(2)(e), to provide that annual reports must also include the number of applications for reviews of a CDO or ESO made by the AFP Minister or his or her legal representative, during the year. This also takes into account amendments to section 105A.11 which will allow both the AFP Minister or his or her legal representative, and the offender or his or her legal representative, to apply to a court for review of a PSO.

406. Items 146 and 147 repeal and replace references to CDOs in paragraphs 105A.22(2)(f)-(h) with PSOs, as a result of ESOs and ISOs being included in Division 105A.

Item 148 - Section 105A.23 of the Criminal Code (heading)

407. Item 148 repeals and replaces the heading for section 105A.23 as a result of ESOs being included in Division 105A.

Item 149 - Subsection 105A.23(1) of the Criminal Code

408. Item 149 repeals and replaces subsection 105A.23(1) with new subsections 105A.23(1) and (1A), to require a court sentencing a person to warn that person about PSOs in certain circumstances.

409. Subsection 105A.23(1A) provides that the Court must warn the person that an application may be made under this division for either a CDO or an ESO at the end of a person's sentence. The CDO will require a person to be detained in custody in a prison at the end of their sentence, in line with the definitions added to section 100.1. Subparagraph (1A)(b)(i) provides that if a person is being warned that an application may be made for a CDO, the Court must inform them that the application may be made before the end of the sentence for their offence, or before the end of any later sentence if the person is continuously detained in custody in a prison.

410. Subsection 105A.23(1) specifies the circumstances in which a court sentencing a person must warn that person about PSOs. These circumstances are:

•

where the Court is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1)(a) (subparagraph 105A.23(1)(a)(i))

•

where the Court is sentencing a person who has been convicted of an offence against section 105A.18A (offence for contravening an ESO or ISO), or an offence against subsection 105A.18B(1) (offence relating to monitoring devices) if paragraph 105A.3A(4)(b) applies in relation to the person (subparagraph 105A.23(1)(a)(ii)), and

•

where the Court is sentencing a person who has been convicted of an offence against section 104.27 (offence for contravening a control order) or subsection 104.27(1) (offence relating to monitoring devices), and the CDPP informs the Court that a warning must be given (paragraph 105A.23(1)(b).

411. The reason for requiring the CDPP to inform the Court that a warning must be given under paragraph 105A.23(1)(b) is because not all offenders who are convicted of an offence against section 104.27 or subsection 104.27(1) would be eligible for a CDO or ESO at the end of their sentence. Rather, it would only be offenders who breach a control order in the circumstances described in subsection 105A.3A(5) (i.e. in circumstances where a control order was imposed following a custodial sentence for a specified terrorism offence in paragraph 105A.3(1)(a)), and where the process for seeking a control order commences before the custodial sentence ends. As the process for seeking a control order involves an internal government decision to which the Court is not privy, it may be difficult for the Court to know whether a particular offender is eligible for a PSO. The requirement to inform the Court that a warning must be given is consistent with the prosecution's existing common law duty to assist the Court at sentence, and to advise the Court of any relevant provisions to which the Court must have regard to when passing sentence.

Item 150 - Section 105A.25 of the Criminal Code

412. Item 150 repeals and replaces the existing sunset provision under section 105A.25 of the Criminal Code to provide that a PSO or IPSO, cannot be applied for, affirmed or made, after 7 December 2026 (this date being 10 years from the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).

Item 151 - In the appropriate position in Division 106 of the Criminal Code

413. Item 151 inserts new section 106.11 in the Criminal Code, which details how amendments in Part 1 of Schedule 1 will apply to orders made before or after the commencement of this provision.

414. New subsection 106.11(1) provides that subsections 104.5(3) and 104.5(3A) and (3B), and sections 104.5A, 104.28C and 104.28D, made or inserted by Schedule 1 apply in relation to any ICO or confirmed control order, whether it is in force before or after new section 106.11 commences. This provision allows the AFP to apply to a court to add the new obligations, prohibitions and restrictions in paragraphs 104.3(d) and 104.3(da), and section 104.5A (relating to electronic monitoring) to a control order that was in force before or after this provision commences. This provision also allows for the sharing of information relating to electronic monitoring, and the making of arrangements for electronic monitoring and other functions and powers, in relation to a control order that is in force before or after new section 106.11 commences.

415. New subsection 106.11(1A) which provides that the amendments to section 104.27 (that a person will not commit the offence of breaching a control order if the breach occurs because they are detained in non-prison custody) will only apply to conduct occurring after this section commences.

416. New paragraph 106.11(2)(a) provides that section 104.28D does not affect the validity of any existing arrangement in relation to the electronic monitoring of controlees under control orders that is in force before new section 106.11 commences. New paragraph 106.11(2)(b) also provides that section 104.28D does not affect the validity of any actions taken under or for the purposes of such an agreement before new section 106.11 commences.

417. New subsection 106.11(3) provides that the amendments to Division 105A made by Part 1 apply in relation to:

•

any person who is detained in custody in a prison on the day new section 106.11 commences

•

any person who begins a sentence of imprisonment for one of the specified terrorism offences in paragraph 105A.3(1)(a) or the offences for breach a control order or interfering with a monitoring device referred to in paragraph 105A.3A(5)(d) of the Criminal Code (whether the conviction for the offence occurred before, on or after that day), and

•

any person who is currently subject to a control order and meets the conditions in subsection 105A.3A(8) of the Criminal Code on the day new section 106.11 commences.

418. New subsection 106.11(4) provides that, for the avoidance of doubt, the amendments of Division 105A made by Schedule 1 apply in relation to a person referred to in paragraphs 106.11(1)(a) or (c), or subparagraph 106.11(1)(b)(ii), where their sentence of imprisonment for one of the specified terrorism offences in paragraph 105A.3(1)(a) of the Criminal Code ended before the day new section 106.11 commences. This provision makes clear that a person who falls within one of the circumstances described in section 105A.3A is eligible for a PSO, even if their sentence for the specified terrorism offence ended before this section commenced.

419. New subsection 106.11(5) provides that an application for a CDO or IDO, or an application for a review of a CDO, that was made before new section 106.11 commences but has not been finally determined at that time is taken to be an application made under Division 105A as amended by Schedule 1.This means, for example, that a court considering an application for a CDO when these provisions commence would need to consider making an ESO, if the Court was not satisfied that the threshold for a CDO had been met (see subsection 105A.7(2), Item 85).

420. New subsection 106.11(6) provides that subsection 105A.6(5A) comes into force immediately after new section 106.11 commences, and applies in relation to assessments of offenders undertaken thereafter. This means that any answer to a question or information given, and answering a question or giving information, at an assessment that occurred after new section 106.11 commences would be covered by the revised protections in subsection 105A.6(5A). Any answers or information from an assessment that occurred before new section 106.11 commences would be covered by the previous protections.

421. New subsection 106.11(7) provides that subsection 105A.6(9), which clarifies that assessments undertaken for a particular PSO may be used in connection with other PSO related processes, comes into force immediately after new section 106.11 commences, and applies in relation to assessments of offenders undertaken before or after that time. This provision merely clarifies the existing operation of section 105A.6.

422. New subsection 106.11(8) provides that section 105A.7D will apply in relation to photographs taken of, and impressions of fingerprints taken from, an offender after new section 106.11 commences.

423. New subsection 106.11(9) provides that sections 105A.14A (relating to giving copies of applications etc. to terrorist offenders) and 105A.14D (relating to excluding terrorism material from an application or material) will apply in relation to applications made after new section 106.11 commences. This includes any applications for review or variation that occur thereafter, as well as applications for new orders.

424. New subsection 106.11(10) provides that section 105A.18D (regarding AFP Minister-directed expert assessments) applies to offenders in relation to whom a PSO could be made, or is in force, at the time, or any time after, new section 106.11 commences.

425. New subsection 106.11(11) provides that amendments of section 105A.22 (regarding annual reporting) apply in relation to any 30 June that occurs after section 106.11 commences. This ensures that any use of the amended provisions will be covered in the next annual report.

426. New subsection 106.11(12) provides that sentencing warnings that may be required under section 105A.23 apply in relation to any sentence imposed after new section 106.11 commences.

427. New subsection 106.11(13) provides that amendments of the sections 105A.11, 105A.12 and 105A.12A (regarding reviews and variations of PSOs) and section 105A.18C (regarding the effect of detention on PSOs) apply in relation to any PSO in force when new section 106.11 commences, or any PSO made after that time.

Item 152 - Subsection 117.1(2) of the Criminal Code (note)

428. Item 152 amends the note under subsection 117.1(2) in the Criminal Code (definitions for Part 5.5 of the Criminal Code-Foreign incursions and recruitment) to add a reference to ESOs. This reflects the fact that section 105A.23 requires a court sentencing a person who has been convicted of an offence against Part 5.5 (except subsection 119.7(2) or (3)) to warn the person about CDOs and ESOs.

Part 2 - Main consequential amendments

Administrative Decisions (Judicial Review) Act 1977

Item 153 - After paragraph (dac) of Schedule 1

429. Item 153 inserts paragraph (dad) into Schedule 1 to exempt decisions made by the AFP Minister under Division 105A of the Criminal Code as decisions to which the ADJR Act does not apply. This means that judicial review under the ADJR Act will not be available for decisions made by the AFP Minister under Division 105A.

430. Judicial review of these decisions will remain available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.

431. In its 2012 report Federal Judicial Review in Australia, the Administrative Review Council (ARC) outlined a number of principles that may justify an exemption from review under the ADJR Act. One such principle is where review under the ADJR Act has the potential to fragment or frustrate another legal process.

432. Division 105A relates to decisions of the AFP Minister to: one, direct a convicted terrorist offender to attend an expert assessment; and two, apply to the Supreme Court to seek a PSO (or to vary or review a PSO). These are decisions that form part of the process leading up to the Court's consideration of whether a PSO order should be made. Excluding ADJR Act review of these decisions is consistent with the principle that the Court hearing the substantive proceeding (in this case the PSO application) is best placed to determine any collateral matters in relation to the lawfulness of associated government activity.

433. With regard to the Minister's decision to apply to the Court for a PSO under Division 105A (including a decision to seek a review or variation of an order), there is no need for ADJR Act review to be available for these decisions, as an application for ADJR Act review would be made at the same time as the Court's consideration of the Minister's application. This would mean that ADJR Act review would interrupt the application for a PSO (or review or variation of such an order).

434. There remains an opportunity for judicial consideration of the Minister's decision to apply for an order, or a review or variation of an existing order, because the Court may consider any submissions made by the respondent in relation to these matters in determining the application. As such, the exemption from ADJR Act review does not present a practical or substantive limitation on a respondent's ability to seek judicial consideration of the Minister's decision.

435. Similarly, it is appropriate to exempt the Minister's decision to direct an offender to be assessed by a relevant expert (under section 105A.18D) from ADJR Act review. This avoids the risk of an application for ADJR Act review being made concurrently, in a separate court, with the application for a PSO, which could complicate or delay the Court's consideration of the PSO application within the statutory timeframe. The ARC also identified that national security considerations are relevant in determining whether ADJR Act review of decisions should be available. The Minister may rely on national security considerations to determine whether it would be appropriate to direct an offender to attend an assessment. In this context, judicial review of these decisions is better conducted as part of the substantive proceeding on the application for a PSO.

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

•

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

•

Should the offender participate, any exculpatory information produced as a consequence of the Minister's decision to direct the offender to attend an expert assessment must be included as part of any application made under Division 105A, subject to any claim of public interest immunity in relation to that information (see paragraph 105A.5(3)(aa)).

•

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

Australian Security Intelligence Organisation Act 1979

Item 154 - Subsection 35(2)

437. Item 154 extends subsection 35(2) of the ASIO Act to apply to ESOs and ISOs. Item 154 puts beyond doubt that a condition imposed on an offender by an ESO or ISO under Division 105A of the Criminal Code (including electronic monitoring action authorised by the conditions of the ESO or ISO) is not prescribed administrative action for the purpose of Part IV of the ASIO Act.

438. Item 154 means ASIO would not pass relevant information to the AFP for the purpose of the ESO scheme in the form of security assessments under Part IV of that Act. However, the information may be communicated under other provisions of the Act, including for example under subsection 18(3) if the Director-General is satisfied that such communication is required.

Crimes Act 1914

Overview

439. The Crimes Act and other Commonwealth legislation confer a range of investigatory powers on law enforcement and other agencies, including the monitoring warrant regime in Part IAAB of the Crimes Act. The Bill will amend the monitoring warrant regime to extend its applicability in relation to an offender subject to an ESO or ISO.

440. Given the gravity of the purposes for which ESOs and ISOs are made, compliance with the order is required to ensure that purpose of protecting the community is achieved. If compliance could only be monitored once there were reasonable grounds upon which to suspect a breach, the damage would have been done and the protective value of the order would be undermined. The protective value of ESOs and ISOs are also enhanced by the subject of the order knowing that compliance may be more readily monitored.

Item 155 - Part IAAB (heading)

441. Item 155 is a consequential amendment to the heading of Part IAAB to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'.

442. Item 155 reflects the broadening of Part IAAB to apply to individuals subject to ESOs and ISOs. Part IAAB does not require the issuing authority to be satisfied that an offence has already occurred or is going to be committed. This regime is targeted at monitoring compliance for the purposes of preventing a person from engaging in certain terrorism-related activities or preparatory acts while subject to an order.

Item 156 - Section 3ZZJA

443. Item 156 amends section 3ZZJA to broaden the simplified outline of Part IAAB of the Crimes Act. Section 3ZZJA outlines that a Part 5.3 supervisory order includes ESOs and ISOs. The simplified outline also specifies in relation to Part 5.3 supervisory orders that for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order:

•

a constable may enter and search a premises in relation to a Part 5.3 supervisory order, and

•

a constable may conduct an ordinary search or a frisk search of a person.

444. While simplified outlines are included to give a brief overview of what is contained in the substantive provisions, the outlines are not intended to be comprehensive.

Item 157 - Section 3ZZJB

445. Item 157 amends section 3ZZJB to include several definitions that are relevant to Part IAAB of the Act.

446. The definitions of 'extended supervision order' and 'interim supervision order' provide that they have the same meaning as in Part 5.3 of the Criminal Code. They are relevant to sections 3ZZOA, 3ZZOB and 3ZZOD.

447. The definition of 'serious Part 5.3 offence' provides that is has the same meaning as in Part 5.3 of the Criminal Code. It is relevant to sections 3ZZOA and 3ZZOB.

448. The definition of 'terrorist offender' provides that it has the same meaning as in Part 5.3 of the Criminal Code and is relevant to the definition of 'Part 5.3 object'.

449. The definition of 'Part 5.3 object' reflect the objects contained in Division 104 and 105A of the Criminal Code. It underpins the purpose for which a search of person or premises either by consent or under warrant may be authorised, under Part IAAB of the Act.

•

In relation to a control order, a Part 5.3 object means any of the following:

o

the protection of the public from a terrorist act

o

the prevention of the provision of support for, or the facilitation of, a terrorist act, and

o

the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

•

In relation to ESOs and ISOs, a Part 5.3 object means the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

450. The Bill defines 'Part 5.3 supervisory order' to mean either a control order, an ESO or an ISO.

Items 158-160 - Section 3ZZKA

451. Items 158-160 amend section 3ZZKA to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 158-160 amend section 3ZZKA to authorise constables to enter the premises and exercise monitoring powers for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

452. Section 3ZZKA provides that a constable may only enter the premise if there is a Part 5.3 supervisory order in force in relation to a person, the person has a prescribed connection with the particular premises (defined in section 3ZZJC) and the entry to the premises is authorised. Authorisation to enter the premises is provided if either the occupier of the premises consents to the entry, or the entry is authorised by a monitoring warrant.

453. The note to section 3ZZKA makes clear that if the entry is not made under a monitoring warrant, an authorised person must leave the premises if entry to the premises was with the occupier's consent and that consent has been withdrawn (see section 3ZZNA).

454. The power of a constable to enter the premises and exercise monitoring powers in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender's compliance with the conditions of the order, which were imposed to protect the community.

Item 161 - Paragraphs 3ZZKC(3)(a) to (d)

455. Item 161 amends paragraph 3ZZKC(3)(a) to apply to ESOs and ISOs, and continue the paragraph's application to control orders. Specifically, Item 161 amends paragraph 3ZZKC(3)(a) to authorise a constable to operate electronic equipment on the premises and to use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it.

456. A constable's power to operate electronic equipment extends to copying data from the electronic equipment onto storage devices. However, a constable may only operate electronic equipment if he or she reasonably believes this can occur without damaging the equipment.

457. The power of a constable to operate electronic equipment on the premises in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender's compliance with the conditions of the order, which were imposed to protect the community. Specifically, this power is necessary to ensure a constable can obtain access to electronic records that are relevant to the purpose of achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order.

Items 162 and 163 - Section 3ZZKE

458. Items 162 and 163 amend section 3ZZKE to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 162 and 163 amend section 3ZZKE to authorise a constable to ask questions and seek documents where the constable enters premises either by consent or under a monitoring warrant (section 3ZZKA).

459. If a constable enters premises with the consent of the occupier, subsection 3ZZKE(2) provides that a constable may ask the occupier to answer any questions or produce documents that are likely to assist in achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order. There is no requirement for the person to answer the question or produce the document where entry was undertaken by consent. Accordingly, the other subsections within this section do not apply to existing subsection 3ZZKE(2).

460. The first note to subsection 3ZZKE(2) provides that a person is not required to answer a question or produce a document under this subsection. The second note refers to sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

461. If entry is authorised by a monitoring warrant, subsection 3ZZKE(3) provides that a constable may require any person on the premises to answer any questions or produce documents that are likely to assist in achieving a Part 5.3 object or to determine compliance with a Part 5.3 supervisory order. Subsection 3ZZKE(3) is subject to subsections (4) and (7).

462. The note refers to existing sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

463. Subsection 3ZZKE(4) qualifies that before a constable requires a person to answer a question or produce a document under existing subsection (3), the constable must explain to the person the effect of section 3ZZJD concerning self-incrimination and legal professional privilege.

464. Subsection 3ZZKE(5) provides a safeguard to the person by stipulating that if a constable fails to explain the effect of section 3ZZJD then any answer to a question or document produced under this section is not admissible in evidence against the person in criminal proceedings.

465. The note refers to existing sections 3ZZRC and 3ZZRD, which deal with using, sharing and returning documents produced under Part IAAB and answers to questions asked under section 3ZZKE, respectively.

466. Subsection 3ZZKE(6) qualifies the requirement to answer questions and produce documents by providing that a person is not required to answer or produce a document if the person does not possess the information or document required and has taken reasonable steps to obtain the required information or documents without success. Subsection 3ZZKE(7) further qualifies the requirement by providing that a person is not required to produce a document if the document sought is not at the premises.

467. Subsection 3ZZKE(8) provides that a person commits an offence for failing to comply with a requirement under subsection 3ZZKE(3). This offence carries a penalty of 30 penalty units. The note provides that this section does not abrogate the privilege against self-incrimination or legal professional privilege (section 3ZZJD).

468. The power of a constable to ask questions and seek documents where the constable enters the premises with consent or under a warrant in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender's compliance with the conditions of the order, which were imposed to protect the community. Specifically, asking questions and seeking documents will authorise the constable to gather information that may assist in determining whether an offender has been compliant with the order.

469. Section 3ZZKE is limited to constables. The powers in this section do not extend to persons who are not constables but are assisting a constable in the execution of a monitoring warrant.

Item 164 - Division 3 of Part IAAB (heading)

470. Item 164 is a consequential amendment to the heading of Division 3 of Part IAAB to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'.

471. The amendment to the heading of Division 3 of Part IAAB reflects that the powers of constables in relation to a Part IAAB monitoring warrant may be exercised in relation to a Part 5.3 supervisory order.

Items 165-167 - Subsection 3ZZLA(1)

472. Items 165-167 amend section 3ZZLA to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 165-167 amend section 3ZZLA to allow a constable to conduct an ordinary search or a frisk search of a person who is subject to a Part 5.3 supervisory order and exercise the monitoring powers outlined in section 3ZZLB (for example, the power to search things found in the possession of the person and the power to record fingerprints from things) if the person consents or a monitoring warrant is in place. A search can only be undertaken for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

473. The power of a constable to conduct an ordinary search or a frisk search in relation to an offender subject to an ESO or ISO is necessary to provide adequate law enforcement powers to monitor the offender's compliance with the conditions of the order, which were imposed to protect the community. Specifically, searches will authorise the constable to gather information that may assist in determining whether the person has been compliant with the order. Further, searches may also assist the constable if there are any immediate risks or threats posed to the constable while conducting the search.

Items 168 and 169 - Section 3ZZNH

474. Items 168 and 169 are consequential amendments to section 3ZZNH to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'.

475. Items 168 and 169 broaden the application of section 3ZZNH to apply to ESOs and ISOs to provide that, where a search of premises is undertaken under a monitoring warrant, if the person the subject of the relevant Part 5.3 supervisory order is present they are entitled to observe the search being conducted.

Items 170-176 - Section 3ZZOA

476. Items 170-176 amend section 3ZZOA to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 170-176 amend section 3ZZOA to allow a constable to apply to an issuing officer for a warrant which will allow monitoring of a Part 5.3 supervisory order to prevent breaches of the order.

477. Subsection 3ZZOA(2) provides that in order to issue the warrant, the issuing officer must be satisfied that a Part 5.3 supervisory order is in force, the person has a prescribed connection with the premises and having regard to a number of matters, it is reasonably necessary that one or more constables have access to the premises for the purpose of achieving a Part 5.3 object or determining compliance with the relevant order.

478. The issuing officer must also have regard to the nature of the person's connection with the premises, and:

•

the possibility that the person has engaged, is engaging, or will engage in specified terrorism-related activities, and

•

whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.

479. Item 172 inserts at paragraph 3ZZOA(4)(b) a new matter the issuing officer must have regard to, that being the possibility that the person has committed, is committing or will commit a serious Part 5.3 offence, which reflects the purpose of Division 105A of the Criminal Code.

480. Subsection 3ZZOA(3) provides that the issuing authority may require further information concerning the grounds on which the issue of the warrant is being sought and must not issue the warrant until that information has been provided orally or by affidavit.

481. Subsection 3ZZOA(5) lists the matters that must be set out in the warrant, including a description of the premises to which the warrant relates, the time at which the warrant expires, whether a person who is not a constable is able to assist in executing the warrant, and details relating to the relevant Part 5.3 supervisory order.

482. Subsection 3ZZOA(6) provides a safeguard to ensure that information likely to prejudice national security is not required to be included in the warrant. Subsection 3ZZOA(7) expressly provides that the warrant must state the date of expiry which is no later than the end of the seventh day after the day on which it was issued. Subsection 3ZZOA(8) makes clear that successive warrants can be issued for the same premises.

Items 177-183 - Section 3ZZOB

483. Items 177-183 amend section 3ZZOB to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, items 177-183 amend section 3ZZOB to mirror items 170-176, as outlined above, but instead relates to the issuance of a warrant in relation to a person.

484. Items 177-183 amend section 3ZZOB to provide that in order to issue the warrant the issuing officer must be satisfied that a Part 5.3 supervisory order is in force and after having regard to a number of matters, it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person.

485. The issuing officer must also have regard to:

•

the possibility that the person has engaged, is engaging, or will engage in specified terrorism-related activities, and

•

whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person or a recently used conveyance, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.

486. Item 179 inserts at paragraph 3ZZOB(4)(b) a new matter the issuing officer must have regard to, that being the possibility that the person has committed, is committing or will commit a serious Part 5.3 offence, which reflects the purpose of Division 105A of the Criminal Code.

487. The issuing officer must consider it reasonably necessary for a constable to conduct a search of the person to achieve a Part 5.3 object or determine whether the Part 5.3 supervisory order is being complied with.

488. Subsection 3ZZOB(3) provides that the issuing authority may require further information concerning the grounds on which the issue of the warrant is being sought and must not issue the warrant until that information has been provided orally or by affidavit.

489. Subsection 3ZZOB(5) lists the contents of the warrant, such as, the name of the person, the purpose for which the warrant is issued, the time at which the warrant expires, whether a person who is not a constable is able to assist in executing the warrant and details which relate to the Part 5.3 supervisory order.

490. Subsection 3ZZOB(6) provides a safeguard to ensure that information which is likely to prejudice national security is not stated in the warrant which will be disclosed. Subsection 3ZZOB(7) expressly provides that the warrant must state the date of expiry which is no later than the end of the seventh day after the day on which it was issued. Subsection 3ZZOB(8) makes clear that successive warrants can be issued for the same person.

Items 184-186 - Section 3ZZOD

491. Items 184-186 amend section 3ZZOD to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 184-186 amend section 3ZZOD to provide an important safeguard where the ESO or ISO in relation to which a monitoring warrant was issued has since been revoked, declared void or varied by way of removing one or more of the conditions.

492. Where an ESO or ISO ceases to have effect, the grounds for the monitoring warrant will no longer exist. Similarly, if one or more of the conditions imposed by the relevant order ceases to have effect, the grounds upon which the monitoring warrant was issued may no longer exist. Accordingly, it is appropriate that, in such circumstances, the legislation preclude the execution of the warrant. Where the ESO or ISO is varied by removing one or more of the conditions, it is open to the AFP to apply for a new monitoring warrant on the basis of the revised order. This ensures the issuing authority has full visibility of the conditions imposed by the order and whether it is appropriate to issue a warrant.

493. Section 3ZZOD does not currently extend, and will not be amended to extend, to circumstances where an order is varied by adding one or more conditions. It also does not extend to conditions that are varied but where the condition itself remains as part of the order (i.e. the condition is neither removed nor has a new condition been added). For example, this could be where the subject's mobile phone number has changed and the condition is amended to reflect the new number. This is because the conditions that were in force at the time the monitoring warrant was issued will continue to be in force, and it is reasonable and appropriate for the AFP to execute that warrant.

494. Subsections 3ZZOD(2), (3) and (4) provide that a thing seized, or information or document obtained, in breach of subsection 3ZZOD(1) is not admissible in evidence in a criminal proceeding other than a proceeding under subparagraph 3ZQU(1)(j) in relation to a complaint, allegation, or issue concerning using and sharing things seized and documents produced under Part IAA.

Item 187- Section 3ZZRC

495. Item 187 amends section 3ZZRC to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 187 amends section 3ZZRC to provide that Division 4C of Part IAA of the Crimes Act applies to documents produced under Part IAAB. The application of Division 4C of Part IAA authorises the use or sharing of information between constables and Commonwealth officers if it is necessary for purposes such as:

•

preventing, investigating or prosecuting an offence

•

specified proceedings, such as those under corresponding law, and

•

specified investigations.

496. Subsection 3ZZRC(2) sets out additional uses to which documents produced under section 3ZZKE can be put. Item 187 will amend subsection 3ZZRC(2) to apply to ESOs and ISOs. Specifically, Item 187 amends subsection 3ZZRC(2) to provide that a document produced under that section can be used for the purpose of achieving a Part 5.3 object or to determine compliance with a relevant order.

497. In addition, paragraph 3ZZRC(2)(e) authorises the document to be used for the purposes of preventing, investigating or prosecuting an offence.

498. The authority to share information is necessary to enhance the utility of the information if it relates to a relevant purpose (outlined above). If the power to obtain information was not extended to its use, then the power to obtain the information could not be used to protect the community and would defeat the overarching purposes of ESOs and ISOs.

Item 188 - Paragraphs 3ZZRD(a) to (d)

499. Item 188 amends section 3ZZRD to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 188 amends section 3ZZRD to allow the use of an answer given to questions asked under section 3ZZKE for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

500. The authority to use information is necessary to achieve community protection. If the power to obtain information was not extended to its use, then the power to obtain the information could not be used to protect the community and would defeat the overarching purposes of ESOs and ISOs.

Intelligence Services Act 2001

Items 188A-188B - paragraphs 29(1)(bbaaa) and (cb) of the Intelligence Services Act 2001

501. Section 29 outlines the functions of the Parliamentary Joint Committee on Intelligence and Security (the Committee). Paragraph 29(1)(cb) provides the existing requirement for the Committee to review Division 105A - it requires the Committee to complete the review by 7 December 2021 (6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).

502. Item 188B repeals paragraph 29(1)(cb) and item 188A inserts a new paragraph 29(1)(bbaaa) which provides that the Committee may commence a review of Division 105A of the Criminal Code within 12 months after the Independent National Security Legislation Monitor (the Monitor) completes a review into the operation, effectiveness and implications of the Division. The timing of the Committee's review is being adjusted to ensure the review follows the Monitor's review.

503. Under subsection 6(1C) of the Independent National Security Legislation Monitor Act 2010, the Monitor is to complete a review of Division 105A as soon as practicable after 7 December 2021 (5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent).

National Security Information (Criminal and Civil Proceedings) Act 2004

Overview

504. The objective of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. 'National security' is defined in section 8 of the NSI Act as Australia's defence, security, international relations or law enforcement interests. These concepts are further defined in sections 9, 10 and 11.

505. The NSI Act provides a range of protection mechanisms for sensitive information, the disclosure of which would likely prejudice national security. These mechanisms include parties agreeing to information protection arrangements, parties seeking orders ex parte, or the Attorney-General giving a non-disclosure certificate that states whether information may be disclosed and, if so, in what circumstances and form (redactions, summaries and statements of facts are permitted).

506. In control order proceedings, the NSI Act enables the Court to make special orders under section 38J allowing the Court to consider information (subject to the rules of evidence and other safeguards) which is not disclosed to the controlee or their legal representative. This enables highly sensitive information to be adduced as evidence to support a control order application while ensuring that it is appropriately protected. For example, information which is central to supporting and justifying a control order application may reveal law enforcement or intelligence sources, capabilities and methodologies. Depending on the specific nature of the information, disclosure could have significant consequences, such as endangering the safety of individuals or compromising law enforcement or intelligence methodologies or operations. The NSI Act enables this highly sensitive information to be provided to a court, which can be critical in circumstances where a control order could otherwise not be obtained without relying on that information.

507. This schedule amends the NSI Act to extend the availability of these special court orders in section 38J to ESO proceedings. It is necessary and appropriate to extend the special court orders that are currently available in control order proceedings to ESO proceedings, given the orders are similar in their effect, and because information obtained from highly sensitive sources or capabilities may be needed to support an application. The effect of the amendments will be to enable the AFP Minister to adduce highly sensitive information which is not disclosed to the respondent in Division 105A proceedings of the Criminal Code in relation to applications for:

•

an ESO in relation to an offender

•

a variation of an ESO in relation to an offender

•

a review of an ESO in relation to an offender, or

•

an application for a CDO in relation to an offender, but only in circumstances where the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO.

508. The purpose of these amendments is to ensure that the process of applying for an ESO, which seeks to protect the Australian community from the unacceptable risk of a serious terrorism offence, does not itself damage national security or endanger the safety of individuals.

Invoking the NSI Act

509. The NSI Act does not have free-standing application, it must be 'invoked' before it applies to a proceeding. An ESO proceeding under Division 105A of the Criminal Code is a civil proceeding for the purpose of the NSI Act. In civil proceedings, the NSI Act is invoked by the Attorney-General giving notice in writing to the parties to the proceeding, the legal representatives of the parties and the Court that the NSI Act applies to the proceeding. Unless and until this notice is given, the NSI Act will not apply.

Protections available in civil proceedings

510. If the Attorney-General has invoked the NSI Act and issues a non-disclosure certificate under section 38F or a witness exclusion certificate under section 38H of the NSI Act, the Court must hold a closed hearing in accordance with section 38I. The closed hearing is for the limited purpose of addressing whether information potentially prejudicial to national security may be disclosed and if so, in what form, or whether to allow a witness to be called. For the purposes of this schedule, the closed hearing under subsection 38G(1) or 38H(6) will be referred to as the 'NSI hearing'. The Court has the discretion to exclude non-security cleared parties, their non-security cleared legal representatives and non-security cleared court officials from the hearing where the Court considers that disclosing the relevant information to these persons would likely prejudice national security.

511. Following the NSI hearing, the Court must make one of four possible orders under section 38L. The Court may order that:

•

the information must not be disclosed, but a copy of a document may be disclosed with appropriate redactions, with or without summaries of the information or a statement of facts that the information would be likely to prove (subsection 38L(2))

•

the information must not be disclosed (subsection 38L(4))

•

the information may be disclosed (subsection 38L(5)), or

•

when determining whether to call a witness, that either the relevant party must not or may call the person as a witness (subsection 38L(6)).

512. These orders do not permit evidence to be adduced in the substantive proceeding that has been withheld from the affected party or their legal representative. Accordingly, if the Court orders that some or all of the information should not be disclosed to the respondent or their legal representative, that information cannot then be used in the substantive proceeding.

513. The NSI Act is designed to be flexible and ensure the Court has the ability to conduct the proceeding in a manner it considers appropriate. The NSI Act does not prevent the Court from making other protective orders such as upholding public interest immunity claims, or making orders under other legislation or under the inherent powers of the Court.

Special orders in control order proceedings

514. The NSI Act also provides for special orders under section 38J in control order proceedings that enable the Court to consider information which is not disclosed to the controlee or their legal representative. These orders can provide that:

•

where the information is in the form of a document, the controlee and their legal representative may be provided with a redacted or summarised form of the national security information. However, the Court may consider all of the information contained in the original source document, even where that information has not been provided in the redacted or summarised form (subsection 38J(2))

•

irrespective of the form of the information, the controlee and their legal representative may not be provided with the national security information, however the Court may consider all of that information (subsection 38J(3)), or

•

a witness may be called and the information provided by the witness need not be disclosed to the controlee or their legal representative, however the Court may consider all of the information provided by the witness (subsection 38J(4)).

515. At the NSI hearing to consider the Attorney-General's certificate in relation to a control order proceeding, the Attorney-General may request the Court make one of the section 38J orders outlined above. The Court has the discretion to make one of the orders, or make no orders at all, under section 38J. Where the Court declines to make an order under section 38J, it must make one of the orders under section 38L. This schedule will amend the NSI Act by making these special orders in section 38J available in ESO proceedings.

Factors the Court must consider before making a special order

516. In determining whether to make an order under section 38J, the Court must be satisfied that the controlee has been given sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations. What constitutes sufficient information will depend on the facts and circumstances of each case. This schedule will amend the NSI Act by extending this requirement to also apply in ESO proceedings.

517. In determining whether to make any of the special orders under section 38J, the Court must consider:

•

the risk of prejudice to national security if an order were not made

•

whether an order under section 38J would have a substantial adverse effect on the substantive hearing in the proceeding, and

•

any other matter the Court considers relevant.

Special advocates

Role of a special advocate

518. Subdivision C of Division 3 of Part 3A of the NSI Act provides for a special advocate to be appointed in relation to control order proceedings. A special advocate is a security-cleared lawyer, or a former judge, who represents the interests of the controlee in parts of the control order proceeding in which they and their legal representative have been excluded under section 38I or section 38J of the NSI Act. The parts of the control order proceedings from which the controlee and their legal representative may be excluded are:

•

the NSI hearing, and

•

the substantive control order proceeding where information that is the subject of a section 38J order is being considered by the Court.

519. The special advocate represents the interests of the controlee by:

•

making submissions to the Court at any part of a hearing in the proceeding in which the controlee and their ordinary legal representative are not entitled to be present

•

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

•

making written submissions to the Court.

520. The special advocate is not a legal representative of the controlee because there are restrictions on the extent to which a special advocate can represent their interests. The most important of these restrictions is that once the Attorney-General has disclosed the sensitive national security information to the special advocate, communication between the special advocate and the controlee (and their legal representative) is restricted and subject to authorisation by the Court. This is to prevent inadvertent disclosure of the national security information to the controlee.

Appointment of a special advocate

521. The Court has the inherent power to appoint a special advocate on an ad hoc basis if it considers it appropriate. The NSI Act provides a legislative framework for the appointment of a special advocate in control order proceedings where the following circumstances arise:

•

the Attorney-General has invoked the NSI Act

•

the Attorney-General has issued a non-disclosure certificate under section 38F or a witness exclusion certificate under section 38H, and

•

either:

o

the Attorney-General has requested a section 38J order and the Court has already granted an order under subsection 38I(3A) to exclude the controlee and their legal representative from the NSI hearing, or

o

the Court has made an order under section 38J, which automatically excludes the controlee and their ordinary legal representative from parts of the control order proceeding where information subject to the order is considered by the Court.

522. Even where the above circumstances arise, the appointment of a special advocate remains at the discretion of the Court.

523. If the Court determines that a special advocate is required, the appointment requirements are set out in the National Security Information (Criminal and Civil Proceedings) Regulation 2015 and include a requirement for the Attorney-General to be satisfied that the person is suitable for appointment because of the person's qualifications, training or experience. The NSI Act provides that the parties and the Attorney-General must be given the opportunity to make submissions to the Court about who should be appointed. Where the controlee has requested that the Court appoint a particular person, who meets the eligibility criteria, the Court will appoint the special advocate requested if none of the following factors apply:

•

the special advocate requested would result in the proceeding being unreasonably delayed

•

the special advocate requested would have an actual or potential conflict of interest, and

•

the special advocate requested has knowledge of national security information and disclosure of that information would be likely to prejudice national security and in the circumstances, there is a risk of inadvertent disclosure of that information.

524. This schedule will extend the special advocate provisions to also apply to ESO proceedings. This is appropriate to ensure that where information is withheld from the respondent and their legal representative in an ESO proceeding under a section 38J order, a special advocate may be appointed to represent the interests of the respondent.

Item 189 - Section 7

525. Item 189 inserts a definition of 'CDO or continuing detention order'. It provides that 'CDO or continuing detention order' means a continuing detention order made under Division 105A of the Criminal Code.

526. Item 189 inserts a definition of 'control order'. It provides that 'control order' has the meaning given by section 100.1(1) of the Criminal Code. Section 100.1(1) of the Criminal Code defines control order as an ICO or a confirmed control order.

527. Item 189 inserts a definition of 'Division 105A ESO proceeding'. It provides that 'Division 105A ESO proceeding' means a proceeding under Division 105A of the Criminal Code in relation to an application for an ESO, a variation of an ESO, or a review of an ESO, in relation to an offender. It also provides that a 'Division 105A ESO proceeding' means a proceeding under Division 105A in relation to an application to a Supreme Court of a State or Territory for a CDO in relation to an offender if, in the proceeding, the Court:

•

is not satisfied:

o

to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community (paragraph 105A.7(1)(b)), and/or

o

that there is no other less restrictive measure that would be effective in preventing the unacceptable risk (paragraph 105A.7(1)(c)), and

•

the Court is considering making an ESO in relation to the offender (subsection 105A.7(2)(b)).

528. A note is inserted immediately below this definition, and refers to the definition of 'ESO or extended supervision order'.

529. Item 189 inserts a definition of 'ESO or extended supervision order'. It provides that 'ESO or extended supervision order' means an order made under subsection 105A.7A(1) of the Criminal Code, or an ISO made under Division 105A of the Criminal Code. This amendment clarifies that ESO proceedings also include ISO proceedings.

530. Item 189 also inserts a definition of 'terrorist offender'. It provides that 'terrorist offender' has the meaning given by section 105A.2 of the Criminal Code. Section 105A.2 of the Code refers to sections 105A.2A, 105A.3(1) and 105A.18 which affect the definition of terrorist offender. Section 105A.2A provides that, for the purpose of Division 105A, if a person escapes from custody, the person is taken to be detained in custody and serving a sentence of imprisonment until the person resumes serving the person's sentence. Subsection 105A.3(1) provides the circumstances in which a CDO may be made in relation to a terrorist offender. Section 105A.18 provides for the consequences of release of a terrorist offender.

Item 190 - Paragraph 38I(1)(b)

531. Item 190 repeals paragraph 38I(1)(b) and substitutes a new paragraph to facilitate the use of the closed hearing requirements in both control order proceedings and Division 105A ESO proceedings if the Court makes an order under subsection 38J(2), (3) or (4).

532. The purpose of the closed hearing requirements is limited to addressing whether information potentially prejudicial to national security may be disclosed, and if so, in what form, and whether to allow a witness to be called.

533. This amendment ensures that the closed hearing requirements are available:

•

during an NSI hearing when the Court is considering if or how national security information should be disclosed in a civil proceeding, and

•

when information that is the subject of an order under subsections 38J(2), (3) or (4) is disclosed in a control order proceeding under Division 104 or in a Division 105A ESO proceeding.

Item 191 - Subsection 38I(1) (note)

534. Item 191 amends the note at the end of subsection 38I(1) by omitting 'note' and substituting 'note 1' to reflect the inclusion of an additional note at the end of this subsection.

Item 192 - At the end of subsection 38I(1)

535. Item 192 adds a note at the end of subsection 38I(1). The note provides that a court may not make an order under subsection 38J(2), (3) or (4) (which enable court-only evidence) if the proceeding under Division 105A relates to an application for a CDO (as referred to in subsections 38J(1) and (1A) and the definition of Division 105A ESO proceeding). The note refers to subsections 38J(1) and (1A) and to the definition of Division 105A ESO proceeding to clarify that the Court cannot make an order under subsection 38J(2), (3) or (4) where:

•

the Court is considering whether to make a CDO under subsection 105A.7(1) of the Criminal Code, or

•

the Court is considering whether to make an IDO under section 105A.9 of the Criminal Code.

536. Where the proceeding relates to an application for a CDO, the Court may only make an order under subsection 38J(2), (3) or (4) after the Court is not satisfied of the requisite threshold for a CDO in paragraphs 105A.7(1)(b) or (c) of the Criminal Code, and instead considers whether to make an ESO (as required under paragraph 105A.7(2)(b)).

537. The note also provides that if the Court decides not to make the CDO (as a result of not being satisfied of the requisite thresholds in paragraphs 105A.7(1)(b) or (c)) and hears evidence in a closed hearing in relation to an ESO, the Court could reconsider whether to make the CDO. This is because the Court is not required to dismiss the CDO application before turning its mind to an ESO. The note clarifies that where a court considers an ESO in such circumstances and has heard court-only evidence in relation to an ESO, the Court is not precluded from reconsidering a CDO after hearing the Court-only evidence, but rather the Court would be prohibited from taking that court-only evidence into account in deciding whether to make a CDO. The Court would also be prohibited from relying on the Court-only evidence in deciding whether to reconsider making the CDO after hearing that evidence in relation to an ESO. It would ultimately be a matter for the Court to determine whether it would be in the interests of fairness to reconsider a CDO after hearing court-only evidence in relation to an ESO.

Item 193 - Paragraph 38I(3A)(b)

538. Item 193 repeals paragraph 38I(3A)(b) and substitutes a new paragraph which allows the Court to order that one or more specified parties to the proceeding and their legal representative may be excluded from the NSI hearing in an ESO proceeding under Division 105A of the Criminal Code.

539. Subsection 38I(3A) only applies to control order proceedings under Division 104 of the Criminal Code. It provides that the Attorney-General (or the Attorney-General's legal or other representative) can request the Court to make an order that one or more specified parties to the proceeding, and their legal representatives, should not be present at any part of the NSI hearing in which the Attorney-General (or the Attorney-General's legal or other representative) gives details of the national security information or gives information in arguing why the national security information should not be disclosed, or the witness should not be called to give evidence in the proceeding. The Court has the discretion to make an order excluding the controlee and their legal representative, even if they have an appropriate security clearance.

540. This amendment enables the Court to also make an order excluding the respondent and their legal representative from the NSI hearing in ESO proceedings under Division 105A of the Criminal Code.

541. The amendments in Item 201, relating to special advocates, will allow the Court to appoint a special advocate to be present during any part of the NSI hearing where the respondent and their legal representative are excluded. This is important as the special advocate represents the interests of the respondent to ensure the respondent receives a fair hearing.

Item 194 - Section 38J (heading)

542. Item 194 amends the heading of section 38J to indicate that the special court orders provided for in control order proceedings under Division 104 of the Criminal Code are also available in ESO proceedings under Division 105A of the Criminal Code.

Item 195 - Paragraph 38J(1)(a)

543. Item 195 repeals paragraph 38J(1)(a) and substitutes a new paragraph that extends the availability of the special court orders under section 38J to ESO proceedings under Division 105A of the Criminal Code. This includes an ESO proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO. The new paragraph provides that section 38J applies if the Court has held a closed hearing under subsection 38G(1) or 38H(6) about the disclosure of information in:

•

control order proceedings under Division 104 of the Criminal Code

•

Division 105A ESO proceedings relating to an application to make, vary or review an ESO, or

•

Division 105A ESO proceedings relating to an application for a CDO.

Item 196 - Paragraph 38J(1)(c)

544. Paragraph 38J(1)(c) provides that for a special order under section 38J to be made, a court must be satisfied that the controlee has been given sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations. Item 196 extends this requirement to also apply in relation to respondents in ESO proceedings under Division 105A of the Criminal Code. Procedural fairness requires that the respondent must have notice of the allegations on which the application is based.

Item 197 - At the end of subsection 38J(1)

545. Item 197 adds a note at the end of subsection 38J(1) referring to the definition of Division 105A ESO proceeding in section 7. This is to clarify that the reference to an application for a CDO in subparagraph 38J(1)(a)(iii) refers to a proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold as mentioned in paragraph 105A.7(1)(b) or (c) of the Code and instead considers whether to make an ESO as mentioned in paragraph 105A.7(2)(b).

Item 198 - After subsection 38J(1)

546. Item 198 inserts an avoidance of doubt provision that expressly prohibits the Court from making an order under subsection 38J(2), (3) or (4) (which enable court-only evidence) in certain proceedings. This item expressly prohibits the Court from making an order under subsection 38J(2), (3) or (4) enabling court-only evidence in proceedings that involve consideration of a CDO, or an IDO where a CDO is still before the Court, because at that point in proceedings, the Court has not yet considered whether it is satisfied of the requisite thresholds for the CDO. The intention is to prevent the Court from being exposed to court-only evidence in these proceedings, noting the result of these orders is detention.

547. The first is a proceeding relating to an application for a CDO if the Court is considering whether to make a CDO under section 105A.7 of the Criminal Code. This would capture both:

•

where the Court is deciding whether it is satisfied of the threshold for a CDO, and

•

where the Court was not satisfied of the threshold for a CDO so considered an ESO, but then reconsidered whether to make a CDO under section 105A.7.

548. The second is a proceeding where the Court is considering whether to make an ISO under section 105A.9A of the Criminal Code, as mentioned in paragraph 105A.9(8)(b) of the Criminal Code (see Item 94). Subsection 105A.9(8) provides that where the AFP Minister has applied for an IDO, but the Court is not satisfied that there are reasonable grounds for considering that a CDO will be made, a court is required to consider making an ISO. The reason for prohibiting the Court from making an order under subsection 38J(2), (3) or (4) in these proceedings is because if court-only evidence were to be permitted for an ISO in the circumstances described above, the Court would have been exposed to that evidence before deciding that it is not satisfied of the requisite thresholds for the CDO.

549. The third is a proceeding relating to an application for an IDO under section 105A.9 of the Criminal Code.

Item 199 - Subsections 38L(1) and (6) (at the end of the note)

550. The existing note that follows subsection 38L(1) clarifies that subsections 38J(2) and (3) allow the Court to make an order about the disclosure and consideration of information in control order proceedings under Division 104 of the Criminal Code. Item 199 amends this note to indicate that those subsections now allow the Court to also make such orders in ESO proceedings under Division 105A of the Criminal Code.

551. The existing note that follows subsection 38L(6) clarifies that subsection 38J(4) allows the Court to make an order about the calling of witnesses in control order proceedings under Division 104 of the Criminal Code. Item 199 amends this note to indicate that subsection 38J(4) now allows the Court to also make such an order in ESO proceedings under Division 105A of the Criminal Code.

Item 200 - Subdivision C of Division 3 of Part 3A (heading)

552. Item 200 amends the heading of Subdivision C of Division 3 of Part 3A to indicate that special advocates are available in ESO proceedings.

Item 201 - Paragraph 38PA(1)(a)

553. Item 201 allows the Court to appoint a person as a special advocate for a respondent:

•

in a control order proceeding relating to a request to make, confirm or vary a control order

•

in a Division 105A ESO proceeding to make, vary or review an ESO in relation to the respondent, and

•

in a Division 105A ESO proceeding relating to an application for a CDO in relation to the respondent (this would be in proceedings where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold for a CDO, and instead considers whether to make an ESO).

554. This is to ensure that where the Court makes an order under subsection 38I(3A) or subsection 38J(2), (3) or (4), which results in the respondent and their legal representative being excluded from a hearing, the respondent's interests are safeguarded by providing for a special advocate to be present during those parts of the hearing.

Item 202 - Subsection 38PA(1) note

555. Item 202 amends the note at the end of subsection 38PA(1) by omitting 'note' and substituting 'note 1' to reflect the inclusion of an additional note at the end of this subsection.

Item 203- At the end of subsection 38PA(1)

556. Item 203 adds a note at the end of subsection 38PA(1) referring to the definition of Division 105A ESO proceeding in section 7. This is to clarify that the reference to an application for a CDO in subparagraph 38PA(1)(a)(iii) refers to a proceeding where the AFP Minister applied for a CDO, but the Court was not satisfied of the requisite threshold as mentioned in paragraph 105A.7(1)(b) or (c) of the Code and instead considers whether to make an ESO as mentioned in paragraph 105A.7(2)(b).

Item 204 - Subparagraph 38PE(3)(b)(i)

557. Subsection 38PE(3) prohibits the special advocate from disclosing the national security information other than:

•

in permitted circumstances specified in the Attorney-General's certificate given under section 38F or 38H or in accordance with an order made under subsections 38J(2), (3) or (4)

•

to the person who applied for the control order, or

•

to the Court at a part of a hearing during which the respondent and their legal representative are not entitled to be present.

558. Item 204 will amend this subsection to enable a special advocate to also disclose the national security information to the applicant in the control order proceedings or Division 105A ESO proceedings, or the applicant's legal representative, except where the applicant is the person who is or would be the subject of the control order or the ESO (noting under both the control order and ESO schemes the offender may apply for a variation of the order, and additionally may apply for a review of the order under the ESO scheme). Enabling disclosure to the applicant in these circumstances is appropriate noting the applicant will have already seen the information and the disclosure would not prejudice national security.

Item 205 - Subparagraph 38PF(2)(a)(ii)

559. Once the Attorney-General has disclosed the national security information to the special advocate, subsection 38PF(2) prohibits the special advocate from communicating with any person about any matter connected with the proceeding, other than in the circumstances outlined in paragraphs (a) to (c). Item 205 amends paragraph 38PF(2)(a) to enable the special advocate to communicate with the applicant in the control order proceedings or Division 105A ESO proceedings, or the applicant's legal representative, except if the applicant is the person who is or would be the subject of the control order or ESO (noting under both the control order and ESO schemes the offender may apply for a variation of the order, and additionally may apply for a review of the order under the ESO scheme).

560. The purpose of the communication restrictions is to prevent inadvertent disclosure of the national security information. Amending the list of people with whom the special advocate is able to communicate about the proceedings to include the applicant, except where the applicant is or would be the subject of the order, is appropriate noting the applicant will have already seen the information and the disclosure would not prejudice national security.

Item 206 - Paragraph 38PF(6)(a)

561. Section 38PF enables the special advocate to submit a written communication to the Court for approval and forwarding to the respondent. If a court forwards a communication from the special advocate to the respondent or their legal representative, paragraph 38PF(6)(a) requires the Court to give a description of the communication to the person who applied for the relevant control order or their legal representative.

562. Item 206 amends this paragraph to require the Court to give a description of the communication to the applicant in the control order proceedings or the Division 105A ESO proceedings, or their legal representative, except where the applicant is the person who is or would be the subject of the control order or ESO. This ensures that the applicant in ESO proceedings also receives notification of any communication between the special advocate and the controlee and are provided with a general description of that communication.

Item 207 - Section 46H (heading)

563. Section 46H provides for a range of offences relating to special advocates in control order proceedings. The offences relate to:

•

special advocates disclosing national security information received from the Attorney-General, and

•

controlees, or their ordinary legal representatives, communicating with special advocates after the Attorney-General has disclosed national security information to the special advocates.

564. Item 207 amends the heading of section 46H to indicate that these offences now also relate to special advocates in ESO proceedings.

Item 208 - Paragraphs 47(c) and (d)

565. Section 47 sets out the Attorney-General's annual reporting requirements. Item 208 amends the existing reporting requirements to also require the Attorney-General's annual report to include the number of special orders made under section 38J in ESO proceedings and identify the proceedings under Division 105A of the Criminal Code to which the orders relate.

566. This amendment ensures the existing transparency and oversight measure extends to the operation of section 38J as it applies to Division 105A ESO proceedings.

Item 209 - Paragraph 47(f)

567. Item 209 amends the Attorney-General's annual reporting requirements by requiring the Attorney-General's annual report to also identify the proceedings under Division 105A of the Criminal Code in relation to which special advocates were appointed.

Item 210 - Application of amendments

568. Item 210 provides that the amendments to section 47 apply in relation to each 30 June that occurs after this item commences.

Surveillance Devices Act 2004

Overview

569. The SD Act and other Commonwealth legislation confer a range of investigatory powers on law enforcement and other agencies. The Bill will amend the SD Act to extend its application to offenders subject to PSOs under Division 105A of Part 5.3 of the Criminal Code.

570. The Bill will allow law enforcement agencies to:

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obtain surveillance device warrants to monitor offenders who are subject to ESOs and ISOs

•

obtain surveillance device warrants to assist in determining whether to make an application for a PSO

•

obtain computer access warrants to monitor offenders who are subject to ESOs and ISOs

•

obtain computer access warrants to assist in determining whether to make an application for a PSO, and

•

use less intrusive surveillance devices without a warrant to monitor offenders who are subject to ESOs or ISOs.

571. It is imperative that law enforcement agencies have adequate powers to monitor an offender's compliance with the conditions of an ESO or ISO. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to a person to breach the conditions of their order. This enhances the effectiveness of the Part 5.3 supervisory order.

572. It is also imperative that law enforcement agencies have adequate powers to determine whether to make an application for a PSO. Without sufficient powers to collect information that would determine whether it is necessary for the safety of the community to make a PSO application, and without sufficient evidence to support that application, community safety may be put at risk if the decision to make an application is not able to be made or supported.

573. The Bill will also amend the Act to allow protected information (which is broadly information obtained under a warrant or surveillance devices used without a warrant) to be used in a range of circumstances, including to determine whether the relevant order has been complied with and in evidence for proceedings relating to offences punishable by a maximum term of imprisonment of 3 years or more. The power to use surveillance devices for monitoring purposes will remain a covert power.

Item 211 - Paragraphs 3(aa) to (ab)

574. Item 211 amends section 3 to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 211 amends section 3 to set out the main purposes of the Act in relation to the ESO scheme, including:

•

assisting the Minister in determining whether to apply for a PSO

•

the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence, and

•

determining compliance with an ESO or ISO.

Item 212 - Subsections 4(5) to (6)

575. Item 212 amends subsections 4(5) and (6) to apply to ESOs and ISOs, and continue the subsections' application to control orders. Specifically, Item 212 amends subsection 4(5) to clarify that a warrant may be issued under the Act:

•

where consideration is being given, will be given, or is likely to be given, as to whether to apply for a PSO, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order

•

where a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in achieving a Part 5.3 object, or

•

where a Part 5.3 supervisory order is in force and the use of the device or the access to the data would be likely to substantially assist in determining compliance with an ESO or ISO.

576. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk the offender will pose upon release is difficult to establish while they are still in custody. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

577. Item 212 also amends subsection 4(6) to clarify that a tracking device authorisation may be issued under the Act where a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in achieving a Part 5.3 object or determining compliance with an ESO or ISO.

Items 213-220 - Subsection 6(1)

578. Items 213-220 amend subsection 6(1) to insert and amend several definitions that are relevant to the amendments proposed to the Act.

579. The definition 'AFP Minister' is relevant to Item 222 (section 14(3B)) and 240 (section 27A(6)) and has the same meaning as in section 100.1 of the Criminal Code.

580. Existing definitions of 'control order access warrant', 'control order information' 'control order warrant' and 'succeeding control order' are repealed, to broadly reflect that a surveillance device warrant and a computer access warrant can be sought in relation to PSOs. These matters are now dealt with in the new definitions of Part 5.3 orders, Part 5.3 warrants and Part 5.3 information.

581. The definition of "detained in custody in a prison" has the same meaning as provided in section 100.1 of the Criminal Code.

582. The definition of 'extended supervision order' provides that it has the same meaning as in Part 5.3 of the Criminal Code.

583. The definition of 'interim supervision order' provides that it has the same meaning as in Part 5.3 of the Criminal Code.

584. The definition of 'Part 5.3 object' reflects the objects contained in Divisions 104 and 105A of the Criminal Code.

•

In relation to a control order, Part 5.3 object means any of the following:

o

the protection of the public from a terrorist act

o

the prevention of the provision of support for, or the facilitation of, a terrorist act, and

o

the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

•

In relation to ESOs and ISOs, Part 5.3 object means the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

585. The definition of 'Part 5.3 supervisory order' provides that it means either a control order or an ESO or ISO.

586. The definition of 'Part 5.3 information' provides that it has the same meaning as in subsection 50A(6). This is relevant to existing section 50A under which an agency can advise the Minister to defer reporting of such information.

587. The definition of 'Part 5.3 warrant' provides that it means a surveillance device warrant or computer access warrant issued to determine whether to apply for a PSO or issued in relation to a Part 5.3 supervisory order that is or was in force.

588. The definition 'post-sentence detention law' includes State and Territory detention order schemes under Part 3 of the Terrorism (High Risk Offenders) Act 2017 (NSW), Parts 5 and 6 of the Serious Offenders Act 2018 (Vic), Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence detention law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

589. The definition of 'post-sentence order' provides that it means a CDO, an IDO, an ESO, or an ISO made under Division 105A of the Criminal Code.

590. The definition 'post-sentence supervision law' includes State and Territory supervision order schemes under Part 2 of the Terrorism (High Risk Offenders) Act 2017 (NSW), Parts 3 and 4 of the Serious Offenders Act 2018 (Vic) and Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence supervision law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

591. Paragraph (oa) of the definition of 'relevant proceeding' in subsection 6(1) will be amended to apply to PSOs, to accommodate the inclusion of ISOs and ESOs within Division 105A of the Criminal Code.

592. The definition of 'relevant proceeding' will also be amended to include a proceeding under, or a proceeding relating to a matter arising under, a post-sentence detention law or a post-sentence supervision law.

593. The definition 'serious Part 5.3 offence' has the meaning given by section 105A.2 of the Criminal Code.

594. The definition of 'succeeding control order' has been replaced with 'succeeding Part 5.3 supervisory order', to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'. A 'succeeding control order' has the same meaning given by section 6D.

595. The definition of 'terrorist offender' provides that it has the meaning as given by section 105A.2 of the Criminal Code.

Item 221 - Sections 6C and 6D

596. Item 221 amends section 6C to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 221 amends section 6C to allow an application for a Part 5.3 warrant to be made and a warrant to be issued prior to the Part 5.3 supervisory order having come into force under Division 104 or 105A of the Criminal Code. This is necessary to provide an opportunity for devices to be covertly installed and to ensure they can be ready for use as soon as it is authorised by the Part 5.3 warrant.

597. Item 221 amends references to detained in custody in paragraph 6C(a)(ii) to detained in custody in a prison. Subsection 6C(a) provides that a control order is taken to be in force if it has been made but has not yet come into force because either it has not been served on the person or the person is detained in custody in a prison.

598. Item 221 amends section 6D to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 221 amends section 6D to provide that a successive Part 5.3 supervisory order made in relation to the same person is termed a 'succeeding Part 5.3 supervisory order'. Extending the concept of a succeeding Part 5.3 supervisory order reflects that under 105A of the Criminal Code, an ESO may be made immediately after an ISO has been in force, and further that there is no limit on the number of ESOs that can be made in relation to an offender. The definition of succeeding Part 5.3 supervisory order is used throughout the provisions to ensure that Part 5.3 warrants may be issued or given, and information obtained via the use of those powers may be dealt with, in connection with subsequent equivalent orders, rather than being limited to the specific order that is in force at a given point in time.

599. A control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa. For instance, under section 105A.3A of the Criminal Code there are transitional mechanisms which provide that persons subject to control orders may be eligible for an ESO. The warrant from a control order will not survive if that order is revoked because an ESO is made, and vice versa.

Item 222 - After subsection 14(3B)

600. Item 222 amends section 14 to insert a new subsection 14(3BA). Specifically, Item 222 provides that a law enforcement officer may apply under subsection 14(3BA) for the issuance of a surveillance device warrant if the officer suspects on reasonable grounds that the use of the device to obtain information would be likely to assist in determining whether to make a PSO application.

601. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to an offender is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender's level of risk, which will inform the decision whether or not to apply for a PSO.

602. The use of a surveillance device authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

603. Paragraph 14(3BA)(a) provides that the law enforcement officer may only apply under subsection 14(3BA) if it is in relation to a person who is eligible for a PSO. This confines the use of the device to information gathering with regard to the HRTO regime.

604. Paragraph 14(3BA)(b) provides that the law enforcement officer may only apply under subsection 14(3BA) in relation to a person who is detained in custody in a prison. This is because once a person is released from custody in a prison, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person's compliance with the order will allow for the collection of information to be used in determining whether to make PSO application. As a result, an application for a surveillance device warrant under this subsection may only be made in relation to offenders who are detained in custody in a prison.

605. Paragraph 14(3BA)(c) provides that the officer must suspect on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence. The information which may inform a suspicion on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence will depend on the specific circumstances. It may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any other relevant information. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual.

606. Paragraph 14(3BA)(d) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

607. Paragraph 14(3BA)(e) provides that the officer must suspect on reasonable grounds that the use of the surveillance device to obtain information relating to the person would be likely to assist in determining whether to apply for a PSO. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk the offender will pose upon release is difficult to establish while they are still in custody. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

Items 223-226 - Subsection 14(3C)

608. Items 223-226 amend subsection 14(3C) to apply to ESOs and ISOs, and continue the subsection's application to control orders. Specifically, Items 224-226 amend subsection 14(3C) to establish the application process for a warrant in relation to a Part 5.3 supervisory order. A law enforcement officer (or person on their behalf) may apply for the issue of a warrant if a Part 5.3 supervisory order is in force and the officer suspects, on reasonable grounds, that the use of a surveillance device to obtain information relating to the subject of the order would be likely to substantially assist in achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

Item 227 - Subsection 14(4)

609. Item 227 makes a minor amendment to subsection 14(4) to refer to new subsection 13(3BA), which was inserted by Item 222.

Item 228-229 - Subsection 16(1)

610. Items 228 and 229 amend subsection 16(1) to apply to ESOs and ISOs, and continue the subsection's application to control orders. Specifically, Items 228 and 229 amend subsection 16(1) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

611. Subsection 16(1) establishes the factors that an eligible Judge or nominated AAT member must be satisfied of when determining whether to issue a surveillance device warrant.

612. Item 228 amends paragraph 16(1)(bc) to apply to PSOs. Specifically Item 228 inserts new paragraph 16(1)(bba) to provide that, where a warrant is sought to determine whether to apply for a PSO, an eligible Judge or AAT member may issue a surveillance device warrant only if satisfied that the conditions in paragraphs 14(3BA)(a), (b) and (d) are met, and that there are reasonable grounds for the suspicions founding the application for the warrant.

613. Item 228 amends paragraph 16(1)(bc) to apply to ESOs and ISOs. Specifically, Item 228 replaces paragraph 16(1)(bc) to provide that where a warrant is sought in relation to a Part 5.3 supervisory order that is in force in relation to a person, an eligible Judge or AAT member may issue a surveillance device warrant only if the order is in force in relation to the person, and if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.

Item 230-231 - Section 16

614. Items 230 and 231 amend section 16 to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Item 230 repeals paragraphs 16(2)(eb) to (g) and replaces them with paragraph (f), which streamlines this provision to apply to warrants relating to offences and child recovery orders. The content of the repealed provisions is covered in Item 231 in proposed subsection 16(4).

615. Item 231 inserts new subsections 16(3) and 16(4) to provide that when determining whether a surveillance device warrant sought to determine whether to apply for a PSO should be issued, the eligible Judge or AAT member must have regard to:

•

the likely value of the information sought to be obtained in determining whether to apply for a PSO, and

•

any previous application for a surveillance device warrant sought or issued to determine whether to apply for a PSO in relation to the person.

616. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender's level of risk, which will inform the decision whether or not to apply for a PSO.

617. The use of a surveillance device authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

618. With respect to surveillance device warrants sought to determine whether to apply for a PSO, there is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is to obtain information that will 'likely assist' in determining whether or not a PSO application should be made. Further, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

619. Item 231 extends at new subsection 16(4) the list of matters the eligible Judge or AAT member must have regard to at subsection 16(2) when determining whether to issue a surveillance device warrant sought in relation to an offender subject to a Part 5.3 supervisory order, including:

•

the likely value of the information sought to be obtained in achieving a Part 5.3 object or determining compliance with the relevant order

•

whether the use of the surveillance device in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy

•

the possibility that the person has contravened, is contravening, or will contravene, the order or a succeeding Part 5.3 supervisory order, and

•

any previous surveillance device warrant sought or issued on the basis of a Part 5.3 supervisory order that is or was in force in relation to the person.

620. The purpose of these additional matters is to ensure the eligible Judge or AAT member expressly considers the purpose of the warrant.

Item 232-234 - Section 17

621. Items 232-234 are consequential amendments to subsection 17(1) to reflect the amendment that control orders, ESOs and ISOs are captured within the expression of a 'Part 5.3 supervisory order'.

622. Section 17 sets the content requirements for a surveillance device warrant, which includes amongst other things, the name of the applicant and the kinds of surveillance devices authorised to be used under the warrant. This requirement ensures that the warrant clearly states its scope. If the surveillance device warrant is sought for determining whether to make a PSO application, it is not appropriate to list the type of PSO intended to be sought as it will be too early in the information gathering process to determine which PSO may be sought.

623. Item 234 inserts new subsection 17(1B) to ensure for the avoidance of doubt that a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in paragraph (1A)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order. It also notes that if there is no succeeding Part 5.3 supervisory order, the warrant must be revoked.

Item 235 - Subsection 19(4)

624. Item 235 is a consequential amendment to subsection 19(4) to reflect the amendment to subsection 16(2) and the new subsection 16(3) and (4). Item 235 amends subsection 19(4) to update references to the revised subsection numbers in section 16.

Item 236 - Subsection 20(2)

625. Item 236 is a consequential amendment to subsection 20(2) to reflect the amendment to subsections 21(2) to (3D). Item 236 amends subsection 20(2) to update references to revised subsection numbers in section 21.

Items 237-239 - Section 21

626. Items 237-239 amend section 21. Specifically, Item 237 seeks to simplify section 21 by setting out the circumstances in which the chief officer of a law enforcement agency is required to revoke a warrant under section 20 and take the necessary steps to ensure that the use of surveillance devices authorised by the warrant is discontinued. This amendment provides for circumstances where:

•

the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

•

if the warrant was sought for the purposes of an integrity operation-the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

•

if the warrant was sought on the basis of a Part 5.3 supervisory order being in force-where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

627. Items 237-239 will not extend section 21 to apply to warrants sought on the basis of determining whether to apply for a PSO. This is to ensure relevant information can continue to be gathered prior to the determination of the application. This aligns with the warrant's purpose of obtaining the most contemporary, relevant and admissible form of evidence to support the Court's consideration of the AFP Minister's application.

628. Item 237 amends section 21 to add a note that a control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa (see section 6D).

629. Item 239 seeks to simplify sections 21(5) and 21(6) by setting out the circumstances in which the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, is required to immediately notify the chief officer of a law enforcement agency to which the officer belongs or is seconded. This amendment provides for circumstances where:

•

the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

•

if the warrant was sought for the purposes of an integrity operation-the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

•

if the warrant was sought on the basis of a PSO being in force-where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

630. The person will be in many cases the officer to whom the warrant was issued under section 17 and who made the application under existing section 14. However, this may not always be the case as section 14 enables a person to apply for a warrant on behalf of the law enforcement officer. There may also be staffing and organisational changes during the period the warrant is in place. Item 239 recognises that there may be multiple people working on the execution of a particular warrant, by placing the obligation on the person deemed primarily responsible. This position has not been legislated because agencies frequently structure investigations differently.

Items 240-243 - Section 27A

631. Items 240-243 amend section 27A to apply to PSOs, and continue the section's application to control orders.

632. Specifically, Items 240-243 amend section 27A to allow a law enforcement officer to apply for a computer access warrant if it would assist in determining whether to apply for a PSO. Items 240-243 provides that a law enforcement officer may apply under subsection 27(5A) for the issuance of a computer access warrant if the officer suspects on reasonable grounds that the access to data would be likely to assist in determining whether to make a PSO application.

633. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the Minister is able to make a fully informed decision as whether to apply for a PSO. The availability of a warrant in this context will broaden the information available to the Minister to enable a more comprehensive understanding of the offender's level of risk of committing a serious Part 5.3 offence for the ultimate purpose of protecting the community.

634. The access to data authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

635. Paragraph 27A(5A)(a) provides that the law enforcement officer may only apply under subsection 27(5A) if it is in relation to a person who is eligible for a PSO. This confines the access to information gathering with regard to the HRTO regime.

636. Paragraph 27A(5A)(b) provides that the law enforcement officer may only apply under subsection 27A(5A) if it is in relation to a person who is detained in custody in a prison. This is because once a person is released from custody in a prison, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person's compliance with the order will allow for the collection of information to be used in determining whether to make PSO application.

637. Paragraph 27A(5A)(c) provides that the officer must suspect on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence. The information which may inform a suspicion on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence will depend on the specific circumstances. It may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any other relevant information. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual.

638. Paragraph 27A(5A)(d) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

639. Paragraph 27A(5A)(e) provides that the officer must suspect on reasonable grounds that the data held in the computer would likely assist in determining whether a PSO application should be made. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk of the offender at the beginning of the information gathering process is largely unknown. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

640. Further, Items 240-242 amend section 27A to require that where a warrant is sought in relation to a Part 5.3 supervisory order, a law enforcement officer (or another person on the officer's behalf) may apply for computer access where:

•

the order is in force in relation to a person, and

•

the officer suspects on reasonable grounds that access to data held in a computer to obtain information relating to the person would be likely to substantially assist in achieving a Part 5.3 object or determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

641. The language 'law enforcement officer, or another person on his or her behalf' has been used to allow support staff engaged in the usual course of an investigation to assist or provide services. They are not specified in order to reflect that arrangements may differ between agencies.

642. Subsections 27A(9), (10), (11), (13) and (14) provide for applications for computer access warrants to be made before an affidavit is prepared or sworn in some circumstances. In those cases, the applicant must send a duly sworn affidavit to a Judge or AAT member no later than 72 hours after the making of the application. This enables an application to be made in circumstances where immediate access is necessary.

643. Computer access warrants are sought for access to data held in the target computer. The definition of target computer is set out in subsection 27A(15). The concept of the 'target computer' is the same as in section 25A of the ASIO Act. The target computer may be either a particular computer, a computer on a particular premises, or a computer associated with, or used or likely to be used by a person. The computer does not need to be owned by the suspect. For example, it might be a computer in the suspect's house that he or she uses but is not owned by the suspect.

644. The definition of 'target computer' should be read in conjunction with the definition of 'computer' in the SD Act. While an application for a warrant must identify a target computer, this does not prevent access to data associated with the target computer on another computer (section 27E). The concept of the target computer is intended to ensure that if an individual has more than one relevant computer, only one warrant will be necessary. For example, there may be multiple computers on the premises and it may only be discovered upon entering that a particular computer is not connected to the anticipated computer system. With the variety of computers and electronic devices now commonly used, it is highly probable that a person may store data on a number of computers (for example, a laptop, a phone and a tablet).

Items 244-245 - Subsection 27C(1)

645. Items 244 and 245 amend subsection 27C(1) to apply to PSOs. Specifically, Items 244 and 245 amend subsection 27C(1) to provide for the conditions under which an eligible Judge or nominated AAT member may issue a computer access warrant. Items 244 to 245 reflect the amendments made in Items 240-242, which ensure that a law enforcement officer may only apply for a computer access warrant where certain conditions are met.

646. Items 244 and 245 amend subsection 27C(1) to require, in the case of a computer access warrant sought to determine whether to apply for a PSO, the person must be a terrorist offender, and consideration is being given, will be given, or is likely to be given, as to whether to apply for a PSO in relation to the person and the issuing authority must be satisfied:

•

the officer suspects on reasonable grounds that the person poses an unacceptable risk of committing a serious Part 5.3 offence, and

•

the officer suspects on reasonable grounds that access to data held in a computer (the target computer) to obtain information relating to the person would be likely to assist in determining whether to make the application.

647. Items 244 and 245 require, in the case of a computer access warrant sought in relation to a Part 5.3 supervisory order that is in force in relation to a person:

•

the order must be in force in relation to a person (with respect to section 6C), and

•

the issuing authority must be satisfied the officer suspects on reasonable grounds that access to data held in a computer (the target computer) to obtain information relating to the person would be likely to substantially assist in achieving a Part 5.3 object or determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

Items 246-247 - Section 27C

648. Items 246 and 247 amend section 27C to apply to PSOs, and continue the section's application to control orders.

649. Specifically, Item 247 inserts a new subsection 27C(3) to ensure an eligible Judge or AAT member must have regard to:

•

the likely value of the information sought to be obtained in determining whether to apply for a PSO, and

•

any previous application for a computer access warrant sought or issued to determine whether to apply for a PSO in relation to the person.

650. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender's level of risk, which will inform the decision whether or not to apply for a PSO.

651. The access to data authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

652. With respect to computer access warrants sought to determine whether to apply for a PSO, there is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether the access to data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is to obtain information that will 'likely assist' in determining whether or not a PSO application should be made. Further, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

653. Item 247 also inserts new subsection 27C(4) to extend the list of matters the eligible Judge or AAT member must have regard to at section 27C when determining whether to issue a computer access warrant sought in relation to an offender subject to a Part 5.3 supervisory order, including:

•

the likely value of the information sought to be obtained in achieving a Part 5.3 object or determining compliance with the relevant order

•

whether the access to data in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy

•

the possibility that the person has contravened, is contravening, or will contravene, the order or a succeeding Part 5.3 supervisory order, and

•

any previous computer access warrant sought or issued on the basis of a Part 5.3 supervisory order that is or was in force in relation to the person.

654. The purpose of these additional matters is to ensure the eligible Judge or AAT member expressly considers the purpose of the warrant.

Item 248 - Paragraph 27D(1)(a)

655. Item 248 is a consequential amendment to subsection 27D(1) to reflect the amendment to subsection 27C(2) and the new subsections 27(3) and (4). Specifically, Item 248 amends subsection 27D(1) to ensure a computer access warrant states that the eligible Judge or AAT member is satisfied of the requirements in issuing the warrant.

Item 249-250 - Section 27D

656. Item 249 is a consequential amendment to subsection 27D(2) to reflect the amendment that CDO, an IDO, an ESO and an ISO are captured within the definition of a PSO.

657. Item 249 amends subsection 27D(2) to set the content requirements for a computer access warrant, which includes amongst other things, the name of the applicant and the date the order was made. This requirement ensures that the warrant clearly states its scope. In the case of a computer access warrant being sought for determining whether to make a PSO application, it is not appropriate to list the type of PSO intended to be sought as it will be too early in the information gathering process to determine which PSO may be sought.

658. Item 250 inserts subsection 27D(3A) to clarify that a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in paragraph (3)(a) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order. However, if there is no succeeding Part 5.3 supervisory order, the warrant must be revoked.

Item 251 - Paragraph 27E(4)(e)

659. Item 251 amends paragraph 27E(4)(e) to apply to PSOs, and continue the paragraph's application to control orders. Specifically, Item 251 amends paragraph 27E(4)(e) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person. This is a clarifying provision that reiterates the thresholds in section 27A which must be met before a law enforcement officer may apply for a computer access warrant.

660. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies in warrants where a PSO is already in force and used for an investigatory purpose (i.e. determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the AFP Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk of the offender before release is largely unknown. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the threat to community safety posed by the offender if released into the community.

Item 252 - Subsection 27F(4)

661. Item 252 is a consequential amendment to subsection 27F(4) to reflect the amendment to subsection 27C(2) and the new subsections 27C(3) and (4).

Item 253 - Subsection 27G(2)

662. Item 253 is a consequential amendment to subsection 27G(2) to reflect the amendment to section 27H. Item 253 amends subsection 27G(2) to refer to revised subsection numbers in section 27H.

Item 254-256 - Section 27H

663. Items 254-256 amend section 27H. Specifically, Item 254 seeks to simplify subsection 27H(2) by setting out the circumstances in which the chief officer of a law enforcement agency is required to revoke a warrant and take the necessary steps to ensure that access to data authorised by the warrant is discontinued. This amendment provides for circumstances where:

•

the access to data under the warrant is no longer required for the purpose for which it was sought

•

if the warrant was sought for the purposes of an integrity operation-the access to data under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

•

if the warrant was sought on the basis of a Part 5.3 supervisory order being in force-where the access to data under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

664. Items 254-256 will not extend section 27H to apply to warrants sought on the basis of determining whether to apply for a PSO. This is to ensure relevant information can continue to be gathered prior to the determination of the application. This aligns with the warrant's purpose of obtaining the most contemporary, relevant and admissible form of evidence to support the Court's consideration of the Minister's application.

665. Item 254 inserts a note after subsection 27H(3) which clarifies that a control order is not a succeeding Part 5.3 supervisory order in relation to an ESO, and vice versa (see section 6D).

666. Item 256 seeks to simplify sections 27H(9) and 27H(10) by setting out the circumstances in which the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, is required to immediately notify the chief officer of a law enforcement agency to which the officer belongs or is seconded. This amendment provides for circumstances where:

•

the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought

•

if the warrant was sought for the purposes of an integrity operation-the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought or the integrity authority for the integrity operation is no longer in effect, or

•

if the warrant was sought on the basis of a PSO being in force-where the use of a surveillance device under the warrant is no longer required for the purpose for which it was sought, or the Part 5.3 supervisory order (or any succeeding Part 5.3 supervisory order) is no longer in force.

667. This person will be in many cases the officer to whom the warrant was issued under section 27C and who made the application under existing section 27A. However, this may not always be the case as section 27A enables a person to apply for a warrant on behalf of the law enforcement officer. There may also be staffing and organisational changes during the period the warrant is in place. Item 256 recognises that there may be multiple people working on the execution of a particular warrant, by placing the obligation on the person deemed primarily responsible. This position has not been legislated because agencies frequently structure investigations differently.

Items 257-259 - Subsection 37(4)

668. Items 257 and 259 are consequential amendments to subsection 37(4) to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'.

669. Item 258 is a consequential amendment to subsection 37(4) to reflect the fact that the purposes relevant for the use of optical surveillance devices are being streamlined to achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

Items 260-266 - Section 38

670. Items 260-266 are consequential amendments to section 38 to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 supervisory order'. Items 260-266 also amend section 38 to apply to ESOs and ISOs, and continue the section's application to control orders.

671. Specifically, Items 260-266 amend subsection 38(3A) to permit State and Territory law enforcement officers to use a surveillance device to listen to or record words spoken without a warrant in limited circumstances to obtain information relating to a person subject to Part 5.3 supervisory order if it broadly involves listening or recording words spoken by a person where:

•

the Part 5.3 supervisory order is in force in relation to a person, and

•

a State or Territory law enforcement officer is acting in the course of their duties and it is for the purpose of achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order has been or is being complied with.

672. Similarly, Items 264-266 amend subsection 38(6) to permit a person assisting a State or Territory law enforcement officer to use a surveillance device without a warrant to obtain information relating to a person subject to Part 5.3 supervisory order if it the use involves listening or recording words spoken by a person where:

•

the Part 5.3 supervisory order is in force in relation to a person, and

•

a person is assisting a State or Territory law enforcement officer who is acting in the course of their duties in relation to achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order has been or is being complied with.

Items 267-269 - Subsection 39(3B)

673. Items 267-269 amends subsection 39(3B) to apply to ESOs and ISOs, and continue the subsection's application to control orders. Specifically, Item 269 amends subsection 39(3B) to permit a law enforcement officer to use a tracking device, with the written permission of an appropriate authorising officer, for obtaining information relating to a person who is subject to a Part 5.3 supervisory order for the purpose of achieving a Part 5.3 object or determining compliance with a Part 5.3 supervisory order.

674. Subsection 39(3B) is subject to the limitation under existing subsection 39(8), which provides that an appropriate authorising officer must not give permission for the use, installation or retrieval of a tracking device if its use or retrieval involves entry on to premises without permission or interference with the interior of a vehicle without permission.

Item 270 - Paragraph 40(1)(db)

675. Item 270 amends paragraph 40(1)(db) to apply to ESOs and ISOs, and continue the paragraph's application to control orders. Specifically, Item 270 amends paragraph 40(1)(db) to require that, in relation to a tracking device authorisation given in relation to a person subject to a Part 5.3 supervisory order, the matters which are to be recorded must also include details identifying the name of the person, the date the Part 5.3 supervisory order was made, and the type of order.

Item 271 - Paragraph 45(5)(c)

676. Item 271 amends paragraph 45(5)(c). Specifically, Item 271 provides that protected information may be used under paragraph 45(5)(c) if it is for the purpose of a State or Territory relevant proceeding.

Item 272 - Paragraph 45(5)(j)

677. Item 272 amends subsection 45(5) to apply to PSOs and continue the subsection's application to control orders. Specifically, Item 272 expands the exempted uses of 'protected information' to include where it is necessary for:

•

the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (PSOs) of the Criminal Code

•

the making of a decision or application under a post-sentence detention law or a post-sentence supervision law in relation to a person, and

•

in respect to specified types of information - determining compliance with the relevant order (or any succeeding Part 5.3 supervisory order).

Item 273 - Paragraph 45(5)(k)

678. Item 273 is a consequential amendment to paragraph 45(5)(k) to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a 'Part 5.3 supervisory order'. Specifically, Item 273 amends paragraph 45(5)(k) to allow information obtained under a tracking device authorisation, or relating to a tracking device authorisation, or likely to enable the identification of a person, object or premises specified in a tracking device authorisation to be used, recorded, communicated, published or admitted into evidence to determine whether the Part 5.3 supervisory order is being complied with.

Item 274-275 -Section 45

679. Item 274 inserts a new subsection 45(5A). Specifically, Item 274 is an avoidance of doubt provision to ensure that the specific exemptions that authorise the use of information contained in paragraphs 45(5)(ia), (ib), (ic) and (j) are not used to read down the application of paragraph 45(5)(c).

680. It is intended that Item 274 prevents the reading down of paragraph 45(5)(c) so that protected information may be used in all circumstances relating to the following:

•

in subsequent civil and criminal proceedings, and

•

for information obtained in relation to a control order - for the purposes of an application for an ESO.

681. For example, information obtained in relation to an existing ESO or control order could be used for the purposes of determining whether to make a subsequent application for an ESO (for instance where the existing order is expiring), or to bring criminal proceedings against that offender.

682. Item 275 makes consequential amendments to subsection 45(6) as a result of amendments made in Item 272.

Item 276 - Subsection 45(9) (at the end of the definition of State or Territory relevant proceeding )

683. Item 276 amends subsection 45(9) to apply to post-sentence supervision laws. Specifically, Item 276 expands the definition of 'State or Territory relevant proceeding' to include post-sentence supervision laws and post-sentence detention laws.

Items 277-285 - Section 46A

684. Items 277-285 amend section 46A to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 277-285 amend section 46A to deal with the destruction of records or reports comprised of information obtained under a Part 5.3 supervisory order warrant issued, or a tracking device authorisation given, to determine whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with prior to the Part 5.3 supervisory order having come into force.

685. Items 277-285 amend section 46A to require information obtained prior to the Part 5.3 supervisory order having come into force-that is, prior to the person having been able to comply with the Part 5.3 supervisory order- to be destroyed as soon as practicable. However, the destruction requirement does not apply to records or reports that are likely to assist in connection with achieving a Part 5.3 object. This reflects the public interest in law enforcement agencies being permitted to use information in their possession to prevent acts of terrorism and hostile activity in foreign countries.

686. Paragraph 46A(2) displaces the operation of existing section 6C in relation to existing subsection 46A(1), which would otherwise deem a Part 5.3 supervisory order to be in force from the moment it is made.

Item 286 - Subparagraph 49(2)(b)(xb)

687. Item 286 is a consequential amendment to subparagraph 49(2)(b)(xb) to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a 'Part 5.3 supervisory order'. Specifically, Item 286 amends subparagraph 49(2)(b)(xb) to require the chief officer to report, in relation to each warrant issued on the basis of a Part 5.3 supervisory order, certain details. Item 286 amends subparagraph 49(2)(b)(xb) to ensure that law enforcement agencies are required to document and report the value of the use of surveillance devices.

Item 287 - Paragraph 49(2A)(a)

688. Item 287 amends paragraph 49(2A)(a) to apply to ESOs and ISOs, and continue the paragraph's application to control orders. Specifically, Item 287 amends paragraph 49(2A)(a) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

Item 288 - Paragraph 49(2B)(b)(ix)

689. Item 288 is a consequential amendment to subsection 49(2B) to reflect the amendment that a 'control order warrant' would not capture warrants issued on the basis of a control order, an ESO and an ISO. Specifically, Item 288 amends subsection 49(2B) to list the requirement of the report in the case of a computer access warrant or an emergency authorisation, for access to data held in a computer. The report must state whether the warrant or authorisation was executed, the name of the person primarily responsible for the execution, the name of each person involved in accessing data, the name of any person whose data was accessed, and the location at which the computer was located.

690. The reporting requirements recognise that accessing a person's data under a computer access warrant is privacy-intrusive, which requires proportionate safeguards.

Item 289 - Paragraph 49(2C)(a)

691. Item 289 amends paragraph 49(2C)(a) to apply to PSOs, and continue the paragraph's application to control orders. Specifically, Item 289 amends paragraph 49(2C)(a) to reflect that a warrant may be issued both to determine whether to apply for a PSO or when a Part 5.3 supervisory order is in force in relation to a person.

Item 290 - Section 49A

692. Item 290 repeals and replaces section 49A so that it applies to ESOs and ISOs, and to continue the section's application to control orders. Specifically, section 49A provides that within six months after a Part 5.3 warrant (as defined in subsection 6(1)) is issued, the chief officer of the agency must notify the Commonwealth Ombudsman that the warrant has been issued and must give the Commonwealth Ombudsman a copy of the warrant.

693. Item 290 amends paragraph 49A(2)(a) to provide that if any conditions in a Part 5.3 warrant are contravened the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable.

694. Item 290 amends paragraph 49A(2)(b) to provide that if an obligation to revoke a warrant (subsections 20(2) and 27G(2)) or prohibition to use, record, communicate or publish protected information (section 45) or obligation to keep information secured or destroyed (subsection 46(1)) is contravened, to the extent that they relate to a surveillance device warrant or computer access warrant issued on the basis of a Part 5.3 supervisory order, the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable.

695. Paragraph 49A(2)(c) provides that if an obligation to destroy a record (section 46A) is contravened, to the extent that they relate to a surveillance device warrant or computer access warrant issued on the basis of a Part 5.3 supervisory order, the chief officer of the relevant agency must notify the Commonwealth Ombudsman of that contravention as soon as practicable

696. Subsection 49A(3) provides that a failure to report to the Commonwealth Ombudsman on the issuing of a Part 5.3 warrant or about a contravention of such a warrant does not affect the validity of the warrant.

Items 291-293 - Section 50A

697. Items 291-293 amend section 50A to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 291-293 amend section 50A to allow the public reporting of Part 5.3 information to be deferred until a subsequent report in limited circumstances. Under existing subsection 50A(2), the chief officer of a Commonwealth agency or the chief officer of an eligible authority of a State or Territory must advise the Minister not to include the information in the Minister's report, which is tabled in Parliament, if the chief officer is satisfied that the information is 'Part 5.3 information' as defined in Item 215. This 'Part 5.3 information' is information that, if made public, could reasonably be expected to enable a reasonable person to conclude that a warrant is likely to be, or is not likely to be, in force in relation to a particular premises, object or person.

698. Pursuant to existing subsection 50A(3) the Minister can act on the advice of the chief officer of the agency and not include the information in the report. If this is the case, there remains a positive obligation on the chief officer of the agency to advise the Minister to include the information in the next report if the chief officer is satisfied that a reasonable person could no longer draw those inferences from the information.

699. The reason for section 50A is that control orders have historically been sought and made only rarely, with the effect that it is uncommon for there to be more than a limited number of control orders in force at any given time. If agencies were required to contemporaneously report on the number of warrants issued with respect to persons subject to control orders, and only a limited number of persons are subject to control orders at that time, annual reporting may effectively reveal that a particular person who is subject a control order is or is not also subject to covert surveillance. This equally applies in relation to ESOs and ISOs.

700. The ability of a person to determine, or to speculate with a degree of certainty, whether they are, or are not, likely subject to surveillance may be further enhanced if the relevant order contains particular conditions that are particularly amenable to monitoring by way of a surveillance device. This would undermine the purpose and effectiveness of such warrants, by enabling and incentivising persons to either adopt counter-measures to avoid or reduce the effectiveness of covert surveillance (if the person determines they are, or are likely to be, under surveillance), or to breach the terms of the order.

Item 294 - Subsection 50A(6)

701. Item 294 amends subsection 50A(6) to repeal the definition of 'control order information' substituting a definition for 'Part 5.3 information', which reflect that control orders, ESOs and ISOs are captured within the definition of a 'Part 5.3 supervisory order'.

Item 295 - Subparagraphs 53(2)(c)(iiic) and (iiid)

702. Item 295 amends subparagraphs 53(2)(c)(iiic) and (iiid) to apply to ESOs and ISOs, and continue the paragraph's application to control orders. Specifically, Item 295 amends subparagraphs 53(2)(c)(iiic) and (iiid) to consolidate the requirement contained in subparagraphs 53(2)(c)(iiic) and (iiid) into a single paragraph.

703. Section 53 requires the chief officer of a law enforcement agency to cause a register of warrants and emergency and tracking device authorisations sought by law enforcement officers of their agency to be kept. Subsection 53(2) specifies what must be included in the register in relation to surveillance device warrants.

Items 296-312 - sections 55, 61, 61A, 64A, 65A and 65B

704. Items 296-312 make various consequential amendments to sections 55, 61, 61A, 64A, 65A and 65B to reflect the amendment that control orders, ESOs and ISOs are captured within the definition of a 'Part 5.3 supervisory order' and that Part 5.3 warrants encapsulate ISOs, ESOs and control orders.

Telecommunications (Interception and Access) Act 1979

Overview

705. The TIA Act and other Commonwealth legislation confers a range of investigatory powers on law enforcement and other agencies. The Bill will amend the TIA Act to extend its applicability in relation to ESOs and ISOs. The Bill will allow agencies to apply for telecommunications services warrants, named person warrants and warrants for entry onto premises.

706. It is imperative that law enforcement agencies have adequate powers to monitor a person's compliance with the conditions of a Part 5.3 supervisory order. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected. Furthermore, the knowledge that law enforcement is able to use its powers to actively monitor compliance with an order provides a strong disincentive to a person to breach the conditions of their order. This enhances the effectiveness of the Part 5.3 supervisory order. The evidence obtained through monitoring will also assist in supporting relevant Court proceedings sought to more closely align the order with the person's evolving level of risk.

Items 313-323 - Subsection 5(1)

707. Items 313-323 amend subsection 5(1) to include, amend and repeal several definitions.

708. The definition of 'AFP Minister' is relevant to Item 362 (section 46A(2C)) and provides that it has the same meaning as in section 100.1 of the Criminal Code.

709. The existing definitions of 'control order warrant' and 'control order warrant agency' are repealed to reflect that a control order is now contained within the meaning of a Part 5.3 supervisory order.

710. The definitions of 'extended supervision order', 'interim supervision order', 'post-sentence order', 'serious part 5.3 offence' and 'terrorist offender' provide that they each have the same meaning as in Part 5.3 of the Criminal Code.

711. The definition of 'detained in custody in a prison' has the same meaning as provided in section 100.1 of the Criminal Code.

712. The definition of 'Part 5.3 object' reflects the objects contained in Divisions 104 and 105A of the Criminal Code.

•

In relation to a control order, Part 5,3 object means any of the following:

o

the protection of the public from a terrorist act

o

the prevention of the provision of support for, or the facilitation of, a terrorist act, and

o

the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country.

•

In relation to ESOs and ISOs, Part 5.3 object means the protection of the community from the unacceptable risk of an offender committing a serious Part 5.3 offence.

713. The definition of 'Part 5.3 supervisory order' provides that it means either a control order or an ESO or ISO.

714. The definition of 'Part 5.3 warrant' provides that it means a warrant issued under either under subsection 46(4) or (7) or 46A(2A) or (2C); or under section 48 in the circumstances mentioned in subsection 46(4) or (7).

715. The definition of 'Part 5.3 warrant agency' provides that it means a Commonwealth agency or eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 5.3 warrants (see section 38A). Items 316-320 amend the definition of 'permitted purpose' to apply to ESOs and ISOs as well as State and Territory post-sentence detention orders or post-sentence supervision orders.

716. The definition of 'post-sentence supervision law' provides that it includes relevant State and Territory supervision order schemes under Part 2 of the Terrorism (High Risk Offenders) Act 2017 (NSW), Parts 3 and 4 of the Serious Offenders Act 2018 (Vic) and Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence supervision law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

717. The definition of 'post-sentence detention law' includes relevant State and Territory detention order schemes under Part 3 of the Terrorism (High Risk Offenders) Act 2017 (NSW) Parts 5 and 6 of the Serious Offenders Act 2018 (Vic), Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The definition of post-sentence detention law also includes a law prescribed by the regulations, which will enable the capturing of relevant laws as legislated.

718. Items 322 and 323 repeal the existing definition of 'succeeding control order' and replace it with the definition of a 'succeeding Part 5.3 supervisory order' to reflect that a control order is now contained within the meaning of a Part 5.3 supervisory order.

Item 324-325 - Subsection 5B(1)

719. Item 324 amends subsection 5B(1) to apply to ESOs and ISOs. Specifically, Item 324 amends subsection 5B(1) to allow agencies to use lawfully intercepted information in proceedings under or relating to Division 104 and 105A. This includes related proceedings, such as appeal proceedings.

720. Item 324 also amends subsection 5B(1) to allow agencies to use lawfully intercepted information in proceedings under or a proceeding relating to a matter arising under a State or Territory post-sentence supervision law or preventative detention order law.

721. Item 325 repeals the existing paragraph 5B(1)(bd) which is captured in the provisions created by Item 324.

Item 326 - After subparagraph 5D(1)(e)(v)

722. Item 326 amends the definition of 'serious offence' given by section 5D to include section 105A.18A of the Criminal Code (offences relating to ESOs and ISOs) which is relevant to the concept of 'relevant proceedings' in section 6L.

Item 327 - Paragraphs 6H(a) and (b)

723. Item 327 is a consequential amendment to paragraphs 6H(a) and (b) to reflect the amendments made in section 46. Item 327 amends paragraphs 6H(a) and (b) to update references to revised subsection numbers in section 46.

Item 328 - Sections 6T and 6U

724. Item 328 amends section 6T to apply to ESOs and ISOs.

725. Item 328 also amends reference to detained in custody, to be detained in custody in a prison. Subsection 6T(a) provides that a supervisory order is taken to be in force if the order is a control order that has been made but has not yet come into force because it has not been served on the person or the person is detained in custody in a prison.

726. Specifically, Item 328 amends section 6T to allow an application for a Part 5.3 warrant to be made and a warrant to be issued prior to the Part 5.3 supervisory order having entered into force under Division 104 or 105A of the Criminal Code. This is necessary to ensure:

•

the device may be installed covertly to avoid any risks associated with the person witnessing the installation process, and

•

the device is ready for use as soon as the order comes into force.

727. Item 328 amends section 6U to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically Item 328 amends section 6U to provide that a successive Part 5.3 supervisory order made in relation to the same person is termed a 'succeeding Part 5.3 supervisory order'. Extending the concept of a succeeding Part 5.3 supervisory order reflects the fact that, under 105A of the Criminal Code, an ESO may be made immediately after an ISO has been in force, and further that there is no limit on the number of ESOs that can be made in relation to an offender. 'Succeeding Part 5.3 supervisory order' is used throughout the provisions to ensure that Part 5.3 supervisory order warrants may be issued or given, and information obtained via the use of those powers may be dealt with, in connection with any one or more of that potential series of orders, rather than being limited to the specific order that is in force at a given point in time.

Items 329-335 - Sections 7, 34 and 38A

728. Items 329-335 are consequential amendments to sections 7, 34 and 38A to reflect the amendment made at Item 232 that control orders, ESOs and ISOs are captured within these types of new warrants, defined as 'Part 5.3 warrant'.

Item 336-339 - Sections 44A and 45

729. Items 336-339 of the Bill are consequential amendments to reflect the amendments in Items 351 and 362.

Item 340-350 - Section 46

730. Items 340-350 amend section 46 to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 343-350 amend section 46 to permit the issue of a telecommunications service warrant relating to persons subject to a Part 5.3 supervisory order. Item 340 amends the heading of subsection 46(4) to 'Part 5.3 supervisory order warrant'.

731. Item 341 amends subsection 46(4) to ensure that when considering an application for a Part 5.3 supervisory order warrant in relation to a telecommunications service under subsection 46(4), the Judge or nominated AAT member must be satisfied that:

•

Division 3 has been complied with in relation to the application

•

in the case of a telephone application-because of urgent circumstances, it was necessary to make the application by telephone, and

•

there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service.

732. Item 343 amends paragraph 46(4)(e) to ensure when issuing a Part 5.3 supervisory order warrant, the Judge or nominated AAT member must be satisfied that information that would be likely to be obtained by intercepting under a warrant communications made to or from the telecommunications service would be likely to substantially assist in connection with achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

733. Item 345 amends subsection 46(5) to ensure the Judge or nominated AAT member must be satisfied that he or she should issue the warrant, having regard to the following matters in subsection 46(5):

•

how much the privacy of any person or persons would be likely to be interfered with by intercepting communications under a warrant

•

how much the information obtained under the warrant would be likely to assist in connection with achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with

•

to what extent other methods have been used by, or are available to, the agency

•

how much the use of these alternative methods would be likely to assist the agency

•

how much the use of these alternative methods would be likely to prejudice, whether because of delay or any other reason, achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with

•

whether intercepting under a warrant communications made to or from the service would be the method likely to have the least interference with any person's privacy

•

the possibility that the person in relation to whom the Part 5.3 supervisory order is in force has already engaged in this activity

•

in relation to an application by an interception agency of Victoria-any submissions made by the Victorian PIM, and

•

in relation to an application by an interception agency of Queensland-any submissions made by the Queensland PIM.

734. The underlying purpose of a Part 5.3 supervisory order and a Part 5.3 warrant is to prevent the risks posed to the community of a person of counter-terrorism interest engaging in terrorism-related activities. The requirement that the issuing authority have regard to the possibility of the person engaging in such conduct or breaching the order is designed to ensure that the issuing authority has regard to evidence of both a specific risk or propensity of the person engaging in such conduct or breaching the order, as well as evidence that there is a general risk or propensity that the person will engage in such conduct or breach the order. In making this decision, the Judge or nominated AAT member may consider a range of information, potentially including:

•

whether there is specific or general evidence indicating that there is a possibility that the person may engage in the conduct the order is intended to prevent, or may breach the order

•

evidence pre-dating the issuing or service of the order, including the grounds on which the order was issued, that may indicate such a possibility, notwithstanding the fact that the order has subsequently been issued and/or served, and

•

evidence about whether other persons subject to orders have engaged in conduct the order is intended to prevent, or have breached their order, to the extent such evidence may indicate whether there is a possibility the person in question may engage in such conduct or breach the extant order.

735. In essence, these cumulative factors require the issuing authority to undertake a proportionality test taking into consideration privacy concerns and the extent to which interception would assist in preventing terrorism and related acts or monitoring compliance with an order.

736. Item 350 amends subsection 46(6) to ensure that when a Part 5.3 supervisory order is in place, the issuing authority must not issue a telecommunications service warrant unless he or she is satisfied that:

•

the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the order relates, or

•

interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.

Item 351 - At the end of section 46

737. Item 351 amends section 46 to include new subsections (7) and (8) to enable a Judge or AAT member to consider issuing a warrant in relation to a telecommunications service for the purpose of determining whether to apply for a PSO.

738. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender's level of risk, which will inform the decision whether or not to apply for a PSO.

739. The use of information authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody in a prison and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

740. Paragraph 46(7)(a) requires that Division 3 must been complied with in relation to the application.

741. Paragraph 46(7)(b) requires that in the case of a telephone application-because of urgent circumstances, it was necessary to make the application by telephone.

742. Paragraph 46(7)(c) requires that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service.

743. Paragraph 46(7)(d) requires that the person is a terrorist offender in relation to whom an application for a PSO could be made.

744. Paragraph 46(7)(e) requires that the person is detained in custody in a prison. This is because once a person is released from custody in a prison, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person's compliance with the order will allow for the collection of information to be used in determining whether to make PSO application.

745. Paragraph 46(7)(f) provides that the Judge or AAT member must be satisfied that there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual. For instance, it may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any relevant other information received previously or since, as a basis for referring to the types of serious Part 5.3 offences of which the offender is suspected of being at risk of committing upon release.

746. Paragraph 46(7)(g) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

747. Paragraph 46(7)(h) requires that the information that would likely be obtained would be likely to assist in connection with determining whether to apply for a PSO. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies for warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk of the offender before release is likely to be largely unknown due to periods of confinement. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the threat to community safety posed by the offender if released into the community.

748. Paragraph 46(7)(i) provides that having regard to a number of public interest matters in subsection 46(8), the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted.

749. The public interests matters that the Judge or eligible AAT member must have regard to in section 46(8) include:

•

how much the privacy of any person or persons would be likely to be interfered with by intercepting communications

•

how much the information would be likely to assist in connection with determining whether to make the application

•

to what extent methods of facilitating an assessment of the risk of the person committing a serious Part 5.3 offence that do not involve so intercepting communications have been used by, or are available to, the agency

•

how much the use of such methods would be likely to assist in determining whether to make the application

•

how much the use of such methods would be likely to prejudice determining whether to the make the application, whether because of delay or for any other reason

•

in relation to an application by an interception agency of Victoria-any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member, and

•

in relation to an application by an interception agency of Queensland-any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

750. In essence, these cumulative factors require the issuing authority to undertake a proportionality test taking into consideration privacy concerns and the extent to which interception would assist in the decision to determine whether to make a PSO application. Even after this proportionality test, the Judge or nominated AAT member retains the discretion to issue the warrant. There is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether intercepting communications in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is to obtain information that will 'likely assist' in determining whether or not a PSO application should be made. However as above, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

Items 352-362 - Section 46A

751. Items 352-362 amend section 46A to apply to ESOs and ISOs, and continue the section's application to control orders. Items 351-362 will enable all telecommunications services used or likely to be used by the person named in the warrant to be intercepted. Items 352-361 will permit the issue of a named person warrant in relation to a person subject to a Part 5.3 supervisory order. Item 362 introduces section 46A(2C) and (2D) to permit the issue of a named person warrant in determining whether or not to make an application for a PSO.

752. Items 352-356 amend subsection 46(2A) to ensure that in considering an application for a Part 5.3 supervisory order warrant, the Judge or nominated AAT member must be satisfied that information that would be likely to be obtained by intercepting communications made to or from a telecommunications service or telecommunications device would be likely to substantially assist in connection with achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

753. Item 357 amends subsection 46(2B) to ensure that the Judge or nominated AAT member must be satisfied that he or she should issue the warrant, having regard to the following matters:

•

how much the privacy of any person or persons would be likely to be interfered with by intercepting communications under a warrant

•

how much the information obtained under the warrant would be likely to assist in connection with achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with

•

to what extent other methods have been used by, or are available to the agency

•

how much the use of these alternative methods would be likely to assist the agency

•

how much the use of these alternative methods would be likely to prejudice, whether because of delay or any other reason, achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with

•

whether intercepting under a warrant communications made to or from the service would be the method likely to have the least interference with any person's privacy

•

the possibility that the person in relation to whom the Part 5.3 supervisory order is in force has already engaged in this activity

•

in relation to an application by an interception agency of Victoria-any submissions made by the Victorian PIM, and

•

in relation to an application by an interception agency of Queensland-any submissions made by the Queensland PIM.

754. The underlying purpose of a Part 5.3 supervisory order and a Part 5.3 supervisory order warrant is to prevent the risks posed to the community of a person of counter-terrorism interest engaging in terrorism-related activities. The requirement that the issuing authority have regard to the possibility of the person engaging in such conduct or breaching the order is designed to ensure that the issuing authority has regard to evidence of both a specific risk or propensity of the person engaging in such conduct or breaching the order, as well as evidence that there is a general risk or propensity that the person will engage in such conduct or breach the order. In making this decision, the Judge or nominated AAT member may consider a range of information, potentially including:

•

whether there is specific or general evidence indicating that there is a possibility that the person may engage in the conduct the order is intended to prevent, or may breach the order

•

evidence pre-dating the issuing or service of the order, including the grounds on which the order was issued, that may indicate such a possibility, notwithstanding the fact that the order has subsequently been issued and/or served, and

•

evidence about whether other persons subject to orders have engaged in conduct the order is intended to prevent, or have breached their order, to the extent such evidence may indicate whether there is a possibility the person in question may engage in such conduct or breach the extant order.

755. In essence, these cumulative factors require the issuing authority to undertake a proportionality test taking into consideration privacy concerns and the extent to which interception would assist in preventing terrorism and related acts or monitoring compliance with an order.

756. Item 357 amends subsection 46A(2B) to detail a list of competing interests and considerations that issuing authorities must have regard to when determining whether they are satisfied that a warrant should be issued. This requirement maintains consistency between the tests for a Part 5.3 supervisory order warrant and other interception warrants.

757. Item 362 amends section 46A to include new subsections (2C) and (2D) to enable a Judge or AAT member to consider issuing a warrant in relation to all telecommunications services used or likely to be used by the person named in the warrant to be intercepted for the purpose of enabling the AFP Minister to determine whether to apply for a PSO.

758. The underlying purpose of a warrant sought to determine whether to apply for a PSO in relation to a person is to ensure the AFP Minister is provided contemporary evidence to assist in understanding the offender's level of risk, which will inform the decision whether or not to apply for a PSO.

759. The interception authorised by this warrant would be in relation to a person who is in custody. The information obtained while the person is in custody in a prison and serving a sentence is likely to be more contemporary, relevant and in admissible form, as compared to other types of information. As a safeguard there are a number of additional elements the Judge or AAT member must expressly consider in relation to the purpose.

760. Paragraph 46A(2C)(a) requires that Division 3 must been complied with in relation to the application.

761. Paragraph 46A(2C)(b) requires that in the case of a telephone application-because of urgent circumstances, it was necessary to make the application by telephone.

762. Paragraph 46A(2C)(c) provides that there must reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service.

763. Paragraph 46A(2C)(d) requires that the person is a terrorist offender in relation to whom an application for a PSO could be made.

764. Paragraph 46A(2C)(e) requires that the person is detained in custody in a prison. This is because once a person is released from custody in a prison, the person would be under either a Part 5.3 supervisory order or in the community not subject to any order. Where a person is under a Part 5.3 supervisory order, a warrant issued to monitor the person's compliance with the order will allow for the collection of information to be used in determining whether to make PSO application.

765. Paragraph 46A(2C)(f) provides that the Judge or AAT member must suspect on reasonable grounds that there is an appreciable risk of the person committing a serious Part 5.3 offence. This threshold is appropriately connected to the risk posed by the particular offender, rather than allowing the warrant to be available regardless of whether there is any suspicion about the apprehended conduct of a particular individual. For instance, it may be that the officer could rely on the established propensity of the offender to engage in certain types of conduct, by reference to the earlier conviction and to any relevant other information received previously or since, as a basis for referring to the types of serious Part 5.3 offences of which the offender is suspected of being at risk of committing upon release.

766. Paragraph 46A(2C)(g) requires that consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister) as to whether to apply for a PSO in relation to the person. This ensures that a warrant to start an information gathering process cannot be sought in respect of an offender who will not be considered for a PSO.

767. Paragraph 46A(2C)(h) requires that the information likely to be obtained would be likely to assist in connection with determining whether to apply for a PSO. The threshold 'likely to assist' is appropriately lower than the threshold 'substantially assist' which applies in warrants where a PSO is already in force and is used for an investigatory purpose (ie determining whether an order is being complied with). This is because:

•

there will be a lower level of certainty as to how valuable the information obtained would be at the early stages of information gathering to put forward to the Minister to support a determination as to whether or not to make a PSO application, and

•

the level of risk of the offender before their release. It is vital that the offender's level of risk to the community is comprehensively understood to ensure that the type of order (if any) that is ultimately applied for by the AFP Minister is appropriately adapted and proportionate to the risk posed by the offender if released into the community.

768. Paragraph 46A(2C)(i) provides that having regard to a number of public interest matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted.

769. The public interest matters in subsection 46A(2D) that the Judge or eligible AAT member must have regard to include:

•

how much the privacy of any person or persons would be likely to be interfered with by intercepting communications

•

how much the information would be likely to assist in connection with determining whether to make the application

•

to what extent methods of facilitating an assessment of whether to apply for a PSO that do not involve so intercepting communications have been used by, or are available to, the agency

•

how much the use of such methods would be likely to assist in determining whether to make the application

•

how much the use of such methods would be likely to prejudice determining whether to the make the application, whether because of delay or for any other reason

•

in relation to an application by an interception agency of Victoria-any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member, and

•

in relation to an application by an interception agency of Queensland-any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

770. In essence, these cumulative factors require the issuing authority to undertake a proportionality test taking into consideration privacy concerns and the extent to which interception would assist in the decision to determine whether to make a PSO application. Even after this proportionality test, the Judge or nominated AAT member retains the discretion to issue the warrant. There is no requirement, unlike for warrants sought in a case where a Part 5.3 supervisory order is in force in relation to a person, for a Judge or AAT member to consider whether the use of intercepting communications in accordance with the warrant would be the means of obtaining the evidence or information sought to be obtained that is likely to have the least interference with any person's privacy. This is appropriate and consistent with the threshold and intended outcome of this measure - that is, to obtain information that will 'likely assist' in determining whether or not a PSO application should be made. However, as above, any privacy considerations are balanced appropriately as the Judge or AAT member has discretion to consider the extent to which the privacy of any person is likely to be affected.

Item 363-369 - Sections 48 and 49

771. Items 363-369 are consequential amendments to subsection 48(1) and section 49 to reflect the introduction of ISOs and ESOs within the new definition of 'Part 5.3 supervisory order' and 'Part 5.3 warrant'.

Item 370 - Section 49

772. Item 370 amends section 49 to include new subsection (9) with respect to form and content specific to a warrant issued to determine whether to make an application for a PSO in relation to a person. The order must state that the order is issued on that basis and specify the name of the person.

Item 371 - Subsection 57(6)

773. Item 371 are consequential amendments to section 57 to reflect the amendment made at Item 315 that control orders, ESOs and ISOs are captured within the definition of a 'Part 5.3 supervisory order'.

Item 372 - Section 59B

774. Item 372 amends section 59B to apply to ESOs and ISOs. Item 372 amends section 59B to provide that agencies must notify the Commonwealth Ombudsman of the issuing of a Part 5.3 warrant and of any breaches of the requirements of the regime.

775. Item 372 imposes consistent notification obligations on all interception agencies, on the basis that if an agency has the ability to obtain a Part 5.3 warrant, then the agency should be subject to the same oversight and accountability requirements that are currently provided for with regard to control orders.

776. Consistent with existing provisions, Item 372 retains that the failure to comply with the section does not affect the validity of the warrant.

Items 373-375 - Paragraph 65A(2)(b)

777. Items 373-375 amend section 65A to apply to PSOs, and continue the section's application to control orders. Specifically, Item 373 amends section 65A to allow an employee of a carrier to communicate lawfully intercepted information and interception warrant information for purposes connected with the investigation by an agency of a serious offence and for purposes connected with achieving a Part 5.3 object or determining whether a Part 5.3 supervisory order has been, or is being, complied with.

778. Items 374 and 375 amend section 65A to allow an employee of a carrier to communicate lawfully intercepted information and interception warrant information for purposes connected to the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter, arising under Division 104 or Division 105A of the Criminal Code, or the relevant State and Territory post-sentence detention law or a post-sentence supervision law scheme.

Item 376- Paragraph 67(1C)(b)

779. Item 376 amends section 67 to apply to PSOs, and continue the section's application to control orders. Specifically, Item 376 ensure that lawfully intercepted information obtained under a Part 5.3 supervisory order warrant can be used, communicated or recorded for purposes connected with monitoring compliance with the order and associated purposes.

Items 377-379 - Section 79AA (heading)

780. Items 377-379 of the Bill amend section 79AA to apply to ESOs and ISOs, and continue the section's application to control orders. Specifically, Items 377-379 provide that information obtained under a warrant relating to a Part 5.3 supervisory order that was issued prior to the order beginning must be destroyed if the sole purpose, or one of the purposes, of issuing the warrant was to determine whether the person has been, or is, complying with the order (or any succeeding Part 5.3 supervisory order). This destruction requirement applies unless the chief officer is satisfied that the information is likely to assist in connection with achieving a Part 5.3 object.

Items 380-386 - Sections 81A, 81C, 83, 85A and 103B

781. Items 380-386 are consequential amendments to sections 81A, 81C, 83, 85A and 103B to replace references to 'control order' with references to 'Part 5.3', to reflect that a control order, an ESO and an ISO are captured within the definition of a 'Part 5.3 warrant'.

Items 387-389 - Subsection 103B(6)

782. Items 387-388 amend subsection 103B(6) to replace the definition of 'control order information' with a definition of 'Part 5.3 information' to reflect that the provisions creating 'control order warrants' have been amended to include ESOs and ISOs, and are referred to as Part 5.3 warrants.

Item 390 - Sections 139B and 139C

783. Items 390 amends section 139B to ensure that lawfully accessed information can be used, communicated or recorded for any purpose connected with:

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the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under Division 104 (control orders) of the Criminal Code

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the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under Division 105A (PSOs) of the Criminal Code including any decision whether to make, vary or review a PSO in relation to the person, or

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a decision whether or not to apply for or make any other application for an order under a post-sentence detention law or a post-sentence supervision law in relation to the person.

784. This amendment to the dealing provisions of the stored communications regime in the Act is necessary because, under a telecommunications interception warrant, agencies are able to lawfully access stored communications. Accordingly, this amendment allows agencies to use, communicate or record this information in relation to PSOs.

785. Item 390 also repeals section 139C, which is captured in the provisions created by this Item.

Items 391-392 - Sections 142 and 150

786. Items 391 and 392 are consequential amendments to sections 142 and 150 to reflect the amendments contained at Item 390.

Part 3 - Other consequential amendments

Crimes Act 1914

Item 393 - Subsection 16F(1) (note)

787. Item 393 is a consequential amendment to the note to subsection 16F(1) to reflect that Division 105A of the Criminal Code will contain ESOs and ISOs. Specifically, a court that is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1)(a) of the Criminal Code must warn the person about CDOs and ESOs.

Telecommunications (Interception and Access) Act 1979

Items 394-397 - Sections 180D, 181B, 182 and 182B

788. Items 394-397 are consequential amendments to sections 180D, 181B, 182 and 182B to reflect that Division 105A of the Criminal Code will contain ESOs and ISOs.

Schedule 2 - Contingent amendments

Telecommunications (Interception and Access) Act 1979

Overview

789. Schedule 2 of the Bill includes amendments to the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill). The purpose of these amendments is to extend the application of international production orders that may be obtained under Part 3 of Item 43 of the IPO Bill (international production orders relating to control orders) to also include ESOs and ISOs. These will be referred to as international production orders relating to Part 5.3 supervisory orders.

790. Unlike the domestic framework, the international production orders framework will have three different orders (interception, access to stored communications, and access to telecommunications data) for monitoring Part 5.3 supervisory orders. Ordinarily, the domestic framework under the TIA Act permits a relevant control order warrant agency to obtain stored communications or telecommunications data under an interception warrant framework. Having a range of international production orders was required to ensure there was an international production order framework that was targeted enough to allow for flexibility in working with foreign legal frameworks and allow for targeted orders on particular types of communications data that may be required by those frameworks.

Extending the scope of the international production order framework

791. Increasingly those involved in planning and preparatory acts for terrorism and hostile activity use online communications platforms operated from foreign countries. Frequently, this information is stored internationally, outside the direct reach of Australian legal process (unless mutual legal assistance and other international crime cooperation is undertaken). To ensure appropriate Australian law enforcement agencies and ASIO have access to effective and efficient access to combat serious crime, including terrorism, the IPO Bill introduced an international production order regime to facilitate Australia entering into cross border access to data agreements with foreign countries to ensure that timely access.

792. Schedule 2 ensures that upon passage of the IPO Bill, the proposed international production order relating to control orders will extend to monitoring ESOs and ISOs. This will ensure that Part 5.3 warrant agencies have all monitoring powers available for control orders when monitoring compliance with Part 5.3 supervisory orders. Without sufficient powers to monitor compliance, community safety may be put at risk if the person does not choose to comply with the conditions of the order and breaches go undetected.

Items 1-83

793. The IPO Bill introduced an international production order relating to control orders. Noting the proposed new supervisory orders as part of this Bill, control orders, ESOs and ISOs will be collectively covered under a single international production order referred to as an 'international production order relating to Part 5.3 supervisory order'.

794. In extending the international production order relating to control orders to other supervision orders a number of consequential amendments are required to facilitate that change, including:

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repealing the lengthy control order provisions that go to the purposes for which a control order warrant can be sought and replacing them with references to 'Part 5.3 objects' and monitoring compliance with Part 5.3 supervisory orders, and

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updating the agency and order collective terminology to reflect a broader international production order to a 'Part 5.3 IPO agency' to mean a 'Part 5.3 warrant agency' as defined in section 5(1) of the TIA Act.

795. Fundamentally, the IPO thresholds, requirements, and matters a relevant decision maker must take into account when assessing the application for an international production order relating to a control order will remain the same and similarly apply to Part 5.3 supervisory orders within the international production order framework.

Comprehensive oversight, reporting and record keeping framework

Item 84-86

796. The international production order regime has a comprehensive oversight, reporting and record keeping framework. Key aspects of this framework for these orders will be:

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clear record keeping requirements for all Part 5.3 IPO agencies utilising the framework (Part 9)

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oversight by the Commonwealth Ombudsman for international production orders (Part 10), and

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requirements to notify and provide a copy of the order to the Commonwealth Ombudsman within 3 months of an international production order relating to Part 5.3 supervisory orders being issued (clause 81).

797. Items 84-86 extend the requirement to notify the Ombudsman in relation to international production orders relating to Part 5.3 supervisory orders. Sub-clause 81(3) of the IPO Bill seeks to clarify that if an agency fails to comply with the administrative requirements in sub-clauses (1) or (2), the validity of the international production order remains unaffected. This prevents perverse outcomes eventuating, for instance the inability to obtain information relevant to preventing a terrorist attack or subsequent prosecution relating to that potential attack. However, Part 5.3 IPO agencies will still be accountable and failure to comply with obligations may result in the investigation and public reporting on agency practices.

Item 87

798. Clause 158 of the IPO Bill places an obligation on the chief officer of an agency to revoke an international production order if satisfied that the grounds on which the order was issued have ceased to exist. Sub-clause (3) clarifies the grounds on which an order was issued under Part 3 of the IPO Bill cease to exist where the Part 5.3 supervisory order, or any succeeding supervisory order is no longer in force.

799. This mechanism, reflected through Item 87, is designed to remove any doubt about the status of an international production order when the grounds for issuing an order no longer exist and the time at which the order ceased to be in force. It will also serve to protect privacy by clearly indicating to the agency, the Australian Designated Authority and the designated communications provider, that the order has ceased to be in force.

Items 88-98

800. Items 88-98 ensure the reporting and record-keeping requirements appropriately apply to Part 5.3 supervisory orders, noting that ESOs, ISOs and control orders can be subject to covert investigatory powers such as those under the TIA Act.

Disclosure and use of protected information framework

Items 99-101

801. Items 99-101 ensure information obtained in accordance with an international production order can be used in matters relating to functions, duties and powers in terms of Part 5.3 supervisory orders. The amendments also enable information obtained in accordance with an international production order to be used for either control orders or PSOs.

Items 102-103

802. Items 102 and 103 of the Bill ensure that a Part 5.3 IPO agency will be able to utilise the evidentiary certificate provisions under the IPO Bill.

Items 104-105

803. Items 104 and 105 ensure that a Part 5.3 IPO agency can certify copies of an international production order relating to Part 5.3 supervisory orders for the purpose of it being received in evidence, in a proceeding by way of a prosecution of a Part 5.3 offence and any proceedings relating to Part 5.3 supervisory orders, as if it were the original international production order.