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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Counter-Terrorism Legislation
Amendment Bill (No. 1) 2016
No. , 2016
(Attorney-General)
A Bill for an Act to amend the law relating to
counter-terrorism, and for related purposes
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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
11
Criminal Code Act 1995
11
Schedule 4--Issuing court for control orders
13
Criminal Code Act 1995
13
Schedule 5--Preventative detention orders
14
Criminal Code Act 1995
14
Schedule 6--Issuing authorities for preventative detention
orders
15
Criminal Code Act 1995
15
Schedule 7--Application of amendments of the Criminal Code
16
Criminal Code Act 1995
16
Schedule 8--Monitoring of compliance with control orders etc.
18
Crimes Act 1914
18
Criminal Code Act 1995
56
Schedule 9--Telecommunications interception
57
Part 1--Amendments
57
Telecommunications (Interception and Access) Act 1979
57
Part 2--Transitional provisions
82
Schedule 10--Surveillance devices
84
Surveillance Devices Act 2004
84
Schedule 11--Offence of advocating genocide
107
ii
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Criminal Code Act 1995
107
Schedule 12--Security assessments
109
Part 1--Main amendments
109
Australian Security Intelligence Organisation Act 1979
109
Part 2--Consequential amendments
111
Administrative Appeals Tribunal Act 1975
111
Schedule 13--Classification of publications etc.
112
Classification (Publications, Films and Computer Games) Act 1995
112
Schedule 14--Delayed notification search warrants
113
Part 1--Amendments
113
Crimes Act 1914
113
Part 2--Application of amendments
116
Schedule 15--Protecting national security information in
control order proceedings
117
Part 1--Main amendments
117
National Security Information (Criminal and Civil Proceedings) Act
2004
117
Public Interest Disclosure Act 2013
124
Part 2--Special advocates
125
National Security Information (Criminal and Civil Proceedings) Act
2004
125
Schedule 16--Dealing with national security information in
proceedings
135
National Security Information (Criminal and Civil Proceedings) Act
2004
135
Schedule 17--Disclosures by taxation officers
138
Taxation Administration Act 1953
138
Schedule 18--Special intelligence operations
140
Australian Security Intelligence Organisation Act 1979
140
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
1
A Bill for an Act to amend the law relating to
1
counter-terrorism, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Counter-Terrorism Legislation Amendment Act
5
(No. 1) 2016.
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) 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
14
The day after this Act receives the Royal
Assent.
3. Schedule 15,
Part 1
The day after this Act receives the Royal
Assent.
4. Schedule 15,
Part 2
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
5. Schedules 16
to 18
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. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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) 2016
No. , 2016
Schedule 2--Control orders for young people
1
2
Criminal Code Act 1995
3
1 Paragraph 104.2(3)(b) of the Criminal Code
4
Repeal the paragraph, substitute:
5
(b) if the person is at least 18 years of age and the member has
6
information about the person's age--that information; and
7
(ba) if the person is under 18 years of age--information about the
8
person's age; and
9
2 Subsection 104.2(3) of the Criminal Code (note)
10
Omit "16", substitute "14".
11
3 Subsection 104.4(2) of the Criminal Code
12
Repeal the subsection, substitute:
13
(2) For the purposes of paragraph (1)(d), in determining whether each
14
of the obligations, prohibitions and restrictions to be imposed on
15
the person by the order is reasonably necessary, and reasonably
16
appropriate and adapted, the court must take into account:
17
(a) as a paramount consideration in all cases--the objects of this
18
Division (see section 104.1); and
19
(b) as a primary consideration in the case where the person is 14
20
to 17 years of age--the best interests of the person; and
21
(c) as an additional consideration in all cases--the impact of the
22
obligation, prohibition or restriction on the person's
23
circumstances (including the person's financial and personal
24
circumstances).
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
(c) the benefit to the person of having a meaningful relationship
32
with his or her family and friends;
33
Control orders for young people Schedule 2
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
5
(d) the right of the person to receive an education;
1
(e) the right of the person to practise his or her religion;
2
(f) any other matter the court considers relevant.
3
4 Subsection 104.5(1) of the Criminal Code (note 2)
4
Repeal the note, substitute:
5
Note 2:
If the person is 14 to 17 years of age, then a confirmed control order
6
must not end more than 3 months after the day on which the interim
7
control order is made (see section 104.28).
8
5 After subparagraph 104.12(1)(b)(iii) of the Criminal Code
9
Insert:
10
(iiia) that the person has a right to obtain legal advice and
11
legal representation;
12
6 Subsection 104.12(5) of the Criminal Code (heading)
13
Repeal the heading, substitute:
14
If person is resident, or order made, in Queensland
15
7 At the end of section 104.12 of the Criminal Code
16
Add:
17
If person is 14 to 17
18
(6) As soon as practicable after an interim control order is made in
19
relation to a person who is 14 to 17 years of age, and at least 48
20
hours before the day specified as mentioned in
21
paragraph 104.5(1)(e), an AFP member must take reasonable steps
22
to serve a copy of the order personally on at least one parent or
23
guardian of the person.
24
8 Subparagraph 104.12A(2)(a)(iii) of the Criminal Code
25
After "other", insert "written".
26
9 At the end of subsection 104.12A(2) of the Criminal Code
27
Add:
28
; and (c) if the person is 14 to 17 years of age--take reasonable steps
29
to serve a copy of the documents mentioned in paragraph (a)
30
personally on at least one parent or guardian of the person.
31
Schedule 2 Control orders for young people
6
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
10 At the end of paragraph 104.12A(4)(b) of the Criminal
1
Code
2
Add:
3
; and (iv) if the person is 14 to 17 years of age--cause reasonable
4
steps to be taken to serve a copy of the annotated order
5
and the notification personally on at least one parent or
6
guardian of the person.
7
11 Before subsection 104.14(1) of the Criminal Code
8
Insert:
9
When this section applies
10
(1A) This section applies if:
11
(a) an interim control order is made in relation to a person; and
12
(b) an election is made under section 104.12A to confirm the
13
order; and
14
(c) the issuing court is satisfied on the balance of probabilities
15
that section 104.12 and subsection 104.12A(2) have been
16
complied with in relation to the order.
17
12 Subsection 104.14(1) of the Criminal Code
18
Omit "If an election has been made to confirm an interim control order,
19
then, on", substitute "On".
20
13 Paragraph 104.14(1)(e) of the Criminal Code
21
Omit "(unless the monitor is already a representative of the person)".
22
14 Subsection 104.14(4) of the Criminal Code
23
Repeal the subsection (not including the heading), substitute:
24
(4) The court may confirm the order without variation if none of the
25
following persons attend the court on the specified day:
26
(a) the person in relation to whom the order is made;
27
(b) a representative of the person;
28
(c) if the person is a resident of Queensland, or the court made
29
the order in Queensland--the Queensland public interest
30
monitor.
31
Control orders for young people Schedule 2
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
7
15 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
16 At the end of section 104.17 of the Criminal Code
6
Add:
7
If person is 14 to 17
8
(4) If the person is 14 to 17 years of age, then as soon as practicable
9
after the interim control order is declared to be void, revoked or
10
confirmed (with or without variation) under section 104.14, an
11
AFP member must take reasonable steps to serve a copy of the
12
declaration, revocation or confirmed control order personally on at
13
least one parent or guardian of the person.
14
17 Paragraph 104.18(4)(e) of the Criminal Code
15
Omit "(unless the monitor is a representative of the person)".
16
18 After subsection 104.19(2) of the Criminal Code
17
Insert:
18
(2A) If the person is 14 to 17 years of age, the Commissioner must cause
19
reasonable steps to be taken to give written notice of both the
20
application and the grounds on which the revocation or variation is
21
sought to at least one parent or guardian of the person.
22
19 Paragraph 104.19(3)(e) of the Criminal Code
23
Omit "(unless the monitor is a representative of the person)".
24
20 Subsection 104.20(3) of the Criminal Code
25
Repeal the subsection, substitute:
26
(3) As soon as practicable after a confirmed control order in relation to
27
a person is revoked or varied, an AFP member must:
28
(a) serve the revocation or variation personally on the person;
29
and
30
Schedule 2 Control orders for young people
8
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(b) if the person is 14 to 17 years of age--take reasonable steps
1
to serve a copy of the revocation or variation personally on at
2
least one parent or guardian of the person.
3
21 Paragraph 104.23(2)(d) of the Criminal Code
4
Repeal the paragraph, substitute:
5
(d) if the person is at least 18 years of age and the Commissioner
6
has information about the person's age--that information;
7
and
8
(e) if the person is under 18 years of age--information about the
9
person's age.
10
22 Subsection 104.23(2) of the Criminal Code (note 1)
11
Omit "16", substitute "14".
12
23 Subsection 104.23(3) of the Criminal Code
13
Repeal the subsection, substitute:
14
(3) As soon as practicable after an application is made under
15
subsection (1), the Commissioner must:
16
(a) cause the documents mentioned in subsection (3AA) to be
17
served personally on the person in relation to whom the order
18
is made; and
19
(b) if the person is a resident of Queensland, or the court will
20
hear the application in Queensland--cause the documents
21
mentioned in subsection (3AA) to be given to the Queensland
22
public interest monitor; and
23
(c) if the person is 14 to 17 years of age--cause reasonable steps
24
to be taken to serve the documents mentioned in
25
subsection (3AA) personally on at least one parent or
26
guardian of the person.
27
(3AA) The documents are the following:
28
(a) written notice of the application and the grounds on which
29
the variation is sought;
30
(b) a copy of the documents mentioned in paragraph (2)(b);
31
(c) any other written details required to enable the person in
32
relation to whom the order is made to understand and
33
respond to the substance of the facts, matters and
34
Control orders for young people Schedule 2
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
9
circumstances which will form the basis of the variation of
1
the order.
2
24 Subsection 104.23(3A) of the Criminal Code
3
Omit "subsection (3) does", substitute "subsections (3) and (3AA) do".
4
25 Paragraph 104.23(4)(e) of the Criminal Code
5
Omit "(unless the monitor is a representative of the person)".
6
26 Subsection 104.24(2) of the Criminal Code
7
Repeal the subsection, substitute:
8
(2) For the purposes of paragraph (1)(b), in determining whether each
9
of the additional obligations, prohibitions and restrictions to be
10
imposed on the person by the order is reasonably necessary, and
11
reasonably appropriate and adapted, the court must take into
12
account:
13
(a) as a paramount consideration in all cases--the objects of this
14
Division (see section 104.1); and
15
(b) as a primary consideration in the case where the person is 14
16
to 17 years of age--the best interests of the person; and
17
(c) as an additional consideration in all cases--the impact of the
18
obligation, prohibition or restriction on the person's
19
circumstances (including the person's financial and personal
20
circumstances).
21
(2A) In determining what is in the best interests of the person for the
22
purposes of paragraph (2)(b), the court must take into account the
23
matters referred to in subsection 104.4(2A).
24
27 At the end of section 104.26 of the Criminal Code
25
Add:
26
If person is 14 to 17
27
(5) As soon as practicable after a control order in relation to a person
28
who is 14 to 17 years of age is varied under section 104.24, an AFP
29
member must take reasonable steps to serve a copy of the varied
30
order personally on at least one parent or guardian of the person.
31
Schedule 2 Control orders for young people
10
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
28 Subdivision H of Division 104 of Part 5.3 of the Criminal
1
Code (heading)
2
Repeal the heading, substitute:
3
Subdivision H--Special rules for young people (14 to 17)
4
29 Subsection 104.28(1) of the Criminal Code (heading)
5
Repeal the heading, substitute:
6
Rule for people under 14
7
30 Subsection 104.28(1) of the Criminal Code
8
Omit "16", substitute "14".
9
31 Subsection 104.28(2) of the Criminal Code (heading)
10
Repeal the heading, substitute:
11
Rule for people 14 to 17
12
32 Subsection 104.28(2) of the Criminal Code
13
Omit "at least 16 but under 18", substitute "14 to 17 years of age".
14
33 Before section 104.28A of the Criminal Code
15
Insert:
16
Subdivision I--Miscellaneous
17
34 At the end of subsection 104.29(2) of the Criminal Code
18
Add:
19
(j) for control orders relating to people who are 14 to 17 years of
20
age--the matters referred to in paragraphs (a) to (i) in so far
21
as those matters specifically relate to those control orders.
22
Control orders and tracking devices Schedule 3
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
11
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 steps specified in the order (if any) and reasonable steps
11
to ensure that the tracking device and any equipment
12
necessary for the operation of the tracking device are or
13
remain in good working order;
14
(b) report to persons specified in the order (if any), at the times
15
and places specified in the order (if any), for the purposes of
16
having the tracking device inspected;
17
(c) if the person becomes aware that the tracking device or any
18
equipment necessary for the operation of the tracking device
19
is not in good working order--notify an AFP member as
20
soon as practicable, but no later than 4 hours, after becoming
21
so aware.
22
(3B) If the court imposes a requirement under paragraph (3)(d) that the
23
person wear a tracking device, then the court must also include in
24
the order an authorisation for one or more AFP members:
25
(a) to take steps specified in the order to ensure that the tracking
26
device and any equipment necessary for the operation of the
27
tracking device are or remain in good working order; and
28
(b) to enter one or more premises specified in the order for the
29
purposes of installing any equipment necessary for the
30
operation of the tracking device.
31
2 Subdivision G of Division 104 of Part 5.3 of the Criminal
32
Code (heading)
33
Repeal the heading, substitute:
34
Schedule 3 Control orders and tracking devices
12
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Subdivision G--Offences relating to control orders
1
3 At the end of Subdivision G of Division 104 of Part 5.3 of
2
the Criminal Code
3
Add:
4
104.27A Offence relating to tracking devices
5
(1) A person commits an offence if:
6
(a) a control order is in force in relation to the person; and
7
(b) the control order requires the person to wear a tracking
8
device; and
9
(c) the person engages in conduct; and
10
(d) the conduct results in interference with, or disruption or loss
11
of, a function of the tracking device.
12
Penalty: Imprisonment for 5 years.
13
(2) A person (the perpetrator) commits an offence if:
14
(a) the perpetrator knows that, or is reckless as to whether, a
15
control order is in force in relation to another person; and
16
(b) the perpetrator knows that, or is reckless as to whether, the
17
control order requires the other person to wear a tracking
18
device; and
19
(c) the perpetrator engages in conduct; and
20
(d) the conduct results in interference with, or disruption or loss
21
of, a function of the tracking device.
22
Penalty: Imprisonment for 5 years.
23
Issuing court for control orders Schedule 4
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
13
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
Schedule 5 Preventative detention orders
14
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Schedule 5--Preventative detention orders
1
2
Criminal Code Act 1995
3
1 Paragraph 105.1(a) of the Criminal Code
4
Repeal the paragraph, substitute:
5
(a) prevent a terrorist act that is capable of being carried out, and
6
could occur, within the next 14 days from occurring; or
7
2 Subsection 105.4(5) of the Criminal Code
8
Repeal the subsection, substitute:
9
(5) A terrorist act referred to in subsection (4) must be one that:
10
(a) for paragraphs (4)(a) and (c)--the AFP member suspects, on
11
reasonable grounds; or
12
(b) for paragraphs (4)(b) and (c)--the issuing authority is
13
satisfied there are reasonable grounds to suspect;
14
is capable of being carried out, and could occur, within the next 14
15
days.
16
Issuing authorities for preventative detention orders Schedule 6
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
15
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 (definition of
5
Judge)
6
Repeal the definition.
7
2 Subsection 100.1(1) of the Criminal Code (paragraph (c) of
8
the definition of superior court)
9
Repeal the paragraph.
10
3 Paragraph 105.2(1)(b) of the Criminal Code
11
After "Judge", insert "of the Federal Court of Australia or of the Federal
12
Circuit Court of Australia".
13
Schedule 7 Application of amendments of the Criminal Code
16
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Schedule 7--Application of amendments of
1
the Criminal Code
2
3
Criminal Code Act 1995
4
1 In the appropriate position in Division 106 of Part 5.3 of the
5
Criminal Code
6
Add:
7
106.7 Application provision for certain amendments in the
8
Counter-Terrorism Legislation Amendment Act (No. 1)
9
2016
10
(1) Division 104, as amended by Schedules 2 and 3 to the
11
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
12
applies to an order made under that Division after the
13
commencement of this section, where:
14
(a) the order is requested (however described) after that
15
commencement; and
16
(b) the conduct in relation to which that request is made occurs
17
before or after that commencement.
18
(2) Despite the amendment made by Schedule 4 to the
19
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
20
Division 104 continues to apply in relation to:
21
(a) a request for an interim control order, where the request was
22
made before the commencement of this section; and
23
(b) the making of an interim control order in response to such a
24
request; and
25
(c) the making of a declaration in relation to such an interim
26
control order; and
27
(d) the revocation of such an interim control order; and
28
(e) the confirmation of such an interim control order (with or
29
without variation); and
30
(f) the making of a confirmed control order that corresponds to
31
such an interim control order that has been so confirmed; and
32
(g) the revocation or variation of such a confirmed control order;
33
and
34
Application of amendments of the Criminal Code Schedule 7
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
17
(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 104.29, as amended by Schedule 8 to the
5
Counter-Terrorism Legislation Amendment Act (No. 1) 2016,
6
applies in relation to any year that ends on 30 June after the
7
commencement of this section.
8
(4) Division 105, as amended by Schedule 5 to the Counter-Terrorism
9
Legislation Amendment Act (No. 1) 2016, applies in relation to an
10
application for the following made after the commencement of this
11
section:
12
(a) a preventative detention order;
13
(b) an initial preventative detention order;
14
(c) an extension of an initial preventative detention order;
15
(d) a continued preventative detention order;
16
(e) an extension of a continued preventative detention order.
17
Schedule 8 Monitoring of compliance with control orders etc.
18
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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
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19
(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
inspecting officer means a person appointed under
17
subsection 3ZZUA(1).
18
interim control order has the same meaning as in Part 5.3 of the
19
Criminal Code.
20
issuing officer means a magistrate.
21
monitoring powers:
22
(a) in relation to premises--has the meaning given by
23
sections 3ZZKB, 3ZZKC and 3ZZKD; or
24
(b) in relation to a person--has the meaning given by
25
section 3ZZLB.
26
monitoring warrant means a warrant under section 3ZZOA or
27
3ZZOB.
28
ordinary search has the same meaning as in Part IAA.
29
Schedule 8 Monitoring of compliance with control orders etc.
20
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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premises includes the following:
1
(a) a structure, building or conveyance;
2
(b) a place (whether or not enclosed or built on);
3
(c) a part of a thing referred to in paragraph (a) or (b).
4
prescribed connection with premises has the meaning given by
5
section 3ZZJC.
6
recently used conveyance, in relation to a search of a person,
7
means a conveyance that the person had operated or occupied at
8
any time within 24 hours before the search commenced.
9
relevant data has the meaning given by subsection 3ZZKC(3).
10
seizable item has the same meaning as in Part IAA.
11
staff member of the Australian Federal Police means a person
12
referred to in paragraph (a) of the definition of law enforcement
13
officer in subsection 3(1).
14
State or Territory agency: see section 3ZZUF.
15
State or Territory inspecting authority: see section 3ZZUF.
16
strip search has the same meaning as in Part IAA.
17
3ZZJC Prescribed connection with premises
18
For the purposes of this Part, a person has a prescribed connection
19
with premises if:
20
(a) the person:
21
(i) is the legal or beneficial owner of the premises (whether
22
alone or together with one or more other persons); or
23
(ii) has any other legal or equitable estate or interest in the
24
premises; or
25
(b) the person occupies, or resides on, the premises; or
26
(c) the person has possession or control of the premises (whether
27
alone or together with one or more other persons); or
28
(d) the person performs any of the duties of his or her
29
employment on the premises; or
30
(e) the person carries on a business on the premises (whether
31
alone or together with one or more other persons); or
32
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21
(f) the person performs voluntary work on the premises; or
1
(g) both:
2
(i) the premises are used by a school, college, university or
3
other educational institution; and
4
(ii) the person attends the premises in his or her capacity as
5
a student at the school, college, university or other
6
educational institution.
7
3ZZJD Privileges not abrogated
8
Self-incrimination
9
(1) This Part (other than section 3ZZUE) does not affect the right of a
10
person to refuse to answer a question, give information, or produce
11
a document, on the ground that the answer to the question, the
12
information, or the production of the document, might tend to
13
incriminate him or her or make him or her liable to a penalty.
14
Legal professional privilege
15
(2) This Part (other than section 3ZZUE) does not affect the right of a
16
person to refuse to answer a question, give information, or produce
17
a document, on the ground that:
18
(a) the answer to the question or the information would be
19
privileged from being given on the ground of legal
20
professional privilege; or
21
(b) the document would be privileged from being produced on
22
the ground of legal professional privilege.
23
Other legislation not affected
24
(3) The fact that this section is included in this Part does not imply that
25
the privilege against self-incrimination or legal professional
26
privilege is abrogated in any other law of the Commonwealth.
27
3ZZJE Application of Part
28
(1) This Part is not intended to limit or exclude the operation of
29
another law of the Commonwealth (including other provisions of
30
this Act) relating to:
31
(a) the search of premises; or
32
Schedule 8 Monitoring of compliance with control orders etc.
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(b) the searching of persons or conveyances; or
1
(c) the seizure of things; or
2
(d) the requesting of information or documents from persons.
3
(2) To avoid any doubt, it is declared that even though another law of
4
the Commonwealth (including other provisions of this Act)
5
provides power to do one or more of the things referred to in
6
subsection (1), a similar power conferred by this Part may be used
7
despite the existence of the power under the other law.
8
Division 2--Powers of constables in relation to premises
9
Subdivision A--Monitoring powers
10
3ZZKA Entering premises by consent or under a warrant
11
(1) If:
12
(a) a control order is in force in relation to a person; and
13
(b) the person has a prescribed connection with particular
14
premises;
15
a constable may enter the premises, and exercise the monitoring
16
powers, for any of the following purposes:
17
(c) the protection of the public from a terrorist act;
18
(d) preventing the provision of support for, or the facilitation of,
19
a terrorist act;
20
(e) preventing the provision of support for, or the facilitation of,
21
the engagement in a hostile activity in a foreign country;
22
(f) determining whether the control order has been, or is being,
23
complied with.
24
Note:
The monitoring powers are set out in sections 3ZZKB, 3ZZKC and
25
3ZZKD.
26
(2) However, a constable is not authorised to enter the premises
27
unless:
28
(a) the person:
29
(i) is the occupier of the premises; and
30
(ii) has consented to the entry; or
31
(b) the entry is made under a monitoring warrant.
32
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23
Note:
If entry to the premises is with the occupier's consent, the constable
1
must leave the premises if the consent ceases to have effect (see
2
section 3ZZNA).
3
3ZZKB General monitoring powers
4
The following are the monitoring powers that a constable may
5
exercise in relation to premises under section 3ZZKA:
6
(a) the power to search the premises and any thing on the
7
premises;
8
(b) the power to search for and record fingerprints found at the
9
premises;
10
(c) the power to take samples of things found at the premises;
11
(d) the power to examine or observe any activity conducted on
12
the premises;
13
(e) the power to inspect, examine, take measurements of or
14
conduct tests on any thing on the premises;
15
(f) the power to make any still or moving image or any
16
recording of the premises or any thing on the premises;
17
(g) the power to inspect any document on the premises;
18
(h) the power to take extracts from, or make copies of, any such
19
document;
20
(i) the power to take onto the premises such equipment and
21
materials as the constable requires for the purpose of
22
exercising powers in relation to the premises;
23
(j) the powers set out in subsections 3ZZKC(1) and (4) and
24
3ZZKD(2).
25
3ZZKC Operating electronic equipment
26
(1) The monitoring powers include the power to:
27
(a) operate electronic equipment on the premises; and
28
(b) use a disk, tape or other storage device that:
29
(i) is on the premises; and
30
(ii) can be used with the equipment or is associated with it.
31
(2) The monitoring powers include the powers mentioned in
32
subsection (4) if relevant data is found in the exercise of the power
33
under subsection (1).
34
(3) Relevant data means information relevant to:
35
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(a) the protection of the public from a terrorist act; or
1
(b) preventing the provision of support for, or the facilitation of,
2
a terrorist act; or
3
(c) preventing the provision of support for, or the facilitation of,
4
the engagement in a hostile activity in a foreign country; or
5
(d) determining whether the relevant control order has been, or is
6
being, complied with.
7
(4) The powers are as follows:
8
(a) the power to operate electronic equipment on the premises to
9
put the relevant data in documentary form and remove the
10
documents so produced from the premises;
11
(b) the power to operate electronic equipment on the premises to
12
transfer the relevant data to a disk, tape or other storage
13
device that:
14
(i) is brought to the premises for the exercise of the power;
15
or
16
(ii) is on the premises and the use of which for that purpose
17
has been agreed in writing by the occupier of the
18
premises;
19
and remove the disk, tape or other storage device from the
20
premises.
21
(5) A constable may operate electronic equipment as mentioned in
22
subsection (1) or (4) only if the constable believes on reasonable
23
grounds that the operation of the equipment can be carried out
24
without damage to the equipment.
25
Note:
For compensation for damage to electronic equipment, see
26
section 3ZZNF.
27
3ZZKD Securing electronic equipment to obtain expert assistance
28
Scope
29
(1) This section applies if a constable enters premises under a
30
monitoring warrant.
31
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25
Securing equipment
1
(2) The monitoring powers include the power to secure any electronic
2
equipment that is on the premises if the constable suspects on
3
reasonable grounds that:
4
(a) there is relevant data on the premises; and
5
(b) the relevant data may be accessible by operating the
6
equipment; and
7
(c) expert assistance is required to operate the equipment; and
8
(d) the relevant data may be destroyed, altered or otherwise
9
interfered with, if the constable does not take action under
10
this subsection.
11
The equipment may be secured by locking it up, placing a guard or
12
any other means.
13
(3) The constable must give notice to the occupier of the premises, or
14
another person who apparently represents the occupier, of:
15
(a) the constable's intention to secure the equipment; and
16
(b) the fact that the equipment may be secured for up to 24
17
hours.
18
Period equipment may be secured
19
(4) The equipment may be secured until the earlier of the following
20
happens:
21
(a) the 24-hour period ends;
22
(b) the equipment has been operated by the expert.
23
Note:
For compensation for damage to electronic equipment, see
24
section 3ZZNF.
25
Extensions
26
(5) The constable may apply to an issuing officer for an extension of
27
the 24-hour period if the constable believes on reasonable grounds
28
that the equipment needs to be secured for longer than that period.
29
(6) Before making the application, the constable must give notice to
30
the occupier of the premises, or another person who apparently
31
represents the occupier, of his or her intention to apply for an
32
extension. The occupier or other person is entitled to be heard in
33
relation to that application.
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(7) The 24-hour period may be extended more than once.
1
Note:
For the process by which an issuing officer may extend the period, see
2
section 3ZZQA.
3
Subdivision B--Powers to ask questions and seek production of
4
documents
5
3ZZKE Asking questions and seeking production of documents
6
Scope
7
(1) This section applies if a constable enters premises under
8
section 3ZZKA.
9
Entry with consent
10
(2) If the entry is authorised because the occupier of the premises
11
consented to the entry, the constable may ask the occupier to
12
answer any questions, and produce any document, that is likely to
13
assist in:
14
(a) the protection of the public from a terrorist act; or
15
(b) preventing the provision of support for, or the facilitation of,
16
a terrorist act; or
17
(c) preventing the provision of support for, or the facilitation of,
18
the engagement in a hostile activity in a foreign country; or
19
(d) determining whether the relevant control order has been, or is
20
being, complied with.
21
Note 1:
A person is not required to answer a question, or produce a document,
22
in response to a request under this subsection.
23
Note 2:
See also sections 3ZZRC and 3ZZRD.
24
Entry under a monitoring warrant
25
(3) If:
26
(a) the entry is authorised by a monitoring warrant; and
27
(b) the warrant authorises the constable to exercise powers under
28
this subsection;
29
the constable may (subject to subsections (4) to (7)) require any
30
person on the premises to answer any questions, and produce any
31
document, that is likely to assist in:
32
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27
(c) the protection of the public from a terrorist act; or
1
(d) preventing the provision of support for, or the facilitation of,
2
a terrorist act; or
3
(e) preventing the provision of support for, or the facilitation of,
4
the engagement in a hostile activity in a foreign country; or
5
(f) determining whether the relevant control order has been, or is
6
being, complied with.
7
Note:
See also sections 3ZZRC and 3ZZRD.
8
Legal professional privilege and privilege against
9
self-incrimination
10
(4) Before a constable requires a person to answer a question or
11
produce a document under subsection (3), the constable must
12
explain the effect of section 3ZZJD to the person.
13
(5) An answer to a question or a document produced under
14
subsection (3) by a person is not admissible in evidence against
15
him or her in criminal proceedings if a constable fails to explain
16
the effect of section 3ZZJD to the person in accordance with
17
subsection (4). The failure does not otherwise affect the use of the
18
answer or document.
19
Note:
For the uses that may be made of the answer or document, see
20
sections 3ZZRC and 3ZZRD.
21
Exceptions to subsection (3)
22
(6) A person is not subject to a requirement under subsection (3) if:
23
(a) the person does not possess the information or document
24
required; and
25
(b) the person has taken all reasonable steps available to the
26
person to obtain the information or document required and
27
has been unable to obtain it.
28
(7) A person is not subject to a requirement under subsection (3) to
29
produce a document if the document is not at the premises.
30
Offence
31
(8) A person commits an offence if:
32
(a) the person is subject to a requirement under subsection (3);
33
and
34
Schedule 8 Monitoring of compliance with control orders etc.
28
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(b) the person engages in conduct; and
1
(c) the person's conduct breaches the requirement.
2
Penalty for contravention of this subsection: 30 penalty units.
3
Subdivision C--Other powers
4
3ZZKF Other powers
5
Scope
6
(1) This section applies if:
7
(a) a constable enters premises under section 3ZZKA; and
8
(b) the entry is authorised by a monitoring warrant.
9
Powers
10
(2) The constable has the following powers in relation to the premises:
11
(a) the power to seize things found during the exercise of
12
monitoring powers on the premises that the constable
13
suspects on reasonable grounds to be:
14
(i) evidential material; or
15
(ii) evidential material (within the meaning of the Proceeds
16
of Crime Act 2002); or
17
(iii) tainted property (within the meaning of that Act); or
18
(iv) seizable items;
19
(b) the power to conduct an ordinary search or a frisk search of a
20
person at or near the premises if the constable suspects on
21
reasonable grounds that the person has any evidential
22
material or seizable items in his or her possession;
23
(c) the power to seize other things found while conducting an
24
ordinary search or a frisk search of a person at or near the
25
premises that the constable suspects on reasonable grounds to
26
be:
27
(i) evidential material; or
28
(ii) evidential material (within the meaning of the Proceeds
29
of Crime Act 2003); or
30
(iii) tainted property (within the meaning of that Act); or
31
(iv) seizable items.
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
29
3ZZKG Availability of assistance and use of force in executing a
1
warrant
2
Scope
3
(1) This section applies if:
4
(a) a constable enters premises under section 3ZZKA; and
5
(b) the entry is authorised by a monitoring warrant.
6
Availability of assistance and use of force
7
(2) In:
8
(a) executing the warrant; or
9
(b) exercising the powers set out in section 3ZZKF in relation to
10
the premises;
11
the constable may use such force against persons and things as is
12
necessary and reasonable in the circumstances.
13
(3) In executing the warrant, the constable may obtain such assistance
14
as is necessary and reasonable in the circumstances.
15
(4) If a person (other than a constable) has been authorised by the
16
constable to assist in executing the warrant, the person may:
17
(a) enter the premises; and
18
(b) exercise the monitoring powers in relation to the premises;
19
and
20
(c) in:
21
(i) entering the premises; or
22
(ii) exercising the monitoring powers;
23
use such force against things as is necessary and reasonable
24
in the circumstances.
25
(5) If a person (other than a constable) has been authorised by the
26
constable to assist in executing the warrant:
27
(a) the person may only exercise the monitoring powers set out
28
in subsection 3ZZKD(2) if the constable forms the suspicion
29
mentioned in that subsection; and
30
(b) the person must not exercise a power set out in
31
subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
32
Schedule 8 Monitoring of compliance with control orders etc.
30
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(6) A power exercised by a person assisting the constable as
1
mentioned in subsection (4) is taken to have been exercised by the
2
constable.
3
Division 3--Powers of constables in relation to persons
4
subject to control orders
5
3ZZLA Searching a person by consent or under a warrant
6
(1) If a control order is in force in relation to a person, a constable may
7
conduct an ordinary search or a frisk search of the person, and
8
exercise the monitoring powers, for any of the following purposes:
9
(a) the protection of the public from a terrorist act;
10
(b) preventing the provision of support for, or the facilitation of,
11
a terrorist act;
12
(c) preventing the provision of support for, or the facilitation of,
13
the engagement in a hostile activity in a foreign country;
14
(d) determining whether the control order has been, or is being,
15
complied with.
16
Note:
The monitoring powers are set out in section 3ZZLB.
17
(2) However, a constable is not authorised to conduct an ordinary
18
search or a frisk search of the person unless:
19
(a) the person has consented to the search; or
20
(b) the search is conducted under a monitoring warrant.
21
3ZZLB Monitoring powers
22
The following are the monitoring powers that a constable may
23
exercise in relation to a person under section 3ZZLA:
24
(a) the power to search things found in the possession of the
25
person;
26
(b) the power to search any recently used conveyance;
27
(c) the power to record fingerprints from things found in the
28
course of:
29
(i) a search under section 3ZZLA; or
30
(ii) a search under paragraph (a) or (b) of this section;
31
(d) the power to take samples from things found in the course of:
32
(i) a search under section 3ZZLA; or
33
Monitoring of compliance with control orders etc. Schedule 8
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
31
(ii) a search under paragraph (a) or (b) of this section.
1
3ZZLC Seizure powers
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
Powers
8
(2) The constable has the following powers:
9
(a) the power to seize things found in the course of the search
10
that the constable suspects on reasonable grounds to be:
11
(i) evidential material; or
12
(ii) seizable items;
13
(b) the power to seize other things found on or in the possession
14
of the person, or in the recently used conveyance, in the
15
course of the search that the constable suspects on reasonable
16
grounds to be:
17
(i) evidential material (within the meaning of the Proceeds
18
of Crime Act 2002); or
19
(ii) tainted property (within the meaning of that Act).
20
3ZZLD Availability of assistance and use of force in executing a
21
warrant
22
Scope
23
(1) This section applies if:
24
(a) a constable conducts a search of a person, or of a recently
25
used conveyance, under section 3ZZLA; and
26
(b) the search is authorised by a monitoring warrant.
27
Availability of assistance and use of force
28
(2) In:
29
(a) executing the warrant; or
30
Schedule 8 Monitoring of compliance with control orders etc.
32
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(b) exercising the powers set out in section 3ZZLC in relation to
1
the person or conveyance;
2
the constable may use such force against persons and things as is
3
necessary and reasonable in the circumstances.
4
(3) In executing the warrant, the constable may obtain such assistance
5
as is necessary and reasonable in the circumstances.
6
(4) If a person (other than a constable) has been authorised by the
7
constable to assist in executing the warrant, the person may:
8
(a) exercise the monitoring powers in relation to the person
9
mentioned in paragraph (1)(a); and
10
(b) in exercising the monitoring powers, use such force against
11
things as is necessary and reasonable in the circumstances.
12
(5) If a person (other than a constable) has been authorised by the
13
constable to assist in executing the warrant, the person must not
14
exercise a power set out in section 3ZZLC.
15
(6) A power exercised by a person assisting the constable as
16
mentioned in subsection (4) is taken to have been exercised by the
17
constable.
18
Division 4--Obligations and incidental powers of
19
constables
20
3ZZNA Consent of occupier of premises
21
(1) Before obtaining the consent of an occupier of premises for the
22
purposes of paragraph 3ZZKA(2)(a), a constable must inform the
23
occupier that the occupier may refuse consent.
24
(2) A consent has no effect unless the consent is voluntary.
25
(3) A consent may be expressed to be limited to entry during a
26
particular period. If so, the consent has effect for that period unless
27
the consent is withdrawn before the end of that period.
28
(4) A consent that is not limited as mentioned in subsection (3) has
29
effect until the consent is withdrawn.
30
(5) If a constable entered premises because of the consent of the
31
occupier of the premises, the constable, and any person assisting
32
Monitoring of compliance with control orders etc. Schedule 8
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
33
the constable, must leave the premises if the consent ceases to have
1
effect.
2
(6) If:
3
(a) a constable enters premises because of the consent of the
4
occupier of the premises; and
5
(b) the constable has not shown the occupier his or her identity
6
card before entering the premises;
7
the constable must do so on, or as soon as is reasonably practicable
8
after, entering the premises.
9
3ZZNB Consent to search of a person
10
(1) Before obtaining the consent of a person for the purposes of
11
paragraph 3ZZLA(2)(a), a constable must inform the person that
12
the person may refuse consent.
13
(2) A consent has no effect unless the consent is voluntary.
14
(3) A consent may be expressed to be limited to a particular period. If
15
so, the consent has effect for that period unless the consent is
16
withdrawn before the end of that period.
17
(4) A consent that is not limited as mentioned in subsection (3) has
18
effect until the consent is withdrawn.
19
3ZZNC Announcement before entry under warrant
20
Before entering premises under a monitoring warrant, a constable
21
must:
22
(a) announce that he or she is authorised to enter the premises;
23
and
24
(b) show his or her identity card to the occupier of the premises,
25
or to another person who apparently represents the occupier,
26
if the occupier or other person is present at the premises; and
27
(c) give any person at the premises an opportunity to allow entry
28
to the premises.
29
3ZZND Constable to be in possession of warrant
30
A constable executing a monitoring warrant must be in possession
31
of the warrant or a copy of the warrant.
32
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3ZZNE Details of warrant etc. to be given to occupier
1
If:
2
(a) a monitoring warrant is being executed by a constable in
3
relation to premises; and
4
(b) the occupier of the premises, or another person who
5
apparently represents the occupier, is present at the premises;
6
the constable must, as soon as practicable, make a copy of the
7
warrant available to the occupier or other person.
8
3ZZNF Compensation for damage to electronic equipment
9
Scope
10
(1) This section applies if:
11
(a) as a result of electronic equipment being operated as
12
mentioned in this Part:
13
(i) damage is caused to the equipment; or
14
(ii) the data recorded on the equipment is damaged; or
15
(iii) programs associated with the use of the equipment, or
16
with the use of the data, are damaged or corrupted; and
17
(b) the damage or corruption occurs because:
18
(i) insufficient care was exercised in selecting the person
19
who was to operate the equipment; or
20
(ii) insufficient care was exercised by the person operating
21
the equipment.
22
Compensation
23
(2) The Commonwealth must pay the owner of the equipment, or the
24
user of the data or programs, such reasonable compensation for the
25
damage or corruption as the Commonwealth and the owner or user
26
agree on.
27
(3) However, if the owner or user and the Commonwealth fail to
28
agree, the owner or user may institute proceedings in:
29
(a) the Federal Court of Australia or the Federal Circuit Court of
30
Australia; or
31
(b) a court of a State or Territory that has jurisdiction in relation
32
to the matter;
33
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35
for such reasonable amount of compensation as the court
1
determines.
2
(4) In determining the amount of compensation payable, regard is to
3
be had to whether the occupier of the premises, or the occupier's
4
employees or agents, if they were available at the time, provided
5
any appropriate warning or guidance on the operation of the
6
equipment.
7
3ZZNG Occupier entitled to be present during search
8
(1) If:
9
(a) a monitoring warrant in relation to premises is being
10
executed; and
11
(b) the occupier of the premises, or another person who
12
apparently represents the occupier, is present at the premises;
13
the person is entitled to observe the search being conducted.
14
(2) The right to observe the search being conducted ceases if the
15
person impedes the search.
16
(3) This section does not prevent 2 or more areas of the premises being
17
searched at the same time.
18
3ZZNH Person subject to a control order is entitled to be present
19
during search
20
(1) If:
21
(a) a monitoring warrant in relation to premises is being
22
executed; and
23
(b) the warrant was issued on the basis that a control order is in
24
force in relation to a person; and
25
(c) the person is present at the premises;
26
the person is entitled to observe the search being conducted.
27
(2) The right to observe the search being conducted ceases if the
28
person impedes the search.
29
(3) This section does not prevent 2 or more areas of the premises being
30
searched at the same time.
31
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Division 5--Monitoring warrants
1
3ZZOA Monitoring warrant in relation to premises
2
Application for warrant
3
(1) A constable may apply to an issuing officer for a warrant under this
4
section in relation to premises.
5
Issue of warrant
6
(2) The issuing officer may issue the warrant if the issuing officer is
7
satisfied, by information on oath or affirmation, that:
8
(a) a control order is in force in relation to a person; and
9
(b) the person has a prescribed connection with the premises; and
10
(c) having regard to:
11
(i) the nature of the person's prescribed connection with
12
the premises; and
13
(ii) one or more of the matters set out in paragraphs (4)(a)
14
to (f), and the matter set out in paragraph (4)(g); and
15
(iii) such other matters (if any) as the issuing officer
16
considers relevant;
17
it is reasonably necessary that one or more constables should
18
have access to the premises for the purposes of:
19
(iv) the protection of the public from a terrorist act; or
20
(v) preventing the provision of support for, or the
21
facilitation of, a terrorist act; or
22
(vi) preventing the provision of support for, or the
23
facilitation of, the engagement in a hostile activity in a
24
foreign country; or
25
(vii) determining whether the control order has been, or is
26
being, complied with.
27
(3) The issuing officer must not issue the warrant unless the applicant
28
or some other person has given to the issuing officer, either orally
29
or by affidavit, such further information (if any) as the issuing
30
officer requires concerning the grounds on which the issue of the
31
warrant is being sought.
32
(4) The matters referred to in subparagraph (2)(c)(ii) are the following:
33
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(a) the possibility that the person has engaged, is engaging, or
1
will engage, in a terrorist act;
2
(b) the possibility that the person has provided, is providing, or
3
will provide, support for a terrorist act;
4
(c) the possibility that the person has facilitated, is facilitating, or
5
will facilitate, a terrorist act;
6
(d) the possibility that the person has provided, is providing, or
7
will provide, support for the engagement in a hostile activity
8
in a foreign country;
9
(e) the possibility that the person has facilitated, is facilitating, or
10
will facilitate, the engagement in a hostile activity in a
11
foreign country;
12
(f) the possibility that the person has contravened, is
13
contravening, or will contravene, the control order;
14
(g) whether allowing one or more constables to have access to
15
the premises, and exercise the monitoring powers in relation
16
to the premises and the powers set out in section 3ZZKF in
17
relation to the premises, would be likely to have the least
18
interference with any person's liberty and privacy that is
19
necessary in the circumstances.
20
Content of warrant
21
(5) The warrant must:
22
(a) describe the premises to which the warrant relates; and
23
(b) state that the warrant is issued under this section; and
24
(c) state the purpose or purposes for which the warrant is issued;
25
and
26
(d) authorise one or more constables (whether or not named in
27
the warrant) from time to time while the warrant remains in
28
force:
29
(i) to enter the premises; and
30
(ii) to exercise the monitoring powers in relation to the
31
premises; and
32
(iii) to exercise the powers set out in section 3ZZKF in
33
relation to the premises; and
34
(e) state whether entry is authorised to be made at any time of
35
the day or during specified hours of the day; and
36
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(f) specify the time at which the warrant expires (see
1
subsection (7)); and
2
(g) state whether the warrant authorises a constable to exercise
3
powers under subsection 3ZZKE(3) in relation to the entry;
4
and
5
(h) state that a person who is not a constable may be authorised
6
under section 3ZZKG to assist in executing the warrant; and
7
(i) state the name of the person to whom the relevant control
8
order relates; and
9
(j) describe the nature of the person's prescribed connection
10
with the premises; and
11
(k) state that the control order is in force; and
12
(l) state whether the control order is an interim control order or a
13
confirmed control order; and
14
(m) specify the date the control order was made; and
15
(n) specify the court that made the control order; and
16
(o) if the control order is an interim control order--specify the
17
date the order was served on the person; and
18
(p) if the control order is a confirmed control order--specify the
19
end of the period during which the order is in force; and
20
(q) if the warrant is issued for the purposes of determining
21
whether the control order has been, or is being, complied
22
with--specify the obligations, prohibitions and restrictions
23
that are imposed by the order.
24
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or
25
purposes for which the warrant is issued to be specified in the
26
warrant if disclosure of that purpose, or those purposes, is likely to
27
prejudice national security (within the meaning of the National
28
Security Information (Criminal and Civil Proceedings) Act 2004).
29
(7) The time stated in the warrant under paragraph (5)(f) as the time at
30
which the warrant expires must be a time that is not later than the
31
end of the seventh day after the day on which the warrant is issued.
32
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
33
must not be later than midnight on Monday in the following week.
34
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of
35
successive monitoring warrants in relation to the same premises.
36
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3ZZOB Monitoring warrant in relation to a person
1
Application for warrant
2
(1) A constable may apply to an issuing officer for a warrant under this
3
section in relation to a person.
4
Issue of warrant
5
(2) The issuing officer may issue the warrant if the issuing officer is
6
satisfied, by information on oath or affirmation, that:
7
(a) a control order is in force in relation to the person; and
8
(b) having regard to:
9
(i) one or more of the matters set out in paragraphs (4)(a)
10
to (f), and the matter set out in paragraph (4)(g); and
11
(ii) such other matters (if any) as the issuing officer
12
considers relevant;
13
it is reasonably necessary that a constable should conduct an
14
ordinary search or a frisk search of the person for the
15
purposes of:
16
(iii) the protection of the public from a terrorist act; or
17
(iv) preventing the provision of support for, or the
18
facilitation of, a terrorist act; or
19
(v) preventing the provision of support for, or the
20
facilitation of, the engagement in a hostile activity in a
21
foreign country; or
22
(vi) determining whether the control order has been, or is
23
being, complied with.
24
(3) The issuing officer must not issue the warrant unless the applicant
25
or some other person has given to the issuing officer, either orally
26
or by affidavit, such further information (if any) as the issuing
27
officer requires concerning the grounds on which the issue of the
28
warrant is being sought.
29
(4) The matters referred to in subparagraph (2)(b)(i) are the following:
30
(a) the possibility that the person has engaged, is engaging, or
31
will engage, in a terrorist act;
32
(b) the possibility that the person has provided, is providing, or
33
will provide, support for a terrorist act;
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(c) the possibility that the person has facilitated, is facilitating, or
1
will facilitate, a terrorist act;
2
(d) the possibility that the person has provided, is providing, or
3
will provide, support for the engagement in a hostile activity
4
in a foreign country;
5
(e) the possibility that the person has facilitated, is facilitating, or
6
will facilitate, the engagement in a hostile activity in a
7
foreign country;
8
(f) the possibility that the person has contravened, is
9
contravening, or will contravene, the control order;
10
(g) whether allowing one or more constables to conduct an
11
ordinary search or a frisk search of the person, and exercise
12
the monitoring powers in relation to the person and the
13
powers set out in section 3ZZLC in relation to the person or a
14
recently used conveyance, would be likely to have the least
15
interference with any person's liberty and privacy that is
16
necessary in the circumstances.
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
(g) state that a person who is not a constable may be authorised
37
under section 3ZZLD to assist in executing the warrant; and
38
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(h) state the name of the person to whom the relevant control
1
order relates; and
2
(i) state that the control order is in force; and
3
(j) state whether the control order is an interim control order or a
4
confirmed control order; and
5
(k) specify the date the control order was made; and
6
(l) specify the court that made the control order; and
7
(m) if the control order is an interim control order--specify the
8
date on which the order was served on the person; and
9
(n) if the control order is a confirmed control order--specify the
10
end of the period during which the order is in force; and
11
(o) if the warrant is issued for the purposes of determining
12
whether the control order has been, or is being, complied
13
with--specify the obligations, prohibitions and restrictions
14
that are imposed by the order.
15
(6) To avoid doubt, paragraph (5)(c) does not require the purpose or
16
purposes for which the warrant is issued to be specified in the
17
warrant if disclosure of that purpose, or those purposes, is likely to
18
prejudice national security (within the meaning of the National
19
Security Information (Criminal and Civil Proceedings) Act 2004).
20
(7) The time stated in the warrant under paragraph (5)(f) as the time at
21
which the warrant expires must be a time that is not later than the
22
end of the seventh day after the day on which the warrant is issued.
23
Example: If a warrant is issued at 3 pm on a Monday, the expiry time specified
24
must not be later than midnight on Monday in the following week.
25
(8) Paragraph (5)(f) and subsection (7) do not prevent the issue of
26
successive monitoring warrants in relation to the same person.
27
3ZZOC Restrictions on personal searches
28
A monitoring warrant cannot authorise a strip search or a search of
29
a person's body cavities.
30
3ZZOD Monitoring warrant must not be executed if the relevant
31
control order is revoked etc.
32
(1) If:
33
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(a) a monitoring warrant was issued on the basis that a control
1
order was in force in relation to a person; and
2
(b) any of the following happens:
3
(i) the control order is revoked;
4
(ii) a court declares the control order to be void;
5
(iii) a court varies the control order by removing one or
6
more obligations, prohibitions or restrictions imposed
7
on the person by the control order;
8
a constable must not:
9
(c) execute the warrant; or
10
(d) exercise a power under Division 2 or 3, if the exercise of the
11
power is consequential on the warrant.
12
Evidence
13
(2) A thing seized in breach of subsection (1) is not admissible in
14
evidence in criminal proceedings other than proceedings covered
15
by paragraph 3ZQU(1)(j).
16
(3) Information obtained in breach of subsection (1) is not admissible
17
in evidence in criminal proceedings other than proceedings covered
18
by paragraph 3ZQU(1)(j).
19
(4) A document 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
Division 6--Monitoring warrants by telephone or other
23
electronic means
24
3ZZPA Monitoring warrants by telephone or other electronic means
25
(1) A constable may make an application to an issuing officer for a
26
monitoring warrant by telephone, telex, fax or other electronic
27
means:
28
(a) in an urgent case; or
29
(b) if the delay that would occur if an application were made in
30
person would frustrate the effective execution of the warrant.
31
(2) The issuing officer:
32
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(a) may require communication by voice to the extent that it is
1
practicable in the circumstances; and
2
(b) may make a recording of the whole or any part of any such
3
communication by voice.
4
(3) An application under this section must include all information
5
required to be provided in an ordinary application for a monitoring
6
warrant, but the application may, if necessary, be made before the
7
information is sworn.
8
(4) If an application is made to an issuing officer under this section
9
and the issuing officer, after considering the information and
10
having received and considered such further information (if any) as
11
the issuing officer required, is satisfied that:
12
(a) a monitoring warrant in the terms of the application should
13
be issued urgently; or
14
(b) the delay that would occur if an application were made in
15
person would frustrate the effective execution of the warrant;
16
the issuing officer may complete and sign the same form of
17
warrant that would be issued under section 3ZZOA or 3ZZOB, as
18
the case requires.
19
(5) If the issuing officer decides to issue the monitoring warrant, the
20
issuing officer is to inform the applicant, by telephone, telex, fax or
21
other electronic means, of the terms of the warrant and the day on
22
which, and the time at which, it was signed.
23
(6) The applicant must then complete a form of monitoring warrant in
24
terms substantially corresponding to those given by the issuing
25
officer, stating on the form the name of the issuing officer and the
26
day on which, and the time at which, the warrant was signed.
27
(7) The applicant must, not later than the day after the day of expiry of
28
the warrant or the day after the day on which the warrant was
29
executed, whichever is the earlier, give or transmit to the issuing
30
officer the form of warrant completed by the applicant and, if the
31
information referred to in subsection (3) was not sworn, that
32
information duly sworn.
33
(8) The issuing officer is to attach to the documents provided under
34
subsection (7) the form of warrant completed by the issuing
35
officer.
36
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(9) If:
1
(a) it is material, in any proceedings, for a court to be satisfied
2
that the exercise of a power under a monitoring warrant
3
issued under this section was duly authorised; and
4
(b) the form of warrant signed by the issuing officer is not
5
produced in evidence;
6
the court is to assume, unless the contrary is proved, that the
7
exercise of the power was not duly authorised.
8
3ZZPB Offences relating to telephone warrants
9
A person commits an offence if:
10
(a) the person states in a document that purports to be a form of
11
warrant under section 3ZZPA the name of an issuing officer
12
unless that officer issued the warrant; or
13
(b) the person states on a form of warrant under that section a
14
matter that, to the person's knowledge, departs in a material
15
particular from the form authorised by the issuing officer; or
16
(c) the person purports to execute, or present to a person, a
17
document that purports to be a form of warrant under that
18
section that the person knows:
19
(i) has not been approved by an issuing officer under that
20
section; or
21
(ii) to depart in a material particular from the terms
22
authorised by an issuing officer under that section; or
23
(d) the person gives to an issuing officer a form of warrant under
24
that section that is not the form of warrant that the person
25
purported to execute.
26
Penalty: Imprisonment for 2 years.
27
Division 7--Extension of periods in which things secured
28
3ZZQA Extension of periods in which things secured
29
Application
30
(1) This section applies if a constable applies to an issuing officer
31
under subsection 3ZZKD(5) for an extension of the period during
32
which a thing may be secured.
33
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Granting extension
1
(2) The issuing officer may, by order, grant an extension of the period
2
if the issuing officer is satisfied, by information on oath or
3
affirmation, that it is necessary to secure the thing to ensure that
4
relevant data is not destroyed, altered or otherwise interfered with.
5
(3) The issuing officer must not grant the extension unless the
6
constable or some other person has given to the issuing officer,
7
either orally or by affidavit, such further information (if any) as the
8
issuing officer requires concerning the grounds on which the
9
extension is being sought.
10
Content of order
11
(4) The order extending the period must:
12
(a) describe the thing to which the order relates; and
13
(b) state the period for which the extension is granted; and
14
(c) state that the order is made under this section; and
15
(d) state that the constable is authorised to secure the thing for
16
that period.
17
Division 8--Things seized, documents produced, and
18
answers given, under this Part
19
3ZZRA Receipts for things seized under this Part
20
(1) If a thing is seized by a constable under this Part, the constable
21
must provide a receipt for the thing.
22
(2) If 2 or more things are seized, they may be covered in the one
23
receipt.
24
3ZZRB Using, sharing and returning things seized under this Part
25
Division 4C of Part IAA applies to a thing seized under this Part in
26
a corresponding way to the way in which it applies to a thing
27
seized under Division 2 of Part IAA.
28
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3ZZRC Using, sharing and returning documents produced under
1
section 3ZZKE
2
(1) Subject to subsection (2), Division 4C of Part IAA applies to a
3
document produced under section 3ZZKE in a corresponding way
4
to the way in which it applies to a document produced under
5
Division 4B of Part IAA.
6
(2) Section 3ZQU has effect, in relation to a document produced under
7
section 3ZZKE, as if the following additional purposes were set
8
out in subsection 3ZQU(1):
9
(a) the protection of the public from a terrorist act;
10
(b) preventing the provision of support for, or the facilitation of,
11
a terrorist act;
12
(c) preventing the provision of support for, or the facilitation of,
13
the engagement in a hostile activity in a foreign country;
14
(d) determining whether the relevant control order has been, or is
15
being, complied with.
16
3ZZRD Answers to questions asked under section 3ZZKE
17
An answer given to a question asked under subsection 3ZZKE(2)
18
or (3) may only be used for one or more of the following purposes:
19
(a) the protection of the public from a terrorist act;
20
(b) preventing the provision of support for, or the facilitation of,
21
a terrorist act;
22
(c) preventing the provision of support for, or the facilitation of,
23
the engagement in a hostile activity in a foreign country;
24
(d) determining whether the relevant control order has been, or is
25
being, complied with;
26
(e) preventing, investigating or prosecuting an offence.
27
Division 9--Powers of issuing officers
28
3ZZSA Powers of issuing officers
29
Powers conferred personally
30
(1) A power conferred on an issuing officer by this Part is conferred on
31
the issuing officer:
32
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47
(a) in a personal capacity; and
1
(b) not as a court or a member of a court.
2
Powers need not be accepted
3
(2) The issuing officer need not accept the power conferred.
4
Protection and immunity
5
(3) An issuing officer exercising a power conferred by this Part has the
6
same protection and immunity as if the issuing officer were
7
exercising the power:
8
(a) as the court of which the issuing officer is a member; or
9
(b) as a member of the court of which the issuing officer is a
10
member.
11
Division 10--General
12
3ZZTA Conduct of ordinary searches and frisk searches
13
An ordinary search or a frisk search of a person under this Part
14
must, if practicable, be conducted by a person of the same sex as
15
the person being searched.
16
3ZZTB Protection of persons--control order declared to be void
17
(1) If:
18
(a) a monitoring warrant was issued on the basis that an interim
19
control order was in force; and
20
(b) a court subsequently declares the interim control order to be
21
void;
22
a criminal proceeding does not lie against a person in respect of
23
anything done, or omitted to be done, in good faith by the person:
24
(c) in the purported execution of the warrant; or
25
(d) in the purported exercise of a power, or the purported
26
performance of a function or duty, in a case where the
27
purported exercise of the power, or the purported
28
performance of the function or duty, is consequential on the
29
warrant.
30
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(2) Subsection (1) does not apply to a thing done, or omitted to be
1
done, at a particular time if, at that time, the person knew, or ought
2
reasonably to have known, of the declaration.
3
3ZZTC Dealing with things, information or documents obtained
4
under a monitoring warrant--control order declared to
5
be void
6
Scope
7
(1) This section applies if:
8
(a) a monitoring warrant was issued on the basis that an interim
9
control order was in force; and
10
(b) a court subsequently declares the interim control order to be
11
void; and
12
(c) before the declaration was made, a thing was seized,
13
information was obtained, or a document was produced, as a
14
result of:
15
(i) the purported execution of the warrant; or
16
(ii) the purported exercise of a power, or the purported
17
performance of a function or duty, in a case where the
18
purported exercise of the power, or the purported
19
performance of the function or duty, is consequential on
20
the warrant.
21
Dealing
22
(2) A person may:
23
(a) adduce the thing, information or document as evidence in a
24
proceeding; or
25
(b) use or communicate the information; or
26
(c) use, or communicate the contents of, the document;
27
if:
28
(d) the person reasonably believes that doing so is necessary to
29
assist in preventing, or reducing the risk of:
30
(i) the commission of a terrorist act; or
31
(ii) serious harm to a person; or
32
(iii) serious damage to property; or
33
(e) the person does so for one or more purposes set out in
34
subsection (3).
35
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
49
Purposes
1
(3) The purposes are purposes connected with:
2
(a) 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, Division 105 of the
5
Criminal Code, so far as the function, duty or power relates
6
to a preventative detention order (within the meaning of
7
Part 5.3 of the Criminal Code); 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, Part 2A of the Terrorism
11
(Police Powers) Act 2002 (NSW), so far as the function, duty
12
or power relates to a preventative detention order (within the
13
meaning of that Part); 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
(Community Protection) Act 2003 (Vic.), so far as the
18
function, duty or power relates to a preventative detention
19
order (within the 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, the Terrorism (Preventative
23
Detention) Act 2005 (Qld), so far as the function, duty or
24
power relates to a preventative detention order (within the
25
meaning of that Act); 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 2006 (WA), 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 2005 (SA), 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
Schedule 8 Monitoring of compliance with control orders etc.
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
relation to a matter arising under, the Terrorism (Preventative
1
Detention) Act 2005 (Tas.), 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, Part 2 of the Terrorism
7
(Extraordinary Temporary Powers) Act 2006 (ACT), so far
8
as the function, duty or power relates to a preventative
9
detention order (within the meaning of that Part); 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 2B of the Terrorism
13
(Emergency Powers) Act (NT), so far as the function, duty or
14
power relates to a preventative detention order (within the
15
meaning of that Part).
16
Definition
17
(4) In this section:
18
serious harm has the same meaning as in the Criminal Code.
19
3ZZTD Commissioner to keep documents connected with issue of
20
monitoring warrants
21
The Commissioner must cause to be kept in the Australian Federal
22
Police's records:
23
(a) each monitoring warrant issued to the Australian Federal
24
Police; and
25
(b) each instrument revoking a monitoring warrant; and
26
(c) each order under section 3ZZQA granting an extension of a
27
period.
28
3ZZTE Commissioner to notify Ombudsman in relation to
29
monitoring warrants
30
(1) Within 6 months after a monitoring warrant is issued in response to
31
an application by the Australian Federal Police, the Commissioner
32
must:
33
(a) notify the Ombudsman that the warrant has been issued; and
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
51
(b) give to the Ombudsman a copy of the warrant.
1
(2) As soon as practicable after a member or special member of the
2
Australian Federal Police has contravened a provision of this Part
3
or of a monitoring warrant, the Commissioner must notify the
4
Ombudsman of the contravention.
5
(3) A failure to comply with subsection (1) or (2) does not affect the
6
validity of a monitoring warrant.
7
Division 11--Inspections by Ombudsman
8
3ZZUA Appointment of inspecting officers
9
(1) The Ombudsman may appoint members of the Ombudsman's staff
10
to be inspecting officers for the purposes of this Division.
11
(2) An appointment under subsection (1) must be in writing.
12
3ZZUB Inspection of records by the Ombudsman
13
(1) The Ombudsman may inspect the records of the Australian Federal
14
Police to determine the extent of compliance by the Australian
15
Federal Police and members and special members of the Australian
16
Federal Police with the provisions of:
17
(a) this Part; or
18
(b) monitoring warrants.
19
(2) For the purpose of an inspection under this section, the
20
Ombudsman:
21
(a) may, after notifying the Commissioner, enter at any
22
reasonable time premises occupied by the Australian Federal
23
Police; and
24
(b) is entitled to have full and free access at all reasonable times
25
to all records of the Australian Federal Police that are
26
relevant to the inspection; and
27
(c) may require a staff member of the Australian Federal Police
28
to give the Ombudsman any information that the
29
Ombudsman considers necessary, being information that is in
30
the staff member's possession, or to which the staff member
31
has access, and that is relevant to the inspection.
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(3) The Commissioner must ensure that staff members of the
1
Australian Federal Police give the Ombudsman any assistance the
2
Ombudsman reasonably requires to enable the Ombudsman to
3
perform functions under this section.
4
3ZZUC Power to obtain relevant information
5
(1) If the Ombudsman has reasonable grounds to believe that a staff
6
member of the Australian Federal Police is able to give information
7
relevant to an inspection under this Division, subsections (2) and
8
(3) have effect.
9
(2) The Ombudsman may, by writing given to the staff member,
10
require the staff member to give the information to the
11
Ombudsman:
12
(a) by writing signed by the staff member; and
13
(b) at a specified place and within a specified period.
14
(3) The Ombudsman may, by writing given to the staff member,
15
require the staff member to attend:
16
(a) before a specified inspecting officer; and
17
(b) at a specified place; and
18
(c) within a specified period or at a specified time on a specified
19
day;
20
to answer questions relevant to the inspection.
21
(4) If the Ombudsman:
22
(a) has reasonable grounds to believe that a staff member of the
23
Australian Federal Police is able to give information relevant
24
to an inspection under this Division; and
25
(b) does not know the staff member's identity;
26
the Ombudsman may, by writing given to the Commissioner,
27
require the Commissioner, or a person nominated by the
28
Commissioner, to attend:
29
(c) before a specified inspecting officer; and
30
(d) at a specified place; and
31
(e) within a specified period or at a specified time on a specified
32
day;
33
to answer questions relevant to the inspection.
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
53
(5) The place, and the period or the time and day, specified in a
1
requirement under this section, must be reasonable having regard
2
to the circumstances in which the requirement is made.
3
3ZZUD Offence
4
A person commits an offence if:
5
(a) the person is required under section 3ZZUC to attend before
6
another person, to give information or to answer questions;
7
and
8
(b) the person refuses or fails to do so.
9
Penalty: Imprisonment for 6 months.
10
3ZZUE Ombudsman to be given information etc. despite other laws
11
(1) Despite any other law, a person is not excused from giving
12
information, answering a question, or giving access to a document,
13
as and when required under this Division, on the ground that giving
14
the information, answering the question, or giving access to the
15
document, as the case may be:
16
(a) would contravene a law; or
17
(b) would be contrary to the public interest; or
18
(c) might tend to incriminate the person or make the person
19
liable to a penalty; or
20
(d) would disclose one of the following:
21
(i) a legal advice given to a Minister or a Department, or a
22
prescribed authority (within the meaning of the
23
Ombudsman Act 1976);
24
(ii) a communication between an officer of a Department or
25
of a prescribed authority (within the meaning of the
26
Ombudsman Act 1976) and another person or body,
27
being a communication protected against disclosure by
28
legal professional privilege.
29
(2) However, if the person is a natural person:
30
(a) the information, the answer, or the fact that the person has
31
given access to the document, as the case may be; and
32
(b) any information or thing (including a document) obtained as
33
a direct or indirect consequence of giving the information,
34
answering the question or giving access to the document;
35
Schedule 8 Monitoring of compliance with control orders etc.
54
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
are not admissible in evidence against the person except in a
1
proceeding by way of a prosecution for an offence against Part 7.4
2
or 7.7 of the Criminal Code.
3
(3) Nothing in any other law prevents a staff member of the Australian
4
Federal Police from:
5
(a) giving information to the Ombudsman or an inspecting
6
officer (whether orally or in writing and whether or not in
7
answer to a question); or
8
(b) giving access to a record of the Australian Federal Police to
9
the Ombudsman or an inspecting officer;
10
for the purposes of an inspection under this Division.
11
(4) Nothing in any other law prevents a staff member of the Australian
12
Federal Police from making a record of information, or causing a
13
record of information to be made, for the purposes of giving the
14
information to a person as permitted by subsection (3).
15
(5) The fact that a person is not excused under subsection (1) from
16
giving information, answering a question or producing a document
17
does not otherwise affect a claim of legal professional privilege
18
that anyone may make in relation to that information, answer or
19
document.
20
3ZZUF Exchange of information between Ombudsman and State or
21
Territory inspecting authorities
22
(1) The Ombudsman may give information that:
23
(a) relates to a State or Territory agency; and
24
(b) was obtained by the Ombudsman under this Division;
25
to the State or Territory inspecting authority in relation to the
26
agency.
27
(2) The Ombudsman may only give information to an authority under
28
subsection (1) if the Ombudsman is satisfied that the giving of the
29
information is necessary to enable the authority to perform its
30
functions in relation to the State or Territory agency.
31
(3) The Ombudsman may receive from a State or Territory inspecting
32
authority information relevant to the performance of the
33
Ombudsman's functions under this Division.
34
Monitoring of compliance with control orders etc. Schedule 8
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
55
(4) In this Part:
1
State or Territory agency means the police force or police service
2
of a State or Territory.
3
State or Territory inspecting authority, in relation to a State or
4
Territory agency, means the authority that, under the law of the
5
State or Territory concerned, has the function of making
6
inspections of a similar kind to those provided for in
7
section 3ZZUB.
8
3ZZUG Ombudsman not to be sued
9
(1) The Ombudsman, an inspecting officer, or a person acting under an
10
inspecting officer's direction or authority, is not liable to an action,
11
suit or proceeding for or in relation to an act done, or omitted to be
12
done, in good faith in the performance or exercise, or the purported
13
performance or exercise, of a function or power conferred by this
14
Division.
15
(2) A reference in this section to the Ombudsman includes a reference
16
to a Deputy Ombudsman or a delegate of the Ombudsman.
17
3ZZUH Annual report
18
(1) The Ombudsman must, as soon as practicable after the end of each
19
financial year, prepare and give to the Minister a report on the
20
results of any inspections under section 3ZZUB in the year.
21
Note:
The report is included in a report under section 104.29 of the Criminal
22
Code.
23
(2) The report must include the number of contraventions by the
24
Australian Federal Police and members and special members of the
25
Australian Federal Police of the provisions of:
26
(a) this Part; or
27
(b) monitoring warrants;
28
identified by the Ombudsman in the year.
29
(3) The Ombudsman must give a copy of a report under this section to
30
the Commissioner.
31
(4) A report under this section must not include information which, if
32
made public, could reasonably be expected to:
33
Schedule 8 Monitoring of compliance with control orders etc.
56
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(a) endanger a person's safety; or
1
(b) prejudice an investigation, or prosecution, of an offence; or
2
(c) compromise the operational activities or methodologies of:
3
(i) the Australian Federal Police; or
4
(ii) any other Commonwealth, State, Territory or foreign
5
law enforcement, intelligence or security agency.
6
Criminal Code Act 1995
7
2 Subsection 104.29(1) of the Criminal Code
8
After "this Division", insert ", Division 5 of Part IAAB of the Crimes
9
Act 1914 (monitoring warrants), and the rest of that Part to the extent
10
that it relates to that Division,".
11
3 After paragraph 104.29(2)(f) of the Criminal Code
12
Insert:
13
; (g) the number of monitoring warrants issued under Division 5
14
of Part IAAB of the Crimes Act 1914;
15
(h) the number of such warrants executed under that Division;
16
(i) the report prepared by the Ombudsman under
17
subsection 3ZZUH(1) of the Crimes Act 1914.
18
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
57
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
connected with: a purpose is connected with a preventative
8
detention order law if the purpose is connected with the
9
performance of a function or duty, or the exercise of a power, by a
10
person, court, tribunal or other body under, or in relation to a
11
matter arising under, that law, so far as the function, duty or power
12
relates to a preventative detention order (within the meaning of that
13
law).
14
control order has the same meaning as in Part 5.3 of the Criminal
15
Code.
16
control order warrant means a warrant issued:
17
(a) under subsection 46(4) or 46A(2A); or
18
(b) under section 48 in the circumstances mentioned in
19
subsection 46(4).
20
control order warrant agency means:
21
(a) a Commonwealth agency; or
22
(b) an eligible authority of a State that a declaration in force
23
under section 34 authorises to apply for control order
24
warrants (see section 38A).
25
engage in a hostile activity has the same meaning as in Part 5.3 of
26
the Criminal Code.
27
foreign country, when used in the expression hostile activity in a
28
foreign country, has the same meaning as in the Criminal Code.
29
interim control order has the same meaning as in Part 5.3 of the
30
Criminal Code.
31
Schedule 9 Telecommunications interception
Part 1 Amendments
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
2 Subsection 5(1) (subparagraph (b)(vi) of the definition of
1
permitted purpose)
2
Repeal the subparagraph, substitute:
3
(vi) a preventative detention order law; or
4
3 Subsection 5(1) (at the end of paragraph (c) of the
5
definition of permitted purpose)
6
Add:
7
(vi) the performance of a function or duty, or the exercise of
8
a power, by a person, court or other body under, or in
9
relation to a matter arising under, Division 104 of the
10
Criminal Code (Control orders); or
11
(vii) a preventative detention order law; or
12
4 Subsection 5(1) (definition of preventative detention order)
13
Repeal the definition.
14
5 Subsection 5(1)
15
Insert:
16
preventative detention order law means:
17
(a) Division 105 of the Criminal Code; or
18
(b) Part 2A of the Terrorism (Police Powers) Act 2002 (NSW);
19
or
20
(c) Part 2A of the Terrorism (Community Protection) Act 2003
21
(Vic.); or
22
(d) the Terrorism (Preventative Detention) Act 2005 (Qld); or
23
(e) the Terrorism (Preventative Detention) Act 2006 (WA); or
24
(f) the Terrorism (Preventative Detention) Act 2005 (SA); or
25
(g) the Terrorism (Preventative Detention) Act 2005 (Tas.); or
26
(h) Part 2 of the Terrorism (Extraordinary Temporary Powers)
27
Act 2006 (ACT); or
28
(i) Part 2B of the Terrorism (Emergency Powers) Act (NT).
29
Note:
For when a purpose is connected with a preventative detention order
30
law, see the definition of connected with.
31
succeeding control order has the meaning given by section 6U.
32
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Amendments Part 1
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
59
terrorist act has the same meaning as in Part 5.3 of the Criminal
1
Code.
2
6 Paragraph 5B(1)(bc)
3
Repeal the paragraph, substitute:
4
(bc) a proceeding under, or a proceeding relating to a matter
5
arising under, a preventative detention order law, so far as the
6
proceeding relates to a preventative detention order (within
7
the meaning of that law); or
8
7 Paragraph 6H(a)
9
After "46(1)(c) and (d)", insert "or 46(4)(c), (d) and (e), as the case
10
requires".
11
8 Paragraph 6H(b)
12
Omit "or 46A(1)(c) and (d)", substitute ", 46(4)(c), (d) and (e),
13
46A(1)(c) and (d) or 46A(2A)(c), (d) and (e)".
14
9 At the end of Part 1-2
15
Add:
16
6T When control order is taken to be in force
17
For the purposes of this Act, if:
18
(a) a control order has been made in relation to a person; and
19
(b) apart from this section, the control order has not come into
20
force because it has not been served on the person;
21
the control order is taken to be in force.
22
6U Succeeding control orders
23
If 2 or more successive control orders are made in relation to the
24
same person, each later control order is a succeeding control order
25
in relation to each earlier control order.
26
10 Subsection 7(9) (note)
27
Repeal the note, substitute:
28
Note:
See subsection (6). A Part 2-5 warrant can only be issued for:
29
(a) the purposes of an investigation relating to the commission of
30
one or more serious offences; or
31
Schedule 9 Telecommunications interception
Part 1 Amendments
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(b) purposes relating to a control order.
1
11 At the end of section 34
2
Add:
3
Note:
The declaration may also authorise the eligible authority to apply for
4
control order warrants: see section 38A.
5
12 Paragraph 35(1)(a)
6
Omit "sections 80 and 81", substitute "section 80 (other than paragraphs
7
80(f) and (g)) and section 81 (other than paragraph 81(1)(h), and
8
subsection 81(2), so far as that subsection relates to
9
paragraph 81(1)(h))".
10
13 At the end of Division 2 of Part 2-5
11
Add:
12
38A Agencies authorised to apply for control order warrants
13
(1) This section applies to a declaration made under section 34 in
14
relation to an eligible authority of a State.
15
Authorisation
16
(2) When the Minister makes the declaration, the Minister must, in the
17
declaration, authorise the eligible authority to apply for control
18
order warrants if:
19
(a) the Premier of the State requests that the eligible authority be
20
so authorised; and
21
(b) the Minister is satisfied as mentioned in subsection (4) of this
22
section.
23
(3) The Minister must amend the declaration to authorise the eligible
24
authority to apply for control order warrants if:
25
(a) the declaration does not already so authorise the eligible
26
authority; and
27
(b) the Premier of the State requests that the eligible authority be
28
so authorised; and
29
(c) the Minister is satisfied as mentioned in subsection (4).
30
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61
Criteria to be authorised to apply for a control order warrant
1
(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be
2
satisfied that the law of the State makes satisfactory provision:
3
(a) imposing on the chief officer of the eligible authority
4
requirements corresponding to the requirements that
5
paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2),
6
so far as that subsection relates to paragraph 81(1)(h), impose
7
on the chief officer of a Commonwealth agency; and
8
(b) imposing on the chief officer of the eligible authority
9
requirements corresponding to the requirements that
10
section 59B imposes on the chief officer of a Commonwealth
11
agency; and
12
(c) giving an authority of the State powers corresponding to
13
those that subsections 83(3) and 84(2) and sections 85 and
14
85A give to the Ombudsman, if the authority of the State
15
receives a notice from the eligible authority because of the
16
requirements mentioned in paragraph (b) of this subsection;
17
and
18
(d) requiring an authority of the State that has made an
19
inspection of the eligible authority's records under the
20
powers mentioned in paragraph (c) to report in writing to the
21
responsible Minister about the results of the inspection; and
22
(e) requiring the responsible Minister to give to the Minister, as
23
soon as practicable, a copy of a report that an authority of the
24
State gives to the responsible Minister under a power or
25
requirement mentioned in paragraph (c) or (d).
26
Removal of authorisation
27
(5) The Minister must amend the declaration to remove the
28
authorisation of the eligible authority to apply for control order
29
warrants if the Premier of the State requests the Minister to remove
30
the authorisation.
31
(6) The Minister may amend the declaration to remove the
32
authorisation of the eligible authority to apply for control order
33
warrants if the Minister is satisfied that:
34
(a) the law of the State no longer makes satisfactory provision in
35
relation to the eligible authority as mentioned in
36
subsection (4); or
37
Schedule 9 Telecommunications interception
Part 1 Amendments
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(b) the extent of compliance with a requirement of a law of that
1
State, being a requirement of a kind mentioned in
2
subsection (4), has been unsatisfactory in so far as the
3
requirement relates to the eligible authority; or
4
(c) the extent of compliance by the chief officer of the eligible
5
authority, or by officers of the eligible authority, with this
6
Act has been unsatisfactory, so far as this Act relates to
7
control order warrants.
8
(7) If the Minister amends the declaration under subsection (5) or (6),
9
the amendment does not affect the validity of a control order
10
warrant issued before the amendment in response to an application
11
by the eligible authority.
12
14 At the end of paragraph 44A(2)(a)
13
Add "or 46(5)(a) to (f), as the case requires".
14
15 At the end of paragraph 44A(2)(b)
15
Add "or 46A(2B)(a) to (f), as the case requires".
16
16 At the end of paragraph 45(2)(a)
17
Add "or 46(5)(a) to (f), as the case requires".
18
17 At the end of paragraph 45(2)(b)
19
Add "or 46A(2B)(a) to (f), as the case requires".
20
18 Before subsection 46(1)
21
Insert:
22
Warrant relating to the investigation of one or more serious
23
offences
24
19 Subsection 46(2)
25
Omit "The matters", substitute "For the purposes of subsection (1), the
26
matters".
27
20 Subsection 46(3)
28
After "warrant", insert "under subsection (1)".
29
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21 At the end of section 46
1
Add:
2
Control order warrant
3
(4) If a control order warrant agency applies to an eligible Judge or
4
nominated AAT member for a warrant in respect of a
5
telecommunications service and the Judge or nominated AAT
6
member is satisfied, on the basis of the information given to the
7
Judge or nominated AAT member under this Part in connection
8
with the application, that:
9
(a) Division 3 has been complied with in relation to the
10
application; and
11
(b) in the case of a telephone application--because of urgent
12
circumstances, it was necessary to make the application by
13
telephone; and
14
(c) there are reasonable grounds for suspecting that a particular
15
person is using, or is likely to use, the service; and
16
(d) either:
17
(i) a control order is in force in relation to the particular
18
person; or
19
(ii) a control order is in force in relation to another person,
20
and the particular person is likely to communicate with
21
the other person using the service; and
22
(e) information that would be likely to be obtained by
23
intercepting under a warrant communications made to or
24
from the service would be likely to substantially assist in
25
connection with:
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; and
35
(f) having regard to the matters referred to in subsection (5), and
36
to no other matters, the Judge or nominated AAT member
37
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should issue a warrant authorising such communications to
1
be intercepted;
2
the Judge or nominated AAT member may, in his or her discretion,
3
issue such a warrant.
4
Note 1:
Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii)
5
applies.
6
Note 2:
For control orders that have been made but not come into force, see
7
section 6T.
8
(5) For the purposes of subsection (4), the matters to which the Judge
9
or nominated AAT member must have regard are:
10
(a) how much the privacy of any person or persons would be
11
likely to be interfered with by intercepting under a warrant
12
communications made to or from the service referred to in
13
subsection (4); and
14
(b) how much the information referred to in paragraph (4)(e)
15
would be likely to assist in 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; or
22
(iv) determining whether the control order, or any
23
succeeding control order, has been, or is being,
24
complied with; and
25
(c) to what extent methods 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 so intercepting communications have
36
been used by, or are available to, the agency; and
37
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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) whether intercepting under a warrant communications made
24
to or from the service referred to in subsection (4) would be
25
the method that is likely to have the least interference with
26
any person's privacy; and
27
(g) the possibility that the person in relation to whom the control
28
order is in force:
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
(iv) has provided, is providing, or will provide, support for
36
the engagement in a hostile activity in a foreign country;
37
or
38
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(v) has facilitated, is facilitating, or will facilitate, the
1
engagement in a hostile activity in a foreign country; or
2
(vi) has contravened, is contravening, or will contravene, the
3
control order; or
4
(vii) will contravene a succeeding control order; and
5
(h) in relation to an application by an interception agency of
6
Victoria--any submissions made by the Victorian PIM under
7
section 44A to the Judge or nominated AAT member; and
8
(i) in relation to an application by an interception agency of
9
Queensland--any submissions made by the Queensland PIM
10
under section 45 to the Judge or nominated AAT member.
11
(6) The Judge or nominated AAT member must not issue a warrant in
12
a case in which subparagraph (4)(d)(ii) applies unless he or she is
13
satisfied that:
14
(a) the agency has exhausted all other practicable methods of
15
identifying the telecommunications services used, or likely to
16
be used, by the person to whom the control order referred to
17
in subparagraph (4)(d)(ii) relates; or
18
(b) interception of communications made to or from a
19
telecommunications service used or likely to be used by that
20
person would not otherwise be possible.
21
22 Before subsection 46A(1)
22
Insert:
23
Warrant relating to the investigation of one or more serious
24
offences
25
23 Subsection 46A(2)
26
Omit "The matters", substitute "For the purposes of subsection (1), the
27
matters".
28
24 After subsection 46A(2)
29
Insert:
30
Control order warrant
31
(2A) If a control order warrant agency applies to an eligible Judge or
32
nominated AAT member for a warrant in respect of a person and
33
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the Judge or nominated AAT member is satisfied, on the basis of
1
the information given to the Judge or nominated AAT member
2
under this Part in connection with the application, that:
3
(a) Division 3 has been complied with in relation to the
4
application; and
5
(b) in the case of a telephone application--because of urgent
6
circumstances, it was necessary to make the application by
7
telephone; and
8
(c) there are reasonable grounds for suspecting that a particular
9
person is using, or is likely to use, more than one
10
telecommunications service; and
11
(d) a control order is in force in relation to the person; and
12
(e) information that would be likely to be obtained by
13
intercepting under a warrant:
14
(i) communications made to or from any
15
telecommunications service that the person is using, or
16
is likely to use; or
17
(ii) communications made by means of a particular
18
telecommunications device or particular
19
telecommunications devices that the person is using, or
20
is likely to use;
21
would be likely to substantially assist in connection with:
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, or any
29
succeeding control order, has been, or is being,
30
complied with; and
31
(f) having regard to the matters referred to in subsection (2B),
32
and to no other matters, the Judge or nominated AAT
33
member should issue a warrant authorising such
34
communications to be intercepted;
35
the Judge or nominated AAT member may, in his or her discretion,
36
issue such a warrant.
37
Note 1:
Subsection (3) restricts the issuing of a warrant authorising
38
interception of communications made by means of a
39
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No. , 2016
telecommunications device or telecommunications devices identified
1
in the warrant.
2
Note 2:
For control orders that have been made but not come into force, see
3
section 6T.
4
(2B) For the purposes of subsection (2A), the matters to which the Judge
5
or nominated AAT member must have regard are:
6
(a) how much the privacy of any person or persons would be
7
likely to be interfered with by intercepting under a warrant:
8
(i) communications made to or from any
9
telecommunications service used, or likely to be used,
10
by the person in respect of whom the warrant is sought;
11
or
12
(ii) communications made by means of a particular
13
telecommunications device or particular
14
telecommunications devices used, or likely to be used,
15
by the person in respect of whom the warrant is sought;
16
as the case requires; and
17
(b) how much the information referred to in paragraph (2A)(e)
18
would be likely to assist in connection with:
19
(i) the protection of the public from a terrorist act; or
20
(ii) preventing the provision of support for, or the
21
facilitation of, a terrorist act; or
22
(iii) preventing the provision of support for, or the
23
facilitation of, the engagement in a hostile activity in a
24
foreign country; or
25
(iv) determining whether the control order, or any
26
succeeding control order, has been, or is being,
27
complied with; and
28
(c) to what extent methods (including the use of a warrant issued
29
under section 46) for:
30
(i) the protection of the public from a terrorist act; or
31
(ii) preventing the provision of support for, or the
32
facilitation of, a terrorist act; or
33
(iii) preventing the provision of support for, or the
34
facilitation of, the engagement in a hostile activity in a
35
foreign country; or
36
(iv) determining whether the control order, or any
37
succeeding control order, has been, or is being,
38
complied with;
39
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that do not involve the use of a warrant issued under this
1
section in relation to the person have been used by, or are
2
available to, the agency; and
3
(d) how much the use of such methods would be likely to assist
4
in connection with:
5
(i) the protection of the public from a terrorist act; or
6
(ii) preventing the provision of support for, or the
7
facilitation of, a terrorist act; or
8
(iii) preventing the provision of support for, or the
9
facilitation of, the engagement in a hostile activity in a
10
foreign country; or
11
(iv) determining whether the control order, or any
12
succeeding control order, has been, or is being,
13
complied with; and
14
(e) how much the use of such methods would be likely to
15
prejudice:
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; or
22
(iv) determining whether the control order, or any
23
succeeding control order, has been, or is being,
24
complied with;
25
whether because of delay or for any other reason; and
26
(f) whether intercepting under a warrant communications
27
referred to in paragraph (a) of this subsection would be the
28
method that is likely to have the least interference with any
29
person's privacy; and
30
(g) the possibility that the person in relation to whom the control
31
order is in force:
32
(i) has engaged, is engaging, or will engage, in a terrorist
33
act; or
34
(ii) has provided, is providing, or will provide, support for a
35
terrorist act; or
36
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
37
act; or
38
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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
(h) in relation to an application by an interception agency of
9
Victoria--any submissions made by the Victorian PIM under
10
section 44A to the Judge or nominated AAT member; and
11
(i) in relation to an application by an interception agency of
12
Queensland--any submissions made by the Queensland PIM
13
under section 45 to the Judge or nominated AAT member.
14
25 Before subsection 46A(3)
15
Insert:
16
Restriction on issue of warrant--interception of communications
17
made by means of one or more telecommunications devices
18
26 At the end of subsection 48(1)
19
Add:
20
Note:
Only a control order warrant agency may apply for a warrant under
21
section 46 in the circumstances mentioned in subsection 46(4).
22
27 At the end of subparagraph 48(3)(d)(ii)
23
Add "or, in the case of a warrant issued in the circumstances mentioned
24
in subsection 46(4), might jeopardise the achievement of an objective
25
for which the warrant was issued".
26
28 Paragraph 49(3)(a)
27
After "46(1)(d)(ii)", insert "or 46(4)(d)(ii)".
28
29 Subsection 49(7)
29
After "A warrant", insert "issued under subsection 46(1) or 46A(1), or
30
issued under section 48 in the circumstances mentioned in
31
subsection 46(1),".
32
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30 At the end of section 49
1
Add:
2
(8) A control order warrant must:
3
(a) state that the warrant is issued on the basis of a control order
4
made in relation to a person; and
5
(b) specify the name of the person; and
6
(c) specify the date the control order was made; and
7
(d) state whether the control order is an interim control order or a
8
confirmed control order.
9
31 At the end of section 57
10
Add:
11
(6) For the purposes of the application of subsection (1) to a control
12
order warrant issued on the ground that a control order was in
13
force, that ground is taken to have ceased to exist if, and only if,
14
neither that control order, nor any succeeding control order, is in
15
force.
16
32 After section 59A
17
Insert:
18
59B Notification to Ombudsman by Commonwealth agencies in
19
relation to control order warrants
20
(1) Within 6 months after a control order warrant is issued in response
21
to an application by a Commonwealth agency, the chief officer of
22
the agency must:
23
(a) notify the Ombudsman that the warrant has been issued; and
24
(b) give to the Ombudsman a copy of the warrant.
25
(2) As soon as practicable after an officer of a Commonwealth agency
26
contravenes any of the following conditions, restrictions or
27
provisions, the chief officer of the agency must notify the
28
Ombudsman of the contravention:
29
(a) a condition or restriction specified in a control order warrant
30
under subsection 49(2);
31
(b) paragraph 57(1)(b), to the extent it applies to a control order
32
warrant;
33
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(c) subsection 63(1), to the extent it applies to lawfully
1
intercepted information obtained under a control order
2
warrant;
3
(d) subsection 63(2), to the extent it applies to interception
4
warrant information that relates to a control order warrant;
5
(e) section 79, to the extent it applies to a restricted record
6
obtained under a control order warrant;
7
(f) section 79AA;
8
(g) subsection 103B(4).
9
(3) A failure to comply with subsection (1) or (2) does not affect the
10
validity of a control order warrant.
11
33 Subsections 63(1) and (2)
12
After "to this Part", insert "and section 299".
13
34 Section 65A
14
Repeal the section, substitute:
15
65A Employee of carrier may communicate information to agency
16
(1) An employee of a carrier may, for a purpose or purposes set out in
17
subsection (2), and for no other purpose, communicate to an officer
18
of an agency:
19
(a) lawfully intercepted information other than foreign
20
intelligence information; or
21
(b) interception warrant information.
22
(2) The purposes are purposes connected with:
23
(a) the investigation by the agency of a serious offence; or
24
(b) any of the following:
25
(i) the protection of the public from a terrorist act;
26
(ii) preventing the provision of support for, or the
27
facilitation of, a terrorist act;
28
(iii) preventing the provision of support for, or the
29
facilitation of, the engagement in a hostile activity in a
30
foreign country;
31
(iv) determining whether a control order has been, or is
32
being, complied with;
33
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(v) the performance of a function or duty, or the exercise of
1
a power, by a person, court or other body under, or in
2
relation to a matter arising under, Division 104 of the
3
Criminal Code (Control orders);
4
(vi) a preventative detention order law.
5
35 Subsection 67(1B)
6
Repeal the subsection, substitute:
7
(1B) However, an officer or staff member of an agency may
8
communicate to another person, make use of, or make a record of
9
information mentioned in paragraph (1A)(a), (b) or (c) for a
10
purpose or purposes set out in subsection (1C), and for no other
11
purpose, if the information has not been communicated to an
12
officer of the agency under section 68.
13
(1C) The purposes are purposes connected with:
14
(a) if the warrant under which the information was obtained
15
relates to an investigation--the investigation; or
16
(b) if the information was obtained under a control order
17
warrant--any of the following:
18
(i) the protection of the public from a terrorist act;
19
(ii) preventing the provision of support for, or the
20
facilitation of, a terrorist act;
21
(iii) preventing the provision of support for, or the
22
facilitation of, the engagement in a hostile activity in a
23
foreign country;
24
(iv) determining whether the control order has been, or is
25
being, complied with;
26
(v) the performance of a function or duty, or the exercise of
27
a power, by a person, court or other body under, or in
28
relation to a matter arising under, Division 104 of the
29
Criminal Code;
30
(vi) a preventative detention order law.
31
36 Section 79 (heading)
32
Repeal the heading, substitute:
33
Schedule 9 Telecommunications interception
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
79 Destruction of restricted records that are not likely to be
1
required for a permitted purpose
2
37 After section 79
3
Insert:
4
79AA Destruction of restricted records--information obtained
5
before a control order came into force
6
(1) If:
7
(a) a restricted record is in the possession of an agency; and
8
(b) the restricted record relates to an interception authorised by a
9
control order warrant; and
10
(c) the warrant was issued for the purpose, or for purposes that
11
include the purpose, of obtaining information that would be
12
likely to assist in connection with determining whether the
13
relevant control order, or any succeeding control order, has
14
been, or is being, complied with; and
15
(d) the interception occurred when the control order had been
16
made, but had not come into force because it had not been
17
served on the person to whom it relates; and
18
(e) the chief officer of the agency is satisfied that none of the
19
information obtained by the interception is likely to assist in
20
connection with:
21
(i) the protection of the public from a terrorist act; or
22
(ii) preventing the provision of support for, or the
23
facilitation of, a terrorist act; or
24
(iii) preventing the provision of support for, or the
25
facilitation of, the engagement in a hostile activity in a
26
foreign country;
27
the chief officer of the agency must cause the restricted record to
28
be destroyed as soon as practicable.
29
(2) Section 6T does not apply to subsection (1) of this section.
30
38 At the end of section 80
31
Add:
32
; and (f) a copy of each advice the chief officer gives to the Minister
33
under subsection 103B(2) or paragraph 103B(4)(b); and
34
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75
(g) each notice the chief officer receives from the Minister under
1
paragraph 103B(3)(a) or (5)(a).
2
39 After paragraph 81(1)(g)
3
Insert:
4
; and (h) particulars of each reconsideration by the chief officer under
5
paragraph 103B(4)(a) that does not result in the chief officer
6
giving advice under paragraph 103B(4)(b);
7
40 Paragraph 81A(2)(g)
8
Before "each", insert "in the case of a warrant issued under
9
subsection 46(1) or 46A(1), or issued under section 48 in the
10
circumstances mentioned in subsection 46(1)--".
11
41 At the end of subsection 81A(2)
12
Add:
13
; and (h) in the case of a control order warrant--the name of the
14
person to whom the relevant control order relates.
15
42 Paragraph 81C(2)(g)
16
Before "each", insert "in the case of a warrant issued under
17
subsection 46(1) or 46A(1), or issued under section 48 in the
18
circumstances mentioned in subsection 46(1)--".
19
43 At the end of subsection 81C(2)
20
Add:
21
; (h) in the case of a control order warrant--the name of the
22
person to whom the relevant control order relates.
23
44 Subsections 83(1) and (2)
24
After "79,", insert "79AA,".
25
45 At the end of section 83
26
Add:
27
(3) The Ombudsman may inspect a Commonwealth agency's records
28
in order to ascertain the extent to which officers of the agency have
29
complied during any period with the conditions, restrictions and
30
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provisions mentioned in subsection 59B(2) (about control order
1
warrants) if:
2
(a) the chief officer of the agency notifies the Ombudsman under
3
that subsection of a contravention of any of those conditions,
4
restrictions or provisions; and
5
(b) the contravention occurred in that period.
6
46 Subsection 84(1)
7
Omit "subsection 83(1)", substitute "subsections 83(1) and (3)".
8
47 Section 85
9
Repeal the section, substitute:
10
85 Ombudsman may report on other breaches of this Act
11
(1) If, as a result of an inspection under this Part of the records of an
12
agency, the Ombudsman is of the opinion that an officer of the
13
agency has contravened a provision of this Act, the Ombudsman
14
may include in his or her report on the inspection a report on the
15
contravention.
16
(2) To avoid doubt, for the purposes of subsection (1), a contravention
17
of a condition or restriction specified in a warrant issued under this
18
Act is a contravention of a provision of this Act.
19
(3) Subsection (1) does not apply to a contravention of section 79,
20
79AA, 80 or 81.
21
85A Annual report may cover notified breaches in relation to
22
control order warrants
23
(1) In a report under subsection 84(1) in relation to a financial year,
24
the Ombudsman may include a report on a contravention of which
25
the Ombudsman is notified under subsection 59B(2) (about control
26
order warrants), if the Ombudsman does not conduct an inspection
27
under subsection 83(3) in relation to a period during which the
28
contravention occurred.
29
Note:
If the Ombudsman conducts an inspection under subsection 83(3), the
30
relevant report under subsection 84(1):
31
(a) must include the matters mentioned in subsection 84(1A) in
32
relation to the inspection; and
33
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(b) may include other information about contraventions of this Act
1
(see section 85).
2
(2) For the purposes of subsection (1), it does not matter whether the
3
Ombudsman is notified under subsection 59B(2) before, during or
4
after the financial year to which the report relates.
5
(3) Subsection (1) does not limit what the Ombudsman may include in
6
a report under section 84 or 85.
7
48 Subparagraph 103(ae)(i)
8
Omit "required under subsection 84(1A) to be".
9
49 At the end of Division 2 of Part 2-8
10
Add:
11
103B Deferral of inclusion of information in report
12
Scope
13
(1) This section applies to information:
14
(a) included in a report submitted to the Minister:
15
(i) under section 84 by the Ombudsman in relation to a
16
Commonwealth agency; or
17
(ii) under section 94 by the chief officer of a
18
Commonwealth agency; or
19
(iii) under section 96 by the chief officer of an eligible
20
authority of a State; and
21
(b) that the Minister would, apart from this section, be required
22
to include in the next Ministerial report.
23
Exclusion of information
24
(2) If the chief officer of the Commonwealth agency or eligible
25
authority is satisfied that the information is control order
26
information, the chief officer must advise the Minister in writing
27
not to include the information in the next Ministerial report.
28
(3) If the Minister is satisfied, on the advice of the chief officer, that
29
the information is control order information, the Minister must:
30
(a) notify the chief officer in writing; and
31
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Part 1 Amendments
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(b) not include the information in any Ministerial report until the
1
Minister decides otherwise under subsection (5).
2
Inclusion of information in subsequent report
3
(4) If the information has not been included in a Ministerial report
4
because of subsection (3), the chief officer must, before the
5
Minister prepares the next Ministerial report:
6
(a) reconsider whether the information is control order
7
information; and
8
(b) if the chief officer is satisfied that the information is not
9
control order information--advise the Minister in writing to
10
include the information in the next Ministerial report.
11
(5) If the Minister is satisfied, on the advice of the chief officer, that
12
the information is not control order information, the Minister must:
13
(a) notify the chief officer in writing; and
14
(b) include the information in the next Ministerial report.
15
Definitions
16
(6) In this section:
17
control order information means information that, if made public,
18
could reasonably be expected to enable a reasonable person to
19
conclude that:
20
(a) a control order warrant is likely to be, or is not likely to be, in
21
force in relation to a telecommunications service used, or
22
likely to be used, by a particular person; or
23
(b) a control order warrant is likely to be, or is not likely to be, in
24
force in relation to a particular person.
25
Ministerial report means a report the Minister prepares under this
26
Division.
27
50 At the end of subsection 133(2)
28
Add "or section 299".
29
51 Subsection 139(1)
30
After "139A(2)", insert "or 139B(2)".
31
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52 Subsection 139A(1)
1
After "139(2)", insert "or (4A) or 139B(2)".
2
53 After section 139A
3
Insert:
4
139B Dealing for purposes relating to control orders and
5
preventative detention orders
6
(1) An officer or staff member of:
7
(a) the Australian Federal Police; or
8
(b) the Police Force of a State or Territory;
9
may, for one or more purposes referred to in subsection (2), and for
10
no other purpose (other than a purpose referred to in
11
subsection 139(2) or (4A) or 139A(2), if applicable), communicate
12
to another person, make use of, or make a record of lawfully
13
accessed information other than foreign intelligence information.
14
(2) The purposes are purposes connected with:
15
(a) the performance of a function or duty, or the exercise of a
16
power, by a person, court or other body under, or in relation
17
to a matter arising under, Division 104 of the Criminal Code
18
(Control orders); or
19
(b) a preventative detention order law.
20
54 Section 142
21
Omit "or 139A", substitute ", 139A or 139B".
22
55 Paragraph 150(1)(b)
23
Omit "or 139A(2)", substitute "or (4A), 139A(2) or 139B(2)".
24
56 Chapter 6 (heading)
25
Repeal the heading, substitute:
26
Chapter 6--Miscellaneous
27
57 Part 6-1 (heading)
28
Repeal the heading, substitute:
29
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Part 1 Amendments
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No. , 2016
Part 6-1--Miscellaneous
1
58 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 connected with a
16
preventative detention order law.
17
Definition
18
(3) In this section:
19
serious harm has the same meaning as in the Criminal Code.
20
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Part 2 Transitional provisions
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Part 2--Transitional provisions
1
59 Agencies authorised to apply for control order warrants
2
(1)
This item applies to a declaration that, at the commencement of this
3
item, is in force under section 34 of the Telecommunications
4
(Interception and Access) Act 1979 in relation to an eligible authority of
5
a State.
6
(2)
The declaration is taken, at that commencement, to authorise the
7
eligible authority to apply for control order warrants, as mentioned in
8
section 38A of that Act, as amended by this Schedule.
9
(3)
Paragraph 38A(6)(a) of that Act, as amended by this Schedule, does not
10
apply in relation to the authorisation mentioned in subitem (2) of this
11
item, until 18 months after that commencement.
12
60 Validation of dealing with information
--preventative
13
detention orders
14
(1)
If:
15
(a) before the commencement of this item, an officer or staff
16
member of an agency communicated to another person, made
17
use of, or made a record of, information; and
18
(b) apart from this item, the officer or staff member would have
19
contravened section 63 of the Telecommunications
20
(Interception and Access) Act 1979 by communicating, using
21
or recording that information; and
22
(c) the officer or staff member would not have contravened that
23
section if subparagraph (c)(vii) of the definition of permitted
24
purpose in subsection 5(1) of that Act, as amended by this
25
Schedule, had been in force;
26
the communicating, using or recording the information is taken to have
27
been done in accordance with section 67 of that Act.
28
Note:
A result of this subitem is that the officer or staff member is taken not to have
29
contravened section 63 of that Act.
30
(2)
If:
31
(a) before the commencement of this item, a person gave
32
information in evidence in a proceeding; and
33
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83
(b) apart from this item, the person would have contravened
1
section 63 of the Telecommunications (Interception and
2
Access) Act 1979 by giving the information in evidence; and
3
(c) section 74 of that Act (about exempt proceedings) would
4
have permitted the person to give the information in evidence
5
in the proceeding if paragraph 5B(1)(bc) of that Act, as
6
amended by this Schedule, had been in force; and
7
(d) the relevant court, tribunal, person or body admitted the
8
information in evidence in the proceeding;
9
section 74 of that Act is treated as having permitted the person to give
10
the information in evidence in the proceeding.
11
Note:
A result of this subitem is that the person is taken not to have contravened section 63 of
12
that Act.
13
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
85
(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 information has the meaning given by
31
subsection 50A(6).
32
control order warrant means a surveillance device warrant issued
33
in response to an application under subsection 14(3C).
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
engage in a hostile activity has the same meaning as in Part 5.3 of
1
the Criminal Code.
2
foreign country, when used in the expression hostile activity in a
3
foreign country, has the same meaning as in the Criminal Code.
4
interim control order has the same meaning as in Part 5.3 of the
5
Criminal Code.
6
preventative detention order law means:
7
(a) Division 105 of the Criminal Code; or
8
(b) Part 2A of the Terrorism (Police Powers) Act 2002 (NSW);
9
or
10
(c) Part 2A of the Terrorism (Community Protection) Act 2003
11
(Vic.); or
12
(d) the Terrorism (Preventative Detention) Act 2005 (Qld); or
13
(e) the Terrorism (Preventative Detention) Act 2006 (WA); or
14
(f) the Terrorism (Preventative Detention) Act 2005 (SA); or
15
(g) the Terrorism (Preventative Detention) Act 2005 (Tas.); or
16
(h) Part 2 of the Terrorism (Extraordinary Temporary Powers)
17
Act 2006 (ACT); or
18
(i) Part 2B of the Terrorism (Emergency Powers) Act (NT).
19
4 Subsection 6(1) (at the end of paragraph (o) of the
20
definition of relevant proceeding)
21
Add "or".
22
5 Subsection 6(1) (at the end of the definition of relevant
23
proceeding)
24
Add:
25
; or (q) a proceeding under, or a proceeding relating to a matter
26
arising under, Division 104 of the Criminal Code (Control
27
orders); or
28
(r) a proceeding under, or a proceeding relating to a matter
29
arising under, a preventative detention order law, so far as the
30
proceeding relates to a preventative detention order (within
31
the meaning of that preventative detention order law).
32
6 Subsection 6(1)
33
Insert:
34
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
87
succeeding control order has the meaning given by section 6D.
1
terrorist act has the same meaning as in Part 5.3 of the Criminal
2
Code.
3
7 After section 6B
4
Insert:
5
6C When control order is taken to be in force
6
For the purposes of this Act, if:
7
(a) a control order has been made in relation to a person; and
8
(b) apart from this section, the control order has not come into
9
force because it has not been served on the person;
10
the control order is taken to be in force.
11
6D Succeeding control orders
12
If 2 or more successive control orders are made in relation to the
13
same person, each later control order is a succeeding control order
14
in relation to each earlier control order.
15
8 After subsection 14(3B)
16
Insert:
17
Control order warrants
18
(3C) A law enforcement officer (or another person on his or her behalf)
19
may apply for the issue of a surveillance device warrant if:
20
(a) a control order is in force in relation to a person; and
21
(b) the law enforcement officer suspects on reasonable grounds
22
that the use of a surveillance device to obtain information
23
relating to the person would be likely to substantially assist
24
in:
25
(i) protecting the public from a terrorist act; or
26
(ii) preventing the provision of support for, or the
27
facilitation of, a terrorist act; or
28
(iii) preventing the provision of support for, or the
29
facilitation of, the engagement in a hostile activity in a
30
foreign country; or
31
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(iv) determining whether the control order, or any
1
succeeding control order, has been, or is being,
2
complied with.
3
Note:
For control orders that have been made but not come into force, see
4
section 6C.
5
9 Subsection 14(4)
6
Omit "or (3B)", substitute ", (3B) or (3C)".
7
10 Paragraph 14(6)(a)
8
After "(3)(b)", insert ", or would be likely to substantially assist as
9
described in paragraph (3C)(b)".
10
11 After paragraph 16(1)(bb)
11
Insert:
12
(bc) in the case of a control order warrant--that a control order is
13
in force in relation to a person, and that the use of a
14
surveillance device to obtain information relating to the
15
person would be likely to substantially assist in:
16
(i) protecting 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; or
22
(iv) determining whether the control order, or any
23
succeeding control order, has been, or is being,
24
complied with; and
25
12 At the end of subsection 16(1)
26
Add:
27
Note:
For control orders that have been made but not come into force, see
28
section 6C.
29
13 After paragraph 16(2)(ea)
30
Insert:
31
(eb) in the case of a control order warrant issued on the basis of a
32
control order that is in force in relation to a person--the
33
likely value of the information sought to be obtained, in:
34
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
89
(i) protecting the public from a terrorist act; or
1
(ii) preventing the provision of support for, or the
2
facilitation of, a terrorist act; or
3
(iii) preventing the provision of support for, or the
4
facilitation of, the engagement in a hostile activity in a
5
foreign country; or
6
(iv) determining whether the control order, or any
7
succeeding control order, has been, or is being,
8
complied with; and
9
(ec) in the case of a control order warrant issued on the basis of a
10
control order that is in force in relation to a person--whether
11
the use of the surveillance device in accordance with the
12
warrant would be the means of obtaining the evidence or
13
information sought to be obtained, that is likely to have the
14
least interference with any person's privacy; and
15
(ed) in the case of a control order warrant issued on the basis of a
16
control order that is in force in relation to a person--the
17
possibility that the person:
18
(i) has engaged, is engaging, or will engage, in a terrorist
19
act; or
20
(ii) has provided, is providing, or will provide, support for a
21
terrorist act; or
22
(iii) has facilitated, is facilitating, or will facilitate, a terrorist
23
act; or
24
(iv) has provided, is providing, or will provide, support for
25
the engagement in a hostile activity in a foreign country;
26
or
27
(v) has facilitated, is facilitating, or will facilitate, the
28
engagement in a hostile activity in a foreign country; or
29
(vi) has contravened, is contravening, or will contravene, the
30
control order; or
31
(vii) will contravene a succeeding control order; and
32
14 Paragraph 16(2)(f)
33
Before "any", insert "in the case of a warrant sought in relation to a
34
relevant offence or a recovery order--".
35
15 At the end of subsection 16(2)
36
Add:
37
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
; and (g) in the case of a control order warrant issued on the basis of a
1
control order that is in force in relation to a person--any
2
previous control order warrant sought or issued on the basis
3
of a control order relating to the person.
4
16 After subsection 17(1)
5
Insert:
6
(1AA) If a control order warrant is issued on the basis of a control order
7
that is in force in relation to a person, the warrant must also specify
8
the following details in relation to the control order:
9
(a) the name of the person;
10
(b) the date the control order was made;
11
(c) whether the control order is an interim control order or a
12
confirmed control order.
13
17 Subsection 20(2)
14
Omit "or 21(3B)(a) and (b)", substitute ", 21(3B)(a) and (b), 21(3C)(a)
15
and (b) or 21(3D)(a) and (b)".
16
18 After subsection 21(3B)
17
Insert:
18
(3C) If:
19
(a) the surveillance device warrant is a control order warrant
20
issued on the basis of a control order that was in force in
21
relation to a person; and
22
(b) the chief officer of the law enforcement agency to which the
23
law enforcement officer belongs or is seconded is satisfied
24
that the use of a surveillance device under the warrant to
25
obtain information relating to the person is no longer required
26
for any of the following purposes:
27
(i) protecting the public from a terrorist act;
28
(ii) preventing the provision of support for, or the
29
facilitation of, a terrorist act;
30
(iii) preventing the provision of support for, or the
31
facilitation of, the engagement in a hostile activity in a
32
foreign country;
33
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
91
(iv) determining whether the control order, or any
1
succeeding control order, has been, or is being,
2
complied with;
3
the chief officer must, in addition to revoking the warrant under
4
section 20, take the steps necessary to ensure that use of the
5
surveillance device authorised by the warrant is discontinued as
6
soon as practicable.
7
(3D) If:
8
(a) the surveillance device warrant is a control order warrant
9
issued on the basis of a control order that was in force in
10
relation to a person; and
11
(b) no control order is in force in relation to the person;
12
the chief officer must, in addition to revoking the warrant under
13
section 20, take the steps necessary to ensure that use of the
14
surveillance device authorised by the warrant is discontinued as
15
soon as practicable.
16
19 At the end of section 37
17
Add:
18
(4) If a control order is in force in relation to a person, a State or
19
Territory law enforcement officer acting in the course of his or her
20
duties may, without warrant, use an optical surveillance device to
21
obtain information about the activities of the person for any of the
22
following purposes:
23
(a) protecting 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 control order has been, or is being,
29
complied with;
30
if the use of that device does not involve:
31
(e) entry onto premises without permission; or
32
(f) interference without permission with any vehicle or thing.
33
20 After subsection 38(3)
34
Insert:
35
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(3A) If a control order is in force in relation to a person, a State or
1
Territory law enforcement officer acting in the course of his or her
2
duties may, without warrant, use a surveillance device to obtain
3
information relating to the person for any of the following
4
purposes:
5
(a) protecting the public from a terrorist act;
6
(b) preventing the provision of support for, or the facilitation of,
7
a terrorist act;
8
(c) preventing the provision of support for, or the facilitation of,
9
the engagement in a hostile activity in a foreign country;
10
(d) determining whether the control order has been, or is being,
11
complied with;
12
if the use involves listening to, or recording, words spoken by a
13
person, and the use is confined to circumstances where:
14
(e) the State or Territory law enforcement officer is the speaker
15
of the words or is a person, or is included in a class or group
16
of persons, by whom the speaker of the words intends, or
17
should reasonably expect, the words to be heard; or
18
(f) the State or Territory law enforcement officer listens to or
19
records the words with the consent, express or implied, of a
20
person who is permitted to listen to or record the words:
21
(i) by paragraph (e); or
22
(ii) so far as subsection (6) applies in relation to the control
23
order--by that subsection.
24
21 At the end of section 38
25
Add:
26
(6) If:
27
(a) a control order is in force in relation to a person; and
28
(b) a person (other than a State or Territory law enforcement
29
officer) is assisting a State or Territory law enforcement
30
officer who is acting in the course of his or her duties in
31
relation to any of the following purposes:
32
(i) protecting the public from a terrorist act;
33
(ii) preventing the provision of support for, or the
34
facilitation of, a terrorist act;
35
Surveillance devices Schedule 10
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93
(iii) preventing the provision of support for, or the
1
facilitation of, the engagement in a hostile activity in a
2
foreign country;
3
(iv) determining whether the control order has been, or is
4
being, complied with;
5
the person assisting may, without warrant, use a surveillance
6
device to obtain information relating to the person mentioned in
7
paragraph (a) if:
8
(c) the use involves listening to, or recording, words spoken by a
9
person; and
10
(d) the person assisting is the speaker of the words or is a person,
11
or is included in a class or group of persons, by whom the
12
speaker of the words intends, or should reasonably expect,
13
the words to be heard.
14
22 After subsection 39(3A)
15
Insert:
16
(3B) If a control order is in force in relation to a person, a law
17
enforcement officer may, with the written permission of an
18
appropriate authorising officer, use a tracking device without a
19
warrant to obtain information relating to the person for any of the
20
following purposes:
21
(a) protecting the public from a terrorist act;
22
(b) preventing the provision of support for, or the facilitation of,
23
a terrorist act;
24
(c) preventing the provision of support for, or the facilitation of,
25
the engagement in a hostile activity in a foreign country;
26
(d) determining whether the control order, or any succeeding
27
control order, has been, or is being, complied with.
28
23 Subsection 39(4)
29
Omit "and (3A)", substitute ", (3A) and (3B)".
30
24 Subsections 39(5) and (7)
31
Omit "or (3A)", substitute ", (3A) or (3B)".
32
25 After paragraph 40(1)(da)
33
Insert:
34
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(db) if the authorisation is given on the basis of a control order
1
that is in force in relation to a person--the following details
2
in relation to the control order:
3
(i) the name of the person;
4
(ii) the date the control order was made;
5
(iii) whether the control order is an interim control order or a
6
confirmed control order; and
7
26 At the end of paragraph 45(1)(c)
8
Add "or section 65B (which deals with information obtained before an
9
interim control order is declared void)".
10
27 Paragraph 45(2)(c)
11
After "operations)", insert "or section 65B (which deals with
12
information obtained before an interim control order is declared void)".
13
28 Subsection 45(3)
14
After "(5)", insert "and section 65B".
15
29 At the end of subsection 45(5)
16
Add:
17
; (j) in the case of information:
18
(i) obtained under a control order warrant; or
19
(ii) relating to an application for, the issue of, the existence
20
of, or the expiration of, a control order warrant; or
21
(iii) that is likely to enable the identification of a person,
22
object or premises specified in a control order warrant;
23
determining whether the relevant control order, or any
24
succeeding control order, has been, or is being, complied
25
with;
26
(k) in the case of information:
27
(i) obtained under a tracking device authorisation given on
28
the basis of a control order; or
29
(ii) relating to an application for, the giving of, the
30
existence of, or the expiration of, a tracking device
31
authorisation given on the basis of a control order; or
32
(iii) that is likely to enable the identification of a person,
33
object or premises specified in a tracking device
34
authorisation given on the basis of a control order;
35
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determining whether the control order, or any succeeding
1
control order, has been, or is being, complied with.
2
30 Subsection 45(6)
3
Omit "and (c)", substitute ", (c), (j) and (k)".
4
31 Subsection 45(9) (at the end of the definition of State or
5
Territory relevant proceeding)
6
Add:
7
; or (i) a proceeding under, or a proceeding relating to a matter
8
arising under, a preventative detention order law (other than
9
Division 105 of the Criminal Code), so far as the proceeding
10
relates to a preventative detention order (within the meaning
11
of that preventative detention order law).
12
32 After section 46
13
Insert:
14
46A Destruction of records--information obtained before a control
15
order came into force
16
(1) If:
17
(a) a record or report is in the possession of a law enforcement
18
agency; and
19
(b) the record or report comprises information obtained from the
20
use of a surveillance device under:
21
(i) a control order warrant; or
22
(ii) a tracking device authorisation;
23
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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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
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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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 After section 49
12
Insert:
13
49A Notification to Ombudsman in relation to control order
14
warrants etc.
15
(1) Within 6 months after a control order warrant is issued in response
16
to an application by a law enforcement officer of a law
17
enforcement agency, the chief officer of the agency must:
18
(a) notify the Ombudsman that the warrant has been issued; and
19
(b) give to the Ombudsman a copy of the warrant.
20
(2) As soon as practicable after a law enforcement agency, or a law
21
enforcement officer of a law enforcement agency, contravenes any
22
of the following conditions or provisions, the chief officer of the
23
agency must notify the Ombudsman of the contravention:
24
(a) a condition specified in a control order warrant;
25
(b) subsection 20(2), to the extent it applies to a control order
26
warrant;
27
(c) section 45 or subsection 46(1), to the extent it applies to
28
protected information obtained from the use of a surveillance
29
device under a control order warrant;
30
(d) section 46A;
31
(e) subsection 50A(4).
32
(3) A failure to comply with subsection (1) or (2) does not affect the
33
validity of a control order warrant.
34
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(4) This section applies in relation to a tracking device authorisation
1
given on the basis of a control order in the same way as this section
2
applies in relation to a control order warrant.
3
36 At the end of section 50
4
Add:
5
(5) Subsection (4) has effect subject to section 50A.
6
37 After section 50
7
Insert:
8
50A Deferral of inclusion of information in annual report
9
Scope
10
(1) This section applies to information in a report submitted to the
11
Minister under subsection 50(1) by the chief officer of a law
12
enforcement agency.
13
Exclusion of information
14
(2) If the chief officer is satisfied that the information is control order
15
information, the chief officer must advise the Minister in writing to
16
exclude the information from the report before tabling it in
17
Parliament under subsection 50(4).
18
(3) If the Minister is satisfied, on the advice of the chief officer, that
19
the information is control order information, the Minister must:
20
(a) notify the chief officer in writing; and
21
(b) exclude the information from the report before tabling it in
22
Parliament.
23
Inclusion of information in subsequent report
24
(4) If:
25
(a) because of subsection (3), the information has not been
26
included in a report tabled in Parliament; and
27
(b) the chief officer submits a report (the later report) to the
28
Minister under subsection 50(1);
29
the chief officer must, before the Minister tables the later report:
30
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
99
(c) reconsider whether the information is control order
1
information; and
2
(d) if the chief officer is satisfied that the information is not
3
control order information--advise the Minister in writing to
4
include the information in the later report before tabling it in
5
Parliament.
6
(5) If the Minister is satisfied, on the advice of the chief officer, that
7
the information is not control order information, the Minister must:
8
(a) notify the chief officer in writing; and
9
(b) include the information in the later report before tabling it in
10
Parliament.
11
Definitions
12
(6) In this section:
13
control order information means information that, if made public,
14
could reasonably be expected to enable a reasonable person to
15
conclude that a control order warrant authorising:
16
(a) the use of a surveillance device on particular premises; or
17
(b) the use of a surveillance device in or on a particular object or
18
class of object; or
19
(c) the use of a surveillance device in respect of the
20
conversations, activities or location of a particular person;
21
is likely to be, or is not likely to be, in force.
22
38 At the end of section 51
23
Add:
24
; (l) a copy of each advice the chief officer gives the Minister
25
under subsection 50A(2) or paragraph 50A(4)(d);
26
(m) each notice the chief officer receives from the Minister under
27
paragraph 50A(3)(a) or (5)(a).
28
39 At the end of paragraph 52(1)(j)
29
Add "or subsection 46A(1)".
30
40 At the end of subsection 52(1)
31
Add:
32
Schedule 10 Surveillance devices
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
; (k) details of each reconsideration by the chief officer under
1
paragraph 50A(4)(c) that does not result in the chief officer
2
giving advice under paragraph 50A(4)(d).
3
41 After subparagraph 53(2)(c)(iiib)
4
Insert:
5
(iiic) if the warrant is a control order warrant that was issued
6
on the basis of a control order--the date the control
7
order was made; and
8
42 After subsection 55(2)
9
Insert:
10
(2A) The Ombudsman may inspect the records of a law enforcement
11
agency to determine the extent of compliance during any period
12
with the conditions and provisions mentioned in subsection 49A(2)
13
(about control order warrants etc.) by the agency and law
14
enforcement officers of the agency if:
15
(a) the chief officer of the agency notifies the Ombudsman under
16
that subsection of a contravention of those conditions or
17
provisions; and
18
(b) the contravention occurred in that period.
19
43 At the end of section 61
20
Add:
21
Control order information
22
(4) The Minister must exclude information from the report before the
23
Minister causes a copy of the report to be laid before each House
24
of the Parliament if the Minister is satisfied that the information is
25
control order information.
26
(5) If the Minister must send a copy of the report to a Minister of a
27
State under subsection (3), subsection (4) does not require the
28
Minister to exclude from that copy information that the Minister
29
must exclude from the copy of the report the Minister causes to be
30
laid before each House of the Parliament.
31
(6) If:
32
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
101
(a) because of subsection (4), information has not been included
1
in a copy of a report laid before each House of the Parliament
2
under subsection (2); and
3
(b) the Ombudsman makes a report (the later report) to the
4
Minister under subsection (1);
5
the Minister must, before causing a copy of the later report to be
6
laid before each House of the Parliament:
7
(c) reconsider whether the information is control order
8
information; and
9
(d) if the Minister is satisfied that the information is not control
10
order information--include the information in the copy of the
11
later report before causing it to be laid before each House of
12
the Parliament under subsection (2).
13
44 At the end of Division 3 of Part 6
14
Add:
15
61A Report may cover notified breaches in relation to control order
16
warrants etc.
17
(1) In a report under subsection 61(1) in relation to a 6-month period,
18
the Ombudsman may include a report on a contravention of which
19
the Ombudsman is notified under subsection 49A(2) (about control
20
order warrants etc.), if the Ombudsman does not conduct an
21
inspection under subsection 55(2A) in relation to a period during
22
which the contravention occurred.
23
Note:
If the Ombudsman conducts an inspection under subsection 55(2A),
24
the Ombudsman must report on the results of the inspection under
25
subsection 61(1).
26
(2) For the purposes of subsection (1), it does not matter whether the
27
Ombudsman is notified under subsection 49A(2) before, during or
28
after the 6-month period to which the report relates.
29
(3) Subsection (1) does not limit what the Ombudsman may include in
30
a report under section 61.
31
45 After section 65
32
Insert:
33
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
65A Protection of persons--control order declared to be void
1
Control order warrant
2
(1) If:
3
(a) a control order warrant was issued on the basis that an
4
interim control order was in force; and
5
(b) a court subsequently declares the interim control order to be
6
void;
7
a criminal proceeding does not lie against a person in respect of
8
anything done, or omitted to be done, in good faith by the person:
9
(c) in the purported execution of the warrant; or
10
(d) in the purported exercise of a power, or the purported
11
performance of a function or duty, in a case where the
12
purported exercise of the power, or the purported
13
performance of the function or duty, is consequential on the
14
warrant.
15
(2) Subsection (1) does not apply to a thing done, or omitted to be
16
done, at a particular time if, at that time, the person knew, or ought
17
reasonably to have known, of the declaration.
18
Tracking device authorisation
19
(3) If:
20
(a) a tracking device authorisation was given on the basis that an
21
interim control order was in force; and
22
(b) a court subsequently declares the interim control order to be
23
void;
24
a criminal proceeding does not lie against a person in respect of
25
anything done, or omitted to be done, in good faith by the person:
26
(c) in the purported execution of the authorisation; or
27
(d) in the purported exercise of a power, or the purported
28
performance of a function or duty, in a case where the
29
purported exercise of the power, or the purported
30
performance of the function or duty, is consequential on the
31
authorisation.
32
(4) Subsection (3) does not apply to a thing done, or omitted to be
33
done, at a particular time if, at that time, the person knew, or ought
34
reasonably to have known, of the declaration.
35
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
103
Use of device without warrant
1
(5) If:
2
(a) an optical surveillance device was used under
3
subsection 37(4) on the basis that an interim control order
4
was in force; and
5
(b) a court subsequently declares the interim control order to be
6
void;
7
a criminal proceeding does not lie against a person in respect of
8
anything done, or omitted to be done, in good faith by the person:
9
(c) in the purported exercise of the power conferred by
10
subsection 37(4); or
11
(d) in the purported exercise of a power, or the purported
12
performance of a function or duty, in a case where the
13
purported exercise of the power, or the purported
14
performance of the function or duty, is consequential on the
15
purported exercise of the power conferred by
16
subsection 37(4).
17
(6) Subsection (5) 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
(7) If:
21
(a) a surveillance device was used under subsection 38(3A) or
22
(6) on the basis that an interim control order was in force;
23
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 exercise of the power conferred by
29
subsection 38(3A) or (6), as the case requires; or
30
(d) in 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 the
34
purported exercise of the power conferred by
35
subsection 38(3A) or (6), as the case requires.
36
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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(8) Subsection (7) does not apply to a thing done, or omitted to be
1
done, at a particular time if, at that time, the person knew, or ought
2
reasonably to have known, of the declaration.
3
65B Dealing with information obtained under a control order
4
warrant, tracking device authorisation etc.--control
5
order declared to be void
6
Scope
7
(1) This section applies if:
8
(a) any of the following conditions is satisfied:
9
(i) a control order warrant was issued on the basis that an
10
interim control order was in force;
11
(ii) a tracking device authorisation was given on the basis
12
that an interim control order was in force;
13
(iii) an optical surveillance device was used under
14
subsection 37(4) on the basis that an interim control
15
order was in force;
16
(iv) a surveillance device was used under subsection 38(3A)
17
or (6) on the basis that an interim control order was in
18
force; and
19
(b) a court subsequently declares the interim control order to be
20
void; and
21
(c) if subparagraph (a)(i) applies--before the declaration was
22
made, information was obtained as a result of:
23
(i) the purported execution of the warrant; or
24
(ii) the purported exercise of a power, or the purported
25
performance of a function or duty, in a case where the
26
purported exercise of the power, or the purported
27
performance of the function or duty, is consequential on
28
the warrant; and
29
(d) if subparagraph (a)(ii) applies--before the declaration was
30
made, information was obtained as a result of:
31
(i) the purported execution of the authorisation; or
32
(ii) the purported exercise of a power, or the purported
33
performance of a function or duty, in a case where the
34
purported exercise of the power, or the purported
35
performance of the function or duty, is consequential on
36
the authorisation; and
37
Surveillance devices Schedule 10
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
105
(e) if subparagraph (a)(iii) applies--before the declaration was
1
made, information was obtained as a result of:
2
(i) the purported exercise of the power conferred by
3
subsection 37(4); or
4
(ii) the purported exercise of a power, or the purported
5
performance of a function or duty, in a case where the
6
purported exercise of the power, or the purported
7
performance of the function or duty, is consequential on
8
the purported exercise of the power conferred by
9
subsection 37(4); and
10
(f) if subparagraph (a)(iv) applies--before the declaration was
11
made, information was obtained as a result of:
12
(i) the purported exercise of the power conferred by
13
subsection 38(3A) or (6), as the case requires; or
14
(ii) 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
18
the purported exercise of the power conferred by
19
subsection 38(3A) or (6), as the case requires.
20
Dealing
21
(2) A person may use, communicate or publish the information if:
22
(a) the person reasonably believes that doing so is necessary to
23
assist in preventing, or reducing the risk, of:
24
(i) the commission of a terrorist act; or
25
(ii) serious harm to a person; or
26
(iii) serious damage to property; or
27
(b) the person does so for one or more purposes set out in
28
subsection (4).
29
Evidence
30
(3) The information may be admitted in evidence in any proceedings
31
if:
32
(a) doing so is necessary to assist in preventing, or reducing the
33
risk, of:
34
(i) the commission of a terrorist act; or
35
(ii) serious harm to a person; or
36
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(iii) serious damage to property; or
1
(b) it is admitted for one or more purposes set out in
2
subsection (4).
3
Purposes
4
(4) The purposes are purposes connected with the performance of a
5
function or duty, or the exercise of a power, by a person, court,
6
tribunal or other body under, or in relation to a matter arising
7
under, a preventative detention order law, so far as the function,
8
duty or power relates to a preventative detention order (within the
9
meaning of that preventative detention order law).
10
Definition
11
(5) In this section:
12
serious harm has the same meaning as in the Criminal Code.
13
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107
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:
20
(a) the person advocates genocide; and
21
(b) the person engages in that conduct reckless as to whether
22
another person will engage in genocide.
23
Note:
There is a defence in section 80.3 for acts done in good faith.
24
Penalty: Imprisonment for 7 years.
25
Schedule 11 Offence of advocating genocide
108
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
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Double jeopardy
1
(2) A person cannot be tried by a federal court or a court of a State or
2
Territory for an offence against subsection (1) if the person has
3
already been convicted or acquitted by the International Criminal
4
Court for an offence constituted by substantially the same conduct
5
as constituted the offence against subsection (1).
6
Definitions
7
(3) In this section:
8
advocate means counsel, promote, encourage or urge.
9
genocide means the commission of an offence against Subdivision
10
B (genocide) of Division 268, other than:
11
(a) an offence against section 11.1 (attempt), 11.4 (incitement) or
12
11.5 (conspiracy) to the extent that it relates to an offence
13
against that Subdivision; or
14
(b) an offence against that Subdivision that a person is taken to
15
have committed because of section 11.2 (complicity and
16
common purpose), 11.2A (joint commission) or 11.3
17
(commission by proxy).
18
(4) A reference in this section to advocating genocide includes a
19
reference to:
20
(a) advocating genocide, even if genocide does not occur; and
21
(b) advocating the commission of a specific offence that is
22
genocide; and
23
(c) advocating the commission of more than one offence, each of
24
which is genocide.
25
Security assessments Schedule 12
Main amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
109
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
Schedule 12 Security assessments
Part 1 Main amendments
110
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
7 Section 61
1
After "Commonwealth agency", insert ", State and authority of a State".
2
8 Paragraph 65(1)(b)
3
After "Commonwealth agency", insert ", State or authority of a State".
4
9 Application of amendment of paragraph 65(1)(b)
5
The amendment of paragraph 65(1)(b) of the Australian Security
6
Intelligence Organisation Act 1979 made by this Schedule applies in
7
relation to security assessments and communications furnished, or
8
allegedly furnished, after the commencement of this Schedule.
9
Security assessments Schedule 12
Consequential amendments Part 2
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
111
Part 2--Consequential amendments
1
Administrative Appeals Tribunal Act 1975
2
10 Section 29B
3
After "Commonwealth agency", insert ", State or authority of a State".
4
11 Subsections 39A(2), (6), (7), (8) and (12)
5
After "Commonwealth agency", insert ", State or authority of a State".
6
12 Paragraph 39A(15)(b)
7
After "Commonwealth agency", insert ", State or authority of a State".
8
13 Subsection 39A(15)
9
After "that agency", insert ", State or authority".
10
14 Subsections 43AAA(4) and (5)
11
After "Commonwealth agency", insert ", State or authority of a State".
12
Schedule 13 Classification of publications etc.
112
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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
Delayed notification search warrants Schedule 14
Amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
113
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
Schedule 14 Delayed notification search warrants
Part 1 Amendments
114
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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
Delayed notification search warrants Schedule 14
Amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
115
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
Schedule 14 Delayed notification search warrants
Part 2 Application of amendments
116
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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
Protecting national security information in control order proceedings Schedule 15
Main amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
117
Schedule 15--Protecting national security
1
information in control order
2
proceedings
3
Part 1--Main amendments
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
Schedule 15 Protecting national security information in control order proceedings
Part 1 Main amendments
118
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
10 Before section 38I
1
Insert:
2
Subdivision A--Closed hearing requirements
3
11 Subsection 38I(1)
4
Omit "for a hearing under subsection 38G(1) or 38H(6)", substitute:
5
that apply:
6
(a) for a hearing under subsection 38G(1) or 38H(6) relating to
7
the disclosure of information in a civil proceeding; or
8
(b) if the court makes an order under subsection 38J(2), (3) or (4)
9
that the closed hearing requirements in this section are to
10
apply when information that is the subject of the order is
11
disclosed to the court at a hearing in a proceeding under
12
Division 104 of the Criminal Code (about control orders)--
13
when the information is disclosed to the court at that hearing.
14
12 Subsection 38I(1) (note)
15
Omit "those provisions", substitute "subsections 38G(1) and 38H(6),
16
and an order under subsection 38J(2), (3) or (4),".
17
13 After subsection 38I(3)
18
Insert:
19
(3A) Despite subsections (2) and (3), if:
20
(a) the hearing is under subsection 38G(1) or 38H(6); and
21
(b) the proceeding is under Division 104 of the Criminal Code
22
(about control orders); and
23
(c) a person referred to in paragraph (2)(e) requests the court to
24
make an order that one or more specified parties to the
25
proceeding, and their legal representatives, are not entitled to
26
be present during any part of the hearing in which a person
27
referred to in paragraph (2)(e) gives information of the kind
28
referred to in paragraph (3)(c) or (d);
29
then the court may make that order.
30
Note:
An order made under subsection 38J(2), (3) or (4) in relation to the
31
proceeding will contain a similar restriction in relation to a hearing in
32
the proceeding: see paragraph 38J(2)(e), 38J(3)(d) or 38J(4)(c).
33
Protecting national security information in control order proceedings Schedule 15
Main amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
119
14 Paragraph 38I(5)(a)
1
After "section", insert "38J or".
2
15 Subsection 38I(6)
3
Omit "If section 38K applies, the", substitute "The".
4
16 Paragraph 38I(9)(a)
5
After "allow", insert "the following persons (other than a person who,
6
because of an order under subsection (3A) or 38J(2), (3) or (4), is not
7
entitled to be present during any part of the hearing)".
8
17 Subparagraph 38I(9)(a)(i)
9
Omit "or".
10
18 Subparagraph 38I(9)(a)(iii)
11
Omit ", and if applicable, section 38J".
12
19 At the end of section 38I
13
Add:
14
(10) If the court makes a decision under subsection (8), the
15
Attorney-General or his or her legal representative may request
16
that the court delay allowing access to the varied record or the
17
record as mentioned in paragraph (9)(a) to allow time for the
18
Attorney-General to:
19
(a) decide whether to appeal against the court's decision; and
20
(b) if the Attorney-General decides to do so--make the appeal.
21
The court must grant the request.
22
20 Before section 38J
23
Insert:
24
Subdivision B--Orders
25
21 Section 38J
26
Repeal the section, substitute:
27
Schedule 15 Protecting national security information in control order proceedings
Part 1 Main amendments
120
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
38J Special court orders in control order proceedings
1
When this section applies
2
(1) This section applies if:
3
(a) the court has held a hearing required by subsection 38G(1) or
4
38H(6) about the disclosure of information in a proceeding
5
under Division 104 of the Criminal Code relating to a request
6
(the control order request) to the court to make, confirm or
7
vary a control order in relation to a person (the relevant
8
person); and
9
(b) the Attorney-General or the Attorney-General's legal
10
representative has requested the court to make an order under
11
subsection (2), (3) or (4) of this section about the disclosure
12
and consideration of the information in the proceeding; and
13
(c) the court is satisfied that the relevant person has been given
14
sufficient information about the allegations on which the
15
control order request was based to enable effective
16
instructions to be given in relation to those allegations.
17
Non-disclosure certificate hearings
18
(2) If the hearing was required by subsection 38G(1) and the
19
information is in the form of a document, the court may order
20
under this subsection that:
21
(a) the following persons must not, except in permitted
22
circumstances or in accordance with this subsection, disclose
23
the information (whether in the proceeding or otherwise):
24
(i) any person to whom the certificate mentioned in
25
subsection 38F(2) or (3) was given in accordance with
26
that subsection;
27
(ii) any person to whom the contents of the certificate have
28
been disclosed for the purposes of the hearing;
29
(iii) any other specified person; and
30
(b) those persons may disclose in the proceeding:
31
(i) a copy of the document with the information deleted; or
32
(ii) a copy of the document with the information deleted
33
and a summary of the information, as set out in the
34
order, attached to the document; or
35
Protecting national security information in control order proceedings Schedule 15
Main amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
121
(iii) a copy of the document with the information deleted
1
and a statement of facts, as set out in the order, that the
2
information would, or would be likely to, prove attached
3
to the document;
4
(which disclosure may or may not be the same as was
5
permitted in the certificate); and
6
(c) the information may be disclosed to the court in the
7
proceeding; and
8
(d) the closed hearing requirements in section 38I are to apply
9
when the information is disclosed to the court at a hearing in
10
the proceeding; and
11
(e) the relevant person and the relevant person's legal
12
representative are not entitled to be present during any part of
13
a hearing in the proceeding in which the information is
14
disclosed to the court; and
15
(f) if the information is disclosed to the court in the proceeding
16
and, apart from the order, the information is admissible in
17
evidence in the proceeding--the court may consider the
18
information in the proceeding, even if the information has not
19
been disclosed to the relevant person or the relevant person's
20
legal representative.
21
(3) If the hearing was required by subsection 38G(1), the court may,
22
regardless of the form of the information, order under this
23
subsection that:
24
(a) any of the following persons must not, except in permitted
25
circumstances or in accordance with this subsection, disclose
26
the information (whether in the proceeding or otherwise):
27
(i) any person to whom the certificate mentioned in
28
subsection 38F(2) or (3) was given in accordance with
29
that subsection;
30
(ii) any person to whom the contents of the certificate have
31
been disclosed for the purposes of the hearing;
32
(iii) any other specified person; and
33
(b) the information may be disclosed to the court in the
34
proceeding; and
35
(c) the closed hearing requirements in section 38I are to apply
36
when the information is disclosed to the court at a hearing in
37
the proceeding; and
38
Schedule 15 Protecting national security information in control order proceedings
Part 1 Main amendments
122
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(d) the relevant person and the relevant person's legal
1
representative are not entitled to be present during any part of
2
a hearing in the proceeding in which the information is
3
disclosed to the court; and
4
(e) if the information is disclosed to the court in the proceeding
5
and, apart from the order, the information is admissible in
6
evidence in the proceeding--the court may consider the
7
information in the proceeding, even if the information has not
8
been disclosed to the relevant person or the relevant person's
9
legal representative.
10
Witness exclusion certificate hearings
11
(4) If the hearing was required by subsection 38H(6) in relation to the
12
calling of a witness in the proceeding, the court may order under
13
this subsection that:
14
(a) the relevant person and the relevant person's legal
15
representative must not call the witness at a hearing in the
16
proceeding; and
17
(b) the closed hearing requirements in section 38I are to apply if
18
the witness is called at a hearing in the proceeding; and
19
(c) the relevant person and the relevant person's legal
20
representative are not entitled to be present if the witness is
21
called at a hearing in the proceeding.
22
Factors to be considered by court
23
(5) The court must, in deciding whether to make an order under
24
subsection (2), (3) or (4), consider the following matters:
25
(a) whether, having regard to the Attorney-General's certificate,
26
there would be a risk of prejudice to national security if:
27
(i) where the certificate was given under subsection 38F(2)
28
or (3)--the information were disclosed in contravention
29
of the certificate; or
30
(ii) where the certificate was given under
31
subsection 38H(2)--the witness were called;
32
(b) whether any such order would have a substantial adverse
33
effect on the substantive hearing in the proceeding;
34
(c) any other matter the court considers relevant.
35
Protecting national security information in control order proceedings Schedule 15
Main amendments Part 1
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
123
Proceedings relating to making and confirming control order
1
(6) If the court makes an order under subsection (2), (3) or (4) in
2
relation to a proceeding for the making of a control order in
3
relation to the relevant person, then the order under that subsection
4
also applies in relation to a proceeding for the confirmation of the
5
control order in relation to the person.
6
If order is not made
7
(7) If the court decides not to make an order under subsection (2), (3)
8
or (4), then the court must make an order under section 38L.
9
22 Subsection 38L(1)
10
After "section", insert ", unless the court has made an order under
11
subsection 38J(2) or (3) in relation to the information".
12
23 At the end of subsection 38L(1)
13
Add:
14
Note:
Subsections 38J(2) and (3) allow the court to make an order about the
15
disclosure and consideration of information in control order
16
proceedings under Division 104 of the Criminal Code.
17
24 At the end of subsection 38L(6)
18
Add:
19
However, this subsection does not apply if the court has made an
20
order under subsection 38J(4) about the calling of the person as a
21
witness.
22
Note:
Subsection 38J(4) allows the court to make an order about the calling
23
of witnesses in control order proceedings under Division 104 of the
24
Criminal Code.
25
25 Subsection 38M(1)
26
After "section", insert "38J or".
27
26 Section 38O
28
Omit "Division", substitute "Subdivision".
29
27 Subsections 38P(1) and (2)
30
After "section", insert "38J or".
31
Schedule 15 Protecting national security information in control order proceedings
Part 1 Main amendments
124
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
28 Section 38R (heading)
1
Repeal the heading, substitute:
2
38R Appeals against court orders under section 38J or 38L
3
29 Subsection 38R(1)
4
After "section", insert "38J or".
5
30 Section 47 (heading)
6
Repeal the heading, substitute:
7
47 Annual report
8
31 At the end of section 47
9
Add:
10
; and (c) states the number of orders made under section 38J (about
11
special court orders in proceedings under Division 104 of the
12
Criminal Code); and
13
(d) identifies the proceedings under Division 104 of the Criminal
14
Code to which the orders relate.
15
32 Application of amendments
16
The amendments of the National Security Information (Criminal and
17
Civil Proceedings) Act 2004 made by this Part apply to a civil
18
proceeding that begins before or after the commencement of this item.
19
Public Interest Disclosure Act 2013
20
33 Section 8 (paragraph (f) of the definition of designated
21
publication restriction)
22
After "section 31", insert ", 38J or".
23
Protecting national security information in control order proceedings Schedule 15
Special advocates Part 2
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
125
Part 2--Special advocates
1
National Security Information (Criminal and Civil
2
Proceedings) Act 2004
3
34 Section 7
4
Insert:
5
special advocate, of a party to a civil proceeding, has the meaning
6
given by subsection 38PA(1).
7
35 Section 17
8
Repeal the section, substitute:
9
17 Meaning of likely to prejudice national security
10
Something is likely to prejudice national security if there is a real,
11
and not merely a remote, possibility that it will prejudice national
12
security.
13
36 Paragraph 38I(2)(d)
14
After "legal representatives", insert "or special advocates".
15
37 Subsection 38I(9) (heading)
16
Repeal the heading, substitute:
17
Access to the record by a party, legal representative or special
18
advocate
19
38 After paragraph 38I(9)(a)
20
Insert:
21
(aa) allow any party's special advocate:
22
(i) to have access to the record; and
23
(ii) to prepare documents or records in relation to the record
24
in a way and at a place prescribed by the regulations for
25
the purposes of this paragraph; and
26
Schedule 15 Protecting national security information in control order proceedings
Part 2 Special advocates
126
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
39 At the end of section 38M
1
Add:
2
Special advocate
3
(5) The court must give a written statement of its reasons for making
4
an order under section 38J or 38L to any special advocate of a
5
party to the proceeding.
6
Note:
Subsections (2) to (4) of this section do not apply to the statement the
7
court gives to the special advocate.
8
40 Subsections 38N(1) and 38S(1)
9
Omit "section 38M", substitute "subsection 38M(4)".
10
41 At the end of Division 3 of Part 3A
11
Add:
12
Subdivision C--Special advocates in control order proceedings
13
38PA Appointment of special advocate
14
(1) The court may appoint a person as a special advocate of a party to
15
a civil proceeding if:
16
(a) the proceeding is a proceeding under Division 104 of the
17
Criminal Code relating to a request to the court to make,
18
confirm or vary a control order in relation to the party; and
19
(b) the court makes an order under subsection 38I(3A) or
20
subsection 38J(2), (3) or (4) that the party and the party's
21
legal representative are not entitled to be present during part
22
of a hearing in the proceeding.
23
Note:
For the function of the special advocate, see section 38PB.
24
(2) The court may appoint a person under subsection (1) only if:
25
(a) the person meets any requirements specified in the
26
regulations; and
27
(b) the court has given:
28
(i) the parties to the proceeding and the parties' legal
29
representatives; and
30
(iii) the Attorney-General and the Attorney-General's legal
31
representative;
32
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127
the opportunity to make submissions to the court about who
1
the court should appoint.
2
(3) If the party for whom the court is appointing a special advocate, or
3
the party's legal representative, requests the court under
4
paragraph (2)(b) to appoint a particular person who meets the
5
requirements mentioned in paragraph (2)(a), the court may appoint
6
a different person only if the court is satisfied that:
7
(a) appointing the person requested would result in the
8
proceeding being unreasonably delayed; or
9
(b) appointing the person requested would result in the person
10
having an actual or potential conflict of interest; or
11
(c) both:
12
(i) the person requested has knowledge of national security
13
information and disclosure of the information would be
14
likely to prejudice national security; and
15
(ii) in the circumstances, there is a risk of inadvertent
16
disclosure of that information.
17
38PB Function of special advocate
18
The function of a special advocate of a party to a civil proceeding
19
is to represent the interests of the party in the proceeding by:
20
(a) making submissions to the court at any part of a hearing in
21
the proceeding during which the party and the party's legal
22
representative are not entitled to be present; and
23
(b) adducing evidence and cross-examining witnesses at such a
24
part of a hearing in the proceeding; and
25
(c) making written submissions to the court.
26
38PC Relationship of special advocate and relevant person
27
(1) The relationship between a special advocate of a party to a civil
28
proceeding and the party is not that of legal representative and
29
client.
30
(2) However, legal professional privilege applies to a communication
31
between the party, or the party's legal representative, and the
32
special advocate in the same way as it applies to a communication
33
between the party and the party's legal representative.
34
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(3) The special advocate is not a party to the proceeding.
1
(4) For the purposes of this Act, the special advocate is not a court
2
official.
3
38PD Communication before disclosure of information to special
4
advocate by Attorney-General
5
(1) This Subdivision, other than subsection (2), does not restrict
6
communication that:
7
(a) is between:
8
(i) a special advocate of a party to a civil proceeding; and
9
(ii) the party or the party's legal representative; and
10
(b) occurs before the Attorney-General discloses information to
11
the special advocate under subsection 38PE(2) in relation to
12
the proceeding.
13
Note:
For communication between the special advocate and the party after
14
such a disclosure, see section 38PF.
15
(2) The court may make such orders as the court considers appropriate
16
prohibiting or restricting communication mentioned in
17
subsection (1) about any matter connected with the proceeding if:
18
(a) the court is satisfied that it is in the interest of national
19
security to make such orders; and
20
(b) the orders are not inconsistent with this Act or regulations
21
made under this Act.
22
38PE Disclosure of information to special advocate by
23
Attorney-General
24
(1) At the same time as the court appoints a special advocate of a party
25
to a civil proceeding, the court must make an order setting a day on
26
which the Attorney-General must:
27
(a) disclose to the special advocate the information that is subject
28
to whichever of the following is in effect at that time:
29
(i) a certificate given to the party or the party's legal
30
representative under section 38F or 38H in relation to
31
the proceeding;
32
(ii) an order made under subsection 38J(2), (3) or (4) in
33
relation to the proceeding; and
34
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(b) if subparagraph (a)(i) applies--give to the special advocate a
1
statement of the Attorney-General's reasons for withholding
2
the information from the party.
3
(2) The Attorney-General must comply with the order.
4
(3) After the Attorney-General discloses the information to the special
5
advocate under subsection (2), the special advocate must not
6
disclose the information (whether in the proceeding or otherwise)
7
other than:
8
(a) in permitted circumstances specified in the certificate given
9
under section 38F or 38H or in accordance with the order (if
10
any) made under subsection 38J(2), (3) or (4); or
11
(b) to:
12
(i) the person who applied for the relevant control order
13
(within the meaning of Part 5.3 of the Criminal Code)
14
or that person's legal representative; or
15
(ii) the Attorney-General, the Attorney-General's legal
16
representative or any other representative of the
17
Attorney-General; or
18
(c) to the court at a part of a hearing in the proceeding during
19
which the party and the party's legal representative are not
20
entitled to be present.
21
Note:
The special advocate commits an offence if he or she contravenes this
22
subsection: see subsection 46H(1).
23
(4) Paragraphs 38J(2)(a) and (3)(a) and subsections 38L(2) and (4)
24
(about the persons covered by special court orders) do not apply to
25
the special advocate.
26
38PF Communication after disclosure of information to special
27
advocate by Attorney-General
28
(1) This section applies after the Attorney-General discloses
29
information to a special advocate of a party to a civil proceeding
30
under subsection 38PE(2) in relation to the proceeding.
31
Communication by special advocate
32
(2) The special advocate must not communicate with any person about
33
any matter connected with the proceeding, other than
34
communicating:
35
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(a) with:
1
(i) the magistrate, judge or judges comprising the court; or
2
(ii) the person who applied for the relevant control order
3
(within the meaning of Part 5.3 of the Criminal Code)
4
or that person's legal representative; or
5
(iii) the Attorney-General, the Attorney-General's legal
6
representative or any other representative of the
7
Attorney-General; or
8
(b) with the party or the party's legal representative in
9
accordance with subsections (3) and (4) or (10); or
10
(c) with any other person if the communication is:
11
(i) about matters not connected with the substance of the
12
proceeding; and
13
(ii) necessary for administrative purposes.
14
Note 1:
The special advocate commits an offence if he or she contravenes this
15
subsection: see subsection 46H(3).
16
Note 2:
The restriction in this subsection continues to apply to communication
17
by the special advocate after the proceeding ends, or after he or she
18
ceases to be a special advocate: see section 38PG.
19
Communication by special advocate--written communication with
20
party through court
21
(3) The special advocate may submit a written communication to the
22
court for the court's approval and for forwarding to the relevant
23
person or the person's legal representative.
24
(4) The court must:
25
(a) if the court is satisfied that the communication is not likely to
26
prejudice national security--forward the communication
27
without amendment to the relevant person or the person's
28
legal representative; or
29
(b) if paragraph (a) does not apply:
30
(i) amend the communication to the extent necessary for
31
the court to be satisfied that the communication is not
32
likely to prejudice national security; and
33
(ii) forward the amended communication to the relevant
34
person or the person's legal representative; or
35
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131
(c) if paragraph (a) does not apply and the court is satisfied that
1
it is not practicable to amend the communication so that it is
2
not likely to prejudice national security:
3
(i) decline to forward the communication; and
4
(ii) notify the special advocate of that decision.
5
(5) The court may consult the Attorney-General, the
6
Attorney-General's legal representative or any other representative
7
of the Attorney-General before making a decision under
8
subsection (4).
9
(6) If the court forwards a communication from the special advocate to
10
the relevant person or the person's legal representative under
11
paragraph (4)(a) or (b), the court must give a description of the
12
communication to:
13
(a) the person who applied for the relevant control order or that
14
person's legal representative; and
15
(b) the Attorney-General, the Attorney-General's legal
16
representative or any other representative of the
17
Attorney-General.
18
(7) The description must not disclose information that is the subject of
19
legal professional privilege (see subsection 38PC(2)).
20
Communication by party
21
(8) The party may communicate with the special advocate about any
22
matter connected with the proceeding only in writing through the
23
party's legal representative.
24
Note:
The party commits an offence if he or she contravenes this subsection:
25
see subsection 46H(4).
26
(9) The party's legal representative may communicate with the special
27
advocate about any matter connected with the proceeding only in
28
writing.
29
Note:
The party's legal representative commits an offence if he or she
30
contravenes this subsection: see subsection 46H(5).
31
(10) The special advocate may give to the party or the party's legal
32
representative a bare acknowledgement of receipt of a written
33
communication to which subsection (8) or (9) applies.
34
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Note:
The special advocate may also reply to the communication through the
1
court in accordance with subsections (3) and (4).
2
38PG Communication after end of proceeding or by or to former
3
special advocate
4
Subsections 38PD(2) and 38PE(3) and sections 38PF and 46H
5
apply:
6
(a) in relation to a civil proceeding even if the proceeding has
7
ended; and
8
(b) in relation to a person who has ceased to be a special
9
advocate of a party to a civil proceeding in the same way as
10
those provisions apply in relation to a special advocate of the
11
party.
12
38PH Hearings under subsection 38G(1) or 38H(6)
13
To avoid doubt, for the purposes of this Subdivision and
14
section 46H:
15
(a) a hearing under subsection 38G(1) or 38H(6) relating to the
16
disclosure of information in a civil proceeding; or
17
(b) proceedings relating to such a hearing;
18
are taken to be part of the civil proceeding.
19
38PI Regulations
20
(1) The regulations may determine matters relating to special
21
advocates.
22
(2) Without limiting subsection (1), the regulations may determine
23
matters relating to the terms on which a person serves as a special
24
advocate, including terms relating to:
25
(a) remuneration; or
26
(b) conflicts of interest; or
27
(c) immunity.
28
42 At the end of Division 2 of Part 5
29
Add:
30
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133
46H Offences relating to special advocates in control order
1
proceedings
2
Disclosure of information by special advocate
3
(1) A person commits an offence if:
4
(a) the Attorney-General discloses information to the person
5
under subsection 38PE(2) in relation to a civil proceeding;
6
and
7
(b) the person discloses the information (whether in the
8
proceeding or otherwise); and
9
(c) paragraphs 38PE(3)(a), (b) and (c) do not apply to the
10
disclosure by the person.
11
Penalty: Imprisonment for 2 years.
12
(2) To avoid doubt, for the purposes of subsection (1) it does not
13
matter whether the person also obtains the information in some
14
way additional to that mentioned in paragraph (1)(a).
15
Communication by special advocate after disclosure of information
16
by Attorney-General
17
(3) A person commits an offence if:
18
(a) the Attorney-General discloses information to the person
19
under subsection 38PE(2) in relation to a civil proceeding;
20
and
21
(b) the person communicates with another person about any
22
matter connected with the proceeding; and
23
(c) the communication occurs after the disclosure mentioned in
24
paragraph (a); and
25
(d) paragraphs 38PF(2)(a), (b) and (c) do not apply to the
26
communication.
27
Penalty: Imprisonment for 2 years.
28
Communication by party or legal representative after disclosure of
29
information by Attorney-General
30
(4) A person commits an offence if:
31
(a) the person is or was a party to a civil proceeding; and
32
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(b) the Attorney-General discloses information to a special
1
advocate of the person under subsection 38PE(2) in relation
2
to the proceeding; and
3
(c) the person communicates with the special advocate about any
4
matter connected with the proceeding, other than in writing
5
through the party's legal representative; and
6
(d) the communication occurs after the disclosure mentioned in
7
paragraph (b).
8
Penalty: Imprisonment for 2 years.
9
(5) A person commits an offence if:
10
(a) the Attorney-General discloses information to a special
11
advocate of a party to a civil proceeding under
12
subsection 38PE(2) in relation to the proceeding; and
13
(b) the person communicates with the special advocate about any
14
matter connected with the proceeding, other than in writing;
15
and
16
(c) the communication occurs after the disclosure mentioned in
17
paragraph (a); and
18
(d) the first person is the legal representative of the party:
19
(i) at or after the time disclosure occurs; and
20
(ii) at or before the time the communication occurs.
21
Penalty: Imprisonment for 2 years.
22
43 At the end of section 47
23
Add:
24
; and (e) states the number of special advocates appointed during the
25
year under section 38PA; and
26
(f) identifies the proceedings under Division 104 of the Criminal
27
Code in relation to which the special advocates were
28
appointed.
29
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
135
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
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
137
(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
138
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
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 After section 355-180 in Schedule 1
7
Insert:
8
355-182 Exception--on-disclosure of certain information to
9
Commonwealth Ombudsman
10
(1) Section 355-155 does not apply if:
11
(a) the entity is an officer of an
*
Australian government agency;
12
and
13
(b) the information was acquired by the entity under the
14
exception in subsection 355-65(1) operating in relation to
15
item 10 in the table in subsection 355-65(2); and
16
(c) the record is made for, or the disclosure is to:
17
(i) the Commonwealth Ombudsman or a Deputy
18
Commonwealth Ombudsman; or
19
(ii) a member of staff referred to in subsection 31(1) of the
20
Ombudsman Act 1976; and
21
(d) the record or disclosure is for the purpose of the performance
22
of a function or duty of the Commonwealth Ombudsman, the
23
Deputy Commonwealth Ombudsman or the member of staff,
24
under the Ombudsman Act 1976.
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
this subsection: see subsection 13.3(3) of the Criminal Code.
27
(2) Section 355-155 does not apply if:
28
Disclosures by taxation officers Schedule 17
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Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
139
(a) the entity is:
1
(i) the Commonwealth Ombudsman or a Deputy
2
Commonwealth Ombudsman; or
3
(ii) a member of staff referred to in subsection 31(1) of the
4
Ombudsman Act 1976; and
5
(b) the information was acquired by the entity under
6
subsection (1) or this subsection; and
7
(c) the record or disclosure is for the purpose of the performance
8
of a function or duty of the Commonwealth Ombudsman, the
9
Deputy Commonwealth Ombudsman or the member of staff,
10
under the Ombudsman Act 1976.
11
Note:
A defendant bears an evidential burden in relation to the matters in
12
this subsection: see subsection 13.3(3) of the Criminal Code.
13
3 Application of amendments
14
The amendments of the Taxation Administration Act 1953 made by this
15
Schedule apply in relation to records and disclosures of information
16
made on or after the commencement of this item, whether the
17
information was obtained before, on or after that commencement.
18
Schedule 18 Special intelligence operations
140
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
Schedule 18--Special intelligence operations
1
2
Australian Security Intelligence Organisation Act 1979
3
1 Section 4
4
Insert:
5
entrusted person means:
6
(a) an ASIO employee; or
7
(b) an ASIO affiliate; or
8
(c) a person who has entered into a contract, agreement or
9
arrangement with ASIO (other than as an ASIO affiliate).
10
2 Subsection 18A(5) (definition of entrusted person)
11
Repeal the definition.
12
3 Subsection 18B(5) (definition of entrusted person)
13
Repeal the definition.
14
4 Subsections 35P(1) and (2)
15
Repeal the subsections, substitute:
16
Disclosures by entrusted persons
17
(1) A person commits an offence if:
18
(a) the person is, or has been, an entrusted person; and
19
(b) information came to the knowledge or into the possession of
20
the person in the person's capacity as an entrusted person;
21
and
22
(c) the person discloses the information; and
23
(d) the information relates to a special intelligence operation.
24
Penalty: Imprisonment for 5 years.
25
Note:
Recklessness is the fault element for paragraphs (1)(b) and (d)--see
26
section 5.6 of the Criminal Code.
27
(1A) Strict liability applies to paragraph (1)(a).
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
Special intelligence operations Schedule 18
No. , 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
141
(1B) A person commits an offence if:
1
(a) the person is, or has been, an entrusted person; and
2
(b) information came to the knowledge or into the possession of
3
the person in the person's capacity as an entrusted person;
4
and
5
(c) the person discloses the information; and
6
(d) the information relates to a special intelligence operation; and
7
(e) either or both of the following subparagraphs apply:
8
(i) the person intends to endanger the health or safety of
9
any person or prejudice the effective conduct of a
10
special intelligence operation;
11
(ii) the disclosure will endanger the health or safety of any
12
person or prejudice the effective conduct of a special
13
intelligence operation.
14
Penalty: Imprisonment for 10 years.
15
Note:
Recklessness is the fault element for paragraphs (1B)(b) and (d) and
16
subparagraph (1B)(e)(ii)--see section 5.6 of the Criminal Code.
17
(1C) Strict liability applies to paragraph (1B)(a).
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
Other disclosures
20
(2) A person commits an offence if:
21
(a) the person discloses information; and
22
(b) the information relates to a special intelligence operation; and
23
(c) the disclosure will endanger the health or safety of any
24
person or prejudice the effective conduct of a special
25
intelligence operation.
26
Penalty: Imprisonment for 5 years.
27
Note:
Recklessness is the fault element for paragraphs (2)(b) and (c)--see
28
section 5.6 of the Criminal Code.
29
(2A) A person commits an offence if:
30
(a) the person discloses information; and
31
(b) the information relates to a special intelligence operation; and
32
(c) either or both of the following subparagraphs apply:
33
Schedule 18 Special intelligence operations
142
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
No. , 2016
(i) the person intends to endanger the health or safety of
1
any person or prejudice the effective conduct of a
2
special intelligence operation;
3
(ii) the person knows that the disclosure will endanger the
4
health or safety of any person or prejudice the effective
5
conduct of a special intelligence operation.
6
Penalty: Imprisonment for 10 years.
7
Note:
Recklessness is the fault element for paragraph (2A)(b)--see
8
section 5.6 of the Criminal Code.
9
5 Subsection 35P(3)
10
Omit "and (2)", substitute "to (2A)".
11
6 After subsection 35P(3)
12
Insert:
13
(3A) Subsections (2) and (2A) do not apply to a person disclosing
14
information if:
15
(a) the information has already been communicated, or made
16
available, to the public (the prior publication); and
17
(b) the person was not involved in the prior publication (whether
18
directly or indirectly); and
19
(c) at the time of the disclosure, the person believes that the
20
disclosure:
21
(i) will not endanger the health or safety of any person; and
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(ii) will not prejudice the effective conduct of a special
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intelligence operation; and
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(d) having regard to the nature, extent and place of the prior
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publication, the person has reasonable grounds for that belief.
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Note:
A defendant bears an evidential burden in relation to the matters in
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subsection (3A)--see subsection 13.3(3) of the Criminal Code.
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7 Subsection 35P(4)
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Omit "or (2)", substitute ", (1B), (2) or (2A)".
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