Criminal Code Act 1995
Section 3CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH Part 5.3 - Terrorism Division 104 - Control orders
A senior AFP member must not request an interim control order in relation to a person without the AFP Minister ' s written consent.
However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the AFP Minister ' s consent (see Subdivision C).
A senior AFP member may only seek the AFP Minister ' s written consent to request an interim control order in relation to a person if the member:
(a) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has:
(i) provided training to, received training from or participated in training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1) ) or a terrorist act (within the meaning of section 100.1 ); or
(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914 ); or
(c) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.
In seeking the AFP Minister ' s consent, the member must give the AFP Minister:
(a) a draft of the interim control order to be requested; and
(aa) the following:
(i) a statement of the facts relating to why the order should be made;
(ii) if the member is aware of any facts relating to why the order should not be made - a statement of those facts; and
(b) if the person is at least 18 years of age and the member has information about the person ' s age - that information; and
(ba) if the person is under 18 years of age - information about the person ' s age; and
(c) a summary of the grounds on which the order should be made.
An interim control order cannot be requested in relation to a person who is under 14 years of age (see section 104.28 ).
To avoid doubt, paragraph (3)(c) 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 ).
The AFP Minister ' s consent may be made subject to the member making changes required by the AFP Minister to the draft of the interim control order to be requested.
To avoid doubt, a senior AFP member may seek the AFP Minister ' s consent to request an interim control order in relation to a person even if:
(a) such a request has previously been made in relation to the person; or
(b) the person is detained in custody.
An interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody (see paragraph 104.5(1)(d) ).
In subsection (2), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
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