Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 (131 of 2021)

Schedule 1   Extended supervision orders

Part 2   Main consequential amendments

Telecommunications (Interception and Access) Act 1979

362   After subsection 46A(2B)

Insert:

Warrant sought for post-sentence order application

(2C) If a Part 5.3 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone; and

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and

(d) the person is a terrorist offender in relation to whom an application for a post-sentence order could be made; and

(e) the person is detained in custody in a prison; and

(f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence; and

(g) 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 post-sentence order in relation to the person; and

(h) information that would be likely to be obtained by intercepting under a warrant:

(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or

(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;

would be likely to assist in determining whether to apply for the post-sentence order; and

(i) having regard to the matters referred to in subsection (2D), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in the Judge's or member's discretion, issue such a warrant.

(2D) For the purposes of subsection (2C), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:

(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or

(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought; and

(b) how much the information referred to in paragraph (2C)(h) would be likely to assist in connection with determining whether to apply for the post-sentence order; and

(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a post-sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and

(d) how much the use of such methods would be likely to assist in determining whether to apply for the post-sentence order; and

(e) how much the use of such methods would be likely to prejudice determining whether to apply for the post-sentence order, whether because of delay or for any other reasons; and

(f) 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

(g) 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.