Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 104 - Control orders  

Subdivision B - Making an interim control order  

SECTION 104.5   Terms of an interim control order  

(1)  
If the issuing court makes the interim control order, the order must:


(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d) ; and


(b) specify the name of the person to whom the order relates; and


(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and


(d) state that the order does not begin to be in force until:


(i) it is served personally on the person; and

(ii) if the person is detained in custody - the person is released from custody; and


(e) specify a day on which the person may attend the court for the court to:


(i) confirm (with or without variation) the interim control order; or

(ii) declare the interim control order to be void; or

(iii) revoke the interim control order; and


(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and


(g) state that the person ' s lawyer may attend a specified place in order to obtain a copy of the interim control order; and


(h) set out a summary of the grounds on which the order is made.

Note 1:

An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12 ).

Note 2:

If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28 ).

(1A)  


The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 7 days, after the order is made.

(1B)  
In specifying a day for the purposes of paragraph (1)(e), the issuing court must take into account:


(a) that the persons mentioned in subsection 104.14(1) may need to prepare in order to adduce evidence or make submissions to the court in relation to the confirmation of the order; and


(aa) if the person to whom the order relates is detained in custody - any other matter relating to the person ' s detention that the court considers relevant; and


(b) any other matter the court considers relevant.

(1C)  
To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1)(e).

(2)  
Paragraph (1)(f) does not prevent the making of successive control orders in relation to the same person.

(2AA)  
To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.

Note:

However, if a person is detained in custody, and a control order is made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph (1)(d)).

(2A)  
To avoid doubt, paragraph (1)(h) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).

(3)   Obligations, prohibitions and restrictions.  

The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:


(a) a prohibition or restriction on the person being as specified areas or places;


(b) a prohibition or restriction on the person leaving Australia;


(c) a requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours;


(d) a requirement that the person wear a tracking device;


(e) a prohibition or restriction on the person communicating or associating with specified individuals;


(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);


(g) a prohibition or restriction on the person possessing or using specified articles or substances;


(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);


(i) a requirement that the person report to specified persons at specified times and places;


(j) a requirement that the person allow himself or herself to be photographed;


(k) a requirement that the person allow impressions of his or her fingerprints to be taken;


(l) a requirement that the person participate in specified counselling or education.

Note:

Restrictions apply to the use of photographs or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see section 104.22 ).

(3A)  
If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also impose on the person by the order a requirement that the person do all of the following:


(a) take steps specified in the order (if any) and reasonable steps to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order;


(b) report to persons specified in the order (if any), at the times and places specified in the order (if any), for the purposes of having the tracking device inspected;


(c) if the person becomes aware that the tracking device or any equipment necessary for the operation of the tracking device is not in good working order - notify an AFP member as soon as practicable, but no later than 4 hours, after becoming so aware.

(3B)  
If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also include in the order an authorisation for one or more AFP members:


(a) to take steps specified in the order to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order; and


(b) to enter one or more premises specified in the order for the purposes of installing any equipment necessary for the operation of the tracking device.

(4)   Communicating and associating.  

Subsection 102.8(4) applies to paragraph (3)(e) and the person ' s communication or association in the same way as that subsection applies to section 102.8 and a person ' s association.

(5)  
This section does not affect the person ' s right to contact, communicate or associate with the person ' s lawyer unless the person ' s lawyer is a specified individual as mentioned in paragraph (3)(e). If the person ' s lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified.

(6)   Counselling and education.  

A person is required to participate in specified counselling or education as mentioned in paragraph (3)(l) only if the person agrees, at the time of the counselling or education, to participate in the counselling or education.




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