Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (Cth)
Contents
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The Parliament of Australia enacts:
This Act is the
Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 29 November 2016 |
Schedules 1 to 14 | The day after this Act receives the Royal Assent. | 30 November 2016 |
Schedule 15, Part 1 | The day after this Act receives the Royal Assent. | 30 November 2016 |
Schedule 15, Part 2 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 29 November 2017 |
Schedules 16 to 18 | The day after this Act receives the Royal Assent. | 30 November 2016 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1
After paragraph 102.6(3)(a) of the Criminal Code Insert:
(aa) legal advice or legal representation in connection with the question of whether the organisation is a terrorist organisation; or
2
Subparagraph 102.8(4)(d)(ii) of the Criminal Code Repeal the subparagraph, substitute:
(ii) the question of whether the organisation is a terrorist organisation; or
Repeal the paragraph, substitute:
(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
Omit “16”, substitute “14”.
Repeal the subsection, substitute:
(2) For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
(a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and
(b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and
(c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
(2A) In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following:
(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
(b) the physical and mental health of the person;
(c) the benefit to the person of having a meaningful relationship with his or her family and friends;
(d) the right of the person to receive an education;
(e) the right of the person to practise his or her religion;
(f) any other matter the court considers relevant.
4
Subsection 104.5(1) of the Criminal Code (note 2) Repeal the note, substitute:
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).
5
After subparagraph 104.12(1)(b)(iii) of the Criminal Code Insert:
(iiia) that the person has a right to obtain legal advice and legal representation;
6
Subsection 104.12(5) of the Criminal Code (heading) Repeal the heading, substitute:
If person is resident, or order made, in Queensland
7
At the end of section 104.12 of the Criminal Code Add:
If person is 14 to 17
(6) As soon as practicable after an interim control order is made in relation to a person who is 14 to 17 years of age, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member must take reasonable steps to serve a copy of the order personally on at least one parent or guardian of the person.
8
Subparagraph 104.12A(2)(a)(iii) of the Criminal Code After “other”, insert “written”.
9
At the end of subsection 104.12A(2) of the Criminal Code Add:
; and (c) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the documents mentioned in paragraph (a) personally on at least one parent or guardian of the person.
10
At the end of paragraph 104.12A(4)(b) of the Criminal Code Add:
; and (iv) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve a copy of the annotated order and the notification personally on at least one parent or guardian of the person.
11
Before subsection 104.14(1) of the Criminal Code Insert:
When this section applies
(1A) This section applies if:
(a) an interim control order is made in relation to a person; and
(b) an election is made under section 104.12A to confirm the order; and
(c) the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order.
Omit “If an election has been made to confirm an interim control order, then, on”, substitute “On”.
Omit “(unless the monitor is already a representative of the person)”.
Repeal the subsection (not including the heading), substitute:
(4) The court may confirm the order without variation if none of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor.
15
Subsection 104.16(1) of the Criminal Code (note) Repeal the note, substitute:
Note: 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).
16
At the end of section 104.17 of the Criminal Code Add:
If person is 14 to 17
(4) If the person is 14 to 17 years of age, then as soon as practicable after the interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must take reasonable steps to serve a copy of the declaration, revocation or confirmed control order personally on at least one parent or guardian of the person.
Omit “(unless the monitor is a representative of the person)”.
18
After subsection 104.19(2) of the Criminal Code Insert:
(2A) If the person is 14 to 17 years of age, the Commissioner must cause reasonable steps to be taken to give written notice of both the application and the grounds on which the revocation or variation is sought to at least one parent or guardian of the person.
Omit “(unless the monitor is a representative of the person)”.
Repeal the subsection, substitute:
(3) As soon as practicable after a confirmed control order in relation to a person is revoked or varied, an AFP member must:
(a) serve the revocation or variation personally on the person; and
(b) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person.
Repeal the paragraph, substitute:
(d) if the person is at least 18 years of age and the Commissioner has information about the person’s age—that information; and
(e) if the person is under 18 years of age—information about the person’s age.
22
Subsection 104.23(2) of the Criminal Code (note 1) Omit “16”, substitute “14”.
Repeal the subsection, substitute:
(3) As soon as practicable after an application is made under subsection (1), the Commissioner must:
(a) cause the documents mentioned in subsection (3AA) to be served personally on the person in relation to whom the order is made; and
(b) if the person is a resident of Queensland, or the court will hear the application in Queensland—cause the documents mentioned in subsection (3AA) to be given to the Queensland public interest monitor; and
(c) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve the documents mentioned in subsection (3AA) personally on at least one parent or guardian of the person.
(3AA) The documents are the following:
(a) written notice of the application and the grounds on which the variation is sought;
(b) a copy of the documents mentioned in paragraph (2)(b);
(c) any other written details required to enable the person in relation to whom the order is made to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the variation of the order.
Omit “subsection (3) does”, substitute “subsections (3) and (3AA) do”.
Omit “(unless the monitor is a representative of the person)”.
Repeal the subsection, substitute:
(2) For the purposes of paragraph (1)(b), in determining whether each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
(a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and
(b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and
(c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
(2A) In determining what is in the best interests of the person for the purposes of paragraph (2)(b), the court must take into account the matters referred to in subsection 104.4(2A).
27
At the end of section 104.26 of the Criminal Code Add:
If person is 14 to 17
(5) As soon as practicable after a control order in relation to a person who is 14 to 17 years of age is varied under section 104.24, an AFP member must take reasonable steps to serve a copy of the varied order personally on at least one parent or guardian of the person.
28
Subdivision H of Division 104 of Part 5.3 of the Criminal Code (heading) Repeal the heading, substitute:
29
Subsection 104.28(1) of the Criminal Code (heading) Repeal the heading, substitute:
Rule for people under 14
Omit “16”, substitute “14”.
31
Subsection 104.28(2) of the Criminal Code (heading) Repeal the heading, substitute:
Rule for people 14 to 17
Omit “at least 16 but under 18”, substitute “14 to 17 years of age”.
32A
At the end of section 104.28 of the Criminal Code Add:
Young person’s right to legal representation
(4) If an issuing court is satisfied, in proceedings relating to a control order, that:
(a) the person to whom the control order relates, or the person in relation to whom the control order is requested, is at least 14 but under 18; and
(b) the person does not have a lawyer acting in relation to the proceedings;
the court must appoint a lawyer to act for the person in relation to the proceedings.
(5) However, the issuing court is not required to appoint a lawyer if:
(a) the proceedings are ex parte proceedings relating to a request for an interim control order; or
(b) the person refused a lawyer previously appointed under subsection (4) during proceedings relating to:
(i) the control order; or
(ii) if the control order is a confirmed control order—the interim control order that was confirmed.
(6) The regulations may provide in relation to the appointing of lawyers under subsection (4) (including in relation to lawyers appointed under that subsection).
Insert:
34
At the end of subsection 104.29(2) of the Criminal Code Add:
(j) for control orders relating to people who are 14 to 17 years of age—the matters referred to in paragraphs (a) to (i) in so far as those matters specifically relate to those control orders.
Insert:
(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.
2
Subdivision G of Division 104 of Part 5.3 of the Criminal Code (heading) Repeal the heading, substitute:
3
At the end of Subdivision G of Division 104 of Part 5.3 of the Criminal Code Add:
(1) A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the control order requires the person to wear a tracking device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
(2) A person (the
perpetrator ) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a control order is in force in relation to another person; and
(b) the perpetrator knows that, or is reckless as to whether, the control order requires the other person to wear a tracking device; and
(c) the perpetrator engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the tracking device.
Penalty: Imprisonment for 5 years.
1
Subsection 100.1(1) of the Criminal Code (paragraph (b) of the definition of issuing court ) Repeal the paragraph.
Repeal the paragraph, substitute:
(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or
Repeal the subsection, substitute:
(5) A terrorist act referred to in subsection (4) must be one that:
(a) for paragraphs (4)(a) and (c)—the AFP member suspects, on reasonable grounds; or
(b) for paragraphs (4)(b) and (c)—the issuing authority is satisfied there are reasonable grounds to suspect;
is capable of being carried out, and could occur, within the next 14 days.
1
Subsection 100.1(1) of the Criminal Code (definition of Judge ) Repeal the definition.
2
Subsection 100.1(1) of the Criminal Code (paragraph (c) of the definition of superior court ) Repeal the paragraph.
After “Judge”, insert “of the Federal Court of Australia or of the Federal Circuit Court of Australia”.
1
In the appropriate position in Division 106 of Part 5.3 of the Criminal Code Add:
(1) Division 104, as amended by Schedules 2 and 3 to the
Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 , applies to an order made under that Division after the commencement of this section, where:
(a) the order is requested (however described) after that commencement; and
(b) the conduct in relation to which that request is made occurs before or after that commencement.
(2) Despite the amendment made by Schedule 4 to the
Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 , Division 104 continues to apply in relation to:
(a) a request for an interim control order, where the request was made before the commencement of this section; and
(b) the making of an interim control order in response to such a request; and
(c) the making of a declaration in relation to such an interim control order; and
(d) the revocation of such an interim control order; and
(e) the confirmation of such an interim control order (with or without variation); and
(f) the making of a confirmed control order that corresponds to such an interim control order that has been so confirmed; and
(g) the revocation or variation of such a confirmed control order; and
(h) any other proceedings under that Division that are associated with, or incidental to, a matter covered by any of the above paragraphs;
as if the amendment had not been made.
(3) Section 104.29, as amended by Schedule 8 to the
Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 , applies in relation to any year that ends on 30 June after the commencement of this section.(4) Division 105, as amended by Schedule 5 to the
Counter‑Terrorism Legislation Amendment Act (No. 1) 2016 , applies in relation to an application for the following made after the commencement of this section:
(a) a preventative detention order;
(b) an initial preventative detention order;
(c) an extension of an initial preventative detention order;
(d) a continued preventative detention order;
(e) an extension of a continued preventative detention order.
Insert:
• If a control order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:
(a) the person is the occupier of the premises and consents to the entry; or
(b) the entry is made under a monitoring warrant.
• If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:
(a) the person consents to the search; or
(b) the search is conducted under a monitoring warrant.
• A search must be for any of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the control order has been, or is being, complied with.
In this Part:
confirmed control order has the same meaning as in Part 5.3 of theCriminal Code .
control order has the same meaning as in Part 5.3 of theCriminal Code .
damage , in relation to data, includes damage by erasure of data or addition of other data.
engage in a hostile activity has the same meaning as in Part 5.3 of theCriminal Code .
evidential material has the same meaning as in Part IAA.
foreign country , when used in the expressionhostile activity in a foreign country , has the same meaning as in theCriminal Code .
frisk search has the same meaning as in Part IAA.
inspecting officer means a person appointed under subsection 3ZZUA(1).
interim control order has the same meaning as in Part 5.3 of theCriminal Code .
issuing officer means a magistrate.
monitoring powers :
(a) in relation to premises—has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or
(b) in relation to a person—has the meaning given by section 3ZZLB.
monitoring warrant means a warrant under section 3ZZOA or 3ZZOB.
ordinary search has the same meaning as in Part IAA.
premises includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
prescribed connection with premises has the meaning given by section 3ZZJC.
recently used conveyance , in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
relevant data has the meaning given by subsection 3ZZKC(3).
seizable item has the same meaning as in Part IAA.
staff member of the Australian Federal Police means a person referred to in paragraph (a) of the definition oflaw enforcement officer in subsection 3(1).
State or Territory agency : see section 3ZZUF.
State or Territory inspecting authority : see section 3ZZUF.
strip search has the same meaning as in Part IAA.
For the purposes of this Part, a person has a
prescribed connection with premises if:
(a) the person:
(i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or
(ii) has any other legal or equitable estate or interest in the premises; or
(b) the person occupies, or resides on, the premises; or
(c) the person has possession or control of the premises (whether alone or together with one or more other persons); or
(d) the person performs any of the duties of his or her employment on the premises; or
(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or
(f) the person performs voluntary work on the premises; or
(g) both:
(i) the premises are used by a school, college, university or other educational institution; and
(ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution.
Self‑incrimination
(1) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.
Legal professional privilege
(2) This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3) The fact that this section is included in this Part does not imply that the privilege against self‑incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the searching of persons or conveyances; or
(c) the seizure of things; or
(d) the requesting of information or documents from persons.
(2) To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
(1) If:
(a) a control order is in force in relation to a person; and
(b) the person has a prescribed connection with particular premises;
a constable may enter the premises, and exercise the monitoring powers, for any of the following purposes:
(c) the protection of the public from a terrorist act;
(d) preventing the provision of support for, or the facilitation of, a terrorist act;
(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(f) determining whether the control order has been, or is being, complied with.
Note: The
monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD.
(2) However, a constable is not authorised to enter the premises unless:
(a) the person:
(i) is the occupier of the premises; and
(ii) has consented to the entry; or
(b) the entry is made under a monitoring warrant.
Note: If entry to the premises is with the occupier’s consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA).
The following are the
monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:
(a) the power to search the premises and any thing on the premises;
(b) the power to search for and record fingerprints found at the premises;
(c) the power to take samples of things found at the premises;
(d) the power to examine or observe any activity conducted on the premises;
(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(g) the power to inspect any document on the premises;
(h) the power to take extracts from, or make copies of, any such document;
(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;
(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).
(1) The
monitoring powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2) The
monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).(3)
Relevant data means information relevant to:
(a) the protection of the public from a terrorist act; or
(b) preventing the provision of support for, or the facilitation of, a terrorist act; or
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(d) determining whether the relevant control order has been, or is being, complied with.
(4) The powers are as follows:
(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(5) A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
Scope
(1) This section applies if a constable enters premises under a monitoring warrant.
Securing equipment
(2) The
monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:
(a) there is relevant data on the premises; and
(b) the relevant data may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3) The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the constable’s intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 24‑hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 3ZZNF.
Extensions
(5) The constable may apply to an issuing officer for an extension of the 24‑hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.
(6) Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7) The 24‑hour period may be extended more than once.
Note: For the process by which an issuing officer may extend the period, see section 3ZZQA.
Scope
(1) This section applies if a constable enters premises under section 3ZZKA.
Entry with consent
(2) If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in:
(a) the protection of the public from a terrorist act; or
(b) preventing the provision of support for, or the facilitation of, a terrorist act; or
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(d) determining whether the relevant control order has been, or is being, complied with.
Note 1: A person is not required to answer a question, or produce a document, in response to a request under this subsection.
Note 2: See also sections 3ZZRC and 3ZZRD.
Entry under a monitoring warrant
(3) If:
(a) the entry is authorised by a monitoring warrant; and
(b) the warrant authorises the constable to exercise powers under this subsection;
the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in:
(c) the protection of the public from a terrorist act; or
(d) preventing the provision of support for, or the facilitation of, a terrorist act; or
(e) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(f) determining whether the relevant control order has been, or is being, complied with.
Note: See also sections 3ZZRC and 3ZZRD.
Legal professional privilege and privilege against self‑incrimination
(4) Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.
(5) An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.
Note: For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD.
Exceptions to subsection (3)
(6) A person is not subject to a requirement under subsection (3) if:
(a) the person does not possess the information or document required; and
(b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
(7) A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.
Offence
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty for contravention of this subsection: 30 penalty units.
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers in relation to the premises:
(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the
Proceeds of Crime Act 2002 ); or(iii) tainted property (within the meaning of that Act); or
(iv) seizable items;
(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;
(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the
Proceeds of Crime Act 2003 ); or(iii) tainted property (within the meaning of that Act); or
(iv) seizable items.
Scope
(1) This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZKF in relation to the premises;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) enter the premises; and
(b) exercise the monitoring powers in relation to the premises; and
(c) in:
(i) entering the premises; or
(ii) exercising the monitoring powers;
use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:
(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and
(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
(1) If a control order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for any of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the control order has been, or is being, complied with.
Note: The
monitoring powers are set out in section 3ZZLB.
(2) However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless:
(a) the person has consented to the search; or
(b) the search is conducted under a monitoring warrant.
The following are the
monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:
(a) the power to search things found in the possession of the person;
(b) the power to search any recently used conveyance;
(c) the power to record fingerprints from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section;
(d) the power to take samples from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section.
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Powers
(2) The constable has the following powers:
(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) seizable items;
(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material (within the meaning of the
Proceeds of Crime Act 2002 ); or(ii) tainted property (within the meaning of that Act).
Scope
(1) This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Availability of assistance and use of force
(2) In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3) In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and
(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.
(5) If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.
(6) A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.
(6) If:
(a) a constable enters premises because of the consent of the occupier of the premises; and
(b) the constable has not shown the occupier his or her identity card before entering the premises;
the constable must do so on, or as soon as is reasonably practicable after, entering the premises.
(1) Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
Before entering premises under a monitoring warrant, a constable must:
(a) announce that he or she is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.
If:
(a) a monitoring warrant is being executed by a constable in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person.
Scope
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
Compensation
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:
(a) the Federal Court of Australia or the Federal Circuit Court of Australia; or
(b) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
(1) If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the warrant was issued on the basis that a control order is in force in relation to a person; and
(c) the person is present at the premises;
the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a control order is in force in relation to a person; and
(b) the person has a prescribed connection with the premises; and
(c) having regard to:
(i) the nature of the person’s prescribed connection with the premises; and
(ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
(iii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that one or more constables should have access to the premises for the purposes of:
(iv) the protection of the public from a terrorist act; or
(v) preventing the provision of support for, or the facilitation of, a terrorist act; or
(vi) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(vii) determining whether the control order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(c)(ii) are the following:
(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;
(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF 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.
Content of warrant
(5) The warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the monitoring powers in relation to the premises; and
(iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the time at which the warrant expires (see subsection (7)); and
(g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and
(h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and
(i) state the name of the person to whom the relevant control order relates; and
(j) describe the nature of the person’s prescribed connection with the premises; and
(k) state that the control order is in force; and
(l) state whether the control order is an interim control order or a confirmed control order; and
(m) specify the date the control order was made; and
(n) specify the court that made the control order; and
(o) if the control order is an interim control order—specify the date the order was served on the person; and
(p) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and
(q) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order.
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004 ).(7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.
Application for warrant
(1) A constable may apply to an issuing officer for a warrant under this section in relation to a person.
Issue of warrant
(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that:
(a) a control order is in force in relation to the person; and
(b) having regard to:
(i) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
(ii) such other matters (if any) as the issuing officer considers relevant;
it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of:
(iii) the protection of the public from a terrorist act; or
(iv) preventing the provision of support for, or the facilitation of, a terrorist act; or
(v) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(vi) determining whether the control order has been, or is being, complied with.
(3) The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4) The matters referred to in subparagraph (2)(b)(i) are the following:
(a) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(b) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(c) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(d) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(e) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(f) the possibility that the person has contravened, is contravening, or will contravene, the control order;
(g) 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 and the powers set out in section 3ZZLC 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.
Content of warrant
(5) The warrant must:
(a) state the name of the person; and
(b) state that the warrant is issued under this section; and
(c) state the purpose or purposes for which the warrant is issued; and
(d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to conduct an ordinary search or a frisk search of the person; and
(ii) to exercise the monitoring powers in relation to the person; and
(iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and
(e) state whether the search is authorised to be carried out at any time of the day or during specified hours of the day; and
(f) specify the time at which the warrant expires (see subsection (7)); and
(g) state that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and
(h) state the name of the person to whom the relevant control order relates; and
(i) state that the control order is in force; and
(j) state whether the control order is an interim control order or a confirmed control order; and
(k) specify the date the control order was made; and
(l) specify the court that made the control order; and
(m) if the control order is an interim control order—specify the date on which the order was served on the person; and
(n) if the control order is a confirmed control order—specify the end of the period during which the order is in force; and
(o) if the warrant is issued for the purposes of determining whether the control order has been, or is being, complied with—specify the obligations, prohibitions and restrictions that are imposed by the order.
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004 ).(7) The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person.
A monitoring warrant cannot authorise a strip search or a search of a person’s body cavities.
(1) If:
(a) a monitoring warrant was issued on the basis that a control order was in force in relation to a person; and
(b) any of the following happens:
(i) the control order is revoked;
(ii) a court declares the control order to be void;
(iii) a court varies the control order by removing one or more obligations, prohibitions or restrictions imposed on the person by the control order;
a constable must not:
(c) execute the warrant; or
(d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant.
Evidence
(2) A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(3) Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(4) A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(1) A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3) An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 3ZZOA or 3ZZOB, as the case requires.
(5) If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed.
(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed.
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
A person commits an offence if:
(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or
(b) the person states on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Application (1) This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.
Granting extension
(2) The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.
(3) The issuing officer must not grant the extension unless the constable or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.
Content of order
(4) The order extending the period must:
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the constable is authorised to secure the thing for that period.
(1) If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.
(2) If 2 or more things are seized, they may be covered in the one receipt.
Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.
(1) Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.
(2) Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1):
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the relevant control order has been, or is being, complied with.
An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes:
(a) the protection of the public from a terrorist act;
(b) preventing the provision of support for, or the facilitation of, a terrorist act;
(c) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) determining whether the relevant control order has been, or is being, complied with;
(e) preventing, investigating or prosecuting an offence.
Powers conferred personally
(1) A power conferred on an issuing officer by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The issuing officer need not accept the power conferred.
Protection and immunity
(3) An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
(1) If:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void;
a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:
(c) in the purported execution of the warrant; or
(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.
Scope
(1) This section applies if:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void; and
(c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:
(i) the purported execution of the warrant; or
(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
Dealing
(2) A person may:
(a) adduce the thing, information or document as evidence in a proceeding; or
(b) use or communicate the information; or
(c) use, or communicate the contents of, the document;
if:
(d) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of:
(i) the commission of a terrorist act; or
(ii) serious harm to a person; or
(iii) serious damage to property; or
(e) the person does so for one or more purposes set out in subsection (3).
Purposes
(3) The purposes are purposes connected with:
(a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the
Criminal Code , so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of theCriminal Code ); or(b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the
Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or(c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the
Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or(d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the
Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or(e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the
Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or(f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the
Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or(g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the
Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or(h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the
Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or(i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the
Terrorism (Emergency Powers) Act (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).
Definition
(4) In this section:
serious harm has the same meaning as in theCriminal Code .
The Commissioner must cause to be kept in the Australian Federal Police’s records:
(a) each monitoring warrant issued to the Australian Federal Police; and
(b) each instrument revoking a monitoring warrant; and
(c) each order under section 3ZZQA granting an extension of a period.
(1) Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.
(1) The Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this Division.
(2) An appointment under subsection (1) must be in writing.
(1) The Ombudsman may inspect the records of the Australian Federal Police to determine the extent of compliance by the Australian Federal Police and members and special members of the Australian Federal Police with the provisions of:
(a) this Part; or
(b) monitoring warrants.
(2) For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the Commissioner, enter at any reasonable time premises occupied by the Australian Federal Police; and
(b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police that are relevant to the inspection; and
(c) may require a staff member of the Australian Federal Police to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the staff member’s possession, or to which the staff member has access, and that is relevant to the inspection.
(3) The Commissioner must ensure that staff members of the Australian Federal Police give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(1) If the Ombudsman has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4) If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division; and
(b) does not know the staff member’s identity;
the Ombudsman may, by writing given to the Commissioner, require the Commissioner, or a person nominated by the Commissioner, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
A person commits an offence if:
(a) the person is required under section 3ZZUC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the
Ombudsman Act 1976 );(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the
Ombudsman Act 1976 ) and another person or body, being a communication protected against disclosure by legal professional privilege.(2) However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against Part 7.4 or 7.7 of the
Criminal Code .
(3) Nothing in any other law prevents a staff member of the Australian Federal Police from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the Australian Federal Police to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division.
(4) Nothing in any other law prevents a staff member of the Australian Federal Police from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5) The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
(1) The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(2) The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.
(4) In this Part:
State or Territory agency means the police force or police service of a State or Territory.
State or Territory inspecting authority , in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZUB.
(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
(1) The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the results of any inspections under section 3ZZUB in the year.
Note: The report is included in a report under section 104.29 of the
Criminal Code .(2) The report must include the number of contraventions by the Australian Federal Police and members and special members of the Australian Federal Police of the provisions of:
(a) this Part; or
(b) monitoring warrants;
identified by the Ombudsman in the year.
(3) The Ombudsman must give a copy of a report under this section to the Commissioner.
(4) A report under this section must not include information which, if made public, could reasonably be expected to:
(a) endanger a person’s safety; or
(b) prejudice an investigation, or prosecution, of an offence; or
(c) compromise the operational activities or methodologies of:
(i) the Australian Federal Police; or
(ii) any other Commonwealth, State, Territory or foreign law enforcement, intelligence or security agency.
After “this Division”, insert “, Division 5 of Part IAAB of the
Crimes Act 1914 (monitoring warrants), and the rest of that Part to the extent that it relates to that Division,”.
3
After paragraph 104.29(2)(f) of the Criminal Code Insert:
; (g) the number of monitoring warrants issued under Division 5 of Part IAAB of the
Crimes Act 1914 ;(h) the number of such warrants executed under that Division;
(i) the report prepared by the Ombudsman under subsection 3ZZUH(1) of the
Crimes Act 1914.
Insert:
confirmed control order has the same meaning as in Part 5.3 of theCriminal Code .
connected with : a purpose isconnected with a preventative detention order law if the purpose is connected with the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, that law, so far as the function, duty or power relates to a preventative detention order (within the meaning of that law).
control order has the same meaning as in Part 5.3 of theCriminal Code .
Omit “that the conditions for issue are met;”, substitute:
that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c);
Before “premises” (last occurring), insert “main”.
After “the eligible offence”, insert “or offences”.
Add “or those offences”.
Add “or those offences”.
After “the eligible offence”, insert “or offences”.
Repeal the paragraph, substitute:
(c) that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c); and
After “the eligible offence”, insert “or offences”.
Despite the amendments made by this Schedule, Part IAAA of the
Crimes Act 1914 continues to apply, in relation to:
(a) an authorisation given under section 3ZZBB of that Act before the commencement of this item; and
(b) an application made under subsection 3ZZBC(1) or 3ZZBF(2) of that Act on the basis of such an authorisation; and
(c) the issue of a delayed notification search warrant in response to such an application;
as if those amendments had not been made.
After “section” (wherever occurring), insert “38J or”.
After “38B”, insert “, 38J”.
After “38B”, insert “, 38J”.
After “38B”, insert “, 38J”.
After “section”, insert “38J or”.
After “section”, insert “38J or”.
After “section”, insert “38J or”.
After “section”, insert “38J or”.
After “section”, insert “38J or”.
Insert:
Omit “for a hearing under subsection 38G(1) or 38H(6)”, substitute:
that apply:
(a) for a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or
(b) if the court makes an order under subsection 38J(2), (3) or (4) that the closed hearing requirements in this section are to apply when information that is the subject of the order is disclosed to the court at a hearing in a proceeding under Division 104 of the
Criminal Code (about control orders)—when the information is disclosed to the court at that hearing.
Omit “those provisions”, substitute “subsections 38G(1) and 38H(6), and an order under subsection 38J(2), (3) or (4),”.
Insert:
(3A) Despite subsections (2) and (3), if:
(a) the hearing is under subsection 38G(1) or 38H(6); and
(b) the proceeding is under Division 104 of the
Criminal Code (about control orders); and(c) a person referred to in paragraph (2)(e) requests the court to make an order that one or more specified parties to the proceeding, and their legal representatives, are not entitled to be present during any part of the hearing in which a person referred to in paragraph (2)(e) gives information of the kind referred to in paragraph (3)(c) or (d);
then the court may make that order.
Note: An order made under subsection 38J(2), (3) or (4) in relation to the proceeding will contain a similar restriction in relation to a hearing in the proceeding: see paragraph 38J(2)(e), 38J(3)(d) or 38J(4)(c).
After “section”, insert “38J or”.
Omit “If section 38K applies, the”, substitute “The”.
After “allow”, insert “the following persons (other than a person who, because of an order under subsection (3A) or 38J(2), (3) or (4), is not entitled to be present during any part of the hearing)”.
Omit “or”.
Omit “, and if applicable, section 38J”.
Add:
(10) If the court makes a decision under subsection (8), the Attorney‑General or his or her legal representative may request that the court delay allowing access to the varied record or the record as mentioned in paragraph (9)(a) to allow time for the Attorney‑General to:
(a) decide whether to appeal against the court’s decision; and
(b) if the Attorney‑General decides to do so—make the appeal.
The court must grant the request.
Insert:
Repeal the section, substitute:
When this section applies
(1) This section applies if:
(a) the court has held a hearing required by subsection 38G(1) or 38H(6) about the disclosure of information in a proceeding under Division 104 of the
Criminal Code relating to a request (thecontrol order request ) to the court to make, confirm or vary a control order in relation to a person (therelevant person ); and(b) the Attorney‑General or the Attorney‑General’s legal representative has requested the court to make an order under subsection (2), (3) or (4) of this section about the disclosure and consideration of the information in the proceeding; and
(c) the court is satisfied that the relevant person 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.
Non‑disclosure certificate hearings
(2) If the hearing was required by subsection 38G(1) and the information is in the form of a document, the court may order under this subsection that:
(a) the following persons must not, except in permitted circumstances or in accordance with this subsection, disclose the information (whether in the proceeding or otherwise):
(i) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;
(ii) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;
(iii) any other specified person; and
(b) those persons may disclose in the proceeding:
(i) a copy of the document with the information deleted; or
(ii) a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or
(iii) a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document;
(which disclosure may or may not be the same as was permitted in the certificate); and
(c) the information may be disclosed to the court in the proceeding; and
(d) the closed hearing requirements in section 38I are to apply when the information is disclosed to the court at a hearing in the proceeding; and
(e) the relevant person and the relevant person’s legal representative are not entitled to be present during any part of a hearing in the proceeding in which the information is disclosed to the court; and
(f) if the information is disclosed to the court in the proceeding and, apart from the order, the information is admissible in evidence in the proceeding—the court may consider the information in the proceeding, even if the information has not been disclosed to the relevant person or the relevant person’s legal representative.
(3) If the hearing was required by subsection 38G(1), the court may, regardless of the form of the information, order under this subsection that:
(a) any of the following persons must not, except in permitted circumstances or in accordance with this subsection, disclose the information (whether in the proceeding or otherwise):
(i) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;
(ii) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;
(iii) any other specified person; and
(b) the information may be disclosed to the court in the proceeding; and
(c) the closed hearing requirements in section 38I are to apply when the information is disclosed to the court at a hearing in the proceeding; and
(d) the relevant person and the relevant person’s legal representative are not entitled to be present during any part of a hearing in the proceeding in which the information is disclosed to the court; and
(e) if the information is disclosed to the court in the proceeding and, apart from the order, the information is admissible in evidence in the proceeding—the court may consider the information in the proceeding, even if the information has not been disclosed to the relevant person or the relevant person’s legal representative.
Witness exclusion certificate hearings
(4) If the hearing was required by subsection 38H(6) in relation to the calling of a witness in the proceeding, the court may order under this subsection that:
(a) the relevant person and the relevant person’s legal representative must not call the witness at a hearing in the proceeding; and
(b) the closed hearing requirements in section 38I are to apply if the witness is called at a hearing in the proceeding; and
(c) the relevant person and the relevant person’s legal representative are not entitled to be present if the witness is called at a hearing in the proceeding.
Factors to be considered by court
(5) The court must, in deciding whether to make an order under subsection (2), (3) or (4), consider the following matters:
(a) whether, having regard to the Attorney‑General’s certificate, there would be a risk of prejudice to national security if:
(i) where the certificate was given under subsection 38F(2) or (3)—the information were disclosed in contravention of the certificate; or
(ii) where the certificate was given under subsection 38H(2)—the witness were called;
(b) whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding;
(c) any other matter the court considers relevant.
Proceedings relating to making and confirming control order
(6) If the court makes an order under subsection (2), (3) or (4) in relation to a proceeding for the making of a control order in relation to the relevant person, then the order under that subsection also applies in relation to a proceeding for the confirmation of the control order in relation to the person.
If order is not made
(7) If the court decides not to make an order under subsection (2), (3) or (4), then the court must make an order under section 38L.
After “section”, insert “, unless the court has made an order under subsection 38J(2) or (3) in relation to the information”.
Add:
Note: 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 .
Add:
However, this subsection does not apply if the court has made an order under subsection 38J(4) about the calling of the person as a witness.
Note: 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 .
After “section”, insert “38J or”.
Omit “Division”, substitute “Subdivision”.
After “section”, insert “38J or”.
Repeal the heading, substitute:
After “section”, insert “38J or”.
Repeal the heading, substitute:
Add:
; and (c) states the number of orders made under section 38J (about special court orders in proceedings under Division 104 of the
Criminal Code ); and(d) identifies the proceedings under Division 104 of the
Criminal Code to which the orders relate.
The amendments of the
National Security Information (Criminal and Civil Proceedings) Act 2004 made by this Part apply to a civil proceeding that begins before or after the commencement of this item.
33
Section 8 (paragraph (f) of the definition of designated publication restriction ) After “section 31”, insert “, 38J or”.
Insert:
special advocate , of a party to a civil proceeding, has the meaning given by subsection 38PA(1).
Repeal the section, substitute:
Something is
likely to prejudice national security if there is a real, and not merely a remote, possibility that it will prejudice national security.
After “legal representatives”, insert “or special advocates”.
Repeal the heading, substitute:
Access to the record by a party, legal representative or special advocate
Insert:
(aa) allow any party’s special advocate:
(i) to have access to the record; and
(ii) to prepare documents or records in relation to the record in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
Add:
Special advocate
(5) The court must give a written statement of its reasons for making an order under section 38J or 38L to any special advocate of a party to the proceeding.
Note: Subsections (2) to (4) of this section do not apply to the statement the court gives to the special advocate.
Omit “section 38M”, substitute “subsection 38M(4)”.
Add:
(1) The court may appoint a person as a
special advocate of a party to a civil proceeding if:
(a) the proceeding is a proceeding under Division 104 of the
Criminal Code relating to a request to the court to make, confirm or vary a control order in relation to the party; and(b) the court makes an order under subsection 38I(3A) or subsection 38J(2), (3) or (4) that the party and the party’s legal representative are not entitled to be present during part of a hearing in the proceeding.
Note: For the function of the special advocate, see section 38PB.
(2) The court may appoint a person under subsection (1) only if:
(a) the person meets any requirements specified in the regulations; and
(b) the court has given:
(i) the parties to the proceeding and the parties’ legal representatives; and
(iii) the Attorney‑General and the Attorney‑General’s legal representative;
the opportunity to make submissions to the court about who the court should appoint.
(3) If the party for whom the court is appointing a special advocate, or the party’s legal representative, requests the court under paragraph (2)(b) to appoint a particular person who meets the requirements mentioned in paragraph (2)(a), the court may appoint a different person only if the court is satisfied that:
(a) appointing the person requested would result in the proceeding being unreasonably delayed; or
(b) appointing the person requested would result in the person having an actual or potential conflict of interest; or
(c) both:
(i) the person requested has knowledge of national security information and disclosure of the information would be likely to prejudice national security; and
(ii) in the circumstances, there is a risk of inadvertent disclosure of that information.
The function of a special advocate of a party to a civil proceeding is to represent the interests of the party in the proceeding by:
(a) making submissions to the court at any part of a hearing in the proceeding during which the party and the party’s legal representative are not entitled to be present; and
(b) adducing evidence and cross‑examining witnesses at such a part of a hearing in the proceeding; and
(c) making written submissions to the court.
(1) The relationship between a special advocate of a party to a civil proceeding and the party is not that of legal representative and client.
(2) However, legal professional privilege applies to a communication between the party, or the party’s legal representative, and the special advocate in the same way as it applies to a communication between the party and the party’s legal representative.
(3) The special advocate is not a party to the proceeding.
(4) For the purposes of this Act, the special advocate is not a court official.
(1) This Subdivision, other than subsection (2), does not restrict communication that:
(a) is between:
(i) a special advocate of a party to a civil proceeding; and
(ii) the party or the party’s legal representative; and
(b) occurs before the Attorney‑General discloses information to the special advocate under subsection 38PE(2) in relation to the proceeding.
Note: For communication between the special advocate and the party after such a disclosure, see section 38PF.
(2) The court may make such orders as the court considers appropriate prohibiting or restricting communication mentioned in subsection (1) about any matter connected with the proceeding if:
(a) the court is satisfied that it is in the interest of national security to make such orders; and
(b) the orders are not inconsistent with this Act or regulations made under this Act.
(1) At the same time as the court appoints a special advocate of a party to a civil proceeding, the court must make an order setting a day on which the Attorney‑General must:
(a) disclose to the special advocate the information that is subject to whichever of the following is in effect at that time:
(i) a certificate given to the party or the party’s legal representative under section 38F or 38H in relation to the proceeding;
(ii) an order made under subsection 38J(2), (3) or (4) in relation to the proceeding; and
(b) if subparagraph (a)(i) applies—give to the special advocate a statement of the Attorney‑General’s reasons for withholding the information from the party.
(2) The Attorney‑General must comply with the order.
(3) After the Attorney‑General discloses the information to the special advocate under subsection (2), the special advocate must not disclose the information (whether in the proceeding or otherwise) other than:
(a) in permitted circumstances specified in the certificate given under section 38F or 38H or in accordance with the order (if any) made under subsection 38J(2), (3) or (4); or
(b) to:
(i) the person who applied for the relevant control order (within the meaning of Part 5.3 of the
Criminal Code ) or that person’s legal representative; or(ii) the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General; or
(c) to the court at a part of a hearing in the proceeding during which the party and the party’s legal representative are not entitled to be present.
Note: The special advocate commits an offence if he or she contravenes this subsection: see subsection 46H(1).
(4) Paragraphs 38J(2)(a) and (3)(a) and subsections 38L(2) and (4) (about the persons covered by special court orders) do not apply to the special advocate.
(1) This section applies after the Attorney‑General discloses information to a special advocate of a party to a civil proceeding under subsection 38PE(2) in relation to the proceeding.
Communication by special advocate
(2) The special advocate must not communicate with any person about any matter connected with the proceeding, other than communicating:
(a) with:
(i) the magistrate, judge or judges comprising the court; or
(ii) the person who applied for the relevant control order (within the meaning of Part 5.3 of the
Criminal Code ) or that person’s legal representative; or(iii) the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General; or
(b) with the party or the party’s legal representative in accordance with subsections (3) and (4) or (10); or
(c) with any other person if the communication is:
(i) about matters not connected with the substance of the proceeding; and
(ii) necessary for administrative purposes.
Note 1: The special advocate commits an offence if he or she contravenes this subsection: see subsection 46H(3).
Note 2: The restriction in this subsection continues to apply to communication by the special advocate after the proceeding ends, or after he or she ceases to be a special advocate: see section 38PG.
Communication by special advocate—written communication with party through court
(3) The special advocate may submit a written communication to the court for the court’s approval and for forwarding to the relevant person or the person’s legal representative.
(4) The court must:
(a) if the court is satisfied that the communication is not likely to prejudice national security—forward the communication without amendment to the relevant person or the person’s legal representative; or
(b) if paragraph (a) does not apply:
(i) amend the communication to the extent necessary for the court to be satisfied that the communication is not likely to prejudice national security; and
(ii) forward the amended communication to the relevant person or the person’s legal representative; or
(c) if paragraph (a) does not apply and the court is satisfied that it is not practicable to amend the communication so that it is not likely to prejudice national security:
(i) decline to forward the communication; and
(ii) notify the special advocate of that decision.
(5) The court may consult the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General before making a decision under subsection (4).
(6) If the court forwards a communication from the special advocate to the relevant person or the person’s legal representative under paragraph (4)(a) or (b), the court must give a description of the communication to:
(a) the person who applied for the relevant control order or that person’s legal representative; and
(b) the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General.
(7) The description must not disclose information that is the subject of legal professional privilege (see subsection 38PC(2)).
Communication by party
(8) The party may communicate with the special advocate about any matter connected with the proceeding only in writing through the party’s legal representative.
Note: The party commits an offence if he or she contravenes this subsection: see subsection 46H(4).
(9) The party’s legal representative may communicate with the special advocate about any matter connected with the proceeding only in writing.
Note: The party’s legal representative commits an offence if he or she contravenes this subsection: see subsection 46H(5).
(10) The special advocate may give to the party or the party’s legal representative a bare acknowledgement of receipt of a written communication to which subsection (8) or (9) applies.
Note: The special advocate may also reply to the communication through the court in accordance with subsections (3) and (4).
Subsections 38PD(2) and 38PE(3) and sections 38PF and 46H apply:
(a) in relation to a civil proceeding even if the proceeding has ended; and
(b) in relation to a person who has ceased to be a special advocate of a party to a civil proceeding in the same way as those provisions apply in relation to a special advocate of the party.
To avoid doubt, for the purposes of this Subdivision and section 46H:
(a) a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or
(b) proceedings relating to such a hearing;
are taken to be part of the civil proceeding.
(1) The regulations may determine matters relating to special advocates.
(2) Without limiting subsection (1), the regulations may determine matters relating to the terms on which a person serves as a special advocate, including terms relating to:
(a) remuneration; or
(b) conflicts of interest; or
(c) immunity.
Add:
Disclosure of information by special advocate
(1) A person commits an offence if:
(a) the Attorney‑General discloses information to the person under subsection 38PE(2) in relation to a civil proceeding; and
(b) the person discloses the information (whether in the proceeding or otherwise); and
(c) paragraphs 38PE(3)(a), (b) and (c) do not apply to the disclosure by the person.
Penalty: Imprisonment for 2 years.
(2) To avoid doubt, for the purposes of subsection (1) it does not matter whether the person also obtains the information in some way additional to that mentioned in paragraph (1)(a).
Communication by special advocate after disclosure of information by Attorney‑General
(3) A person commits an offence if:
(a) the Attorney‑General discloses information to the person under subsection 38PE(2) in relation to a civil proceeding; and
(b) the person communicates with another person about any matter connected with the proceeding; and
(c) the communication occurs after the disclosure mentioned in paragraph (a); and
(d) paragraphs 38PF(2)(a), (b) and (c) do not apply to the communication.
Penalty: Imprisonment for 2 years.
Communication by party or legal representative after disclosure of information by Attorney‑General
(4) A person commits an offence if:
(a) the person is or was a party to a civil proceeding; and
(b) the Attorney‑General discloses information to a special advocate of the person under subsection 38PE(2) in relation to the proceeding; and
(c) the person communicates with the special advocate about any matter connected with the proceeding, other than in writing through the party’s legal representative; and
(d) the communication occurs after the disclosure mentioned in paragraph (b).
Penalty: Imprisonment for 2 years.
(5) A person commits an offence if:
(a) the Attorney‑General discloses information to a special advocate of a party to a civil proceeding under subsection 38PE(2) in relation to the proceeding; and
(b) the person communicates with the special advocate about any matter connected with the proceeding, other than in writing; and
(c) the communication occurs after the disclosure mentioned in paragraph (a); and
(d) the first person is the legal representative of the party:
(i) at or after the time disclosure occurs; and
(ii) at or before the time the communication occurs.
Penalty: Imprisonment for 2 years.
Add:
; and (e) states the number of special advocates appointed during the year under section 38PA; and
(f) identifies the proceedings under Division 104 of the
Criminal Code in relation to which the special advocates were appointed.
Repeal the paragraph, substitute:
(b) the orders are not inconsistent with this Act; and
(c) the orders are not inconsistent with regulations made under this Act.
Insert:
(1B) Paragraph (1A)(c) does not apply to orders made on an application by the Attorney‑General or a representative of the Attorney‑General for the orders.
Repeal the paragraph, substitute:
(b) the orders are not inconsistent with this Act; and
(c) the orders are not inconsistent with regulations made under this Act.
Insert:
(3B) Paragraph (3A)(c) does not apply to orders made on an application by the Attorney‑General or a representative of the Attorney‑General for the orders.
Repeal the subsection, substitute:
(2) Regulations prescribing a matter described in paragraph (1)(a) or (b) of this section apply in relation to national security information disclosed, or to be disclosed, in a federal criminal proceeding only if:
(a) there is not an order in force under section 22 relating to that information; or
(b) there is an order in force under section 22 relating to that information but the order does not deal with that matter.
Example: Suppose regulations made for the purpose of subsection (1) of this section deal with ways of storing, handling and destroying information, and an order is in force under section 22 dealing with storing and handling, but not destroying, particular information. The regulations do not apply to the storage and handling of the information dealt with by the order, but that information must be destroyed in accordance with the regulations.
Repeal the subsection, substitute:
(2) Regulations prescribing a matter described in paragraph (1)(a) or (b) of this section apply in relation to national security information disclosed, or to be disclosed, in a civil proceeding only if:
(a) there is not an order in force under section 38B relating to that information; or
(b) there is an order in force under section 38B relating to that information but the order does not deal with that matter.
Example: Suppose regulations made for the purpose of subsection (1) of this section deal with ways of storing, handling and destroying information, and an order is in force under section 38B dealing with storing and handling, but not destroying, particular information. The regulations do not apply to the storage and handling of the information dealt with by the order, but that information must be destroyed in accordance with the regulations.
(1) The amendments of sections 23 and 38C of the
National Security Information (Criminal and Civil Proceedings) Act 2004 made by this Schedule apply in relation to orders made on or after the commencement of this Schedule.(2) The
National Security Information (Criminal and Civil Proceedings) Regulation 2015 , as in force immediately before the commencement of this Schedule, has effect on and after that commencement as if it had been made on that commencement.(3) However, subsection 5(2) of the
National Security Information (Criminal and Civil Proceedings) Regulation 2015 does not have effect on or after that commencement, except in relation to orders made before that commencement.(4) This item does not prevent the amendment or repeal of the
National Security Information (Criminal and Civil Proceedings) Regulation 2015 .
1
Subsection 355‑65(2) in Schedule 1 (at the end of the table) Add:
10 | an *Australian government agency | is for the purpose of preventing, detecting, disrupting or investigating conduct that relates to a matter of security as defined by section 4 of the |
Insert:
(1) Section 355‑155 does not apply if:
(a) the entity is an officer of an *Australian government agency; and
(b) the information was acquired by the entity under the exception in subsection 355‑65(1) operating in relation to item 10 in the table in subsection 355‑65(2); and
(c) the record is made for, or the disclosure is to:
(i) the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or
(ii) a member of staff referred to in subsection 31(1) of the
Ombudsman Act 1976 ; and(d) the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the
Ombudsman Act 1976 .Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the
Criminal Code .(2) Section 355‑155 does not apply if:
(a) the entity is:
(i) the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or
(ii) a member of staff referred to in subsection 31(1) of the
Ombudsman Act 1976 ; and(b) the information was acquired by the entity under subsection (1) or this subsection; and
(c) the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the
Ombudsman Act 1976 .Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the
Criminal Code .
The amendments of the
Taxation Administration Act 1953 made by this Schedule apply in relation to records and disclosures of information made on or after the commencement of this item, whether the information was obtained before, on or after that commencement.
Insert:
entrusted person means:
(a) an ASIO employee; or
(b) an ASIO affiliate; or
(c) a person who has entered into a contract, agreement or arrangement with ASIO (other than as an ASIO affiliate).
2
Subsection 18A(5) (definition of entrusted person ) Repeal the definition.
3
Subsection 18B(5) (definition of entrusted person ) Repeal the definition.
Repeal the subsections, substitute:
Disclosures by entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a special intelligence operation.
Penalty: Imprisonment for 5 years.
Note: Recklessness is the fault element for paragraphs (1)(b) and (d)—see section 5.6 of the
Criminal Code .(1A) Strict liability applies to paragraph (1)(a).
Note: For strict liability, see section 6.1 of the
Criminal Code .(1B) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a special intelligence operation; and
(e) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation;
(ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.
Penalty: Imprisonment for 10 years.
Note: Recklessness is the fault element for paragraphs (1B)(b) and (d) and subparagraph (1B)(e)(ii)—see section 5.6 of the
Criminal Code .(1C) Strict liability applies to paragraph (1B)(a).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Other disclosures
(2) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a special intelligence operation; and
(c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.
Penalty: Imprisonment for 5 years.
Note: Recklessness is the fault element for paragraphs (2)(b) and (c)—see section 5.6 of the
Criminal Code .(2A) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a special intelligence operation; and
(c) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation;
(ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.
Penalty: Imprisonment for 10 years.
Note: Recklessness is the fault element for paragraph (2A)(b)—see section 5.6 of the
Criminal Code .
Omit “and (2)”, substitute “to (2A)”.
Insert:
(3A) Subsections (2) and (2A) do not apply to a person disclosing information if:
(a) the information has already been communicated, or made available, to the public (the
prior publication ); and(b) the person was not involved in the prior publication (whether directly or indirectly); and
(c) at the time of the disclosure, the person believes that the disclosure:
(i) will not endanger the health or safety of any person; and
(ii) will not prejudice the effective conduct of a special intelligence operation; and
(d) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3A)—see subsection 13.3(3) of the
Criminal Code .
Omit “or (2)”, substitute “, (1B), (2) or (2A)”.
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