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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015
No. , 2015
(Attorney-General)
A Bill for an Act to amend the law relating to
counter-terrorism, and for related purposes
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Receiving funds for legal assistance
3
Criminal Code Act 1995
3
Schedule 2--Control orders for young people
4
Criminal Code Act 1995
4
Schedule 3--Control orders and tracking devices
15
Criminal Code Act 1995
15
Schedule 4--Issuing court for control orders
16
Criminal Code Act 1995
16
Schedule 5--Preventative detention orders
17
Criminal Code Act 1995
17
Schedule 6--Issuing authorities for preventative detention
orders
18
Criminal Code Act 1995
18
Schedule 7--Application of amendments of the Criminal Code
19
Criminal Code Act 1995
19
Schedule 8--Monitoring of compliance with control orders etc.
21
Crimes Act 1914
21
Schedule 9--Telecommunications interception
53
Part 1--Amendments
53
Telecommunications (Interception and Access) Act 1979
53
Part 2--Transitional provisions
78
Schedule 10--Surveillance devices
79
Surveillance Devices Act 2004
79
Schedule 11--Offence of advocating genocide
102
Criminal Code Act 1995
102
ii
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 12--Security assessments
104
Part 1--Main amendments
104
Australian Security Intelligence Organisation Act 1979
104
Part 2--Consequential amendments
106
Administrative Appeals Tribunal Act 1975
106
Schedule 13--Classification of publications etc.
107
Classification (Publications, Films and Computer Games) Act 1995
107
Schedule 14--Delayed notification search warrants
108
Part 1--Amendments
108
Crimes Act 1914
108
Part 2--Application of amendments
111
Schedule 15--Protecting national security information in
control order proceedings
112
National Security Information (Criminal and Civil Proceedings) Act
2004
112
Public Interest Disclosure Act 2013
118
Schedule 16--Dealing with national security information in
proceedings
119
National Security Information (Criminal and Civil Proceedings) Act
2004
119
Schedule 17--Disclosures by taxation officers
122
Taxation Administration Act 1953
122
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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 may be cited as the Counter-Terrorism Legislation
5
Amendment Act (No. 1) 2015.
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 Bill (No. 1) 2015
No. , 2015
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
Receiving funds for legal assistance Schedule 1
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
3
Schedule 1--Receiving funds for legal
1
assistance
2
3
Criminal Code Act 1995
4
1 After paragraph 102.6(3)(a) of the Criminal Code
5
Insert:
6
(aa) legal advice or legal representation in connection with the
7
question of whether the organisation is a terrorist
8
organisation; or
9
2 Subparagraph 102.8(4)(d)(ii) of the Criminal Code
10
Repeal the subparagraph, substitute:
11
(ii) the question of whether the organisation is a terrorist
12
organisation; or
13
Schedule 2 Control orders for young people
4
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 2--Control orders for young people
1
2
Criminal Code Act 1995
3
1 Subsection 100.1(1) of the Criminal Code
4
Insert:
5
court appointed advocate has the meaning given by
6
subsection 104.28AA(1).
7
2 Paragraph 104.2(3)(b) of the Criminal Code
8
Repeal the paragraph, substitute:
9
(b) if the person is at least 18 years of age and the member has
10
information about the person's age--that information; and
11
(ba) if the person is under 18 years of age--information about the
12
person's age; and
13
3 Subsection 104.2(3) of the Criminal Code (note)
14
Omit "16", substitute "14".
15
4 Subsection 104.4(2) of the Criminal Code
16
Omit all the words after "adapted,", substitute:
17
the court must take into account:
18
(a) the impact of the obligation, prohibition or restriction on the
19
person's circumstances (including the person's financial and
20
personal circumstances); and
21
(b) if the person is 14 to 17 years of age--the best interests of the
22
person.
23
5 After subsection 104.4(2) of the Criminal Code
24
Insert:
25
(2A) In determining what is in the best interests of a person for the
26
purposes of paragraph (2)(b), the court must take into account the
27
following:
28
(a) the age, maturity, sex and background (including lifestyle,
29
culture and traditions) of the person;
30
(b) the physical and mental health of the person;
31
Control orders for young people Schedule 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
5
(c) the benefit to the person of having a meaningful relationship
1
with his or her family and friends;
2
(d) the right of the person to receive an education;
3
(e) the right of the person to practise his or her religion;
4
(f) any other matter the court considers relevant.
5
6 Subsection 104.5(1) of the Criminal Code (note 2)
6
Repeal the note, substitute:
7
Note 2:
If the person is 14 to 17 years of age, then the court must appoint a
8
lawyer to be an independent advocate of the person (see
9
section 104.28AA) and a confirmed control order must not end more
10
than 3 months after the day on which the interim control order is made
11
(see section 104.28).
12
7 Subparagraphs 104.12(1)(b)(vi) and (ix) of the Criminal
13
Code
14
After "monitor", insert "or the person's court appointed advocate".
15
8 Subparagraph 104.12(1)(b)(ix) of the Criminal Code
16
Omit "and" (last occurring).
17
9 At the end of paragraph 104.12(1)(b) of the Criminal Code
18
Add:
19
(x) if the person is 14 to 17 years of age--that he or she has
20
a court appointed advocate, and the name and contact
21
details of that advocate; and
22
10 Subsection 104.12(5) of the Criminal Code (heading)
23
Repeal the heading, substitute:
24
If person is resident, or order made, in Queensland
25
11 At the end of section 104.12 of the Criminal Code
26
Add:
27
If person is 14 to 17
28
(6) As soon as practicable after an interim control order is made in
29
relation to a person who is 14 to 17 years of age, and at least 48
30
Schedule 2 Control orders for young people
6
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
hours before the day specified as mentioned in
1
paragraph 104.5(1)(e), an AFP member must:
2
(a) serve a copy of the order personally on the person's court
3
appointed advocate; and
4
(b) take reasonable steps to serve a copy of the order personally
5
on at least one parent or guardian of the person.
6
12 Subparagraph 104.12A(2)(a)(iii) of the Criminal Code
7
After "other", insert "written".
8
13 At the end of subsection 104.12A(2) of the Criminal Code
9
Add:
10
; and (c) if the person is 14 to 17 years of age:
11
(i) serve a copy of the documents mentioned in
12
paragraph (a) personally on the person's court appointed
13
advocate; and
14
(ii) if a parent or guardian of the person was served with a
15
copy of the interim control order under
16
paragraph 104.12(6)(b)--take reasonable steps to serve
17
a copy of the documents mentioned in paragraph (a)
18
personally on that parent or guardian.
19
14 At the end of paragraph 104.12A(4)(b) of the Criminal
20
Code
21
Add:
22
; and (iv) if the person is 14 to 17 years of age--cause a copy of
23
the annotated order and notification to be served
24
personally on the person's court appointed advocate;
25
and
26
(v) if the person is 14 to 17 years of age and a parent or
27
guardian of the person was served with a copy of the
28
interim control order under paragraph 104.12(6)(b)--
29
cause reasonable steps to be taken to serve personally
30
on that parent or guardian a copy of the annotated order
31
and notification.
32
15 Before subsection 104.14(1) of the Criminal Code
33
Insert:
34
Control orders for young people Schedule 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
7
When this section applies
1
(1A) This section applies if:
2
(a) an interim control order is made in relation to a person; and
3
(b) an election is made under section 104.12A to confirm the
4
order; and
5
(c) the issuing court is satisfied on the balance of probabilities
6
that section 104.12 and subsection 104.12A(2) have been
7
complied with in relation to the order.
8
16 Subsection 104.14(1) of the Criminal Code
9
Omit "If an election has been made to confirm an interim control order,
10
then, on", substitute "On".
11
17 Paragraph 104.14(1)(e) of the Criminal Code
12
Omit "(unless the monitor is already a representative of the person)".
13
18 At the end of subsection 104.14(1) of the Criminal Code
14
Add:
15
; (f) if the person is 14 to 17 years of age--the person's court
16
appointed advocate.
17
19 Subsection 104.14(4) of the Criminal Code
18
Repeal the subsection (not including the heading), substitute:
19
(4) The court may confirm the order without variation if none of the
20
following persons attend the court on the specified day:
21
(a) the person in relation to whom the order is made;
22
(b) a representative of the person;
23
(c) if the person is a resident of Queensland, or the court made
24
the order in Queensland--the Queensland public interest
25
monitor;
26
(d) if the person is 14 to 17 years of age--the person's court
27
appointed advocate.
28
20 At the end of subsection 104.14(5) of the Criminal Code
29
Add:
30
; (d) if the person is 14 to 17 years of age--the person's court
31
appointed advocate.
32
Schedule 2 Control orders for young people
8
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
21 Subsection 104.16(1) of the Criminal Code (note)
1
Repeal the note, substitute:
2
Note:
If the person is 14 to 17 years of age, then a confirmed control order
3
must not end more than 3 months after the day on which the interim
4
control order is made (see section 104.28).
5
22 Subparagraph 104.17(1)(b)(iii) of the Criminal Code
6
After "monitor", insert "or the person's court appointed advocate".
7
23 At the end of section 104.17 of the Criminal Code
8
Add:
9
If person is 14 to 17
10
(4) If the person is 14 to 17 years of age, then as soon as practicable
11
after the interim control order is declared to be void, revoked or
12
confirmed (with or without variation) under section 104.14, an
13
AFP member must:
14
(a) serve a copy of the declaration, revocation or confirmed
15
control order personally on the person's court appointed
16
advocate; and
17
(b) if a parent or guardian of the person was served with a copy
18
of the interim control order under paragraph 104.12(6)(b)--
19
take reasonable steps to serve a copy of the declaration,
20
revocation or confirmed control order personally on that
21
parent or guardian.
22
24 Paragraph 104.18(4)(e) of the Criminal Code
23
Omit "(unless the monitor is a representative of the person)".
24
25 At the end of subsection 104.18(4) of the Criminal Code
25
Add:
26
; (f) if the person is 14 to 17 years of age--the person's court
27
appointed advocate.
28
26 At the end of subsection 104.19(2) of the Criminal Code
29
Add:
30
; (c) if the person is 14 to 17 years of age--the person's court
31
appointed advocate.
32
Control orders for young people Schedule 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
9
27 After subsection 104.19(2) of the Criminal Code
1
Insert:
2
(2A) If the person is 14 to 17 years of age, and a parent or guardian of
3
the person was served with a copy of the interim control order
4
under paragraph 104.12(6)(b), the Commissioner must cause
5
reasonable steps to be taken to give that parent or guardian written
6
notice of both the application and the grounds on which the
7
revocation or variation is sought.
8
28 Paragraph 104.19(3)(e) of the Criminal Code
9
Omit "(unless the monitor is a representative of the person)".
10
29 At the end of subsection 104.19(3) of the Criminal Code
11
Add:
12
; (f) if the person is 14 to 17 years of age--the person's court
13
appointed advocate.
14
30 Subsection 104.20(3) of the Criminal Code
15
Repeal the subsection, substitute:
16
(3) As soon as practicable after a confirmed control order in relation to
17
a person is revoked or varied, an AFP member must:
18
(a) serve the revocation or variation personally on the person;
19
and
20
(b) if the person is 14 to 17 years of age:
21
(i) serve a copy of the revocation or variation personally on
22
the person's court appointed advocate; and
23
(ii) if a parent or guardian of the person was served with a
24
copy of the interim control order under
25
paragraph 104.12(6)(b)--take reasonable steps to serve
26
a copy of the revocation or variation personally on that
27
parent or guardian.
28
31 Paragraph 104.23(2)(d) of the Criminal Code
29
Repeal the paragraph, substitute:
30
(d) if the person is at least 18 years of age and the Commissioner
31
has information about the person's age--that information;
32
and
33
Schedule 2 Control orders for young people
10
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(e) if the person is under 18 years of age--information about the
1
person's age.
2
32 Subsection 104.23(2) of the Criminal Code (note 1)
3
Omit "16", substitute "14".
4
33 Subsection 104.23(3) of the Criminal Code
5
Repeal the subsection, substitute:
6
(3) As soon as practicable after an application is made under
7
subsection (1), the Commissioner must:
8
(a) cause the documents mentioned in subsection (3AA) to be
9
served personally on the person in relation to whom the order
10
is made; and
11
(b) if the person is a resident of Queensland, or the court will
12
hear the application in Queensland--cause the documents
13
mentioned in subsection (3AA) to be given to the Queensland
14
public interest monitor; and
15
(c) if the person is 14 to 17 years of age:
16
(i) cause the documents mentioned in subsection (3AA) to
17
be served personally on the person's court appointed
18
advocate; and
19
(ii) if a parent or guardian of the person was served with a
20
copy of the interim control order under
21
paragraph 104.12(6)(b)--take reasonable steps to cause
22
the documents mentioned in subsection (3AA) to be
23
served personally on that parent or guardian.
24
(3AA) The documents are the following:
25
(a) written notice of the application and the grounds on which
26
the variation is sought;
27
(b) a copy of the documents mentioned in paragraph (2)(b);
28
(c) any other written details required to enable the person in
29
relation to whom the order is made to understand and
30
respond to the substance of the facts, matters and
31
circumstances which will form the basis of the variation of
32
the order.
33
34 Subsection 104.23(3A) of the Criminal Code
34
Omit "subsection (3) does", substitute "subsections (3) and (3AA) do".
35
Control orders for young people Schedule 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
11
35 Paragraph 104.23(4)(e) of the Criminal Code
1
Omit "(unless the monitor is a representative of the person)".
2
36 At the end of subsection 104.23(4) of the Criminal Code
3
Add:
4
; (f) if the person is 14 to 17 years of age--the person's court
5
appointed advocate.
6
37 Subsection 104.24(2) of the Criminal Code
7
Omit all the words after "adapted,", substitute:
8
the court must take into account:
9
(a) the impact of the obligation, prohibition or restriction on the
10
person's circumstances (including the person's financial and
11
personal circumstances); and
12
(b) if the person is 14 to 17 years of age--the best interests of the
13
person.
14
38 After subsection 104.24(2) of the Criminal Code
15
Insert:
16
(2A) In determining what is in the best interests of the person for the
17
purposes of paragraph (2)(b), the court must take into account the
18
matters referred to in subsection 104.4(2A).
19
39 Subparagraph 104.26(1)(c)(v) of the Criminal Code
20
After "monitor", insert "or the person's court appointed advocate".
21
40 At the end of section 104.26 of the Criminal Code
22
Add:
23
If person is 14 to 17
24
(5) As soon as practicable after a control order in relation to a person
25
who is 14 to 17 years of age is varied under section 104.24, an AFP
26
member must:
27
(a) serve a copy of the order personally on the person's court
28
appointed advocate; and
29
(b) if a parent or guardian of the person was served with a copy
30
of the interim control order under paragraph 104.12(6)(b)--
31
Schedule 2 Control orders for young people
12
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
take reasonable steps to serve a copy of the order personally
1
on that parent or guardian.
2
41 Subdivision H of Division 104 of Part 5.3 of the Criminal
3
Code (heading)
4
Repeal the heading, substitute:
5
Subdivision H--Special rules for young people (14 to 17)
6
42 Subsection 104.28(1) of the Criminal Code (heading)
7
Repeal the heading, substitute:
8
Rule for people under 14
9
43 Subsection 104.28(1) of the Criminal Code
10
Omit "16", substitute "14".
11
44 Subsection 104.28(2) of the Criminal Code (heading)
12
Repeal the heading, substitute:
13
Rule for people 14 to 17
14
45 Subsection 104.28(2) of the Criminal Code
15
Omit "at least 16 but under 18", substitute "14 to 17 years of age".
16
46 After section 104.28 of the Criminal Code
17
Insert:
18
104.28AA Court appointed advocate
19
Appointment
20
(1) If an issuing court makes an interim control order in relation to a
21
person who is 14 to 17 years of age, then, as soon as practicable
22
after making the order, the court:
23
(a) must make an order appointing a lawyer to be the court
24
appointed advocate of the person in relation to the following
25
matters (the control order matters):
26
(i) the interim control order;
27
Control orders for young people Schedule 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
13
(ii) any proceedings under this Division relating to
1
confirmation of the control order and, if the order is
2
confirmed, a variation or revocation of the confirmed
3
order; and
4
(b) may make such other orders as it considers appropriate to
5
secure independent advocacy for the person in relation to the
6
control order matters.
7
Role
8
(2) The court appointed advocate of a person must:
9
(a) ensure, as far as practicable in the circumstances, that the
10
person understands the information referred to in
11
paragraph 104.12(1)(b) and (if relevant)
12
paragraph 104.26(1)(c) (taking into account the person's age,
13
language skills, mental capacity and any other relevant
14
factor); and
15
(b) form an independent view, based on the evidence available to
16
the advocate, of what is in the best interests of the person;
17
and
18
(c) act in what the advocate believes to be the best interests of
19
the person; and
20
(d) if satisfied that the adoption of a particular course of action is
21
in the best interests of the person, make a submission to an
22
issuing court suggesting the adoption of that course of action;
23
and
24
(e) ensure that any views expressed by the person in relation to
25
the control order matters are fully put before an issuing court;
26
and
27
(f) endeavour to minimise any distress to the person associated
28
with the control order matters.
29
(3) The court appointed advocate of a person:
30
(a) is not the person's legal representative; and
31
(b) is not obliged to act on the person's instructions.
32
Disclosure of information
33
(4) The court appointed advocate of a person:
34
(a) is not under an obligation to disclose to an issuing court; and
35
(b) cannot be required to disclose to an issuing court;
36
Schedule 2 Control orders for young people
14
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
any information that the person communicates to the advocate.
1
(5) However, the court appointed advocate may disclose to an issuing
2
court any information that the person communicates to the
3
advocate if the advocate considers the disclosure to be in the best
4
interests of the person.
5
(6) Subsection (5) applies even if the disclosure is made against the
6
wishes of the person.
7
47 Before section 104.28A of the Criminal Code
8
Insert:
9
Subdivision I--Miscellaneous
10
48 At the end of subsection 104.29(2) of the Criminal Code
11
Add:
12
; (g) for control orders relating to persons who are 14 to 17 years
13
of age--the matters referred to in paragraphs (a) to (f) in so
14
far as those matters specifically relate to those control orders.
15
Control orders and tracking devices Schedule 3
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
15
Schedule 3--Control orders and tracking
1
devices
2
3
Criminal Code Act 1995
4
1 After subsection 104.5(3) of the Criminal Code
5
Insert:
6
(3A) If the court imposes a requirement under paragraph (3)(d) that the
7
person wear a tracking device, then the court must also impose on
8
the person by the order a requirement that the person do all of the
9
following:
10
(a) take specified steps and reasonable steps to ensure that the
11
tracking device and any equipment necessary for the
12
operation of the tracking device are or remain in good
13
working order;
14
(b) authorise one or more AFP members to take specified steps
15
to ensure that the tracking device and any equipment
16
necessary for the operation of the tracking device are or
17
remain in good working order;
18
(c) authorise one or more AFP members to enter one or more
19
specified premises for the purposes of installing any
20
equipment necessary for the operation of the tracking device;
21
(d) report to specified persons at specified times and places for
22
the purposes of having the tracking device inspected;
23
(e) if the person becomes aware that the tracking device or any
24
equipment necessary for the operation of the tracking device
25
is not in good working order--notify an AFP member as
26
soon as practicable, but no later than 4 hours, after becoming
27
so aware.
28
Schedule 4 Issuing court for control orders
16
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 4--Issuing court for control orders
1
2
Criminal Code Act 1995
3
1 Subsection 100.1(1) of the Criminal Code (paragraph (b) of
4
the definition of issuing court)
5
Repeal the paragraph.
6
Preventative detention orders Schedule 5
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
17
Schedule 5--Preventative detention orders
1
2
Criminal Code Act 1995
3
1 Subsection 105.4(4) of the Criminal Code
4
Omit "a terrorist act" (wherever occurring), substitute "an imminent
5
terrorist act".
6
2 Subsection 105.4(5) of the Criminal Code
7
Repeal the subsection, substitute:
8
(5) An imminent terrorist act is a terrorist act that:
9
(a) in the case of an AFP member--the member suspects, on
10
reasonable grounds; or
11
(b) in the case of an issuing authority--the issuing authority is
12
satisfied there are reasonable grounds to suspect;
13
is capable of being carried out, and could occur, within the next 14
14
days.
15
3 Dictionary in the Criminal Code
16
Insert:
17
imminent terrorist act has the meaning given by
18
subsection 105.4(5).
19
Schedule 6 Issuing authorities for preventative detention orders
18
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 6--Issuing authorities for
1
preventative detention orders
2
3
Criminal Code Act 1995
4
1 Subsection 100.1(1) of the Criminal Code (paragraph (c) of
5
the definition of superior court)
6
Repeal the paragraph.
7
Application of amendments of the Criminal Code Schedule 7
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
19
Schedule 7--Application of amendments of
1
the Criminal Code
2
3
Criminal Code Act 1995
4
1 At the end of Division 106 of Part 5.3 of the Criminal Code
5
Add:
6
106.7 Application provision for certain amendments in the
7
Counter-Terrorism Legislation Amendment Act (No. 1)
8
2015
9
(1) Division 104, as amended by Schedules 2 and 3 to the
10
Counter-Terrorism Legislation Amendment Act (No. 1) 2015,
11
applies to an order made under that Division after the
12
commencement of this section, where:
13
(a) the order is requested (however described) after that
14
commencement; and
15
(b) the conduct in relation to which that request is made occurs
16
before or after that commencement.
17
(2) Despite the amendment made by Schedule 4 to the
18
Counter-Terrorism Legislation Amendment Act (No. 1) 2015,
19
Division 104 continues to apply in relation to:
20
(a) a request for an interim control order, where the request was
21
made before the commencement of this section; and
22
(b) the making of an interim control order in response to such a
23
request; and
24
(c) the making of a declaration in relation to such an interim
25
control order; and
26
(d) the revocation of such an interim control order; and
27
(e) the confirmation of such an interim control order (with or
28
without variation); and
29
(f) the making of a confirmed control order that corresponds to
30
such an interim control order that has been so confirmed; and
31
(g) the revocation or variation of such a confirmed control order;
32
and
33
Schedule 7 Application of amendments of the Criminal Code
20
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(h) any other proceedings under that Division that are associated
1
with, or incidental to, a matter covered by any of the above
2
paragraphs;
3
as if the amendment had not been made.
4
(3) Section 105.4, as amended by Schedule 5 to the Counter-Terrorism
5
Legislation Amendment Act (No. 1) 2015, applies in relation to an
6
application for the following made after the commencement of this
7
section:
8
(a) a preventative detention order;
9
(b) an initial preventative detention order;
10
(c) an extension of an initial preventative detention order;
11
(d) a continued preventative detention order;
12
(e) an extension of a continued preventative detention order.
13
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
21
Schedule 8--Monitoring of compliance with
1
control orders etc.
2
3
Crimes Act 1914
4
1 After Part IAAA
5
Insert:
6
Part IAAB--Monitoring of compliance with control
7
orders etc.
8
Division 1--Introduction
9
3ZZJA Simplified outline of this Part
10
•
If a control order is in force in relation to a person, and the
11
person has a prescribed connection with premises, a constable
12
may enter and search the premises if:
13
(a)
the person is the occupier of the premises and consents
14
to the entry; or
15
(b)
the entry is made under a monitoring warrant.
16
•
If a control order is in force in relation to a person, a constable
17
may conduct an ordinary search or a frisk search of the person
18
if:
19
(a)
the person consents to the search; or
20
(b)
the search is conducted under a monitoring warrant.
21
•
A search must be for any of the following purposes:
22
(a)
the protection of the public from a terrorist act;
23
(b)
preventing the provision of support for, or the
24
facilitation of, a terrorist act;
25
(c)
preventing the provision of support for, or the
26
facilitation of, the engagement in a hostile activity in a
27
foreign country;
28
Schedule 8 Monitoring of compliance with control orders etc.
22
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(d)
determining whether the control order has been, or is
1
being, complied with.
2
3ZZJB Definitions
3
In this Part:
4
confirmed control order has the same meaning as in Part 5.3 of the
5
Criminal Code.
6
control order has the same meaning as in Part 5.3 of the Criminal
7
Code.
8
damage, in relation to data, includes damage by erasure of data or
9
addition of other data.
10
engage in a hostile activity has the same meaning as in Part 5.3 of
11
the Criminal Code.
12
evidential material has the same meaning as in Part IAA.
13
foreign country, when used in the expression hostile activity in a
14
foreign country, has the same meaning as in the Criminal Code.
15
frisk search has the same meaning as in Part IAA.
16
interim control order has the same meaning as in Part 5.3 of the
17
Criminal Code.
18
issuing officer means a magistrate.
19
monitoring powers:
20
(a) in relation to premises--has the meaning given by
21
sections 3ZZKB, 3ZZKC and 3ZZKD; or
22
(b) in relation to a person--has the meaning given by
23
section 3ZZLB.
24
monitoring warrant means a warrant under section 3ZZOA or
25
3ZZOB.
26
ordinary search has the same meaning as in Part IAA.
27
premises includes the following:
28
(a) a structure, building or conveyance;
29
Monitoring of compliance with control orders etc. Schedule 8
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
23
(b) a place (whether or not enclosed or built on);
1
(c) a part of a thing referred to in paragraph (a) or (b).
2
prescribed connection with premises has the meaning given by
3
section 3ZZJC.
4
recently used conveyance, in relation to a search of a person,
5
means a conveyance that the person had operated or occupied at
6
any time within 24 hours before the search commenced.
7
relevant data has the meaning given by subsection 3ZZKC(3).
8
seizable item has the same meaning as in Part IAA.
9
strip search has the same meaning as in Part IAA.
10
3ZZJC Prescribed connection with premises
11
For the purposes of this Part, a person has a prescribed connection
12
with premises if:
13
(a) the person:
14
(i) is the legal or beneficial owner of the premises (whether
15
alone or together with one or more other persons); or
16
(ii) has any other legal or equitable estate or interest in the
17
premises; or
18
(b) the person occupies, or resides on, the premises; or
19
(c) the person has possession or control of the premises (whether
20
alone or together with one or more other persons); or
21
(d) the person performs any of the duties of his or her
22
employment on the premises; or
23
(e) the person carries on a business on the premises (whether
24
alone or together with one or more other persons); or
25
(f) the person performs voluntary work on the premises; or
26
(g) both:
27
(i) the premises are used by a school, college, university or
28
other educational institution; and
29
(ii) the person attends the premises in his or her capacity as
30
a student at the school, college, university or other
31
educational institution.
32
Schedule 8 Monitoring of compliance with control orders etc.
24
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
3ZZJD Privileges not abrogated
1
Self-incrimination
2
(1) This Part does not affect the right of a person to refuse to answer a
3
question, give information, or produce a document, on the ground
4
that the answer to the question, the information, or the production
5
of the document, might tend to incriminate him or her or make him
6
or her liable to a penalty.
7
Legal professional privilege
8
(2) This Part does not affect the right of a person to refuse to answer a
9
question, give information, or produce a document, on the ground
10
that:
11
(a) the answer to the question or the information would be
12
privileged from being given on the ground of legal
13
professional privilege; or
14
(b) the document would be privileged from being produced on
15
the ground of legal professional privilege.
16
Other legislation not affected
17
(3) The fact that this section is included in this Part does not imply that
18
the privilege against self-incrimination or legal professional
19
privilege is abrogated in any other law of the Commonwealth.
20
3ZZJE Application of Part
21
(1) This Part is not intended to limit or exclude the operation of
22
another law of the Commonwealth (including other provisions of
23
this Act) relating to:
24
(a) the search of premises; or
25
(b) the searching of persons or conveyances; or
26
(c) the seizure of things; or
27
(d) the requesting of information or documents from persons.
28
(2) To avoid any doubt, it is declared that even though another law of
29
the Commonwealth (including other provisions of this Act)
30
provides power to do one or more of the things referred to in
31
subsection (1), a similar power conferred by this Part may be used
32
despite the existence of the power under the other law.
33
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
25
Division 2--Powers of constables in relation to premises
1
Subdivision A--Monitoring powers
2
3ZZKA Entering premises by consent or under a warrant
3
(1) If:
4
(a) a control order is in force in relation to a person; and
5
(b) the person has a prescribed connection with particular
6
premises;
7
a constable may enter the premises, and exercise the monitoring
8
powers, for any of the following purposes:
9
(c) the protection of the public from a terrorist act;
10
(d) preventing the provision of support for, or the facilitation of,
11
a terrorist act;
12
(e) preventing the provision of support for, or the facilitation of,
13
the engagement in a hostile activity in a foreign country;
14
(f) determining whether the control order has been, or is being,
15
complied with.
16
Note:
The monitoring powers are set out in sections 3ZZKB, 3ZZKC and
17
3ZZKD.
18
(2) However, a constable is not authorised to enter the premises
19
unless:
20
(a) the person:
21
(i) is the occupier of the premises; and
22
(ii) has consented to the entry; or
23
(b) the entry is made under a monitoring warrant.
24
Note:
If entry to the premises is with the occupier's consent, the constable
25
must leave the premises if the consent ceases to have effect (see
26
section 3ZZNA).
27
3ZZKB General monitoring powers
28
The following are the monitoring powers that a constable may
29
exercise in relation to premises under section 3ZZKA:
30
(a) the power to search the premises and any thing on the
31
premises;
32
(b) the power to search for and record fingerprints found at the
33
premises;
34
Schedule 8 Monitoring of compliance with control orders etc.
26
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(c) the power to take samples of things found at the premises;
1
(d) the power to examine or observe any activity conducted on
2
the premises;
3
(e) the power to inspect, examine, take measurements of or
4
conduct tests on any thing on the premises;
5
(f) the power to make any still or moving image or any
6
recording of the premises or any thing on the premises;
7
(g) the power to inspect any document on the premises;
8
(h) the power to take extracts from, or make copies of, any such
9
document;
10
(i) the power to take onto the premises such equipment and
11
materials as the constable requires for the purpose of
12
exercising powers in relation to the premises;
13
(j) the powers set out in subsections 3ZZKC(1) and (4) and
14
3ZZKD(2).
15
3ZZKC Operating electronic equipment
16
(1) The monitoring powers include the power to:
17
(a) operate electronic equipment on the premises; and
18
(b) use a disk, tape or other storage device that:
19
(i) is on the premises; and
20
(ii) can be used with the equipment or is associated with it.
21
(2) The monitoring powers include the powers mentioned in
22
subsection (4) if relevant data is found in the exercise of the power
23
under subsection (1).
24
(3) Relevant data means information relevant to:
25
(a) the protection of the public from a terrorist act; or
26
(b) preventing the provision of support for, or the facilitation of,
27
a terrorist act; or
28
(c) preventing the provision of support for, or the facilitation of,
29
the engagement in a hostile activity in a foreign country; or
30
(d) determining whether the relevant control order has been, or is
31
being, complied with.
32
(4) The powers are as follows:
33
Monitoring of compliance with control orders etc. Schedule 8
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
27
(a) the power to operate electronic equipment on the premises to
1
put the relevant data in documentary form and remove the
2
documents so produced from the premises;
3
(b) the power to operate electronic equipment on the premises to
4
transfer the relevant data to a disk, tape or other storage
5
device that:
6
(i) is brought to the premises for the exercise of the power;
7
or
8
(ii) is on the premises and the use of which for that purpose
9
has been agreed in writing by the occupier of the
10
premises;
11
and remove the disk, tape or other storage device from the
12
premises.
13
(5) A constable may operate electronic equipment as mentioned in
14
subsection (1) or (4) only if the constable believes on reasonable
15
grounds that the operation of the equipment can be carried out
16
without damage to the equipment.
17
Note:
For compensation for damage to electronic equipment, see
18
section 3ZZNF.
19
3ZZKD Securing electronic equipment to obtain expert assistance
20
Scope
21
(1) This section applies if a constable enters premises under a
22
monitoring warrant.
23
Securing equipment
24
(2) The monitoring powers include the power to secure any electronic
25
equipment that is on the premises if the constable suspects on
26
reasonable grounds that:
27
(a) there is relevant data on the premises; and
28
(b) the relevant data may be accessible by operating the
29
equipment; and
30
(c) expert assistance is required to operate the equipment; and
31
(d) the relevant data may be destroyed, altered or otherwise
32
interfered with, if the constable does not take action under
33
this subsection.
34
Schedule 8 Monitoring of compliance with control orders etc.
28
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
The equipment may be secured by locking it up, placing a guard or
1
any other means.
2
(3) The constable must give notice to the occupier of the premises, or
3
another person who apparently represents the occupier, of:
4
(a) the constable's intention to secure the equipment; and
5
(b) the fact that the equipment may be secured for up to 24
6
hours.
7
Period equipment may be secured
8
(4) The equipment may be secured until the earlier of the following
9
happens:
10
(a) the 24-hour period ends;
11
(b) the equipment has been operated by the expert.
12
Note:
For compensation for damage to electronic equipment, see
13
section 3ZZNF.
14
Extensions
15
(5) The constable may apply to an issuing officer for an extension of
16
the 24-hour period if the constable believes on reasonable grounds
17
that the equipment needs to be secured for longer than that period.
18
(6) Before making the application, the constable must give notice to
19
the occupier of the premises, or another person who apparently
20
represents the occupier, of his or her intention to apply for an
21
extension. The occupier or other person is entitled to be heard in
22
relation to that application.
23
(7) The 24-hour period may be extended more than once.
24
Note:
For the process by which an issuing officer may extend the period, see
25
section 3ZZQA.
26
Monitoring of compliance with control orders etc. Schedule 8
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
29
Subdivision B--Powers to ask questions and seek production of
1
documents
2
3ZZKE Asking questions and seeking production of documents
3
Scope
4
(1) This section applies if a constable enters premises under
5
section 3ZZKA.
6
Entry with consent
7
(2) If the entry is authorised because the occupier of the premises
8
consented to the entry, the constable may ask the occupier to
9
answer any questions, and produce any document, that is likely to
10
assist in:
11
(a) the protection of the public from a terrorist act; or
12
(b) preventing the provision of support for, or the facilitation of,
13
a terrorist act; or
14
(c) preventing the provision of support for, or the facilitation of,
15
the engagement in a hostile activity in a foreign country; or
16
(d) determining whether the relevant control order has been, or is
17
being, complied with.
18
Note 1:
A person is not required to answer a question, or produce a document,
19
in response to a request under this subsection.
20
Note 2:
See also sections 3ZZRC and 3ZZRD.
21
Entry under a monitoring warrant
22
(3) If:
23
(a) the entry is authorised by a monitoring warrant; and
24
(b) the warrant authorises the constable to exercise powers under
25
this subsection;
26
the constable may require any person on the premises to answer
27
any questions, and produce any document, that is likely to assist in:
28
(c) the protection of the public from a terrorist act; or
29
(d) preventing the provision of support for, or the facilitation of,
30
a terrorist act; or
31
(e) preventing the provision of support for, or the facilitation of,
32
the engagement in a hostile activity in a foreign country; or
33
Schedule 8 Monitoring of compliance with control orders etc.
30
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(f) determining whether the relevant control order has been, or is
1
being, complied with.
2
Note 1:
See also section 3ZZJD (privileges not abrogated).
3
Note 2:
See also sections 3ZZRC and 3ZZRD.
4
(4) A person is not subject to a requirement under subsection (3) if:
5
(a) the person does not possess the information or document
6
required; and
7
(b) the person has taken all reasonable steps available to the
8
person to obtain the information or document required and
9
has been unable to obtain it.
10
(5) A person is not subject to a requirement under subsection (3) to
11
produce a document if the document is not at the premises.
12
Offence
13
(6) A person commits an offence if:
14
(a) the person is subject to a requirement under subsection (3);
15
and
16
(b) the person engages in conduct; and
17
(c) the person's conduct breaches the requirement.
18
Penalty for contravention of this subsection: 30 penalty units.
19
Subdivision C--Other powers
20
3ZZKF Other powers
21
Scope
22
(1) This section applies if:
23
(a) a constable enters premises under section 3ZZKA; and
24
(b) the entry is authorised by a monitoring warrant.
25
Powers
26
(2) The constable has the following powers:
27
(a) the power to seize evidential material found during the
28
exercise of monitoring powers on the premises;
29
Monitoring of compliance with control orders etc. Schedule 8
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
31
(b) the power to seize other things found during the exercise of
1
monitoring powers on the premises if the constable believes
2
on reasonable grounds that the things are:
3
(i) evidential material (within the meaning of the Proceeds
4
of Crime Act 2002); or
5
(ii) tainted property (within the meaning of that Act);
6
(c) the power to seize other things found during the exercise of
7
monitoring powers on the premises if the constable believes
8
on reasonable grounds that the things are seizable items;
9
(d) the power to conduct an ordinary search or a frisk search of a
10
person at or near the premises if the constable suspects on
11
reasonable grounds that the person has any evidential
12
material or seizable items in his or her possession.
13
3ZZKG Availability of assistance and use of force in executing a
14
warrant
15
Scope
16
(1) This section applies if:
17
(a) a constable enters premises under section 3ZZKA; and
18
(b) the entry is authorised by a monitoring warrant.
19
Availability of assistance and use of force
20
(2) In:
21
(a) executing the warrant; or
22
(b) exercising the powers set out in section 3ZZKF in relation to
23
the premises;
24
the constable may use such force against persons and things as is
25
necessary and reasonable in the circumstances.
26
(3) In executing the warrant, the constable may obtain such assistance
27
as is necessary and reasonable in the circumstances.
28
(4) If a person (other than a constable) has been authorised by the
29
constable to assist in executing the warrant, the person may:
30
(a) enter the premises; and
31
(b) exercise the monitoring powers in relation to the premises;
32
and
33
(c) in:
34
Schedule 8 Monitoring of compliance with control orders etc.
32
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(i) entering the premises; or
1
(ii) exercising the monitoring powers;
2
use such force against things as is necessary and reasonable
3
in the circumstances.
4
(5) If a person (other than a constable) has been authorised by the
5
constable to assist in executing the warrant:
6
(a) the person may only exercise the monitoring powers set out
7
in subsection 3ZZKD(2) if the constable forms the suspicion
8
mentioned in that subsection; and
9
(b) the person must not exercise a power set out in
10
subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
11
(6) A power exercised by a person assisting the constable as
12
mentioned in subsection (4) is taken to have been exercised by the
13
constable.
14
Division 3--Powers of constables in relation to persons
15
subject to control orders
16
3ZZLA Searching a person by consent or under a warrant
17
(1) If a control order is in force in relation to a person, a constable may
18
conduct an ordinary search or a frisk search of the person, and
19
exercise the monitoring powers, for any of the following purposes:
20
(a) the protection of the public from a terrorist act;
21
(b) preventing the provision of support for, or the facilitation of,
22
a terrorist act;
23
(c) preventing the provision of support for, or the facilitation of,
24
the engagement in a hostile activity in a foreign country;
25
(d) determining whether the control order has been, or is being,
26
complied with.
27
Note:
The monitoring powers are set out in section 3ZZLB.
28
(2) However, a constable is not authorised to conduct an ordinary
29
search or a frisk search of the person unless:
30
(a) the person has consented to the search; or
31
(b) the search is conducted under a monitoring warrant.
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
33
3ZZLB Monitoring powers
1
The following are the monitoring powers that a constable may
2
exercise in relation to a person under section 3ZZLA:
3
(a) the power to search things found in the possession of the
4
person;
5
(b) the power to search any recently used conveyance;
6
(c) the power to record fingerprints from things found in the
7
course of:
8
(i) a search under section 3ZZLA; or
9
(ii) a search under paragraph (a) or (b) of this section;
10
(d) the power to take samples from things found in the course of:
11
(i) a search under section 3ZZLA; or
12
(ii) a search under paragraph (a) or (b) of this section.
13
3ZZLC Seizure powers
14
Scope
15
(1) This section applies if:
16
(a) a constable conducts a search of a person, or of a recently
17
used conveyance, under section 3ZZLA; and
18
(b) the search is authorised by a monitoring warrant.
19
Powers
20
(2) The constable has the following powers:
21
(a) the power to seize evidential material found in the course of
22
the search;
23
(b) the power to seize other things found on or in the possession
24
of the person, or in the recently used conveyance, in the
25
course of the search that the constable believes on reasonable
26
grounds to be:
27
(i) evidential material (within the meaning of the Proceeds
28
of Crime Act 2002); or
29
(ii) tainted property (within the meaning of that Act);
30
(c) the power to seize other things found in the course of the
31
search that the constable believes on reasonable grounds to
32
be seizable items.
33
Schedule 8 Monitoring of compliance with control orders etc.
34
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
3ZZLD Availability of assistance and use of force in executing a
1
warrant
2
Scope
3
(1) This section applies if:
4
(a) a constable conducts a search of a person, or of a recently
5
used conveyance, under section 3ZZLA; and
6
(b) the search is authorised by a monitoring warrant.
7
Availability of assistance and use of force
8
(2) In:
9
(a) executing the warrant; or
10
(b) exercising the powers set out in section 3ZZLC in relation to
11
the person or conveyance;
12
the constable may use such force against persons and things as is
13
necessary and reasonable in the circumstances.
14
(3) In executing the warrant, the constable may obtain such assistance
15
as is necessary and reasonable in the circumstances.
16
(4) If a person (other than a constable) has been authorised by the
17
constable to assist in executing the warrant, the person may:
18
(a) exercise the monitoring powers in relation to the person
19
mentioned in paragraph (1)(a); and
20
(b) in exercising the monitoring powers, use such force against
21
things as is necessary and reasonable in the circumstances.
22
(5) If a person (other than a constable) has been authorised by the
23
constable to assist in executing the warrant, the person must not
24
exercise a power set out in section 3ZZLC.
25
(6) A power exercised by a person assisting the constable as
26
mentioned in subsection (4) is taken to have been exercised by the
27
constable.
28
Monitoring of compliance with control orders etc. Schedule 8
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
35
Division 4--Obligations and incidental powers of
1
constables
2
3ZZNA Consent of occupier of premises
3
(1) Before obtaining the consent of an occupier of premises for the
4
purposes of paragraph 3ZZKA(2)(a), a constable must inform the
5
occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If a constable entered premises because of the consent of the
13
occupier of the premises, the constable, and any person assisting
14
the constable, must leave the premises if the consent ceases to have
15
effect.
16
(6) If:
17
(a) a constable enters premises because of the consent of the
18
occupier of the premises; and
19
(b) the constable has not shown the occupier his or her identity
20
card before entering the premises;
21
the constable must do so on, or as soon as is reasonably practicable
22
after, entering the premises.
23
3ZZNB Consent to search of a person
24
(1) Before obtaining the consent of a person for the purposes of
25
paragraph 3ZZLA(2)(a), a constable must inform the person that
26
the person may refuse consent.
27
(2) A consent has no effect unless the consent is voluntary.
28
(3) A consent may be expressed to be limited to a particular period. If
29
so, the consent has effect for that period unless the consent is
30
withdrawn before the end of that period.
31
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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(4) A consent that is not limited as mentioned in subsection (3) has
1
effect until the consent is withdrawn.
2
3ZZNC Announcement before entry under warrant
3
Before entering premises under a monitoring warrant, a constable
4
must:
5
(a) announce that he or she is authorised to enter the premises;
6
and
7
(b) show his or her identity card to the occupier of the premises,
8
or to another person who apparently represents the occupier,
9
if the occupier or other person is present at the premises; and
10
(c) give any person at the premises an opportunity to allow entry
11
to the premises.
12
3ZZND Constable to be in possession of warrant
13
A constable executing a monitoring warrant must be in possession
14
of the warrant or a copy of the warrant.
15
3ZZNE Details of warrant etc. to be given to occupier
16
If:
17
(a) a monitoring warrant is being executed by a constable in
18
relation to premises; and
19
(b) the occupier of the premises, or another person who
20
apparently represents the occupier, is present at the premises;
21
the constable must, as soon as practicable, make a copy of the
22
warrant available to the occupier or other person.
23
3ZZNF Compensation for damage to electronic equipment
24
Scope
25
(1) This section applies if:
26
(a) as a result of electronic equipment being operated as
27
mentioned in this Part:
28
(i) damage is caused to the equipment; or
29
(ii) the data recorded on the equipment is damaged; or
30
Monitoring of compliance with control orders etc. Schedule 8
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
37
(iii) programs associated with the use of the equipment, or
1
with the use of the data, are damaged or corrupted; and
2
(b) the damage or corruption occurs because:
3
(i) insufficient care was exercised in selecting the person
4
who was to operate the equipment; or
5
(ii) insufficient care was exercised by the person operating
6
the equipment.
7
Compensation
8
(2) The Commonwealth must pay the owner of the equipment, or the
9
user of the data or programs, such reasonable compensation for the
10
damage or corruption as the Commonwealth and the owner or user
11
agree on.
12
(3) However, if the owner or user and the Commonwealth fail to
13
agree, the owner or user may institute proceedings in a relevant
14
court for such reasonable amount of compensation as the court
15
determines.
16
(4) In determining the amount of compensation payable, regard is to
17
be had to whether the occupier of the premises, or the occupier's
18
employees or agents, if they were available at the time, provided
19
any appropriate warning or guidance on the operation of the
20
equipment.
21
3ZZNG Occupier entitled to be present during search
22
(1) If:
23
(a) a monitoring warrant in relation to premises is being
24
executed; and
25
(b) the occupier of the premises, or another person who
26
apparently represents the occupier, is present at the premises;
27
the person is entitled to observe the search being conducted.
28
(2) The right to observe the search being conducted ceases if the
29
person impedes the search.
30
(3) This section does not prevent 2 or more areas of the premises being
31
searched at the same time.
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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3ZZNH Person subject to a control order is entitled to be present
1
during search
2
(1) If:
3
(a) a monitoring warrant in relation to premises is being
4
executed; and
5
(b) the warrant was issued on the basis that a control order is in
6
force in relation to a person; and
7
(c) the person is present at the premises;
8
the person is entitled to observe the search being conducted.
9
(2) The right to observe the search being conducted ceases if the
10
person impedes the search.
11
(3) This section does not prevent 2 or more areas of the premises being
12
searched at the same time.
13
Division 5--Monitoring warrants
14
3ZZOA Monitoring warrant in relation to premises
15
Application for warrant
16
(1) A constable may apply to an issuing officer for a warrant under this
17
section in relation to premises.
18
Issue of warrant
19
(2) The issuing officer may issue the warrant if the issuing officer is
20
satisfied, by information on oath or affirmation, that:
21
(a) a control order is in force in relation to a person; and
22
(b) the person has a prescribed connection with the premises; and
23
(c) having regard to:
24
(i) the nature of the person's prescribed connection with
25
the premises; and
26
(ii) one or more of the matters set out in subsection (4); and
27
(iii) such other matters (if any) as the issuing officer
28
considers relevant;
29
it is reasonably necessary that one or more constables should
30
have access to the premises for the purposes of:
31
(iv) the protection of the public from a terrorist act; or
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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(v) preventing the provision of support for, or the
1
facilitation of, a terrorist act; or
2
(vi) preventing the provision of support for, or the
3
facilitation of, the engagement in a hostile activity in a
4
foreign country; or
5
(vii) determining whether the control order has been, or is
6
being, complied with.
7
(3) The issuing officer must not issue the warrant unless the applicant
8
or some other person has given to the issuing officer, either orally
9
or by affidavit, such further information (if any) as the issuing
10
officer requires concerning the grounds on which the issue of the
11
warrant is being sought.
12
(4) The matters referred to in subparagraph (2)(c)(ii) are the following:
13
(a) the possibility that the person has engaged, is engaging, or
14
will engage, in a terrorist act;
15
(b) the possibility that the person has provided, is providing, or
16
will provide, support for a terrorist act;
17
(c) the possibility that the person has facilitated, is facilitating, or
18
will facilitate, a terrorist act;
19
(d) the possibility that the person has provided, is providing, or
20
will provide, support for the engagement in a hostile activity
21
in a foreign country;
22
(e) the possibility that the person has facilitated, is facilitating, or
23
will facilitate, the engagement in a hostile activity in a
24
foreign country;
25
(f) the possibility that the person has contravened, is
26
contravening, or will contravene, the control order.
27
Content of warrant
28
(5) The warrant must:
29
(a) describe the premises to which the warrant relates; and
30
(b) state that the warrant is issued under this section; and
31
(c) state the purpose or purposes for which the warrant is issued;
32
and
33
(d) authorise one or more constables (whether or not named in
34
the warrant) from time to time while the warrant remains in
35
force:
36
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(i) to enter the premises; and
1
(ii) to exercise the monitoring powers in relation to the
2
premises; and
3
(iii) to exercise the powers set out in section 3ZZKF in
4
relation to the premises; and
5
(e) state whether entry is authorised to be made at any time of
6
the day or during specified hours of the day; and
7
(f) specify the time at which the warrant expires (see
8
subsection (7)); and
9
(g) state whether the warrant authorises a constable to exercise
10
powers under subsection 3ZZKE(3) in relation to the entry;
11
and
12
(h) state that a person who is not a constable may be authorised
13
under section 3ZZKG to assist in executing the warrant; and
14
(i) state the name of the person to whom the relevant control
15
order relates; and
16
(j) describe the nature of the person's prescribed connection
17
with the premises; and
18
(k) state that the control order is in force; and
19
(l) state whether the control order is an interim control order or a
20
confirmed control order; and
21
(m) specify the date the control order was made; and
22
(n) specify the court that made the control order; and
23
(o) if the control order is an interim control order--specify the
24
date the order was served on the person; and
25
(p) if the control order is a confirmed control order--specify the
26
end of the period during which the order is in force; and
27
(q) if the warrant is issued for the purposes of determining
28
whether the control order has been, or is being, complied
29
with--specify the obligations, prohibitions and restrictions
30
that are imposed by the order.
31
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or
32
purposes for which the warrant is issued to be specified in the
33
warrant if disclosure of that purpose, or those purposes, is likely to
34
prejudice national security (within the meaning of the National
35
Security Information (Criminal and Civil Proceedings) Act 2004).
36
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41
(7) The time stated in the warrant under paragraph (5)(f) as the time at
1
which the warrant expires must be a time that is not later than the
2
end of the seventh day after the day on which the warrant is issued.
3
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
4
must not be later than midnight on Monday in the following week.
5
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of
6
successive monitoring warrants in relation to the same premises.
7
3ZZOB Monitoring warrant in relation to a person
8
Application for warrant
9
(1) A constable may apply to an issuing officer for a warrant under this
10
section in relation to a person.
11
Issue of warrant
12
(2) The issuing officer may issue the warrant if the issuing officer is
13
satisfied, by information on oath or affirmation, that:
14
(a) a control order is in force in relation to the person; and
15
(b) having regard to:
16
(i) one or more of the matters set out in subsection (4); and
17
(ii) such other matters (if any) as the issuing officer
18
considers relevant;
19
it is reasonably necessary that a constable should conduct an
20
ordinary search or a frisk search of the person for the
21
purposes of:
22
(iii) the protection of the public from a terrorist act; or
23
(iv) preventing the provision of support for, or the
24
facilitation of, a terrorist act; or
25
(v) preventing the provision of support for, or the
26
facilitation of, the engagement in a hostile activity in a
27
foreign country; or
28
(vi) determining whether the control order has been, or is
29
being, complied with.
30
(3) The issuing officer must not issue the warrant unless the applicant
31
or some other person has given to the issuing officer, either orally
32
or by affidavit, such further information (if any) as the issuing
33
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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officer requires concerning the grounds on which the issue of the
1
warrant is being sought.
2
(4) The matters referred to in subparagraph (2)(b)(i) are the following:
3
(a) the possibility that the person has engaged, is engaging, or
4
will engage, in a terrorist act;
5
(b) the possibility that the person has provided, is providing, or
6
will provide, support for a terrorist act;
7
(c) the possibility that the person has facilitated, is facilitating, or
8
will facilitate, a terrorist act;
9
(d) the possibility that the person has provided, is providing, or
10
will provide, support for the engagement in a hostile activity
11
in a foreign country;
12
(e) the possibility that the person has facilitated, is facilitating, or
13
will facilitate, the engagement in a hostile activity in a
14
foreign country;
15
(f) the possibility that the person has contravened, is
16
contravening, or will contravene, the control order.
17
Content of warrant
18
(5) The warrant must:
19
(a) state the name of the person; and
20
(b) state that the warrant is issued under this section; and
21
(c) state the purpose or purposes for which the warrant is issued;
22
and
23
(d) authorise a constable (whether or not named in the warrant)
24
from time to time while the warrant remains in force:
25
(i) to conduct an ordinary search or a frisk search of the
26
person; and
27
(ii) to exercise the monitoring powers in relation to the
28
person; and
29
(iii) to exercise the powers set out in section 3ZZLC in
30
relation to the person or a recently used conveyance;
31
and
32
(e) state whether the search is authorised to be carried out at any
33
time of the day or during specified hours of the day; and
34
(f) specify the time at which the warrant expires (see
35
subsection (7)); and
36
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43
(g) state that a person who is not a constable may be authorised
1
under section 3ZZLD to assist in executing the warrant; and
2
(h) state the name of the person to whom the relevant control
3
order relates; and
4
(i) state that the control order is in force; and
5
(j) state whether the control order is an interim control order or a
6
confirmed control order; and
7
(k) specify the date the control order was made; and
8
(l) specify the court that made the control order; and
9
(m) if the control order is an interim control order--specify the
10
date on which the order was served on the person; and
11
(n) if the control order is a confirmed control order--specify the
12
end of the period during which the order is in force; and
13
(o) if the warrant is issued for the purposes of determining
14
whether the control order has been, or is being, complied
15
with--specify the obligations, prohibitions and restrictions
16
that are imposed by the order.
17
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or
18
purposes for which the warrant is issued to be specified in the
19
warrant if disclosure of that purpose, or those purposes, is likely to
20
prejudice national security (within the meaning of the National
21
Security Information (Criminal and Civil Proceedings) Act 2004).
22
(7) The time stated in the warrant under paragraph (5)(f) as the time at
23
which the warrant expires must be a time that is not later than the
24
end of the seventh day after the day on which the warrant is issued.
25
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
26
must not be later than midnight on Monday in the following week.
27
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of
28
successive monitoring warrants in relation to the same person.
29
3ZZOC Restrictions on personal searches
30
A monitoring warrant cannot authorise a strip search or a search of
31
a person's body cavities.
32
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44
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3ZZOD Monitoring warrant must not be executed if the relevant
1
control order is revoked etc.
2
(1) If:
3
(a) a monitoring warrant was issued on the basis that a control
4
order was in force in relation to a person; and
5
(b) any of the following happens:
6
(i) the control order is revoked;
7
(ii) a court declares the control order to be void;
8
(iii) a court varies the control order by removing one or
9
more obligations, prohibitions or restrictions imposed
10
on the person by the control order;
11
a constable must not:
12
(c) execute the warrant; or
13
(d) exercise a power under Division 2 or 3, if the exercise of the
14
power is consequential on the warrant.
15
Evidence
16
(2) A thing seized in breach of subsection (1) is not admissible in
17
evidence in criminal proceedings other than proceedings covered
18
by paragraph 3ZQU(1)(j).
19
(3) Information obtained in breach of subsection (1) is not admissible
20
in evidence in criminal proceedings other than proceedings covered
21
by paragraph 3ZQU(1)(j).
22
(4) A document obtained in breach of subsection (1) is not admissible
23
in evidence in criminal proceedings other than proceedings covered
24
by paragraph 3ZQU(1)(j).
25
Division 6--Monitoring warrants by telephone or other
26
electronic means
27
3ZZPA Monitoring warrants by telephone or other electronic means
28
(1) A constable may make an application to an issuing officer for a
29
monitoring warrant by telephone, telex, fax or other electronic
30
means:
31
(a) in an urgent case; or
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
45
(b) if the delay that would occur if an application were made in
1
person would frustrate the effective execution of the warrant.
2
(2) The issuing officer:
3
(a) may require communication by voice to the extent that it is
4
practicable in the circumstances; and
5
(b) may make a recording of the whole or any part of any such
6
communication by voice.
7
(3) An application under this section must include all information
8
required to be provided in an ordinary application for a monitoring
9
warrant, but the application may, if necessary, be made before the
10
information is sworn.
11
(4) If an application is made to an issuing officer under this section
12
and the issuing officer, after considering the information and
13
having received and considered such further information (if any) as
14
the issuing officer required, is satisfied that:
15
(a) a monitoring warrant in the terms of the application should
16
be issued urgently; or
17
(b) the delay that would occur if an application were made in
18
person would frustrate the effective execution of the warrant;
19
the issuing officer may complete and sign the same form of
20
warrant that would be issued under section 3ZZOA or 3ZZOB, as
21
the case requires.
22
(5) If the issuing officer decides to issue the monitoring warrant, the
23
issuing officer is to inform the applicant, by telephone, telex, fax or
24
other electronic means, of the terms of the warrant and the day on
25
which, and the time at which, it was signed.
26
(6) The applicant must then complete a form of monitoring warrant in
27
terms substantially corresponding to those given by the issuing
28
officer, stating on the form the name of the issuing officer and the
29
day on which, and the time at which, the warrant was signed.
30
(7) The applicant must, not later than the day after the day of expiry of
31
the warrant or the day after the day on which the warrant was
32
executed, whichever is the earlier, give or transmit to the issuing
33
officer the form of warrant completed by the applicant and, if the
34
information referred to in subsection (3) was not sworn, that
35
information duly sworn.
36
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46
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(8) The issuing officer is to attach to the documents provided under
1
subsection (7) the form of warrant completed by the issuing
2
officer.
3
(9) If:
4
(a) it is material, in any proceedings, for a court to be satisfied
5
that the exercise of a power under a monitoring warrant
6
issued under this section was duly authorised; and
7
(b) the form of warrant signed by the issuing officer is not
8
produced in evidence;
9
the court is to assume, unless the contrary is proved, that the
10
exercise of the power was not duly authorised.
11
3ZZPB Offences relating to telephone warrants
12
A person commits an offence if:
13
(a) the person states in a document that purports to be a form of
14
warrant under section 3ZZPA the name of an issuing officer
15
unless that officer issued the warrant; or
16
(b) the person states on a form of warrant under that section a
17
matter that, to the person's knowledge, departs in a material
18
particular from the form authorised by the issuing officer; or
19
(c) the person purports to execute, or present to a person, a
20
document that purports to be a form of warrant under that
21
section that the person knows:
22
(i) has not been approved by an issuing officer under that
23
section; or
24
(ii) to depart in a material particular from the terms
25
authorised by an issuing officer under that section; or
26
(d) the person gives to an issuing officer a form of warrant under
27
that section that is not the form of warrant that the person
28
purported to execute.
29
Penalty: Imprisonment for 2 years.
30
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
47
Division 7--Extension of periods in which things secured
1
3ZZQA Extension of periods in which things secured
2
Application
3
(1) This section applies if a constable applies to an issuing officer
4
under subsection 3ZZKD(5) for an extension of the period during
5
which a thing may be secured.
6
Granting extension
7
(2) The issuing officer may, by order, grant an extension of the period
8
if the issuing officer is satisfied, by information on oath or
9
affirmation, that it is necessary to secure the thing to ensure that
10
relevant data is not destroyed, altered or otherwise interfered with.
11
(3) The issuing officer must not grant the extension unless the
12
constable or some other person has given to the issuing officer,
13
either orally or by affidavit, such further information (if any) as the
14
issuing officer requires concerning the grounds on which the
15
extension is being sought.
16
Content of order
17
(4) The order extending the period must:
18
(a) describe the thing to which the order relates; and
19
(b) state the period for which the extension is granted; and
20
(c) state that the order is made under this section; and
21
(d) state that the constable is authorised to secure the thing for
22
that period.
23
Division 8--Things seized, documents produced, and
24
answers given, under this Part
25
3ZZRA Receipts for things seized under this Part
26
(1) If a thing is seized by a constable under this Part, the constable
27
must provide a receipt for the thing.
28
(2) If 2 or more things are seized, they may be covered in the one
29
receipt.
30
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48
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3ZZRB Using, sharing and returning things seized under this Part
1
Division 4C of Part IAA applies to a thing seized under this Part in
2
a corresponding way to the way in which it applies to a thing
3
seized under Division 2 of Part IAA.
4
3ZZRC Using, sharing and returning documents produced under
5
section 3ZZKE
6
(1) Subject to subsection (2), Division 4C of Part IAA applies to a
7
document produced under section 3ZZKE in a corresponding way
8
to the way in which it applies to a document produced under
9
Division 4B of Part IAA.
10
(2) Section 3ZQU has effect, in relation to a document produced under
11
section 3ZZKE, as if the following additional purposes were set
12
out in subsection 3ZQU(1):
13
(a) the protection of the public from a terrorist act;
14
(b) preventing the provision of support for, or the facilitation of,
15
a terrorist act;
16
(c) preventing the provision of support for, or the facilitation of,
17
the engagement in a hostile activity in a foreign country;
18
(d) determining whether the relevant control order has been, or is
19
being, complied with.
20
3ZZRD Answers to questions asked under section 3ZZKE
21
An answer given to a question asked under subsection 3ZZKE(2)
22
or (3) may only be used for one or more of the following purposes:
23
(a) the protection of the public from a terrorist act;
24
(b) preventing the provision of support for, or the facilitation of,
25
a terrorist act;
26
(c) preventing the provision of support for, or the facilitation of,
27
the engagement in a hostile activity in a foreign country;
28
(d) determining whether the relevant control order has been, or is
29
being, complied with;
30
(e) preventing, investigating or prosecuting an offence.
31
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
49
Division 9--Powers of issuing officers
1
3ZZSA Powers of issuing officers
2
Powers conferred personally
3
(1) A power conferred on an issuing officer by this Part is conferred on
4
the issuing officer:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The issuing officer need not accept the power conferred.
9
Protection and immunity
10
(3) An issuing officer exercising a power conferred by this Part has the
11
same protection and immunity as if the issuing officer were
12
exercising the power:
13
(a) as the court of which the issuing officer is a member; or
14
(b) as a member of the court of which the issuing officer is a
15
member.
16
Division 10--General
17
3ZZTA Conduct of ordinary searches and frisk searches
18
An ordinary search or a frisk search of a person under this Part
19
must, if practicable, be conducted by a person of the same sex as
20
the person being searched.
21
3ZZTB Protection of persons--control order declared to be void
22
(1) If:
23
(a) a monitoring warrant was issued on the basis that an interim
24
control order was in force; and
25
(b) a court subsequently declares the interim control order to be
26
void;
27
a criminal proceeding does not lie against a person in respect of
28
anything done, or omitted to be done, in good faith by the person:
29
Schedule 8 Monitoring of compliance with control orders etc.
50
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(c) in the purported execution of the warrant; or
1
(d) in the purported exercise of a power, or the purported
2
performance of a function or duty, in a case where the
3
purported exercise of the power, or the purported
4
performance of the function or duty, is consequential on the
5
warrant.
6
(2) Subsection (1) does not apply to a thing done, or omitted to be
7
done, at a particular time if, at that time, the person knew, or ought
8
reasonably to have known, of the declaration.
9
3ZZTC Dealing with things, information or documents obtained
10
under a monitoring warrant--control order declared to
11
be void
12
Scope
13
(1) This section applies if:
14
(a) a monitoring warrant was issued on the basis that an interim
15
control order was in force; and
16
(b) a court subsequently declares the interim control order to be
17
void; and
18
(c) before the declaration was made, a thing was seized,
19
information was obtained, or a document was produced, as a
20
result of:
21
(i) the purported execution of the warrant; or
22
(ii) the purported exercise of a power, or the purported
23
performance of a function or duty, in a case where the
24
purported exercise of the power, or the purported
25
performance of the function or duty, is consequential on
26
the warrant.
27
Dealing
28
(2) A person may:
29
(a) adduce the thing, information or document as evidence in a
30
proceeding; or
31
(b) use or communicate the information; or
32
(c) use, or communicate the contents of, the document;
33
if:
34
Monitoring of compliance with control orders etc. Schedule 8
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
51
(d) the person reasonably believes that doing so is necessary to
1
assist in preventing, or reducing the risk of:
2
(i) the commission of a terrorist act; or
3
(ii) serious harm to a person; or
4
(iii) serious damage to property; or
5
(e) the person does so for one or more purposes set out in
6
subsection (3).
7
Purposes
8
(3) The purposes are purposes connected with:
9
(a) the performance of a function or duty, or the exercise of a
10
power, by a person, court, tribunal or other body under, or in
11
relation to a matter arising under, Division 105 of the
12
Criminal Code, so far as the function, duty or power relates
13
to a preventative detention order (within the meaning of
14
Part 5.3 of the Criminal Code); or
15
(b) the performance of a function or duty, or the exercise of a
16
power, by a person, court, tribunal or other body under, or in
17
relation to a matter arising under, Part 2A of the Terrorism
18
(Police Powers) Act 2002 (NSW), so far as the function, duty
19
or power relates to a preventative detention order (within the
20
meaning of that Part); or
21
(c) the performance of a function or duty, or the exercise of a
22
power, by a person, court, tribunal or other body under, or in
23
relation to a matter arising under, Part 2A of the Terrorism
24
(Community Protection) Act 2003 (Vic.), so far as the
25
function, duty or power relates to a preventative detention
26
order (within the meaning of that Part); or
27
(d) the performance of a function or duty, or the exercise of a
28
power, by a person, court, tribunal or other body under, or in
29
relation to a matter arising under, the Terrorism (Preventative
30
Detention) Act 2005 (Qld), so far as the function, duty or
31
power relates to a preventative detention order (within the
32
meaning of that Act); or
33
(e) the performance of a function or duty, or the exercise of a
34
power, by a person, court, tribunal or other body under, or in
35
relation to a matter arising under, the Terrorism (Preventative
36
Detention) Act 2006 (WA), so far as the function, duty or
37
Schedule 8 Monitoring of compliance with control orders etc.
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
power relates to a preventative detention order (within the
1
meaning of that Act); or
2
(f) the performance of a function or duty, or the exercise of a
3
power, by a person, court, tribunal or other body under, or in
4
relation to a matter arising under, the Terrorism (Preventative
5
Detention) Act 2005 (SA), so far as the function, duty or
6
power relates to a preventative detention order (within the
7
meaning of that Act); or
8
(g) the performance of a function or duty, or the exercise of a
9
power, by a person, court, tribunal or other body under, or in
10
relation to a matter arising under, the Terrorism (Preventative
11
Detention) Act 2005 (Tas.), so far as the function, duty or
12
power relates to a preventative detention order (within the
13
meaning of that Act); or
14
(h) the performance of a function or duty, or the exercise of a
15
power, by a person, court, tribunal or other body under, or in
16
relation to a matter arising under, Part 2 of the Terrorism
17
(Extraordinary Temporary Powers) Act 2006 (ACT), so far
18
as the function, duty or power relates to a preventative
19
detention order (within the meaning of that Part); or
20
(i) the performance of a function or duty, or the exercise of a
21
power, by a person, court, tribunal or other body under, or in
22
relation to a matter arising under, Part 2B of the Terrorism
23
(Emergency Powers) Act (NT), so far as the function, duty or
24
power relates to a preventative detention order (within the
25
meaning of that Part).
26
Definition
27
(4) In this section:
28
serious harm has the same meaning as in the Criminal Code.
29
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
53
Schedule 9--Telecommunications interception
1
Part 1--Amendments
2
Telecommunications (Interception and Access) Act 1979
3
1 Subsection 5(1)
4
Insert:
5
confirmed control order has the same meaning as in Part 5.3 of the
6
Criminal Code.
7
control order has the same meaning as in Part 5.3 of the Criminal
8
Code.
9
engage in a hostile activity has the same meaning as in Part 5.3 of
10
the Criminal Code.
11
foreign country, when used in the expression hostile activity in a
12
foreign country, has the same meaning as in the Criminal Code.
13
interim control order has the same meaning as in Part 5.3 of the
14
Criminal Code.
15
2 Subsection 5(1) (subparagraph (b)(vi) of the definition of
16
permitted purpose)
17
After "preventative detention order", insert "(within the meaning of
18
Part 5.3 of the Criminal Code)".
19
3 Subsection 5(1) (at the end of paragraph (c) of the
20
definition of permitted purpose)
21
Add:
22
(vi) the performance of a function or duty, or the exercise of
23
a power, by a person, court or other body under, or in
24
relation to a matter arising under, Division 104 of the
25
Criminal Code; or
26
(vii) the performance of a function or duty, or the exercise of
27
a power, by a person, court, tribunal or other body
28
under, or in relation to a matter arising under, Part 2A of
29
the Terrorism (Police Powers) Act 2002 (NSW), so far
30
Schedule 9 Telecommunications interception
Part 1 Amendments
54
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
as the function, duty or power relates to a preventative
1
detention order (within the meaning of that Part); or
2
(viii) the performance of a function or duty, or the exercise of
3
a power, by a person, court, tribunal or other body
4
under, or in relation to a matter arising under, Part 2A of
5
the Terrorism (Community Protection) Act 2003 (Vic.),
6
so far as the function, duty or power relates to a
7
preventative detention order (within the meaning of that
8
Part); or
9
(ix) the performance of a function or duty, or the exercise of
10
a power, by a person, court, tribunal or other body
11
under, or in relation to a matter arising under, the
12
Terrorism (Preventative Detention) Act 2005 (Qld), so
13
far as the function, duty or power relates to a
14
preventative detention order (within the meaning of that
15
Act); or
16
(x) the performance of a function or duty, or the exercise of
17
a power, by a person, court, tribunal or other body
18
under, or in relation to a matter arising under, the
19
Terrorism (Preventative Detention) Act 2006 (WA), so
20
far as the function, duty or power relates to a
21
preventative detention order (within the meaning of that
22
Act); or
23
(xi) the performance of a function or duty, or the exercise of
24
a power, by a person, court, tribunal or other body
25
under, or in relation to a matter arising under, the
26
Terrorism (Preventative Detention) Act 2005 (SA), so
27
far as the function, duty or power relates to a
28
preventative detention order (within the meaning of that
29
Act); or
30
(xii) the performance of a function or duty, or the exercise of
31
a power, by a person, court, tribunal or other body
32
under, or in relation to a matter arising under, the
33
Terrorism (Preventative Detention) Act 2005 (Tas.), so
34
far as the function, duty or power relates to a
35
preventative detention order (within the meaning of that
36
Act); or
37
(xiii) the performance of a function or duty, or the exercise of
38
a power, by a person, court, tribunal or other body
39
under, or in relation to a matter arising under, Part 2 of
40
the Terrorism (Extraordinary Temporary Powers) Act
41
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
55
2006 (ACT), so far as the function, duty or power
1
relates to a preventative detention order (within the
2
meaning of that Part); or
3
(xiv) the performance of a function or duty, or the exercise of
4
a power, by a person, court, tribunal or other body
5
under, or in relation to a matter arising under, Part 2B of
6
the Terrorism (Emergency Powers) Act (NT), so far as
7
the function, duty or power relates to a preventative
8
detention order (within the meaning of that Part); or
9
4 Subsection 5(1) (definition of preventative detention order)
10
Repeal the definition.
11
5 Subsection 5(1)
12
Insert:
13
succeeding control order has the meaning given by section 6U.
14
terrorist act has the same meaning as in Part 5.3 of the Criminal
15
Code.
16
6 Paragraph 5B(1)(bc)
17
After "preventative detention order", insert "(within the meaning of
18
Part 5.3 of the Criminal Code)".
19
7 After paragraph 5B(1)(bc)
20
Insert:
21
(bd) a proceeding under, or a proceeding relating to a matter
22
arising under, Part 2A of the Terrorism (Police Powers) Act
23
2002 (NSW), so far as the proceeding relates to a
24
preventative detention order (within the meaning of that
25
Part); or
26
(be) a proceeding under, or a proceeding relating to a matter
27
arising under, Part 2A of the Terrorism (Community
28
Protection) Act 2003 (Vic.), so far as the proceeding relates
29
to a preventative detention order (within the meaning of that
30
Part); or
31
(bf) a proceeding under, or a proceeding relating to a matter
32
arising under, the Terrorism (Preventative Detention) Act
33
Schedule 9 Telecommunications interception
Part 1 Amendments
56
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
2005 (Qld), so far as the proceeding relates to a preventative
1
detention order (within the meaning of that Act); or
2
(bg) a proceeding under, or a proceeding relating to a matter
3
arising under, the Terrorism (Preventative Detention) Act
4
2006 (WA), so far as the proceeding relates to a preventative
5
detention order (within the meaning of that Act); or
6
(bh) a proceeding under, or a proceeding relating to a matter
7
arising under, the Terrorism (Preventative Detention) Act
8
2005 (SA), so far as the proceeding relates to a preventative
9
detention order (within the meaning of that Act); or
10
(bi) a proceeding under, or a proceeding relating to a matter
11
arising under, the Terrorism (Preventative Detention) Act
12
2005 (Tas.), so far as the proceeding relates to a preventative
13
detention order (within the meaning of that Act); or
14
(bj) a proceeding under, or a proceeding relating to a matter
15
arising under, Part 2 of the Terrorism (Extraordinary
16
Temporary Powers) Act 2006 (ACT), so far as the
17
proceeding relates to a preventative detention order (within
18
the meaning of that Part); or
19
(bk) a proceeding under, or a proceeding relating to a matter
20
arising under, Part 2B of the Terrorism (Emergency Powers)
21
Act (NT), so far as the proceeding relates to a preventative
22
detention order (within the meaning of that Part); or
23
8 Paragraph 6H(a)
24
After "46(1)(c) and (d)", insert "or 46(4)(c), (d) and (e), as the case
25
requires".
26
9 Paragraph 6H(b)
27
Omit "or 46A(1)(c) and (d)", substitute ", 46(4)(c), (d) and (e),
28
46A(1)(c) and (d) or 46A(2A)(c), (d) and (e)".
29
10 After section 6S
30
Insert:
31
6T When control order is taken to be in force
32
For the purposes of this Act, if:
33
(a) a control order has been made in relation to a person; and
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
57
(b) apart from this section, the control order has not come into
1
force because it has not been served on the person;
2
the control order is taken to be in force.
3
6U Succeeding control orders
4
If 2 or more successive control orders are made in relation to the
5
same person, each later control order is a succeeding control order
6
in relation to each earlier control order.
7
11 Subsection 7(9) (note)
8
Repeal the note, substitute:
9
Note:
See subsection (6). A Part 2-5 warrant can only be issued for:
10
(a) the purposes of an investigation relating to the commission of
11
one or more serious offences; or
12
(b) purposes relating to a control order.
13
12 At the end of paragraph 44A(2)(a)
14
Add "or 46(5)(a) to (f), as the case requires".
15
13 At the end of paragraph 44A(2)(b)
16
Add "or 46A(2B)(a) to (f), as the case requires".
17
14 At the end of paragraph 45(2)(a)
18
Add "or 46(5)(a) to (f), as the case requires".
19
15 At the end of paragraph 45(2)(b)
20
Add "or 46A(2B)(a) to (f), as the case requires".
21
16 Before subsection 46(1)
22
Insert:
23
Warrant relating to the investigation of one or more serious
24
offences
25
17 Subsection 46(2)
26
Omit "The matters", substitute "For the purposes of subsection (1), the
27
matters".
28
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Part 1 Amendments
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
18 Subsection 46(3)
1
After "warrant", insert "under subsection (1)".
2
19 At the end of section 46
3
Add:
4
Warrant relating to a control order
5
(4) If an agency applies to an eligible Judge or nominated AAT
6
member for a warrant in respect of a telecommunications service
7
and the Judge or nominated AAT member is satisfied, on the basis
8
of the information given to the Judge or nominated AAT member
9
under this Part in connection with the application, that:
10
(a) Division 3 has been complied with in relation to the
11
application; and
12
(b) in the case of a telephone application--because of urgent
13
circumstances, it was necessary to make the application by
14
telephone; and
15
(c) there are reasonable grounds for suspecting that a particular
16
person is using, or is likely to use, the service; and
17
(d) either:
18
(i) a control order is in force in relation to the particular
19
person; or
20
(ii) a control order is in force in relation to another person,
21
and the particular person is likely to communicate with
22
the other person using the service; and
23
(e) information that would be likely to be obtained by
24
intercepting under a warrant communications made to or
25
from the service would be likely to substantially assist in
26
connection with:
27
(i) the protection of the public from a terrorist act; or
28
(ii) preventing the provision of support for, or the
29
facilitation of, a terrorist act; or
30
(iii) preventing the provision of support for, or the
31
facilitation of, the engagement in a hostile activity in a
32
foreign country; or
33
(iv) determining whether the control order, or any
34
succeeding control order, has been, or is being,
35
complied with; and
36
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Amendments Part 1
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
59
(f) having regard to the matters referred to in subsection (5), and
1
to no other matters, the Judge or nominated AAT member
2
should issue a warrant authorising such communications to
3
be intercepted;
4
the Judge or nominated AAT member may, in his or her discretion,
5
issue such a warrant.
6
Note 1:
Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii)
7
applies.
8
Note 2:
For control orders that have been made but not come into force, see
9
section 6T.
10
(5) For the purposes of subsection (4), the matters to which the Judge
11
or nominated AAT member must have regard are:
12
(a) how much the privacy of any person or persons would be
13
likely to be interfered with by intercepting under a warrant
14
communications made to or from the service referred to in
15
subsection (4); and
16
(b) how much the information referred to in paragraph (4)(e)
17
would be likely to assist in connection with:
18
(i) the protection of the public from a terrorist act; or
19
(ii) preventing the provision of support for, or the
20
facilitation of, a terrorist act; or
21
(iii) preventing the provision of support for, or the
22
facilitation of, the engagement in a hostile activity in a
23
foreign country; or
24
(iv) determining whether the control order, or any
25
succeeding control order, has been, or is being,
26
complied with; and
27
(c) to what extent methods for:
28
(i) the protection of the public from a terrorist act; or
29
(ii) preventing the provision of support for, or the
30
facilitation of, a terrorist act; or
31
(iii) preventing the provision of support for, or the
32
facilitation of, the engagement in a hostile activity in a
33
foreign country; or
34
(iv) determining whether the control order, or any
35
succeeding control order, has been, or is being,
36
complied with;
37
that do not involve so intercepting communications have
38
been used by, or are available to, the agency; and
39
Schedule 9 Telecommunications interception
Part 1 Amendments
60
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(d) how much the use of such methods would be likely to assist
1
in connection with:
2
(i) the protection of the public from a terrorist act; or
3
(ii) preventing the provision of support for, or the
4
facilitation of, a terrorist act; or
5
(iii) preventing the provision of support for, or the
6
facilitation of, the engagement in a hostile activity in a
7
foreign country; or
8
(iv) determining whether the control order, or any
9
succeeding control order, has been, or is being,
10
complied with; and
11
(e) how much the use of such methods would be likely to
12
prejudice:
13
(i) the protection of the public from a terrorist act; or
14
(ii) preventing the provision of support for, or the
15
facilitation of, a terrorist act; or
16
(iii) preventing the provision of support for, or the
17
facilitation of, the engagement in a hostile activity in a
18
foreign country; or
19
(iv) determining whether the control order, or any
20
succeeding control order, has been, or is being,
21
complied with;
22
whether because of delay or for any other reason; and
23
(f) the possibility that the person in relation to whom the control
24
order is in force:
25
(i) has engaged, is engaging, or will engage, in a terrorist
26
act; or
27
(ii) has provided, is providing, or will provide, support for a
28
terrorist act; or
29
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
30
act; or
31
(iv) has provided, is providing, or will provide, support for
32
the engagement in a hostile activity in a foreign country;
33
or
34
(v) has facilitated, is facilitating, or will facilitate, the
35
engagement in a hostile activity in a foreign country; or
36
(vi) has contravened, is contravening, or will contravene, the
37
control order; or
38
(vii) will contravene a succeeding control order; and
39
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
61
(g) in relation to an application by an interception agency of
1
Victoria--any submissions made by the Victorian PIM under
2
section 44A to the Judge or nominated AAT member; and
3
(h) in relation to an application by an interception agency of
4
Queensland--any submissions made by the Queensland PIM
5
under section 45 to the Judge or nominated AAT member.
6
(6) The Judge or nominated AAT member must not issue a warrant in
7
a case in which subparagraph (4)(d)(ii) applies unless he or she is
8
satisfied that:
9
(a) the agency has exhausted all other practicable methods of
10
identifying the telecommunications services used, or likely to
11
be used, by the person to whom the control order referred to
12
in subparagraph (4)(d)(ii) relates; or
13
(b) interception of communications made to or from a
14
telecommunications service used or likely to be used by that
15
person would not otherwise be possible.
16
20 Before subsection 46A(1)
17
Insert:
18
Warrant relating to the investigation of one or more serious
19
offences
20
21 Subsection 46A(2)
21
Omit "The matters", substitute "For the purposes of subsection (1), the
22
matters".
23
22 After subsection 46A(2)
24
Insert:
25
Warrant relating to a control order
26
(2A) If an agency applies to an eligible Judge or nominated AAT
27
member for a warrant in respect of a person and the Judge or
28
nominated AAT member is satisfied, on the basis of the
29
information given to the Judge or nominated AAT member under
30
this Part in connection with the application, that:
31
(a) Division 3 has been complied with in relation to the
32
application; and
33
Schedule 9 Telecommunications interception
Part 1 Amendments
62
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(b) in the case of a telephone application--because of urgent
1
circumstances, it was necessary to make the application by
2
telephone; and
3
(c) there are reasonable grounds for suspecting that a particular
4
person is using, or is likely to use, more than one
5
telecommunications service; and
6
(d) a control order is in force in relation to the person; and
7
(e) information that would be likely to be obtained by
8
intercepting under a warrant:
9
(i) communications made to or from any
10
telecommunications service that the person is using, or
11
is likely to use; or
12
(ii) communications made by means of a particular
13
telecommunications device or particular
14
telecommunications devices that the person is using, or
15
is likely to use;
16
would be likely to substantially assist in connection with:
17
(iii) the protection of the public from a terrorist act; or
18
(iv) preventing the provision of support for, or the
19
facilitation of, a terrorist act; or
20
(v) preventing the provision of support for, or the
21
facilitation of, the engagement in a hostile activity in a
22
foreign country; or
23
(vi) determining whether the control order, or any
24
succeeding control order, has been, or is being,
25
complied with; and
26
(f) having regard to the matters referred to in subsection (2B),
27
and to no other matters, the Judge or nominated AAT
28
member should issue a warrant authorising such
29
communications to be intercepted;
30
the Judge or nominated AAT member may, in his or her discretion,
31
issue such a warrant.
32
Note 1:
Subsection (3) restricts the issuing of a warrant authorising
33
interception of communications made by means of a
34
telecommunications device or telecommunications devices identified
35
in the warrant.
36
Note 2:
For control orders that have been made but not come into force, see
37
section 6T.
38
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
63
(2B) For the purposes of subsection (2A), the matters to which the Judge
1
or nominated AAT member must have regard are:
2
(a) how much the privacy of any person or persons would be
3
likely to be interfered with by intercepting under a warrant:
4
(i) communications made to or from any
5
telecommunications service used, or likely to be used,
6
by the person in respect of whom the warrant is sought;
7
or
8
(ii) communications made by means of a particular
9
telecommunications device or particular
10
telecommunications devices used, or likely to be used,
11
by the person in respect of whom the warrant is sought;
12
as the case requires; and
13
(b) how much the information referred to in paragraph (2A)(e)
14
would be likely to assist in connection with:
15
(i) the protection of the public from a terrorist act; or
16
(ii) preventing the provision of support for, or the
17
facilitation of, a terrorist act; or
18
(iii) preventing the provision of support for, or the
19
facilitation of, the engagement in a hostile activity in a
20
foreign country; or
21
(iv) determining whether the control order, or any
22
succeeding control order, has been, or is being,
23
complied with; and
24
(c) to what extent methods (including the use of a warrant issued
25
under section 46) for:
26
(i) the protection of the public from a terrorist act; or
27
(ii) preventing the provision of support for, or the
28
facilitation of, a terrorist act; or
29
(iii) preventing the provision of support for, or the
30
facilitation of, the engagement in a hostile activity in a
31
foreign country; or
32
(iv) determining whether the control order, or any
33
succeeding control order, has been, or is being,
34
complied with;
35
that do not involve the use of a warrant issued under this
36
section in relation to the person have been used by, or are
37
available to, the agency; and
38
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(d) how much the use of such methods would be likely to assist
1
in connection with:
2
(i) the protection of the public from a terrorist act; or
3
(ii) preventing the provision of support for, or the
4
facilitation of, a terrorist act; or
5
(iii) preventing the provision of support for, or the
6
facilitation of, the engagement in a hostile activity in a
7
foreign country; or
8
(iv) determining whether the control order, or any
9
succeeding control order, has been, or is being,
10
complied with; and
11
(e) how much the use of such methods would be likely to
12
prejudice:
13
(i) the protection of the public from a terrorist act; or
14
(ii) preventing the provision of support for, or the
15
facilitation of, a terrorist act; or
16
(iii) preventing the provision of support for, or the
17
facilitation of, the engagement in a hostile activity in a
18
foreign country; or
19
(iv) determining whether the control order, or any
20
succeeding control order, has been, or is being,
21
complied with;
22
whether because of delay or for any other reason; and
23
(f) the possibility that the person in relation to whom the control
24
order is in force:
25
(i) has engaged, is engaging, or will engage, in a terrorist
26
act; or
27
(ii) has provided, is providing, or will provide, support for a
28
terrorist act; or
29
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
30
act; or
31
(iv) has provided, is providing, or will provide, support for
32
the engagement in a hostile activity in a foreign country;
33
or
34
(v) has facilitated, is facilitating, or will facilitate, the
35
engagement in a hostile activity in a foreign country; or
36
(vi) has contravened, is contravening, or will contravene, the
37
control order; or
38
(vii) will contravene a succeeding control order; and
39
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(g) in relation to an application by an interception agency of
1
Victoria--any submissions made by the Victorian PIM under
2
section 44A to the Judge or nominated AAT member; and
3
(h) in relation to an application by an interception agency of
4
Queensland--any submissions made by the Queensland PIM
5
under section 45 to the Judge or nominated AAT member.
6
23 Before subsection 46A(3)
7
Insert:
8
Restriction on issue of warrant--interception of communications
9
made by means of one or more telecommunications devices
10
24 At the end of subparagraph 48(3)(d)(ii)
11
Add "or, in the case of a warrant issued in the circumstances mentioned
12
in subsection 46(4), might jeopardise the achievement of an objective
13
for which the warrant was issued".
14
25 Paragraph 49(3)(a)
15
After "46(1)(d)(ii)", insert "or 46(4)(d)(ii)".
16
26 Subsection 49(7)
17
After "A warrant", insert "issued under subsection 46(1) or 46A(1), or
18
issued under section 48 in the circumstances mentioned in
19
subsection 46(1),".
20
27 At the end of section 49
21
Add:
22
(8) A warrant issued under subsection 46(4) or 46A(2A), or issued
23
under section 48 in the circumstances mentioned in
24
subsection 46(4), must:
25
(a) state that the warrant is issued on the basis of a control order
26
made in relation to a person; and
27
(b) specify the name of the person; and
28
(c) specify the date the control order was made; and
29
(d) state whether the control order is an interim control order or a
30
confirmed control order.
31
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28 At the end of section 57
1
Add:
2
(6) For the purposes of the application of subsection (1) to a warrant
3
issued:
4
(a) under subsection 46(4) or 46A(2A); or
5
(b) under section 48 in the circumstances mentioned in
6
subsection 46(4);
7
on the ground that a control order was in force, that ground is taken
8
to have ceased to exist if, and only if, neither that control order, nor
9
any succeeding control order, is in force.
10
29 Subsections 63(1) and (2)
11
After "to this Part", insert "and section 299".
12
30 Section 65A
13
Before "An", insert "(1)".
14
31 Section 65A
15
After "offence,", insert "or for a purpose or purposes connected with a
16
control order,".
17
32 At the end of section 65A
18
Add:
19
(2) In this section, purpose connected with a control order means:
20
(a) a purpose connected with determining whether a control
21
order has been, or is being, complied with; or
22
(b) a purpose connected with the performance of a function or
23
duty, or the exercise of a power, by a person, court or other
24
body under, or in relation to a matter arising under,
25
Division 104 of the Criminal Code.
26
33 Subsection 67(1B)
27
After "referred to", insert "in".
28
34 Subsection 67(1B)
29
Omit all the words after "the agency", substitute:
30
under section 68:
31
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(a) if the warrant under which the information was obtained
1
relates to an investigation--for a purpose or purposes
2
connected with the investigation; or
3
(b) if the warrant under which the information was obtained was
4
issued:
5
(i) under subsection 46(4) or 46A(2A); or
6
(ii) under section 48 in the circumstances mentioned in
7
subsection 46(4);
8
on the basis of a control order--for a purpose or purposes
9
connected with the control order;
10
and for no other purpose.
11
35 At the end of section 67
12
Add:
13
(3) In this section, purpose connected with a control order means:
14
(a) a purpose connected with determining whether a control
15
order has been, or is being, complied with; or
16
(b) a purpose connected with the performance of a function or
17
duty, or the exercise of a power, by a person, court or other
18
body under, or in relation to a matter arising under,
19
Division 104 of the Criminal Code.
20
36 Section 79 (heading)
21
Repeal the heading, substitute:
22
79 Destruction of restricted records that are not likely to be
23
required for a permitted purpose
24
37 After section 79
25
Insert:
26
79AA Destruction of restricted records--information obtained
27
before a control order came into force
28
(1) If:
29
(a) a restricted record is in the possession of an agency; and
30
(b) the restricted record relates to an interception authorised by a
31
warrant that was issued:
32
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(i) under subsection 46(4) or 46A(2A); or
1
(ii) under section 48 in the circumstances mentioned in
2
subsection 46(4);
3
on the basis of a control order made in in relation to a person;
4
and
5
(c) the warrant was issued for the purpose, or for purposes that
6
include the purpose, of obtaining information that would be
7
likely to assist in connection with determining whether the
8
control order, or any succeeding control order, has been, or is
9
being, complied with; and
10
(d) the interception occurred when the control order had been
11
made, but had not come into force because it had not been
12
served on the person; and
13
(e) the chief officer of the agency is satisfied that none of the
14
information obtained by the interception is likely to assist in
15
connection with:
16
(i) the protection of the public from a terrorist act; or
17
(ii) preventing the provision of support for, or the
18
facilitation of, a terrorist act; or
19
(iii) preventing the provision of support for, or the
20
facilitation of, the engagement in a hostile activity in a
21
foreign country;
22
the chief officer of the agency must cause the restricted record to
23
be destroyed as soon as practicable.
24
(2) Section 6T does not apply to subsection (1) of this section.
25
38 Paragraph 81A(2)(g)
26
Before "each", insert "in the case of a warrant issued under
27
subsection 46(1) or 46A(1), or issued under section 48 in the
28
circumstances mentioned in subsection 46(1)--".
29
39 At the end of subsection 81A(2)
30
Add:
31
; and (h) in the case of a warrant issued:
32
(i) under subsection 46(4) or 46A(2A); or
33
(ii) under section 48 in the circumstances mentioned in
34
subsection 46(4);
35
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the name of the person to whom the relevant control order
1
relates.
2
40 Paragraph 81C(2)(g)
3
Before "each", insert "in the case of a warrant issued under
4
subsection 46(1) or 46A(1), or issued under section 48 in the
5
circumstances mentioned in subsection 46(1)--".
6
41 At the end of subsection 81C(2)
7
Add:
8
; (h) in the case of a warrant issued:
9
(i) under subsection 46(4) or 46A(2A); or
10
(ii) under section 48 in the circumstances mentioned in
11
subsection 46(4);
12
the name of the person to whom the relevant control order
13
relates.
14
42 Subsections 83(1) and (2)
15
After "79,", insert "79AA,".
16
43 Section 85
17
After "79,", insert "79AA,".
18
44 At the end of Division 2 of Part 2-8
19
Add:
20
103B Deferral of inclusion of information in report
21
Scope
22
(1) This section applies to information in a report submitted to the
23
Minister:
24
(a) under section 94 by the chief officer of a Commonwealth
25
agency; or
26
(b) under section 96 by the chief officer of an eligible authority
27
of a State.
28
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Exclusion of information
1
(2) If the chief officer of the agency that submitted the report is
2
satisfied that the information should not be included in a report
3
prepared by the Minister under this Division because the
4
information, if made public, could reasonably be expected to
5
enable a reasonable person to conclude that:
6
(a) a control order warrant is likely to be, or is not likely to be, in
7
force in relation to a telecommunications service used, or
8
likely to be used, by a particular person; or
9
(b) a control order warrant is likely to be, or is not likely to be, in
10
force in relation to a particular person;
11
the chief officer must advise the Minister not to include the
12
information in the Minister's report.
13
(3) If the Minister is satisfied, on the advice of the chief officer, that
14
the information, if made public, could reasonably be expected to
15
enable a reasonable person to conclude that:
16
(a) a control order warrant is likely to be, or is not likely to be, in
17
force in relation to a telecommunications service used, or
18
likely to be used, by a particular person; or
19
(b) a control order warrant is likely to be, or is not likely to be, in
20
force in relation to a particular person;
21
the Minister must not include the information in the Minister's
22
report.
23
Inclusion of information in subsequent report
24
(4) If the Minister decides, under subsection (3), not to include
25
information in a report and, after the decision is made, the relevant
26
chief officer is satisfied that the information, if made public, could
27
not reasonably be expected to enable a reasonable person to
28
conclude that:
29
(a) a control order warrant is likely to be, or is not likely to be, in
30
force in relation to a telecommunications service used, or
31
likely to be used, by a particular person; or
32
(b) a control order warrant is likely to be, or is not likely to be, in
33
force in relation to a particular person;
34
the chief officer must advise the Minister to include the
35
information in the next report prepared by the Minister under this
36
Division.
37
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71
(5) If the Minister is satisfied, on the advice of the chief officer, that
1
the information, if made public, could not reasonably be expected
2
to enable a reasonable person to conclude that:
3
(a) a control order warrant is likely to be, or is not likely to be, in
4
force in relation to a telecommunications service used, or
5
likely to be used, by a particular person; or
6
(b) a control order warrant is likely to be, or is not likely to be, in
7
force in relation to a particular person;
8
the Minister must include the information in the next report
9
prepared by the Minister under this Division.
10
Definition
11
(6) In this section:
12
control order warrant means a warrant issued:
13
(a) under subsection 46(4) or 46A(2A); or
14
(b) under section 48 in the circumstances mentioned in
15
subsection 46(4).
16
45 At the end of subsection 133(2)
17
Add "or section 299".
18
46 Subsection 139(1)
19
After "139A(2)", insert "or 139B(2)".
20
47 Subsection 139A(1)
21
After "139(2)", insert "or (4A) or 139B(2)".
22
48 After section 139A
23
Insert:
24
139B Dealing for purposes relating to control orders and
25
preventative detention orders
26
(1) An officer or staff member of:
27
(a) the Australian Federal Police; or
28
(b) the police force of a State or Territory;
29
may, for one or more purposes referred to in subsection (2), and for
30
no other purpose (other than a purpose referred to in
31
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Part 1 Amendments
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No. , 2015
subsection 139(2) or (4A) or 139A(2), if applicable), communicate
1
to another person, make use of, or make a record of lawfully
2
accessed information other than foreign intelligence information.
3
(2) The purposes are purposes connected with:
4
(a) the performance of a function or duty, or the exercise of a
5
power, by a person, court or other body under, or in relation
6
to a matter arising under, Division 104 of the Criminal Code;
7
or
8
(b) the performance of a function or duty, or the exercise of a
9
power, by a person, court, tribunal or other body under, or in
10
relation to a matter arising under, Division 105 of the
11
Criminal Code, so far as the function, duty or power relates
12
to a preventative detention order (within the meaning of
13
Part 5.3 of the Criminal Code); or
14
(c) the performance of a function or duty, or the exercise of a
15
power, by a person, court, tribunal or other body under, or in
16
relation to a matter arising under, Part 2A of the Terrorism
17
(Police Powers) Act 2002 (NSW), so far as the function, duty
18
or power relates to a preventative detention order (within the
19
meaning of that Part); or
20
(d) the performance of a function or duty, or the exercise of a
21
power, by a person, court, tribunal or other body under, or in
22
relation to a matter arising under, Part 2A of the Terrorism
23
(Community Protection) Act 2003 (Vic.), so far as the
24
function, duty or power relates to a preventative detention
25
order (within the meaning of that Part); or
26
(e) the performance of a function or duty, or the exercise of a
27
power, by a person, court, tribunal or other body under, or in
28
relation to a matter arising under, the Terrorism (Preventative
29
Detention) Act 2005 (Qld), so far as the function, duty or
30
power relates to a preventative detention order (within the
31
meaning of that Act); or
32
(f) the performance of a function or duty, or the exercise of a
33
power, by a person, court, tribunal or other body under, or in
34
relation to a matter arising under, the Terrorism (Preventative
35
Detention) Act 2006 (WA), so far as the function, duty or
36
power relates to a preventative detention order (within the
37
meaning of that Act); or
38
(g) the performance of a function or duty, or the exercise of a
39
power, by a person, court, tribunal or other body under, or in
40
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relation to a matter arising under, the Terrorism (Preventative
1
Detention) Act 2005 (SA), so far as the function, duty or
2
power relates to a preventative detention order (within the
3
meaning of that Act); or
4
(h) the performance of a function or duty, or the exercise of a
5
power, by a person, court, tribunal or other body under, or in
6
relation to a matter arising under, the Terrorism (Preventative
7
Detention) Act 2005 (Tas.), so far as the function, duty or
8
power relates to a preventative detention order (within the
9
meaning of that Act); or
10
(i) the performance of a function or duty, or the exercise of a
11
power, by a person, court, tribunal or other body under, or in
12
relation to a matter arising under, Part 2 of the Terrorism
13
(Extraordinary Temporary Powers) Act 2006 (ACT), so far
14
as the function, duty or power relates to a preventative
15
detention order (within the meaning of that Part); or
16
(j) the performance of a function or duty, or the exercise of a
17
power, by a person, court, tribunal or other body under, or in
18
relation to a matter arising under, Part 2B of the Terrorism
19
(Emergency Powers) Act (NT), so far as the function, duty or
20
power relates to a preventative detention order (within the
21
meaning of that Part).
22
49 Section 142
23
Omit "or 139A", substitute ", 139A or 139B".
24
50 Paragraph 150(1)(b)
25
Omit "or 139A(2)", substitute " or (4A), 139A(2) or 139B(2)".
26
51 Chapter 6 (heading)
27
Repeal the heading, substitute:
28
Chapter 6--Miscellaneous
29
52 Part 6-1 (heading)
30
Repeal the heading, substitute:
31
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Part 6-1--Miscellaneous
1
53 Before section 300
2
Insert:
3
298 Protection of persons--control order declared to be void
4
(1) If:
5
(a) a warrant was issued on the basis that an interim control
6
order was in force; and
7
(b) a court subsequently declares the interim control order to be
8
void;
9
a criminal proceeding does not lie against a person in respect of
10
anything done, or omitted to be done, in good faith by the person:
11
(c) in the purported execution of the warrant; or
12
(d) in the purported exercise of a power, or the purported
13
performance of a function or duty, in a case where the
14
purported exercise of the power, or the purported
15
performance of the function or duty, is consequential on the
16
warrant.
17
(2) Subsection (1) does not apply to a thing done, or omitted to be
18
done, at a particular time if, at that time, the person knew, or ought
19
reasonably to have known, of the declaration.
20
299 Dealing with information obtained under a warrant--control
21
order declared to be void
22
Scope
23
(1) This section applies if:
24
(a) a warrant was issued on the basis that an interim control
25
order was in force; and
26
(b) a court subsequently declares the interim control order to be
27
void; and
28
(c) before the declaration was made, information was obtained as
29
a result of:
30
(i) the purported execution of the warrant; or
31
(ii) the purported exercise of a power, or the purported
32
performance of a function or duty, in a case where the
33
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purported exercise of the power, or the purported
1
performance of the function or duty, is consequential on
2
the warrant.
3
Dealing
4
(2) A person may:
5
(a) communicate the information to another person; or
6
(b) make use of the information; or
7
(c) make a record of the information; or
8
(d) give the information in evidence in a proceeding;
9
if:
10
(e) the person reasonably believes that doing so is necessary to
11
assist in preventing, or reducing the risk, of:
12
(i) the commission of a terrorist act; or
13
(ii) serious harm to a person; or
14
(iii) serious damage to property; or
15
(f) the person does so for one or more purposes set out in
16
subsection (3).
17
Purposes
18
(3) The purposes are purposes connected with:
19
(a) the performance of a function or duty, or the exercise of a
20
power, by a person, court, tribunal or other body under, or in
21
relation to a matter arising under, Division 105 of the
22
Criminal Code, so far as the function, duty or power relates
23
to a preventative detention order (within the meaning of
24
Part 5.3 of the Criminal Code); or
25
(b) the performance of a function or duty, or the exercise of a
26
power, by a person, court, tribunal or other body under, or in
27
relation to a matter arising under, Part 2A of the Terrorism
28
(Police Powers) Act 2002 (NSW), so far as the function, duty
29
or power relates to a preventative detention order (within the
30
meaning of that Part); or
31
(c) the performance of a function or duty, or the exercise of a
32
power, by a person, court, tribunal or other body under, or in
33
relation to a matter arising under, Part 2A of the Terrorism
34
(Community Protection) Act 2003 (Vic.), so far as the
35
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
function, duty or power relates to a preventative detention
1
order (within the meaning of that Part); or
2
(d) the performance of a function or duty, or the exercise of a
3
power, by a person, court, tribunal or other body under, or in
4
relation to a matter arising under, the Terrorism (Preventative
5
Detention) Act 2005 (Qld), so far as the function, duty or
6
power relates to a preventative detention order (within the
7
meaning of that Act); or
8
(e) the performance of a function or duty, or the exercise of a
9
power, by a person, court, tribunal or other body under, or in
10
relation to a matter arising under, the Terrorism (Preventative
11
Detention) Act 2006 (WA), so far as the function, duty or
12
power relates to a preventative detention order (within the
13
meaning of that Act); or
14
(f) the performance of a function or duty, or the exercise of a
15
power, by a person, court, tribunal or other body under, or in
16
relation to a matter arising under, the Terrorism (Preventative
17
Detention) Act 2005 (SA), so far as the function, duty or
18
power relates to a preventative detention order (within the
19
meaning of that Act); or
20
(g) the performance of a function or duty, or the exercise of a
21
power, by a person, court, tribunal or other body under, or in
22
relation to a matter arising under, the Terrorism (Preventative
23
Detention) Act 2005 (Tas.), so far as the function, duty or
24
power relates to a preventative detention order (within the
25
meaning of that Act); or
26
(h) the performance of a function or duty, or the exercise of a
27
power, by a person, court, tribunal or other body under, or in
28
relation to a matter arising under, Part 2 of the Terrorism
29
(Extraordinary Temporary Powers) Act 2006 (ACT), so far
30
as the function, duty or power relates to a preventative
31
detention order (within the meaning of that Part); or
32
(i) the performance of a function or duty, or the exercise of a
33
power, by a person, court, tribunal or other body under, or in
34
relation to a matter arising under, Part 2B of the Terrorism
35
(Emergency Powers) Act (NT), so far as the function, duty or
36
power relates to a preventative detention order (within the
37
meaning of that Part).
38
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Definition
1
(4) In this section:
2
serious harm has the same meaning as in the Criminal Code.
3
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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Part 2--Transitional provisions
1
54 Validation of dealing with information
--preventative
2
detention orders
3
If:
4
(a) before the commencement of this item, an officer or staff
5
member of an agency communicated to another person, made
6
use of, or made a record of, information of a kind referred to
7
in section 67 of the Telecommunications (Interception and
8
Access) Act 1979; and
9
(b) apart from this item:
10
(i) the officer or staff member would have contravened
11
section 63 of that Act by communicating, using or
12
recording that information; and
13
(ii) the officer or staff member would not have contravened
14
that section if subparagraphs (c)(vii) to (xiv) of the
15
definition of permitted purpose in subsection 5(1) of
16
that Act (as amended by this Schedule) had been in
17
force;
18
the officer or staff member is taken not to have contravened that section
19
by communicating, using or recording that information.
20
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
79
Schedule 10--Surveillance devices
1
2
Surveillance Devices Act 2004
3
1 After paragraph 3(a)
4
Insert:
5
(aa) to establish procedures for law enforcement officers to obtain
6
warrants for the installation and use of surveillance devices in
7
cases where a control order is in force, and the use of a
8
surveillance device would be likely to substantially assist in:
9
(i) protecting the public from a terrorist act; or
10
(ii) preventing the provision of support for, or the
11
facilitation of, a terrorist act; or
12
(iii) preventing the provision of support for, or the
13
facilitation of, the engagement in a hostile activity in a
14
foreign country; or
15
(iv) determining whether the control order, or any
16
succeeding control order, has been, or is being,
17
complied with; and
18
(ab) to establish procedures for law enforcement officers to obtain
19
tracking device authorisations for the use of tracking devices
20
in cases where a control order is in force in relation to a
21
person, and the use of a tracking device is to obtain
22
information relating to the person for any of the following
23
purposes:
24
(i) protecting the public from a terrorist act;
25
(ii) preventing the provision of support for, or the
26
facilitation of, a terrorist act;
27
(iii) preventing the provision of support for, or the
28
facilitation of, the engagement in a hostile activity in a
29
foreign country;
30
(iv) determining whether the control order, or any
31
succeeding control order, has been, or is being,
32
complied with; and
33
2 At the end of section 4
34
Add:
35
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(5) For the avoidance of doubt, it is intended that a warrant may be
1
issued under this Act for the installation, use, maintenance or
2
retrieval of a surveillance device in a case where a control order is
3
in force, and the use of a surveillance device would be likely to
4
substantially assist in:
5
(a) protecting the public from a terrorist act; or
6
(b) preventing the provision of support for, or the facilitation of,
7
a terrorist act; or
8
(c) preventing the provision of support for, or the facilitation of,
9
the engagement in a hostile activity in a foreign country; or
10
(d) determining whether the control order, or any succeeding
11
control order, has been, or is being, complied with.
12
(6) For the avoidance of doubt, it is intended that, if a control order is
13
in force in relation to a person, a tracking device authorisation may
14
be given under this Act for the use of a tracking device to obtain
15
information relating to the person for any of the following
16
purposes:
17
(a) protecting the public from a terrorist act;
18
(b) preventing the provision of support for, or the facilitation of,
19
a terrorist act;
20
(c) preventing the provision of support for, or the facilitation of,
21
the engagement in a hostile activity in a foreign country;
22
(d) determining whether the control order, or any succeeding
23
control order, has been, or is being, complied with.
24
3 Subsection 6(1)
25
Insert:
26
confirmed control order has the same meaning as in Part 5.3 of the
27
Criminal Code.
28
control order has the same meaning as in Part 5.3 of the Criminal
29
Code.
30
control order warrant means a surveillance device warrant issued
31
in response to an application under subsection 14(3C).
32
engage in a hostile activity has the same meaning as in Part 5.3 of
33
the Criminal Code.
34
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81
foreign country, when used in the expression hostile activity in a
1
foreign country, has the same meaning as in the Criminal Code.
2
interim control order has the same meaning as in Part 5.3 of the
3
Criminal Code.
4
4 Subsection 6(1) (at the end of paragraph (o) of the
5
definition of relevant proceeding)
6
Add "or".
7
5 Subsection 6(1) (at the end of the definition of relevant
8
proceeding)
9
Add:
10
; or (q) a proceeding under, or a proceeding relating to a matter
11
arising under, Division 104 of the Criminal Code; or
12
(r) a proceeding under, or a proceeding relating to a matter
13
arising under, Division 105 of the Criminal Code, so far as
14
the proceeding relates to a preventative detention order
15
(within the meaning of Part 5.3 of the Criminal Code); or
16
(s) a proceeding under, or a proceeding relating to a matter
17
arising under, Part 2A of the Terrorism (Police Powers) Act
18
2002 (NSW), so far as the proceeding relates to a
19
preventative detention order (within the meaning of that
20
Part); or
21
(t) a proceeding under, or a proceeding relating to a matter
22
arising under, Part 2A of the Terrorism (Community
23
Protection) Act 2003 (Vic.), so far as the proceeding relates
24
to a preventative detention order (within the meaning of that
25
Part); or
26
(u) a proceeding under, or a proceeding relating to a matter
27
arising under, the Terrorism (Preventative Detention) Act
28
2005 (Qld), so far as the proceeding relates to a preventative
29
detention order (within the meaning of that Act); or
30
(v) a proceeding under, or a proceeding relating to a matter
31
arising under, the Terrorism (Preventative Detention) Act
32
2006 (WA), so far as the proceeding relates to a preventative
33
detention order (within the meaning of that Act); or
34
(w) a proceeding under, or a proceeding relating to a matter
35
arising under, the Terrorism (Preventative Detention) Act
36
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2005 (SA), so far as the proceeding relates to a preventative
1
detention order (within the meaning of that Act); or
2
(x) a proceeding under, or a proceeding relating to a matter
3
arising under, the Terrorism (Preventative Detention) Act
4
2005 (Tas.), so far as the proceeding relates to a preventative
5
detention order (within the meaning of that Act); or
6
(y) a proceeding under, or a proceeding relating to a matter
7
arising under, Part 2 of the Terrorism (Extraordinary
8
Temporary Powers) Act 2006 (ACT), so far as the
9
proceeding relates to a preventative detention order (within
10
the meaning of that Part); or
11
(z) a proceeding under, or a proceeding relating to a matter
12
arising under, Part 2B of the Terrorism (Emergency Powers)
13
Act (NT), so far as the proceeding relates to a preventative
14
detention order (within the meaning of that Part).
15
6 Subsection 6(1)
16
Insert:
17
succeeding control order has the meaning given by section 6D.
18
terrorist act has the same meaning as in Part 5.3 of the Criminal
19
Code.
20
7 After section 6B
21
Insert:
22
6C When control order is taken to be in force
23
For the purposes of this Act, if:
24
(a) a control order has been made in relation to a person; and
25
(b) apart from this section, the control order has not come into
26
force because it has not been served on the person;
27
the control order is taken to be in force.
28
6D Succeeding control orders
29
If 2 or more successive control orders are made in relation to the
30
same person, each later control order is a succeeding control order
31
in relation to each earlier control order.
32
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83
8 After subsection 14(3B)
1
Insert:
2
Control order warrants
3
(3C) A law enforcement officer (or another person on his or her behalf)
4
may apply for the issue of a surveillance device warrant if:
5
(a) a control order is in force in relation to a person; and
6
(b) the law enforcement officer suspects on reasonable grounds
7
that the use of a surveillance device to obtain information
8
relating to the person would be likely to substantially assist
9
in:
10
(i) protecting the public from a terrorist act; or
11
(ii) preventing the provision of support for, or the
12
facilitation of, a terrorist act; or
13
(iii) preventing the provision of support for, or the
14
facilitation of, the engagement in a hostile activity in a
15
foreign country; or
16
(iv) determining whether the control order, or any
17
succeeding control order, has been, or is being,
18
complied with.
19
Note:
For control orders that have been made but not come into force, see
20
section 6C.
21
9 Subsection 14(4)
22
Omit "or (3B)", substitute ", (3B) or (3C)".
23
10 Paragraph 14(6)(a)
24
After "(3)(b)", insert ", or would be likely to substantially assist as
25
described in paragraph (3C)(b)".
26
11 After paragraph 16(1)(bb)
27
Insert:
28
(bc) in the case of a control order warrant--that a control order is
29
in force in relation to a person, and that the use of a
30
surveillance device to obtain information relating to the
31
person would be likely to substantially assist in:
32
(i) protecting the public from a terrorist act; or
33
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(ii) preventing the provision of support for, or the
1
facilitation of, a terrorist act; or
2
(iii) preventing the provision of support for, or the
3
facilitation of, the engagement in a hostile activity in a
4
foreign country; or
5
(iv) determining whether the control order, or any
6
succeeding control order, has been, or is being,
7
complied with; and
8
12 At the end of subsection 16(1)
9
Add:
10
Note:
For control orders that have been made but not come into force, see
11
section 6C.
12
13 After paragraph 16(2)(ea)
13
Insert:
14
(eb) in the case of a control order warrant issued on the basis of a
15
control order that is in force in relation to a person--the
16
likely value of the information sought to be obtained, in:
17
(i) protecting the public from a terrorist act; or
18
(ii) preventing the provision of support for, or the
19
facilitation of, a terrorist act; or
20
(iii) preventing the provision of support for, or the
21
facilitation of, the engagement in a hostile activity in a
22
foreign country; or
23
(iv) determining whether the control order, or any
24
succeeding control order, has been, or is being,
25
complied with; and
26
(ec) in the case of a control order warrant issued on the basis of a
27
control order that is in force in relation to a person--the
28
possibility that the person:
29
(i) has engaged, is engaging, or will engage, in a terrorist
30
act; or
31
(ii) has provided, is providing, or will provide, support for a
32
terrorist act; or
33
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
34
act; or
35
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(iv) has provided, is providing, or will provide, support for
1
the engagement in a hostile activity in a foreign country;
2
or
3
(v) has facilitated, is facilitating, or will facilitate, the
4
engagement in a hostile activity in a foreign country; or
5
(vi) has contravened, is contravening, or will contravene, the
6
control order; or
7
(vii) will contravene a succeeding control order; and
8
14 Paragraph 16(2)(f)
9
Before "any", insert "in the case of a warrant sought in relation to a
10
relevant offence or a recovery order--".
11
15 At the end of subsection 16(2)
12
Add:
13
; and (g) in the case of a control order warrant issued on the basis of a
14
control order that is in force in relation to a person--any
15
previous control order warrant sought or issued on the basis
16
of a control order relating to the person.
17
16 After subsection 17(1)
18
Insert:
19
(1AA) If a control order warrant is issued on the basis of a control order
20
that is in force in relation to a person, the warrant must also specify
21
the following details in relation to the control order:
22
(a) the name of the person;
23
(b) the date the control order was made;
24
(c) whether the control order is an interim control order or a
25
confirmed control order.
26
17 Subsection 20(2)
27
Omit "or 21(3B)(a) and (b)", substitute ", 21(3B)(a) and (b), 21(3C)(a)
28
and (b) or 21(3D)(a) and (b)".
29
18 After subsection 21(3B)
30
Insert:
31
(3C) If:
32
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(a) the surveillance device warrant is a control order warrant
1
issued on the basis of a control order that was in force in
2
relation to a person; and
3
(b) the chief officer of the law enforcement agency to which the
4
law enforcement officer belongs or is seconded is satisfied
5
that the use of a surveillance device under the warrant to
6
obtain information relating to the person is no longer required
7
for any of the following purposes:
8
(i) protecting the public from a terrorist act;
9
(ii) preventing the provision of support for, or the
10
facilitation of, a terrorist act;
11
(iii) preventing the provision of support for, or the
12
facilitation of, the engagement in a hostile activity in a
13
foreign country;
14
(iv) determining whether the control order, or any
15
succeeding control order, has been, or is being,
16
complied with;
17
the chief officer must, in addition to revoking the warrant under
18
section 20, take the steps necessary to ensure that use of the
19
surveillance device authorised by the warrant is discontinued as
20
soon as practicable.
21
(3D) If:
22
(a) the surveillance device warrant is a control order warrant
23
issued on the basis of a control order that was in force in
24
relation to a person; and
25
(b) no control order is in force in relation to the person;
26
the chief officer must, in addition to revoking the warrant under
27
section 20, take the steps necessary to ensure that use of the
28
surveillance device authorised by the warrant is discontinued as
29
soon as practicable.
30
19 At the end of section 37
31
Add:
32
(4) If a control order is in force in relation to a person, a State or
33
Territory law enforcement officer acting in the course of his or her
34
duties may, without warrant, use an optical surveillance device to
35
obtain information about the activities of the person for any of the
36
following purposes:
37
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87
(a) protecting the public from a terrorist act;
1
(b) preventing the provision of support for, or the facilitation of,
2
a terrorist act;
3
(c) preventing the provision of support for, or the facilitation of,
4
the engagement in a hostile activity in a foreign country;
5
(d) determining whether the control order has been, or is being,
6
complied with;
7
if the use of that device does not involve:
8
(e) entry onto premises without permission; or
9
(f) interference without permission with any vehicle or thing.
10
20 After subsection 38(3)
11
Insert:
12
(3A) If a control order is in force in relation to a person, a State or
13
Territory law enforcement officer acting in the course of his or her
14
duties may, without warrant, use a surveillance device to obtain
15
information relating to the person for any of the following
16
purposes:
17
(a) protecting the public from a terrorist act;
18
(b) preventing the provision of support for, or the facilitation of,
19
a terrorist act;
20
(c) preventing the provision of support for, or the facilitation of,
21
the engagement in a hostile activity in a foreign country;
22
(d) determining whether the control order has been, or is being,
23
complied with;
24
if the use involves listening to, or recording, words spoken by a
25
person, and the use is confined to circumstances where:
26
(e) the State or Territory law enforcement officer is the speaker
27
of the words or is a person, or is included in a class or group
28
of persons, by whom the speaker of the words intends, or
29
should reasonably expect, the words to be heard; or
30
(f) the State or Territory law enforcement officer listens to or
31
records the words with the consent, express or implied, of a
32
person who is permitted to listen to or record the words:
33
(i) by paragraph (e); or
34
(ii) so far as subsection (6) applies in relation to the control
35
order--by that subsection.
36
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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21 At the end of section 38
1
Add:
2
(6) If:
3
(a) a control order is in force in relation to a person; and
4
(b) a person (other than a State or Territory law enforcement
5
officer) is assisting a State or Territory law enforcement
6
officer who is acting in the course of his or her duties in
7
relation to any of the following purposes:
8
(i) protecting the public from a terrorist act;
9
(ii) preventing the provision of support for, or the
10
facilitation of, a terrorist act;
11
(iii) preventing the provision of support for, or the
12
facilitation of, the engagement in a hostile activity in a
13
foreign country;
14
(iv) determining whether the control order has been, or is
15
being, complied with;
16
the person assisting may, without warrant, use a surveillance
17
device to obtain information relating to the person mentioned in
18
paragraph (a) if:
19
(c) the use involves listening to, or recording, words spoken by a
20
person; and
21
(d) the person assisting is the speaker of the words or is a person,
22
or is included in a class or group of persons, by whom the
23
speaker of the words intends, or should reasonably expect,
24
the words to be heard.
25
22 After subsection 39(3A)
26
Insert:
27
(3B) If a control order is in force in relation to a person, a law
28
enforcement officer may, with the written permission of an
29
appropriate authorising officer, use a tracking device without a
30
warrant to obtain information relating to the person for any of the
31
following purposes:
32
(a) protecting the public from a terrorist act;
33
(b) preventing the provision of support for, or the facilitation of,
34
a terrorist act;
35
(c) preventing the provision of support for, or the facilitation of,
36
the engagement in a hostile activity in a foreign country;
37
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89
(d) determining whether the control order, or any succeeding
1
control order, has been, or is being, complied with.
2
23 Subsection 39(4)
3
Omit "and (3A)", substitute ", (3A) and (3B)".
4
24 Subsections 39(5) and (7)
5
Omit "or (3A)", substitute ", (3A) or (3B)".
6
25 After paragraph 40(1)(da)
7
Insert:
8
(db) if the authorisation is given on the basis of a control order
9
that is in force in relation to a person--the following details
10
in relation to the control order:
11
(i) the name of the person;
12
(ii) the date the control order was made;
13
(iii) whether the control order is an interim control order or a
14
confirmed control order; and
15
26 At the end of paragraph 45(1)(c)
16
Add "or section 65B (which deals with information obtained before an
17
interim control order is declared void)".
18
27 Paragraph 45(2)(c)
19
After "operations)", insert "or section 65B (which deals with
20
information obtained before an interim control order is declared void)".
21
28 Subsection 45(3)
22
After "(5)", insert "and section 65B".
23
29 At the end of subsection 45(5)
24
Add:
25
; (j) in the case of information:
26
(i) obtained under a control order warrant; or
27
(ii) relating to an application for, the issue of, the existence
28
of, or the expiration of, a control order warrant; or
29
(iii) that is likely to enable the identification of a person,
30
object or premises specified in a control order warrant;
31
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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determining whether the relevant control order, or any
1
succeeding control order, has been, or is being, complied
2
with;
3
(k) in the case of information:
4
(i) obtained under a tracking device authorisation given on
5
the basis of a control order; or
6
(ii) relating to an application for, the giving of, the
7
existence of, or the expiration of, a tracking device
8
authorisation given on the basis of a control order; or
9
(iii) that is likely to enable the identification of a person,
10
object or premises specified in a tracking device
11
authorisation given on the basis of a control order;
12
determining whether the control order, or any succeeding
13
control order, has been, or is being, complied with.
14
30 Subsection 45(6)
15
Omit "and (c)", substitute ", (c), (j) and (k)".
16
31 Subsection 45(9) (at the end of the definition of State or
17
Territory relevant proceeding)
18
Add:
19
; or (i) a proceeding under, or a proceeding relating to a matter
20
arising under, Part 2A of the Terrorism (Police Powers) Act
21
2002 (NSW), so far as the proceeding relates to a
22
preventative detention order (within the meaning of that
23
Part); or
24
(j) a proceeding under, or a proceeding relating to a matter
25
arising under, Part 2A of the Terrorism (Community
26
Protection) Act 2003 (Vic.), so far as the proceeding relates
27
to a preventative detention order (within the meaning of that
28
Part); or
29
(k) a proceeding under, or a proceeding relating to a matter
30
arising under, the Terrorism (Preventative Detention) Act
31
2005 (Qld), so far as the proceeding relates to a preventative
32
detention order (within the meaning of that Act); or
33
(l) a proceeding under, or a proceeding relating to a matter
34
arising under, the Terrorism (Preventative Detention) Act
35
2006 (WA), so far as the proceeding relates to a preventative
36
detention order (within the meaning of that Act); or
37
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(m) a proceeding under, or a proceeding relating to a matter
1
arising under, the Terrorism (Preventative Detention) Act
2
2005 (SA), so far as the proceeding relates to a preventative
3
detention order (within the meaning of that Act); or
4
(n) a proceeding under, or a proceeding relating to a matter
5
arising under, the Terrorism (Preventative Detention) Act
6
2005 (Tas.), so far as the proceeding relates to a preventative
7
detention order (within the meaning of that Act); or
8
(o) a proceeding under, or a proceeding relating to a matter
9
arising under, Part 2 of the Terrorism (Extraordinary
10
Temporary Powers) Act 2006 (ACT), so far as the
11
proceeding relates to a preventative detention order (within
12
the meaning of that Part); or
13
(p) a proceeding under, or a proceeding relating to a matter
14
arising under, Part 2B of the Terrorism (Emergency Powers)
15
Act (NT), so far as the proceeding relates to a preventative
16
detention order (within the meaning of that Part).
17
32 After section 46
18
Insert:
19
46A Destruction of records--information obtained before a control
20
order came into force
21
(1) If:
22
(a) a record or report is in the possession of a law enforcement
23
agency; and
24
(b) the record or report comprises information obtained from the
25
use of a surveillance device under:
26
(i) a control order warrant; or
27
(ii) a tracking device authorisation;
28
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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issued or given on the basis of a control order made in
1
relation to a person; and
2
(c) in the case of a control order warrant--the warrant was
3
issued for the purpose, or for purposes that include the
4
purpose, of obtaining information that would be likely to
5
substantially assist in connection with determining whether
6
the control order, or any succeeding control order, has been,
7
or is being, complied with; and
8
(d) in the case of a tracking device authorisation--the
9
authorisation was given to obtain information relating to the
10
person for the purpose, or for purposes that include the
11
purpose, of determining whether the control order, or any
12
succeeding control order, has been, or is being, complied
13
with; and
14
(e) the use of the surveillance device occurred when the control
15
order had been made, but had not come into force because it
16
had not been served on the person; and
17
(f) the chief officer of the agency is satisfied that none of the
18
information obtained from the use of the surveillance device
19
is likely to assist in connection with:
20
(i) the protection of the public from a terrorist act; or
21
(ii) preventing the provision of support for, or the
22
facilitation of, a terrorist act; or
23
(iii) preventing the provision of support for, or the
24
facilitation of, the engagement in a hostile activity in a
25
foreign country;
26
the chief officer of the agency must cause the record or report to be
27
destroyed as soon as practicable.
28
(2) Section 6C does not apply to subsection (1) of this section.
29
33 After subparagraph 49(2)(b)(xa)
30
Insert:
31
(xb) if the warrant is a control order warrant--give the
32
details specified in subsection (2A); and
33
34 After subsection 49(2)
34
Insert:
35
(2A) For the purposes of subparagraph (2)(b)(xb), the details are:
36
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(a) the benefit of the use of the device in:
1
(i) protecting the public from a terrorist act; or
2
(ii) preventing the provision of support for, or the
3
facilitation of, a terrorist act; or
4
(iii) preventing the provision of support for, or the
5
facilitation of, the engagement in a hostile activity in a
6
foreign country; or
7
(iv) determining whether a control order has been, or is
8
being, complied with; and
9
(b) the general use to be made of any evidence or information
10
obtained by the use of the device.
11
35 At the end of section 50
12
Add:
13
(5) Subsection (4) has effect subject to section 50A.
14
36 After section 50
15
Insert:
16
50A Deferral of inclusion of information in annual report
17
Scope
18
(1) This section applies to information in a report submitted to the
19
Minister under subsection 50(1) by the chief officer of a law
20
enforcement agency.
21
Exclusion of information
22
(2) If the chief officer is satisfied that the information should be
23
excluded from the report, before the report is laid before the
24
Parliament, because the information, if made public, could
25
reasonably be expected to enable a reasonable person to conclude
26
that a control order warrant authorising:
27
(a) the use of a surveillance device on particular premises; or
28
(b) the use of a surveillance device in or on a particular object or
29
class of object; or
30
(c) the use of a surveillance device in respect of the
31
conversations, activities or location of a particular person;
32
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
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is likely to be, or is not likely to be, in force, the chief officer must
1
advise the Minister to exclude the information from the report
2
before causing a copy of the report to be laid before the Parliament.
3
(3) If the Minister is satisfied, on the advice of the chief officer, that
4
the information, if made public, could reasonably be expected to
5
enable a reasonable person to conclude that a control order warrant
6
authorising:
7
(a) the use of a surveillance device on particular premises; or
8
(b) the use of a surveillance device in or on a particular object or
9
class of object; or
10
(c) the use of a surveillance device in respect of the
11
conversations, activities or location of a particular person;
12
is likely to be, or is not likely to be, in force, the Minister must
13
exclude the information from the report before causing a copy of
14
the report to be laid before the Parliament.
15
Inclusion of information in subsequent report
16
(4) If any information has been excluded under subsection (3) from a
17
report and, after the exclusion, the chief officer is satisfied that the
18
information, if made public, could not reasonably be expected to
19
enable a reasonable person to conclude that a control order warrant
20
authorising:
21
(a) the use of a surveillance device on particular premises; or
22
(b) the use of a surveillance device in or on a particular object or
23
class of object; or
24
(c) the use of a surveillance device in respect of the
25
conversations, activities or location of a particular person;
26
is likely to be, or is not likely to be, in force, the chief officer must
27
advise the Minister to:
28
(d) include the information in the next report submitted by the
29
chief officer under subsection 50(1); and
30
(e) do so before causing a copy of that report to be laid before
31
the Parliament.
32
(5) If any information has been excluded under subsection (3) from a
33
report, and the Minister is satisfied, on the advice of the chief
34
officer, that the information, if made public, could not reasonably
35
be expected to enable a reasonable person to conclude that a
36
control order warrant authorising:
37
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
95
(a) the use of a surveillance device on particular premises; or
1
(b) the use of a surveillance device in or on a particular object or
2
class of object; or
3
(c) the use of a surveillance device in respect of the
4
conversations, activities or location of a particular person;
5
is likely to be, or is not likely to be, in force, the Minister must:
6
(d) include the information in the next report submitted by the
7
chief officer under subsection 50(1); and
8
(e) do so before causing a copy of that report to be laid before
9
the Parliament.
10
37 At the end of paragraph 52(1)(j)
11
Add "or subsection 46A(1)".
12
38 After subparagraph 53(2)(c)(iiib)
13
Insert:
14
(iiic) if the warrant is a control order warrant that was issued
15
on the basis of a control order--the date the control
16
order was made; and
17
39 After section 65
18
Insert:
19
65A Protection of persons--control order declared to be void
20
Control order warrant
21
(1) If:
22
(a) a control order warrant was issued on the basis that an
23
interim control order was in force; and
24
(b) a court subsequently declares the interim control order to be
25
void;
26
a criminal proceeding does not lie against a person in respect of
27
anything done, or omitted to be done, in good faith by the person:
28
(c) in the purported execution of the warrant; or
29
(d) in the purported exercise of a power, or the purported
30
performance of a function or duty, in a case where the
31
purported exercise of the power, or the purported
32
Schedule 10 Surveillance devices
96
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
performance of the function or duty, is consequential on the
1
warrant.
2
(2) Subsection (1) does not apply to a thing done, or omitted to be
3
done, at a particular time if, at that time, the person knew, or ought
4
reasonably to have known, of the declaration.
5
Tracking device authorisation
6
(3) If:
7
(a) a tracking device authorisation was given on the basis that an
8
interim control order was in force; and
9
(b) a court subsequently declares the interim control order to be
10
void;
11
a criminal proceeding does not lie against a person in respect of
12
anything done, or omitted to be done, in good faith by the person:
13
(c) in the purported execution of the authorisation; or
14
(d) in the purported exercise of a power, or the purported
15
performance of a function or duty, in a case where the
16
purported exercise of the power, or the purported
17
performance of the function or duty, is consequential on the
18
authorisation.
19
(4) Subsection (3) does not apply to a thing done, or omitted to be
20
done, at a particular time if, at that time, the person knew, or ought
21
reasonably to have known, of the declaration.
22
Use of device without warrant
23
(5) If:
24
(a) an optical surveillance device was used under
25
subsection 37(4) on the basis that an interim control order
26
was in force; and
27
(b) a court subsequently declares the interim control order to be
28
void;
29
a criminal proceeding does not lie against a person in respect of
30
anything done, or omitted to be done, in good faith by the person:
31
(c) in the purported exercise of the power conferred by
32
subsection 37(4); or
33
(d) in the purported exercise of a power, or the purported
34
performance of a function or duty, in a case where the
35
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
97
purported exercise of the power, or the purported
1
performance of the function or duty, is consequential on the
2
purported exercise of the power conferred by
3
subsection 37(4).
4
(6) Subsection (5) does not apply to a thing done, or omitted to be
5
done, at a particular time if, at that time, the person knew, or ought
6
reasonably to have known, of the declaration.
7
(7) If:
8
(a) a surveillance device was used under subsection 38(3A) or
9
(6) on the basis that an interim control order was in force;
10
and
11
(b) a court subsequently declares the interim control order to be
12
void;
13
a criminal proceeding does not lie against a person in respect of
14
anything done, or omitted to be done, in good faith by the person:
15
(c) in the purported exercise of the power conferred by
16
subsection 38(3A) or (6), as the case requires; or
17
(d) in the purported exercise of a power, or the purported
18
performance of a function or duty, in a case where the
19
purported exercise of the power, or the purported
20
performance of the function or duty, is consequential on the
21
purported exercise of the power conferred by
22
subsection 38(3A) or (6), as the case requires.
23
(8) Subsection (7) does not apply to a thing done, or omitted to be
24
done, at a particular time if, at that time, the person knew, or ought
25
reasonably to have known, of the declaration.
26
65B Dealing with information obtained under a control order
27
warrant, tracking device authorisation etc.--control
28
order declared to be void
29
Scope
30
(1) This section applies if:
31
(a) any of the following conditions is satisfied:
32
(i) a control order warrant was issued on the basis that an
33
interim control order was in force;
34
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(ii) a tracking device authorisation was given on the basis
1
that an interim control order was in force;
2
(iii) an optical surveillance device was used under
3
subsection 37(4) on the basis that an interim control
4
order was in force;
5
(iv) a surveillance device was used under subsection 38(3A)
6
or (6) on the basis that an interim control order was in
7
force; and
8
(b) a court subsequently declares the interim control order to be
9
void; and
10
(c) if subparagraph (a)(i) applies--before the declaration was
11
made, information was obtained as a result of:
12
(i) the purported execution of the warrant; or
13
(ii) the purported exercise of a power, or the purported
14
performance of a function or duty, in a case where the
15
purported exercise of the power, or the purported
16
performance of the function or duty, is consequential on
17
the warrant; and
18
(d) if subparagraph (a)(ii) applies--before the declaration was
19
made, information was obtained as a result of:
20
(i) the purported execution of the authorisation; or
21
(ii) the purported exercise of a power, or the purported
22
performance of a function or duty, in a case where the
23
purported exercise of the power, or the purported
24
performance of the function or duty, is consequential on
25
the authorisation; and
26
(e) if subparagraph (a)(iii) applies--before the declaration was
27
made, information was obtained as a result of:
28
(i) the purported exercise of the power conferred by
29
subsection 37(4); or
30
(ii) the purported exercise of a power, or the purported
31
performance of a function or duty, in a case where the
32
purported exercise of the power, or the purported
33
performance of the function or duty, is consequential on
34
the purported exercise of the power conferred by
35
subsection 37(4); and
36
(f) if subparagraph (a)(iv) applies--before the declaration was
37
made, information was obtained as a result of:
38
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
99
(i) the purported exercise of the power conferred by
1
subsection 38(3A) or (6), as the case requires; or
2
(ii) the purported exercise of a power, or the purported
3
performance of a function or duty, in a case where the
4
purported exercise of the power, or the purported
5
performance of the function or duty, is consequential on
6
the purported exercise of the power conferred by
7
subsection 38(3A) or (6), as the case requires.
8
Dealing
9
(2) A person may use, communicate or publish the information if:
10
(a) the person reasonably believes that doing so is necessary to
11
assist in preventing, or reducing the risk, of:
12
(i) the commission of a terrorist act; or
13
(ii) serious harm to a person; or
14
(iii) serious damage to property; or
15
(b) the person does so for one or more purposes set out in
16
subsection (4).
17
Evidence
18
(3) The information may be admitted in evidence in any proceedings
19
if:
20
(a) doing so is necessary to assist in preventing, or reducing the
21
risk, of:
22
(i) the commission of a terrorist act; or
23
(ii) serious harm to a person; or
24
(iii) serious damage to property; or
25
(b) it is admitted for one or more purposes set out in
26
subsection (4).
27
Purposes
28
(4) The purposes are purposes connected with:
29
(a) the performance of a function or duty, or the exercise of a
30
power, by a person, court, tribunal or other body under, or in
31
relation to a matter arising under, Division 105 of the
32
Criminal Code, so far as the function, duty or power relates
33
to a preventative detention order (within the meaning of
34
Part 5.3 of the Criminal Code); or
35
Schedule 10 Surveillance devices
100
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(b) the performance of a function or duty, or the exercise of a
1
power, by a person, court, tribunal or other body under, or in
2
relation to a matter arising under, Part 2A of the Terrorism
3
(Police Powers) Act 2002 (NSW), so far as the function, duty
4
or power relates to a preventative detention order (within the
5
meaning of that Part); or
6
(c) the performance of a function or duty, or the exercise of a
7
power, by a person, court, tribunal or other body under, or in
8
relation to a matter arising under, Part 2A of the Terrorism
9
(Community Protection) Act 2003 (Vic.), so far as the
10
function, duty or power relates to a preventative detention
11
order (within the meaning of that Part); or
12
(d) the performance of a function or duty, or the exercise of a
13
power, by a person, court, tribunal or other body under, or in
14
relation to a matter arising under, the Terrorism (Preventative
15
Detention) Act 2005 (Qld), so far as the function, duty or
16
power relates to a preventative detention order (within the
17
meaning of that Act); or
18
(e) the performance of a function or duty, or the exercise of a
19
power, by a person, court, tribunal or other body under, or in
20
relation to a matter arising under, the Terrorism (Preventative
21
Detention) Act 2006 (WA), so far as the function, duty or
22
power relates to a preventative detention order (within the
23
meaning of that Act); or
24
(f) the performance of a function or duty, or the exercise of a
25
power, by a person, court, tribunal or other body under, or in
26
relation to a matter arising under, the Terrorism (Preventative
27
Detention) Act 2005 (SA), so far as the function, duty or
28
power relates to a preventative detention order (within the
29
meaning of that Act); or
30
(g) the performance of a function or duty, or the exercise of a
31
power, by a person, court, tribunal or other body under, or in
32
relation to a matter arising under, the Terrorism (Preventative
33
Detention) Act 2005 (Tas.), so far as the function, duty or
34
power relates to a preventative detention order (within the
35
meaning of that Act); or
36
(h) the performance of a function or duty, or the exercise of a
37
power, by a person, court, tribunal or other body under, or in
38
relation to a matter arising under, Part 2 of the Terrorism
39
(Extraordinary Temporary Powers) Act 2006 (ACT), so far
40
Surveillance devices Schedule 10
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
101
as the function, duty or power relates to a preventative
1
detention order (within the meaning of that Part); or
2
(i) the performance of a function or duty, or the exercise of a
3
power, by a person, court, tribunal or other body under, or in
4
relation to a matter arising under, Part 2B of the Terrorism
5
(Emergency Powers) Act (NT), so far as the function, duty or
6
power relates to a preventative detention order (within the
7
meaning of that Part).
8
Definition
9
(5) In this section:
10
serious harm has the same meaning as in the Criminal Code.
11
Schedule 11 Offence of advocating genocide
102
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 11--Offence of advocating genocide
1
2
Criminal Code Act 1995
3
1 Part 5.1 of the Criminal Code (heading)
4
Repeal the heading, substitute:
5
Part 5.1--Treason, urging violence and advocating
6
terrorism or genocide
7
2 Division 80 of the Criminal Code (heading)
8
Repeal the heading, substitute:
9
Division 80--Treason, urging violence and advocating
10
terrorism or genocide
11
3 Subdivision C of Division 80 of the Criminal Code (heading)
12
Repeal the heading, substitute:
13
Subdivision C--Urging violence and advocating terrorism or
14
genocide
15
4 At the end of Subdivision C of Division 80 of the Criminal
16
Code
17
Add:
18
80.2D Advocating genocide
19
(1) A person commits an offence if the person publicly advocates
20
genocide.
21
Note:
There is a defence in section 80.3 for acts done in good faith.
22
Penalty: Imprisonment for 7 years.
23
Double jeopardy
24
(2) A person cannot be tried by a federal court or a court of a State or
25
Territory for an offence against subsection (1) if the person has
26
Offence of advocating genocide Schedule 11
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
103
already been convicted or acquitted by the International Criminal
1
Court for an offence constituted by substantially the same conduct
2
as constituted the offence against subsection (1).
3
Definitions
4
(3) In this section:
5
advocate means counsel, promote, encourage or urge.
6
genocide means the commission of an offence against Subdivision
7
B (genocide) of Division 268, other than:
8
(a) an offence against section 11.1 (attempt), 11.4 (incitement) or
9
11.5 (conspiracy) to the extent that it relates to an offence
10
against that Subdivision; or
11
(b) an offence against that Subdivision that a person is taken to
12
have committed because of section 11.2 (complicity and
13
common purpose), 11.2A (joint commission) or 11.3
14
(commission by proxy).
15
(4) A reference in this section to advocating genocide includes a
16
reference to:
17
(a) advocating genocide, even if genocide does not occur; and
18
(b) advocating the commission of a specific offence that is
19
genocide; and
20
(c) advocating the commission of more than one offence, each of
21
which is genocide.
22
Schedule 12 Security assessments
Part 1 Main amendments
104
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 12--Security assessments
1
Part 1--Main amendments
2
Australian Security Intelligence Organisation Act 1979
3
1 Subsection 35(1) (definition of security assessment)
4
After "Commonwealth agency", insert ", State or authority of a State".
5
2 Subsection 38(3)
6
After "Commonwealth agency", insert ", State or authority of a State".
7
3 At the end of subsection 38(6)
8
Add ", State or authority of a State".
9
4 Subsection 40(1)
10
Repeal the subsection, substitute:
11
(1) It is within the functions of the Organisation:
12
(a) to furnish a security assessment in respect of a person to a
13
Commonwealth agency for transmission to a State or an
14
authority of a State for use in considering the taking of
15
prescribed administrative action by the State or authority in
16
respect of the person; or
17
(b) to furnish a security assessment in respect of a person to a
18
State or an authority of a State for use in considering the
19
taking of prescribed administrative action by the State or
20
authority in respect of the person.
21
5 Paragraph 40(2)(a)
22
Omit "subject to paragraph (1)(b), communicate directly to a State or an
23
authority of a State, whether in the form of an assessment or
24
otherwise,", substitute "furnish to a State or an authority of a State
25
otherwise than in the form of an assessment".
26
6 Subsection 40(3)
27
Repeal the subsection.
28
Security assessments Schedule 12
Main amendments Part 1
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
105
7 Paragraph 65(1)(b)
1
After "Commonwealth agency", insert ", State or authority of a State".
2
8 Application of amendment of paragraph 65(1)(b)
3
The amendment of paragraph 65(1)(b) of the Australian Security
4
Intelligence Organisation Act 1979 made by this Schedule applies in
5
relation to security assessments and communications furnished, or
6
allegedly furnished, after the commencement of this Schedule.
7
Schedule 12 Security assessments
Part 2 Consequential amendments
106
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Part 2--Consequential amendments
1
Administrative Appeals Tribunal Act 1975
2
9 Section 29B
3
After "Commonwealth agency", insert ", State or authority of a State".
4
10 Subsections 39A(2), (6), (7), (8) and (12)
5
After "Commonwealth agency", insert ", State or authority of a State".
6
11 Paragraph 39A(15)(b)
7
After "Commonwealth agency", insert ", State or authority of a State".
8
12 Subsection 39A(15)
9
After "that agency", insert ", State or authority".
10
13 Subsections 43AAA(4) and (5)
11
After "Commonwealth agency", insert ", State or authority of a State".
12
Classification of publications etc. Schedule 13
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
107
Schedule 13--Classification of publications
1
etc.
2
3
Classification (Publications, Films and Computer Games)
4
Act 1995
5
1 Paragraph 9A(2)(a)
6
After "counsels", insert ", promotes, encourages".
7
2 Application
8
The amendment of the Classification (Publications, Films and
9
Computer Games) Act 1995 made by this Schedule applies in relation to
10
the making of classifications on and after the commencement of this
11
Schedule (whether the classifications were applied for before, on or
12
after that commencement).
13
Schedule 14 Delayed notification search warrants
Part 1 Amendments
108
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 14--Delayed notification search
1
warrants
2
Part 1--Amendments
3
Crimes Act 1914
4
1 Section 3ZZAC (definition of conditions for issue)
5
Repeal the definition.
6
2 Section 3ZZBA
7
Repeal the section, substitute:
8
3ZZBA Eligible officer may seek authorisation to apply for a
9
delayed notification search warrant
10
If an eligible officer of an eligible agency:
11
(a) suspects, on reasonable grounds, that one or more eligible
12
offences have been, are being, are about to be or are likely to
13
be committed; and
14
(b) suspects, on reasonable grounds, that entry and search of
15
particular premises will substantially assist in the prevention
16
or investigation of one or more of those offences; and
17
(c) believes, on reasonable grounds, that it is necessary for the
18
entry and search of the premises to be conducted without the
19
knowledge of the occupier of the premises or any other
20
person present at the premises;
21
the eligible officer may seek the authorisation of the chief officer
22
of the agency to apply for a delayed notification search warrant in
23
respect of the premises.
24
3 Subsections 3ZZBB(1) and (2)
25
Repeal the subsections, substitute:
26
Scope
27
(1A) This section applies if an eligible officer of an eligible agency
28
seeks the authorisation of the chief officer of the agency to apply
29
Delayed notification search warrants Schedule 14
Amendments Part 1
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
109
for a delayed notification search warrant in respect of particular
1
premises.
2
Authorisation
3
(1) The chief officer may, in writing, authorise the eligible officer to
4
apply for the delayed notification search warrant if the chief officer
5
is satisfied that there are reasonable grounds for the eligible officer
6
to have:
7
(a) the suspicions mentioned in paragraphs 3ZZBA(a) and (b);
8
and
9
(b) the belief mentioned in paragraph 3ZZBA(c).
10
(2) The chief officer may orally (in person or by telephone or other
11
means of voice communication) authorise the eligible officer to
12
apply for the delayed notification search warrant if the chief officer
13
is satisfied that:
14
(a) there are reasonable grounds for the eligible officer to have:
15
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and
16
(b); and
17
(ii) the belief mentioned in paragraph 3ZZBA(c); and
18
(b) either:
19
(i) it is an urgent case; or
20
(ii) the delay that would occur if the authorisation were in
21
writing would frustrate the effective execution of the
22
delayed notification search warrant.
23
4 Subsection 3ZZBC(1) (paragraph (a) of note 1)
24
Repeal the paragraph, substitute:
25
(a) why there are reasonable grounds for suspecting that one or more
26
eligible offences have been, are being, are about to be or are
27
likely to be committed (see paragraph 3ZZBA(a)); and
28
(aa) why there are reasonable grounds for suspecting that entry and
29
search of the premises will substantially assist in the prevention
30
or investigation of one or more of those offences (see
31
paragraph 3ZZBA(b)); and
32
(ab) why there are reasonable grounds for believing that it is
33
necessary for the entry and search of the premises to be
34
conducted without the knowledge of the occupier of the premises
35
or any other person present at the premises (see
36
paragraph 3ZZBA(c)); and
37
Schedule 14 Delayed notification search warrants
Part 1 Amendments
110
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
5 Paragraph 3ZZBD(1)(b)
1
Omit "that the conditions for issue are met;", substitute:
2
that there are reasonable grounds for the eligible officer to
3
have:
4
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and
5
(b); and
6
(ii) the belief mentioned in paragraph 3ZZBA(c);
7
6 Subsection 3ZZBD(1)
8
Before "premises" (last occurring), insert "main".
9
7 Paragraph 3ZZBD(2)(a)
10
After "the eligible offence", insert "or offences".
11
8 At the end of paragraph 3ZZBD(2)(d)
12
Add "or those offences".
13
9 At the end of subparagraph 3ZZBD(2)(e)(ii)
14
Add "or those offences".
15
10 Paragraph 3ZZBE(1)(e)
16
After "the eligible offence", insert "or offences".
17
11 Paragraph 3ZZBF(5)(c)
18
Repeal the paragraph, substitute:
19
(c) that there are reasonable grounds for the eligible officer to
20
have:
21
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and
22
(b); and
23
(ii) the belief mentioned in paragraph 3ZZBA(c); and
24
12 Subparagraph 3ZZFE(2)(c)(ii)
25
After "the eligible offence", insert "or offences".
26
Delayed notification search warrants Schedule 14
Application of amendments Part 2
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
111
Part 2--Application of amendments
1
13 Application of amendments
2
Despite the amendments made by this Schedule, Part IAAA of the
3
Crimes Act 1914 continues to apply, in relation to:
4
(a) an authorisation given under section 3ZZBB of that Act
5
before the commencement of this item; and
6
(b) an application made under subsection 3ZZBC(1) or
7
3ZZBF(2) of that Act on the basis of such an authorisation;
8
and
9
(c) the issue of a delayed notification search warrant in response
10
to such an application;
11
as if those amendments had not been made.
12
Schedule 15 Protecting national security information in control order proceedings
112
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 15--Protecting national security
1
information in control order
2
proceedings
3
4
National Security Information (Criminal and Civil
5
Proceedings) Act 2004
6
1 Subsection 19(4)
7
After "section" (wherever occurring), insert "38J or".
8
2 Subparagraphs 38D(2)(a)(ii) and (b)(ii)
9
After "38B", insert ", 38J".
10
3 Subparagraph 38E(2A)(c)(ii)
11
After "38B", insert ", 38J".
12
4 Paragraph 38E(4)(b)
13
After "38B", insert ", 38J".
14
5 Paragraph 38F(6)(b)
15
After "section", insert "38J or".
16
6 Paragraphs 38G(1)(a), (b) and (c)
17
After "section", insert "38J or".
18
7 Subsection 38G(3)
19
After "section", insert "38J or".
20
8 Paragraphs 38H(5)(b), (6)(a) and (6)(b)
21
After "section", insert "38J or".
22
9 Subsection 38H(7)
23
After "section", insert "38J or".
24
10 Subsection 38I(1)
25
Omit "for a hearing under subsection 38G(1) or 38H(6)", substitute:
26
Protecting national security information in control order proceedings Schedule 15
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
113
that apply:
1
(a) for a hearing under subsection 38G(1) or 38H(6) relating to
2
the disclosure of information in a civil proceeding; or
3
(b) if the court makes an order under subsection 38J(2), (3) or (4)
4
that the closed hearing requirements in this section are to
5
apply when information that is the subject of the order is
6
disclosed to the court at a hearing in a proceeding under
7
Division 104 of the Criminal Code (about control orders)--
8
when the information is disclosed to the court at that hearing.
9
11 Subsection 38I(1) (note)
10
Omit "those provisions", substitute "subsections 38G(1) and 38H(6),
11
and an order under subsection 38J(2), (3) or (4),".
12
12 After subsection 38I(3)
13
Insert:
14
(3A) Despite subsections (2) and (3), if:
15
(a) the proceeding is under Division 104 of the Criminal Code
16
(about control orders); and
17
(b) a person referred to in paragraph (2)(e) requests the court to
18
make an order that one or more specified parties to the
19
proceeding, and their legal representatives, are not entitled to
20
be present during any part of the hearing in which a person
21
referred to in paragraph (2)(e) gives information of the kind
22
referred to in paragraph (3)(c) or (d);
23
then the court may make that order.
24
13 Paragraph 38I(5)(a)
25
After "section", insert "38J or".
26
14 Subsection 38I(6)
27
Omit "If section 38K applies, the", substitute "The".
28
15 Paragraph 38I(9)(a)
29
After "allow", insert "the following persons (other than a person who,
30
because of an order under subsection (3A), is not entitled to be present
31
during any part of the hearing)".
32
Schedule 15 Protecting national security information in control order proceedings
114
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
16 Subparagraph 38I(9)(a)(i)
1
Omit "or".
2
17 Subparagraph 38I(9)(a)(iii)
3
Omit ", and if applicable, section 38J".
4
18 At the end of section 38I
5
Add:
6
(10) If the court makes a decision under subsection (8), the
7
Attorney-General or his or her legal representative may request
8
that the court delay allowing access to the varied record or the
9
record as mentioned in paragraph (9)(a) to allow time for the
10
Attorney-General to:
11
(a) decide whether to appeal against the court's decision; and
12
(b) if the Attorney-General decides to do so--make the appeal.
13
The court must grant the request.
14
19 Section 38J
15
Repeal the section, substitute:
16
38J Special court orders in control order proceedings
17
When this section applies
18
(1) This section applies if:
19
(a) the court has held a hearing required by subsection 38G(1) or
20
38H(6) about the disclosure of information in a proceeding
21
under Division 104 of the Criminal Code relating to a request
22
(the control order request) to the court to make, confirm or
23
vary a control order in relation to a person (the relevant
24
person); and
25
(b) the Attorney-General or the Attorney-General's legal
26
representative has requested the court to make an order under
27
subsection (2), (3) or (4) of this section about the disclosure
28
and consideration of the information in the proceeding; and
29
(c) the court is satisfied that the relevant person has been given
30
notice of the allegations on which the control order request
31
was based (even if the relevant person has not been given
32
notice of the information supporting those allegations).
33
Protecting national security information in control order proceedings Schedule 15
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
115
Non-disclosure certificate hearings
1
(2) If the hearing was required by subsection 38G(1) and the
2
information is in the form of a document, the court may order
3
under this subsection that:
4
(a) the following persons must not, except in permitted
5
circumstances or in accordance with this subsection, disclose
6
the information (whether in the proceeding or otherwise):
7
(i) any person to whom the certificate mentioned in
8
subsection 38F(2) or (3) was given in accordance with
9
that subsection;
10
(ii) any person to whom the contents of the certificate have
11
been disclosed for the purposes of the hearing;
12
(iii) any other specified person; and
13
(b) those persons may disclose in the proceeding:
14
(i) a copy of the document with the information deleted; or
15
(ii) a copy of the document with the information deleted
16
and a summary of the information, as set out in the
17
order, attached to the document; or
18
(iii) a copy of the document with the information deleted
19
and a statement of facts, as set out in the order, that the
20
information would, or would be likely to, prove attached
21
to the document;
22
(which disclosure may or may not be the same as was
23
permitted in the certificate); and
24
(c) the information may be disclosed to the court in the
25
proceeding; and
26
(d) the closed hearing requirements in section 38I are to apply
27
when the information is disclosed to the court at a hearing in
28
the proceeding; and
29
(e) if the information is disclosed to the court in the proceeding
30
and, apart from the order, the information is admissible in
31
evidence in the proceeding--the court may consider the
32
information in the proceeding, even if the information has not
33
been disclosed to the relevant person or the relevant person's
34
legal representative.
35
(3) If the hearing was required by subsection 38G(1), the court may,
36
regardless of the form of the information, order under this
37
subsection that:
38
Schedule 15 Protecting national security information in control order proceedings
116
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
(a) any of the following persons must not, except in permitted
1
circumstances or in accordance with this subsection, disclose
2
the information (whether in the proceeding or otherwise):
3
(i) any person to whom the certificate mentioned in
4
subsection 38F(2) or (3) was given in accordance with
5
that subsection;
6
(ii) any person to whom the contents of the certificate have
7
been disclosed for the purposes of the hearing;
8
(iii) any other specified person; and
9
(b) the information may be disclosed to the court in the
10
proceeding; and
11
(c) the closed hearing requirements in section 38I are to apply
12
when the information is disclosed to the court at a hearing in
13
the proceeding; and
14
(d) if the information is disclosed to the court in the proceeding
15
and, apart from the order, the information is admissible in
16
evidence in the proceeding--the court may consider the
17
information in the proceeding, even if the information has not
18
been disclosed to the relevant person or the relevant person's
19
legal representative.
20
Witness exclusion certificate hearings
21
(4) If the hearing was required by subsection 38H(6) in relation to the
22
calling of a witness in the proceeding, the court may order under
23
this subsection that:
24
(a) the relevant person and the relevant person's legal
25
representative must not call the witness at a hearing in the
26
proceeding; and
27
(b) the closed hearing requirements in section 38I are to apply if
28
the witness is called at a hearing in the proceeding.
29
Factors to be considered by court
30
(5) The court must, in deciding whether to make an order under
31
subsection (2), (3) or (4), consider the following matters:
32
(a) whether, having regard to the Attorney-General's certificate,
33
there would be a risk of prejudice to national security if:
34
(i) where the certificate was given under subsection 38F(2)
35
or (3)--the information were disclosed in contravention
36
of the certificate; or
37
Protecting national security information in control order proceedings Schedule 15
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
117
(ii) where the certificate was given under
1
subsection 38H(2)--the witness were called;
2
(b) whether any such order would have a substantial adverse
3
effect on the substantive hearing in the proceeding;
4
(c) any other matter the court considers relevant.
5
Proceedings relating to making and confirming control order
6
(6) If the court makes an order under subsection (2), (3) or (4) in
7
relation to a proceeding for the making of a control order in
8
relation to the relevant person, then the order under that subsection
9
also applies in relation to a proceeding for the confirmation of the
10
control order in relation to the person.
11
If order is not made
12
(7) If the court decides not to make an order under subsection (2), (3)
13
or (4), then the court must make an order under section 38L.
14
20 Subsection 38L(1)
15
After "section", insert ", unless the court has made an order under
16
subsection 38J(2) or (3) in relation to the information".
17
21 At the end of subsection 38L(1)
18
Add:
19
Note:
Subsections 38J(2) and (3) allow the court to make an order about the
20
disclosure and consideration of information in control order
21
proceedings under Division 104 of the Criminal Code.
22
22 At the end of subsection 38L(6)
23
Add:
24
However, this subsection does not apply if the court has made an
25
order under subsection 38J(4) about the calling of the person as a
26
witness.
27
Note:
Subsection 38J(4) allows the court to make an order about the calling
28
of witnesses in control order proceedings under Division 104 of the
29
Criminal Code.
30
23 Subsection 38M(1)
31
After "section", insert "38J or".
32
Schedule 15 Protecting national security information in control order proceedings
118
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
24 Subsections 38P(1) and (2)
1
After "section", insert "38J or".
2
25 Section 38R (heading)
3
Repeal the heading, substitute:
4
38R Appeals against court orders under section 38J or 38L
5
26 Subsection 38R(1)
6
After "section", insert "38J or".
7
27 Application of amendments
8
The amendments of the National Security Information (Criminal and
9
Civil Proceedings) Act 2004 made by this Schedule apply to a civil
10
proceeding that begins before or after the commencement of this
11
Schedule.
12
Public Interest Disclosure Act 2013
13
28 Section 8 (paragraph (f) of the definition of designated
14
publication restriction)
15
After "section 31", insert ", 38J or".
16
Dealing with national security information in proceedings Schedule 16
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
119
Schedule 16--Dealing with national security
1
information in proceedings
2
3
National Security Information (Criminal and Civil
4
Proceedings) Act 2004
5
1 Paragraph 19(1A)(b)
6
Repeal the paragraph, substitute:
7
(b) the orders are not inconsistent with this Act; and
8
(c) the orders are not inconsistent with regulations made under
9
this Act.
10
2 After subsection 19(1A)
11
Insert:
12
(1B) Paragraph (1A)(c) does not apply to orders made on an application
13
by the Attorney-General or a representative of the
14
Attorney-General for the orders.
15
3 Paragraph 19(3A)(b)
16
Repeal the paragraph, substitute:
17
(b) the orders are not inconsistent with this Act; and
18
(c) the orders are not inconsistent with regulations made under
19
this Act.
20
4 After subsection 19(3A)
21
Insert:
22
(3B) Paragraph (3A)(c) does not apply to orders made on an application
23
by the Attorney-General or a representative of the
24
Attorney-General for the orders.
25
5 Subsection 23(2)
26
Repeal the subsection, substitute:
27
(2) Regulations prescribing a matter described in paragraph (1)(a) or
28
(b) of this section apply in relation to national security information
29
Schedule 16 Dealing with national security information in proceedings
120
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
disclosed, or to be disclosed, in a federal criminal proceeding only
1
if:
2
(a) there is not an order in force under section 22 relating to that
3
information; or
4
(b) there is an order in force under section 22 relating to that
5
information but the order does not deal with that matter.
6
Example: Suppose regulations made for the purpose of subsection (1) of this
7
section deal with ways of storing, handling and destroying
8
information, and an order is in force under section 22 dealing with
9
storing and handling, but not destroying, particular information. The
10
regulations do not apply to the storage and handling of the information
11
dealt with by the order, but that information must be destroyed in
12
accordance with the regulations.
13
6 Subsection 38C(2)
14
Repeal the subsection, substitute:
15
(2) Regulations prescribing a matter described in paragraph (1)(a) or
16
(b) of this section apply in relation to national security information
17
disclosed, or to be disclosed, in a civil proceeding only if:
18
(a) there is not an order in force under section 38B relating to
19
that information; or
20
(b) there is an order in force under section 38B relating to that
21
information but the order does not deal with that matter.
22
Example: Suppose regulations made for the purpose of subsection (1) of this
23
section deal with ways of storing, handling and destroying
24
information, and an order is in force under section 38B dealing with
25
storing and handling, but not destroying, particular information. The
26
regulations do not apply to the storage and handling of the information
27
dealt with by the order, but that information must be destroyed in
28
accordance with the regulations.
29
7 Application and transitional provisions
30
(1)
The amendments of sections 23 and 38C of the National Security
31
Information (Criminal and Civil Proceedings) Act 2004 made by this
32
Schedule apply in relation to orders made on or after the
33
commencement of this Schedule.
34
(2)
The National Security Information (Criminal and Civil Proceedings)
35
Regulation 2015, as in force immediately before the commencement of
36
this Schedule, has effect on and after that commencement as if it had
37
been made on that commencement.
38
Dealing with national security information in proceedings Schedule 16
No. , 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
121
(3)
However, subsection 5(2) of the National Security Information
1
(Criminal and Civil Proceedings) Regulation 2015 does not have effect
2
on or after that commencement, except in relation to orders made before
3
that commencement.
4
(4)
This item does not prevent the amendment or repeal of the National
5
Security Information (Criminal and Civil Proceedings)
6
Regulation 2015.
7
Schedule 17 Disclosures by taxation officers
122
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
No. , 2015
Schedule 17--Disclosures by taxation officers
1
2
Taxation Administration Act 1953
3
1 Subsection 355-65(2) in Schedule 1 (at the end of the table)
4
Add:
5
6
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 Australian Security
Intelligence Organisation Act 1979
2 Application
7
The amendment of the Taxation Administration Act 1953 made by this
8
Schedule applies in relation to records and disclosures of information
9
made on or after the commencement of this Schedule, whether the
10
information was obtained before, on or after that commencement.
11