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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Counter-Terrorism Legislation
Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
(Attorney-General)
A Bill for an Act to amend the law relating to
counter-terrorism, and for related purposes
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Restrictions on bail and parole
3
Part 1--Amendments
3
Crimes Act 1914
3
Part 2--Application of amendments
7
Schedule 2--Amendments relating to continuing detention
orders
8
Part 1--Concurrent and cumulative sentences
8
Criminal Code Act 1995
8
Part 2--Giving information in applications to offenders
11
Criminal Code Act 1995
11
Part 3--Application provisions
13
Criminal Code Act 1995
13
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
1
A Bill for an Act to amend the law relating to
1
counter-terrorism, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Counter-Terrorism Legislation Amendment (2019
5
Measures No. 1) Act 2019.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Restrictions on bail and parole Schedule 1
Amendments Part 1
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
3
Schedule 1--Restrictions on bail and parole
1
Part 1--Amendments
2
Crimes Act 1914
3
1 Subsection 15AA(1)
4
Omit "(the defendant) charged with, or convicted of, an offence
5
covered by subsection (2)", substitute "covered by subsection (2) or
6
(2A), in relation to an offence against a law of the Commonwealth,".
7
2 At the end of subsection 15AA(1)
8
Add:
9
Note:
For persons under 18 years of age, see subsection (3AA).
10
Persons covered by this section
11
3 Subsection 15AA(2)
12
Omit "covers:", substitute "covers a person (the defendant) charged
13
with, or convicted of, any of the following offences:".
14
4 Paragraph 15AA(2)(a)
15
Repeal the paragraph, substitute:
16
(a) a terrorism offence;
17
5 Subparagraphs 15AA(2)(b)(ii) and (c)(ii)
18
Omit "and".
19
6 Paragraph 15AA(2)(d)
20
Omit "; and", substitute ";".
21
7 After subsection 15AA(2)
22
Insert:
23
(2A) This subsection covers the following persons:
24
(a) a person who is subject to a control order within the meaning
25
of Part 5.3 of the Criminal Code (terrorism);
26
Schedule 1 Restrictions on bail and parole
Part 1 Amendments
4
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
(b) a person who the bail authority is satisfied has made
1
statements or carried out activities supporting, or advocating
2
support for, terrorist acts within the meaning of that Part.
3
8 Subsection 15AA(3A)
4
Repeal the subsection, substitute:
5
Determining exceptional circumstances in relation to persons
6
under 18 years of age
7
(3AA) In determining whether exceptional circumstances exist to justify
8
granting bail to a person who is under 18 years of age, without
9
limiting the matters the bail authority may have regard to, the bail
10
authority must have regard to:
11
(a) the protection of the community as the paramount
12
consideration; and
13
(b) the best interests of the person as a primary consideration.
14
Appealing decisions of bail authority
15
(3A) Despite any law of the Commonwealth, the Director of Public
16
Prosecutions, or a person covered by subsection (2) or (2A), may
17
appeal against a decision of a bail authority:
18
(a) to grant bail to a person covered by subsection (2) or (2A) on
19
the basis that the bail authority is satisfied that exceptional
20
circumstances exist; or
21
(b) to refuse to grant bail to a person covered by subsection (2)
22
or (2A) on the basis that the bail authority is not satisfied that
23
exceptional circumstances exist.
24
9 Before subsection 15AA(3C)
25
Insert:
26
Staying decisions to grant bail if decision appealed
27
10 Paragraph 15AA(3C)(a)
28
Omit "charged with or convicted of an offence covered by
29
subsection (2)", substitute "covered by subsection (2) or (2A)".
30
Restrictions on bail and parole Schedule 1
Amendments Part 1
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
5
11 Subsection 15AA(4)
1
Repeal the subsection, substitute:
2
Relationship with laws of States and Territories
3
(4) To avoid doubt, except as provided by subsections (1), (3AA),
4
(3A), (3B), (3C) and (3D), this section does not affect the operation
5
of a law of a State or a Territory.
6
Note:
These provisions indirectly affect laws of the States and Territories
7
because they affect section 68 of the Judiciary Act 1903.
8
12 Before subsection 15AA(5)
9
Insert:
10
Definitions
11
13 After subsection 19AG(4)
12
Insert:
13
Fixing non-parole periods for persons under 18 years of age
14
(4A) In imposing a sentence for an offence covered by this section on a
15
person who is under 18 years of age, the court must comply with
16
subsection (2) unless the court is satisfied that exceptional
17
circumstances exist to justify fixing a shorter single non-parole
18
period.
19
(4B) In determining whether exceptional circumstances exist to justify
20
fixing a shorter single non-parole period in relation to the person,
21
without limiting the matters the court may have regard to, the court
22
must have regard to:
23
(a) the protection of the community as the paramount
24
consideration; and
25
(b) the best interests of the person as a primary consideration.
26
Relationship with sections 19AB, 19AC, 19AD, 19AE and 19AR
27
14 Subsection 19AL(1) (note)
28
Omit "Note", substitute "Note 1".
29
Schedule 1 Restrictions on bail and parole
Part 1 Amendments
6
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
15 At the end of subsection 19AL(1)
1
Add:
2
Note 2:
See also sections 19ALA (matters that may be considered in decisions
3
about parole orders) and 19ALB (decisions about parole orders--
4
terrorism and control orders).
5
16 After section 19ALA
6
Insert:
7
19ALB Decisions about parole orders--terrorism and control
8
orders
9
(1) Despite any law of the Commonwealth, the Attorney-General must
10
not make a parole order in relation to a person covered by
11
subsection (2) unless the Attorney-General is satisfied that
12
exceptional circumstances exist to justify making a parole order.
13
(2) This subsection covers the following persons:
14
(a) a person who has been convicted of a terrorism offence,
15
including a person currently serving a sentence for a
16
terrorism offence;
17
(b) a person who is subject to a control order within the meaning
18
of Part 5.3 of the Criminal Code (terrorism);
19
(c) a person who the Attorney-General is satisfied has made
20
statements or carried out activities supporting, or advocating
21
support for, terrorist acts within the meaning of that Part.
22
Determining exceptional circumstances in relation to persons
23
under 18 years of age
24
(3) In determining whether exceptional circumstances exist to justify
25
making a parole order in relation to a person who is under 18 years
26
of age, without limiting the matters the Attorney-General may have
27
regard to, the Attorney-General must have regard to:
28
(a) the protection of the community as the paramount
29
consideration; and
30
(b) the best interests of the person as a primary consideration.
31
Restrictions on bail and parole Schedule 1
Application of amendments Part 2
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
7
Part 2--Application of amendments
1
17 Application
--previous offences and activities
2
The amendments of the Crimes Act 1914 made by Part 1 of this
3
Schedule apply in relation to a decision in relation to bail or parole
4
made on or after the commencement of this item (whether the decision
5
applies to a person because of an offence, control order or action
6
committed, made or undertaken before, on or after that
7
commencement).
8
Schedule 2 Amendments relating to continuing detention orders
Part 1 Concurrent and cumulative sentences
8
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
Schedule 2--Amendments relating to
1
continuing detention orders
2
Part 1--Concurrent and cumulative sentences
3
Criminal Code Act 1995
4
1 Section 105A.2 of the Criminal Code (definition of terrorist
5
offender)
6
After "see", insert "section 105A.2A,".
7
2 After section 105A.2 of the Criminal Code
8
Insert:
9
105A.2A Persons who have escaped from custody
10
For the purposes of this Division (except section 105A.4), if a
11
person escapes from custody, the person is taken to be detained in
12
custody and serving a sentence of imprisonment until the person
13
resumes serving the person's sentence.
14
3 Paragraph 105A.3(1)(b) of the Criminal Code
15
Omit "either", substitute "any of the following applies".
16
4 Subparagraph 105A.3(1)(b)(i) of the Criminal Code
17
Omit "; or", substitute ";".
18
5 After subparagraph 105A.3(1)(b)(i) of the Criminal Code
19
Insert:
20
(ia) the person is detained in custody and serving a sentence
21
of imprisonment for an offence other than the offence
22
referred to in paragraph (a), and has been continuously
23
detained in custody since being convicted of the offence
24
referred to in that paragraph;
25
6 Paragraph 105A.3(1)(c) of the Criminal Code
26
Repeal the paragraph, substitute:
27
Amendments relating to continuing detention orders Schedule 2
Concurrent and cumulative sentences Part 1
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
9
(c) if subparagraph (b)(i) applies--the person will be at least 18
1
years old when the sentence referred to in that subparagraph
2
ends; and
3
(d) if subparagraph (b)(ia) applies--the person will be at least 18
4
years old when the sentence referred to in that subparagraph
5
ends.
6
7 After subsection 105A.3(1) of the Criminal Code
7
Insert:
8
(1A) To avoid doubt, subparagraph (1)(b)(ia) applies:
9
(a) whether the offence for which the person is serving the
10
sentence of imprisonment is an offence against a law of the
11
Commonwealth, a State or a Territory; and
12
(b) whether the sentence served for the offence referred to in
13
paragraph (1)(a) was served concurrently or cumulatively, or
14
both, with:
15
(i) the sentence referred to in subparagraph (1)(b)(ia); or
16
(ii) any of the other sentences served by the person since
17
being convicted of the offence referred to in
18
paragraph (1)(a) (the other sentences); and
19
(c) whether the sentence referred to in subparagraph (1)(b)(ia) or
20
the other sentences were imposed before or after, or at the
21
same time as, the sentence for the offence referred to in
22
paragraph (1)(a); and
23
(d) whether or not the person has been continuously serving a
24
sentence of imprisonment for an offence since being
25
convicted of the offence referred to in paragraph (1)(a).
26
8 Paragraph 105A.5(2)(a) of the Criminal Code
27
Repeal the paragraph, substitute:
28
(a) a sentence of imprisonment referred to in:
29
(i) subparagraph 105A.3(1)(b)(i); or
30
(ii) subparagraph 105A.3(1)(b)(ia);
31
that the offender is serving, at the end of which the offender
32
would be required to be released into the community; or
33
Schedule 2 Amendments relating to continuing detention orders
Part 1 Concurrent and cumulative sentences
10
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
9 Paragraph 105A.9(2)(a) of the Criminal Code
1
Omit "either", substitute "any".
2
10 Subparagraph 105A.9(2)(a)(i) of the Criminal Code
3
Repeal the subparagraph, substitute:
4
(i) if subparagraph 105A.3(1)(b)(i) applies--the sentence
5
of imprisonment referred to in that subparagraph that
6
the offender is serving;
7
(ia) if subparagraph 105A.3(1)(b)(ia) applies--the sentence
8
of imprisonment referred to in that subparagraph that
9
the offender is serving;
10
11 Subparagraph 105A.18(1)(b)(i) of the Criminal Code
11
Repeal the subparagraph, substitute:
12
(i) if subparagraph 105A.3(1)(b)(i) applies--the sentence
13
of imprisonment referred to in that subparagraph that
14
the offender was serving ends; or
15
(ia) if subparagraph 105A.3(1)(b)(ia) applies--the sentence
16
of imprisonment referred to in that subparagraph that
17
the offender was serving ends; or
18
12 Paragraph 105A.18(2)(a) of the Criminal Code
19
Repeal the paragraph, substitute:
20
(a) the offender is taken to remain a terrorist offender:
21
(i) who is detained in custody and serving a sentence of
22
imprisonment; or
23
(ii) in relation to whom a continuing detention order or
24
interim detention order is in force;
25
despite being released from custody; and
26
13 At the end of subsection 105A.23(1) of the Criminal Code
27
Add ", or at the end of any later sentence if the person is continuously
28
detained in custody and would otherwise be released into the
29
community".
30
Amendments relating to continuing detention orders Schedule 2
Giving information in applications to offenders Part 2
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
11
Part 2--Giving information in applications to
1
offenders
2
Criminal Code Act 1995
3
14 Paragraph 105A.5(3)(aa) of the Criminal Code
4
After "made", insert ", except any information, material or facts that are
5
likely to be protected by public interest immunity (whether the claim for
6
public interest immunity is to be made by the AFP Minister or any other
7
person)".
8
15 At the end of subsection 105A.5(3) of the Criminal Code
9
Add:
10
Note 3:
For public interest immunity, see also subsection (9).
11
16 Subsection 105A.5(6) of the Criminal Code
12
Repeal the subsection (including the note), substitute:
13
(6) However, the applicant must (subject to subsection (7)) give the
14
offender personally a complete copy of the application if:
15
(a) the decision-maker decides not to take any of the actions
16
referred to in any of paragraphs (5)(a) to (d); or
17
(b) the Minister gives a certificate referred to in paragraph (5)(a);
18
or
19
(c) the Court makes an order in relation to action taken by the
20
decision-maker under paragraph (5)(b) or (d).
21
Note:
For giving an offender documents, see section 105A.15.
22
(7) Subsection (6) is subject to:
23
(a) the certificate referred to in paragraph (5)(a); or
24
(b) any order made by the Court.
25
(8) The copy of the application must be given:
26
(a) within 2 business days of:
27
(i) the decision-maker's decision not to take any of the
28
actions referred to in any of paragraphs (5)(a) to (d); or
29
Schedule 2 Amendments relating to continuing detention orders
Part 2 Giving information in applications to offenders
12
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
No. , 2019
(ii) the giving of the certificate referred to in
1
paragraph (5)(a); or
2
(iii) the order referred to in paragraph (6)(c) being made; and
3
(b) within a reasonable period before the preliminary hearing
4
referred to in section 105A.6.
5
Public interest immunity
6
(9) If information (however described) is excluded from an application
7
on the basis of public interest immunity as mentioned in
8
paragraph (3)(aa), the applicant must give written notice to the
9
offender personally stating that the information has been excluded
10
on the basis of public interest immunity. The notice must be given
11
at the time that a copy of the application is given to the offender.
12
Amendments relating to continuing detention orders Schedule 2
Application provisions Part 3
No. , 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill
2019
13
Part 3--Application provisions
1
Criminal Code Act 1995
2
17 In the appropriate position in Division 106 of the Criminal
3
Code
4
Insert:
5
106.10 Application--Counter-Terrorism Legislation Amendment
6
(2019 Measures No. 1) Act 2019
7
(1) The amendments of Division 105A made by Part 1 of Schedule 2
8
to the Counter-Terrorism Legislation Amendment (2019 Measures
9
No. 1) Act 2019 apply in relation to:
10
(a) any person who, on the day this section commences, is
11
detained in custody; and
12
(b) any person who, on or after that day, begins a sentence of
13
imprisonment for an offence referred to in
14
paragraph 105A.3(1)(a) (whether the conviction for the
15
offence occurred before, on or after that day).
16
(2) To avoid doubt, the amendments of Division 105A made by Part 1
17
of Schedule 2 to the Counter-Terrorism Legislation Amendment
18
(2019 Measures No. 1) Act 2019 apply in relation to a person
19
referred to in paragraph (1)(a) of this section whose sentence of
20
imprisonment for an offence referred to in paragraph 105A.3(1)(a)
21
ended before the day this section commences.
22
(3) The amendments of section 105A.5 made by Part 2 of Schedule 2
23
to the Counter-Terrorism Legislation Amendment (2019 Measures
24
No. 1) Act 2019 apply in relation to any application for a
25
continuing detention order made after the commencement of this
26
section.
27